By Prof Upendra Baxi
The world is scarce of happy developments, and replete with evil and sinister situations. We know this full well even as we mourn the end of the first year of the Russian war against Ukraine. In this tragic backdrop, the recent conclusion of the Biodiversity Beyond National Jurisdiction Agreement Treaty of the High Seas (BBNJ) or High Seas Treaty, on March 5, 2023, is good news.
It is amazing but true that more than an estimated 60% of oceans have long been ignored in environmental regulations and only around 1% of the high seas are currently subject to conservation measures. BBNJ is an extraordinary normative achievement because of its multi-level international governance framework for marine biodiversity, amidst deep fissures marking the positions of developed countries pitted against developing and least developed countries.
India has been a valuable ally of BBNJ. As late as February 22, 2023, India urged the “UN Member Nations to stay dedicated to the conservation and preservation of the oceans and its biodiversity” and “supporting sustainable economic development and the well-being of coastal people under the United Nation’s Convention on the Law of Sea (UNCLOS)”.
The “ship has reached the shore” was the gleeful observation of the Conference chairwoman Rena Lee (Singapore) who announced at the UN headquarters in New York, this “unique” treaty marking an end of nearly two decades old rarely heard negotiations. In Singapore, she said: “We like to go on learning journeys, and this has been the learning journey of a lifetime. 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.”
UN Secretary-General António Guterres has acclaimed this achievement as a “victory for multilateralism and for global efforts to counter the destructive trends facing ocean health, now and for generations to come”. BBNJ has also been called the “once-in-a-generation opportunity to protect the oceans—a major win for biodiversity”. It also marks “a victory for the second global commons”—the first having been attained for global atmosphere by the Paris Climate Change Agreement in 2015. The Treaty aims to protect the high seas, beginning at a maximum of 200 nautical miles (370 km), away from the coastline and which are not under the jurisdiction of any state.
As the European Commissioner for the Environment, Oceans and Fisheries, Virginius Sinkevičius, said the agreement was a “historic moment for the ocean” and a “crucial step forward” for us and “generations to come”. Equally valid was the further assessment suggesting that this “strengthened multilateral cooperation” will constitute a “major asset” to implement the “goal for 30% ocean protection” and the fulfillment of four goals and 23 action-oriented targets finalised in Kunming-Montreal Global Biodiversity Framework (December 22, 2022).
The text of BBNJ is not yet fully in the public domain, but we fully know that it will include binding and voluntary measures that aim to better implement UNCLOS especially through “better cooperation and coordination of various stakeholders”. It also has the goal of ensuring “compatibility with existing roles and responsibilities of the various stakeholders” and to “advance scientific research, globally”.
Further, an important aspect of the Treaty, particularly for developing countries, is that it addresses “existing inequalities in sharing the benefits (including access) accrued from the organisms of areas beyond national jurisdiction”, as well as the results of basic and applied research, and monetary benefit-sharing associated with commercialisation from utilizing MGRs (marine genetic resources).
The Treaty also contemplates an authority to manage the conservation of ocean life and MGRs on the high seas and sustainable framework of objectives and procedures for conducting environmental impact assessments (EIA) for commercial activities in the oceans. Further, it aspires to “knit” together different regional treaties, for example, in protecting marine species such as dolphins, whales, sea turtles and many fish that “make long annual migrations, crossing national borders and the high seas”.
Such protection will assist not merely species conservation but also coastal biodiversity and economies, thus marking an important step forward for the livelihoods of coastal communities. Moreover, a legal framework for establishing vast marine protected areas (MPAs) against the loss of wildlife and sharing genetic resources of the high seas will mature over a period of time. Finally, a Conference of the Parties (COP) that meets periodically will enable, it is hoped, accountability on all issues of governance of oceanic biodiversity.
The high seas (exposed for long to exploitation and pollution due to commercial fishing, mining and pollution from chemicals and plastics) are at last assured of a new dawn of peace and prosperity through multi-level international regulation and oversight. Already, global powers have pledged billions of euros as initial funding.1
We may take only two, out of many, sticking points deliberated in the prolonged agreement—the issue of MGRs and environmental impact assessments (EIAs). Technology barriers in bio-prospecting in “remote and mysterious” typically unregulated areas of the high seas are well-known and will continue confronting the developing and least developed countries—a fact evidenced by ten developed countries (certain EU countries, Japan, Norway, Switzerland and the US) accounting for 90% of MGR patents in the high seas and the deep seabed (about 2/3 of the oceans). BBNJ now contains some form of CHH (common heritage of humankind) concept, providing that at least the “defined territorial areas and elements of humanity’s common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation state”.2 Developing the CHH principle will yield international institutions to manage MGRs activities and the harvest of a just regime benefitting all species and humankind. How may this principle foster new ways of MRG regulation from minerals to marine life-forms remains yet in the womb of the future.
The BBNJ negotiation has revealed some sharp disagreements on the public nature and scope of EIAs and review by the international community. Although apparently resolved now by the BBNJ, questions will long persist on the internationalisation of EIA principles; for example, the thresholds that “will waver according to measure—whether by an activity that may cause substantial pollution of or significant and harmful changes” (UNCLOS, Art. 206), or whether it is likely to “have more than a minor or transitory effect”. Further, how may one determine the “public”: who may wish to speak, and be heard, for example, on “behalf of nature”?
One may only hope that planetary citizens will remain more interested now in oceanic biodiversity and maintain a constant and true vigil on treaty cooperation, implementation and development. As we learn from the Paris Framework Agreement, the battle is won with the enunciation of core norms, but the war of conflicting interpretation of norms, and overdetailed regimes of rules, will continue for quite a while. Globally active citizens may well read various articles of the Treaty as a summoning series of invitations for socially responsible leadership rather than constituting formidable mountains of fait accompli.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1 The European Union promised €40 million euros to facilitate the ratification of the treaty and to its implementation. In total, “341 new commitments” worth nearly €18 billion were made at the conference, including nearly €5 billion from the United States.
2 Ríán Derrig, Memorandum on the Common Heritage of Mankind and Biodiversity Beyond National Jurisdiction (Part I), https://opiniojuris.org/2023/02/24/memorandum-on-the-common-heritage-of-mankind-and-biodiversity-beyond-national-jurisdiction-part-i/