Beyond Jurisdiction: A Legal and Ecological Appraisal of the High Seas Treaty - II

By Mahima Navhal, a final year law student and Utsav Shreshth, a third year law student at Gujarat National Law Univeristy.

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Effectiveness of the Treaty

The notion that oceanic regions beyond national boundaries represent global commons, permitting the exploitation of seabeds and biodiversity without constraint, in absence of a legally binding and enforceable agreement governing state activity in these areas, existed until recent decades. However, there were disagreements with respect to the legal principle on which this freedom grounded in international law. It was asserted that on the one hand, the high seas belong to nobody (res nullius) and on the other, that they belong to everybody (res communis). The first view relied on the idea that sovereignty is absent on the high seas, while the second view emerged from the idea that states have common claim on the high seas because they constitute a necessary instrument for international navigation and trade. With time, both the terms were criticized and International Law started recognizing the principle of ‘mare liberum’ which means “the high seas are open and common to all States, provided no State may validly purport subject any part of them to its sovereignty”.

This principle was reflected through various rules framed in this regard, for instance, Article 87 of UNCLOS. It states, “[t]he high seas are open to all States, whether coastal or land-locked” to enjoy at least six enumerated freedoms: (1) freedom of navigation; (2) freedom of overflight; (3) freedom to lay submarine cables and pipe-lines; (4) freedom to construct artificial islands and other installations; (5) freedom of fishing; and (6) freedom of scientific research. Such a scenario of unbridled liberties vested in states by the erstwhile legal framework has a sufficient responsible part to play in pushing the mankind into the current existential devastation we have landed.

Hence, negligence on the part of authorities, along with weak enforcement of rules, rendered this area even more susceptible to exploitation than coastal waters. In this context, the BBNJ Treaty represents a much-needed intervention. However, before celebrating this progress, it is imperative to adopt a broader and more critical perspective to assess whether the Treaty, in its present form, truly advances in the right direction.

Some provisions of the Treaty are commendable, particularly the Access and Benefit-Sharing mechanism, CoP-led funding structures, and mandatory environmental impact assessments, which can promote scientific collaboration and innovation. The Clearing-House Mechanism further enhances data sharing and cooperation, potentially benefiting developing countries if effectively implemented.

However, there are some major issues with respect to marine environmental safeguards that have either been entirely overlooked in the current text of the Treaty or inadequately addressed. One such issue is the objective outlined in most provisions directing developed states “to cooperate, directly or through other means to assist the least developed countries, landlocked developing countries...” are ambiguous. Further, the classification of seven broad categories of states as beneficiaries of assistance from developed nations is overly broad, encompassing majority of the states. Moreover, such references to the seven categories of states as beneficiaries are not confined to specific clauses but permeate throughout the Treaty. This welfarist approach for majority of the states is prima facie too idealistic to bring in execution.

Furthermore, the Treaty also lacks a futuristic approach in various aspects. It provides no safeguard to prevent powerful nations and conglomerates from misusing certain ecologically significant areas for their self-centered goals through means that may not possible today but that may turn possible tomorrow. For an instance, China is known to be strategizing the establishment of a shipping pathway across the Central Arctic Ocean as its regular corridor for shipping between Asia and Europe based on the prediction that ice covering that region will melt away within a decade. Disturbing such ecologically important regions like Arctic region may disrupt the balance of ecology worldwide.

Another critical pitfall in the Treaty is the absence of rules to regulate adverse fishing practices among other commercial activities. These activities continue to be regulated under pre-existing conventions as the Treaty provides savings clause to exclude the operation of the Treaty for these practices. The existing framework under the 1982 United Nations Convention provides “the right [of all States] for their nationals to engage in fishing on the high seas". Thus, though the Treaty has come into force, the seas will largely remain unprotected in view of the wide autonomy and lack of sufficient restrictions for effectively regulating these commercial activities. Hence, without the revision of the other frameworks, the high seas still largely remain prone to indiscriminate fishing drills in light of rising scale of overfishing in high seas owing to the decrease of fishing resources on the traditional shallower fishing grounds of the continental expanses and advancing fishing technology to cope with deeper seas. Escalating fishing restrictions within national waters, coupled with higher demand for fish in developed nations, have also contributed to this expansion. There are various evidences indicating the resultant dire state, like the population of highly migratory species like Tuna has fallen drastically. The Pacific Bluefin Tuna in 2020 reached 10.2% of its pre-fishing population level. 

Moreover, besides fishing, other trade-related engagements in the high seas like mining will also fall outside the scope of the Treaty. The International Maritime Organization, responsible for overseeing shipping, the International Seabed Authority that regulates deep-sea mining, and similarly approximately 17 regional fisheries management organizations are reserved under the previous regime. Resultantly, the environmental challenges posed by military operations, overfishing, and commercial vessels remain unaddressed in the framework of the Treaty.

These specialised international organisations often fail to adopt a comprehensive perspective of the kind that only a multifaceted framework such as UNCLOS can provide; moreover, by virtue of their functional orientation, they tend to operate in close alignment with commercially driven large corporate entities. According to the guidelines in the Treaty, the CoP has to work with existing ocean authorities for representation of stakeholders’ interest in the decision-making process of commercial matters. The current provisions, framed in a largely persuasive manner, whereby the CoP and States are envisaged to influence the decision-making of other ocean governance bodies, are unlikely to yield meaningful results as these sectoral organizations are least concerned about monitoring environmental impact of their operations. An active involvement of these authorities may even stall the operations of the bodies under the Treaty and prevent declaration of heavily fished regions as MPAs. Hence, fisheries, shipping and deep-sea mining will end up enjoying a free reign in the new regime.

Another significant shift brought under the framework of the Treaty is its mandate to undertake Environmental Impact Assessment (EIA). It lays down two scenarios to undertake EIA: firstly, for projects within a country's borders that have the potential to cause significant environmental pollution or adverse changes to the marine environment in areas beyond that country's borders, and secondly, for projects within those external areas that fall under the authority or influence of member states. However, the provision represents only a partial step forward. It fails to address the challenges arising from activities that impact marine environments through their cumulative effects. While such activities may appear trivial or harmless when assessed individually, their aggregate impact is significantly detrimental. As an example, fertilizers from agricultural waste from far-off locations often find their way coastal waters through rivers. Subsequently, they diffuse to contaminate the oceans, leading to the creation of vast, desolate regions devoid of life. The count of these dead zones has surged twofold, escalating from 400 to 700 within a span of ten years, from 2008 to 2019. Further, the effluents carry other harmful substances like plastic. It is estimated that there are 200 million tonnes of plastic in the oceans. Therefore, there are multiple issues in the that need to be fixed in the current framework of the Treaty.

Suggestions for Greater Effectiveness

Balancing idealism with practicality, effective high seas governance requires safeguards alongside resource use. The Treaty should adopt a “take-and-give” approach, mandating states and corporations to offset environmental harm through fees on all commercial activities, not just genetic research. These funds, managed by the CoP, should be directed toward marine restoration, while allowing limited exemptions for indigenous communities.

With the scaling marine pollution, it is necessary to have a deeper understanding of bio-geochemical processes responsible for the accumulation of marine debris. Efforts should be made to control the issue by instilling consistent and long-lasting behavioral changes in masses. Moreover, maritime activities, including designation of sea-routes should not extend to faraway areas such as Arctic region. Interference into these ecologically-crucial areas is extraneous in light of expanses of other available areas. These regions should be preserved as they play a significant role in assimilating marine debris and processing it into natural forms.

Further, the Access and Benefit Sharing Committee and Conference of Parties established under the Treaty should be empowered to overrule the policies of other specialized organizations like International Seabed Authority if they are adversarial to the purpose and objectives of the Treaty. Moreover, the primary objective of the institutions established pursuant to the Treaty should be to prioritize the preservation of environmental well-being, with functions such as facilitating research, being subordinate to the primary objective. Further, provision to regulate the oversight on ongoing activities, that started before the Treaty came into force, should be incorporated into the Treaty as a Protocol or agenda before the Conference of the Parties because the prior approval requirements would not be applicable to them.

States exhibit the tendency to evade obligation if it is a shared obligation. The obligation of protecting marine environment though shared in outcome should be distinctly disjoint in application. Hence, multiple parts of the Treaty that impose obligation on developed states as a collective class need to be revisited by imposing a proportionate allocation of obligations that is revised regularly as per the track record.

Nevertheless, it can’t be denied that oceans are a pack of many undiscovered treasures of nature that can offer answers to complex lingering unsolved problems and thereby, can drastically contribute in advancement of human life. As an illustration, researchers have identified substantial fresh reserves in regions of the open ocean, together with unique organisms like hyperthermophiles and extremophiles that thrive in the most extreme deep-sea environments where temperatures exceed 100°C. These vents in the ocean contain gold and other valuable minerals and have temperatures of 300 to 600°C. Additionally, massive frozen methane reserves and cold seeps have been found to have potential. These discoveries beget significant biotechnology and pharmaceutical utility and their exploitation for a greater cause if undertaken needs to be harnessed with requisite checks and balances to ensure that in process, marine biodiversity is least disturbed.

Finally, it is not uncommon for initiatives to produce ineffective mechanisms due to political resistance, a pattern often seen in environmental governance. The effectiveness of implementation committees under the Treaty depends not only on punitive powers but also on fostering cooperation and facilitating compliance through guidance, support, and practical alternatives to dispute resolution. It is therefore essential to embed mechanisms promoting a collaborative and transparent approach. Rather than relying on coercive measures that may strain diplomatic relations, emphasis should be placed on compliance procedures that incentivize adherence to the Treaty’s mandates. Guidance and technical assistance from implementation committees can help states fulfil their obligations effectively.

Conclusion

The trajectory towards economic development is pushing us towards perilous consequences endured by high seas to a large extent. The High Seas Treaty marks a pivotal advancement in such scenario for international ocean governance, addressing long-standing governance voids through innovative mechanisms like Access and Benefit-Sharing Committee, mandatory environmental impact assessments, and streamlined Marine Protected Area designations. Despite these strengths, critical shortcomings persist, including ambiguous capacity-building obligations, exclusions for sectoral activities like overfishing and deep-sea mining, inadequate regulation of cumulative environmental harms, and the absence of robust enforcement penalties.

To enhance efficacy, states must implement reforms like impose activity-based fees on all commercial high seas operations to fund restoration, empower Treaty bodies to override conflicting policies from sectoral organizations, integrate civil society in decision-making, and allocate differentiated responsibilities among developed nations with regular revisions. Prioritizing non-intervention in ecologically sensitive zones like the Arctic and fostering behavioral shifts toward sustainable consumption will further amplify impact. Some reforms may be incorporated in Protocol to the Treaty while others may simply be incorporated in practice of the key committees established in its framework.

It can be concluded that coming into force of this Treaty marks merely setting a foot on the get-set-go line of a hurdle-race. The journey ahead is going to be challenging. Some countries have already expressed dissatisfaction with some of the portions of the Treaty, for instance, Russia claimed that the last lag was hurried in a manner that some nations couldn’t review the text. Besides the vocally-assertive nations such as Russia, cooperation by ostensibly leader nations such as the United States, that is yet to ratify the United Nations Convention on the Law of the Sea (UNCLOS), are similarly critical in this regard. Ultimately, transforming this framework into a resilient guardian of marine biodiversity demands unwavering political commitment, collaborative compliance strategies, and adaptive evolution, ensuring the high seas, vital to global ecological stability, endure for future generations.