March 15, 2023

The New High Seas Treaty Will Not End the Tragedy of the Global Fishing Commons

Author: Petra Gümplová

After more than a decade of negotiations, this month the countries have finally agreed on a new UN High Seas Treaty. Still to be officially adopted and ratified, this Treaty is hailed as a “breakthrough for the ocean” (weforum) and a landmark moment “ushering in a new era of collective responsibility for our planet’s most significant global commons” (WWF). The Treaty—the very first one to cover the areas of the world oceans beyond national jurisdiction—was finalized in a marathon of negotiations in the UN headquarters in New York City, with the last meeting taking a grueling 36 hours. Announcing the agreement, the conference president Rena Lee of Singapore broke into tears.

The fact that the delegates finally reached consensus on several divisive issues, mainly on the framework for the establishment of marine protected areas and mechanisms to share benefits from high seas resources fairly among nations, is significant. The latter was one of the main stumbling blocks in the negotiations. Developing nations fought hard to ensure that they will benefit equitably from valuable genetic resources of the high seas used in medicine and cosmetics. Despite these achievements, it looks like the Treaty will do little to stop the extractive plunder and the destruction of marine life and end the most paradigmatic and extensive tragedy of the global commons—that of fishing.

The High Seas

The high seas are vast areas in the world oceans beyond maritime zones controlled by coastal countries—exclusive economic zones and national continental shelves extending up to 200 and 350 nautical miles from countries’ baselines, respectively. High seas now cover almost two-thirds of the ocean. They are vast, remote, wild and uninhabitable areas of profound environmental significance. Oceans generate around half of the oxygen humans breathe. They function as the most important carbon sink, sequestering around a quarter of anthropogenic carbon emissions. While playing a crucial role in mitigating climate change, they also provide habitats for hundreds of thousands of species and still unknown biological diversity.

The high seas are also the world’s oldest and most paradigmatic global commons. They were made part of the emerging Law of Nations as common property by Hugo Grotius at the beginning of the 17th century. Grotius developed the idea of mare liberum—the free sea—to support the efforts of the colonial Dutch East India Company to gain access to Asian trading networks hitherto claimed as an exclusive domain by Portugal. Arguing that the ocean was immune from claims of dominium (ownership) and imperium (sovereignty) due to its vast and fluid nature, limitless resources, and the impossibility to be occupied, he proposed that the oceans become a common domain open to all for the purposes of navigation, fishing, and the free pursuit of trade.

For centuries, oceans have been a global common space. They have served mainly as an avenue for the competitive pursuit of trade, colonialism, enslavement, maritime domination, exploration and discovery, and piracy. Open access and unconstrained liberty to navigate, fish, and trade have become the core principles defining the sense in which the ocean has become a global commons. Rather than collectively managed common property, oceans and their resources were for centuries treated as no property, freely available to first takers.

Today, the high seas are smaller due to the extension of national maritime zones created by the 1982 Law of the Sea Convention (UNCLOS). But the freedom of the high seas principle still governs this area. In addition to the classical freedoms of navigation and fishing, it also includes freedom of overflight, the laying of submarine cables and pipelines, freedom to construct artificial islands, and freedom of scientific research. UNCLOS also states that the high seas are to be reserved for peaceful purposes and prohibits slave trade, piracy, illicit traffic in narcotics, and unauthorized broadcasting. Due to the emphasis on openness and freedoms and the lack of effective regulation, the high seas have been highly vulnerable and subject to overuse, plunder, and other kinds of harmful or illegal activities by states, companies, and other agents. Ian Urbina, the author of a series of reports called The Outlaw Ocean, has described the contemporary high seas as a lawless frontier of horrific violence and workers’ exploitation, modern slavery, poaching, animal slaughtering, and piracy.

Fishing and The Tragedy of the Commons

One of the most tragic, harmful, and destructive activities on the high seas is fishing. According to estimates, somewhere between two-thirds (FAO) to three-quarters of fish stocks are depleted or overfished (Global Fishing Watch). Large-scale industrial fishing in the high seas has not only reduced the abundance and diversity of species; it has also interfered with the marine food chain, and reduced the overall resilience of marine ecosystems. The population of the Atlantic bluefin tuna, a gorgeous metallic blue fish considered the ultimate delicacy among sashimi eaters who are willing to pay $1,300 per kilogram, is at 2-3 percent of the population level from the mid-20th century.

Fishing techniques—longlines, gillnets, and bottom trawling—cause enormous harm to marine life. Hundreds of thousands of endangered turtles drown annually on longlines set for tuna, swordfish, and halibut. Bottom trawling—dragging of large nets along the seabed—damages everything in their path, including coral reefs, and transforms pristine ecosystem of the seabed into an underwater desert. Large fishing nets which can be several miles long and are sunk into 30 meter depth trap sharks, seabirds, turtles, whales, dolphins and porpoises. These animals are simply discarded as bycatch (WWF, IUCN, Seaspiracy). Lost and abandoned gear from commercial fishing (nets, lines, pots, traps), deadly to marine life, makes up the majority of large plastic pollution in the ocean (Greenpeace).

All these aspects of industrial fishing are unregulated with regard to deep-sea biodiversity, unaddressed or inefficiently controlled by regional fisheries management organizations (RFMOs)—international organizations which manage most fish stocks on the high seas. They are inconsistent with conservation and management provisions of the 1995 UN Fish Stocks Agreement and the 1995 UN FAO Code of Conduct for Responsible Fisheries. They are part of a large problem of illegal, unreported, and unregulated fishing (IUU) which is endemic in all fisheries—illegal fishing in national waters and in violation of national laws or other rules, misreported fishing, conducted by vessels without nationality and more. As Global Fishing Watch estimates, IUU is the sixth most prevalent global crime, accounting for up to 1 in every 5 fish caught at sea and estimated to be worth as much as 23.5 billion dollars a year.

Moreover, high seas fishing is a domain of a handful of countries. Ten fishing countries were responsible for three quarters of the total high seas catch between 2002 and 2011 (Schiller, Bailey, Jacquet, Sala 2018). China and Taiwan alone accounted for one-third of the world’s total high seas catch, while Chile and Indonesia had the third and fourth largest catches, followed by Spain. Heavily subsidized, fleets from these states roam the world’s oceans, often invading national waters of poorer states and harming their domestic fishing industries, polluting the oceans and destroying marine environment (Armstrong 2022). Their catch is meant for upscale food and supplement markets in rich countries and its consumption has nothing to do with basic subsistence or food security.

Fishing on the high seas—destructive overfishing, that is—can be considered a textbook case of the tragedy of the commons. Popularized by Garret Hardin in a short piece from 1969, the tragedy of the commons occurs in a situation in which individual agents are free to use a shared (non-excludable) and rivalrous (subtractive) resource. When the users with open access to a given resource are inclined to act in a self-interested and benefit-maximizing manner, not being able to invest in the development of the rules of collective use and unmotivated to abide by them, then the depletion of the resource—the tragedy—occurs.

The long-term impossibility and ineffectiveness of the rules and the moral and environmental costs of this tragedy have led some advocates to call for a ban on high seas fishing. This is usually considered a radical proposal, but the benefits would be enormous. Marine biologist Daniel Pauly has summarized them as follows: the ban would immediately turn nearly two-thirds of the world’s ocean into marine protected areas, allowing fish stocks and other marine life and biodiversity to rebuild. It would end the monopolization of the high seas by a few countries and result in a much more equitable sharing of marine resources if each coastal country fished its own waters. Finally, it would end a subsidized, ineffective and highly polluting industry plagued by exploitation and human and animal rights abuses.

The New Treaty and its Gaps

What is hailed as one of the key achievements of the new Treaty is that it creates a legal framework for the establishment of new Marine Protected Areas (MPAs), which would essentially be marine parks or reserves for the conservation of marine biodiversity. MPAs on the high seas, so far non-existent (with an exception of one migratory seabird reservation in the North Atlantic), are considered crucial for making it possible to deliver on the promise to conserve at least 30 percent of the ocean by 2030, as it is enshrined in the new Global Biodiversity Framework adopted this past December. Under the High Seas Treaty, any signatory country will be able to propose an MPA and suggest appropriate measures, such as limits on fishing or shipping. If the required number of states agree and objections are not made, the protected area will be established and the Treaty’s signatories will then be obliged to apply its rules through international bodies.

Another welcome achievement is the creation of a framework for the environmental impact assessments so that new maritime activities in international waters—e.g. deep sea carbon capture and other geoengineering activities—can be better regulated. However, activities currently regulated by other bodies are excluded from these standards. These concern deep-sea mining, for which the International Seabed Authority is developing its own framework – and which is criticized for prioritizing commercial expediency over environmental concerns (Feichtner 2019).

The exclusion also concerns fishing. In fact, fisheries are completely left out of the agreement. On the one hand, fish are excluded from provisions on marine genetic resources and their sharing. On the other hand, newly established MPAs will not affect or amend the existing regime on fisheries. Like seabed mining, fishing on the high seas is left to existing legal instruments and regulations developed by global bodies and regional fisheries management organizations (RFMOs). These organizations have been criticized as insufficient vehicles of good governance—they focus selectively on a few commercially exploited species of fish, rely on the concept of maximum sustainable yield (MSY), which is largely considered as ecologically, socially and economically flawed and unable to inform a ‘sustainable’ fishery policy, and have no regard for complex marine ecosystems. They are also affected by institutional shortcomings—incomplete data, inadequate systems of administration and monitoring, and poor enforcement. By and large, these organizations have failed to stop extractive, exploitative, and destructive plundering of marine life and its externalities.

The industrial fishing is in dire need of radical reform. Since large-scale industrial fishing activities have the greatest impact on marine biodiversity, unless it is reformed, no significant improvement of the ocean’s wellbeing can be expected. By excluding fishing from the Treaty, the Treaty’s contribution to the conservation, sustainable use, and fair sharing of marine resources and, thus, to mitigating the tragedy unfolding in our oceans will remain rather limited.

For a comprehensive comment on the Treaty see: here.