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The High Seas Treaty

  Rishika Yadav

On 19 June, the UN adopted a groundbreaking international treaty titled "Biodiversity Beyond National Jurisdiction treaty or the BBNJ treaty." The treaty focuses on areas beyond national jurisdiction (ABNJ), encompassing the high seas and the Area (seabed beyond national jurisdiction), which constitute around two-thirds of the world's ocean. In September, the treaty will be open for signing by member states at the UNGA in New York. This treaty will be an integral part of the UNCLOS and implementation will begin upon ratification by a minimum of 60 UN member states.

How did the treaty evolve?
The world's oceans, particularly ABNJ, are inadequately protected, with only 1.2 per cent safeguarded. Concerns over biodiversity loss, ocean degradation, and pressing issues like plastic pollution and overfishing have led to the development of a crucial treaty. The treaty addresses destructive practices, promotes sustainable management and MPAs, and strengthens regulations and international cooperation to control and prevent pollution. The treaty's evolution began with the Convention on Biological Diversity (CBD) in 1993 and concluded in 2023 after over 15 years of deliberations.

In 2022, UN member states failed to reach an agreement on the treaty, leading to criticism from scientists, environmentalists, and conservation organizations. Disagreements centered on marine genetic resources, benefit-sharing, MPAs, environmental impact assessments, capacity building, and technology transfer. Contentious issues like access and benefit-sharing mechanisms, monetary benefit-sharing and intellectual property rights remained unresolved. Similar disagreements occurred during previous negotiations. Delegates were unable to agree on the creation of MPAs, causing challenges for the High Seas Alliance (HSA) comprising 40 non-profit organizations, particularly regarding environmental impact assessments.

Failure to achieve consensus in 2022 hindered the treaty's objective of safeguarding 30 per cent of the world's oceans by 2030, outlined by the CBD. Such a treaty could have made a significant contribution to the UN Biodiversity Conference held in Montreal from December 07 to December 19, 2022.

What could hinder the implementation of the treaty?
Conservationists have high hopes for a treaty aimed at protecting 30 percent of the world's oceans by 2030, but its effectiveness remains uncertain. Currently, only a few organizations govern activities within a 200 nautical mile range from the coast, leaving international waters lacking proper regulations and protection. Out of the vast expanse of the high seas, only one percent is currently safeguarded by conventions such as the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR). The treaty seeks to address issues like illegal fishing, overfishing, and ecosystem damage caused by deep-sea mining and oil drilling. Past experience shows that the success of such agreements relies on national parliaments enacting them into law and allocating sufficient resources. The treaty negotiation process, however, has been criticized for the limited inclusion of various stakeholders, potentially leading to unequal outcomes and insufficient consideration of indigenous communities, local populations, and small-scale fishermen.

Coastal European countries have generally been supportive and actively involved, while non-European countries like Russia have expressed reservations. Russia's concerns revolve around the potential impact on their economy, particularly in terms of fisheries and activities in international waters. They argue for a more balanced approach that considers both conservation and socio-economic factors. Russia's opposition poses a significant challenge as their refusal to align with the consensus on the treaty's text could hinder its progress. Russia's opposition could hinder the implementation of the agreement under Article VI of the treaty, especially concerning their activities in the High Seas and the ABNJ. These activities include scientific research and resource exploration in the Arctic and deep-sea exploration in the Central Atlantic.

How does the new High Seas Treaty aim to address the current gap in the management of international waters?
Currently, international waters lack a comprehensive treaty, and the establishment of MPAs and other safeguards remains legally challenging, often with overlapping jurisdictions. By promoting sustainable management and establishing MPAs, the treaty contributes to achieving the 2030 Agenda, aims to address governance gaps and ensure the survival of our oceans for future generations. While it is currently being negotiated and has not yet entered into force, the goal is for it to become a binding norm rather than a soft law instrument.

While the International Seabed Authority (ISA) plays an important role in managing seabed resources, it does not have the authority or scope to address broader issues related to the conservation and sustainable use of marine biodiversity in ABNJ. On the same lines, UNCLOS only serves as the legal framework for all ocean-related activities and does not explicitly address marine biodiversity. The new High Seas treaty aims to fill these gaps and provide a comprehensive framework for addressing these issues.

What would be the consequences of the treaty not being ratified?
The efficacy of the High Seas provisions would be significantly compromised in the absence of ratification. Without the formal endorsement and acceptance of the treaty by a sufficient number of countries, the legal standing and enforceability of these provisions would be called into question. It is essential for countries to ratify the treaty to establish a solid and internationally recognized basis for the effective governance and protection of the High Seas.

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