UN High Seas Treaty: A Small Step for a Big Change?

On March 3, 2023, after almost a decade of contentious negotiations under the aegis of the International Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, usually termed BBNJ, almost 200 nations meeting in New York finally agreed upon a Treaty to protect the oceans and the sea-bed lying beyond the 200 nautical miles (370km) of territorial waters of different countries. This covers about two-thirds of the world’s oceans by area.

The Treaty, a supposedly international legally binding instrument (ILBI), is the third implementation agreement under the UN Convention on the Law of the Sea (UNCLOS) which entered into force in 1994, the other two covering (1994) and management of highly migratory fish stocks that straddle different oceanic zones (1995).

The caveat around the Treaty being “internationally binding” is that countries are always legally entitled to withdraw from any Treaty on the grounds that it adversely affects their vital national interests. Such an ILBI nevertheless gives the Treaty greater heft than a simple agreement and may also enable formation of some regulatory body to monitor implementation of the Treaty provisions.

Treaty Provisions

Whatever the legal niceties, however, the BBNJ Treaty seeks to regulate, for the first time ever, major commercial and industrial activities in the high seas and seabed which have grave impact on the marine ecosystem. The oceans have rightly been termed the “last wilderness” or the “final frontier” on Earth, about which humankind knows so very little, but which has been severely damaged by over-fishing and biodiversity loss, global shipping, pollution including noise, and climate change. Now, extraction of marine organisms and genetic material for pharmaceuticals or other purposes, and seabed mining of minerals for high-tech applications, are just around the corner.

The headline provision agreed under the Treaty is to form sanctuaries or marine protected areas (MPA) in 30% of the world’s oceans by 2030, the so-called 30-30 provision, which amounts to roughly half the international BBNJ oceans. What exactly is covered under the sanctuary provision, whether protection means total prohibition or sustainable resource utilisation still requires to be discussed and finalised, but it is broadly understood that there would be some restrictions or regulation of fishing, shipping lanes, and exploration for and extraction of mineral or bio-resources from the seabed etc.

Another major provision includes arrangements for sharing marine genetic resources, such as plants and animals in the oceans, which may be useful for food and pharmaceuticals.

Obviously, only a few countries have the technologies and resources to undertake deep sea exploration and mining, and should not be permitted to monopolise the marine commons. Developing countries are keen that these provisions for benefit-sharing be made explicit and binding.

Thirdly, provisions would be set in place and gradually strengthened for mandatory Environmental Impact Assessment (EIA) before undertaking any exploratory or extractive activity in the MPAs.

As discussed further below, all the above raise a host of issues and questions, which require to be addressed in the coming months and years during which a sufficient number of countries must ratify the Treaty, after which the details would be fleshed out.

Problems Being Addressed

Over-fishing is the major cause of decline in ocean wildlife population in terms of both stocks and varieties. Over-fishing, i.e. catching more fish than can be naturally replenished, is currently estimated to have affected three times the fish stocks compared to half a century ago, and affect more than one-third of major varieties as estimated by the UN Food and Agriculture Organisation (FAO).

By-catch is another major problem, when unwanted species are captured while fishing for other varieties. Billions of fish are needlessly caught and perish in this manner, severely depleting numbers of sharks, rays, cetaceans or sea-mammals like porpoises and dolphins, sea-turtles etc with close to a third of species at risk of extinction according to IUCN (International Union for Conservation of Nature). Global shipping and accompanying air, water and noise pollution are not only problems in themselves but also impact marine biodiversity.

COP 15 of the UN Biodiversity Conference in Montreal last December arrived at a series of decisions to conserve marine biodiversity, but it would be difficult to realise these decisions without such protections as provided in the High Seas Treaty. The Treaty provisions would also support the achievement of Agenda 2030 for Sustainable Development, in particular Sustainable Development Goal 14 on “Life Below Water.”

As is always the case, people are impacted as much as the environment. Billions of people rely on marine protein for food, and millions depend on fishing for their livelihood, all of whom are affected by over-fishing.

Climate change is another major problem posing massive threats to the oceans and marine life. The oceans have absorbed over 90% of the excess heat generated by global warming, with average ocean surface temperatures having risen by roughly 1.3 degrees Celsius. This results in generation of additional water vapour, itself a powerful greenhouse gas, which along with uneven distribution over different regions of the ocean also causes changes in weather, rainfall patterns and frequency and intensity of cyclones and storms. Ocean temperature rise also results in sea-level rise and melting of polar ice and glaciers.

Oceans also absorb around 25% of carbon dioxide emissions now hugely in excess, leading to increase in ocean acidity which, together with oceanic temperature rise, has considerable impact on marine biodiversity.

Based on a vast amount of data now being generated from satellites, tagged marine animals and survey ships, as well as powerful computers and sophisticated computer models, scientists believe it is possible to map the oceans for protective areas in such a manner as to maximise biodiversity protection while also reducing climate impacts on oceans and marine life.

Contestation and Outcomes

Needless to say, all these issues and potential regulatory measures, such as MPAs, EIAs and other regulatory norms, will be subject to a variety of pulls and pressures, not least from rich and powerful countries, driven by commercial, corporate, geo-strategic and security interests. Many countries, such as the US, Canada, Russia, Nordic States and China are already staking out all these interests combined in the Arctic region, rapidly opening up due to melting of the polar ice cap during summer months.

Industrial fishing in international waters by powerful seafaring nations is rising at alarming rates, driven in part by exhaustion of fish stocks in other parts of the ocean. Territorial waters are being expanded by some countries through land reclamation and construction on uninhabited atolls, prompting regional disputes with potential for serious conflict.

Agreeing upon delineation of MPAs, regulations governing commercial activities in them, regulatory structures and mechanisms, are all herculean tasks. It will call for all the wisdom, statesmanship and dedication to the interests of all humankind by all countries to effectively protect the oceanic commons including its biodiversity.

Experience with the climate change negotiations and outcomes may not lead to a great deal of optimism. Yet, a beginning has been made through the High Seas Treaty, and people’s movements around the world must again prepare themselves for a long but much-needed struggle. There is no Planet B!

The writer is with the Delhi Science Forum and All India People’s Science Network. The views are personal.