Most of the world’s ocean is a global commons – an area of sea and seabed that belongs to no one and is outside any nation’s jurisdiction. It’s also an area under growing pressure from mining, fishing and geoengineering interests. But after years of negotiations, a new treaty will come into force in January to govern the use and conservation of the high seas, paving the way for more protected areas in international waters.
The Biodiversity Beyond National Jurisdiction agreement (better known as the High Seas Treaty) reflects the international consensus on best practice for ocean governance, says Elizabeth Macpherson, a professor of environmental law at the University of Canterbury.
The treaty’s guiding principles are clear. Polluters should tidy up their mess. Any benefits, financial or otherwise, flowing from marine resources should be shared equitably. States should take a precautionary approach, especially where the effects of new activities are not well understood. They should accept the ocean is a complex, interconnected system and safeguard its role as a buffer from the worst climate change effects. And they should use the best available evidence and traditional knowledge and respect the rights of indigenous peoples.
More than 70 countries have now ratified the treaty, enough to turn it into law. But New Zealand is not among them despite having been an early signatory in 2023. Cabinet papers suggest the government agreed to ratify and is considering the necessary changes to domestic legislation to implement the treaty, not least because it sits within the UN’s Convention on the Law of the Sea, which the papers describe as an important international treaty essential for security and trade. This wider law underpins our vast exclusive economic zone, 15 times our landmass.
International laws and treaties are not directly enforceable in domestic courts, Macpherson says, but they can still be used to help interpret local legislation. This happened when the Supreme Court unanimously dismissed the appeal by Trans-Tasman Resources in a long-standing dispute about its application for seabed mining off Taranaki. It used the Law of the Sea to direct decision-makers to take a precautionary approach to approving any such applications within our waters.
As we’re the last country reported to be bottom trawling in international waters in the South Pacific, including for orange roughy, this activity is also likely to come under further scrutiny here, Macpherson says. In 2023, environmental advocates took the government to court over catch limits for orange roughy. The decision is pending, but this year, the government reduced the limit by 40%.
The High Seas Treaty introduces new measures to protect wildlife in the deep ocean and creates legal obligations for countries to maintain high environmental standards when managing ocean resources. It doesn’t directly regulate extractive activities such as fishing and mining. But it has implications for their exercise in the high seas because it sets up a system for establishing marine protected areas in support of the Global Biodiversity Framework’s goal of protecting 30% of the ocean by 2030.
This international call to protect more of the ocean and uphold the rights of indigenous peoples stands in contrast to our government’s recent track record, including its failure to set up more marine reserves, its proposal to limit when camera footage on fishing boats is disclosed and its plans to curtail Māori marine and coastal rights and interests.
Macpherson says New Zealand is a rudderless boat on ocean governance. “The policy landscape affecting oceans and coasts is incredibly fragmented. There are multiple different parts of government dealing with aspects of managing the marine environment at different times, in different places and for different purposes.”
