4. The Treaty on the High Seas

March 21th, 2020

The high seas cover all areas not under national jurisdiction, meaning the portion of the oceans beyond the Exclusive Economic Zone (EEZ), which can extend up to 200 miles from the coast. The treaty on the high seas is a crucial step in the construction of international law as it will determine the future of 45% of the Earth's surface. It involves choosing the relationship between humanity and nature in spaces that no state has legitimacy to appropriate relative to others. The high seas are coveted for fishing, mineral resource extraction, and the genetic potential of biodiversity. It is a hub for exchanges, with 80% of bulk cargo transport occurring by sea, and telecommunication cables traversing the oceans. Fishing in the high seas is regulated by Regional Fisheries Management Organizations (RFMOs), focusing mainly on large migratory species such as tuna.

The treaty addresses three sensitive points:

Ownership of discoveries related to these resources (especially genetic). Fishing rights. Rights to exploit mineral resources.

Concerning genetic potential, the question is how to exploit discoveries without committing injustices. Companies and states capable of directing research in this direction will only do so if it gives them a competitive advantage, making sharing unlikely. However, France advocates for a principle of freedom of scientific research on the high seas, prohibiting any form of resource privatization. If sharing is imposed, who will invest? Does it require an international budget? This also implies training and development aid, as emphasized by Serge Segura, French Ambassador for the Oceans.

Regarding fishing, many experts, like Daniel Pauly, call for an outright ban on activities beyond the EEZ. This would turn the high seas into a sanctuary, ensuring the migration of relevant species. Profits from fishing in the EEZs would increase, and many injustices, such as foreign fishing near EEZ borders, would be avoided. However, international treaties only bind signatory countries, potentially compromising the effectiveness of such measures. Should Marine Protected Areas (MPAs) be created, considering that only the most stringent have proven effective?

What rules should be adopted for authorizing or refusing the exploitation of mineral resources in international waters? The proposal is to impose environmental impact assessments. Is this sufficient? Researcher Françoise Gaill suggests reworking the "avoid-compensate-reduce" rule applied in terrestrial environments for marine ecosystems and going further.

Finally, it is important to note the instability of the line that separates international and national waters for some states. When the concept of EEZ was created in Montego Bay in 1982, it was envisioned in terms of distance from the coasts. However, the international law of the sea convention also allows for the extension of these zones up to the edge of the continental shelf if it exceeds 200 nautical miles. Some countries seek to expand their EEZ, especially in the Arctic, where exploration work suggests significant deposits of gas, oil, and minerals. This could add 30 million km2 of continental shelf to the existing 120 million km2 of EEZ globally.

Many decisions are yet to be made concerning international maritime law. The objective of the treaty on the high seas is to propose a comprehensive legal framework to regulate human activities in these areas. The Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (commonly known as the "BBNJ Agreement"), under the auspices of the UN, is responsible for making these decisions. The fourth and final session, scheduled for March 23 to April 3 in New York, has just been postponed.

To be continued...