Between Hope and Hurdles India signs High Seas Treaty: BBNJ Agreement

28-11-2024

India’s recent signing of the High Seas Treaty, officially known as the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement, is an important step in managing the world’s oceans.

This agreement was signed by India's External Affairs Minister, S Jaishankar, at the United Nations General Assembly in New York on September 25, 2024.
This treaty is considered a major effort under the UN Convention on the Law of the Sea (UNCLOS).
However, while the goals of the treaty are ambitious, there are challenges in ratification, geopolitical issues, and implementation.

The treaty aims to:

Protect marine life
Ensure fair sharing of marine resources
Control the environmental impact of human activities in areas beyond the control of any one country.

Main Challenges and Problems with the Treaty:

Ratification Challenges: The treaty needs 60 out of 104 signatories to ratify it before it can start being fully implemented.
1. The BBNJ Agreement has been signed by 104 countries. However, only 14 of them have ratified it so far. The treaty will only come into force when 60 ratifications are achieved.
This slow progress is because of:
1. A lack of agreement among countries, due to geopolitical and economic concerns.
2. Disputes over maritime boundaries, especially in sensitive areas like the South China Sea, where territorial claims overlap.
3. This makes it difficult to create Marine Protected Areas (MPAs) and delays the treaty’s progress.
Geopolitical Issues: Marine Protected Areas (MPAs) are central to the treaty’s plan to protect marine life by limiting harmful activities in these zones. However, creating MPAs is controversial:
1. Coastal countries worry that these areas could interfere with their control over their territory or economic interests.
2. Countries in Southeast Asia, for example, are divided over how MPAs might affect territorial claims and the livelihoods of coastal communities.
3. Nations bordering the Bay of Bengal worry that MPAs could limit their access to important marine resources, highlighting a conflict between conservation goals and economic needs.
Lack of Clear Implementation Guidelines: While the treaty sets out big goals, it doesn’t explain clearly how these goals should be achieved.
1. For instance, the treaty requires Environmental Impact Assessments (EIAs) for activities that might harm the high seas, but it doesn’t provide specific instructions on how these assessments should be carried out, checked, or enforced.
2. This lack of detail could lead to uneven application of the treaty, especially in countries that do not have strong systems to carry out these assessments.
The treaty says that profits from using marine genetic resources (materials found in the high seas) should be shared fairly through a global fund.
But, without strong accountability measures, wealthier countries might not report their activities correctly or might control the benefits for themselves.
This could leave poorer countries behind and make global governance of the oceans more unfair.
Risk of Conflicting with Other Agreements: The BBNJ Agreement could conflict with other international agreements, such as the Convention on Biological Diversity (CBD).
This could lead to overlapping rules, making it harder for countries to follow both sets of guidelines.
Smaller nations might struggle to navigate these competing legal systems, adding to the complexity of following international laws.
Capacity-Building Gaps: While the treaty talks about the need for fair partnerships in ocean science, it does not make clear commitments to ensure that poorer countries receive the technical and financial help they need to participate fully.
This could deepen the inequality between richer and poorer countries, as many poorer nations may lack the resources to fully engage in the treaty.

Other Key Issues in the High Seas Treaty

The treaty only focuses on the high seas but ignores how marine ecosystems are connected across Exclusive Economic Zones (EEZs), which are areas where countries have rights to marine resources.
Pollution, overfishing, and habitat destruction in EEZs often affect the high seas, so focusing only on the high seas risks undermining the treaty’s broader conservation goals.
The treaty requires EIAs for planned activities, but it does not address the ongoing environmental damage caused by activities like oil and gas exploration.
Coastal countries might not be willing to accept international reviews of their EIAs, weakening the treaty’s enforcement ability, especially in regions where local legal systems conflict with international standards.

Moving Towards Better Ocean Management

Addressing Key Gaps

For the treaty to succeed, its political and structural issues must be addressed:

Combining high-seas and coastal rules to consider the connection between different marine areas.
Coastal countries, especially in the Global South, need incentives to align their local laws with international standards.
Richer countries must commit to providing technical and financial support to ensure fair implementation of the treaty.

A Unified International Effort

To achieve the treaty’s goals, there needs to be a global commitment to:

Reach agreement on tough issues, like MPAs and the use of marine genetic resources.
Develop strong mechanisms to ensure countries follow the rules and that the treaty is enforced.

Benefits for India:

Allows India to enhance its strategic presence in areas beyond its Exclusive Economic Zone (EEZ).
Provides shared monetary benefits to India.
Further strengthens India's marine conservation efforts and collaborations.
Opens new avenues for scientific research and development, access to samples, sequences, and information, capacity building, and technology transfer.

About UNCLOS:

The United Nations Convention on the Law of the Sea (UNCLOS) is an international treaty that aims to regulate the use of the world's oceans.
UNCLOS was adopted on December 10, 1982, and came into force on November 16, 1994.
It aims to protect the environmental protection of the seas, address maritime boundaries, rights to marine resources, and dispute resolution.
Establishes the International Seabed Authority to regulate mining and related activities on the ocean floor beyond national jurisdiction.
UNCLOS divides marine areas into five main zones, each with distinct legal status and jurisdictional rights for coastal states.
It is the only international convention that establishes a comprehensive framework for state jurisdiction in maritime spaces, covering sovereignty, rights, and responsibilities of coastal states and those navigating the oceans.
The convention plays a critical role in offshore governance by coastal states and regulating activities on the high seas.
UNCLOS is widely signed and ratified by most coastal countries, but its interpretation remains disputed, especially in regions like the South China Sea and the East China Sea.

Maritime Zones under UNCLOS

Baseline
1. Definition: The low-water line along the coast, recognized by the coastal state, from which the breadth of maritime zones is measured.
2. Significance: It is the reference point for measuring the boundaries of different maritime zones.
Internal Waters
1. Definition: Waters on the landward side of the baseline, such as bays, ports, inlets, rivers, and lakes connected to the sea.
2. Sovereignty: Coastal states have full sovereignty over their internal waters, similar to their sovereignty over land.
3. Innocent Passage: No right of innocent passage through internal waters. The innocent passage refers to the right of foreign vessels to pass through territorial waters as long as it is not prejudicial to the peace, order, or security of the coastal state. Coastal states have the right to suspend this passage if necessary.
Territorial Sea
1. Extent: The territorial sea extends up to 12 nautical miles (nm) from the baseline.
2. Nautical Mile: A nautical mile is equivalent to 1.1508 land miles or 1.85 kilometers.
3. Sovereignty: The coastal state has sovereignty over its territorial sea, including the seabed, subsoil, and airspace above.
4. Innocent Passage: Foreign ships are allowed innocent passage through the territorial sea, meaning they can pass through as long as their activities do not disturb peace or security. However, the coastal state may regulate or restrict such passage for national security or environmental reasons.
Contiguous Zone
1. Extent: The contiguous zone extends up to 24 nm from the baseline.
2. Purpose: Acts as a buffer zone between the territorial sea and the high seas.
3. Jurisdiction: Coastal states have the right to prevent and punish violations of customs, fiscal, immigration, and sanitary laws within the territorial sea and their territory.
4. Limitations: The coastal state's jurisdiction in the contiguous zone is limited to surface and seabed activities. There are no rights over airspace in this zone.
Exclusive Economic Zone (EEZ)
1. Extent: Each coastal state may claim an EEZ up to 200 nm from the baseline, beyond its territorial sea.
2. Sovereign Rights: The coastal state has sovereign rights for:
  - Exploring, exploiting, conserving, and managing natural resources (living and non-living) of the seabed and subsoil.
  - Energy production activities such as the generation of energy from water, currents, and wind.
3. Freedom of Navigation: The EEZ does not grant the coastal state rights to limit freedom of navigation or overflight within the zone, except in very specific circumstances.
4. Resource Management: While the coastal state has exclusive rights to resources, the EEZ does not affect international shipping or overflights.
High Seas
1. Definition: The areas of the ocean beyond the EEZ are considered the high seas.
2. Status: The high seas are regarded as "the common heritage of all mankind" and are beyond the jurisdiction of any one country.
3. Usage: States can conduct activities in the high seas as long as they are for peaceful purposes, including transit, marine scientific research, and undersea exploration.
4. Legal Status: No single nation has sovereignty over the high seas, and they are open to all states for peaceful activities.

Disputes and Controversies

Although UNCLOS has been widely ratified, its interpretation remains controversial in some maritime regions, especially:
1. South China Sea: Disputes over territorial claims and rights to resources, including the control of maritime zones, among multiple countries (China, the Philippines, Vietnam, etc.).
2. East China Sea: A similar dispute exists over territorial waters and island sovereignty, primarily between China and Japan.

Significance of UNCLOS

Legal Backbone for Maritime Governance: UNCLOS provides a comprehensive framework for managing both coastal and international waters, ensuring that maritime activities are conducted peacefully and sustainably.
Guidelines for State Jurisdiction: It outlines the rights and responsibilities of coastal states in their maritime zones and also regulates freedom of navigation and marine resource exploitation.
Conflict Prevention: UNCLOS helps manage maritime disputes by offering legal guidelines on resolving conflicts over territorial waters, marine resources, and navigation rights.
International Cooperation: UNCLOS promotes global cooperation in protecting marine environments, managing resources, and supporting marine scientific research.

Conclusion

The High Seas Treaty is a bold step to protect the oceans, which are shared by all nations. But for it to succeed, the gap between ambition and action needs to be closed. The treaty must overcome challenges related to implementation, geopolitical tensions, and enforcement. As marine ecosystems are under increasing stress, the treaty’s success will depend on global cooperation and shared responsibility to protect the oceans for future generations.