Will the High Seas Treaty provide the protection needed for our oceans beyond national jurisdiction in the future?

Strategic Insight 015/2023

Mark Mellett

1 June 2023

Will the High Seas Treaty provide the protection needed for our oceans beyond national jurisdiction in the future?

Three quarters of the Earth’s surface is covered by the ocean. It consists of a hydrosphere and cryosphere that have absorbed about a quarter of human made carbon dioxide emissions making the ocean the world’s largest carbon sink. As a system, the ocean plays a key role in regulating life on earth and produces half the oxygen we breathe. This represents 95% of the planet’s biosphere. While the ocean provides sea lines of communications – arteries of the global economy – and is a critical component of the earth’s ecosystem, nearly 66% includes ‘Areas Beyond National Jurisdiction’ (ABNJ). Historically, ABNJ have largely been subject to fragmented and somewhat dysfunctional institutions with little or no enforced rules, characterised in the main by a regime of open access sometimes described as an international state of nature. The High Seas Treaty offers new hope of a governance regime, initially with anarchical characteristics that will evolve and strengthen, aspiring to achieve 30% of the ocean protected by 2030. But will protection in a regime based largely on anarchism be sufficient?

Law of the Sea

The history of law of the sea has been dominated by two principles, the principle of sovereignty and the principle of freedom. Freedom of the seas, or ‘Mare Liberum’ remains today a key tenet underpinning the law of the sea. Against growing tensions and competition over sea trade, the philosopher and Dutch jurist Hugo Grotius first published Mare Liberum in 1609 arguing that the sea was international territory and that all nations were thus free to use it. Grotius, considered by many as the father of international law, quoted by Juda stated “Everyone admits that if a great many persons hunt on the land or fish in a river, the forest is easily exhausted of wild animals and the river of fish, but such a contingency is impossible in the case of the sea.” In the centuries that followed, the arguments of Grotius were widely accepted by many, including the biologist T.H. Huxley, who in a keynote address to the International Fisheries Exhibition in London in 1882 proffered that the ocean’s supply of fish, such as cod, was inexhaustible: Fish were present in the oceans in such large numbers and reproduced prolifically, while only an insignificant fraction of them in proportion to their numbers was captured.

Neither Grotius nor Huxley were to know that the world’s population would grow from around one billion in 1800 to around eight billion by the middle of the 21st century creating a rapidly increasing demand for the ocean’s living resources. Such has been the demand for fish that today most commercially important stocks are outside safe biological limits, and many are on the verge of collapse if they have not already. The growing impact of anthropogenic activity has also resulted in a plethora of other negative externalities. With carbon emissions in excess of thirty-seven billion metric tonnes per annum, acidification of the ocean is also rising. Run off and other pollution pathways lead to significant pollution by plastics. In addition to these threats, dumping at sea as well as new and emerging uses of ABNJ including bio-prospecting, more intrusive marine scientific research, environmental modification activities to mitigate the effects of climate change and deep seabed mining threaten the ABNJ. Each has the potential to further harm the highly interconnected and sensitive ecosystems of the open ocean and the deep seabed.

Evolution of Law of the Sea

Over four decades ago, reflecting on the negotiating strategy of the Law of the Sea Conference, the Chair of the Drafting Committee, Sir Alan Beesly wrote ‘I want to begin by recalling that when the conference began, the law of the sea was in a state of disorder bordering on chaos.’ By any measure, the United Nations Conference on the Law of the Sea (UNCLOS) 1982, provided for almost unparalleled institutions which have stood the test of time. The Convention provides for the division of the sea into five main zones, namely Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas. It is the only international convention which stipulates a framework for state jurisdiction in maritime spaces providing a different legal status to different maritime zones. It provides the backbone for offshore governance by coastal states and those navigating the oceans. It not only zones coastal states’ offshore areas but also provides specific guidance for states’ rights and responsibilities in the five concentric zones. Nevertheless, and despite the Convention’s comprehensiveness, it does not adequately provide for an appropriate governance framework for the ABNJ.

The High Seas Treaty

On 04 March 2023, after almost two decades of discussion and five years of negotiations, the world’s governments reached agreement on the key substantive issues for the new ‘Treaty to protect High Seas marine life’. The Treaty provides a legal framework for conserving marine life and restraining harmful activities in the ABNJ. The treaty also provides for the creation of high-seas marine protected areas (MPAs). It will require environmental impact assessments on activities that may affect marine life thereby facilitating greater congruence between the current tapestry of ocean management bodies. The Treaty places an obligation on developed states to share knowledge and technologies while building capacity across countries, thereby enabling a more equitable participation in the conservation of the high seas, supporting institution building in developing nations. With provisions for protecting and conserving at least 30% of the ocean and ensuring 30% of degraded areas are being restored by 2030, the High Seas Treaty is a vital step towards implementing the UN Kunming-Montreal agreement (which in December 2022 committed governments around the world to halting and reversing biodiversity loss).

The Treaty will facilitate progression from a regime of open access through an anarchical regime with more sophisticated institutions overseen by a Conference of Parties with limited powers. This should not be a cause of undue alarm.  Proponents of anarchy regularly point out that it is not a condition of disorder or chaos but a social state featuring institutions or regimes that operate in the absence of central organisations to administer them. The High Seas Treaty provides the framework with a central organisation, limited in powers but with key principles to underpin governance. These include, the polluter-pays principle; the principle of the common heritage of humankind; the principle of equity and the fair and equitable sharing of benefits; the precautionary approach; ecosystem approach; an integrated approach to ocean management and much more.

In short, rather than seen as anarchy as a sole regime, anarchy will have a place nested within other regimes. This is not an uncommon approach to international governance. There are many examples where members of the international community have set up self-help arrangements that do not require central organisations. They have agreed rules for activities that cut across zonal and organisational boundaries. It is therefore reasonable to conclude that an integrated implementation and compliance mechanism can be constructed, overseen by the Conference of Parties.

There are, however, challenges to be overcome. As an example, in the Pacific, mining companies are already exploring the deep sea bed for metals for the batteries that enable the green-energy transition. As the treaty’s provisions do not overrule regulations laid down by the authorities that oversee existing high seas activities, these won’t face scrutiny under the treaty. It is therefore critical that authorities like the International Maritime Organization, which is responsible for shipping; the International Seabed Authority, which oversees deep-sea mining; and approximately 17 regional fisheries management organisations tasked with regulating fisheries in various parts of the ocean, including Antarctica, are implicated in the evolving governance regime. As military activities and the aforementioned existing fishing and commercial shipping are exempt from the treaty, there will be a need to work closely with competent authorities and states to ensure optimal ecosystem-based ocean governance is delivered driving good environmental status and biodiversity net gain.

Institutionalising all the provisions of the High Seas Treaty is a strategic imperative if the international community are to mitigate the worst impacts of the existential threat of climate change. For decades, much of the requirements for International Shipping compliance have been set out in conventions that are executed in a state of international anarchy.  While exempt, it is still reasonable to foresee that rules and regulations adopted through the treaty may be enforced by bodies like the International Maritime Organization or the International Seabed Authority. As technicalities are worked out and the treaty is adopted, it is imperative it enters into force so that all countries can make it work. The sooner it is formally signed and ratified into national legislation, the sooner there can be progress from disorder to orders of outcomes, moving from open access through anarchy where all parties are compliant in an institutionalised ecosystem-based oceans governance regime.

Vice Admiral (Rtd) Mark Mellett DSM is the former Chief of Staff of the Irish Defence Forces, having also served as Head of the Irish Naval Service. Holder of a PhD in ecosystem and ocean governance, he has recently been appointed as board chairman of the Maritime Area Regulatory Authority (MARA). He is an adjunct professor at UCC, council chair and board member of the Irish Management Institute, a board member of Sage Advocacy and chair of the Advisory Council of the Azure Forum for Contemporary Security Strategy.

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