High Seas Protection

5 Nov

A “breakthrough decision” came towards the end of the latest Conference of Parties to the UN Convention on Biological Diversity in Cali (COP16), establishing an updated procedure to enable the identification of protected areas both within and - most importantly - also beyond national jurisdiction. According to the Earth Negotiations Bulletin: “the approved modalities, based on scientific and technical evidence, enable the application of ecosystem and integrated approaches to ocean management at both the international and national level. They thus provide a crucial tool to support implementation of conservation targets of the GBF.”

For a summary of the meeting see the ENB report here.

According to WWF, the decision on ecologically or biologically significant marine areas (EBSAs) “establishes a new framework for mapping and updating marine areas vital for the health of the ocean, based on scientific criteria … [and is] crucial to the achievement of multiple Kunming-Montreal Global Biodiversity Framework targets. To date, over 300 EBSAs have been identified, including biologically diverse, sensitive and productive ecosystems and vital feeding and breeding habitats for marine species. Mapping these areas will inform science-based measures to conserve, restore and manage marine ecosystems, and is a key milestone on the path to protect 30% of the ocean by 2030.”

This decision fortifies the regime for marine protected areas established in the BBNJ Agreement (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, often called the High Seas Treaty), which, after two decades of negotiations at the United Nations, was adopted and opened for signature in 2023. The ‘race for ratification’ is now on and hopes are high that the 60 ratifications needed to allow it to enter into force will be submitted with the UN Secretary-General by the next UN Ocean Conference in Nice in June 2025. An organizational session of the Preparatory Commission (PrepCom) met in June 2024 and agreed on a schedule and programme of work, preparing for its entry into force and the first meeting of the Conference of the Parties (COP), due to take place in New York until a decision has been taken as to where the secretariat should be located. The PrepCom will meet in April and August 2025, pending approval by the UN General Assembly. See here for ENB’s summary report.

breaking it down: how did we get to the High Seas Treaty?

The open ocean or High Seas, the water in the area beyond national jurisdiction, is the largest ecosystem on Earth: it covers 230 million square kilometres, that’s 61% of the ocean and 45% of the Earth’s surface, and supports the largest biodiversity of any other region. Out of sight, out of mind is a saying which is often associated with the ocean - and this is particularly relevant when it comes to the High Seas, an area far away from most of us, rarely visited, maybe seen only from a plane when flying over it. Even today we still know very little about this area, with more than 80% of it yet to be explored.

Perhaps an inevitable result of this ignorance has been the weak governance structure put in place for it. When the United Nations Convention on the Law of the Sea was drafted in the 1970s and 80s, States failed to establish a regime with adequate protection for its biodiversity. At that time, international concern was focussed on preventing the use of the High Seas for military gain rather than on protecting its biodiversity and resources. UNCLOS reserves the High Seas for peaceful purposes, establishing that no State may exercise control over any part of it. The freedoms of navigation and overflight, to lay submarine cables and pipelines and to construct artificial islands, as well as the freedoms of fishing and to conduct scientific research in this area are laid down by UNCLOS - but little is said about protection or preservation of its resources. UNCLOS does oblige States to cooperate in the conservation of marine living resources of the High Seas by developing appropriate management measures and setting up regional fisheries organizations where appropriate but that’s it.

Since UNCLOS’ entry into force, threats to marine biodiversity on the High Seas have developed at an alarming rate. These stem from unsustainable fishing practices, increased shipping, marine pollution such as plastic, agricultural runoff and noise, and the potential effects of seabed mining. Increases in CO2 levels have resulted in rising ocean acidity, reducing oxygen levels, warming waters and shifting current patterns. These combined stressors are undermining the health and resilience of marine ecosystems and species around the world.

Thankfully, the international community recognized that UNCLOS does not sufficiently address the protection and preservation of marine life on the High Seas and decided to develop a supplementary text, convening an intergovernmental conference to develop an international legally binding instrument on marine biodiversity in areas beyond national jurisdiction in the early 2000s.

In 2004, UN General Assembly Resolution 59/24 established an Ad Hoc Open-ended Informal Working Group tasked with looking at issues relating to the conservation and sustainable use of BBNJ (biological diversity beyond national jurisdiction), illegal, unregulated, and unreported fishing and destructive fishing practices, marine genetic resources (MGRs), marine scientific research on marine biodiversity, marine protected areas, and environmental impact assessments (to note, issues related to fisheries were subsequently taken off the agenda together with seabed mining in 2011). In 2015, the Working Group put forward a recommendation to the General Assembly to develop a new international legally binding instrument on BBNJ under UNCLOS. UN General Assembly Resolution 69/292 established a Preparatory Committee to make recommendations on the elements of a draft text. In 2017 UN General Assembly Resolution 72/249 mandated four sessions to draft an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Sessions were held in 2018, 2019, 2022 and 2023. After nearly 20 years of negotiations, the President of the conference convened to draft the treaty, Ambassador Rena Lee, closed the negotiations on 3 March 2023 with the words “The ship has reached the shore”, a momentous moment for all who participated in the negotiations but particularly for the ocean.

Adopted on 19 June 2023, the 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 opened for signature on 20 September 2023. It will enter into force 120 days after the receipt of the 60th instrument of ratification - there is a push for this to happen at the next UN Ocean Conference in Nice in 2025. See the High Seas Alliance Treaty Tracker for the latest status.

what does the High Seas Treaty offer?

From the preamble the main tenure of the treaty is clear: “Desiring to act as stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations by protecting, caring for and ensuring responsible use of the marine environment, maintaining the integrity of ocean ecosystems and conserving the inherent value of biodiversity of areas beyond national jurisdiction”.

The general objective is “to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination” (article 2).

Four main themes are addressed by the Agreement: how to deal with marine genetic resources, how to protect areas of the ocean, how to ensure that activities are not harmful to the ocean and how to develop and share capacity among States.

Marine genetic resources and benefit-sharing (see here to find out more about these resources)

The Agreement adopts the principle of the common heritage of humankind, meaning that the benefit of any MGRs found on the High Seas should be for all, not just for the profit of the company or State that discovers or develops them. “Activities with respect to marine genetic resources of areas beyond national jurisdiction are in the interests of all States and for the benefit of all humanity, particularly for the benefit of advancing the scientific knowledge of humanity and promoting the conservation and sustainable use of marine biological diversity, taking into particular consideration the interests and needs of developing States” (article 9).

Notification of MGR collection (both before and after collection of samples) is to be provided to the Clearing-House Mechanism established by the Agreement - followed up with information at the stage of commercialization of MGRs and digital sequence information.

The Agreement establishes an access and benefit sharing committee charged with “establishing guidelines for benefit-sharing, in accordance with article 11, providing transparency and ensuring a fair and equitable sharing of both monetary and non-monetary benefits”. Non-monetary benefit sharing will include access to samples and digital sequence information, to scientific data and to capacity building while monetary benefits will be shared via a special fund established to support capacity building and implementation of the Agreement.

The details of just how the benefits should be shared are left to the Conference of Parties, in particular the access and benefit sharing committee. “The Conference of the Parties shall decide the modalities for the sharing of monetary benefits from the utilization of marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction” (article 11).

Area-based management tools (ABMTs) including marine protected areas (MPAs)

Although many have stated that the Agreement will protect 30% of the ocean by 2030 (the goal adopted by the Kunming-Montreal Global Biodiversity Framework) this is not actually the case but it essentialy creates the tools for us to do so: the Agreement establishes the framework for the creation of High Seas Marine Protected Areas and a procedure which the international community can follow in order to reach this goal. Importantly, the procedure will not allow for a majority to be blocked by a few - a situation which has, for example, allowed one or two States to block the creation of MPAs in the Southern Ocean. If consensus isn’t possible, a 3/4 majority will suffice to establish an MPA. In order to reach the goal of 30% of the ocean coming under protection by 2030 a massive 11 million square kilometres of ocean needs to be protected every year until 2030.

By establishing a “comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas” the Agreement aims to “[p]rotect, preserve, restore and maintain biodiversity and ecosystems, including with a view to enhancing their productivity and health, and strengthen resilience to stressors, including those related to climate change, ocean acidification and marine pollution” (article 14).

Proposals to establish ABMTs “formulated on the basis of the best available science and scientific information and, where available, relevant traditional knowledge of Indigenous Peoples and local communities, taking into account the precautionary approach and an ecosystem approach” (article 17) are to be submitted, together with a management plan to the secretariat. After a period of review by all stakeholders (importantly, this includes not just States which are party to the agreement but also NGOs and civil society) and then by the Scientific and Technical Body, the Conference of Parties will decide (by consensus or a vote if necessary) on the establishment of an MPA. Reports on their establishment and development shall be submitted to the secretariat, and will be monitored and reviewed by the Scientific and Technical Body. The Agreement forsees cooperation with relevant legal instruments and international, regional, subregional and sectoral bodies already active in this area. Cooperation and coordination will, for example, be necessary with regional fisheries mehansims, with the IMO and its designation of Particularly Sensitive Sea Areas, the UNESCO World Heritage Marine Programme, and the ISA’s Areas of Particular Environmental Interest.

Annex 1 sets out the ‘Indicative criteria for identification of areas‘. If 30% of the ocean is to be protected by 2030 it is important that potential MPAs are already identified and management plans established now, even before the Treaty has entered into force. Even if the Treaty enters into force in 2025, as hoped, this will only leave five years for implementation: the COP will have its work set out for it!

Environmental impact assessments (EIAs)

The Agreement follows the precautionary principle: before any activity can be carried out it needs to be assessed for its potential effect on the environment. This relates to activities both on the High Seas and in waters under national jurisdiction - pollution of course knows no boundaries and moves freely from one area to the next.

“Parties shall ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control, which take place in areas beyond national jurisdiction, are assessed as set out in this Part before they are authorized”, this also relates to any activity within national jurisdiction which may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction” (article 22).

“When a planned activity may have more than a minor or transitory effect on the marine environment or the effects of the activity are unknown or poorly understood, the Party with jurisdiction or control of the activity shall conduct a screening of the activity” (article 24).

EIA reports and monitoring reports are to be made available via the clearing-house mechanism, for comment by the Scientific and Technical Body.

Capacity building and the transfer of marine technology

The Agreement requires States to work together to develop capacity and share marine technology, “Parties, within their capabilities, shall ensure capacity-building for developing States Parties and shall cooperate to achieve the transfer of marine technology, in particular to developing States Parties that need and request it, taking into account the special circumstances of small island developing States and of least developed countries, in accordance with the provisions of this Agreement” (article 44). Annex 2 contains a list of the types of capacity building and transfer of marine technology, including the development and strengthening of infrastructure, technical expertise and human resource capabilities, the sharing and use of data, and the development and sharing of manuals, guidelines and standards. A funding mechanism is to be establshed to support such programmes.

Institutional arrangements

A secretariat, Conference of Parties, committees for access and benefit-sharing, capacity-building and transfer of marine technology and implementation and compliance, as well as a Scientific and Technical Body, a roster of experts who may assist States to conduct EIAs and a Clearing-House Mechanism are established by the Agreement. The COP shall meet at the seat of the secretariat or at UN headquarters. The establishment of a secretariat is to be discussed at its first meeting (Belgium and Chile have so far offered to host the Secretariat), until that point the UN Division for Ocean Affairs and the Law of the Sea will perform the functions of the secretariat. An organizational session of the Preparatory Commission (PrepCom) met in June 2024 and agreed on a schedule and programme of work, preparing for the Agreement’s entry into force and the first meeting of the Conference of the Parties. The PrepCom will meet again in April and August 2025.

Participation and Decision-making

The Conference of the Parties “shall make every effort to adopt decisions and recommendations by consensus” (article 48).

The Conference of the Parties shall promote transparency ‘including through … the facilitation of participation of, and consultation with, relevant global, regional, subregional and sectoral bodies, Indigenous Peoples and local communities with relevant traditional knowledge, the scientific community, civil society and other relevant stakeholders as appropriate” (article 48 bis).

“The Conference of the Parties may decide to request the International Tribunal for the Law of the Sea to give an advisory opinion 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” (article 48).

The Scientific and Technical Body shall consist of members nominated by Parties and elected by the Conference of the Parties, with suitable qualifications, taking into account the need for multidisciplinary expertise, including relevant scientific and technical expertise and expertise in relevant traditional knowledge of Indigenous Peoples and local communities, gender balance and equitable geographical representation.

The Agreement creates a Clearing-House Mechanism which will “[s]erve as a centralized platform to enable Parties to access, provide and disseminate information with respect to activities taking place pursuant to the provisions of this Agreement, including information relating to:

(i) Marine genetic resources of areas beyond national jurisdiction, as set out in Part II of this Agreement;

(ii) The establishment and implementation of area-based management tools, including marine protected areas;

(iii) Environmental impact assessments;

(iv) Requests for capacity-building and the transfer of marine technology and opportunities with respect thereto, including research collaboration and training opportunities, information on sources and availability of technological information and data for the transfer of marine technology, opportunities for facilitated access to marine technology and the availability of funding;

A mechanism for the provision of financial resources is established, to include:

(a) A voluntary trust fund to facilitate the participation of representatives of developing States Parties in the meetings of the bodies under this Agreement;

(b) A special fund that shall be funded through annual contributions, payments, and additional contributions from Parties and private entities wishing to provide financial resources to support the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

Procedure for dispute settlement

Enforcement of the Agreement lies with the States themselves as they have jurisdiction over any companies or organizations conducting activities on the High Seas, and in particular with the flag States who have jurisdiction over the vessels involved. Picking up on language used in the UN Convention on the Law of the Sea, which in turn reiterates that of the Charter of the United Nations, any disputes which arise are to be settled peacefully: “Parties have the obligation to settle their disputes concerning the interpretation or application of this Agreement by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” (article 54). As with the other two implementing agreements under UNCLOS, the Agreement adopts the dispute settlement procedure laid down in the Convention, offering Parties ITLOS, the ICJ or arbitration as possible fora for dispute settlement: “Disputes concerning the interpretation or application of this Agreement shall be settled in accordance with the provisions for the settlement of disputes provided for in Part XV of the Convention” (article 55).