Adventures on the High Seas? The 193-nation deal to save our oceans

A new UN treaty aims to increase protection for the vital resource that covers 71% of the Earth’s surface: the oceans.  After two decades of negotiation, can the UN High Seas Treaty sail its way to a successful outcome and actually make a difference?

On March 4, 2023 – after almost 20 years of discussions – the UN announced the signing of a new High Seas Treaty, an accord aimed at safeguarding the biodiversity and ecosystems of the planet’s least understood, least regulated and least protected marine environment, the ‘high seas’.

The treaty, formally known as the Marine Biodiversity Beyond National Jurisdiction Agreement, was approved by 193 nations after a marathon 36-hour session at the UN headquarters in New York.  It’s the first treaty since the early 1980s to try to address the challenges related to the conservation and protection of the high seas.

Announcing the historic event, UN Secretary-General Antonio Guterres said: “This action is a victory for multilateralism and for global efforts to counter the destructive trends facing ocean health, now and for generations to come.”

The noble objectives of the treaty give some clue as to why it may have taken 20 years to reach agreement.

Its main goals are to end unsustainable exploitation of the high seas, fairly share the commercial and scientific bounty found in them and create legislation and mechanisms to assess the viability of large-scale projects in the high seas in a joined-up and global manner.

The landmark deal provides regulatory oversight and environmental protection to the high seas for the first time and, according to its supporters, should play a crucial role in achieving the 30×30 pledge[1] – the global statement of intent, adopted at COP 15 in 2022, to protect a third of the land and sea by 2030.

As I have written about before, our planet’s oceans sorely need more protection, both from unsustainable exploitation and man-made pollution.  If successfully implemented and adhered to, the UN High Seas Treaty will be pivotal in wider attempts to combat climate change and could help us unlock the treasures of the deep ocean that may provide advances in medicine and science.  But as with so many visionary climate change-related agreements, it’s a big ‘if’.

Wild west of the oceans

A new international treaty to safeguard the oceans has got to be a good thing.  But the new treaty does not provide blanket protection for all the oceans; it is very specifically focused on the high seas.  So, before we can discuss its aims and potential, we first need to define its scope.  What exactly are the ‘high seas’ and why do they need protecting?

The high seas encompass two-thirds of the world’s oceans and are defined as areas outside the exclusive economic zone of any country[2].  This means they are beyond the laws of any national jurisdiction – in other words, unregulated – making them vulnerable to exploitation, pollution and unsustainable commercial activities.

Critics say this unregulated environment has created an almost ‘wild west’ landscape where activities such as deep sea mining of the ocean bed, with potentially significant environmental consequences, have been able to take place without due oversight.

This lack of regulation comes against a backdrop of increasingly sophisticated technologies that allow for far greater exploration of the high seas than was possible a generation ago, such as remotely operated vehicles (ROVs) for deep sea exploration and smarter, AI-driven ways of mapping the ocean floor and exploiting data.

Environmental role of the high seas

Until the treaty was created, just 1% of the high seas enjoyed protected status[3] (this largely consisted of an area of the North Atlantic).  This lack of governance across such an important part of our planet is one of the main reasons why damage to underwater habitats has affected two-thirds of the ocean, according to a report by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services[4].

A separate report by the National Oceanic and Atmospheric Administration (NOAA) shows the oceans are a third more acidic than they were at the beginning of the industrial era[5].  Higher levels of acidity make it harder for marine organisms, like coral, mollusks and some types of plankton to form.  This has implications for food supply as well as the longer-term ability of coral to protect coastlines and preserve the wider ecosystem of the deep ocean.  Coral reefs are critical for the marine biosystem, so protecting them is vital.

They account for only 1% of the ocean floor but are home to 25% of all marine life[6].  Worryingly, a report from the Global Coral Reef Monitoring Network[7] found that between 2009 and 2018, around 14% of the world’s coral was lost.

Nature’s carbon sink

The importance of the high seas to our environment can’t be overstated.  Ocean ecosystems produce half of the oxygen we breathe and account for almost 95% of the planet’s biosphere.

Oceans are sometimes referred to as our ‘carbon sink’, and with good reason – they absorb one-third of the CO₂ released into the atmosphere – more than all the rainforests combined – and 90% of the heat associated with global warming, while providing us with half the oxygen we breathe[8].

Yet the more acidic the ocean, the less its capacity to absorb CO₂, making the seas less effective in mitigating climate change and making our journey towards net-zero that much harder.

The high seas themselves are home to a vast array of marine wildlife[9] and ecosystems, providing migratory routes for some of our most endangered species.  An adult blue whale, spanning 100 feet and weighing as much as 200 tons, spends a third of the year in the deep sea.  Other marine wildlife that relies on the high seas include the Pacific bluefin tuna, which spends almost half of its life there, the Northern Elephant seal and the Leatherback Sea Turtle, which spends almost 80% of its time in the high seas.

Despite their vital role as one of our planet’s most important ecosystems, there’s still much we don’t know about the deep sea.  In fact, scientists estimate that more than 90% of ocean species are still unclassified and around 80% of the ocean floor still remains to be mapped to modern standards[10].  Increasingly, they are also understood to host a range of marine genetic resources, which, experts believe, could potentially be used in a range of medical and commercial applications.  Already, ocean ecosystems contribute to many medicinal products, including ingredients that help fight cancer, arthritis, Alzheimer’s disease, and heart disease[11].  The hope is that with more research and understanding this list could be much longer.

Protecting this abundance and array of life and resources, and exploring it in a sustainable and effective way, is at the heart of the UN High Seas Treaty.

Ramping up regulation

Among the main provisions of the new treaty are:

• the establishment of a legal framework to create vast Marine Protected Areas (MPAs)
• a commitment to share out “fairly and equitably” the marine genetic resources of the high seas and preserve ocean biodiversity
• the creation of an ocean conservation fund to support the treaty’s aims.

Perhaps the single most important measure is the creation of MPAs[12] to protect particularly fragile regions of the high seas.  MPAs can be established by either a state or group of states, who nominate a specific area of the high seas to be designated – and protected – as an MPA, with all nominations for MPAs being ratified in a vote by treaty signatories.

Commercial and research activities are still allowed to take place in an MPA but, crucially, they must be consistent with overarching conservation objectives.  In practice, this could mean the limiting of some commercial operations, such as fishing and deep-sea mining, and potentially see the curtailment of certain shipping routes.

The treaty will also create a conference of the parties (COP), modelled on current COP structures for biodiversity and climate change, that will meet at regular intervals and include a scientific advisory board.  This will enable member states to be held to account for their governance and implementation of the treaty’s provisions.

Sharing is caring

The treaty’s commitment to the fair and equitable sharing of marine genetic resources is also key.  ‘Marine genetic resources’ refers to biological material from animals and plants in the ocean.  Living in some of the most hostile and unexplored conditions on earth, these organisms can provide unique genetic properties for pharmaceutical research and medical products.

Under the terms of the treaty, although countries are allowed to profit from exploiting marine genetic resources, they are also obliged to share them fairly and equitably.  In practice, this will mean wealthier nations will be allowed to research and gather these resources from the depths of the ocean, but they will need to share the fruits of their findings with other nations, who might not have the resources to exploit these kinds of opportunities themselves.

These “access and benefit sharing” rules will cover rapidly expanding sectors such as marine biotechnology; a market that was estimated to be worth US$ 5.9 billion in 2022 and is forecast to almost double by 2032[13].

The tighter regulatory approach being introduced by the treaty also includes an expansion of the role of Environmental Impact Assessments (EIAs), bringing more activities into the scope of the EIA framework.

EIAs allow policymakers to identify the potential effects of proposed projects, explore alternative solutions and determine ways to prevent, mitigate and control environmental harm.

The section on EIAs forms the longest part of the treaty.  It comprises 13 articles that set out its objectives and establishes guidelines and standards for how EIAs will be conducted, monitored, reviewed and governed.  Experts agree the changes are a big improvement on what currently exists, but they are not without controversy.

The deal will also bolster existing regulations to make maritime transport, not surprisingly one of the main economic activities on the high seas, more sustainable.  New guidelines could be introduced to regulate maritime transport, such as modifying shipping lanes, establishing new speed limits and setting new standards for reducing noise pollution.

Additionally, the treaty addresses ‘capacity-building’ to help develop scientific data and understanding and share marine technology.  The United Nations Conference on Trade and Development (UNCTAD) says that for developing countries, this commitment to capacity-building “will be crucial to establish ecological baselines, generate benefits from marine genetic resources, enable area-based management, environmental impact assessments and facilitate the transfer of marine technologies.’’

Navigating the political waters

Understandably, given its scope and ambition, the UN High Seas Treaty has been given a broad welcome.  However, there are still significant obstacles to overcome for the treaty to achieve its full potential.  Political will and commitment on a global scale will be essential if it is to become a success.

If history can act as a signpost for the future, it might be instructive to look at the treaty’s predecessor – the 1982 United Nations Convention on the Law of the Sea.  One of the landmark achievements of this convention was the creation of the International Seabed Authority (ISA), based in Jamaica.  But the ISA wasn’t actually established until 1994 and didn’t become fully autonomous until 1996.[14]  Almost 30 years since its inception, the ISA still hasn’t established a deep-sea mining code – one of the main reasons it was set up in the first place.[15]

Some concerns have already been raised, too, about the efficacy of the envisioned tightening of EIA regulations.  Critics say that, while the expansion of EIA’s is a significant step forward, there is no overarching body to conduct or enforce the findings of an EIA.  Instead, it will be left to individual countries to both carry out an EIA and implement its findings.  Clearly, this leaves the potential for national interests to usurp what might be seen as the greater good.

Another grey area appears to be how the provisions of the treaty will interact with regulations established by existing bodies, such as the aforementioned International Seabed Authority and the International Maritime Organization, which is responsible for shipping on the high seas.

Nevertheless, it is hard not be positive about the fact that, despite all the challenges it faced, the treaty was finally agreed.  In today’s geo-political political climate, and with 193 UN member states to appease, it is a remarkable feat to have reached an agreement at all.  This should not be understated, and the treaty has been loudly welcomed by a panoply of groups, not only its signatories, but also international environmental organizations such as the WWF and Greenpeace.

Virginijus Sinkevičius, the EU Commissioner for the Environment, Ocean and Fisheries, said, “With the agreement on the UN High Seas Treaty, we take a crucial step forward to preserve the marine life and biodiversity that are essential for us and the generations to come.  

It is also a proof of strengthened multilateral cooperation with our partners and a major asset to implement our COP 15 goal for 30% ocean protection.”[16]

Michael Imran Kanu, the head of the African Group at the UN and ambassador and deputy permanent representative to the UN for legal affairs of Sierra Leone, called the treaty “robust and ambitious.”[17]

The next, and some would say decisive step, is ratification.  This requires at least 60 countries to ratify the treaty in their respective legislatures for it to come into effect.  The UN has suggested it is working towards ratification by June 2025, when the next UN Ocean Conference will be held, in France.

When this happens, the treaty could – and should – be a critical building block in global efforts to stem and reduce the impacts of climate change, safeguard some of our most fragile environments, and achieve the goal of net zero emissions, while contributing in as-yet-unknown ways to our understanding of science and nature.

With votes due to take place in national parliaments over the next two years, we could soon be charting a course towards a more equitable and sustainable relationship with the most expansive but least protected part of our marine environment.

[1] https://www.hacfornatureandpeople.org/home

[2] https://oceanexplorer.noaa.gov/facts/high-seas-governance.html

[3] https://wwf.panda.org/wwf_news/?7704966/high-seas-treaty-2023#:~:text=The%20waters%20beyond%20national%20jurisdiction,little%20effective%20management%20in%20place.

[4] https://www.ipbes.net/global-assessment

[5] https://www.noaa.gov/education/resource-collections/ocean-coasts/ocean-acidification

[6] https://www.unep.org/interactives/status-world-coral-reefs/

[7] https://gcrmn.net/

[8] https://www.un.org/en/desa/5-reasons-you-should-care-about-our-ocean

[9] https://marine-conservation.org/high-seas/#:~:text=The%20high%20seas%20also%20provide,search%20of%20food%20and%20mates.

[10] https://oceanservice.noaa.gov/facts/ocean-species.html

[11] https://oceanservice.noaa.gov/facts/why-care-about-ocean.html

[12] https://marine-conservation.org/on-the-tide/historic-high-seas-treaty-to-conserve-biodiversity/

[13] https://www.precedenceresearch.com/marine-biotechnology-market

[14] https://www.isa.org.jm/about-isa/

[15] https://www.isa.org.jm/the-mining-code/standards-and-guidelines/

[16] https://ec.europa.eu/commission/presscorner/detail/en/IP_23_1382

[17] https://www.theguardian.com/environment/2023/mar/05/high-seas-treaty-agreement-to-protect-international-waters-finally-reached-at-un