The United Nations High Seas Treaty: Progress and Limits

Editors: Jannis Gesemann & Leire López de Goicoechea

Introduction

On 4 March 2023, the delegates of the Intergovernmental Conference on Marine Biodiversity
of Areas Beyond National Jurisdiction (BBNJ) agreed on a High Seas Treaty (European
Commission, 2023; United Nations, 2023c). It is a legally binding instrument under the
United Nations Convention on the Law of the Sea (UNCLOS) (International Maritime
Organization, 2023). The high seas account for two-thirds of the ocean surface and only 1.2%
of these are environmentally protected at the moment (Sands and Grandoni, 2023). This
protected area is mostly in the Ross Sea in the Southern Ocean where a protected zone was
created in the context of an Antarctic treaty (Stokstad, 2023). The High Seas Treaty is thus
“the first of its kind to protect oceans since 1982, when the U.N. Convention on the Law of
the Sea was adopted […]” (Sands and Grandoni, 2023, para. 16). So far, rules on the high seas
are fragmented and not really enforced. They are thus more vulnerable to exploitation than
coastal waters (McVeigh, 2023). Climate change, overfishing and shipping traffic are also
threats for marine life in the high seas (Stallard, 2023). According to the International Union
for Conservation of Nature (IUCN), “41% of the threatened species are also affected by
climate change” (Stallard, 2023, para. 10). Indeed, climate change leads to higher aquatic
temperatures and more acidic seas, which is a problem for many species. The ecosystems of
oceans are degrading and thus, the absorption of carbon is reduced. More ships are also
present in the oceans due to global trade and they can strike whales and animals near the
surface. In addition, the need for minerals induces companies to mine the seafloor (Sands and
Grandoni, 2023). The High Seas Treaty, also known as the Biodiversity Beyond National
Jurisdiction Treaty, aims at protecting biodiversity. It allows the establishment of large-scale
marine protected areas and regulates marine research for scientific and commercial purposes
(Gu, 2023). This article will look at this new treaty. First, it will present the background of the
instrument and its objectives. Then, the progress that the regulation brings for the oceans as
well as its limits will be outlined. Finally, the article will provide a conclusion.

Background and Objectives

The talks on the regulation of the high seas began in 2004 and on the text itself in 2018
(United Nations, 2023c; Valo, 2023a). It was in 2015 that the United Nations (UN) General
Assembly decided to “develop an international legally binding instrument under UNCLOS on
the conservation and sustainable use of marine biological diversity of areas beyond national
jurisdiction (UNGA resolution 69/292)” (International Maritime Organization, 2023, para.
14). The agreement was concluded at the headquarters of the UN in New York after five
rounds of negotiations taking place from 2018 to 2023 (International Maritime Organization,
2023; United Nations, 2023a). For the adoption of the agreement, the Conference resumed at
a later date. On 18 April 2023, the UN General Assembly “requested the Secretary-General to
convene a further resumed fifth session of the conference on 19 and 20 June 2023, tentatively,
or on a date to be determined in consultation with the President of the conference” (United
Nations, 2023a, para. 3). The agreement was adopted on 19 June 2023 (United Nations,
2023b). Now, when 60 states will have ratified the agreement, it will enter into force 120 days
later (European Commission, 2023; Valo, 2023a).

The goals of the High Seas Treaty are “to protect the ocean, tackle environmental
degradation, fight climate change, and prevent biodiversity loss” and more precisely, “to

ensure the conservation and sustainable use of marine biological diversity of areas beyond
national jurisdiction” (European Commission, 2023, para. 1; United Nations, 2023c, para. 1).
These areas are the high seas and the so-called Area (United Nations General Assembly,
2023). The high sea corresponds to “all parts of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic
waters of an archipelagic State” (Article 86 of the United Nations Convention on the Law of
the Sea, p. 432). It includes the ocean surface and the water column beyond the exclusive
economic zone (EZZ) and is ruled by the principle of freedom of the high seas (García
Cáceres, 2023). The Area refers to the international seabed area and is “the seabed and ocean
floor and subsoil thereof, beyond the limits of national jurisdiction” (Grant, 2010; Article 1.1
of the United Nations Convention on the Law of the Sea, p. 399). So, it is the seabed “beyond
a coastal State’s EEZs and continental shelf claims” (García Cáceres, 2023, p. 44).

The treaty addresses different elements including “the conservation and sustainable use of
marine BBNJ” (International Maritime Organization, 2023, para. 6). Moreover, “marine
genetic resources, including questions on benefit-sharing” are discussed (International
Maritime Organization, 2023, para. 6). More precisely, the fair and equitable sharing of
benefits from activities in relation to marine genetic resources will be ensured, which will be
to the benefit of developing countries (United Nations Conference on Trade and
Development, 2023). These countries have indeed expressed the fact that they do not have the
resources to work on this independently (Stallard, 2023). Marine genetic resources have “a
significant potential for research and development in the biotechnological, pharmaceutical,
foods and cosmetic fields” (United Nations Conference on Trade and Development, 2023,
para. 3). Furthermore, area-based management tools will be used to manage in a sustainable
way the activities in particular areas of the high seas (United Nations Conference on Trade
and Development, 2023). In this respect, the treaty provides for a legal framework to create
marine protected areas “to protect against the loss of wildlife and share out the genetic
resources of the high seas” (McVeigh, 2023, para. 7). States will propose areas to be
recognised as marine protected areas and it will be voted on by the states that have signed the
treaty (Stallard, 2023). In addition, obligations in terms of environmental impact assessments
are stated for proposed activities in the areas beyond national jurisdiction. Potential impacts
will be identified and assessed. It will also be useful for the management and mitigation of
risks. States will then decide if they pursue the activity (United Nations Conference on Trade
and Development, 2023). The treaty “also covers capacity-building to develop scientific
knowledge and the transfer and sharing of marine technology and related cooperation”
(United Nations Conference on Trade and Development, 2023, para. 14). Capacity-building is
important for developing countries “to establish ecological baselines, generate benefits from
marine genetic resources, enable area-based management, environmental impact assessments
and facilitate the transfer of marine technologies” (United Nations Conference on Trade and
Development, 2023, para. 15). Finally, a conference of the parties (COP) will be held
periodically, which will “enable member states to be held to account on issues such as
governance and biodiversity” (McVeigh, 2023, para. 7). This forum, set up for deliberations
at the international level, will collaborate with “existing ocean authorities representing
commercial interests, including fishing and seafloor mining” (Stokstad, 2023, para. 6).

Progress and Limits of the Treaty

As mentioned in the introduction, so far, only a very small part of the oceans is protected
while they are threatened by climate change, overfishing and shipping (Sands and Grandoni,
2023; Stallard, 2023). This treaty is essential for the enforcement of the 30x30 commitment

made by 196 states at the UN biodiversity conference (COP15) in December 2022, which
seeks to protect a third of the sea by 2030 (McVeigh, 2023; Valo, 2023b). More precisely, this
Kunming-Montreal Global Biodiversity Framework aims for the “conservation and effective
management of 30% of oceans and coastal areas by 2030” and the “restoration of 30% of
degraded ecosystems and measures to control invasive alien species” (United Nations
Conference on Trade and Development, 2023, para. 17). Before this treaty, there was no legal
mechanism to create maritime protected areas on the high seas. Without that, the commitment
would certainly not have been fulfilled (McVeigh, 2023). The treaty states that, in these
marine protected areas, there may be activities if they are in accordance with conservation
objectives. So, fishing and exploration activities as well as shipping routes could be limited
(Stallard, 2023). The new instrument will also contribute to the reach of the 14 th UN
Sustainable Development Goal about “conserving and sustainably using the ocean, seas and
marine resources” (United Nations Conference on Trade and Development, 2023, para. 16).

Nevertheless, the treaty is “only the beginning of a process that will be long and difficult” (Le
Monde, 2023, para. 2). As mentioned before, for the text to enter into force, 60 states must
have ratified it (European Commission, 2023). This will certainly take years (Sands and
Grandoni, 2023). Thereupon, the signatory states will pass the legislation in their country and
after that, they will look at the implementation and management of the measures (Stallard,
2023). The propositions of states to establish the marine protected areas will arrive after these
signatures and ratification stages and each will be subject to a vote of approval (Gu, 2023). In
addition, some consider that the treaty needs improvement. For example, the environmental
impact assessments will not concern the existing bodies that regulate fisheries, shipping and
deep-sea mining. They will thus continue to do so but will not have to make those
assessments provided for in the treaty (McVeigh, 2023). Indeed, the provisions in the treaty
“don’t overrule regulations laid down by the authorities that oversee existing high seas
activities” (Nature, 2023, para. 8). It concerns the International Maritime Organisation
(responsible for shipping), the International Seabed Authority (regulating deep-sea mining),
and 17 regional organisations tasked with the management of fisheries in different parts of the
ocean (Nature, 2023). So, “the fact that at this stage the treaty does not apply to the military
sector, deep sea fisheries or the exploitation of seabed mineral resources significantly reduces
its scope” (Le Monde, 2023, para. 3). Commercial shipping is not concerned
either. These elements imply the fact that marine protected areas can not be established in
areas under fishing agreements, even if it is not sustainable and if it depletes stocks (Nature,
2023). Other critics regarding environmental impact assessments (EIAs) “point out that
countries will conduct their own EIAs and make the final decision - although other countries
can register concerns with the monitoring bodies” (Stallard, 2023, para. 24). Conservationists
would have wanted the COP to approve environmental impact assessments and to refuse
development of harmful activities (Stokstad, 2023). Moreover, environmental violations, like
farming waste ending up in the high sea through rivers and coastal waters, are not addressed
in the treaty. Cruise ships also continue to discharge an important amount of raw sewage in
international waters (Nature, 2023).

Conclusion

In early March 2023, the UN reached an agreement on a High Seas Treaty, which was
adopted on 19 June 2023. The legally binding instrument, agreed under UNCLOS, aims at
protecting marine biological biodiversity in areas beyond national jurisdiction. These areas
correspond to the high seas and the so-called Area. The High Seas Treaty is of great
importance because the high seas represent two-thirds of the ocean surface and only 1.2% of

these are currently protected. Marine life is threatened by climate change, overfishing and
shipping traffic. Against this background, the treaty provides for the creation of marine
protected areas. The instrument will also contribute to several international goals and
commitments made to protect the oceans. However, it will only enter into force when 60
states have ratified it, which will certainly take years. After that, the legislation must be
passed in the countries. So, the implementation of the measures will take time. In addition,
criticism has been raised, especially regarding the environmental impact assessments. These
will not concern the existing bodies that regulate fisheries, shipping and deep-sea mining. As
a result, the treaty does not apply to several sectors. Moreover, it is the countries that conduct
environmental impact assessments and take the final decision. Therefore, even though the
treaty represents an important step in the direction of the preservation of the high seas, its
implementation will take time and further progress remains necessary to fully protect the
oceans.

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