One year on, High Seas treaty in the shallows

Exactly one year ago today, the United Nation’s High Seas treaty was signed into existence, and hailed as the future of the conservation of the oceans. However, its early promise seems to have foundered in the shallows.

The High Seas treaty (full name: 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), while within the framework of the law of the seas, breaks past some of its orthodox legal assumptions. The absolute freedom of the high seas was a principle born in a time when the sea was seen as infinite and inexhaustible; try as humans might, no significant harm could be done to the sea itself, and any thought of conflict was purely concerned only with national interests inter se. Grotius never imagined a world of autonomous deep-sea mining, or of gigantic trawlers with catch measured in the thousands of tonnes.

Decades of free-for-all mechanised overfishing and pollution, together with anthropogenic climate events, have driven the oceans into a state of crisis. We now know the ocean’s resources to be finite and delicately balanced, and human activity there to be as dangerous as on land. It is estimated that 10% of all marine species are facing extinction. Treating the oceans as a free-for-all to be looted, instead of as a commons to be nurtured and preserved, has imperilled the health of the oceans and those communities which rely on it for survival. The extent to which human beings depend on the sea cannot be overstated--40% of the world’s population relies on fish and seafood as a major source of protein, and 10% for its livelihood.

These dangers have finally been recognised as serious enough to warrant immediate action. A broad agreement was reached at the Convention for Biodiversity’s CoP15 in Montreal in 2022 that by 2030, 30% of both land and ocean would be protected. This ambitious promise was catchily called 30x30, and the High Seas treaty was the first solid step towards meeting that promise.

The treaty contains four major features:

• a mechanism to declare marine protected areas where activities are restricted, aiming at protecting 30% of the oceans
• the equitable sharing of marine genetic resources, an as-yet unascertainable but promising wealth
• EIA mechanisms for activities that impact the oceans beyond national jurisdiction
• capacity building and technology transfer. Most conversations about the treaty have focused on the first two, and there are significant concerns about the workability of the genetic research, technology transfer and common fund provisions. Why for example, would developed nations be so free and willing with technology which may be in private hands? How will this regime interact with well-established patent laws?

Out of the 92 States that have signed the treaty, only eight have ratified it. It would need ratification by 60 to enter into force. Of these eight, the most globally significant countries to ratify the treaty have been Chile and Cuba. India made a statement on July 9, 2024 that it would sign and ratify the treaty, which if it did, would make it the first major world power to accede to the treaty. The accession of other major maritime countries seems to have been halted by its geopolitical and commercial implications, along with an increasing global discomfort with multilateralism. For example, observers say China is being held back by its interests in the disputed South China Sea. The decision-making process outlined in the treaty also treats nations big and small as equal, and for great maritime powers, this might be too discouraging to contemplate.

As a specific example, amongst other things, ratification of the treaty as India has committed to would require the overhaul of India’s domestic law on environmental impact assessments, contained in the frequently amended Environmental Impact Assessment (EIA) Notification of 2006. Our EIA law has long needed review to make it more effective, and successive amendments have only watered down the intended effect. Both screening and scoping thresholds will have to be significantly revised, and more industries brought under the purview of EIAs. Given that the activities in question could be taking place in territorial waters, in the exclusive economic zone (EEZ) --200 km from the shore--or on the high seas, the public participation invited must be broad enough to include civil society and other persons who have an interest in ensuring the environmental health of the oceans. The treaty also provides for an international review of EIA findings with potential objections from other State parties, and from India’s international track record, it would be surprising if such a provision would be acceptable. For example, the much-discussed Great Nicobar Development Project, which envisages an international container port, international airport, gas and solar plants, and two new cities, all on a small island in the middle of the Bay of Bengal, would possibly require an EIA in terms of the High Seas treaty as its effects would be felt in international waters as well. Would the Indian government, which is already dealing with so much criticism over this proposal, be willing to invite multilateral comment as well?

The pace of international lawmaking has always been slow, bullied as it is by the interests of powerful nations. It took 12 years for the UN Convention on the Law of the Seas to enter into force after meeting the requisite number of ratifications. The problem is that the oceans do not have 12 more years to spare before some of the damage they are suffering can be stemmed.

This article is authored by Satyajit Sarna, advocate, New Delhi.