UN Agreement for the Protection of the Ocean
That's what it's about
The United Nations Convention on the Law of the Sea (UNCLOS) was adopted in 1982 and entered into force in 1994. It regulates all uses of the seas and provides the legal framework for international ocean governance. UNCLOS contains a special section on the high seas, but it prescribes only general protective measures. This is partly because the diversity of species and habitats of the high seas and their need for protection only became known after UNCLOS was concluded.
There are some international conventions that address individual activities on the high seas globally. For example, maritime navigation is regulated by the International Maritime Organization, and high seas fisheries are regulated by the Food and Agriculture Organization of the United Nations and the United Nations Fish Stock Agreement. In addition to these sectoral agreements, there are regional multilateral agreements whose scope extends to individual high seas areas. These include, for example, some regional marine conservation agreements such as OSPAR or regional fisheries organizations.
At the beginning of the Biodiversity Beyond National Jurisdiction (BBNJ) process, it was discussed for many years whether the protection of high seas biodiversity could be achieved through an extension of existing conventions or through a completely new agreement. The decision was made in 2011 in favor of the latter, as it became clear that expanding the mandates of existing agreements would have been very time-consuming and labor-intensive, and ultimately would not have provided the desired comprehensive protection of high seas biodiversity.
Entry into force
The official text of the new agreement has been available for signing at the United Nations since September 20, 2023. On the very first day, 68 states, including the Federal Republic of Germany, signed the new agreement. The joint press release of the Federal Foreign Office and the Federal Ministry for the Environment on the signing of the High Seas Convention is available on the website of the Federal Foreign Office. The progress of signatures by further states can be followed on treaties.un.org. The NGO group "High Seas Alliance" has created a world map on which the signatures can also be tracked geographically.
By signing, a state does not yet accept any positive legal obligations under the treaty. Rather, it expresses its intention to initiate the national ratification process and its willingness to be bound by the treaty at a later date.
The ratification process varies from state to state. In Germany, an implementation law must be drafted as part of the ratification process, which requires the participation of the Bundestag. Upon completion of the national ratification process, an official instrument is prepared, signed by the President of the Federal Republic of Germany, and then officially deposited with the United Nations in New York. When the instruments of ratification of 60 states have been received, the new treaty will enters into force and becomes binding on those states.
Changes brought about by the agreement
After 20 years of international negotiations, the protection of high seas biodiversity has found a home. The new agreement will allow legally binding guidelines and measures to be developed and implemented, with implications for other conventions and bodies with a mandate for the high seas. The new convention includes numerous reporting and notification requirements on activities on the high seas that member states will have to comply with in the future. This information would then be stored and made available in a clearing house mechanism. This would for the first time provide an overview of who is doing what, where, and how on the high seas.
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'Areas beyond national jurisdiction', 'high seas' or 'areas?': What is the difference?
Under the Law of the Sea Convention, the term 'high seas' includes only the water body of international waters. The seabed and subsoil in 'areas beyond national jurisdiction' is referred to as 'area'.
Establishment of new high seas protected areas
Currently, about 8% of national waters are protected, but only 1% of the high seas. The first high seas protected area was established in 2009 by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) south of the sub-Antarctic South Orkney Islands, shortly followed by protected areas in the Atlantic under OSPAR. Within the framework of the United Nations Convention on Biological Diversity, experts have identified 321 so-called 'Ecological and Biological Sensitive Areas' (EBSA) on the high seas in recent years, which they consider to be in need of protection.
AWI has supported the designation of a marine protected area in the Antarctic Weddell Sea for more than 10 years. However, our research shows that other high seas areas are also worthy of protection, for example the Gagel and Langseth ridges near the North Pole. These underwater mountains are home to fascinating sponge communities. Also worthy of protection is the so-called Discol area in the southeast Pacific off the coast of Peru, where long-term tests and investigations were carried out from 1988 to 1997 in connection with a planned mining of manganese nodules, which are still being observed today and provide important insights.
The contents and limits of the agreement
As an implementing agreement to the International Convention on the Law of the Sea, the new agreement fills an important gap in multilateral ocean governance and will play a central role in global marine conservation in the future. Among other things, it contributes to achieving international goals such as UN Sustainable Development Goal 14 'Life Below Water' and supports efforts to place 30 percent of the world's oceans under protection by 2030.
The new agreement regulates the future use (including benefit sharing) of marine genetic resources of the high seas, allows for the designation of protected areas in international waters, introduces mandatory environmental impact assessments for all activities with significant impacts on the marine environment of the high seas, and supports capacity building (including technology transfer) in smaller states to strengthen their engagement and participation in the sustainable use and governance of the high seas.
The new agreement does not regulate fishing or deep seabed mining on the high seas, for which stand-alone international agreements and bodies already exist (e.g., UN Fishstock Agreement, UN Food and Agriculture Organization, Regional fisheries management organizations, International Seabed Authority). There is also already Marine geoengineering, a corresponding international agreement for possible activities on the high seas to combat climate change in the form of the London Convention & Protocol.
How will compliance with the new rules be monitored?
Controlling activities on the high seas is not easy. However, the new convention requires member states to report all activities on the high seas. This would provide, for the first time, reliable and accessible information on who is doing what and where on the high seas. Illegal, unreported and unregulated activities could thus be more easily detected. Under the agreement, there will be a special committee responsible for implementation and compliance with the new agreement. The agreement also includes articles on the settlement of disputes between member states. There is currently no provision for the establishment of a 'maritime policel force', but each signatory state will seek to ensure that activities emanating from its territory or from vessels flying its flag comply with the new agreement.
Operating principal and localization of the agreement
Under the new agreement, there will be a Conference of Parties, a Scientific and Technical Committee and a Secretariat. The location of the secretariat has yet to be decided.
Importantly, decisions under the new agreement can be made by majority vote even if consensus cannot be reached in the negotiations. This prevents decisions and resolutions from being blocked by individual member states. Specifically for the establishment of marine protected areas, the new agreement provides that these can also be decided by a ¾ majority.
The new agreement provides for extensive reporting obligations for the member states. The relevant information is to be collected and made available in a clearing house mechanism. The most important tasks of the new bodies and processes are already included in the convention, but still need to be implemented or supplemented by resolutions of the Conference of the Parties, especially in the first years after the new convention enters into force.
At the European and German levels, responsibilities and competencies must be clarified and the corresponding committee and administrative processes established as part of the ratification process. So no miracles are to be expected when the new agreement enters into force. It will take several years for the new agreement to take full effect.
The new agreement fills a gap in multilateral ocean governance, but of course has many points of contact with other existing international agreements and bodies. The new agreement stipulates that these International Frameworks and Bodies (IFBs) must not be undermined. What this means exactly and how the competencies and responsibilities can be distributed and effective cooperation can be designed must be discussed and worked out in the coming years.
