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Multilateralism Matters: Adoption of the Treaty of the High Seas and its Significance

Dr Rajeesh Kumar is Research Fellow at Manohar Parrikar Institute for Defence Studies and Analyses, New Delhi. Click here for detailed profile.
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  • July 04, 2023

    On 19 June 2023, all 193 Member States of the United Nations adopted a groundbreaking treaty on marine biodiversity. Adopted by the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, the Agreement under the United Nations Convention on the Law of the Sea on conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ), popularly known as the Treaty of the High Seas, establishes regulations to protect biodiversity in waters beyond national boundaries. It is the first-ever legally binding agreement governing the high seas. By establishing a framework for protecting and sustainable use of marine resources beyond national boundaries, the treaty addresses a critical gap in global governance. Moreover, the treaty highlights the significance of multilateralism in addressing global challenges amidst growing geopolitical contestations and unilateral policies across the globe.

    Background and Negotiations

    The negotiations for the Treaty of the High Seas have a lengthy history. It began in 2004 with establishing of an ad hoc open-ended informal working group by the UN General Assembly to examine the conservation and sustainable utilisation of marine biological diversity in areas beyond national jurisdiction.1 The working group's mandates were to address the environmental impacts of human activities on marine biodiversity beyond national jurisdiction, promote coordination and cooperation among states and intergovernmental organisations for the conservation and management of marine biodiversity, examine area-based management tools, and propose solutions for any governance or regulatory gaps in the legal frameworks related to marine biodiversity.2

    From 2005 to 2011, the Working Group met several times and in 2011, it adopted, by consensus, "a set of recommendations to initiate a process on the legal framework for the conservation and sustainable use of BBNJ.3 The subsequent meetings discussed creating an international instrument under the UN Convention for the Law of the Sea (UNCLOS). As a result, in 2015, the group agreed on recommendations for the 69th session of the UN General Assembly. The most important recommendations were developing a new legally binding instrument on BBNJ under UNCLOS and initiating negotiations for its creation.4 In the same year, a Preparatory Ccommittee was formed based on the group's recommendations, leading to the proposal of a legally binding instrument.5 This proposal culminated in the unanimous passing of Resolution 72/249 by the UN General Assembly on 24 December 2017.6 The resolution called for an Intergovernmental Conference (IGC) to negotiate a new international treaty under the UNCLOS.

    In accordance with the resolution, UN convened four IGC sessions, in September 2018, March 2019, August 2019 and March 2022. The key elements of negotiations were marine genetic resources, area-based management tools, environmental impact assessments, and capacity building with the transfer of marine technology.7 Initially, delegations had been expected to conclude treaty negotiations at IGC-4. However, some of the contentious issues necessitated an additional session.8

    After almost 20 years of discussions and five years of negotiations, Member States reached an agreement on 4 March 2023. At the end of that meeting, the Conference also decided to resume later to adopt the Agreement. In this connection, in its decision 77/556 of 18 April  2023, the General Assembly requested the Secretary-General to convene a further conference session on 19 and 20 June 2023.9 On 19 June 2023, the Conference adopted, by consensus, the Agreement under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

    Major Principles and Provisions of the Treaty

    The High Seas Treaty aims to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction through effective implementation of the UNCLOS and enhanced international cooperation. The Treaty is based on two fundamental principles. The first is the freedom of the high seas, in line with Article 87 of the UNCLOS.10 Second, the legal responsibility of the states to act in the common interests of all humanity to protect and preserve biodiversity outside their national waters. The other key principles include the polluter pays principle, fair benefit-sharing from marine resources, precautionary measures, ecosystem-based management, and the inclusion of indigenous knowledge and rights.11

    The Treaty also addresses perceived gaps in UNCLOS, particularly in four main areas—collecting and sharing marine genetic resources; area-based management tools; Environmental impact assessments; Capacity-building and technology transfer. For instance, collecting marine genetic resources has largely been unregulated in the high seas and deep seabed. The Treaty regulates the utilisation of marine genetic resources in the high seas and deep seabed, promoting the best interest of nations and the collective benefit of humanity. Through an established mechanism, it ensures fair and equitable sharing of benefits, including scientific data and financial gains. It aims to establish a multilateral benefit-sharing mechanism, including a global fund.12

    Similarly, the Treaty allows States to establish "area-based management tools" in the high seas and deep seabed, including "marine protected areas" with restricted activities. Area-based management tools in the Treaty serve as key structures for protecting the marine environment beyond national boundaries while considering food security, socioeconomic objectives, and cultural values. Previously, global mechanisms for such tools were absent, and regulation was limited to smaller ocean areas and specific sectors. However, States can now implement larger-scale, legally binding, and multi-sectoral area-based management tools under the Treaty.13 Furthermore, it also permits the signatories to adopt measures in emergencies, including natural or human-caused disasters.14

    Environmental impact assessment provisions in the Treaty enable reviewing environmentally harmful and polluting projects outside and inside national boundaries. These provisions necessitate pre-authorisation assessments to gauge the potential effects of developmental activities. For instance, Article 28 of the Treaty says, "Parties shall ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control that take place in areas beyond national jurisdiction are assessed as set out in the Treaty before they are authorized."15

    The Treaty mandates the preparation of an environmental impact assessment report, encompassing various elements such as a description of the planned activity, results of the scoping exercise, baseline assessment of the marine environment, potential impacts, prevention and mitigation measures, uncertainties and knowledge gaps, public consultation process, consideration of alternatives, and follow-up actions.16 The Treaty also outlines a comprehensive four-stage process for conducting EIAs, including screening, scoping, impact assessment and evaluation, and prevention, mitigation, and management of potential adverse effects.17

    The Treaty includes significant provisions on capacity-building and marine technology transfer. It emphasises State cooperation, especially in assisting developing countries to achieve the Treaty's objectives through capacity-building, technology transfer, and private-sector partnerships.18 It also promotes capacity building and technology transfer through the sharing and utilisation of data, information, knowledge, and research results, information dissemination and awareness-raising, infrastructure development and enhancement, institutional capacity strengthening, resource capability enhancement, technology transfer, development and sharing of manuals, guidelines, and standards, and capacity building for effective monitoring and control.19

    A dedicated fund to support developing countries, financed through contributions from States and financial gains derived from exploiting marine genetic resources is another significant development in the Treaty.20 During the negotiations, this was one of the key contentious issues and it is important to note that despite facing strong opposition, developing States successfully established this critical financial assistance mechanism in the Treaty.

    These provisions enable the Treaty to actively contribute to marine biodiversity conservation and sustainable utilisation of resources by coordinating and strengthening cooperation among various legal instruments, frameworks, and international bodies. The treaty addresses the triple crises of climate change, biodiversity loss, and pollution, recognising the ocean's vital role in the economy and climate regulation. Moreover, the Treaty aligns with the objectives of the 2030 Agenda for Sustainable Development and the Kunming-Montreal Global Framework for Biodiversity. The key priority for the UN at present is the ratification of the Treaty by all parties. To bring the high seas treaty into effect, a minimum of 60 countries must ratify it. The treaty is expected to be implemented before the June 2025 United Nations Ocean Conference in Nice, France.21

    Victory of Multilateralism?

    The signing and subsequent adoption of the Treaty represent a significant triumph for multilateralism, instilling hope during a period of global uncertainty and fragmented politics. The Treaty is expected to contribute to the revival of ailing multilateralism primarily in two ways. First, it underscores the effectiveness of multilateral cooperation in attaining shared goals and prosperity. Despite the challenges faced by global cooperation and the prevailing backlash against multilateralism, the successful collaboration on this marine instrument stands as a remarkable accomplishment. Negotiators showcased determination and compromise, delivering relief to developing nations and embracing mandatory benefit-sharing provisions.

    Second, the Treaty helps to overcome the trust, legitimacy and utility crises of multilateralism. The adoption of the Treaty revitalises faith in global cooperation and multilateralism and reaffirms the UN's capacity to unite nations towards common objectives. It once again underscores that multilateralism matters in global politics. In short, the Treaty of the High Seas is a poignant reminder of multilateralism's importance in global politics.

    Furthermore, the Treaty serve as a significant morale boost for India’s G20 presidency priorities. As the current chair of the G20, India is dedicated to revitalising global multilateralism through comprehensive reforms. At the G20, India strives to facilitate consensus on crucial global development and security matters while advancing global public goods. India can showcase the BBNJ Treaty negotiations, signing, and adoption as an exemplary model for future multilateral cooperation.

    Views expressed are of the author and do not necessarily reflect the views of the Manohar Parrikar IDSA or of the Government of India.