At the fourth Intergovernmental Conference on a new convention on biodiversity beyond national jurisdiction, Pakistan delivered a speech outlining its position as part of the Group of 77 countries in the Non-Aligned Movement, along with China. The speech outlined the homogenous position of the Global South in terms of the conceptual underpinnings and broad procedural framework of high seas governance. According to Pakistan:
[T]he principle of the common heritage of mankind should guide and underpin the new legal regime for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including the access and sharing of benefits of marine genetic resources (MGRs). This principle provides a legal foundation for a fair and equitable regime that would allow all countries to benefit from the potential that marine biodiversity represents in terms of global food security and economic prosperity, and to address the challenges of conservation and sustainable use of MGRs of areas beyond national jurisdictions.
The emphasis on the ‘common heritage of mankind’ indicates that the high seas are an important part of the global commons. This position indicates a shift away from the current position adopted by the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), which is the primary governing document on the international law of the sea. Under the UNCLOS, the high seas were governed under the concept of the ‘freedom of the high seas’, indicating that the high seas were not subject to any claims of sovereignty. The common heritage principle, however, indicates that the sustainable use of the high seas is the responsibility of all States.
While it is uncertain exactly what benefits high seas exploration may have for humanity, it is clear that not all States are equally poised to reap the full benefits of high seas exploration. Distance from the high seas makes it difficult for landlocked States to launch exploration expeditions, and the investment in technology and infrastructure required is often beyond the capabilities of several developing nations. Furthermore, without a clear governance framework, the high seas have been prone to significant pollution and overfishing. The lack of an effective oversight mechanism can lead to considerable environmental degradation at the high seas, which disproportionately impacts native ecosystems, with almost 25% of species at the high seas currently at risk of extinction.
Contents of the High Seas Treaty
The draft High Seas Treaty covers four main areas which incorporate the principle of the ‘common heritage of mankind’, namely capacity-building and technology transfer; environmental impact assessments; fair and equitable benefits-sharing; and area-based management tools.
First, the Treaty creates obligations for developed State Parties to engage in capacity-building and the transfer of technology to developing State Parties (Article 43). This obligation recognises the disproportionate economic, scientific and technological advantage developed Stateshave due to their economic power. Bearing in mind different State capacities, States are only responsible for providing what they can afford under this mechanism (Article 44). This obligation includes the sharing of knowledge and research, infrastructure, management resource capabilities and the development of ‘technical, scientific and research and development technology’, among others. While the modalities of CBTT will be established by the Conference of the Parties (COP), a financial mechanism is established under Part VII of this Convention as the dedicated mechanism for CBTT.
Second, the Treaty outlines a broad framework for conducting environmental impact assessments (EIAs). Before conducting any exploration activities that may have more than a minor or transitory effect on the marine environment, the Party with control of the activity must submit an EIA under Article 30 of the Draft Treaty to the Scientific and Technical Body established under Article 49 of the Draft Treaty. Upon approval of the EIA, the Party may proceed with the proposed activities. The COP will further elaborate upon the technical modalities of EIAs. However, the oversight mechanism maintained by the Body will ensure that States observe and maintain their EIA obligations and that all States have the same EIA obligations.
Third, the Treaty proposes a framework for access and equitable benefits-sharing under Article 11. This pertains to the discovery of beneficial uses of marine genetic resources (MGRs) from the deep seabed. The biodiversity in the high seas may have a diverse range of uses, from ‘pharmaceuticals, agriculture, biotechnology, bioremediation, cosmetics, food, nutraceuticals, industrial processes and scientific research.’ Under the UNCLOS, there is no benefit-sharing mechanism, which the High Seas Treaty tries to introduce to bridge the gap between developed and developing nations. Without an equitable benefit-sharing scheme, developed States would be in a position to monopolise the advantages of MGR exploration, particularly in scientific and technological advancements. With this regime in place, developing States, particularly landlocked States and small-island developing States, will not necessarily lose out.
Lastly, the Treaty proposes a centralised framework for area-based management tools (ABMTs), such as marine protected areas (MPAs), where human intervention is regulated. These will be approved by the COP, which will also outline the rules and regulations for overseeing ABMTs. The duty of overseeing ABMTs falls on the State Party proposing it, which will be monitored by the COP. ABMTs will play a major role in preventing overfishing, pollution and other harmful activities in the high seas. Thus, they serve as zones of regulation in the high seas that are directly under the control of certain States.
The Need for High Seas Governance for Pakistan
Source: The Third Pole
Pakistan’s oceanscape is a critical geostrategic asset for the nation. With its singular coastline along the south, Pakistan’s exclusive economic zone (EEZ) borders the EEZs of India, Oman, and Iran. The high seas are situated beyond the EEZ, extending into the Indian Ocean. The proximity to the high seas is a geostrategic advantage for Pakistan to invest in capacity for high seas exploration, including uncovering important marine genetic resources. It also positions Pakistan well to establish area-based management tools (ABMTs), such as marine protected areas (MPAs), to become a key stakeholder in conservation efforts in the Indian Ocean. Overall, Pakistan’s geostrategic location makes it an important stakeholder in the governance of the high seas and can make it an important State for ensuring the principles of the High Seas Treaty are respected in the high seas closest to its waters.
As the leader of the G77+China in 2022, Pakistan was at the forefront of advancing the position of the Global South and developing countries at negotiations. Throughout negotiations, Pakistan provided multiple recommendations to the various drafts of the Treaty. Although these have not been specific changes to the language of the provisions, Pakistan’s suggestions targeted both the substantive and procedural contents of the Treaty. The majority of Pakistan’s recommendations are in line with the G77 position and are reflected in the Draft Treaty text. For example, at the fourth session, Pakistan was in favour of a global fund for capacity-building; the alignment of ABMTs with existing regulatory frameworks, such as regional fisheries management organisations; and the optimum/judicious utilisation of monetary and non-monetary benefits through the sustainable use of resources, equitable benefit-sharing related to MGRs.
Currently, Pakistan does not have a high seas exploration programme. As one of many developing countries involved in the BBNJ negotiations, Pakistan may derive important economic benefits to its blue economy from capitalising on high seas exploration after the Treaty is finalised. One of the most important benefits would be access to high seas fisheries, which could combat Pakistan’s rising food insecurity. This would, in turn, create opportunities for employment and foreign direct investment, particularly under the capacity-building obligations under the Treaty. However, because high seas fisheries have been known to be exploited, Pakistan’s access to these resources would be limited by considerations of sustainability and international cooperation. Pakistan may also be required to submit EIAs to the Scientific and Technical Body before commencing fishing activities and may be subject to increased monitoring by the BBNJ COP.
Similarly, the scientific and technological advancements that MGRs may provide could be economically promising for Pakistan. MGRs can provide significant benefits in pharmaceuticals, cosmetics, food supplements, industrial processes, and other research tools. As a country facing increasing food and health insecurity, Pakistan may draw several benefits from a high seas programme and the information-sharing mechanism proposed under the Draft Treaty. This may also become an important source of trade revenue, as Pakistan can capitalise on its proximity to the high seas to acquire important genetic material through the sustainable use of MGRs governed under this Treaty. The establishment of a clearing-house mechanism under Article 51 of the Draft Treaty would allow Pakistan to benefit from the MGRs as well. Nevertheless, this economic opportunity may only be availed with successful international cooperation under this Treaty.
Pakistan can also play an important role in the conservation of biodiversity in the Arabian Sea. The Arabian Sea is prone to various kinds of pollution, particularly oil spills, as the Sea is a popular trade route for transporting oil from oil-rich countries in the Arabian Gulf. In the waters adjacent to Pakistan’s EEZ, Pakistan can develop ABMTs to prevent overfishing, polluting activities and damaging seabed mining. This can be done in conjunction with other States whose EEZs are bordering the High Seas, with which Pakistan has a strong relationship, such as Oman. This will allow for the sharing of resources and technological capacity necessary to promote conservation, which each State may be unable to fulfil on its own.
The passing of this Treaty may prove to be imperative to Pakistan. As a coastal State, it is well-positioned to benefit from the international cooperation under the Treaty. Without a clear governance framework on the high seas, Pakistan risks losing out on these benefits that may prove to be an important economic resource.
However, one must not be too hopeful about the opportunities a high seas programme in Pakistan may provide. Indeed, developing high seas capacity will take considerable time and resources, and in Pakistan’s case, will only be realistically possible with international cooperation. Thus, these recommendations are long-term in nature. Nevertheless, the world awaits the formal adoption of the Treaty and the subsequent operationalisation of its institutions.