The High Seas Treaty and the Western Indian Ocean Regional Ocean Governance Strategy

In a convergence of marine and law of the sea experts, the Regional Ocean Governance Task Force and Support Team concluded a series of technical dialogues in October 2023, marking a significant stride towards shaping the regional Western Indian Ocean governance strategy. The crowning jewel in this series was the dialogue titled The High Seas Treaty – Content and Opportunities for the Western Indian Ocean Region. This session was the latest in a lineup of thought-provoking dialogues that delved into critical topics such as ocean accounts, plastics, marine protected areas, financing for regional ocean governance, and water quality.

In a collaborative effort with the Swedish Agency for Marine and Water Management, this captivating dialogue had a multifaceted agenda. It sought to deepen understanding of the newly adopted Biodiversity Beyond National Jurisdiction (BBNJ) Treaty – also known as the High Seas Treaty – while simultaneously gathering inputs that will feed into the Regional Ocean Governance Strategy (ROGS) for the Western Indian Ocean (WIO) region supported through the SAPPHIRE Project of the Nairobi Convention. More than just a dialogue, it also aimed to sow trust among stakeholders, with a vision of seamlessly integrating the insights gathered into the broader ROGS development process.

Ms. Karin Wall, the Head of Legal Issues at the Swedish Agency for Marine and Water Management, delivered a powerful keynote on the BBNJ Treaty. She affirmed that the treaty, officially adopted on June 19, 2023, is a watershed moment in international environmental and maritime law. With over 80 nations already pledging their support, it is on track to become legally binding for states after amassing 60 ratifications.

The treaty’s reach extends beyond national boundaries, covering vast expanses of the world’s oceans. This agreement applies to areas beyond national jurisdiction (ABNJ), meaning areas outside territorial waters and exclusive economic zones (EEZs) usually extending beyond the 200-nautical-mile Exclusive Economic Zone of states. For seabed matters, the treaty stretches into areas that transcend coastal states’ continental shelves, with its definition dynamically evolving, subject to unresolved continental shelf claims and EEZ declarations that can shift over time.

The High Seas Treaty complements UNCLOS by addressing gaps in international ocean law, focusing on sustainable management, equitable resource distribution, and transparency. Developed nations support capacity-building in developing states through a special fund, facilitating biodiversity conservation. It establishes procedures for sharing marine genetic resources, the establishment of marine protected areas, and comprehensive environmental impact assessments and opens for strategic environmental assessments for plans and programs. Although enforcement in remote areas poses challenges, the treaty also includes dispute settlement mechanisms similar to the United Nations Convention on the Law of the Sea (UNCLOS), enabling states to address non-compliance through legal avenues.

After delivering a comprehensive overview and history of the treaty process Ms. Karin Wall, Head of legal issues at the Swedish Agency for Marine and Water Management, took a deep dive into the BBNJ treaty’s chapter on conducting Environmental Impact Assessment in the high seas. Today, the high seas and the deep oceans are subject to increasing human activities and as such, the environmental impact of those activities needs to be regulated. The EIA provisions of the treaty will ensure that activities on the high seas are assessed to prevent, mitigate, and manage adverse environmental impacts and protect and preserve the marine environment. It aims to ensure that new activities do not affect marine ecosystems and biodiversity adversely.

The discussion also delved into area-based management tools and the status of Areas Beyond national Jurisdiction (ABNJ) in the Western Indian Ocean, led by Dr. Maina Mbui from Macquarie University, Australia, who also represented Ms. Angelique Pouponneau, Chief of Staff, UNSG Climate Action Team. Dr. Maina emphasized the crucial role of connectivity in area-based management tools, particularly marine protected areas (MPAs) in the high seas. He stressed that the Western Indian Ocean’s ABNJs teem with biodiversity that demands protection. Dr. Maina Mbui noted that “crafting the path ahead involves aligning with the goals and objectives of the Global Biodiversity Framework targets, while recognizing existing data gaps, threats, and the intricate interplay of ecological, social, and economic contexts.”

This engaging dialogue also explored the realm of marine genetic resources. Dr. Niels Krabbe hailing from the University of Gothenburg, led the session, shedding light on the intricacies of sharing future opportunities in the deep sea. Dr. Krabbe unveiled the treaty’s commitment to transparency in marine genetic resource utilization and potential profit sharing. Marine genetic resources encompass living organisms that find use not as direct food sources but as a wellspring for biotechnological innovation. Dr. Krabbe underscored the allure of these resources, borne out of the ocean’s incredible genetic diversity and the mysteries shrouding deep-sea life. These harsh environments, characterized by immense pressure and unrelenting darkness, have driven organisms to evolve unique properties, making them a wellspring of inspiration for cutting-edge innovations.

Furthermore, the agreement recognizes the benefits of capacity building and the transfer of marine technology to developing States parties, underpinned by diverse mechanisms and funding. In her presentation, Ms. Yvonne Waweru, Senior Governance Advisor of the Western Indian Ocean Governance Initiative highlighted that capacity building and transfer of marine technology has been articulated as a crucial enabling factor for realizing the objectives laid out in the marine genetic resources, area-based management tools, and environmental impact assessments sections.  This was reiterated by Dr. Arthur Tuda, the Executive Secretary for Western Indian Ocean Marine Science Association (WIOMSA) who stated that there is no need to reconstruct the laid out provisions under the Treaty, but that the Western Indian Ocean region needs to build a tangible system for capacity development and technology transfer through financial assistance, technical cooperation, data and information sharing, and joint research.

In the final session of the technical dialogue, representatives from the Global Environment Facility and the Bloomberg Ocean Fund lent their invaluable insights. Mr. Jurgis Sapijanskas, Senior Biodiversity Specialist at the Global Environment Facility, highlighted their substantial investments and global, national and regional support in BBNJ-related initiatives. The GEF has channeled over US$ 1.2 million into the management of shared marine resources, and more than US$ 80 million towards ABNJs, with major funding commitments to marine protected areas and marine spatial planning.

Furthermore, the High Seas Program Manager at the Bloomberg Ocean Fund Ms. Veronica Frank, PhD, emphasized the need for leadership that expedites the treaty’s implementation while ensuring it is fairly, equitably, and universally embraced. Ms. Frank underscored the significance of involving Indigenous Peoples and Local Communities (IPLCs) in BBNJ decision-making. Adding to Ms. Waweru’s emphasis on capacity building, she reiterated Bloomberg Ocean Fund’s unwavering commitment to support the Western Indian Ocean (WIO) region at every juncture of the High Seas Treaty process – from signature to ratification and, critically, during the implementation phase, especially for high seas MPAs.

The participatory co-development of the regional ocean governance strategy for the Western Indian Ocean continues, with a strategy-check scheduled to take place in November 2023. This event will be followed by various visibility engagements including the 2023 Marine Regions Forum, the 2023 Nairobi Convention Science to Policy Platform meeting Forum, and a public review of the draft strategy, before being presented to the Focal Points for the Convention with a request to take the ROGS through the process towards potential adoption at the at the eleventh Conference of Parties to the Nairobi Convention.