An international deal to protect and sustainably use the ocean was hailed as “a triumph for multilateralism” and “a win for humanity” when it came into force on 17 January.
But the very rules-based international order on which the high seas treaty was built is “fading”, said Mark Carney, Canada’s prime minister, in Davos just three days later.
Keeping swathes of the ocean free from human meddling, such as fishing and mining, is a powerful way to shield marine life. And a major purpose of the high seas treaty is to provide a legal route for creating such protected areas in international waters.
But as excitement from the treaty’s entry into force cools, some are starting to question whether countries can navigate choppy geopolitical waters and actually use it to protect marine life.
“Everything that has been happening now has collapsed the trust in the international system,” says Solomon Sebuliba, a researcher on marine political ecology at the University of the Balearic Islands in Spain.
Geopolitics in general means countries “are walking on eggshells”, including with multilateral agreements such as the high seas treaty.
The deal to protect the ocean outside of national waters is commonly called the high seas treaty or the BBNJ agreement, which stands for biodiversity beyond national jurisdiction.
It creates a mechanism for creating protected areas that limit human activity. Previously there had been limited ability to create MPAs beyond the “exclusive economic zones” which extend 200 nautical miles from countries’ coastlines.
The treaty’s official title is the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction.
Fishing up trouble
Many of the details of how the treaty will work remain to be hammered out in forthcoming meetings such as the third and potentially final Preparatory Commission this week in New York.
Countries and conservation groups have already identified some high sea ecosystems they say need urgent protection. Among these are the waters covering the Salas y Gomez and Nazca ridges, a series of undersea mountains off the coast of Chile and Peru home to scores of endangered species.
Yet experts told Dialogue Earth it could easily take three years before the first protected area is created under the treaty. Getting there may not be smooth sailing.
Take fishing, one of humanity’s most significant marine activities. The high seas treaty contains a clause stating it cannot undermine existing laws and organisations or override existing fisheries rules.
Only about 5% of global fish catches comes from areas with no existing oversight, according to the UN’s Food and Agriculture Organization. Only in these unregulated gaps will the high seas treaty have clear water to shape fishing.
In other parts of the high seas, 17 regulatory bodies called Regional Fisheries Management Organisations (RFMOs) already oversee fishing, and other agreements are also in place in some areas.
“If you were to make anything that would interrupt with fisheries, you need all the RFMO’s [member] countries to be on board,” Sebuliba says. “If they are not on board, they could as well just say ‘we don’t care.’”
Most RFMOs operate by consensus, he adds. That means all member countries must support or at least not actively oppose a decision.
The same principle applies with the hotly contested issue of seabed mining. Here too an existing regulator, the International Seabed Authority (ISA), would need to cooperate to create protected areas that limit mining.
The ISA secretary-general Leticia Carvalho set out how the two regimes could work together at a recent annual meeting, including ensuring cooperation and communication between them. Delegates at the meeting generally supported such cooperation, while cautioning that actions taken under the high seas treaty should respect existing mandates.
Asked by Dialogue Earth what would happen if a marine protected area were to clash with mining regulations, she said it would be premature to comment because neither mining rules nor preparatory work for the high seas treaty are complete.
Lynda Goldsworthy, a researcher on high seas and Antarctic governance at the University of Tasmania, says the treaty is “another cog in that very important wheel” of ocean conservation.
But, she warns, “I’m just watching what [US President] Trump is doing to the world, and my normal optimistic ‘well, we’ll just get there’ is struggling a tad.”
“I just think the high seas treaty is underestimating the challenges in getting specific [protected area] proposals up.”
Lessons from the Antarctic
The frigid waters of the Antarctic provide an example of how gruelling it can be to negotiate a high seas marine reserve.
A body called the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR) is tasked with overseeing an international deal on conserving Antarctic life.
In the Southern Ocean, it has created two of the world’s largest protected areas. But in the nine years since the most recent reserve was established, the body has failed to designate any others, despite multiple proposals. Plans backed by the 25 other members repeatedly met with objections from Russia and China, under a system that requires full consensus to pass a decision.
Liz Karan, who led a campaign for the Pew Charitable Trusts to secure the high seas treaty, hopes lessons have been learned from the obstacles faced in the Antarctic. Unlike CCAMLR, the high seas treaty allows voting with a three-quarters majority to break deadlocks, she notes.
But dissenting nations have a loophole. They can opt out of rules on new protected areas – for example by continuing to fish in them even if fishing is banned – provided they show they are taking “alternative measures or approaches” to achieve the same effect. How this will work in practice is unclear.
“Nobody claimed it would be easy,” says Karan.
Hope for the high seas
Ocean advocates diverge on whether the treaty can get over the political hurdles ahead.
One who is positive is Liu Nengye, an expert on international environmental law at Singapore Management University.
He says the treaty can actually show the strength of multilateralism, pointing out that at least 85 countries have formally ratified and are legally bound to follow it.
He also notes that Carney’s speech in Davos spotlights the need for “middle powers” to create institutions and agreements to protect themselves against more aggressive major powers.
Liu says that would mean supporting more ocean protection: “Protecting the ocean is a matter of security for all nations. At the end of the day, if we don’t have a healthy marine system, if we don’t have a healthy ocean, we are all going to die.”