Moussa Bala: ‘Repression is the major element of the new Treaty on the High Seas’.

Benoit-Ivan Wansi: 25 July 2024 marks the ninth African Seas and Oceans Day. It is being commemorated just two months before World Maritime Day (26 September), the theme of which has been chosen by the International Maritime Organisation (IMO): ‘Sailing into the future: safety first’. What does this mean to you?

Moussa Bala: This theme is important for three reasons. First of all, thinking about sailing into the future with an emphasis on safety evokes prudence, foresight and the protection of international maritime trade. Secondly, it suggests the importance of States and maritime partners taking steps to ensure a safe and stable future – while identifying and avoiding potential risks, and maintaining law and order at sea.

States must work in perfect synergy to coordinate the rational use of space at sea, while stepping up the merciless 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 the delegates of the Intergovernmental Conference on Marine Biodiversity – finally adopted the International Treaty for the Protection of the High Seas on June 2023. In your opinion, is this a major step forward, especially compared with the 1958 Convention on the High Seas?

Of course, it’s a major step forward in that the convention adopted on June 2023 goes beyond the 1958 Convention on the High Seas and the 1982 Convention on the Global Regime for the Protection of Maritime Spaces.

The question of collective responsibility arises with regard to the implementation of international treaties in good faith. Repression will be the key element of this change. The protection of marine resources and maritime navigation has been strengthened, and it is up to each State to ensure that this new convention is implemented so that the response to the global threat is global.

The Treaty refers to the creation of marine protected areas and the ‘mandatory’ environmental impact assessment of planned activities on the high seas. Is it independent and legally binding, given that industrial giants, with the complicity of certain governments, have accelerated overfishing and mining (cobalt, copper) on the seabed in recent years?

As the law is considered to be an unquestionable expression of power, it needs force to be observed. It is up to States and international courts to ensure that the use of the high seas and its resources is in strict compliance with the relevant provisions of the Convention. However, it is the complicity of these governments with the industrial giants that risks putting the brakes on this drive for effective protection of resources and their optimisation.

The creation of marine protected areas, the carrying out of environmental impact studies and the fight against overfishing at sea are indeed concrete recommendations of the Treaty to reinforce 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, limiting harmful human activities and encouraging the regeneration of fish populations and other marine species. Environmental impact studies are required before coastal or maritime projects are implemented, in order to assess the potential impact 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 means setting fishing quotas, tightening controls and regulations, and developing responsible fishing practices. By combining these different measures, it is possible to promote sustainable management of marine resources and help protect the oceans for future generations.

How do you interpret the ‘sharing of benefits arising from the exploitation of genetic resources in international waters’ highlighted in the Treaty?

Most of the provisions of this agreement concern the sharing of benefits with developing countries, their access to information and the transfer of technical skills in accordance with procedures comparable to those of the Convention on Biological Diversity. The concern we have is the fairness and proportionality of this distribution. We note that the developed States are the most advantaged insofar as they have proven technical expertise in the exploitation and exploration of marine resources. While the Convention agrees that compensation must be equitable, the question remains as to whether the most vulnerable States will have access to the funds generated by the blue marine economy.

While Africa has up to 38 coastal countries, several countries such as Angola, Benin and Madagascar are still refraining from signing the new text. Some because of the loss of revenue (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 a controversial historical past, given that thousands of Africans lost their lives in the oceans during the slave trade and colonisation. How do you interpret this?

An international convention has always been consensual. In other words, it is only when States agree to it that it is adopted and implemented. Obviously, this Treaty calls for fair international trade not only between North and South, but also with landlocked nations. The historical past of colonisation and the slave trade always comes up in the minds of southern states when there is an international dispute. We can therefore understand their scepticism, which is naturally legitimate. The appeal we are making is for this Treaty to be implemented in good faith, so that everyone involved in the sea, beyond the developed States, can be more open and fulfilled.

In your opinion, how should States reconcile their own legislation on maritime law with these international regulations? And what has priority and sovereignty in all this legal arsenal?

The question of the hierarchy between domestic and international law has long been settled. International law takes precedence over domestic law in accordance with the hierarchy of norms theorised by Hans Kelsen (20th century Austrian-American jurist). International law sums up the will of several states, whereas domestic law is the result of the expression of a single will. Maritime space is subject to international law because all areas of the sea other than internal waters are subject to co-sovereignty. International law therefore takes precedence over all issues relating to maritime space.

Let’s take an example of the application of this Treaty, which is in the process of 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 consists of transforming seawater into fresh water to meet consumption and industrial needs. However, the discharge of brine (on the coast) resulting from this practice could endanger flora and fauna in the long term. How can responsibilities be established and any disputes over marine biodiversity in the Mediterranean managed?

Any dispute involving the responsibility of a State at sea is settled by the International Tribunal for the Law of the Sea (in Hamburg, Germany) and the International Court of Justice. The right to use and process seawater is a given. However, when this use causes damage to the international community of states, liability for an ‘internationally wrongful act’ will be imposed. Naturally, the coastal states of the Mediterranean Sea must rationalise this processing and protect marine species, regardless of the activities carried out (desalination, etc.). This is an obligation arising from several international conventions on the law of the sea, which the June 2023 text reinforces.

What about seaside tourism? Does it fall within the perimeter of the high seas, and shouldn’t we consider harmonising international legislation in this area, since in any case the environmental consequences of this sector – including ocean pollution – go beyond maritime borders?

Harmonisation of beach tourism and responsibility for ocean pollution are complex and important issues to consider when talking about international waters, which are an integral part of the high seas. To this end, it is essential for States to promote sustainable tourism practices that respect the coastal and marine environment. This means adopting measures to reduce plastic pollution, limit the discharge of harmful substances, preserve marine ecosystems and raise awareness among tourists and local stakeholders of the importance of protecting the oceans. Environmental regulations, beach clean-up initiatives, sustainability certification for tourist establishments and international cooperation are all ways of helping to harmonise beach tourism while taking responsibility for ocean pollution on a global scale.

Is the International Treaty for the Protection of the High Seas sufficient today as a mechanism for achieving the 14th Sustainable Development Goal (SDG14)? Are there other legal and economic approaches that the international community should explore to preserve our seas and oceans?

Although the international treaty for the protection of the high seas is sufficient to achieve Sustainable Development Goal 14 (SDG 14), it needs to be supplemented if it is to be effective. In particular, we need to prioritise the economic approach to mobilising and optimising financial resources to protect the seas and oceans. States must therefore avoid going it alone and combine their efforts on all fronts to ensure that the maritime space is truly the future of humanity.