1. Introduction

The high seas, which are not under the sovereignty of any country and are open to common use, provide an indispensable advantage in economic, technological and political terms with the resources they contain and the strategic opportunities they provide. Due to its importance and unique nature in terms of suitability for establishing sovereignty, there has been an ongoing debate on what extent the high seas will be regulated and what principles will be applied. Many different opinions have emerged regarding the regulation of the high seas in line with dynamics such as the development level of countries, their geopolitical positions, and the commercial purposes of private companies.

The advancement of technology and globalization have highlighted the negative consequences of uncontrolled consumption of high-sea resources. Firstly, the unfair allocation of resources increases inequality between developed and developing countries[1] and further doubts the functionality of accepted systems and principles. Secondly, it has come to a point where it cannot be ignored and denied that overexploitation of high-sea resources causes environmental problems that have impacts on a global scale, therefore the status quo is not sustainable. This problem created the necessity for comprehensive environmental regulation of the high seas. Consequently, after years of negotiations on 19 June 2023 “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 (BBNJ)”[2] has been adopted.

In this respect, regulation of the high seas demands to be revisited since environmental concerns have brought a new dimension. In light of the BBNJ treaty, this article will explore the extent to which the high seas should be regulated, considering discussions between developed and developing countries, and efforts towards addressing gaps in the legal regime to envision a fair and effective system.

2. Freedom of the Sea: Free for All or Freer for Some?

The law of the sea has undergone a period of transition, primarily due to challenges from developing states in terms of ideology and politics, but also to fast technological advancement and financial stress. The legal system of the oceans, which has traditionally been founded on the venerable principle of the freedom of the seas, is one of the fundamental principles of conventional international law that have been contested.[3] It is a question mark whether the ideas that form the theoretical foundations emerged as the product of an intellectual purpose. As the delegate from Chili stated during the Geneva Conventions, it can be argued that there was only one thing that spurred the formation and growth of the law of the sea: interest.[4] From this perspective, Grotius had defended the Dutch East India Company's interests by advocating for maritime freedom rather than just as an academic ideal. Similarly, with mare clausum, the primary reason Selden had refuted Grotius was to protect England's interests. Then, as now, things had shifted dramatically. Nevertheless, the interest, as a main intention behind implementing and expanding the regulations, maintained its position.[5]

Thus, when considered on the basis of "interests", the implementation of freedom of the sea in principle constituted the essence of the legal debate between developing and developed states. The developing countries' dissatisfaction with traditional international law, which they believe reflects the unfair political as well as financial realities, is equal to their criticism of the current international order, which they see as founded on the laissez-faire ideology of economic liberalism.[6] The deeply rooted problem was although the principle favoured the freedom of contract, fair distribution of resources and prospects, as well as parity in bargaining power, were not assured.[7] When looking at the practical consequences of the law of the sea regime so far, it appears this argument has concrete evidence. For instance, from the US perspective, domination of the high seas is indispensable economically and politically. Even now, the current regime which is mainly based on the United Nations Convention on the Law of the Sea (UNCLOS)[8] facilitates gas and oil access for the U.S beyond 200 nautical miles, reclaims the valuable deep seabed mining sites it has abandoned and obtains U.S. approval before transferring seabed profits.[9]

Accepting this principle without any restrictions does not seem rational, as inequality between sovereigns increases with the development of technology. Based on the argument of the suitability of the high seas for common use, they should be evaluated as "res communis" and as a result, as opposed to the principle of freedom of the sea, the "common heritage of mankind (CHM)." The concept has emerged as a counter idea by developing countries.[10] The idea, radical enough, promised strong opposition to the previous understatement that, under the "first come, first served" principle, a state may assert, obtain, or utilize exclusive rights to resources obtained from particular regions, counteracting any potential technological, economic, or strategic benefits that a state may so achieve.[11] The notion was introduced in its most comprehensive form by the Law of the Sea Convention. Because it was so intricate and complicated, some of the most significant states hesitated to sign the convention because they believed it to be unsafe and unrealistic.[12]

During the negotiations, Group of 77 supported the creation of an international organization with the authority to regulate mining by other license holders while also being able to conduct seabed mining on its own. Under this arrangement, all States would share in the royalties and profits made by this body's operations as part of the CHM. Strong opposition to this stance came from developed countries, who wanted to see this international body created as a "super registry" of national claims to seabed mining sites, with very little authority to stop mining businesses from using the natural assets of the region.[13] As a result of theoretical discussions, consensus led to the establishment of the International Seabed Authority(ISA). The major challenge faced in this attempt was to identify the common interests attributed to the notion of “mankind”.[14] A traditionalist approach with an economic perspective does not promise an answer to this question since this context is insufficient to objectively and clearly define common goals in the face of conflicting interests. Similarly, based on this principle, the issue of effectiveness and functionality of equitable benefit-sharing mechanisms has not been resolved.[15]

Academics generally explain the CHP's inclusion in UNCLOS as the consequence of a change in meaning that moved the focus from social justice and environmental protection "towards a more market-driven economy.[16] The fundamental mistake although there is a justification, was the claim of CHM as a reflection of the developing states' desire for equality of opportunity. A better strategy would have emphasized the uncontrolled consumption of resources as a global threat. Former, succumbed to the argument that Natural resources can be exploited by anyone as long as no country has exclusive jurisdiction over the area in which they are located, so any country with access has the right to exploit them as much as it wishes.[17] Moreover, it was not difficult for developed countries to put forward liberal theses, such as that they did not find the equal distribution of the benefits they gained from their investments and technologies unfair.[18] However, it is not possible to accept the validity of these claims against environmental concerns. Therefore, on the path to equal share of benefits, the consequences of the exploitation should be emphasized, rather than the question of who exploits.

There are already established concepts in environmental law that will enable qualification in this regard to bring legitimacy and coercion bringing us to the BBNJ treaty as a promising document. Marine Genetic Resources for example, according to Ostrom's classification, are determined as common pool resources.[19] Application of this concept to biodiversity beyond national jurisdiction allows us to point out the necessity of financing the commons and fair distribution of the resources. The allocation of the financial cost is a key component of the principle of common but differentiated responsibilities, which links the industrial development of developed nations and their obligations in combating environmental dangers.[20] From this legal perspective, the incorporation of the funding mechanism into the BBNJ treaty addressing this mutual obligation can be seen as a reflection of inevitable progress.

Thus, we can say that in the ongoing theoretical discussions about the law of the sea, the concept of environmental law, which treats the high sea as a "common", prevails over the concept of freedom of the sea.[21] So far, considering the exploitation of overfishing[22] and seabed mining by developed countries, the protection mechanisms introduced by UNCLOS, the CHM principle, and ISA applications remained ineffective and dysfunctional. ISA's concept of sustainable seabed exploitation is proven self-contradictory and unrealistic in terms of achieving the set targets.[23] BBNJ treaty brought all these discussions back to the agenda after years of negotiations and added a new layer to the regulation of the high seas in terms of its content. Although this incident was celebrated as a significant change, a great victory in international law,[24] this statement needs confirmation by analysis of legal issues.

3. Examination of BBNJ Treaty: Different Ship Same Shore?

The seas and oceans are categorized under UNCLOS into different maritime zones, including "territorial waters," "contiguous zones," and the Exclusive Economic Zone (EEZ). From the baseline out to 12 nautical miles offshore, the territorial waters are comprised. This is followed by the contagious zone, which is 12 nautical miles further out to sea and is where the state can impose pollution prevention legislation. Although the EEZ is 200 miles offshore, it is not a part of the state. That being said, the coastal state is endowed with "sovereign rights allowing them to explore and exploit and manage the natural resources.[25] Since "High Seas" lie outside of national borders, states are unable to enact legislation pertaining to monitoring or MPA declarations in these areas.[26] The BBNJ agreement emerged as a result of the need to resolve these legal gaps that were not implemented in previous agreements.

The first notable element is that paragraph 2 of Article 5 places strict limits on the agreement, stating that it does not have the power to undermine previous relevant legal instruments, or agreements, whether regional or global.[27] This sharp limitation significantly reduces the influence of the treaty contradicting its objectives and prepares the ground for legal arguments for developed countries to preserve the status quo. Overfishing, for instance, is one of the biggest threats to the conservation of marine biodiversity. As in the case of Senegal, overfishing causes depletion of fish stocks, marine resources and damage to the entire ecosystem which eventually leads to social and economic problems as well.[28] During the negotiations, states such as Russia, Japan and Iceland that exploit and benefit from vehemently disagree with the agreement's inclusion of high-seas fishing. They argued that the BBNJ Agreement does not need to cover high-seas fisheries because the current regional fisheries management organizations or arrangements are the most effective instruments for regulating high-seas fisheries.[29] Considering the current evidence, fair to denominate this argument as an endeavour to preserve national interests rather than articulating a logical legal solution. The overfishing problem is undeniable. Fishing, especially in the Pacific Ocean, constitutes an important resource for superpowers such as the USA, Russia, South Korea and China.[30] Additionally, the current global legal regime and bilateral regional agreements did not provide adequate protection mechanisms to prevent illegal, unreported and unregulated fishing.[31] As a result, the Pacific Islands bear the brunt of global warming's effects despite contributing the least to it.[32]

Despite this reality, it has been argued that the BBNJ Agreement's definition of biodiversity includes marine genetic resources; it does not include any fishing provisions. This is because of the significance of many instruments of international fisheries law, including the Fisk Stock Agreement. Thus, fish that are caught for commercial purposes do not represent biological variety.[33] Eventually, the fishery is excluded from the scope of BBNJ on the grounds that the existing legal regulations were sufficient and based on the provision of Article 5 BBNJ should not undermine the existing legal instruments. Incorporating fishery in the agreement, either expressly or tacitly, means improving the ability of governments to evaluate how fisheries, other human activities, and the environment affect species that are not targets, related to, or dependent on one another, or species that are part of the same ecosystems.[34] It is not surprising that this control mechanism is not seen as appropriate by the countries that benefit economically from exploitation. The fact that the agreement, which promises to comprehensively protect marine biodiversity, remains hesitant on this issue constitutes a despondency.

CHM principle was another matter of discussion in the negotiation process. Convinced that Marine Genetic Resources (MGR) would yield financial gains, developing countries urged that BBNJ recognize the CHM principle and insisted that benefit-sharing mechanisms and resource accessibility be grounded in equity. Thus, developing nations contended that unrestricted access to MGR, such as that which applies to the High Seas' living resources, violates the idea of a "just and equitable international economic order."[35] Furthermore, they demanded a system that allows the sharing of benefits similar to the one that is managed and conducted by ISA regarding the exploitation of mineral resources in the seabed.[36] Similar to the previous discussions on the CHM developed countries rejected this argument by claiming that MGR is a component of the high seas freedom and falls under the permit to perform Marine Scientific Research. Therefore, any state can access MGR in the ABNJ in accordance with UNCLOS. They contended MGR is an expensive scientific endeavour carried out by private businesses. As a result, they are the only ones with the first and exclusive right to benefit from the technology's commercialization. Additionally, if and when the study is successful, a prosperity diffusion will indirectly provide an advantage to mankind.[37]

The subject is important since the applicability of this principle may also determine the relevant financial approach. Consequently, it appears that Article 5 constituted a barrier in this manner again. While Group 77 was calling for a system envisaging the allocation of gains resulting from the use of these resources, counter argument stated that this framework is only specified by the UNCLOS concerning seabed mineral resources that are outside of sovereign jurisdiction. This would undermine the UNCLOS which guarantees freedom to fish and navigate, freedom to carry out marine scientific research, and freedom to install pipes and cables.[38] Under these discussions, developing countries managed to incorporate CHM into the treaty as Article 9 obliges “fair and equitable sharing of benefits arising from activities with respect to marine genetic resources.”[39] Prima facie this might be considered a victory for the application of CHM. Nevertheless, the scope of the principle and the context in which it will be applied are quite ambiguous. It is significant to notice that, the agreement states that MGR activities are for the benefit of all people, not the resources themselves. Put otherwise, the BBNJ Agreement fails to clarify for sure that MGRs are part of CHM.[40] This approach is supported by the limitation brought in Article 5 since the CHM which is set out in the convention accepted to apply. The international deep seabed region (the region) and its resources are recognized as part of the CHM under Article 136 of the convention. However, according to Article 133 LOSC, resources are only "all solid, liquid, or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules." As a result, in the LOSC, living resources are not included in the CHM. The BBNJ Agreement does not extend the shared CHM principle to MGRs; instead, it limits its applicability to those things that are specified in the LOSC. Rather, its use is restricted to MGR operations.[41]

Another issue that makes the effectiveness of the agreement questionable is the absence of liability provisions. Prior to and concurrent with the discussions, the G77 Ministerial Declarations indicated that the coalition placed a high priority on liability. The BBNJ procedure is first mentioned in declarations from 2015 and 2016, which also emphasize the necessity of an agreement, the fundamental objectives of conservation and sustainable use, and the significance of the Common Heritage of Mankind (CHM) principle. For some reason, it seems that this insistence disappeared in the later stages of the interview.[42] However, it is doubtful that frequently including the expression of responsibility in the treaty will eliminate this deficiency since responsibility and liability are associated but two different concepts. The conclusion that a sovereignty’s conduct were in violation of an international law to which they are obligated is the basis for its responsibility. However, liability is necessary to ensure the duty to pay compensation or pay remedies for damages that foreign nationals suffer for transboundary consequences as a result of activities within its territory or activities on the high seas.[43] There is no doubt that liability is a more effective mechanism to ensure the effectiveness and deterrence of international agreements.[44]

Consequently, the agreement is likely to have the soft law characteristics in this form which links us to the subsequent problem of its applicability to third parties. The binding power of soft law is insufficient since the law rests on influencing public opinion worldwide, morality and interest guiding, among other channels, rather than executing coercive force on sovereignties.[45] In addition to making it more difficult to assess whether a state fulfils its obligations, the drawbacks of "soft law agreements" also provide room for actors to violate obligations.[46] Although the effectiveness of soft law is a common discussion matter for international treaties, the problem is peculiarly important in the regulation of high seas. Considering that there are already existing regulations and the rules of customary law, if the binding force of the treaty cannot be established on third parties, sovereigns may not be willing to sign the agreement while others are enjoying marine entitlement completely.[47] This fundamental problem regarding the essence of the convention does not seem to make any practical difference to the regulation of the high seas soon.

4. Conclusion

Theoretical discussions and legal infrastructures regarding the regulation of the high seas have been motivated by the interests of sovereigns and companies since day one. Regulation of the high seas has always been a challenge due to the conflict that arises from the resources it offers, transportation facilities and strategic importance. Global environmental issues have the possibility of being a coercive legitimacy factor for limiting sovereignty. Although the principle of freedom of the sea has remained valid, the acceptance of the high seas as a common good and the environmental dimension of its use have revealed that the implementation of this principle is not sustainable considering the extent of the exploitation. This situation adds a new dimension and opportunity to the regulation of the high seas. Regulation of the high seas should be made more effective in terms of fair use of resources and ensuring marine diversity as the ongoing problems in this manner pointed out.

The BBNJ agreement was promising to solve problems in this scope. Nevertheless, it is seen that fishing, which is a fundamental issue both environmentally and in terms of inequality between countries, is outside the treaty’s scope. In addition, although CHM is included as a principle, it is unclear to what extent the principle will be applied. Furthermore, since there are no binding provisions, it does not seem possible for the agreement to act as a deterrent on the contracting parties and to be applicable to third parties. As a result, in its current form, the BBNJ agreement appears not to be a solution-providing instrument but rather an illusion that reiterates old sterile debates.

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[1] María-José Gutiérrez and Belén Inguanzo, “Contributing to Fisheries Sustainability: Inequality Analysis in the High Seas Catches of Countries” (2019) 11 Sustainability 3133 <http://dx.doi.org/10.3390/su11113133>.

[2] 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, (Adopted 19 June 2023, Opening for Signature) C.N.203. 2023.TREATIES-XXI.10

[3] Boleslaw A Boczek“Ideology and the Law of the Sea: The Challenge of the New International Economic Order” (1984) 7 Boston College International and Comparative Law Review 1,1

[4] Emmanuel G Bello, “International Equity and the Law of the Sea. New Perspectives for Developing Countries” (1980) 13 Verfassung in Recht und Übersee 201,204 <http://dx.doi.org/10.5771/0506-7286-1980-3-201>.

[5] Ibid,204

[6] Boczek (n 3),5

[7] Ibid,5

[8] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 Nov 1994) 1833 UNTS 3

[9] John Norton Moore and William L. Schachte Jr, “The Senate Should Give Immediate Advice And Consent To The Un Convention On The Law Of The Sea: Why The Critics Are Wrong.” (2005) 59 Journal of International Affairs 1, 2

[10] E.D Brown “Freedom of the High Seas Versus the Common Heritage of Mankind: Fundamental Principles in Conflict” (1983) 20 San Diego Law Review 521, 523

[11] ABM Vadrot, A Langlet and I Tessnow-von Wysocki, “Who Owns Marine Biodiversity? Contesting the World Order through the ‘Common Heritage of Humankind’ Principle” (2021) 31 Environmental Politics 226,230 <http://dx.doi.org/10.1080/09644016.2021.1911442>.

[12] Alexandre Kiss, “The Common Heritage of Mankind: Utopia or Reality?” (1985) 40 International Journal 423,432 <http://dx.doi.org/10.2307/40202245>.

[13] Marie Bourrel, Torsten Thiele and Duncan Currie, “The Common of Heritage of Mankind as a Means to Assess and Advance Equity in Deep Sea Mining” (2018) 95 Marine Policy 311,312 <http://dx.doi.org/10.1016/j.marpol.2016.07.017>.

[14] Ibid,313

[15] Essam Mohammed, ”Equity and benefit sharing from marine genetic resources in areas beyond national jurisdiction” (2018) International Institute for Environment and Development 1, 2

[16] Vadrot (n 11),231

[17] Carol R. Buxton “Property in Outer Space: The Common Heritage of Mankind Principle vs. the First in Time, First in Right, Rule of Property” 69 Journal of Air Law and Commerce 689, 693

[18] Ibid,693

[19] Tanguy Stehelin, “Negotiating The Agreement On Biodiversity Beyond National Jurisdiction (Bbnj): In The Multilateral Making Of The Financial Governance Of A Common Good.” (2023) 151 Revue d'Économie Financière 259, 261

[20] Ibid,262

[21] Garrett Hardin, 'The Tragedy of the Commons' [1968] 162 Science, no. 3859: 1243, 1245

[22] Nikola Kieves, “Crisis at Sea: Strengthening Government Regulation to Save Marine Fisheries” (2005) Minnesota Law Review 1875,1914

[23] Rozemarijn J Roland Holst, “Exploiting the Deep Seabed for the Benefit of Humankind: A Universal Ideology for Sustainable Resource Development or a False Necessity?” [2023] Leiden Journal of International Law 1,22 <http://dx.doi.org/10.1017/s092215652300064x>.

[24] Rachel Tiller and Elizabeth Mendenhall, “And so It Begins – The Adoption of the ‘Biodiversity Beyond National Jurisdiction’ Treaty” (2023) 157 Marine Policy 105836 <http://dx.doi.org/10.1016/j.marpol.2023.105836>.

[25] Kapil Narula, “Ocean Governance: Strengthening the Legal Framework for Conservation of Marine Biological Diversity beyond Areas of National Jurisdiction” (2016) 12 Maritime Affairs: Journal of the National Maritime Foundation of India 65,66 <http://dx.doi.org/10.1080/09733159.2016.1181394>.

[26] Ibid,70

[27] 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 (n 2), art. 5 [2]

[28] Jessica H Jönsson, “Overfishing, Social Problems, and Ecosocial Sustainability in Senegalese Fishing Communities” (2019) 27 Journal of Community Practice 213,221 <http://dx.doi.org/10.1080/10705422.2019.1660290>.

[29] Yunfeng Qu and Ruiyang Liu, “A Sustainable Approach towards Fisheries Management: Incorporating the High-Seas Fisheries Issues into the BBNJ Agreement” (2022) 7 Fishes 389,393 <http://dx.doi.org/10.3390/fishes7060389>.

[30] Joanna Siekiera, “Maritime Biodiversity of Areas Beyond National Jurisdiction (BBNJ) from the French Perspective” (2021) 50 Polish Political Science Yearbook 147,151 <http://dx.doi.org/10.15804/ppsy202117>.

[31] Rachel Baird, “Illegal, Unreported And Unregulated Fishing: An Analysis Of The Legal, Economic And Hıstorical Factors Relevant To Its Development And Persistence.” (2004) 5 Melbourne Journal of International Law 1,36

[32] Siekiera (n 30), 151

[33] André De Paiva Toledo, “BBNJ Agreement: High Seas Biodiversity as a Common Heritage (of Mankind)?” (2023) 23 Meridiano 47 - Journal of Global Studies,11 <http://dx.doi.org/10.20889/m47e23006>.

[34] Guillermo Ortuño Crespo and others, “High-Seas Fish Biodiversity Is Slipping through the Governance Net” (2019) 3 Nature Ecology & Evolution 1273,1274 <http://dx.doi.org/10.1038/s41559-019-0981-4>.

[35] Narula (n 25),72

[36] Ibid,72

[37] Ibid,72

[38] Stehelin (n 19),264

[39] 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 (n 2) Art 9

[40] Sarah Lothian, 'How does the new BBNJ Agreement regulate access to and benefit-sharing of marine genetic resources at deep-sea hydrothermal vents?' (Eco Law Blog, 1st june) <https://blogs.ed.ac.uk/ecolaw/2023/06/01/how-does-the-new-bbnj-agreement-regulate-access-to-and-benefit-sharing-of-marine-genetic-resources-at-deep-sea-hydrothermal-vents/> accessed 28 December 2023

[41] Ibid

[42] Elizabeth Mendenhall and Kahlil Hassanali, “The BBNJ Agreement and Liability” (2023) 150 Marine Policy 105549,3 <http://dx.doi.org/10.1016/j.marpol.2023.105549>.

[43] Ibid,2

[44] Ibid,2

[45] Deyi Ma and Jietao Zhou, “The Binding Force of the BBNJ Agreement on Third Parties” (2021) 212 Ocean & Coastal Management,4 <http://dx.doi.org/10.1016/j.ocecoaman.2021.105818>.

[46] Ibid,4

[47] Ibid,3