The historic High Seas Treaty is almost reality. Here’s what it would mean for ocean conservation
- Written by Sarah Lothian, Senior Lecturer in Maritime Law and Academic Barrister, University of Wollongong
The high seas are set to gain a greater level of protection when a long-sought after treaty finally enters into force.
For almost 20 years, nations have debated the need for the High Seas Treaty, intended to protect marine life in the high seas and the international seabed. These marine areas together account for nearly two-thirds of the world’s ocean and harbour a rich array of unique species and ecosystems. The treaty is formally known as the Biodiversity Beyond National Jurisdiction Agreement.
Many hoped last week’s United Nations Oceans Conference would result in enough nations ratifying the treaty to bring it into force. As of today, 50 states of the 60 required have done so, while another 19 have promised to do so by the year’s end. A greater level of protection for our high seas is well and truly in sight.
By United Nations standards, this is a cracking pace. The treaty-making process itself can take years, particularly as states need to incorporate the treaty into their domestic laws. This speaks to the urgency of the moment. Researchers and authorities have warned that the world’s oceans are now in deep trouble, threatened by climate change effects, overfishing, plastic pollution and other human-caused issues.
Once the treaty enters into force, nations can begin to propose high seas marine protected areas, which could limit fishing and other activities. The question then will be how to police these marine protected areas.
How did we get here?
In June 2023, the High Seas Treaty was adopted by consensus at the UN Headquarters in New York. It was a long time coming.
For decades, nations argued and negotiated over what this treaty might look like. How could the marine genetic resources of this global commons be shared fairly and equitably? How could protected areas be designated and managed? What was eventually thrashed out was a comprehensive international legal framework able to better protect and safeguard the rich and diverse web of life inhabiting the deep sea.
Getting to this point was a real achievement.
But for this treaty to enter into force, 60 countries have to ratify it. This means their governments must consent to be legally bound by the terms of the treaty.
While Australia has pledged to ratify the treaty, it is still working through the ratification and domestic legal process. On a positive note, Environment Minister Murray Watt has indicated this will happen before the end of the year.
What will the treaty actually do?
At present, the high seas are regulated by a patchwork of global, regional and sectoral frameworks, instruments and bodies. However, none of these have a core mandate of protecting the biodiversity of the oceans.
In 1982, the Law of the Sea Convention was adopted, giving every coastal nation rights over the waters extending to 200 nautical miles (370 kilometres) from their coastline.
Once you are past this, you’re in the high seas – the swathes of ocean not controlled by any one nation.
If and when it comes into effect, the High Seas Treaty would give the world a way to set up large marine protected areas in the high seas. It would also apply to the international seabed – the seabed, subsoils and ocean floor lying beyond the continental shelf of a coastal state.
Any new protected areas would likely have restrictions on activities such as fishing and shipping. But this will need to be done in consultation with relevant international bodies such as the International Maritime Organisation and regional fisheries management organisations.
The treaty would go a long way to reaching key conservation goals set under the 2022 Kunming-Montreal Biodiversity Pact, which calls for protection of at least 30% of the world’s marine and coastal habitats by 2030.
The treaty also sets up a mechanism for the sharing of benefits from marine genetic resources, financial and otherwise. Bacteria living in deep-sea ecosystems have attracted much scientific and commercial attention for potential use in medical research or pharmaceutical, cosmetics and food industries. Genetic resources from sea sponges have given rise to antiviral drugs targeting COVID and HIV as well as anti-cancer drugs.
These resources were a major sticking point during the long negotiations.
Many coastal countries lack the ability to participate in high seas research. As a result, they can miss out on these and other benefits. The High Seas Treaty recognises this and sets up a strong framework for capacity-building, technology transfer and technical assistance for developing nations.
When will the oceans get a reprieve?
Once the 60th nation ratifies the High Seas Treaty, it will enter into force 120 days later. This date could be as soon as May 1 next year, if the threshold is reached on January 1.
Once this happens, this will be the date upon which the treaty gains legal force, meaning nations will have to comply with its obligations.
That doesn’t mean huge new marine parks will come into being. There’s still much work to do to hash out the mechanics of how the treaty would actually work, how it would be overseen and how it would work with the International Seabed Authority which oversees deep-sea mining and the Antarctic Treaty System, among others. Negotiators face more work ahead to solve these outstanding issues before the real work can begin.
That’s not to diminish this achievement. The progress on this treaty has been very hard won. Once it’s in effect, it will make a concrete difference.
Authors: Sarah Lothian, Senior Lecturer in Maritime Law and Academic Barrister, University of Wollongong
