3.2 The IMO and the High Seas Treaty
The Flag State of the vessel involved in shipping or other activities in ABNJ is logically a State holding jurisdiction or control over the (shipping) activity within the meaning of the High Seas Treaty.(1) See also Section 2.2 above. The environmental safety (and other) standards applicable to these vessels may be already governed by the international instruments adopted by the IMO.(2) Some conventions seek to include nearly all types of crafts within their scope, regardless of more specific uses, design and mobility features (eg art 2(7) of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships), while others adopt a more restrictive definition. See also Vaughan Lowe ‘Report on the interpretation of the term “ship” in the 1992 Civil Liability Convention (September 2011) written for the IOPC Funds, document IOPC/OCT11/4/4 <https://documentservices.iopcfunds.org/meeting-documents/>.
Obligations under the High Seas Treaty are directly addressed to the States Parties and not the IMO or other international organizations. However, the Treaty contains provisions relevant to the IMO as the ‘competent international organization’ under UNCLOS. Some of the issues addressed by the Treaty also fall within the IMO’s areas of work, notably with regard to ABMTs. Other issues appear to be in a ‘grey zone’ as they are regulated in UNCLOS and now also in the Treaty, but have only been addressed on a piecemeal basis in the IMO framework: this is the case with Environmental Impact Assessments (EIAs).(3) This article excludes analysis of some other IMO-relevant aspects of the High Seas Treaty, such as environmental impact assessments, clearing-house mechanisms, and capacity building and transfer. In any case, the role of the IMO in the international legal and governance framework to be established by the Treaty is crucial.
Generally, the High Seas Treaty is designed as a framework agreement, which is largely dependent on the existing international and sectoral frameworks and bodies for implementation. Starting from its general objective (Article 2), the Treaty emphasizes the need for the ‘effective implementation of the relevant provisions of [UNCLOS]’ and to ensure coherence with other existing frameworks through international cooperation and coordination.
During negotiations, it was proposed not to apply the High Seas Treaty to activities “subject to the regulation or supervision of specialized agencies of the United Nations or the programs instituted thereby” and “subject to the regulation or supervision by, or under the jurisdiction of, recognised global, regional, sub-regional or sectoral bodies, agreements, treaties or other binding agreements among States.”(4) See n 65 above. The proposal was not incorporated into the negotiated text, but shows stakeholders’ concern with possible conflicts between the framework (to be) established by the Treaty and the existing organizations.
To resolve possible tensions or conflicts between the measures to be adopted under the Treaty and the existing frameworks and bodies, Article 5 contains provisions on the relationship between the Treaty and UNCLOS, relevant legal instruments and frameworks, and relevant global, regional, sub-regional and sectoral bodies. Firstly, Article 5(1) states that “[t]his Agreement shall be interpreted and applied in the context of and in a manner consistent with the [UNCLOS]”. It also adds that ‘Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the [UNCLOS], including in respect of the [EEZ] and the continental shelf within and beyond 200 nautical miles.’ Thus, shipping on the high seas remains generally governed by the provisions of UNCLOS, including provisions on the freedoms of the high seas set out in Article 87 of UNCLOS. However, as explained earlier, Article 87 envisages that the freedom of the high seas is to be exercised ‘under the conditions laid down by [UNCLOS] and by other rules of international law’.(5) UNCLOS (n 2) Article 87(1). While the development of new rules to apply to the high seas is not incompatible as such with UNCLOS, it is important to avoid the adoption and application of provisions in a manner incompatible with globally accepted international frameworks, such as the IMO.
To tackle this issue, Article 5(2) envisages that the Treaty ‘shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies’ (author’s italics). This provision contains two important elements. Firstly, it seeks to preclude undermining the existing IMO’s instruments.(6) See generally Arne Langlet and Alice B.M. Vadrot, ‘Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex’ 2023(147) Marine Policy, 105372 <https://doi.org/10.1016/j.marpol.2022.105372>.
Secondly, it seeks to promote coherence and coordination with the IMO’s instruments. Rather than being a self-standing provision containing substantive rules governing States Parties, Article 4 is, in this author’s view, a provision which serves to clarify interpretation approaches of the High Seas Treaty and to prevent conflicts between the measures (to be adopted) under the Agreement and existing rules and principles under UNCLOS and IMO instruments. Thus, it is to be read in conjunction with other provisions of the Treaty, including those governing designation of the area-based management tools discussed further below.