Last week, the world woke up with the sensation that progress is definitely taking place within climate change and environment. News on the breakthrough on the protection of the oceans, reached at UN, seems like an awakening.
But in order to understand the changes, the implications and the grey zones of such an historical agreement we need, first, to explore the historical background on the matter.
A little bit of historical context
The High Seas Treaty is known as the first international agreement that has been carried out for the protection of the oceans. It could be surprising the fact that being the climate change one of the main concerns of XXI century, oceans were not protected yet in terms of biodiversity and environmental protection.
That could be explained through history. First and foremost, Law of the sea, as a discipline is very recent.
Since ancient times, the ocean was seen as a space of freedom, essential to trade and exchange, and therefore not very conducive to the development of legal rules. Just bringing the example of the first international maritime expeditions carried it out by Spaniards and Portuguese’s.
However, the development of marine technologies and maritime navigation, States gradually discovered the extent of the Ocean’s wealth so, they developed a rapid desire to increase their hold on maritime spaces. This was the beginning of the phenomenon known as “appropriation of the seas”.
From then until 1982, States, individually or collectively, attempted to draw up legal rules specific to the marine environment, trying to establish distinct zones in which to exercise their jurisdiction, with no success, as it can be drawn from the lesson of 1930 at the Hague conference or in 1958 in Geneva, where he States were unable to agree on the width of the territorial sea. Not only that, but new difficulties arose. For example, the new states that emerged from the waves of decolonisation did not feel bound by what had been agreed in these treaties.
Hereinafter, in the 20th century new concerns that affected the law of the sea emerged. Problems such as the overexploitation, climate change or the preservation of biodiversity made that the issue of the preservation of resources and the protection of the marine environment was enshrined and developed in the Convention on the Law of the Sea.
But the fact is that all of this was insufficient and problems kept growing.
Why it was necessary?
Last report from WEF, “Global risks 2023” determines that 6 out of 10 the major global risk for the next few years are related with the loss of biodiversity, noteworthy, the one of the oceans.
Oceans represent two thirds of the oceanic surface and almost the half of the planet. They are home for 10 million species, and they are in charge of the remineralisation of organic substances as well as the absorption of a great part of CO2. They also produce almost the half of oxygen we breath and they are a great repository for renewable energies.
And yet, less than 3% are protected. They are experiencing serious problems facing climate change and they lack from important legal boundaries.
For all that reasons, in 2021 it started Oceanic Sciences Decade for Sustainable development declared by UN. Numerous programmes, research and initiatives will be developed within it in an attempt to conquer a sustainable governance of oceans. But certain kind of actions needed for a real and binding element, and even more, in a very fragmented world order. That is the very reason why negotiations for the High Seas Treaty started.
Main objectives and changes of the treaty
Once we have gone through the context and main problems within oceans, we can explain what High Seas Treaty implies for the international law and world economic, social and political order.
Firstly, it is true that the report constitutes an advance at important questions as the creation of a protection network for marine areas that should comprise the 30% of total ocean.
Furthermore, it implies an important advance towards genetic resources. In the current context, genetic resources of oceans are not regulated. They are very important for the development of certain kinds of drugs and pharmaceutical patents, but the fact is that 70% of the marine genetic patents belong to only three states.
The treaty seeks to regulate this question for the first time trying to liberalize some of these patents.
It also includes the so-called technique of Environmental Impact Assessment developed firs within the EU. That way, all the economic activities that could have an impact on the oceans should be submitted to the assessment.
On the contrary and despite the advances acknowledged, there are still grey zones.
What happens with new activities such as the oceanic mining? It is a growing activity since resources for new technologies tools are vital in the digitalisation era.
What happens with governance? Where the institutions are? The treaty does not contemplate a real reinforcement of governance, which actually is the real base to advance towards its protection.
Finally, where are the funds? Financial support is not enough within the treaty discussions. Money is essential in order to carry out actions and plans towards protection, and especially for those countries that needed the most.
All in all, despite the fact that the agreement is an important advance, we just have initiate the route. We need not to lose direction and to take advantage of the winds that push the way.