High Seas Treaty

by | Mar 31, 2023 | Current issues, English, International Law

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Earlier this month, an agreement has been reached at the United Nations (UN) on the protection of the high seas (referred to as the “treaty” or the “agreement”). This has been discussed for over 20 years and marks a great step in the protection of international waters.

A few questions arise:

  • What are international waters/high seas?
  • Why is/was an international agreement necessary?
  • What does this agreement entail?
  • Will this impact the fight against climate change?

What are high seas?

First, recall that part of the seas (referring in this article to all sources of water, including rivers, seas and oceans) are under the jurisdiction of States. How could that be? Easy, States have a right over the seas that surround their territory, and make part of their territory, according to international law (over 200 nautical miles), and the rest forms the high seas -which can also be called international waters.

Process leading to the adoption of this agreement: Why was such an agreement needed?

Regulation of the seas

In the XVIIth century, two notions were in opposition: mare clausum and mare liberum (sovereignty over the seas / liberty of exploitation of the seas).

At the end of the XVIIIth century, it has been agreed that the two notions were actually not exclusive, mare liberum led to the principle of liberty at sea and the development of international maritime trade, and mare clausum led to the sovereignty of States over the coastal areas. This has been enshrined in the Montego Bay Convention -which is customary law for States that have not ratified it.

The 1982 Montego Bay Convention (the UN Convention on the Law of the Seas, UNCLOS – in force since 1994) states that:

  • The coastal State has sovereignty over 200 nautical miles, as follows:
    • The territorial sea (12 nautical miles)
    • The economic exclusive zone (188 nautical miles)
  • Then, there is the high seas (liberty).

However, the high seas stay largely under-regulated, which leads to illicit fisheries activities and a loss in terms of biodiversity. This has had impacts on coastal States’ economies because the rapid collapse of stocks has deprived certain States, whose resources are essentially marine, of their livelihood.

Since there is not sovereignty over the high seas, these are “exploited” in application of the principle of common management.

In order to better regulate and frame the use of resources in the high seas, other instruments have been adopted, such as:

  • The 1995 FAO Code of Conduct for Responsible Fisheries
  • The 1995 UN Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

But a treaty specifically on the high seas (which represents over 60% of the seas!), adopted at the international level, was needed and has been under discussion since 2004.

Key steps in the adoption of the treaty

  • In 2015, the UNGA adopted resolution 69/292, which wishes to establish a binding international instrument on marine biodiversity. A committee has been formed in that purpose.
  • In 2017, the UNGA adopted resolution 72/249 to establish the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ). It has for objective to elaborate an international legally binding instruments (treaty) based on the recommendations of the above-mentioned committee.
  • In 2022, States made, at the UN biodiversity conference, a pledge to “to protect a third of the sea (and land) by 2030.”
  • On March 4th, 2023, the UN Member States, at the UN General Assembly, adopted the Draft agreement 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 (High Seas Treaty).

It is worth noting that the adoption at the UNGA means this has been agreed by a majority of the 193 UN Member States. Such a large adoption could lead, as for the Montego Bay Convention, to give the provisions of the treaty a customary force applicable to the reluctant States.

The Treaty, however, is not in force yet: 60 States have to ratify it for that.

What does this agreement entail?

The agreement is 54 pages long and refers to many issues linked to the oceans, economy, pollution and biodiversity. See below the content of the treaty, with a few important points:

Preamble

  • It refers to biodiversity loss, the impact of climate change on marine ecosystems, and pollution; as well as indigenous peoples and the UN Declaration on the Rights of Indigenous Peoples.
  • The preamble ends with these two sentences: “Committed to achieving sustainable development, Aspiring to achieve universal participation,” meaning that this treaty has a sustainability goal, aligned with the SDGs (Sustainable Development Goals) and aims to set out rules and principles that should/must be universally recognized and accepted – and therefore become customary law?

Part I General provisions

  • It uses, as in the Montego Bay Convention, a negative definition of the high seas: “This Agreement applies to areas beyond national jurisdiction.” (Article 3) Here, however, it also comprises marine protected areas (Article 1).
  • Its objective is stated as follows: “[…] ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, […].”
  • The implementation of the treaty rests on 13 principles, set out in article 5:

“(a) The polluter–pays principle;

(b) the principle of the common heritage of humankind which is set out in the Convention;

(b) bis. the freedom of marine scientific research, together with other freedoms of the high seas;

(c) The principle of equity, and the fair and equitable sharing of benefits;

(d) Precautionary principle or precautionary approach, as appropriate;

(e) An ecosystem approach;

(f) An integrated approach to ocean management;

(g) An approach that builds ecosystems resilience, including to adverse effects of climate change and ocean acidification, and also maintains and restores ecosystem integrity, including the carbon cycling services that underpin the ocean’s role in climate;

(h) The use of the best available science and scientific information;

(i) The use of relevant traditional knowledge of Indigenous Peoples and local communities, where available;

(j) The respect, promotion and consideration of their respective obligations, as applicable, relating to the rights of Indigenous Peoples or of, as appropriate, local communities when taking action to address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction;

(k) The non-transfer, directly or indirectly, of damage or hazards from one area to another and the non-transformation of one type of pollution into another, in taking measures to prevent reduce, and control pollution of the marine environment;

(l) Full recognition of the special circumstances of small island developing States and of least developed countries;

(m) Acknowledgement of the special interests and needs of landlocked developing countries.”

Part II Marine genetic resources, including the fair and equitable sharing of benefits

  • This part lays out the idea of an equitable repartition of the benefits “from activities with respect to marine genetic resources and digital sequence information on marine genetic resources”. (Article 7). In this regard, a benefit-sharing committee is established by article 11bis, to which the State parties will submit reports regularly (Article 13).
  • It also refers to the traditional knowledge of indigenous peoples with regard to maritime genetic resources (Article 10bis).

Part III Measures such as area-based management tools, including marine protected areas

  • This part provides for the possibility to establish area-based management tools that help for the conservation and sustainable use of areas requiring protection, and to strengthen the cooperation and coordination between States in the use of these tools.
  • It also sets out emergency measures (article 20), adopted by the Conference of the Parties (see more below) when “a natural phenomenon or human-caused disaster has caused, or is likely to cause, serious or irreversible harm to marine biological diversity of areas beyond national jurisdiction, to ensure that the serious or irreversible harm is not exacerbated.”

Part IV Environmental impact assessments

  • Environmental impact assessments are defined as “a process to identify and evaluate the potential impacts of an activity to inform decision-making.” (article 1)
  • The obligation to conduct environmental impact assessments is, as set out in article 22, to assess the potential impact of an activity, and a report on it. Such assessments must be publicly available.
  • Once the activity is ongoing, States have to monitor the implementation of the activities – referring again to the knowledge of the indigenous peoples – and review the impacts as well as conduct strategic environmental assessments.
  • Moreover, a Scientific and technical Body is charged to develop standards and guidelines for the environmental impact assessments, to be adopted by the Conference of the Parties (article 41bis)

Part V Capacity-building and transfer of marine technology

  • The part aims at developing the knowledge and research regarding the conservation and sustainable use of marine biological diversity as well as developing the marine scientific and technological capacity, and the cooperation between States in this regard.
  • It establishes a capacity-building and transfer of marine technology committee to assist with these objectives and provide reports.

Part VI Institutional arrangements

  • It establishes a Conference of the Parties (COP) solely dedicated to the matters at stake within this agreement (article 48). This COP is tasked to review and evaluate the implementation of the agreement.
  • In the performance of its duties, it can request an advisory opinion from the International Tribunal for the Law of the Sea “on a legal question on the conformity with this Agreement of a proposal before the Conference of the Parties on any matter within its competence.”
  • A clearing-house mechanism is established under the form of an open-access platform allowing States to disseminate information and enhance transparency, inter alia.

Part VII Financial resources and mechanism

  • The institutions established by the agreement are funded through the contributions of the Parties, and a mechanism for the financial resources is established.

Part VIII Implementation and compliance

  • It establishes a Compliance Committee to “facilitate and consider the implementation of and promote compliance with the provisions of this Agreement […] in a manner that is transparent, non-adversarial and non-punitive”, meaning that non-compliance to the treaty will not be sanctioned.

Part IX Settlement of disputes

  • It recalls the obligation to settle disputes by peaceful means, and provides a procedure for that.

Part X Non-parties to this agreement

  • It encourages non-parties to become parties to the agreement.

Part XI Good faith and abuse of rights

  • Parties should implement this agreement and fulfil their obligations in good faith.

Part XII Final provisions

  • The agreement is fully accepted, no reservations from the Parties are possible.

Annexes

  • Annex 1 Indicative criteria for identification areas
  • Annex 2 Types of capacity-building and transfer of marine technology

Will this impact the fight against climate change?

This agreement refers to pollution, to the protection of ecosystems and marine biodiversity, and sets out obligations to make assessments before conducting an activity and then monitor and review the actual impact of the said activity in the high seas. It also lets the newly created COP (not related to the UN COP on the Climate) take emergency measures before/during/after human-led or natural disasters impact the marine ecosystem of the high seas. This definitely would help avoid activities and projects that are absolutely not sustainable and do not take into account the marine environment.

The main weakness, however, is the lack of sanctions and penalties in the event of a State’s non compliance with the provisions of the treaty despite the establishment of several monitoring committees.

For more information on the relations of the treaty with climate change:

UNFCCC, New Historic UN Treaty on Oceans Can Help Climate Action (7 March 2023) https://unfccc.int/news/new-historic-un-treaty-on-oceans-can-help-climate-action

Sources

Conventions and other instruments

UN Convention on the Law of the Sea (Montego Bay Convention; UNCLOS), 1982 https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

More on the convention: https://legal.un.org/avl/ha/uncls/uncls.html

Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (Draft agreement), 4 March 2023

https://www.un.org/bbnj/sites/www.un.org.bbnj/files/draft_agreement_advanced_unedited_for_posting_v1.pdf

FAO, Code of Conduct for Responsible Fisheries 1995 https://www.fao.org/iuu-fishing/international-framework/code-of-conduct-for-responsible-fisheries/en/

UN, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 https://www.fao.org/iuu-fishing/international-framework/un-fish-stocks-agreement/en/

General information

High Sea Alliance https://www.highseasalliance.org/

UN, Thematic Questions, Oceans and the law of the sea https://www.un.org/en/global-issues/oceans-and-the-law-of-the-sea

Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, 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 (General Assembly resolution 72/249)

https://www.un.org/bbnj/?_gl=1*142370c*_ga*MjQ4MzE3MzQ0LjE2ODAwMTMwMjQ.*_ga_TK9BQL5X7Z*MTY4MDAxMzAyMy4xLjAuMTY4MDAxMzAyMy4wLjAuMA..

Articles

The Guardian, High seas treaty: historic deal to protect international waters finally reached at UN (5 March 2023) https://www.theguardian.com/environment/2023/mar/05/high-seas-treaty-agreement-to-protect-international-waters-finally-reached-at-un

UN News, UN delegates reach historic agreement on protecting marine biodiversity in international waters (5 March 2023) https://news.un.org/en/story/2023/03/1134157

Euronews, UN agrees ‘once-in-a-generation’ treaty to protect biodiversity in oceans (5 March 2023) https://www.euronews.com/2023/03/05/un-agrees-once-in-a-generation-treaty-to-protect-biodiversity-in-oceans

UNFCCC, New Historic UN Treaty on Oceans Can Help Climate Action (7 March 2023) https://unfccc.int/news/new-historic-un-treaty-on-oceans-can-help-climate-action

The Nature Conservancy, Jennifer Morris, High Time for a High Seas Treaty (28 February 2023) https://www.nature.org/en-us/what-we-do/our-insights/perspectives/high-time-for-high-seas-treaty/