M. Monim Benaissa, Ph.D. Candidate, University of Ottawa, Faculty of Law

A basic definition of the high seas may sound as follows: a fragile ocean space rich in its ecosystem and which covers almost half of the planet. In the high seas, or international waters, there is no state sovereignty or national jurisdiction. It is the authority of international law that applies there, specifically, the United Nations Convention on the Law of the Sea (UNCLOS) of 1982[i]. A fundamental principle of the high seas allows all the countries of the world to fish, navigate and move freely in international waters[ii].

The international community has long been aware of the importance of developing a binding legal instrument for the protection of marine biodiversity in maritime zones beyond national sovereignty, in order to fill a legal gap. Beyond 200 nautical miles, the maritime domain is part of the waters of the high seas. As a result, some international law norms mention the necessity of international cooperation for environmental protection. On the high seas and outside exclusive economic zones, there is “freedom of fishing”, to which the 1982 UNCLOS imposes certain conditions. Under this Convention, states must cooperate in the conservation and management of living resources (art. 118). Another obligation is based on articles 192 and 194 of UNCLOS, concerning the protection and preservation of the marine environment[iii]. The 1995 United Nations Fish Stocks Agreement also encourages international cooperation in this field[iv]. This instrument emphasizes the commitment of States to the conservation of natural resources in international waters, notably within the framework of regional fisheries management organizations (art. 20).

The seas and oceans produce half of the oxygen that living beings breathe. At the same time, they absorb large quantities of the carbon dioxide emitted by human industrial activities. Several factors contribute to the ecological imbalance of the seas and oceans. Global warming, water acidification, atmospheric and marine pollution, as well as IUU (Illegal, Unreported and Unregulated) fishing and overfishing, are the most threatening causes[v].

Therefore, international negotiations took place to adopt new norms to protect marine biodiversity on the high seas. In particular, the legally binding international instrument related to the United Nations Convention on the Law of the Sea, which concerns the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (The High Seas Treaty, or the treaty)[vi].

This project has been negotiated within the United Nations body for several years, moving from a working group to a Preparatory Committee[vii]. In this context, the United Nations General Assembly adopted Resolution 69/292 in 2015 to initiate negotiations for the elaboration of this new international legal instrument[viii].

Content and main objectives of the High Seas Treaty

The High Seas Treaty represents a major legal achievement in tackling today’s ocean challenges: climate change, the destruction of marine biodiversity and marine pollution. The treaty establishes a legal framework for expanding the scope of environmental protection to include international waters, equivalent to more than 60 percent of the world’s oceans. Furthermore, it sets out requirements for environmental impact studies of proposed activities in international waters. Finally, the treaty sets out principles for sharing the benefits of marine genetic resources collected during scientific research in international waters[ix]. This subject caused divergence between the States, and almost brought the treaty to a standstill. Briefly, the main objectives include:

-The establishment of area-based management tools, including marine protected areas, to conserve and sustainably manage critical species in the high seas and the international seabed area for at least 30 percent of the world’s terrestrial, inland, marine and coastal areas by 2030, as agreed in the Kunming-Montreal Global Biodiversity Framework of 2022[x].

-The implementation of control procedures for economic projects, scientific exploration and other activities in international waters, and the maintenance of their compliance with international environmental protection rules. The treaty also aims to bring biological diversity in areas beyond national sovereignty under mandatory protection.

-Fair and equitable sharing of the benefits of discoveries made in the oceans, which could be decisive for science, technology or medicine;

-The strengthening of developing states’ capacity for scientific research and good governance of marine areas;

In addition, the treaty addresses many crosscutting issues: its relationship with the UNCLOS and related legal instruments and frameworks, as well as with global, regional and sub-regional bodies. The treaty regulates funding and judicial settlement of disputes, and establishes institutional management, including the Conference of the Parties, the Scientific and Technical Commission and other subsidiary bodies of the Conference of the Parties.

In legal terms, this is a significant development in international law. The High Seas Treaty complements the provisions of the 1982 UNCLOS. The treaty will fill the legal gaps in the protection of marine biodiversity on the high seas, as soon as it will become a binding instrument, when been ratified by one-third of UN member States[xi].

Challenges: Work still needs to be done

The high seas host diverse ecosystems, including fish, corals and other microorganisms. This constitutes the third biodiversity area in the world and the most diverse native flora. Climate change, invasive species, natural resource depletion, pollution, gas and petrol drilling, illegal hunting and fishing are all factors that contribute to maritime biodiversity loss. For these reasons, States should continue their commitment to work with the private sector, and NGOs, and other stakeholders to conserve marine biodiversity in the High Seas and in particular to encourage the industrial sector to play an influential role in the protection of marine species and environment for a more sustainable future. Marine biodiversity develops through the extinction of certain species and the emergence of new ones. It is considered essential for all life on the planet, including the seas and oceans. Therefore, a healthy marine environment requires the conservation of species of fish, plants and microorganisms[xii].

In this context, international law plays an important role in promoting the sustainable management of marine biodiversity by strengthening institutional capacities and raising awareness within environmental stakeholders, in particular States and international organizations[xiii]. That said, while on the one hand the development of new binding legal instruments is important on a theoretical and diplomatic level, on the ground, the protection of the high seas and their ecosystems can be achieved by taking other measures. Indeed, human activities can range from fishing and shipping to more controversial activities, such as mining and the use of marine genetic resources in deep waters.

Emergency measures can be taken by integrating international state efforts aimed at balancing economic prosperity and sustainable development. Actions could include combating ocean pollution, delimiting marine protected areas, implementing ecosystem approaches to global fisheries management, practicing time-area fishing that respects fish biological rest, setting fishing quotas, banning fishing of endangered species, eliminating public subsidies for fishing, and taking emergency measures by governments to prevent, eliminate and deter illegal, unreported and unregulated fishing[xiv]. For their part, the public can commit to sustainable development by opting to consume fish caught legally[xv].

In addition, the success of an international convention depends in part on maintaining equity between developed and developing countries. For example, because of the very high costs and the use of high technology, oceanographic research on the high seas remains a monopoly for industrialized countries. Indeed, developing countries lacking the means to carry out this type of research have struggled to obtain benefit-sharing rights, hoping not to be left behind in what many see as a huge future market in the commercial exploitation of deep-sea marine genetic resources.

Conclusion

The implementation of the High Seas Treaty can influence the governance of the high seas, which is attracting growing attention from several States and is perceived as a common good in urgent need of protection. This treaty fills one of the existing gaps in the Law of the Sea, particularly with regard to the conservation of marine biodiversity. In short, although the instrument has been adopted in theory, the work is not yet complete. In order to put ocean protection into practice, States must first ratify it as soon as possible.

Overall, protecting the oceans in general requires the adoption of an innovative economic approach linking all the players involved in maritime activities. The high seas can be conserved and used responsibly, while achieving socio-economic objectives through urgent measures and concrete changes. Within this framework, States can each contribute to change towards sustainability, notably by strengthening implementation of the treaty’s provisions, but also by pursuing sensible national environmental policies. This, of course, implies national legal reforms.

Although it takes just 60 ratifications for it to enter into force, it will have no impact on the protection of marine biodiversity in international waters if the most important industrialized States are not included in this band.

[i] Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into force 1 November 1994).

[ii] UNCLOS, art 87 & 116. See also: M.A. Becker, “The shifting public order of the oceans: freedom of navigation and the interdiction of ships at sea” (2005) 46:1 Harvard International Law Journal pp 131-230.

[iii] The South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China), Arbitral Tribunal Constituted under Annex VII of UNCLOS, Award of 12 July 2016, paras, 717–757 and 939-975.

[iv] Lac Lanoux Arbitration (France v Spain) (1957) 24 ILR 101, 128; North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), [1969] ICJ Reports, 3, [87].

[v] Sala, Enric, et al, “Assessing Real Progress Towards Effective Ocean Protection” (2018) 91 Marine Policy pp 11-13.

[vi] UNGA, A/CONF.232/2023/4 Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological

diversity of areas beyond national jurisdiction Further resumed fifth session, 19 and 20 June 2023.

[vii] Andrew Merrie et al, «An ocean of surprises-trends in human use, unexpected dynamics and governance challenges in areas beyond national jurisdiction» (2014) 27:1 Global Environ Change pp 19-31.

[viii] UNGA, A/RES/69/292 Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Sixty-ninth session, Resolution adopted by the General Assembly on 19 June 2015

[ix] Provisional programme of work: Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, further resumed 5th session New York, 19 and 20 June 2023.

[x] Kunming-Montreal Global Biodiversity Framework (19 December 2022) UN Doc CBD/COP/DEC/15/4

19 December 2022. Online:https://www.cbd.int/doc/decisions/cop-15/cop-15-dec-04-en.pdf

[xi] Fran Humphries, et al, «A Tiered Approach to the Marine Genetic Resource Governance Framework Under the Proposed UNCLOS Agreement for Biodiversity Beyond National Jurisdiction (BBNJ)» (2020) 122 Marine Policy pp 1-14.

[xii]Sabrina Hasan, “Considering the Concept of the Ecological Civilization for Conservation and Sustainable Use of Marine Biodiversity Under the Umbrella of the Biodiversity Beyond National Jurisdiction Instrument” (2021) 23:3 Environmental Law Review pp 248-262.

[xiii] UNCLOS, art 192.

[xiv] Rashid Sumaila, et al, «Illicit Trade in Marine Fish Catch and Its Effects on Ecosystems and People Worldwide» (2020) 6:9 Science Advances pp 1-7.