1. Introduction

The high seas, which are not under the sovereignty of any country and are open to common use, provide an indispensable advantage in economic, technological and political terms with the resources they contain and the strategic opportunities they provide. Due to its importance and unique nature in terms of suitability for establishing sovereignty, there has been an ongoing debate on what extent the high seas will be regulated and what principles will be applied. Many different opinions have emerged regarding the regulation of the high seas in line with dynamics such as the development level of countries, their geopolitical positions, and the commercial purposes of private companies.

The advancement of technology and globalization have highlighted the negative consequences of uncontrolled consumption of high-sea resources. Firstly, the unfair allocation of resources increases inequality between developed and developing countries[1] and further doubts the functionality of accepted systems and principles. Secondly, it has come to a point where it cannot be ignored and denied that overexploitation of high-sea resources causes environmental problems that have impacts on a global scale, therefore the status quo is not sustainable. This problem created the necessity for comprehensive environmental regulation of the high seas. Consequently, after years of negotiations on 19 June 2023 “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 (BBNJ)”[2] has been adopted.

In this respect, regulation of the high seas demands to be revisited since environmental concerns have brought a new dimension. In light of the BBNJ treaty, this article will explore the extent to which the high seas should be regulated, considering discussions between developed and developing countries, and efforts towards addressing gaps in the legal regime to envision a fair and effective system.

2. Freedom of the Sea: Free for All or Freer for Some?

The law of the sea has undergone a period of transition, primarily due to challenges from developing states in terms of ideology and politics, but also to fast technological advancement and financial stress. The legal system of the oceans, which has traditionally been founded on the venerable principle of the freedom of the seas, is one of the fundamental principles of conventional international law that have been contested.[3] It is a question mark whether the ideas that form the theoretical foundations emerged as the product of an intellectual purpose. As the delegate from Chili stated during the Geneva Conventions, it can be argued that there was only one thing that spurred the formation and growth of the law of the sea: interest.[4] From this perspective, Grotius had defended the Dutch East India Company's interests by advocating for maritime freedom rather than just as an academic ideal. Similarly, with mare clausum, the primary reason Selden had refuted Grotius was to protect England's interests. Then, as now, things had shifted dramatically. Nevertheless, the interest, as a main intention behind implementing and expanding the regulations, maintained its position.[5]

Thus, when considered on the basis of "interests", the implementation of freedom of the sea in principle constituted the essence of the legal debate between developing and developed states. The developing countries' dissatisfaction with traditional international law, which they believe reflects the unfair political as well as financial realities, is equal to their criticism of the current international order, which they see as founded on the laissez-faire ideology of economic liberalism.[6] The deeply rooted problem was although the principle favoured the freedom of contract, fair distribution of resources and prospects, as well as parity in bargaining power, were not assured.[7] When looking at the practical consequences of the law of the sea regime so far, it appears this argument has concrete evidence. For instance, from the US perspective, domination of the high seas is indispensable economically and politically. Even now, the current regime which is mainly based on the United Nations Convention on the Law of the Sea (UNCLOS)[8] facilitates gas and oil access for the U.S beyond 200 nautical miles, reclaims the valuable deep seabed mining sites it has abandoned and obtains U.S. approval before transferring seabed profits.[9]

Accepting this principle without any restrictions does not seem rational, as inequality between sovereigns increases with the development of technology. Based on the argument of the suitability of the high seas for common use, they should be evaluated as "res communis" and as a result, as opposed to the principle of freedom of the sea, the "common heritage of mankind (CHM)." The concept has emerged as a counter idea by developing countries.[10] The idea, radical enough, promised strong opposition to the previous understatement that, under the "first come, first served" principle, a state may assert, obtain, or utilize exclusive rights to resources obtained from particular regions, counteracting any potential technological, economic, or strategic benefits that a state may so achieve.[11] The notion was introduced in its most comprehensive form by the Law of the Sea Convention. Because it was so intricate and complicated, some of the most significant states hesitated to sign the convention because they believed it to be unsafe and unrealistic.[12]

During the negotiations, Group of 77 supported the creation of an international organization with the authority to regulate mining by other license holders while also being able to conduct seabed mining on its own. Under this arrangement, all States would share in the royalties and profits made by this body's operations as part of the CHM. Strong opposition to this stance came from developed countries, who wanted to see this international body created as a "super registry" of national claims to seabed mining sites, with very little authority to stop mining businesses from using the natural assets of the region.[13] As a result of theoretical discussions, consensus led to the establishment of the International Seabed Authority(ISA). The major challenge faced in this attempt was to identify the common interests attributed to the notion of “mankind”.[14] A traditionalist approach with an economic perspective does not promise an answer to this question since this context is insufficient to objectively and clearly define common goals in the face of conflicting interests. Similarly, based on this principle, the issue of effectiveness and functionality of equitable benefit-sharing mechanisms has not been resolved.[15]

Academics generally explain the CHP's inclusion in UNCLOS as the consequence of a change in meaning that moved the focus from social justice and environmental protection "towards a more market-driven economy.[16] The fundamental mistake although there is a justification, was the claim of CHM as a reflection of the developing states' desire for equality of opportunity. A better strategy would have emphasized the uncontrolled consumption of resources as a global threat. Former, succumbed to the argument that Natural resources can be exploited by anyone as long as no country has exclusive jurisdiction over the area in which they are located, so any country with access has the right to exploit them as much as it wishes.[17] Moreover, it was not difficult for developed countries to put forward liberal theses, such as that they did not find the equal distribution of the benefits they gained from their investments and technologies unfair.[18] However, it is not possible to accept the validity of these claims against environmental concerns. Therefore, on the path to equal share of benefits, the consequences of the exploitation should be emphasized, rather than the question of who exploits.

There are already established concepts in environmental law that will enable qualification in this regard to bring legitimacy and coercion bringing us to the BBNJ treaty as a promising document. Marine Genetic Resources for example, according to Ostrom's classification, are determined as common pool resources.[19] Application of this concept to biodiversity beyond national jurisdiction allows us to point out the necessity of financing the commons and fair distribution of the resources. The allocation of the financial cost is a key component of the principle of common but differentiated responsibilities, which links the industrial development of developed nations and their obligations in combating environmental dangers.[20] From this legal perspective, the incorporation of the funding mechanism into the BBNJ treaty addressing this mutual obligation can be seen as a reflection of inevitable progress.

Thus, we can say that in the ongoing theoretical discussions about the law of the sea, the concept of environmental law, which treats the high sea as a "common", prevails over the concept of freedom of the sea.[21] So far, considering the exploitation of overfishing[22] and seabed mining by developed countries, the protection mechanisms introduced by UNCLOS, the CHM principle, and ISA applications remained ineffective and dysfunctional. ISA's concept of sustainable seabed exploitation is proven self-contradictory and unrealistic in terms of achieving the set targets.

© Hukuki Haber