‘High Seas Treaty’ name is inaccurate and should center biodiversity (commentary)

In later 2023, the international community concluded negotiations for a new ocean governance treaty, formally called the “Agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.” Throughout the negotiations, the treaty was referred to as the “BBNJ” agreement (or treaty, or instrument), which stands for “biodiversity beyond national jurisdiction.” Indeed, the UN website hosting key information about the negotiations and subsequent agreement is www.un.org/bbnj.

But as the negotiations wound down, a rebranding effort began, which dubbed the new agreement the ‘High Seas Treaty.’ This new name is supposed to be pithier and more accessible to the public. It can now be found in academic articles, popular media, and government communications. We argue that this choice – calling it the ‘High Seas Treaty’ – is significant, and a mistake.

That name has three basic problems: (1) it misrepresents the scope of the BBNJ agreement, ignoring the international seabed (Area); (2) it elevates the freedom of the seas principle to the detriment of the common heritage of humankind principle; and (3) it excludes the focus of the agreement which is biodiversity, and specifically reversing biodiversity loss. These problems will grow in significance as we enter the implementation phase of the treaty.

‘High Seas Treaty’ is inaccurate

The BBNJ agreement applies to the Areas Beyond National Jurisdiction (ABNJ), which means both the high seas and the Area as defined under UNCLOS. The high seas are the sea surface and water column beyond the Exclusive Economic Zone (EEZ), and the Area is the seafloor and subsoil beyond the continental shelf. The high seas and Area are not co-extensive – the limit of the EEZ is 200 nautical miles, but coastal states can extend their continental shelf beyond 200 nautical miles in certain circumstances (and over 80 states have done or are doing so). The way the high seas and the Area are managed is very different. Activities in the high seas are governed by a variety of regional and sectoral organizations, whereas activities in the Area are governed by the International Seabed Authority.

Most importantly, different governance principles underlie the high seas and the Area. The high seas regime reflects the open access ‘freedom of the seas’ principle, with a history that can be traced back to at least the 1600s. This principle favors maritime ‘users,’ who have clear ‘freedoms’ (rights) to access, exploit, and otherwise use high seas resources. In contrast, the Area reflects the more progressive ‘common heritage of humankind’ principle, which declares that the Area and its resources belong to all humanity. When ‘common heritage’ resources are used, the benefits should be equitably shared. This principle can be traced back to the late 1960s and reflects the goals and interests of developing and land-locked countries in the more equitable and sustainable utilization of ocean resources. Its central presence in UNCLOS was a major victory for the Group of 77 (G77) coalition.

The BBNJ agreement contains both principles. Article 7 on ‘General principles and approaches´ includes the “[t]he principle of the common heritage of humankind” (supported by the 134 members of the G77 as well as Mexico, Turkey, Palau, and others). The addition of “[t]he freedom of marine scientific research, together with other freedoms of the high seas” was proposed by developed countries in the overtime hours of the final negotiation session, despite having never been present in earlier drafts. The applicability of these two principles to the BBNJ issue areas, and especially to Marine Genetic Resources, was contentious throughout the negotiations, and will likely continue to be a source of tension in the interpretation and implementation of the agreement. The pressure to finalize a treaty text revealed the depth of commitment on both sides. In the end, compromise was reached such that both principles were included in the agreement.

But the name ‘High Seas Treaty’ implies that the treaty is about the high seas only, and therefore reflective of the ‘freedom of the seas’ principle. This is inaccurate – it wholly overlooks the Area – and creates bias in how we understand the treaty.

‘High Seas Treaty’ biases interpretation, shapes implementation

Treaties are formal legal agreements composed of written text. Like all United Nations agreements, the BBNJ treaty exists in the six official languages of the UN. Its words are sometimes precise, sometimes ambiguous, depending on where consensus could be found.

What a treaty means is a more complicated than just what the treaty says. Essentially, states decide what the words of treaties mean as they implement them. Implementation includes domestication (translating treaties into domestic legal and regulatory frameworks), the creation and operation of treaty bodies, and changes in state behavior. Implementation is critical to effectiveness – it determines whether and how a treaty works. Sometimes, states disagree about the requirements of implementation. They may ask a court or tribunal for an authoritative legal interpretation of treaty articles. The Vienna Convention on the Law of Treaties lays out the various sources that can be used to shape treaty interpretation, including “the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose” (Article 31(1)). The relevant “context” includes subsequent “agreement” and subsequent “practice” regarding interpretation and application (Article 31(3)). In other words, what states start to think or do about the meaning of a treaty shapes to its formal interpretation by courts and tribunals.

The BBNJ agreement contains many ambiguities, none more so than the applicability of the ‘common heritage’ and ‘freedom of the seas’ principles. The issue area most impacted is marine genetic resources (MGRs). Historically, the application of ‘common heritage’ to resources in the Area (minerals) was understood to involve monetary benefits upon commercialization. Indeed, the International Seabed Authority is actively working on the mechanism for such benefit sharing. For MGRs, the question of benefit sharing – when it should happen and what it should include – was especially contentious. Developed states worried that ‘common heritage’ might go too far and impinge upon ‘freedoms of the seas’ associated with resource privatization. The G77 and other developing states preferred a more precise and obligatory set of rules for benefit sharing.

The final treaty text contains two areas of fundamental ambiguity, where interpretation and implementation really matter. First, the final treaty text contains no article on intellectual property rights. This is concerning because of the inherent clash between patents and shared access, which will require legal interpretations across treaties. The idea that the BBNJ “should not undermine” existing agreements, inscribed in the BBNJ text, was ambiguous from its inception, and negotiations d­id not produce a consensus on its specific meaning. Second, the final treaty text assigns key decisions about monetary benefit sharing to institutions that have yet to be established – the Conference of Parties (COP) and the Access and Benefit Sharing committee. Much remains to be determined, decided, and delivered about the modalities of benefit sharing from MGRs.

Given this, clarity about the principles that underlie the BBNJ treaty is paramount. If ‘freedom of the seas’ is prioritized, implementation practices (and even formal interpretations) are more likely to favor the intellectual property of private users over equitable benefit sharing, contradicting the core elements of ‘common heritage.’

See related: E.U. expresses disapproval of Norway’s deep-sea mining plans

Better options

Calling it the High Seas Treaty was a choice, but there are better options, which are more accurate and do not bias the interpretation of the agreement. Although we do not take a stance on which option is best, we argue that the shorthand should contain the word biodiversity. The driving ambition of the BBNJ agreement is to reverse biodiversity loss. The ‘biodiversity paradigm’ is an advancement on the single-species approach contained in UNCLOS (from the 1980s), and the ecosystem-based management approach contained in the Fish Stocks Agreement (from the 1990s). Studies from Chile, Norway, Scotland, and France suggest that the public understands the term ‘biodiversity.’

Some have suggested that the problem with BBNJ is the “Beyond National Jurisdiction” phrase, which is too technical. We agree that public understanding matters, but the naming of a treaty is an opportunity for public education, especially during the U.N. Decade of Ocean Science for Sustainable Development (2021-2030). In this era of climate change and rapid technological advancement, it is vital that the global public understand the need for cooperative governance in the global commons. Seabed mining is making headlines globally, suggesting increased awareness of these spaces. Plus, ‘BBNJ’ is quite catchy.

If one still opposes BBNJ, we argue that it would be better to be less specific rather than inaccurate. Options include the Ocean Commons Biodiversity Treaty, or the Deep and Open Ocean Biodiversity Treaty, or just the Ocean Biodiversity Treaty. The last option is just as pithy as ‘High Seas Treaty,’ but better affirms the values and purpose of the agreement. Clearly, rebranding the BBNJ as the ‘Ocean Common Heritage Treaty’ would not be acceptable to developed countries, for the same reason that ‘High Seas Treaty’ should not be accepted – it misrepresents the treaty and biases its interpretation.

It is not too late to re-think, re-frame, and name the BBNJ agreement more equitably and accurately. The term ‘High Seas Treaty’ is not ubiquitous. We urge those who are spending time and energy on the agreement to think carefully about the choices we make, and who they stand to benefit.

Elizabeth Mendenhall is an Associate Professor in the Department of Marine Affairs at the University of Rhode Island and has published extensively on the BBNJ negotiations. Fuad Bateh is a lawyer and consultant who specializes in ocean governance issues, and during 2019 he led negotiations on behalf of the Chair of the Group of 77 at the BBNJ negotiations.

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Citations:

Cerda, Claudia, and Iñigo Bidegain. “Spectrum of Concepts Associated with the Term ‘Biodiversity’: A Case Study in a Biodiversity Hotspot in South America.” Environmental Monitoring and Assessment 190, no. 4 (April 2018): 207. https://doi.org/10.1007/s10661-018-6588-4.

Fischer, Anke, and Juliette C. Young. “Understanding Mental Constructs of Biodiversity: Implications for Biodiversity Management and Conservation.” Biological Conservation 136, no. 2 (April 2007): 271–82. https://doi.org/10.1016/j.biocon.2006.11.024.

Kaltenborn, Bjørn P., Vegard Gundersen, Erik Stange, Dagmar Hagen, and Ketil Skogen. “Public Perceptions of Biodiversity in Norway: From Recognition to Stewardship?” Norsk Geografisk Tidsskrift – Norwegian Journal of Geography 70, no. 1 (January 2016): 54–61. https://doi.org/10.1080/00291951.2015.1114518.

Levé, Marine, Agathe Colléony, Pauline Conversy, Ana-Cristina Torres, Minh-Xuan Truong, Carole Vuillot, and Anne-Caroline Prévot. “Convergences and Divergences in Understanding the Word Biodiversity among Citizens: A French Case Study.” Biological Conservation 236 (August 2019): 332–39. https://doi.org/10.1016/j.biocon.2019.05.021.