Who Owns the Ocean? The High Seas Treaty and the Ethics of Access

The article “Who Owns the Ocean? The High Seas Treaty and the Ethics of Access” will explore the legal issues, equity issues, and vagueness related to the principle of the common heritage of humankind in regard to ocean management under the High Seas Treaty.The high seas are considered a “global common” and are not "owned" by any single nation. The UN High Seas Treaty, also known as the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement, establishes a legal framework under the UN Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of these areas for the benefit of all humanity.

The High Seas Treaty, officially enacted into the convention of the United Nations on the Law of the Sea (UNCLOS) in 2023, is a historic move to regulate marine biological diversity in areas beyond national jurisdiction (ABNJ). With a greater focus on ocean governance, climate resiliency, and fair distribution of marine genetic resources, the treaty aims at setting the stage for creating an overarching framework on the conservation and sustainable use of the high seas-the large maritime areas which are not under the sovereignty of any particular state. At the heart of its philosophical and legal framework, the principle of the common heritage of humankind, declaring that the high seas must benefit all nations fairly, regardless of their technological or economic potential, is present.However, there are serious challenges facing the implementation of the treaty. These are a lack of jurisdiction, limited enforcement abilities, and geopolitical frictions between the developed and the developing states. Further, the language of the treaty, especially the part on benefit-sharing, environmental impact assessments, and compliance mechanisms, has been subject to criticism, which has found some ambiguity in it, thus creating challenges to its efficiency in reality.

This article critically assesses the structural and normative barriers of the treaty, the sense of, and the connotations of the concept of common heritage, and analyses whether the vague nature of the treaty is a fatal flaw to its transformative capability in the governance of oceans in the world. It is in this lens of analysis that the article aims to find out whether the treaty is a differentiated step in the right direction or a divisive compromise.

The High Sea Treaty and Future of ocean governance

The HST, announced in 2023, is being developed as the cornerstone of international law and maritime jurisdiction in the field of environmental law.

High Seas and the necessity of control
The high seas, one of the oceans that are outside the control of a country, comprise almost half the surface of the earth and over 90 percent of habitable space. These ecosystems have traditionally been under-researched, and due to that, have experienced overuse, contamination, and biodiversity loss, despite their ecological and economic importance. This has created a regulatory vacuum because of the lack of a framework that is legally binding to regulate marine genetic resources (MGRs), environmental impact assessment (EIAs), and area-based management tools (ABMTs) in these areas. The High Seas Treaty or the Biodiversity beyond National Jurisdiction (BBNJ) Treaty aims at sealing these loopholes by creating a new legal framework of conservation and sustainable use.

A Multilateral Environmental Framework
The treaty marks the product of almost 20 years of negotiations amongst the United Nations members and outlines a verification of a susceptibility to the urgency of conserving marine biodiversity. It comes up with clauses to share benefits fairly among MGRs, compulsory EIAs on operations in ABNJ, and establishing marine protected areas (MPAs). Besides, the treaty concentrates on capacity-building and the transfer of technology so that the developing nations can have a voice to contribute to ocean science and governance. This is a multi-lateral milestone and it is generally considered a key milestone towards the realisation of Sustainable Development Goal 14: Life below Water.

Common Heritage of Humankind
The most significant aspect of the treaty is based on the principle of the common heritage of humankind, which is a normative principle stating that global commons should be treated as common to the good of all, i.e., the deep seabed and outer space. This principle does not support the traditional ideas of sovereignty and exclusive rights of economic activities, but encourages equality, intergenerational fairness, and common stewardship. However, the application of this principle to high seas is a debatable issue, especially in regard to access and commercialization of MGRs.

Critical Analysis
Along with the treaty being heralded as a diplomatic breakthrough, there are also some complex legal, ethical, and geographic questions that it brings out. The following paragraphs will discuss the difficulties with the implementation of the treaty, conflicting interpretations of the common heritage principle, and uncertainties that can roll back the treaty.

Difficulties of Implementation and Enforcement

The High Seas Treaty faces a significant impediment in implementation and enforcement due to the jurisdictional gaps, technological asymmetries, and unresolved geopolitical tensions.

Complexity of Jurisdiction and Authority
The High Seas Treaty goes beyond national jurisdiction (ABNJ) which does not have a centralised enforcement power. As a result, a legal loophole arises, of which the overlapping mandates of regional fisheries organisations, the environmental conventions, and provisions of UNCLOS make it more difficult to coordinate. Failure to have a supranational enforcement mechanism would mean that compliance depends on voluntary action by states, and rightful questions arise about accountability and consistency, and even uniformity in treaty obligation implementation.

Capability and Technology Inequality
The implementation of the practice is further limited due to extreme disparities in technological and scientific resources existing between developed and developing countries. Advanced tools, like satellite surveillance and deep-sea exploration devices to be used in marine surveillance and the development of environmental impact assessments (EIAs) and the use of marine genetic resources (MGRs), are essential to monitor the protection of marine parks, explore the oceans, and perform comprehensive genomic databases. Many Global South nations do not access these resources, thus becoming exposed to marginalisation in the process of benefit sharing and decision-making processes despite the direct approach of equity and capacity building made by the treaty.

Unclear Compliance and Monitoring Mechanisms
The wording of the treaty with regard to adherence is still indistinct, especially in the areas of resolution of disputes, implementing EIAs, and the management of the sharing of benefits. Though a Conference of the Parties (COP) is suggested to oversee implementation, it has no clearly defined powers. Lack of binding punishment or penalties in case of non-adherence is a weak deterrent measure of the treaty. In addition, the fact that the verification and the dissemination of the monitoring data are not clear provokes serious transparency issues.

Geopolitical Rivalry and Resource Wars
Backing geopolitical tensions also pose enforcement challenges. The developed states, with superior marine research systems, can usurp MGRs' access privileges, whereas developing nations promote fair benefit-sharing on the basis of the common heritage of humankind. Such strain is in the form of wrangles over intellectual property rights, data sharing, and the source of funds. In the absence of strong protection, the treaty is prone to perpetuating the prevailing inequalities instead of reducing them.

The Principle of the Common Heritage of Humankind

The High Seas Treaty relies on the principle of common heritage of humankind; however, its interpretation and application remain controversial on the legal, ethical, and geopolitical levels.

Historical Foundation and Legal Foundation
The idea of common heritage of humankind first appeared in international law with the 1982 United Nations Convention on the Law of the Sea (UNCLOS), especially when the deep seabed was concerned. It claims that some global commons like the high seas, outer space, and Antarctica should not be nationalized but need to be governed for the common good of the entire humanity. This principle questions old views of sovereignty and market-controlled exploitation, focusing on equity and intergenerational fairness, and peaceful use.

Use in the High Seas Treaty
This principle was extended to the marine genetic resources (MGRs) within Earth's water, which is beyond that of any single nation, under the 2023 High Seas clearing Biodiversity Beyond National Jurisdiction (BBNJ) treaty. It requires equal and just distribution of the fruits of using these resources, such as scientific knowledge, transfer of technology, and monetary returns. The benefit of this provision is to avoid the monopolisation of technologically advanced countries and to ensure that all countries join in marine research and innovation.

Moral and Geopolitical Dilemmas
The principle is normatively acceptable; nevertheless, it has opposition to its application in a real-life scenario. Developed nations tend to promote access to intellectual property through commercial incentives and access rights, but the developing countries are focused on ownership in common with benefit-sharing. This conflict generates tension in the discussion of access to data, patenting of pharmaceuticals based on the marine environment, and the funding of their development. Such ambiguity in relation to the allocation of benefits, especially the non-financial ones like research data, brings to mind issues with equity and transparency.

The Ambiguities and Political Contestations Principle

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Unclear Language and Legal Uncertainty
The facets of benefit-sharing provided in the treaty, environmental impact assessment (EIA), and marine protected areas (MPA) are provided in non-binding broad terms. Such terms as fair and equitable or as appropriate are not legally defined with strict rules, thus giving way to different interpretations. It is a weakness of the treaty because this ambiguity undermines the law and diminishes the enforceability of the treaty obligations. To illustrate, despite the fact that the treaty requires EIAs of activities in the areas outside national territorial waters (ABNJ), there are no indications of thresholds, which signal the application of neither the assessment, nor a mechanism to ensure the review, which should be viewed as a fairly valid concern with regard to procedural integrity.

North-South Divide and Equity Concerns
In most cases, political contestations are evidenced in the dichotomy between the developed and developing states. High-tech maritime nations, with the latest marine research capacity, often put forward liberal accessibility of marine genetic resources (MGRs) and the leadership that is based on information-driven decision-making. In its turn, developing countries predict the concept of the common heritage of humanity and demand the establishment of binding obligations with reference to profit-sharing and capacity-building. This strain is indicative of more serious structural injustices of world science and technology, in which control over oceanic information and biotechnological infrastructure is beheaded by the Global North.

Ambiguities over Institutional Governance
The treaty suggests the creation of a Conference of the Parties (COP) to oversee the implementation, but it does not provide the mandate of the COP, how it will decide, or what powers it will have. There is no clear advice that draws attention to dispute-resolution tools, supervision of cross-jurisdictional compliance. Lack of a coherent enforcement mechanism or binding dispute-resolution system can only serve to diminish the COP to a symbolic organisation instead of an operational one. This kind of institutional uncertainty can allow strong states to control the outcome of governance, thus marginalising the less-resourced countries.

Green washing and Strategy Drags
Marginal loopholes of the treaty are also a source of greenwashing, when the states or corporations can announce that they are complying without making actual efforts. The absence of clear conservation performance standards and transparency of oversight systems can encourage facade performance. Additionally, key delays created by maritime powers during their ratification or implementation of the treaty can also delay the process, eventually undermining the credibility and momentum of the treaty.

Conclusion

The High Seas Treaty is an interesting advancement towards the sphere of environmental management of the sea, where biodiversity protection in environments outside the expected boundaries of nation-states is attempted by establishing fair and sustainable regulatory standards. However, its level of effectiveness depends on how critical barriers to implementation, enforcement and institutional coherence are resolved. As much as the principle of the common heritage of humankind is ethically compelling, its implementation is challenged by geopolitical asymmetries and variationsin ideas of equity and access. Furthermore, the vague nature of the treaty, as well as the lack of properly stipulated compliance procedures, poses a threat to its transformative power. Without well-developed legal tools, pluralistic systems of governance, and real multilateral cooperation, the treaty will remain unsuccessful at attaining its utopian goals. With mounting environmental burdens on the planet, the High Seas Treaty needs to evolve into an effective and enforceable system that achieves success in striking a balance between ecological integrity and distributive justice. What happens to its future will not only be determined by diplomatic consent, but also the political will necessary to bring normative ideals into tangible commitments on a continuum in a series of national and institutional environments.