3.1 Introduction
As noted earlier, the forthcoming international agreement on the conservation and sustainable use of marine biological diversity beyond national jurisdiction (hereinafter ‘The High Seas Treaty’ or ‘Agreement’) seeks ‘to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term.’(1) Cited in n 6, Article 2. This is to be accomplished ‘through effective implementation of the relevant provisions of the [UNCLOS] and further international cooperation and coordination.’(2) Article 2.
The High Seas Treaty contains 12 Parts: the Preamble and general provisions (Part I), marine genetic resources, including the fair and equitable sharing of benefits (II), measures such as area-based management tools, including marine protected areas (III), environmental impact assessments (IV), capacity-building and the transfer of marine technology (V). The High Seas Treaty also contains provisions on institutional arrangements (Part VI), financial resources and mechanism (Part VII), Implementation and compliance (VIII), Settlement of disputes (IX), a part on non-Parties (X), Good faith and abuse of rights (XI) and Final provisions (XII). Annex I contains indicative criteria for the identification of areas (for the purposes of ABMT provisions) and Annex II lists types of capacity-building and transfer of marine technology.
The High Seas Treaty may admittedly be criticized for leaving out some important issues pertaining to the protection of marine biodiversity and for relying too much on the existing and future cooperation frameworks. It does not generally seek to establish new substantive obligations for States, but rather strengthens and expands the duty of cooperation, while building on UNCLOS and international environmental law.(3) However, Treaty also includes ‘new’ obligations for shipping: e.g., provisions on environmental impact assessment (EIA) may have an effect of expanding flag States’ obligations with regard to EIAs. During negotiations, the IMO was critical of including such provisions without exceptions for shipping: see, e.g., <Presentation-informationsessionBBNJ-21-06-19.pptx (live.com)>. The adopted text articulates important principles and objectives of States’ cooperation in the Preamble and general provisions (Part I), as well as throughout the text. Notably, Article 7 says that Parties ‘shall be guided by’ several principles and approaches: some of those listed in this provision are ‘the polluter-pays principle’, the principle of the common heritage of humankind as set out in UNCLOS, freedoms of the high seas, the principle of equity and the fair and equitable sharing of benefits, the precautionary principle or precautionary approach (‘as appropriate’), and an ecosystem-based approach.(4) The analysis of the legal nature and effect of the principles set out in the Treaty and their implications for shipping are outside the scope of this article.
Importantly, the High Seas Treaty spells out the duty to cooperate, including with regard to marine genetic resources, and exercise due regard to the rights and duties of other States. It contains a number of provisions requiring States Parties to ensure that activity under their jurisdiction or control is carried out in conformity with its provisions.(5) The definition of an ‘activity under jurisdiction or control’ included in earlier versions (Article 1(2: ‘an activity over which a State has effective control or exercises jurisdiction’) was deleted from the final version adopted on 5 March 2023.
The High Seas Treaty applies to ‘areas beyond national jurisdiction’, i.e. the High Seas and the Area.(6) Article 1(2) and Article 3. According to UNCLOS Article 86, the High Seas are defined by way of determining the scope of application of Part VII, which governs ‘all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.’(7) Article 86 UNCLOS. The Area is defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ (Article 1(1) UNCLOS). The Area regime set out in Part XI governs all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules (Article 133), while living resources of the seabed and subsoil beyond the limits of national jurisdiction and living resources of the water column are governed by the High Seas regime.(8) It should be noted that States disagree on the legal regime governing the living resources of the Area. Developed countries strongly argue that MGRs are governed by the high seas regime, while developing countries consider that they are already included in the Common Heritage of Mankind principle: Vito De Lucia, ‘The Question of the Common Heritage of Mankind and the Negotiations towards a Global Treaty on Marine Biodiversity in Areas beyond National Jurisdiction: No End in Sight?’ [2020] 16 McGill J. Sust.Dev. L. 141, 144-145.
Does the High Seas Treaty apply to shipping? It does not contain lists of activities to which it applies, so, in principle, it encompasses all activities which may affect marine biological diversity of ABNJs.(9) However, a certain threshold is indicated with regard to the application of some obligations: see, e.g., Article 30 of Part IV (Environmental impact assessments) requires screening (only) when a planned activity may have more than a minor or transitory effect on the marine environment or the effects of the activity are unknown or poorly understood. It was proposed during negotiations to exclude activities undertaken or permitted by States to occur within their national jurisdiction, unless they pose significant risks to the ABNJ. It was also proposed to exclude activities listed in Article 87(1) Freedom of the High Seas, which include navigation.(10) See proposal by the International Chamber of Shipping, Textual proposals submitted by delegations by 20 February 2020, for consideration at the fourth session of the Intergovernmental conference (A/CONF.232/2020/3) <textual_proposals_compilation_article-by-article_-_15_april_2020.pdf (un.org)>, 34. In the end, only a ‘usual’ exception was included in the Treaty (Article 4) which envisages that it “does not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service.” This exception is supplemented by the requirement for States to adopt appropriate measures to ensure that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with the Agreement.(11) This mirrors Article 236 UNCLOS.
The Treaty lays down procedural and institutional provisions which, in this author’s view, may bring about important changes in the functioning and development of the international regime of the high seas. Notably, these provisions raise questions as to their relationship with well-established global frameworks, e.g., the IMO. As discussed further, the High Seas Treaty provisions are indeed relevant for the IMO competences and work. This article focuses on the provisions on area-based management tools (ABMTs) and examines the relationship with the competences vested into the IMO to adopt ABMTs for shipping.