Activities on the High Seas touch on various global industries, including, but not limited to, deep sea mining, shipping, pharmaceutical, fisheries, and cosmetics. Once adopted and ratified, the Treaty will increase the onus on companies operating on the High Seas to prove that they will not damage valuable ecosystems. It will also create new processes regulating activities on the High Seas, including a unified approach to environmental impact assessments. This may likely impact the activities of those conducting drilling or marine scientific research on the High Seas.
What are the High Seas?
The “High Seas” are defined in Article 86 of the UNCLOS as all parts of the sea that are not included in the Exclusive Economic Zone, territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This comprises more than 60% of the world’s oceans.
In a sense, the High Seas are owned by everyone but no one; they are beyond national jurisdiction and, until now, have only been partially regulated by a patchy framework of regional and international conventions.
Pursuant to Article 87 of the UNCLOS, the High Seas are open to all States, whether coastal or land-locked. The freedom of the High Seas comprises, among other things, the freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands and other installations permitted under international law, freedom of fishing, and freedom of scientific research.
Why was the Treaty seen as necessary?
Despite the High Seas comprising more than 60% of the world’s oceans, only 1% of that area previously was subject to any protection. This meant that there was little regulation against deep-sea drilling, overfishing, or bioprospecting. This was referred to by Dr. Bruno Oberle, Director General of the International Union for Conservation of Nature (“IUCN”), as a “significant gap in international law.”
The aim of the Treaty is to further the UN’s aim, agreed under the Kinming-Montreal Global Biodiversity Framework in December 2022, to protect 30% of High Seas by 2030. Praised as a success story for multilateralism, it seeks to create a framework for Governments to cooperate to protect ocean health, climate resilience, and socioeconomic wellbeing and food security.
In addition to the protection of the High Seas there is also the issue of what is to be done with its abundant resources. During the negotiations, different State delegations clashed on whether the High Seas should be for the “common heritage of humankind,” meaning that they should be covered by common ownership and collective interests, against a view favored by other States, which preferred the previous “freedom of the High Seas” principle, allowing States unrestrained freedom to develop the High Seas in their own interests (see, Article 5(b) and 5(b) bis)1.
How will the Treaty seek to achieve its aims?
Pursuant to Article 2 of the Treaty, its 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 [UNCLOS] and further international cooperation and coordination.” Article 3 bis provides that it does not apply to “any warship, military aircraft or naval auxiliary,” and, save for Part II, it does not apply to other vessels or aircraft owned or operated by a party and used, for the time being, “only on government non-commercial service.”
The Treaty does not prejudice the rights and obligations of Contracting Parties to the UNCLOS (Article 4(1)). Pursuant to Article 4(2), the Treaty “shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies.”
A “Conference of the Parties” will be established under the Treaty. It will meet periodically and enable Contracting Parties to be held to account on issues such as governance and biodiversity.
The Treaty has four main objectives:
- Establishing large-scale marine protection areas:
- Article 14 of the Treaty states that Part III of the Treaty aims to “[c]onserve and sustainably use areas requiring protection, including through the establishment of a comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas.”
- Since the Treaty relates to the High Seas, Article 15 confirms that the establishment of area-based management tools shall not include any areas within national jurisdiction, and shall not be relied upon as a basis for asserting or denying any claims to sovereignty, sovereign rights, or jurisdiction including in respect of any disputes relating thereto.
- The specific establishment of (and proposals for) such area-based management tools has been deferred to the Conference of the Parties to the Treaty.
- Regulating States and companies who can access and share in the benefits from the commercialisation of marine generic resources, which can be useful for the creation of pharmaceuticals or cosmetics:
- Pursuant to Article 11 of the Treaty, States are required to share “in a fair and equitable manner” in the non-monetary and monetary benefits from the utilisation of marine genetic resources and digital sequence information. This can include providing other States with access to samples and digital sequence information, and open access to scientific data.
- Article 11 bis states that an “access and benefit-sharing committee” shall be established, which shall in turn establish guidelines for benefit-sharing, providing transparency and ensuring a fair and equitable sharing of both monetary and non-monetary benefits.
- Making research conducted on the High Seas more accessible and inclusive:
- Article 11(5) of the Treaty states that after the Treaty enters into force, “developed States Parties” shall make annual contributions to a “special fund” which will be created in order to fund capacity-building projects and to assist “developing States Parties” in implementing the Treaty.
- Setting global standards for environmental impact assessments on commercial activities on the High Seas:
- The Treaty aims to achieve a coherent environmental impact assessment framework for activities on the High Seas (Article 21 bis (e)).
- Article 22 of the Treaty provides that Contracting Parties shall ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control, which take place on the High Seas, are assessed in the manner set out in the Treaty.
- Articles 24 and 30 contain detailed steps for the conducting of environmental impact assessments under the Treaty.
When will the Treaty enter into force?
Before the Treaty can enter into force, it will have to be ratified by 60 States. It will enter into force 120 days after the 60th ratification.
It will be officially operated at a later UN session. It has been reported that there will be no reopening or discussions on the substance of the text between now and any adoption.
Many international organizations and non-governmental organizations, such as the IUCN, the High Seas Alliance and the Marine Stewardship Council have called upon States to fast-track the ratification of the Treaty.
The future of activities on the High Seas
Many States and businesses have activities on the High Seas. This can relate to fishing, shipping, harvesting of marine compounds for use in the pharmaceutical or cosmetics industries, subsea cables, or deep sea mining. Once the Treaty is ratified by 60 States, there will likely be new rights and obligations implemented at a domestic level which will have to be carefully reviewed. For example, Article 20 of the Treaty provides that Contracting Parties “shall ensure that activities under their jurisdiction or control that take place in areas beyond national jurisdiction are conducted consistently with the decisions adopted under this part.”
It is important that those operating on the High Seas ensure that they understand their rights and obligations as they relate to their activities there. We are well placed to assist in navigating these complex waters.
Authored by Markus Burgstaller and Scott Macpherson.
1 The current draft of the UN High Seas Treaty published by the UN (available here: https://www.un.org/bbnj/fifth_substantive_session) is an unedited draft which is subject to renumbering of paragraphs. Accordingly, the references contained in this article may be subject to change.