The recent conclusion of a ‘high seas treaty’ is significant, since it would put in place a multilateral regime to preserve and protect critical resources in areas outside countries’ exclusive economic zones and continental shelves.
Last week, 164 parties to the United Nations Convention on the Law of the Sea (UNCLOS) concluded a new ‘high seas treaty’, as many like to call it, under the able stewardship of Singapore’s Ambassador for the Oceans and Law of the Sea Issues and Special Envoy for the Foreign Minister Mrs Rena Lee. The adoption of the treaty gives hope, in Mrs Lee’s own words, that “multilateralism remains relevant and as – if not more – important as before”.
By the 1960s, the centuries-old Grotian order governing freedom of the seas was no longer useful to the international community as the emergence of new developing countries from de-colonisation, technological progress, and new uses of ocean resources challenged the existing regime. A new international treaty to govern the use of the ocean — including sovereign rights of states (including land-locked countries), freedom of navigation and overflight, peaceful settlement of disputes, conservation and utilisation of marine resources, and the protection and preservation of the marine environment — had to be negotiated. UNCLOS was adopted in April 1982 under the presidency of Professor Tommy Koh, a Singaporean who masterfully concluded the decades-long negotiations of the Third Conference of the Law of the Sea.
Much attention has been paid to UNCLOS in the area of governance of territorial seas, continental shelves and exclusive economic zones. But there has been little discussion on the preservation of the marine environment and protection of the oceans; even less so on the nexus of the oceans and climate change. The oceans are the planet’s lungs producing more than 50 per cent of breathable air. The oceans help regulate temperature and weather patterns and are an important source of food, recreation and transportation. Mankind has mistreated the oceans through over-fishing, pollutive activities and over-extraction of resources such as oil and gas. These have led to ocean acidification, the loss of biodiversity and sea-level rise.
There are six things worth knowing about the so-called ‘High Seas Treaty’:
First, the formal name of the treaty is the “Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction”, or the “BBNJ Agreement”. While it might be easier to use ‘high seas treaty’, this is potentially misleading as it makes people think of ‘freedom of the seas’ in relation to freedom of navigation and such, which is not the scope of this agreement. Why should we care about areas outside of our country’s jurisdiction? UNCLOS was the first international treaty to enshrine the principle of the common heritage of mankind (Article 136). This was a concept proposed by Dr Arvid Pardo from Malta. It has been used in every major treaty relating to the global commons including treaties or resolutions on biological diversity, climate change, and outer space (Prof Koh’s excellent historical account of the concept is presented in his book Building a New Legal Order for the Oceans).
It is therefore the imperative of every state party to the BBNJ Agreement to expedite their domestic ratification processes and speed up the entry into force of the treaty so that immediate steps to protect and preserve the marine environment can be taken.
Second, the BBNJ agreement relates directly to Part XI of UNCLOS titled “the Area” and its “resources”. This “Area” refers to the high seas (or international waters as commonly referred to) comprising about 54 per cent of the ocean areas that are beyond national jurisdictions. To be clear, the high seas are outside any country’s continental shelf and 200nm exclusive economic zone. “Resources” refer to both living and non-living resources, including ocean life, hydrocarbons and minerals such as polymetallic nodules.
Countries are paying particular interest to polymetallic nodules now, given that they contain manganese, cobalt, nickel and copper. Around the 1960s and 1970s, interest in the deep seabed mining of polymetallic nodules led to the development of resource assessments and extraction technologies in the Clarion-Clipperton Zone, one of the largest reserved high seas area in the eastern Pacific Ocean, somewhere between Hawaii and Mexico. Other reserved areas include parts of the Indian Ocean, the Mid Atlantic Ridge, and the South Atlantic Ocean. These critical minerals, which were practically unknown decades ago, are now important in the global race towards clean energy transition to meet our climate ambitions. Clean energy technologies such as photovoltaic panels, electric vehicles, batteries and wind turbines require substantial amounts of these critical minerals.
Third, the BBNJ Agreement’s scope covers a “package” of issues that had been agreed in 2011 including (1) the exploitation of marine genetic resources, including a benefit-sharing mechanism (because of the principle of common heritage of humankind, everything in the high seas belongs to the global community; hence principles of fairness and equity should apply. This turned out to be the most challenging part of negotiations); (2) the use of area-based management tools, including marine protected areas, to protect and conserve biodiversity; (3) the conduct of environmental impact assessments prior to undertaking activities; and (4) the facilitation of capacity building and transfer of marine technology.
Fourth, it is misleading to think that the entire global community has signed up to the BBNJ Agreement. As it is negotiated under the umbrella convention of UNCLOS, only parties which have ratified the UNCLOS are parties to the BBNJ Agreement. The United States is not party to the BBNJ Agreement as it has neither signed nor ratified UNCLOS. Besides the U.S., 15 other countries, including Andorra, Israel, Kazakhstan, Peru, Turkey, Turkmenistan and Venezuela, are not part of UNCLOS. The U.S.’ main objection was in fact related to Part XI of the UNCLOS, specifically on deep seabed mining treaty. The 1994 Agreement relating to the implementation of Part XI of UNCLOS was negotiated to address the Reagan Administration’s concerns on deep sea mining. In the end, the U.S. chose not to sign or ratify the agreement (but it has kept consistently to the spirit of UNCLOS). Countries who are not UNCLOS members may accede to the BBNJ Agreement.
Fifth, the Agreement will establish a Secretariat to run day-to-day activities; a Conference of Parties as the ultimate decision-making body for monitoring and reviewing implementation; a Scientific and Technical Body to provide up-to-date scientific advice; and a clearing house mechanism that must be notified on activities with respect to marine genetic resources. All these mechanisms will serve to ensure robust governance. In the event of a dispute, Part XV of UNCLOS that obligates peaceful settlement applies.
About a decade or more ago, there was intense interest from private companies to start exploration and subsequent commercial exploitation activities. The International Seabed Authority (ISA) established under UNCLOS in 1994 has drafted a mining code to regulate prospecting, exploration and exploitation of marine minerals. It is therefore important that the BBNJ Agreement is now in place to regulate these and other activities which will cause harm to biodiversity in areas beyond national jurisdiction.
Last, Parties to the BBNJ Agreement have agreed that it will enter into force 120 days after the 60th instrument of ratification, approval, acceptance or accession is deposited. However, treaties have been known to take years, even decades, to come into force. UNCLOS, which was adopted in 1982 but only came into force 12 years later, is a good example. It is therefore the imperative of every state party to the BBNJ Agreement to expedite their domestic ratification processes and speed up the entry into force of the treaty so that immediate steps to protect and preserve the marine environment can be taken.
There is absolutely no time to dawdle on this.
Sharon Seah is Senior Fellow and concurrent Coordinator at the ASEAN Studies Centre and Climate Change in Southeast Asia Programme, ISEAS – Yusof Ishak Institute. She is also editor of Building a New Legal Order for the Oceans.