- In recent decades it has become recognized that the high seas contain some of the planet’s most precious ecosystems.
- These ecosystems have been adversely impacted by different human activities, including shipping, through the cumulative effects of events such as ship strikes etc.
- Whilst the UN Convention on the Law of the Sea established a general obligation on member states to protect the marine environment and cooperate to that end.
The High Seas Treaty seeks to fill those gaps and put in place a framework for the protection of our oceans and the equitable sharing of their resources. Late in the evening in New York on 4 March 2023, after a marathon 36-hour final negotiation session, Rena Lee, the Conference Chair, announced that agreement had been reached on The Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) Treaty.
Historical Overview
Much like its grueling finalization, the BBNJ has a long history. It started in 2004 when the UN General Assembly established an ad hoc open-ended informal working group to study conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. In 2015 it established a preparatory committee which resulted in a recommendation to progress a legally binding instrument. In 2017 an intergovernmental conference was formed to commence development of the BBNJ. Five such conferences took place, the second being in two parts before the text of the BBNJ was finalized. Formal adoption is likely to be towards the end of 2023.
Although UNCLOS was adopted in 1982, it did not come into force until 1994. It has now been ratified by 167 states and the European Union. The United States is not a signatory. But non-signatories are bound by many of the provisions of UNCLOS as they are now generally accepted as reflecting customary international law, to which all states must adhere. Although the BBNJ is derivative of UNCLOS, signatories of UNCLOS are not automatically bound by the BBNJ.
Main Principles
The BBNJ applies to those areas of the oceans that lie outside of any nation’s exclusive economic zone (EEZ). EEZs extend 200 nautical miles (about 370 km) from the shore.
There are two overarching (and potentially competing) principles to the Treaty:
- The first is the freedom of the seas. This is a long-standing principle that underlies UNCLOS (Art. 87) by which any ship, regardless of its flag, is allowed to navigate the oceans freely and to fish, explore, conduct scientific research and other peaceful activities.
- The second is the common heritage of humankind. It provides that states bear a legal responsibility to act in the common interests of all humanity to protect and preserve biodiversity outside their national waters and not out of individual national or economic self-interest.
The general objective of the BBNJ is to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of UNCLOS and further international cooperation and coordination.
Relevance Of BBNJ
At this stage the BBNJ is of limited immediate relevance to marine and offshore insurers, but that should not stop thought being given to its future impact on their members and clients. The establishment of marine protected areas will result in greater environmental protections within those areas, including substance and noise pollution. Vessels may be required to avoid such areas, resulting in less direct sea passages, to steam at slower speeds, or will be subject to other restrictions when passing through them. They may give rise to different approaches to salvage when casualties occur in these areas, and to more extensive remedial clean-up activities.
The BBNJ introduces the obligation on states to consider undertaking environmental impact assessments in two instances: for projects within national jurisdiction that may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction; and also projects within such areas that are under the jurisdiction or control of member states. Whilst the BBNJ is not yet in force, and is unlikely to be for several years, its ratification will fill some important gaps in UNCLOS. States that have significant interest in resources beyond their EEZ, for example the United States, may choose to ratify the Treaty without having already ratified UNCLOS.
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Source: Gard
