On 25 September 2023, Australia ratified the UN High Seas Biodiversity Treaty[1]. The high seas is an old seafaring phrase referring to the ocean beyond the boundaries of any one country. The high seas cover 60% of the earth’s surface of which, only 1% are currently protection.
Established under the UN Convention on the Law of the Sea (UNCLOS)[2], the Treaty aims to support a coordinated approach to conservation and sustainable use of marine biological diversity for areas beyond national jurisdictions.
Current legal arrangements broadly differentiate between international waters and areas within national jurisdictions.
There is commercial pressure to conduct deep-sea mining of the earth’s ocean floor, despite lack of understanding of deep-sea eco-systems, ocean currents and flora and fauna. Whilst oceans are well traversed on the surface, uncertainty, ignorance and partial knowledge (and perceptions) of the deep marine environment hamper decision-making about sustainable management, responsibilities and regulation[3].
There are also difficulties in protection and conservation of deep-sea eco-systems, along with practical issues associated with environmental monitoring of mining activity. The International Seabed Authority (ISA), that operates under UNCLOS, is tasked with the regulation, co-ordination and management of multiple mining activities in space and time, accounting for both the impacts of one activity on another, as well as any cumulative impacts on the region and over long-time scales. ISA has various legislative initiatives involving multiple protocols, relationship agreements and memoranda of understanding to regulate prospecting, exploration and exploitation of marine materials in the international seabed area, pursuant to its Mining Code. Critics view such regulation as fraught with problems[4]. Some regard flagship international agreements as a ‘vocabulary of virtue’. They identify ISA as encouraging ocean floor development into national waters where environmental hazard can be far greater.
In announcing Australia’s Treaty ratification, Minister Wong also announced that Australia would deliver $3M to the Office of the Pacific Ocean Commissioner over the next 3 years, to support Pacific countries to sign and ratify the Treaty.
Once in force, the Treaty will enable increased capacity building, with greater sharing of scientific knowledge and marine technology transfer, along with details of proposed high seas activities. The Treaty creates a framework to establish area-based management tools in the high seas, such as marine protected areas. The Treaty does not apply to fishing regulated under international law or fishing activities or fish taken under international law.
Dr Leonie Kelleher OAM
KELLEHERS AUSTRALIA PTY LTD
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[1] 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 A/CONF.232/2023/4 (Jun. 19, 2023); see also Draft 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. A/CONF.232/2019/6 (May 17, 2019).
[2] United Nations Convention on the Law of the Sea UN Doc. A/CONF.62/122 (Oct. 7, 1982), reprinted in 21 ILM 1261 (1982).
[3] Halfar, Jochen and Rodney M Fujita, ‘Precautionary management of deep-sea mining’ (March 2002) 26(2) Marine Policy, 103.
[4] For example, Halfar, Jochen and Rodney M Fujita, ‘Precautionary management of deep-sea mining’ (March 2002) 26(2) Marine Policy, 103; Stort, Cait, Deep Water, London Review of Books (LRB Blog, 2018) cited by Kelleher, Leonie, ‘The future of environmental law,’ Law Institute Journal (30 March 2019), 33.