GP Short Notes

GP Short Notes # 704, 2 July 2023

New High Seas Treaty: Beyond National Jurisdiction 
Rishika Yadav

What happened?
On 29 June, the governing board of the Global Environment Facility (GEF) approved the establishment of a Global Biodiversity Framework Fund during a GEF Council meeting in Brazil. GEF also broadens its remit to support the new Agreement on marine biodiversity beyond national jurisdiction, strengthening conservation efforts on the high seas.

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. 

What is the background?
First, unregulated resources and illegal practices. The world's oceans, particularly ABNJ, lack adequate protection, with only 1.2 per cent currently safeguarded. This has raised concerns about biodiversity loss and ocean degradation, exacerbated by climate impacts and other factors. The adoption of this treaty is crucial as its 75 articles offer protection against destructive practices, addresses pressing issues like plastic pollution and overfishing, and promote sustainable management and the establishment of marine protected areas (MPAs). The treaty incorporates the "polluter pays" principle and mandates environmental assessments before undertaking projects on the high seas.

Second, a brief note on the collaboration for conservation. The evolution of the new High Seas treaty began with the establishment of the Convention on Biological Diversity (CBD) in 1993. The process started with the first session of the BBNJ in September 2018, initiated by a UNGA resolution in December 2017 to convene an Intergovernmental Conference under UNCLOS. The treaty is a result of the fifth session of the Intergovernmental Conference (IGC-5) on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) held in New York in 2023. The treaty was agreed upon after more than 15 years of deliberations, including four years of official negotiations and a series of lengthy discussions.

Third, the disagreements. In 2022, UN member states were unable to reach an agreement on the treaty. Disagreements over several crucial components were the focus of IGC-5, leading to the slow pace of negotiations. Contentious issues such as access and benefit-sharing mechanisms, monetary benefit-sharing, and intellectual property rights remained unresolved. Similar disagreements were observed during the fourth round of negotiations as well. One of the treaty's main objectives was to facilitate the creation of MPA; however, delegates failed to reach an agreement on this matter. 

What does it mean?
First, the road ahead. Currently, international waters lack a comprehensive treaty, and the establishment of MPAs and other safeguards remains legally challenging due to the patchwork of international bodies and treaties managing resources and human activities in these areas, often with overlapping jurisdictions. Opposition by non-European countries could further hinder the implementation of  Article VI of the Agreement since national governments need to adopt and ratify it. By promoting sustainable management and establishing MPAs, the treaty contributes to achieving the 2030 Agenda.

Second, filling the gaps. The International Seabed Authority (ISA) 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, 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. 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.

Third, the road to ratification. The efficacy of the High Seas provisions would be significantly compromised in the absence of ratification. The intended impact and practical implementation of the High Seas measures would be undermined, leading to an uncertain and weakened framework for the conservation and sustainable use of marine resources.

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