What does the High Seas Treaty imply for China in the South China Sea and the Arctic Ocean?

March 4^th marks a historic achievement of the law of the sea community with a legally binding agreement reached by the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) after almost 20 years’ negotiation. The BBNJ Agreement, now also called High Seas Treaty, is the culmination of discussions that began in 2004 under the United Nations Convention on the Law of the Sea (UNCLOS) to enhance the conservation and sustainable use of biological diversity in the oceans beyond the exclusive economic zones (EEZ) and continental shelves of states. The new instrument will offer protection to the nearly two-thirds of the ocean that is beyond national jurisdiction and address existing inequalities in sharing the benefits accrued from the organisms of these areas.

China and BBNJ Negotiation

The Chinese government has actively participated and played a constructive role in the negotiations of BBNJ. In general, China insists that the new international instrument should contravene neither current international law, nor existing global, regional, or sectoral marine mechanisms. It holds the view that the new instrument should be consistent with the object and purpose of UNCLOS and should neither impair the integrity of UNCLOS, nor the delicate balance therein. The UNCLOS freedoms and rights in respect to navigation, scientific research, and fishing should not be eroded, while the rights and obligations of coastal States, including those concerning their rights and obligations over the continental shelf beyond 200 nautical miles, should not be affected. Finally, the new instrument should take into account the interests and needs of the international community as a whole, with special attention being paid to the interests of developing States.

China has taken coherent approach in addressing the topics identified in the 2011 package agreed to by all sides of the BBNJ negotiations, namely marine genetic resources (MGRs), including sharing of benefits, area-based management tools (ABMTs), including marine protected areas (MPAs), environmental impact assessments (EIAs), capacity-building and the transfer of marine technology.

With respect to MGRs, China asserts that marine scientific research and innovation shall be promoted, and the access to genetic resources shall be facilitated, without undermining the freedoms of marine scientific research and the regime of intellectual property. The fish as the carrier of MGRs and the fish as a commodity should be differentiated, and the latter should be regulated by the 1995 United Nations Fish Stock Agreement and relevant regional fisheries agreements.

What has been included in the High Seas Treaty is establishment of a Conference of Parties (COP) and its subordinate bodies to consider, manage and monitor the MPAs, which is a coherent position of China during the negotiations. China insists that the objects of the protection of MPAs should be marine biodiversity and MPAs should be established based on the best available scientific evidence in areas that should be identified on a case-by-case basis.

Regarding EIAs, China objects to including the so-called “adjacency principle” and insists on applying the “due regard” rules to address the concern of the adjacent coastal States over the activities in the areas beyond the national jurisdiction (ABNJ).

China holds that capacity buildings and the transfer of marine technology should be based on the principles of equality and voluntariness, win-win cooperation and take into account the interests and needs of developing States. Regarding dispute settlement for the High Seas Treaty, China proposes that when a dispute concerning the interpretation or application of the new international instrument arises, the parties concerned should first resort to negotiation and consultation to settle the dispute. If the dispute is not settled thereafter, the parties may consider submitting the case to a third-party procedure based on explicit mutual agreement.

High Seas Treaty in the South China Sea Context

All the South China Sea states have been actively participating in the BBNJ negotiation and it is foreseeable that they will also ratify this High Seas Treaty, sooner or later. However, it remains a pending question whether there is high sea or ABNJ in the South China Sea, and if, where it is. According to 1953 report of the International Hydrographic Organization (IHO), the South of the South China Sea reaches the “Eastern and Southern limits of Singapore and Malacca Straits as far West as Tanjong Kedebu (1°06’N, 102°58’E) down the East coast of Sumatra to Lucipara Point (3°14’N, 106°05’E) thence to Tanjong Nanka…” If this is accepted, then it is likely that there is a high sea or ABNJ outside the U-shaped Line in the South China Sea. However, within the U-shape Line, it remains unclear whether there is high sea.

The Award of the South China Sea arbitration in July 2016 rules that none of the maritime features in the South China Sea can claim an EEZ and a Continental Shelf and China’s claims to historic rights within the U-shaped Line are groundless and contrary to UNCLOS. Based on this, it seems that there is a large area of high seas within the U-shaped Line in the South China Sea. China, however, does not accept the Award. In addition, the Award did not rule on every aspect of historic rights and its short discussion of offshore archipelago was a side issue. Thus, other States should be cautious in how they develop state practice based on some aspects of the Award.

In addition, given that multiple maritime delimitations between coastal states in the South China Sea are still pending due to the unsettled territorial disputes, and due to the divergent legal positions of the coastal states on the methods of delimitation, and on the weight given to a maritime feature, it is still too early to define where are the areas beyond the national jurisdiction that fall in the applicable scope of the High Seas Treaty.

Most relevant to the South China Sea in the context of the High Seas Treaty is ABMTs, including the establishment of MPAs, among others. Although almost all the South China Sea coastal states have created a national system for establishing MPSs, but the discussion on establishing MPAs in the center of the South China Sea— potentially beyond national jurisdictions, is hard to make progress given the geopolitical tension and pending maritime delimitation in this region. The historic landmark of the High Seas Treaty may provide a window to enhance maritime cooperation, particularly on marine environment protection, to break though the current political ties. For example, a consistent monitoring and evaluation of MPAs could improve the effectiveness of MPAs by addressing challenges such as determining how to make existing MPAs form effective networks to address larger ecosystem conservation needs, how to scale up efforts to cover larger areas that are more strategically selected, or how to provide monetary and moral support to new and existing MPAs.

High Seas Treaty in the Arctic Context

One principle of the High Seas Treaty is not undermining the existing legal retime. In 2018, five Arctic coastal states and five other members, including China, reached the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement), which aims to prevent unregulated fishing in the high sea portions of the Arctic through the application of precautionary conservation and management to safeguard marine ecosystems, as well as the conservation and sustainable use of fish stocks. This principle is congruent with the High Seas Treaty that aims to ensure the conservation and sustainable use of marine biological diversity of ABNJ.  The High Seas Treaty also aims to ensure fair and equitable benefit sharing, in addition to achieving global biodiversity targets, while also protecting large marine areas that remain unregulated. The five Arctic coastal states and other members of the CAOF Agreement, including China, through a collective effort to address the fragile ecology of the Arctic, agree on the 16-year moratorium on commercial fishing. Hence, the basic purposes of the two agreements are likely to be consistent with each other or at least to minimize the likelihood of conflict between the two regimes.

Despite the above mentioned congruences, states that are parties to both the High Seas Treaty and the CAOF Agreement may run into potential conflicts in the application and interpretation of the two treaties, which will ultimately lead to potential implications for Arctic governance. China, for example, is not only an active player in the BBNJ negotiations but also one of the state members of the CAOF Agreement. It should not be overlooked that some aspects of China’s position in the BBNJ negotiation—in particular, the proposals for the different treatment of fish as carriers of MGRs and fish as commodities, and the advocacy of replacing “adjacency” with “due regard”—are different from the claims of Arctic coastal states. It remains a question how China’s fishery policy in the Arctic will affect its environmental position on the four major issues of the High Seas Treaty in the future.