After more than two and a half decades of talks and negotiations, last Sunday, agreement was finally reached on the text of an international treaty on biodiversity on the high seas within the framework of the United Nations. In other words, a binding treaty has been agreed on for ocean biodiversity that lies beyond national jurisdictions and for which there has been a legal vacuum until now. This area of the ocean is one that belongs to all of humanity, it is our common home.
For Tiago Pitta e Cunha, a lawyer specializing in maritime affairs and executive president of the Oceano Azul Foundation, “the great achievement of this treaty is allowing the creation of marine protected areas on the high seas”.
Ratification by 60 countries is now required for this treaty to enter into force. It will fill a legal void in the United Nations Convention on the Law of the Sea (1982), which left living and genetic resources on the high seas out.
What is the importance of finally having an international treaty on high seas biodiversity?
It has historical importance. It is historic because it is the most important multilateral decision by the international community – the Member States of the United Nations – on the oceans in the 21st century. The drag on the negotiations was, for me, the full proof of how there is a huge vacuum of leadership on the issue of the oceans at an international level.
In 2002, the first conversations began on the need to eliminate a gap in the United Nations Convention on the Law of the Sea, which was the regulation of living resources on the high seas. In the United Nations Convention on the Sea, only mineral resources are covered outside the jurisdiction of coastal States. There was great concern about what to do with the so-called “genetic resources of the ocean” – therefore, living resources, microorganisms and also fisheries. What is intended with a treaty like this is to allow for a governance structure that leads to the preservation, conservation or even restoration of this area of the high seas, which has been dilapidated by the overfishing that some nations – we are talking about six or seven – managed to develop in this offshore area. If you ask me if it’s the ideal deal, I say it’s the possible deal.
And is the deal possible why?
Because there are still missing teeth.
Did I say teeth?!
It’s an English expression. An agreement, to be effective, must have teeth to be able to bite, so to speak. Here the creation of a science and technique commission is foreseen, but there are issues that will be operational complicated. Several ocean specialists understand that the operationalization of governance over the high seas will not be able to develop exclusively from this agreement and that it would be necessary to reinforce some areas of the agreement. At this moment, I think it is more positive to have an agreement than to continue in an impasse, which was generating a veritable neurosis with regard to the decision on the problems of the ocean.
The ocean is in a deep crisis. But the problems that constitute this crisis are not yet being mitigated. For the most part, they continue to be compounded by a lack of leadership and a lack of decision-making about solutions to these problems. That is why the dynamics that this agreement can bring are so positive, especially two years before the next United Nations Conference on the Ocean, which will take place in Nice.
What specific ocean problems are you referring to?
From the perspective of the Oceano Azul Foundation, the problem that concerns us most is the creation of a network of large-scale marine protected areas on the high seas. At the moment, it is not clear to me how we are going to achieve this.
The ocean doesn’t have one IPCC [Painel Intergovernamental para as Alterações Climáticas das Nações Unidas]. There is no intergovernmental panel of ocean scientists. It is one of the gaps in ocean governance structures that the Oceano Azul Foundation has considered important to fill. We know how important the IPCC reports were to the political decision on the climate. That intergovernmental panel of scientists – which managed to generate political leadership on climate and now translates into national climate action – does not yet exist in the oceans.
Are you proposing an IPCC-like panel just for the ocean?
Yes, I stand for that, and not just on the high seas. It was important to take advantage of the 2025 United Nations Ocean Conference to discuss the creation of such mechanisms.
Within the scope of this treaty, the creation of a technical-scientific commission is foreseen to carry out this role in the context of the high seas. This is applauded, but for me it is not enough for the gap between climate action and oceanic action to narrow. What continues to concern me, as an ocean expert, as an ocean advocate, is that we find a plan. This climate plan is called Paris Agreement: despite not being fulfilled as we would like, it is generating progress. We don’t have any plans for the ocean yet.
It is not this treaty for the high seas that is a plan for [todo] The ocean. This treaty will be important for us to preserve an area that, on top of that, does not affect practically any Member State of the United Nations, except for some that, in an abusive way, overexploit the resources that belong to all humanity through fishing unruly.
What seems important to me, and I must applaud it, is that until now genetic resources and biological resources – therefore, the living resources of the high seas – were at the mercy of whoever could capture them. What is shameful – knowing the state the planet is in and the value that nature will have to save us from this deep environmental crisis – is still tolerating that nature is res nullius. That doesn’t belong to anyone, that belongs to whoever picks it up. That’s what was happening. That’s what changes with this treaty. This is very important, it is an almost philosophical change.
What are the main points of the treaty? What kind of management instruments will be created to ensure such “teeth” in the sharing of genetic resources on the high seas?
There are still several problems with the wording and there will be a session to close questions about the wording of the text and the translation of the English version. There is still a lot of work to be done with regard to the creation of financing funds that allow the development of the so-called “capacity building” of less developed countries. I have no doubt that, as in the climate agenda, in the ocean conservation agenda the issue of financial compensation will be very important. Until now, States that did not have the financial and technological capacity to enjoy the benefits of these genetic and biological resources had no rights to assist them. With this treaty, you have the right to enjoy these benefits as well.
It will be necessary to effectively develop some aspects of this agreement in the future in order to make it workable in this field. No country currently benefits from the genetic or biological resources of the high seas. In fact, few countries even benefit from these resources in their areas of national jurisdiction. This is the big bet.
It is essential that the distribution of benefits from genetic resources is treated equitably. But at the moment that is not the urgent question. The urgent issue is to effectively put an end to the depletion of living fisheries on the high seas through marine protected areas. It is here that we rejoice in this treaty. From my perspective, the great achievement of this treaty is to allow the creation of marine protected areas on the high seas and, with that, increase my share of optimism about the “30 by 30”, which is reaching 2030 with 30% of the Earth and 30% of the sea in protected areas. This was the decision taken at COP15 [conferência das partes] from the Biodiversity Convention, which ended at the end of last year. Humanity assumed, before the next generations, to reach this goal of 30%. The surface of the high seas is two thirds of the ocean.
The creation of protected marine areas on the high seas will be part of the management mechanisms. What is in the treaty to operationalize this management – still those teeth? Without this part, it is an ineffective document.
It has some effectiveness, because it has some teeth. I don’t think it will be as effective as we would like it to be. What I think is fundamental is that we end the impasse and have a significant decision taken on such an important area of the planet as the high seas. The text that was signed is the possible text. There are those who think that they respond to a lowest common denominator and that they will not be able to solve problems. For me, the top priority at this moment is to get this agreement into force and that a group of countries at the forefront of the ocean, which Portugal obviously forms part of, lead to a super-fast ratification of the agreement in the national parliaments, so that in Nice the first COP of the high seas treaty can take place at the same time.
What role will the technical-scientific commission you mentioned play?
It would have an essential role in achieving, through available science, the definition of the areas of the high seas that should be protected marine areas and how they should be interconnected, otherwise they will be ineffective. Large emblematic species that inhabit the high seas are migratory, need to move from one marine protected area to another marine protected area. This commission will play a very important role there.
What were the main obstacles for these negotiations to have been at an impasse for so long?
There were many obstacles. The North-South debate on the distribution of benefits from genetic resources has always created more distrust. But recently, especially since the war in Ukraine, there has also been a major geopolitical stalemate in the multilateral system. By the way, it surprises me that both China and Russia had a position that allowed closing this agreement, and they had also already allowed the agreement for the negotiation of plastics which took place in Nairobi last year.
The last two major multilateral decisions of relevance to the planet are linked to the ocean: the decision of the United Nations General Assembly for the Environment, in Nairobi, in spring 2022, to start negotiating a treaty on plastic pollution. The sea is the main affected by this pollution. And now the high seas treaty decision. And both were possible, despite living in a world blocked from a geopolitical point of view.
And how do you interpret that?
From China, I think there is a willingness to contribute responsibly so as not to aggravate the problem in future generations. I think that Russia has, at the moment, a certain desire to please some countries in the South.