The text of the treaty on the protection of the high seas, agreed by UN member states this weekend after very long negotiations, was made public on Monday. It provides tools for the “conservation and sustainable management of marine biodiversity beyond national jurisdiction”, i.e. more than half of the oceans.
Open sea and seabed
As mandated by the UN General Assembly in 2017 after more than a decade of deliberations, the treaty aims to conserve and sustainably use marine biodiversity “in the present and long term” of areas not subject to national jurisdiction. . A gigantic expanse that represents almost half of the planet and more than 60% of the oceans.
The text will apply, on the one hand, to the high seas, that is, to the part of the oceans outside the exclusive economic zones (EEZs) of states that extend a maximum of 200 nautical miles (370 km) to the sides. It will also cover the seabed and its subsoil outside national jurisdictions, referred to in the treaty as a “zone”.
In principle, this should allow the application of measures to fisheries and mining.
But the future Conference of the Parties (COP, the decision-making body that will bring together the signatory states) will have to deal, to enforce its decisions, with other global and regional organizations that today have power over parts of the ocean.
In particular, NGOs are wary of regional fisheries organizations and the International Seabed Authority, which is currently issuing contracts for mineral exploration in certain specific areas and may soon move into the exploitation phase.
Military activities are excluded from the scope of the treaty.
Marine Protected Areas
The symbolic instrument of the future treaty: marine protected areas, which today exist mainly in territorial waters.
The CC, at the suggestion of one or more states, may establish such reserves in unique, especially vulnerable or important areas for endangered species.
The key issue of the decision-making process was one of the hot spots of the negotiations.
Finally, as in other COPs, especially on climate, decisions are generally taken by consensus.
Failing that, the draft text introduces a 3/4 majority decision option to bypass country or small group blocking.
This decision will then be put to the vote of the COP, this time by a 2/3 majority, confirming that “all efforts to reach an agreement by consensus have been exhausted”.
The treaty does not specify how, in practice, to implement protective measures in these vast remote areas of land. Some experts rely on satellites to monitor and detect violations.
Each state is responsible for activities that are in any case under its jurisdiction, even on the high seas, for example, on a ship flying the flag of its country.
Marine genetic resources
Every state, maritime or not, and any legal entity under its jurisdiction, may organize collections of plants, animals or microbes on the high seas, the genetic material of which can then be used, including for commercial purposes, for example, by pharmaceutical companies hoping to discover miraculous molecules.
To ensure that developing countries that lack the funds to fund these costly research are not deprived of their share of the no-man’s pie, the treaty incorporates the principle of “fair and equitable” benefits.
The distribution of these future profits crystallized the tension. Ultimately, the text provides for the exchange of scientific resources (samples, genetic data on an “open access platform”, technology transfer to developing countries, etc.) and financial benefits.
The terms of the financial mechanism, which may include government contributions and commercial royalties, are yet to be established at the first COP. The latter may deviate from the consensus rule on this matter by deciding by a 3/4 majority.
Under the treaty, before allowing activities on the high seas under their jurisdiction or control, countries must first examine their potential impact on the marine environment.
The text also provides for such studies of the impact of activities carried out in national waters, if they are likely to significantly affect the high seas, at the initiative of States.
They would then have to publish those studies, and the Scientific and Technical Advisory Board, made up of experts chosen by the states, would be able to make the observations.
But, ultimately, the green light will not be given by the CC, but by the state that has power over an organization that wants to carry out this activity.
However, the treaty provides a mechanism for the transparency of these impact studies and requires the State concerned to ensure that it makes “all reasonable efforts” to prevent damage to the marine environment.
Ocean advocates emphasize that for a treaty to be effective, it must be “universal” with the support of the largest number of countries.
However, it may enter into force 120 days after the 60th accession or ratification of the treaty by States.