By Deepika Matange
In what is considered a landmark moment in ocean governance discourse, the delegates from 193 member states congregating at the UN headquarters in New York from 20 February to 4 March 2023 reached an agreement to adopt a treaty to protect the marine environment of the high seas. Concluding the Intergovernmental Conference (IGC) on the Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ), the chair, Singapore’s Rena Lee, was teary-eyed as she thanked her fellow delegates for their commitment to multilateralism in achieving environmental conservation. The treaty is crucial in building a legally binding regime for regulating human intervention and combating climate change to protect the marine life and health of the high seas.
Why are oceans important?
Oceans are home to over 240,000 identified species of flora and fauna, which is only a tiny portion of the actual number that is still unknown to us. While supporting the livelihood of three billion people and serving as the medium for 90 per cent of all international trade, the oceans also function as the largest carbon sink, absorbing a quarter of the human-generated carbon dioxide. They also trap ninety per cent of excess atmospheric heat and distribute it more evenly across the globe. However, with GHG emissions breaking records every year, this function has rendered the oceans the most vulnerable to climate change. It has led to rising water temperatures and ocean acidification, threatening the survival of organisms underwater. According to the International Union of Conservation of Nature (IUCN), 37 per cent of sharks and rays and 8.6 per cent of all the assessed species of marine flora and fauna are at risk of extinction. Since high seas constitute a bulk of the world’s oceans, their protection is vital for determining the overall ocean health.
What are high seas?
High seas are the portion of the oceans which does not fall under the purview of the national jurisdiction of any state. According to the United Nations Convention on the Law of the Sea (UNCLOS) 1982, waters that are not part of any country’s internal waters, territorial sea and exclusive economic zone can be regarded as high seas. It comprises two thirds of the world’s oceans, which, in turn, covers 71 percent of the Earth’s surface.
Considering their expansive nature, oceans were considered beyond the human capacity of subordination. Therefore, instead of blocking the high seas from human activity, the agreement provided states unabated access to its facilities and resources. Part VII of the UNCLOS Agreement provides an exhaustive list of regulations to prevent unlawful activities and ensure the peaceful exercise of rights, such as freedom of navigation, overflight, and laying cables and pipelines. Though meagre, its second section stipulates specific duties of the states towards nature and the need for cooperation to preserve marine life. However, without an effective enforcement mechanism, while the rights were full-throttled, duties often evaded human conscience, amounting to the classic tragedy of the commons. Today, the high seas are especially threatened by illicit activities like overfishing (also a leading cause of plastic pollution) and illegal oil discharge by vessels as part of their routine operations. Furthermore, novel ventures like deep-sea mining and bioprospecting for extractive and commercial purposes are potential polluters, adding to the existing concerns.
A brief history of ocean governance
The General Assembly convened the first United Nations Conference on the Law of the Sea between 24 February and 27 April 1958 with a mandate to conduct a multidimensional assessment of the law of the sea and codify it into a form of convention. It resulted in four separate conventions: Convention on Territorial Sea and Contiguous Zone; Convention on the High Seas, Convention on Fishing and Conservation of the Living Resources of the High Seas; and Convention on the Continental Shelf. These four treaties were replaced by the United Nations Convention on Law of the Sea (UNCLOS), adopted in 1982, and came into effect in 1994. On its tenth anniversary in 2004, the UNGA established an Ad-Hoc Open-ended Informal Group as a follow-up measure to resolve issues related to marine conservation.
In 2015, the UNGA passed a resolution to develop a legally binding regime for the ‘conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, constituting a preparatory committee in this regard. Finally, on 24 December 2017, the Intergovernmental Conference (IGC) on the BBNJ was constituted to conclude a legal agreement on the high seas. However, disagreements regarding specific provisions led to a delay of over four years, with the fifth session convened in August 2022 suspended with no substantive result. Shortly after, another multilateral conference called the UN Biodiversity Conference (COP15) was held in December 2022 and adopted a target to protect 30 percent of the Earth’s land and seas by 2030. It became a crucial predecessor to the resumed IGC discussion in February 2023, where the long-awaited treaty was finally clinched.
What does the treaty guarantee?
The draft agreement is based on the concept of the common heritage of mankind. It adopts the precautionary principle to enhance ecosystem robustness and abate the impact of climate change and anthropogenic activities on the marine environment. Despite its vastness, only one per cent of the high seas are protected from human intervention. Therefore, the treaty aims to expand these marine protected areas, which is critical for achieving the 30×30 pledge of COP15. States are required to conduct an environmental impact assessment of activities planned on the high seas and those within the jurisdiction but with the potential to cause damage beyond jurisdictional limits. Furthermore, the treaty calls for equitable benefit-sharing from activities concerning marine genetic resources and their digital sequence information, for which a fifteen-member oversight committee has been established.
The treaty also creates an institutional set-up for effective implementation: a conference of the parties for adopting decisions and conducting timely evaluation; a multidisciplinary science and technology body of experts performing an advisory function; and a secretariat to provide administrative assistance and ensure coordination among various subsidiary and international bodies. It also establishes a clearing-house mechanism, providing open access to all information regarding activities, requests and knowledge generated under its purview.
It recognises that conservation cannot be achieved by dividing nature into artificial silos of sovereign jurisdictions and hence, championsthe cause of multilateral cooperation to preserve marine biodiversity.
The author is a Doctoral Candidate, Centre for West Asian Studies, Jawaharlal Nehru University.
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