New High Seas Treaty 2023: What Does It Mean for Somalia?
1.1 Brief History
International law inevitably plays a more significant role in all states’ actions due to increased globalization and the interconnectedness of states’ actions. In fact, for any nation to secure its development and advance international stability, it is now imperative that it play a significant role in the global community. Due to its global interconnectedness, Somalia is state party to numerous international and regional treaties including the Third United Nations Conference on the Law of the Sea (UNCLOS III). On July 24, 1989, Somalia became the fortieth state to ratify UNCLOS III and entered into force for Somalia on 16th November 1994.[1] Somalia did not take part in the First and Second United Nations Conferences on the Law of the Sea convened in 1958 and 1960’s because it was then still under the European colonization such as Britain and Italy.
Somalia is a party to several international laws of the sea agreements of multilateral nature. They include: the 1978 Convention on the International Maritime Organization, in accordance with Article 60 of the Convention.[2] The international Convention on Load Lines, [3] UN Convention on the Conservation of Migratory Species of Wild Animal [4] and a key international treaty for the conservation and sustainable use of global biodiversity, the UN Convention on Biological Diversity (CBD) which is crucial for marine nature conservation, Rio de Janeiro, 5 June 1992[5] among many others.
1.2 A Constitution for the Oceans
The UNCLOS III defines ocean zones, rights and the obligations of states within those zones; it establishes organizations to carry out collective responsibilities in both defining the national jurisdiction and managing mineral resources beyond those limits.[6] However, during the negotiation of UNCLOS, some states objected to some of these rights, in particular the treatment of seabed minerals in areas beyond national jurisdiction. Some State Parties involved in the conservation and management of specific marine resources (such as highly migratory fish stocks) sought to modernize, elaborate, and operationalize the process following the adoption of UNCLOS. In response to objections or calls to build on the legal framework, the U.N. General Assembly (UNGA) adopted three implementing agreements under the UNCLOS rubric. This in focus provides context for these implementation agreements and their relationship to UNCLOS.[7]
These are the three implementing agreements: –
I. The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (Commonly known as the 1994 Agreement)
On July 28, 1994, the General Assembly passed Resolution 48\263, which established the Agreement Relating to the Implementation of Part XI of the Convention (henceforth referred to as the 1994 Agreement). The Agreement was available for signature until July 28, 1995[8] And the Agreement entered into force on 28 July 1996.
The Convention and the Agreement are to be read and used together as a single document. Should there be any inconsistency between the terms of the Agreement and Part XI of the Convention, the Agreement’s provisions shall take precedence. After the adoption of the Agreement, any ratification or accession to the Convention represents also consent to be bound by the Agreement. and no State or entity can establish its consent to be bound by the Agreement unless it has previously established or establishes at the same time, its consent to be bound by that Convention.
States that were parties to the Convention prior to the adoption of the Agreement are now required to establish their consent to be bound by the Agreement, separately, by depositing an instrument of ratification or accession.[9]
However, the first Implementation Agreement of 1994 addressed some issues that had been brought up, mostly by the industrialized countries,[10] regarding the seabed mining provisions found in Part XI of the Convention.
Somalia has neither signed nor ratified the 1994 agreement relating to the implementation of Part XI of the UNCLOS[11]. It consists of 10 articles dealing mainly with procedural aspects such as signature, entry into force and provisional application. Its article 2 deals with the relationship between the Agreement and Part XI of the Convention and it provides that the two shall be interpreted and applied together as a single instrument.
The Agreement has an annex, divided into nine sections, dealing with the various issues that were identified as problem areas during the informal consultations. These include costs to States Parties and institutional arrangements; decision-making mechanisms for the Authority; and future amendments of the Convention.[12]
II. The Agreement for the Implementation of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted in 1995
The Agreement was adopted on 4 August 1995 by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks and opened for signature on 4 December 1995. It remained open for signature until 4 December 1996 and was signed by 59 States and entities. The Agreement entered into force on 11 December 2001, 30 days after the date of deposit of the thirtieth instrument of ratification or accession, in accordance with article 40, paragraph 1, of the Agreement.[13]
The United Nations (UN) Fish Stocks Agreement of 1995 arose in response to a worldwide resource management crisis involving those transboundary fishery resources found both within the coastal state Exclusive Economic (EEZ) and the adjacent high seas – highly migratory fish stocks and straddle fish stocks. The need for the Agreement rested upon the inadequacies of those articles of the UN Convention on the Law of the Sea pertaining to the management of high-seas fishery resources.
Achieving long-term sustainable fisheries is hampered by the difficulty of managing shared fish stocks effectively. This is due to the fact that these fisheries resources account for as much as one third of marine capture fisheries worldwide. They are vulnerable to overexploitation, poor management, illegal, unreported and unregulated (IUU fishing). It is believed that the Maritime Zones of Somalia, and particularly the Exclusive Economic Zone, contain an abundance of fisheries resources, such as sharks, swordfish, King mackerel, Silver sillago, Small-tooth sawfish, tuna family and many others. In order to preserve and safeguard its natural resources, the Government of Somalia need to ratify the Fish Stocks Agreement of 1995.
Under Article 63(2) of the UNCLOS requires States to cooperate in relation to straddling stocks. It reads:
“Where the same stock or stocks of associated species occur both within the EEZ and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub regional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area’’.
These straddling stocks are especially vulnerable to overexploitation because of ineffective management regimes and non-compliance by fishing interests.[14] Most stocks in the high seas probably could be considered ‘straddling’ as they exist both inside and beyond the 200 nautical miles at some point during their life cycles or seasonal migration patterns.
III. 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 ‘The High Seas Treaty’
Under United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, also known as BBNJ, was formally adopted by consensus on 19 June 2023. The Agreement shall be open for signature in New York on 20 September 2023 and shall remain open for signature until 20 September 2025.
The most important thing to do now is for all parties to the UN to adopt the treaty text and then ratify it. It’s hoped that the treaty can be brought into force by the next United Nations Ocean Conference in June 2025 in Nice, France.
For the first time, the member states of the United Nations established a legal framework to protect biodiversity in international waters. The international community has long been aware of the importance of developing a binding legal instrument for the protection of marine biodiversity in maritime zones beyond national sovereignty, in order to fill a legal gap.
The lack of coordination, fragmented coverage, and dearth of clear rules on how to effectively protect these global commons has left them vulnerable to overexploitation and pollution compounded by the effects of climate change. Whilst UNCLOS established a general obligation on nations to protect the marine environment, there have been major gaps in its provisions and their implementation. These vast areas cover nearly two-thirds (64%) of the global ocean – almost half the planet’s entire surface. They include some of the most ecologically vital, yet critically threatened and least protected areas on Earth; less than 1% are fully or highly protected.
Therefore, international negotiations took place to adopt new norms to protect marine biodiversity on the high seas. In particular, the legally binding international instrument related to the United Nations Convention on the Law of the Sea, which concerns the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (The High Seas Treaty, or the treaty).
This project has been negotiated within the United Nations body for several years, moving from a working group to a Preparatory Committee. In this context, the United Nations General Assembly adopted Resolution 69/292 in 2015 to initiate negotiations for the elaboration of this new international legal instrument.
- The General Objective of the High Seas Treaty (BBNJ)
Under the overall objective of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction for the present and in the long-term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination, the BBNJ Agreement addresses four main issues: (
- Marine protected areas and other area-based management tools (ABMT), The BBNJ Agreement: Sets up a procedure to establish large-scale marine protected areas in the high seas. This facilitates the achievement of the target to effectively conserve and manage 30% of land and sea by 2030, which was agreed in December 2022 within the Kunming-Montreal Global Biodiversity Framework.
- Environmental impact assessments (EIA), New activities on the high seas will be subject to detailed, modern EIAs and must consider “cumulative impacts” of multiple human activities affecting the same ecosystem, including the “consequences of climate change, ocean acidification and related impacts.
- Marine genetic resources: The new Treaty aims to balance the freedom of marine scientific research with fair and equitable sharing of benefits of MGRs found in areas beyond national jurisdiction. MGRs are the genetic material of any plant, animal or microbe and have attracted substantial interest from science and industry to develop new drugs and cosmetics, for example. Under the Treaty, MGRs include their digital version (Digital Sequence Information (DSI)).
The Treaty contains obligations to share both nonmonetary benefits – for example, access to samples and increased scientific cooperation – and monetary benefits for both MGRs and DSI. It establishes a financial mechanism into which monetary benefits will be paid, as well as a guaranteed funding stream drawn from national contributions. This will provide a reliable initial funding stream to improve the capacity of developing States.
- Capacity building and technology transfer: A core part of the Treaty is to provide funding to support developing States in increasing their marine scientific and technological capacity, as well as the transfer of marine technology on fair terms so that they can achieve the objectives of the Treaty.
It should be noted that this treaty shall be interpreted and applied in a manner that does not undermine relevant [existing agreements] (Article 5.2)”. Under article 70 provides that no reservation or exception may be made to this agreement, unless expressly permitted by other article of this agreement.
- Institutional Framework
Work will start on setting up the institutions and the mechanisms required to oversee and implement the High Seas Treaty. These include:
- A Conference of the Parties (COP), which will serve as the primary decision-making body. The first High Seas COP will be convened within a year of the Treaty entering into force.
- A Secretariat, which will provide administrative and logistical support, circulate information, and facilitate cooperation and coordination with other international bodies. The location of the Secretariat has yet to be decided.
- A Clearing-House Mechanism managed by the Secretariat, which will serve as a centralized, open access platform for parties to access and provide information, including on MGRs, EIAs, the establishment of high seas MPAs and capacity building.
- A Scientific and Technical Body of expert members from different geographies with multidisciplinary expertise, including traditional knowledge, will advise the COP. These will be nominated by Parties and elected by the COP.
- An Implementation and Compliance Committee that is facilitative in nature and will function in a manner that is transparent, non-adversarial and non-punitive.
- An Access and Benefit-Sharing Committee.
- A Finance Committee with a financial mechanism that, in addition to the core budget for the running of the institutions, has a voluntary trust fund, a special fund and a GEF trust fund.
African States and the BBNJ
As of March 2024, only 12 African Countries Signed the BBNJ and as follows: Congo, Costa Rica, Gabon, Ghana, Malawi, Mauritania, Mauritius, Morocco, Seychelles, Sierra Leone, United Republic of Tanzania, Zambia.[15]
Why is the High Seas Treaty also related to climate change?
Oceans have a major role in climate stabilization. They capture 90 percent of the excess heat and 25 percent of the carbon dioxide emissions caused by human activities. With the increase in global greenhouse gas (GHG) emissions, more CO2 dissolves in the oceans, and waters become warmer and more acidic. Due to these modifications in the ocean’s chemistry, the shells of vital marine species like shellfish cannot grow properly.
According to the International Union for Conservation of Nature (IUCN), at least 41 percent of threatened marine species are impacted. In the fight against climate change, the shipping sector already used different ways to reduce CO2 emissions from sea freight. IMO has worked on a GHG strategy for a reduction in carbon intensity by 70 percent by 2050.
To achieve this target, shipping companies have to be in compliance with carbon emissions regulations. If the de-carbonization of the maritime industry is already on track, the absence of regulations in international waters has led to biodiversity loss and pollution. The implementation of the treaty is a chance to slow down the process and have a positive effect on global warming. Indeed, organisms living in the deep sea capture 33.8 million tons of carbon dioxide daily and store them in seabed sediments. This process of carbon storage by these ecosystems is also called “blue carbon”. The designation of protected areas ensures the preservation of this species.
Recommendation and Conclusion
Somalia lies the Indian Ocean which is the third-largest of the world’s five oceanic divisions and we are endowed with a magnificent, world-famous coastline that is home to a plethora of unique species. However, there is less progress that has been achieved both in the areas within national jurisdictions (Territorial sea, Contagious Zone, EEZ, Continental Shelf and the seabed) and no progress on the high seas has been recoded as well. The reason for the little progress in high seas is obvious.
While addressing the climate catastrophe is more important, this does not automatically mean that Somalia should stop being a party to the BBNJ. This challenge should prompt the need for the elaboration of a BBNJ legally binding instrument which establishes a global process for the establishment of marine protected areas along with other conservation measures which will be universally binding.
The BBNJ Agreement gives new life to the ocean, the earth, and humankind. Somalia will be able to combat poverty and hunger and promote socioeconomic development with the aid of ocean resources. In addition to having to pay up front to fund capacity building for implementing the Agreement after it enters into force, developed countries also have a responsibility to distribute benefits, both monetary and non-monetary, fairly and equally. The Republic of Somalia will experience less financial hardship as a result.
[1] Division for Ocean Affairs and the Law of the Sea, ‘Commission on the Limits of the Continental Shelf (CLCS)
Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Federal Republic of Somalia at https://www.un.org/depts/los/clcs_new/submissions_files/submission_som_74_2014.htm. Accessed on 27/March/2024
[2] Adopted in Geneva on 6th March 1948, Somalia accepted on 4th April 1978
[3] Adopted in London on 5th /April/ 1966 Somalia ratified on 30th /March/1967
[4] Adopted in Germany on 23th /June/ 1979, Somalia Signed on 1st / February/ 1986
[5] Somalia adopted on 11 September 2009
[6] Ahmed Kheir Osman, ‘Modern Law of Sea Zones and Its Practice in Somalia’ (2021) at 70
[7] Congressional Research Service, ‘Implementing Agreements Under the United Nations Convention on the Law of the Sea (2024), https://sgp.fas.org/crs/row/IF12578.pdf. Accessed 7/March/2024
[8] Division for Ocean Affairs and the Law of the Sea, ‘Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements’ (2023) at https://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm. Accessed 11/March/2024
[9] Brown, ED, ‘The 1994 Agreement on the Implementation of Part XI of the UN Convention on the Law of the Sea: breakthrough to universality? (1995)” Marine Policy, Elsevier, vol. 19(1), pages 5-20, January. https://ideas.repec.org/s/eee/marpol.html. Accessed 7/March/2024
[10] On July 29, 1994, the United States of America signed the 1994 Agreement.
[11]Adopted by Resolution No; 48/263 on 28 July 1994 in New York www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-6-a&chapter=21&clang=_en. Accessed 27/March/2024
[12] Division for Ocean Affairs and the Law of the Sea, Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982: An Overview’ (2023) at https://www.un.org/depts/los/convention_agreements/convention_overview_part_xi.htm. Accessed 27/March/2024
[13] Adopted on 4 August at New York www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-7&chapter=21&clang=_en.
[14] Food and Agriculture Organization (FAO), Corporate Document Repository: The State of World Highly Migratory, Straddling and other High Sea, (Rome, 2006 ) www.fao.org/docrep/oo9/a0653e/ao653eOb.htm. Accessed 27/March/2024
[15]UNTC available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en. Accessed 2nd March 2024
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