The high seas treaty

Shyam Saran

Former Foreign Secretary & Senior Fellow, Centre for Policy Research

In 1967, Swedish diplomat Avvid Pardo, credited with the initiative which led to the adoption of the UN Convention on the Law of the Seas (UNCLOS) in 1982, underlined the elemental importance of the oceans: ‘The dark oceans were the womb of life. From the protected oceans, life emerged. We still bear in our bodies — as our blood, in the salty bitterness of our tears — the marks of this ancient past.’

As an oceanic country, India must be a leader in the early adoption and ratification of the treaty and participate in the framing of the rule-book for its effective implementation.

UNCLOS defined national jurisdiction over seas extending from the coast, including territorial waters and exclusive economic zones. The conservation and sustainable use of marine resources within these areas was the responsibility of the states under whose jurisdiction they lay. With respect to ocean spaces beyond national jurisdiction, which constitute two-thirds of the ocean space or the so-called high seas, there are several multilateral legal instruments regulating various categories of activities. These include fishing, shipping, dumping of hazardous waste and environmental protection. But these are fragmented and governed only partially by several international institutions. The high seas treaty, known by its formal title as BBNJ treaty or Biodiversity Beyond National Jurisdiction, puts in place an overarching legal framework to manage inter-linked challenges to the conservation and sustainable use of marine resources in the vast, currently partially governed ocean space.

The negotiations leading up to the treaty had four focus areas: marine genetic resources (MGR), including the sharing of benefits from their use; area-based management tools such as marine protected areas; environmental impact assessments (EIA); and capacity building and technological transfers.

The treaty will enable the implementation of the major decision taken at the 15th Conference of Parties to the Biodiversity Convention in May 2022, which decided on a target of putting 30% of the earth’s ocean space in marine protected zones by 2030. Currently only 1.4% is designated as such.

The BBNJ doesn’t constitute a legal commitment to preserve 30% of the high seas by 2030. It only provides the legal framework for enabling marine protected zones to be set up. The hard work of realising the target remains to be done. The significance of the agreement reached lies in its clear recognition of the threats to the conservation and sustainable use of the high seas. The preamble identifies ‘warming, de-oxygenation, ocean acidification, pollution, including plastic pollution and unsustainable use.’ This establishes a clear link between the ecology of the oceans and climate change. This is important because oceans absorb 90% of the excess heat and 25% of carbon emissions and generate 50% of the oxygen in the earth’s atmosphere. The oceans are the earth’s largest carbon sink and their declining health means that their role as a carbon sink is progressively diminishing. The BBNJ provides the bridge between the UN Framework Convention on Climate Change (UNFCCC) on the one hand and UNCLOS on the other.

For the first time, the threat from plastics in the oceans has been explicitly recognised. Over 10 million tonnes of plastics are dumped into the oceans every year and the volume is growing. The Great Pacific Garbage Patch of plastic waste is floating in the ocean. It is three times the size of France! Plastics have entered the marine food chain. With fish, humans also ingest micro-plastics. The University of Nebraska has estimated that an average person ingests roughly 5 gm of plastics every week, with some of it coming from marine products. A global treaty on plastic pollution is currently under negotiation and may be adopted next year.

The draft treaty attempts to reconcile two potentially contradictory principles, ‘freedom of the high seas’, insisted upon by the West, and the notion of the oceans being a ‘common heritage of mankind’. The latter principle is implicit in the provisions on monetary and non-monetary benefit-sharing from the exploitation of MGR. This includes access to all samples collected from the high seas, Digital Sequence Information, scientific data and readiness to engage in scientific and technical cooperation, transfer of marine technology and capacity building in developing countries.

The Conference of Parties (COP) will serve as a decision-making body. There will be a secretariat which will provide administrative and logistical support, circulate information and facilitate coordination and cooperation with other international bodies. There will be a clearing house mechanism which will function as a platform for accessing information, impact assessments and in the setting up of marine protected zones. There will be a subsidiary science and technology body, an implementation and compliance committee and an access and benefit-sharing committee. There will be a financial mechanism that will include a voluntary trust fund and a global environmental facility trust fund based on assessed contributions from all states party to the treaty. The aim will be to provide ‘adequate, accessible, new and additional and predictable financial resources’. Experience with the 2005 Paris Agreement on Climate Change would suggest that the finance provision will be the hardest to implement. The treaty provides for environmental impact assessment of activities undertaken in the high seas by state parties but this may also be very difficult to implement.

The BBNJ is very important for India, which has a coastline of over 7,500 km and fishing is the sole livelihood of millions of citizens. But we should recognise that the oceans are an inter-connected ecological space and influences from one part are transmitted to another part through currents. Our weather patterns, in particular the monsoons, are deeply influenced by currents, the chemical make-up and thermal condition of sea water. The health of humans and other species is linked to the health of our oceans. As an oceanic country, India should be a leader in the early adoption and ratification of the treaty and participate actively in the framing of the rule-book for its effective implementation. The G20 Summit offers a platform where India could take the lead to mobilise a global initiative to save our oceans.

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