A landmark new treaty was agreed upon by 193 nations in New York, ending a 20-year wait to create a new framework to protect 30% of the seas by 2030.
In the late hours of March 4, 2023, 193 United Nations member States reached a historic deal for the ‘High Seas Treaty’, the first international law to provide protection to over 60% of our oceans that are beyond national jurisdiction. Until this point, these parts of the ocean had little to no protection against habitat destruction, pollution and overfishing. By creating the first legal framework to protect marine areas, the Treaty will be central to enforcing pledges made at the UN COP15 biodiversity conference in December to preserve a third of the sea and land by 2030, known as the '30 by 30 pledge'.
The High Seas Treaty, once ratified, will impose new obligations on States who will no doubt have to pass their own legislation to enforce the terms. Many ocean stakeholders will be impacted by the Treaty and individual State legislation, including private sector organisations from the shipping, fishing, mining, life sciences and pharmaceutical industries.
Key provisions include:
1. The collection of marine genetic resources
The Treaty will provide regulation for countries and organisations who can access and benefit from “marine genetic resources”, which includes, 'any marine genetic material or any material of marine plant, animal, microbial or other origin'. Such materials have immense scientific and commercial value given their potential use in cosmetics, food supplements and medicine.
The Treaty recognises that the benefits of marine genetic resources, “are in the interest of all states and for the benefit of all humanity”. To prevent unfair exploitation, States must:
Pay a proportion of their profits into a global fund to protect the high seas. The details in that regard will need to be worked out, but high-income countries active in marine genetic research will be required to contribute proportionately more to the fund.
Share scientific data arising from activities involving marine genetic resources (and their associated data e.g. DNA and other digital sequence data) in a fair and equitable way.
States will also be required to notify a centralised scientific body managed by the UN Secretariat at least six months prior to the collection of marine genetic resources.
This was by far the most debated section of the agreement with negotiators clashing over the issue of how to divide the rewards from marine resources, particularly newly discovered ones.
2. Establishment of Marine Protected Areas and other area-based management tools
Among the most celebrated provisions is the ability for States to propose and establish “area-based management tools” including Marine Protected Areas on the high seas and deep seabed. Prior to this Treaty, there was no international framework that would allow for such management tools to be created.
Area based management tools are spatial instruments for conservation and managing different forms of ocean use. For example, in a Marine Protected Area, certain activities like mining and fishing are prohibited or restricted.
Once the Treaty is ratified, States will be able to develop legally binding area based management tools on a larger-scale. States will however be required to work with “relevant stakeholders”, defined as “local communities and indigenous peoples”, “the scientific community” and the “private sector”. That is to ensure that all of the potential impacts of the proposed area based management tools are carefully considered. All new tools will have to respect the existing measures already in place from other international bodies including the International Maritime Organisation.
3. Capacity building and technology transfer
The Treaty contains many opportunities for research in ocean science, for building research capacity in low and middle income countries, and for improving the evidence available to decision makers. Marine technology, which includes the expertise and equipment that contributes to the conservation and sustainable use of marine biodiversity, will also need to be shared for the purpose of Treaty objectives.
A new fund will also be created to provide financial assistance to developing States so that they can implement the Treaty. Finance for the fund will be generated by annual contributions from States and a proportion of profits made from the exploitation of marine genetic resources. The fund is open to donations from the private sector. Unlocking this level of finance was one of the most hotly contested and key breakthroughs of the Treaty.
4. Environmental Impact Assessments (EIAs)
The Treaty contains 13 articles on EIAs, by far the most comprehensive part of the document. The articles set out the EIA objectives and provides guidelines and standards for how EIAs will be conducted, monitored, reviewed and governed by the States, as well as the Conference of the Parties, for areas beyond and within national state jurisdiction.
For the purposes of the Treaty, EIA’s have been defined as, “a process to identify and evaluate the potential impacts of an activity to inform decision-making”. Conducting an EIA under the Treaty is a four-stage process:
(1) Screening: This stage will determine whether a full EIA is needed or not. At the screening stage, States will need to provide a description of the planned activity, including its purpose, location, duration and intensity; and an initial analysis of the potential impacts, including consideration of cumulative impacts and, as appropriate, alternatives.
If the screening establishes that there are reasonable grounds for believing that they planned activity may cause “substantial pollution” or “significant and harmful changes to the marine environment”, a full EIA will be required. If that’s the case a State will need to complete the other three parts of the process, including:
(2) Scoping: The State must identify the key environmental, economic, social, cultural, and human health impacts, including any cumulative impacts, which covers “consequences of climate change, ocean acidification and related impacts.” States are required to use the “best available science” and “where available, relevant traditional knowledge” to assess these impacts.
(3) Impact assessment and evaluation: The State must ensure that the impacts of their planned activities, including cumulative impacts and impacts in areas within their national jurisdiction, are assessed and evaluated using the best available science and scientific information and, where available, relevant traditional knowledge of Indigenous Peoples and local communities.
(4) Prevention, mitigation and management of potential adverse effects: The state must also identify measures they can take to prevent, mitigate and manage potentially adverse effects of their planned activities.
The Treaty further requires the EIA to:
Include a public notification and consultation process
Be written up into a detailed EIA report, which must be made publicly available.
Made available to other States who must consider the contents before deciding whether to authorise the planned activity or not.
The Treaty also requires States to continuously monitor and periodically report on the environmental and associated impacts (e.g. economic, social, cultural etc) of the planned activity.
DJB’s Head of ESG Special Interest Group, Christopher Kerr says: “The significance of the High Seas Treaty cannot be overstated. At present, just 1% of international waters are protected and consequently our oceans have struggled with overfishing, habitat destruction and pollution issues. The proportion of protect areas should now increase – hopefully to 30% on or before 2030, and that will have a positive knock-on effect to our wider sustainability issues including land based biodiversity and climate change. This is a very positive starting point.”