A legally binding text that calls on the responsibility of states for the preservation of international waters and their resources. This is how the jurist Moussa Bala defines the International Treaty for the Protection of the High Seas, adopted in June 2023 at the United Nations. In this interview with Afrik21, the expert in maritime law and researcher at the Circle for Studies and Prospective Research for Development based in Cameroon explains the stakes of this new text for both African countries and the countries of the North.
Benoit-Ivan Wansi: This July 25, 2024, marks the ninth edition of African Seas and Oceans Day. It is commemorated just two months before World Maritime Day (September 26), whose theme chosen by the International Maritime Organization (IMO) is « Navigating to the Future: Safety First! » What does this mean to you?
Moussa Bala: This theme is important on three levels. Firstly, thinking about navigating towards the future with a focus on safety evokes prudence, foresight, and the protection of international maritime trade. It also suggests the importance for states and maritime partners to take measures to ensure a safe and stable future—while identifying and avoiding potential risks and maintaining public order at sea.
It is in perfect synergy that states must coordinate the rational use of sea spaces while intensifying the relentless fight against maritime piracy and other acts of banditry in the maritime waters under their jurisdiction.
After several years of waiting, the international community—through delegates of the Intergovernmental Conference on Marine Biodiversity, finally adopted in June 2023 the International Treaty for the Protection of the High Seas. In your opinion, is this a major advance, particularly in relation to the 1958 High Seas Convention?
Obviously, it is a major advance in that the convention adopted in June 2023 goes even beyond the 1958 High Seas Convention and the 1982 Convention on the Law of the Sea. The issue of collective responsibility arises concerning the good faith execution of international treaties. Repression will be at the forefront because it is the major element of this change. The protection of marine resources and maritime navigation has been strengthened, and it is up to each state to ensure the implementation of this new convention so that in the face of the global threat, the response is global.
The Treaty calls for the creation of marine protected areas, the « mandatory » conduct of environmental impact assessments for activities planned in the high seas. Is it independent and legally binding knowing that industrial giants, with the complicity of some governments, have accelerated overfishing and mining (cobalt, copper) in the seabed in recent years?
Law, being considered an uncontestable discourse of power, needs force to be observed. It is up to the states and international jurisdictions to condition the use of the high seas and its resources in strict compliance with the relevant provisions of the said convention. However, it is the complicity of these governments with the industrial giants that could hinder this dynamic of effective protection of resources and their optimization.
The creation of marine protected areas, the conduct of environmental impact assessments, and the fight against overfishing at sea are indeed concrete recommendations of the Treaty to strengthen the conservation of marine ecosystems and the preservation of biodiversity in our oceans. Marine protected areas play a crucial role in protecting fragile marine habitats by limiting harmful human activities and promoting the regeneration of fish populations and other marine species. Environmental impact assessments, on the other hand, are necessary before implementing coastal or maritime projects to assess the potential consequences on the marine environment and propose mitigation measures to limit damage. Combating overfishing at sea is essential to preserve fish stocks and ensure the sustainability of fishing activities. This involves setting fishing quotas, strengthening controls and regulations, and developing responsible fishing practices. By combining these various measures, it is possible to promote sustainable management of marine resources and contribute to the protection of oceans for future generations.
How do you interpret the « sharing of benefits generated by the exploitation of genetic resources in international waters » highlighted in the Treaty?
The main provisions of this agreement focus on benefit-sharing for the benefit of developing countries, their access to information, and the transfer of technical skills following procedures comparable to those of the Convention on Biological Diversity. The concern we can raise is related to the fairness and proportionality of this distribution. We note that developed countries are the most advantaged in that they have proven technical expertise in the exploitation and exploration of marine resources. If the convention agrees that the compensation should be fair, it remains to be seen if the most vulnerable states will have access to these finances from the marine blue economy.
While Africa has up to 38 coastal countries, several countries such as Angola, Benin, and Madagascar still refrain from signing the new text. Some due to revenue losses (hundreds of billions of dollars according to the African Union-AU) orchestrated by illegal activities in the cross-border maritime domain and others perhaps in the name of the controversial historical past, knowing that thousands of Africans lost their lives in the oceans during the slave trade and colonization. What is your interpretation of this?
An international convention has always been consensual. This means that it is following the will of the states that it is adopted and implemented. Obviously, this Treaty calls for fair international trade not only between the North and the South but also with landlocked nations. The historical past of colonization and the slave trade resurfaces each time in the minds of Southern states when there is an international dispute. We therefore understand their skepticism, which is naturally legitimate. The call we are making is for the good faith execution of this Treaty so that every actor of the sea, beyond the developed states, is more open and fulfilled.
In your opinion, how should states balance their own maritime law legislations with this international regulation? Moreover, what is paramount and sovereign in all this legal framework?
The question of hierarchy between domestic law and international law has long been settled. International law prevails over domestic law in accordance with the hierarchy of norms theorized by Hans Kelsen (Austro-American jurist of the 20th century, Editor’s note). International law summarizes the will of several states, while domestic law is the result of the expression of a single will. The maritime space is subject to the regime of international law because all sea spaces other than internal waters fall under co-sovereignty. International law remains and is therefore paramount in all issues related to maritime space.
Let’s take an example of the application of this Treaty currently being signed and ratified. With water stress affecting several regions of the world, countries such as Morocco, Spain, and Malta are turning to desalination, which involves converting seawater into freshwater to meet consumption and industrial needs. However, the discharge of brine (on the coasts) resulting from this practice could endanger fauna and flora in the long term. How to establish responsibilities and potentially manage a dispute about marine biodiversity in the Mediterranean?
Any potential conflict involving the responsibility of a state at sea is settled by the International Tribunal for the Law of the Sea (in Hamburg, Germany, Editor’s note) and the International Court of Justice. The right to exploit and transform seawater is an acquired right. However, when this use causes harm to the international community of states, the responsibility for « internationally wrongful acts » will be held. The coastal states of the Mediterranean Sea must naturally rationalize said transformation and protect marine species regardless of the activities carried out there (desalination, etc.). It is also an obligation arising from several international conventions on maritime law that is reinforced by the text of June 2023.
What about seaside tourism? Is it within the scope of the high seas, and should we consider harmonizing international legislation in this area, since the environmental consequences of this sector—among which is ocean pollution—go beyond maritime borders?
The harmonization of seaside tourism and the responsibility regarding ocean pollution are complex and important issues to consider when talking about international waters, which are an integral part of the high seas. In this regard, it is essential to promote sustainable tourism practices that respect the coastal and marine environment by the states. This involves adopting measures to reduce plastic pollution, limit the discharge of harmful substances, preserve marine ecosystems, and raise awareness among tourists and local actors about the importance of protecting the oceans. Environmental regulations, beach-cleaning initiatives, sustainability certifications for tourism establishments, and international cooperation are all means that can help harmonize seaside tourism while taking responsibility for ocean pollution globally.
Is the International Treaty for the Protection of the High Seas sufficient today as a mechanism to achieve the 14th Sustainable Development Goal (SDG14)? Are there other legal and economic approaches that the international community should explore for the preservation of our seas and oceans?
The international treaty for the protection of the high seas, although sufficient to achieve the 14th Sustainable Development Goal (SDG14), needs to be supplemented to be effective. It is particularly necessary to prioritize the economic approach for the mobilization and optimization of financial resources to protect the seas and oceans. States must therefore avoid going it alone and combine their efforts on all fronts so that the maritime space truly becomes the future of humanity.
Interview conducted by Benoit-Ivan Wansi
Source: Afrik21
