Michael A. MacDowell: It’s time to ratify the High Seas Treaty

On June 19, 2023, 193 members of the United Nations adopted an international binding agreement to mutually protect marine biodiversity in areas of the ocean not owned by any one country.

This agreement, commonly called The High Seas Treaty, is designed to protect the biodiversity of the ocean that lies beyond the “National Jurisdiction,” of any nation’s exclusive economic zone (EEZ). EEZs stretch 200 nautical miles (about 230 miles) from a country’s shoreline. This was the first time there had been a multinational agreement for governing two-thirds of the world’s oceans and ocean floors not owned by any specific country.

Overseeing or regulating this vast area is not an easy undertaking, but, as witnessed by the number of signatories to the Treaty, most countries believed that it was necessary.

The Treaty was designed to address what economists refer to as “the tragedy of the commons.” This concept is best illustrated by a 1974 satellite photo of North Africa taken from 12,550 miles above the earth. The photo shows a small green patch of grazing land surrounded by thousands of acres of desert. The entire parcel started as pastureland. The green portion was privately owned, and the shepherds there had a stake in maintaining it. The remainder of the land was now useless for agriculture because it was a common grazing pasture. Everyone “owned” it, but no one took care of it.

Such is the case with the ocean.

As no one owns or regularly cares for it, shipping companies dump waste into open waters. Foreign factory fishing fleets spend many months at sea harvesting giant schools of fish at minimal cost to them, but to the detriment of others whose livelihoods have depended on those same fish for millennium. The Treaty of the Seas attempts to address this problem by assigning some ownership rights and responsibilities to protect, and with oversight, use ocean resources within their designated boundaries.

While the U.S. was a signatory to the 2023 treaty adopted by the U.N., it along with other countries have not assented to some of its requirements, hence it has not ratified the treaty. Specifically, the U.S. Senate, which must ratify all international treaties, has objected to certain parts of the treaty because it is “not free market friendly,” and was designed to favor the economic system of communist states. As so many countries, large and small, were engaged in developing the treaty, this is a valid condemnation.

Further, because the treaty attempts to deal with deep sea mining, some environmental groups have rallied against the U.S. agreeing to all its provisions.

While several domestic advocates for ratification have appealed to the Seante on the grounds of international cooperation, there has been little movement toward Senate ratification.

However, practical considerations caused by economic competition from other countries, particularly China, may be turning the tide of this ocean treaty. To offset the tragedy of the commons, where all countries feel entitled to use the seas as they see fit, the treaty, assigns to countries up to four “designated” deep seabed mining sites, each containing critically important minerals such as copper, nickel and cobalt. These minerals are essential to the production of batteries and other products used in the manufacturing of environmentally friendly products. Because the US Senate has not ratified the treaty, it has already lost two of its four designated and potentially productive deep seabed mining sites.

Stimmed on the one hand by environmental groups who believe that the oceans belong to everyone, inviting the tragedy of the commons to eventually emaciate the seas, and on the other hand by those who believe that free market practices are the criteria upon which all international treaties should be based, the U.S. is currently on the losing end of obtaining resources modern nations need.

Advocates from both sides of the political spectrum, including former Secretary of State Hilary Clinton, Republican Sen. Jim Risch of Idaho, and many retired military leaders, are also advocating for ratification.

The situation calls for bipartisanship, and while today such cooperation is often disparaged, the tragedy of the commons, on the one side, and blind adherence to free market philosophy on the other, may cause irreputable damage to our economy.

Quick compromise and ratification are essential.