It extends over almost half of the planet but still does not benefit from any protection.

The high seas, which represent 64% of the oceans, have again been the subject of negotiations at the UN in New York since Monday 15 August.

The objective of the Member States: to reach an international treaty aimed at protecting these deep waters which abound in biodiversity and constitute an enormous carbon sink.

The high seas begin where the exclusive economic zones end (EEZ - strips of sea or ocean located between territorial waters and international waters, over which the riparian states have exclusive rights to exploit the resources).

Located at a maximum of 200 nautical miles from the coast, or 370 km, the high seas are not placed under the jurisdiction of any State.

In its resolution 72/249 of 24 December 2017, the UN General Assembly decided to convene an intergovernmental conference to elaborate the text of a legally binding international instrument relating to the United Nations Convention on the Right of the sea and dealing with the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction.

Increasingly threatened by human activities, international waters have long been ignored in favor of the protection of coastal areas.

Today, the intensification of pollution, overfishing, ocean warming due to climate change, or even mining and oil exploitation makes decision-making more and more imperative.

But several interests are at stake and the negotiations are slipping.

Offshore, the situation is worrying:

  • According to UN Food and Agriculture Organization (FAO) estimates, the share of fish stocks exploited at a biologically unsustainable level fell from 90% in 1974 to 65.8% in 2017;

    the share exploited at an unsustainable level rose to


    against 10% in 1974.

  • 90% of world trade

    passes through maritime transport on the high seas. Collisions often occur between the colossal ships that crisscross the ocean and marine mammals.

  • Boats are also the source of maritime pollution.

    Several tons of nets intended to catch a large number of fish were found.

    Waste to which are added various plastics rejected by ever more numerous ships.

    Found on the high seas, this waste is so numerous and dense that it could cover the territories of France, Germany and Spain combined.

    According to the Ellen MacArthur Foundation, nearly

    8 million tons of plastic

    pollute marine ecosystems every year.

    Experts estimate that in thirty years there will be more waste than fish in the ocean.

  • Exploration operations aimed at extracting cobalt, copper and nickel raise fears of the destruction of unique ecosystems.

Conference Chair, Singaporean Rena Lee called for maximum flexibility to reach a fair and balanced agreement that allows for universal participation and can be implemented.

The stakes are high, but a consensus is struggling to emerge.

"The revised text reflects widely divergent points of view on the main provisions", explains on Twitter Glen Wright, researcher in international governance of the Ocean at the Institute for Sustainable Development and International Relations (Iddri).

Also, he recalls, "States remain entirely free to approve or reject the provisions of the draft, as well as to propose amendments and a new text".

The final round of negotiations for a treaty to protect marine biodiversity beyond national jurisdiction (#BBNJ) kicks off today at @UN HQ!

Here's a quick recap of what's going on [thread 🧵] #IGC5 #UNCLOS

— Glen Wright (@MarinePolicy) August 15, 2022

Dissension over marine genetic resources

After two years of interruption because of the Covid-19, the fourth meeting, last March, was to be the last.

But despite progress, the negotiators had run out of time to agree on a compromise covering the four major areas of this agreement: marine genetic resources (MGR), environmental impact studies, management and protection biodiversity and capacity building for technology transfer.

"There is a divide between developing countries and developed countries", explains Klaudija Cremers, researcher in international maritime policy at IDDRI, referring in particular to the question of maritime genetic resources.

While seabed minerals beyond national jurisdiction (such as cobalt) are considered the "common heritage of mankind" (meaning they should be mined and conserved for the benefit of all) , developing countries argue that this also applies to marine genetic resources.

These resources (of plant, animal or microbial origin), which abound in areas located beyond national jurisdiction (ZAJN), are valued for their genetic and biochemical properties and can be exploited for the manufacture of cosmetics and pharmaceuticals.

As the high seas are considered a common good, no State owns these resources.

But at a time when negotiations are trying to establish rules to ensure that the benefits from the exploitation and extraction of MGRs are shared equitably, the interests of developing countries are opposed to those of countries developed.

"Developing countries expect monetary benefits, while developed countries want to develop non-monetary aspects, in particular through technology transfers", specifies Klaudija Cremers.

In the report of the second day of negotiations, Tuesday, the Earth Negotiations Bulletin (an independent information service on the negotiations of the United Nations in the field of environment and development), reports the options proposed to restructure the text.

“Some pointed out that benefit-sharing should be mandatory, including both financial and non-financial elements, all of which should be shared equitably (...) One delegation stressed that the terms of monetary benefit-sharing should be regulated in the framework of the agreement and not be left to the future Conference of the Parties (COP). A regional group suggested adding, as a non-monetary benefit, increased scientific cooperation."

Protecting the high seas: what to expect from an international treaty?

(published May 2022)

—IDDRI (@IDDRI_ThinkTank) August 17, 2022

Disparate ambitions on marine protected areas

Dissensions are also expressed on management tools by area, in particular marine protected areas (MPAs).

These delimited areas at sea meet marine biodiversity protection objectives that promote the sustainable management of maritime activities.

For example, France, the second exclusive economic zone (EEZ) in the world with more than 10 million square kilometers (including overseas territories) has 524 marine protected areas, covering nearly 32% of its EEZ.

The idea of ​​the treaty is to extend this principle to international waters.

The establishment of marine protected areas is even one of the flagship measures for the conservation of marine biodiversity.

If the treaty sees the light of day, 30% of the oceans will become protected areas.

According to the FAO, 90% of the world's fish stocks are depleted or fully exploited.

However, much of this fishing takes place on the high seas. MPAs could make fishing more sustainable by allowing species to rebuild their populations in areas closed to industrial activities.

Today, there are a few MPAs located on the high seas. The treaty currently under discussion aims to introduce legally binding measures for the conservation and sustainable use of biodiversity in international waters in order to restrict human activities and strengthen the fight against pollution.

Indeed, it is impossible to legally compel States to apply an agreement if they are not party to it.

But here again, the search for a compromise is necessary.

"Some countries want to give a lot of power to the treaty to create MPAs, while others, more conservative, prefer the status quo and want the existing professional organizations that manage fishing to be responsible for all activities practiced in these MPAs", explains Klaudija Cremers, referring to the differences of opinion on the implementation of such measures.

Regarding environmental impact studies (EIA), there is no basis for human activities on the high seas, she recalls.

On this subject, it remains to be defined which of the States or of the future Climate Conference (COP 27 scheduled for November 7 to 18, 2022 in Sharm el-Sheikh, Egypt, editor's note) will be responsible for carrying out the EIAs, and when we will we need an EIA.

“If the EIA says that we cannot carry out an activity without having an impact on the environment, what will be the next step?”, questions the researcher, indicating divergent opinions on a subject which may as well concern fishing than the exploitation of the seabed for cobalt or for energy transformation.

In New York, "the atmosphere is optimistic"

With regard to capacity building and marine technology transfer, "the United Nations Convention on the Law of the Sea talks a lot about capacity development, but the implementation has not lived up to the ambition “, believes Glen Wright, adding that developing countries are asking for more support in order to be able to participate effectively in the intergovernmental conference on marine biodiversity.

"Developing countries are fighting for the treaty to require developed countries to contribute financially to help them develop human activities on the high seas", adds Klaudija Cremers.

"The atmosphere in New York is optimistic", notes Klaudija Cremers who will go there with her colleague Glen Wright, to follow the second week of negotiations.

"Many countries are pushing to finalize this agreement", she adds, referring to a "coalition of high ambition countries" led by the European Union and in particular France which, after hosting the One Ocean Summit in Brest in February last and held the presidency of the Council of the EU from January to June, wants to establish itself as a driving force in these international negotiations.

This is how, on Monday and Tuesday, the French Secretary of State for the Sea, Hervé Berville, supported the high ambition of France and the EU, renewed in June at the United Nations Ocean Conference. , held in Lisbon.

The balance of our planet is linked to that of the ocean, a common good that we must preserve.

It is this French commitment to reach an ambitious agreement from 2022 that I came to bring during the negotiation of the @UN treaty for the protection of marine biodiversity #BBNJ

— Herve Berville (@HerveBerville) August 17, 2022

According to Klaudija Cremers, around fifty countries support this high-ambition coalition.

To date, "all the states, even those reluctant to start because they are active in fishing, want to find compromises", she adds, referring in particular to China, Norway, Iceland and the United States.

"Only Russia continues to block negotiations," says the researcher, referring to degraded relations due to the war in Ukraine.

What are the consequences, then, if an agreement is reached but a State does not ratify it?

“States that are not members [of the UN] or that have not ratified the agreement have no obligation to follow what is written there,” replies the researcher in international maritime policy.

Which does not mean that in practice, non-party States do not respect the spirit of the text, she concludes, taking the example of the United States, non-signatories of the United Nations Convention on law of the sea (due to a disagreement on the exploitation of the seabed), but which they respect and whose membership has been raised regularly since the entry into force of the text in 1994.

From the 1980s, with the Montego Bay Convention, the division of maritime spaces into zones (EEZ, high seas) took place but on the basis of infinite marine resources, which can be used without end, recalls Klaudija Cremers.

It was only in 2002, she said, that the UN began to talk about the need to protect the high seas.

Another 10 years later and here we are, on the precipice of adopting a dedicated #BBNJ agreement.

The @HighSeasAllianc timeline lays it all out:

— Glen Wright (@MarinePolicy) August 15, 2022

It then took time for a UN mandate to focus on the creation of a truly binding legal instrument.

"This is why this treaty is important. It concerns all countries in the world and it is not just a sustainable development goal (SDG): any state that ratifies the agreement will be obliged to apply it" .

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