The recent adoption of the United Nations High Seas Treaty, also known as the Biodiversity Beyond National Jurisdiction (BBNJ) Treaty, appears to have driven another nail in the coffin of the freedom of the seas principle that originated in the colonial era. The creation of a regime to conserve marine biodiversity in the oceans of the world underlines that the high seas are a common heritage for the benefit of mankind and cannot be cornered by a few powerful industrialised nations to profit from exclusive mining rights in the name of freedom of the seas.
The move to curtail the freedom to exploit the resources of the seas was first made more than half-a-century ago, ending with the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) in 1982. It has been reinforced by the BBNJ Treaty, expected to come into force in January 2024, having obtained the approval of 84 countries — well above the minimum requirement of 60. Like UNCLOS, the new treaty also extends to about two-thirds of all the world’s oceans lying beyond the 200-nautical-mile exclusive economic zone (EEZ).
Finalised in June 2023 after scores of meetings and negotiations spread over nearly a decade, the BBNJ Treaty was opened for signature during the General Assembly session this September.
To conserve biodiversity of the high seas, the Treaty sets up a regulatory framework not only for equitable use of marine genetic resources (MGR) but also for setting up marine protected areas (MPA), especially in Arctic and Antarctic areas. Activities involving mining and research in the MPAs must not only be sustainable but be consistent with the objective of conservation. This, naturally, will affect activities on the seafloor to collect mineral nodules. India, incidentally, has not yet signed the Treaty.
Use of the high seas became contentious as European powers set out on their campaign of conquering and colonisation of distant parts of the globe. The Iberian powers, Spain and Portugal, started first, in the 15th and 16th centuries — reaching Asia, Africa and the Americas. The Iberians wanted monopolistic control of the seas that would not allow anyone else to operate there. England and the Dutch United Provinces that entered the colonial quest somewhat later were naturally opposed to this policy and therefore backed the concept of freedom of the sea.
This concept was based on freedom to fish when it was believed that living marine resources were inexhaustible. In any case, few sailing ships ventured into the high seas in those days, preferring not to stray too far from coastlines. But when machine-powered ships enabled man to venture out long distances from the coast the practical problems of overfishing started to surface and realisation dawned that the resources of the sea were limited, after all.
This realisation was reflected in an agreement signed between the United States and Britain in 1893 for fishing for fur seals in the Bering Sea. This was followed in the mid-20th century by whaling regulations. But these agreements were only to prevent depletion of fish and not expressly to preserve the environment or the ecosystem. Gradually, in tandem with other developments of the 20th century, there came into being the concept of the common heritage of mankind that began to be applied to the high seas as well — challenging the concept of freedom of the sea.
The argument between the two schools of thought assumed prominence in the 1960s and ’70s when the potential for mining scarce metals from the seabed emerged.
It also, however, gave rise to fears among the less powerful and wealthy countries, just emerging from colonialism, of being left behind in the race for seabed mining. They had neither the technology nor the wealth that the industrialised countries did.
This fear was expressed in the UN General Assembly in November 1967 on behalf of the developing countries by a diplomat belonging to the small Mediterranean island of Malta, a former British colony. This far-sighted diplomat, Arvid Pardo, urged the General Assembly to declare the seabed a common heritage of mankind. He pointed out, in the face of rude innuendos from the US, that mankind would face “truly incalculable dangers … were the seabed and the ocean floor beyond present national jurisdiction to be progressively and competitively appropriated, exploited and used for military purposes by those who possess the required technology”. He therefore called for technological progress in a peaceful manner within a “just legal framework”. This was the starting point for UNCLOS, acquiring for Pardo the epithet ‘Father of the Law of the Sea Convention’.
The advocates of freedom of the sea, led by the US and a few other industrialised nations, did not openly oppose UNCLOS but made every attempt to undermine it. This they did by passing unilateral national legislation in a coordinated manner on deep seabed mining just before the adoption of the international convention in 1982 which the US refused to sign outright. A couple of years earlier it had passed its own Deep Seabed Hard Mineral Resources Act. Till today the US has not ratified UNCLOS though it has participated in negotiations related to it all along. It has, however, signed the BBNJ Treaty.
Moves towards a new treaty began to be made as it was realised that UNCLOS was proving inadequate in addressing the issue of conserving biodiversity, pressure for which has increased manifold since 1982. According to a report released by the International Union for Conservation of Nature (IUCN), that played a central role in formulating BBNJ, the UN General Assembly created a working group in 2004 to study the issue of biodiversity protection for the high seas. This working group formed a package in 2011 on the basis of which intergovernmental negotiations could be conducted to reach an agreement on protecting marine biodiversity and sharing the benefits of marine genetic resources. Finally, negotiations for the agreement began in 2017, resulting in the adoption of the BBNJ Treaty six years later.
With a 7,500-km coastline that abuts the Indian Ocean, India has big stakes in the resources that can be obtained from the sea. It is not surprising, therefore, that it was one of the earliest to explore the Ocean more than 60 years ago as part of a 20-country effort that used 40 vessels.
That experience led to the creation of the Indian Ocean Biology Centre that in turn became the National Institute of Oceanography in 1966. It joined in exploration of the deep seabed over four decades ago when RV Gaveshani recovered a potato-sized polymetallic nodule from the Indian Ocean. Since then, India has continued to explore and has received recognition from the International Seabed Authority (ISA) as a pioneer investor in deep sea explorations. Besides copper, manganese and cobalt ,polymetallic nodules contain nickel that is required for electric vehicle batteries.
At the same time, India has historically spearheaded demands for more equitable opportunities for development as well as protection of the environment. Therefore, it has to tread a delicate balancing path that could amount to running with the hare and hunting with the hounds.