May 2023

High expectations for the high seas

While the intentions behind the UN High Seas Treaty are laudable, Tanya Vatsa casts doubt over its long-term adequacy in protecting international waters

The UN High Seas Treaty comes as a huge win after 20 years of negotiations aimed at extending a protective net over the vast expanses of the oceans that lie beyond national dominions. An ad-hoc working group created by the UN General Assembly in 2004 was responsible for the initiation of the conservation and sustainable use of marine biodiversity inareas beyond national jurisdiction – hence the treaty is alternatively known as the BBNJ treaty. It is a legally binding instrument adopted within the larger framework of the UN Convention on the Law of Seas (UNCLOS). The convention is ratified by 167 states and the European Union and is generally accepted as reflecting customary international law, requiring adherence by most of the international community (including non-members). The BBNJ is automatically binding on the UNCLOS signatories but still requires ratification by at least 60 states to come into force.

While the necessity and benign intent behind the treaty is not contested, its sufficiency for the purpose of protecting international waters remains arguable.

Protecting the high seas

So, how grave is the need for conservation?

The importance of oceans is a well-accepted fact. They occupy 71% of the Earth’s surface, and form the largest carbon sink and absorbers of heat. Among the immeasurable services they provideare food and water supply, renewable energy, benefits for health and wellbeing, cultural values, tourism, trade, and transport. The Intergovernmental Panel on Climate Change (IPCC), in its ‘special report on ocean and cryosphere in a changing climate’, has stated that the oceans have been warming, unabated, since the 1970s, taking up 90% of the excess heat, leading to an increased frequency and intensity of marine heatwaves. The report also confirmed that the absorption of increasing atmospheric carbon dioxide has led to aggravated surface acidification. Marine pollution is another alarming issue, with more than 8 million tonnes of plastic entering the oceans every year. The United Nations Environment Program estimates that marine debris is harming more than 800 species, 40% of marine mammals and 44% of seabird species.

The convention is ratified by 167 states and the EU

Given the acceleration in environmental exploitation for avaricious purposes, only 39% of the oceans fall within national jurisdiction and only 1% of the high seas are protected and regulated from harmful degrading practices. International waters have long lacked regulation and all vessels, irrespective of their flag, were allowed navigation. This was a classic case of ‘everyone’s property, nobody’s responsibility’. Such lack of regulation has been benefiting countries far and wide but has adversely affected the marine ecosystem.

The aim of the BBNJ treaty is to create international consensus for a more conservative and sustainable approach towards the utilisation of marine resources beyond 200 nautical miles from the shores. It is meant to amalgamate the principles of the freedom of seas and mankind’s ‘common responsibility’ towards the sustainability of marine biodiversity. It acts as a tool to create protected areas in the most inaccessible parts of the oceans. It also addresses equity by highlighting the need for fair and equitable sharing of benefits from genetic resources, as well as making environmental assessment necessary for projects carried out both within and outside the state marine jurisdictions.

Collective punishment is used to silence dissent

Among the immeasurable services oceans provide are food and water supply, and renewable energy

Additionally, the framework serves as an enabler of the ambitious ’30 by 30’ deal which, under the Kunming-Montreal Global biodiversity framework reached in 2022, aims to protect 30% of the terrestrial and marine biodiversity by the end of the current decade.

The BBNJ is also a prime example of how multilateralism, in times of grave necessity, can overlook political differences and bring nations together to enforce actions that cannot be further delayed. The main driver of the BBNJ proposition was the ‘High Ambition Coalition’ (HAC), whose members include the European Union, the United States, the UK and China. Current geopolitical currents have had each of the parties at loggerheads with one another, yet the need to regulate activities in the oceans has highlighted the need for cooperation and collaboration to hammer out a long awaited agreement.

But is the treaty crafted to address the real problem? It has championed the tedious task of extending existing conservation mechanisms to waters beyond state control, and has done so with the aim of administering accountability to all users and beneficiaries and attributing responsibility for the perpetuation of the health of the high sea ecosystems.

a whale swimming in the ocean
The UN Environment Program estimates that marine debris is harming more than 800 species, including 40% of marine mammals

However, most rules and acceptable standards within the BBNJ are yet to be drafted. The protections and restrictions have to be framed by nations and it remains to be seen whether the economic-minded countries are willing to push their boundaries and reconsider their methods for the greater good.

While the international community has hailed the finalisation of the treaty, close analysis reveals that it introduces nothing new to already existing practices. The ‘polluter pays’ principle, the mutual sharing of benefits derived from the resources, area-based management, collective benefit and ambitiously worded documents have all been recurring features of most treaty-based initiatives with the objective of environmental benefit. The ideas have existed for decades but have failed to show significant deterrence in slowing the speed of anthropogenic destruction of the ecosystem. Every new report sounds a louder alarm than the previous one and, despite having sustainable development goals in place, most nations have not shown the necessary enthusiasm for containing the deteriorating state of resources, including seas and oceans.

What the BBNJ does achieve is drawing global attention to the protection of the major part of the marine ecosystem. This is a step in the right direction, changing the long prevailing approach of marine conservation in silos. Yet the treaty will only be successful if countries pay sufficient heed to its execution and the statistics gradually begin to show decreasing damage to the environment. The UN published a document called ‘Declaration on the Responsibility of the Present Generations Towards Future Generations’ as early as 1997, but as the decades roll by, the chances of responsibly passing on resources to future generation seem progressively minuscule.

Tanya Vatsa, a law graduate from National Law University, Lucknow and an incoming LLM candidate at the University of Edinburgh, is a former assistant advocate. She is currently a geopolitical analyst with The Synergia Foundation, an India-based think tank. Her writing on international relations has been published by the Diplomatist, International Policy Digest and The Kootneeti