On Tuesday 18 June 2024, alongside subject matter experts, Human Rights at Sea International attended and contributed to the multi-disciplinary ‘High Seas Treaty’ event held at the UK National Oceanography Centre in Southampton.

 

Funded by the Norwegian-based Gard marine insurance protection and indemnity Club working with the University of Southampton Institute of Maritime Law (IML) and Public Policy Southampton, the day's event was part of wider knowledge-sharing to enable sustainable maritime development alongside critical thinking. The event provided access to a diverse series of expert perspectives around the development, drafting, negotiation and application of the new Treaty. 

 

Headlines

It was highlighted that enforcement would be critical for the Treaty to be effective and provide a deterrent effect. This is balanced against emerging competing commercial and national interests exploiting natural resources in areas of global commons. 

Further, impacts such as assurance of Marine Protected Areas (MPA), assurance of Marine Genetic Resources (MGR), the need for increased capacity building, and technological transfer between states were noted, as was the positive outcome of states signing upto the final agreed text following extensive negotiations. 

These impacts were set against emerging concerns of resource conservation beyond national jurisdiction such as deep-sea mining as well as carbon transport and storage, and the impact on the global shipping industry. 

 

Philosophy, Law and Application

Philosophical issues covered included just burden sharing, and the moral principles for bearing the costs of application of the Treaty within areas of national jurisdiction. This was set against the background of the stated biodiversity crisis (and the climate crisis nexus), alongside known failures of collective political responses to ratify.

Critically, the Treaty has currently only been signed (not ratified) by 90 countries meaning that they are not strictly bound by the signatures, other than not to act against the interests of the Treaty, or as the UK stated in its supporting text: “… does not undermine other relevant instruments, frameworks and global, regional, subregional and sectoral bodies.”[1]

The Treaty needs 60 ratifications (from a potential 193 UN Member States) to come into being, but to date only seven (7) states have ratified (Palau, Chile, Belize, Seychelles, Monaco, Mauritius, FSM).

This notes that Palau and Belize are publicly identified as falling under black flag and medium risk status under the Paris MoU. 

Noting that flag States will be required / have a duty to monitor ships, and that ships will need to maintain records - questions must be asked about the realities of and confidence in some flag States transparently exposing accidents, incidents and consequently triggering state and/or shipowner liabilities. 

The Treaty is one of three implementing treaties of the UN Convention on the Law of the Seas (UNCLOS) and provides an enabling platform for the 30x30 (protecting 30% of the world’s oceans by 2030) Marine Protected Areas (MPA) initiative.

 

Common Heritage of Mankind (CHM)

Treaty inclusion of the Common Heritage of Mankind principle was discussed by PhD candidate Hannah Witt (re: UNCLOS Art 136). It was, nonethless, challenged as to whether this is an overly optimistic and aspirationaluse of such a principle which requires effective enforcement mechanisms to have deterrent effect; a facet currently lacking. This was positioned against the clear non-equitable development and exploitation of marine resources often by entities and states in the global North at the expense of the global South. 

 

Shipping Industry Impact

The impact of the Treaty on ships was introduced by IML Director Professor Andrea Lista, interpreting the Treaty on the basis as a form of contract thereby considering liabilities, deficiencies and impacts. 

The key headline was that the Treaty has the ability to, and will most likely significantly impact, the shipping industry. 

This included prospective claims against shipowners for strict liability for ecological damage of marine resources on the High Seas for which shipowners will be liable for any damage caused by their vessels regardless of whether they were at fault or not. This noted that shipowners would be subject to the highest degree of liability with penalties based on the principle of proportionality.

 

Others

Pen Hadow, Arctic explorer and Executive Director of 90 North Foundation briefed on the consistently reducing levels of the polar ice in the international waters of the central Arctic Ocean. It is assessed that this will trigger increased vessel access to the area and associated exploitation of natural resources. The effective safeguarding of polar biodiversity also remains in question.

Megan Randles, Global Political Lead (Ocean Sanctuaries) Greenpeace International dialled-in from New York to outline the NGO position and reaction to the BBNJ development welcoming the Treaty and the opportunity to pursue MPAs and specific areas of interest across the world's oceans.

Additional detailed scientific contributions came from Muriel Rabone, Natural History Museum and the Deep-Ocean Stewardship Initiative, and Professor Lisa Levin of the Scripps Institution of Oceanography and the Deep-Ocean Stewardship Initiative.

 

Points
  1. The ‘High Seas Treaty’ or 'Treaty of the High Seas' is shortened nomenclature adopted by some organisations and entities for the ‘Agreement Under the United Nations Convention on The Law of The Sea On The Conservation And Sustainable Use Of Marine Biological Diversity Of Areas Beyond National Jurisdiction’ adopted on 19 June 2023, also known as the Marine Biodiversity Beyond National Jurisdiction (BBNJ) Treaty.
  2. The 2025 UN Oceans conference in Nice, France in June 2025[2], will focus on further ratifications and expansion of the impact of application of the Treaty.

 

Thanks

Thanks go to: Professor Andrea Lista (IML Director), Panel Chairs: Professor Werner Scholtz and Professor Damon Teagle, Rapporteurs Richard Coles and Nancy Cross and the IML events team with Natasha King.

 

Useful Links

ENDS.

 

Source: HRAS International

Reporting: David Hammond

Photo credits. Institute of Maritime Law, Southampton, UK

Contact: If you have any questions, please write to us at enquiries@hrasi.org.

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