Three key interconnected developments have put the spotlight on the blue economy- a term that the World Bank defines as the sustainable use of ocean resources for economic growth, improved livelihoods, and jobs while preserving the health of ocean ecosystem: the World Trade Organization’s Agreement on Fisheries Subsidies (WTO’s AOF), the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (also called the High Seas Treaty), and the Kunming-Montreal Global Biodiversity Framework (GBF).
Each of these developments, in and of themselves, are heartening endorsements of multilateralism in an era of increasing geopolitical tensions and fragmentation. Besides the common goal to protect and preserve marine resources, each of the instruments regulate the ability of countries to exploit marine resources- a highly valuable, exhaustible natural resource, which has significant potential not only for food, but also for nutraceuticals, pharmaceuticals and cosmetics industries. Understanding their interconnectedness is therefore important for domestic law and policy.
For a beleaguered WTO with a dysfunctional dispute settlement body, the AOF concluded in June last year, was a significant achievement. The AOF is often hailed as the first WTO agreement which addresses the issue of sustainability. The AOF governs subsidies for catching, taking, harvesting of “all species of marine resources”. While its current thrust is on illegal, unreported and unregulated (IUU) fishing in waters within a country’s jurisdiction, WTO members are also negotiating expanded disciplines, including in respect of fisheries subsidies.
The high seas have so far been considered as free for exploitation by all. After years of negotiation, the High Seas Treaty concluded in March 2023 changed that notion of high seas from “free for all” to that of a “common heritage of humankind” which needs to be jointly preserved and protected. It also deals with how marine resources may be used, including marine genetic resources (MGR), i.e., units of heredity of marine resources, and digital sequence information (DSI), i.e., data derived from the dematerialized form of genetic resources- both of which can be used for various applications. It mandates environmental impact assessment for activities in the high seas, and that any monetary benefits from the utilization of MGR and DSI shall be shared fairly and equitably between countries.
The High Seas Treaty is also seen as a step towards achieving the goal set out under the Kunming-Montreal GBF for countries to ensure effective restoration and enhancing biodiversity by 2030 of at least 30 per cent of terrestrial and inland water areas, as well as marine and coastal areas (also called the 30×30 target).
Beyond these nitty-gritties, the High Seas Treaty mandates countries to work out the modalities for capacity building and transfer of marine technology. It mandates transfer of technology on concessional and preferential terms. However, most other international agreements so far have not been able to make good on actual realization of commitments on capacity building and technology transfer. In the context of climate change, for example, deficits in finance and technology transfer remain critical bottlenecks, as noted by the recent IPCC Assessment Report.
While countries have a shared interest in ensuring conservation and preserving biodiversity in the high seas, equitable access to marine genetic resources (MGR) and digital sequence information (DSI) on MGR in a sustainable manner, is also in the shared interests of countries.
With WTO members negotiating further disciplines relating to fisheries subsidies, the interface with the High Seas Treaty is important to consider. As of now, the only limited coverage of high seas under the WTO’s AOF is that no country may provide subsidies for fishing or fishing related activities in the high seas, unless such fishing activity is within the competence of a relevant regional fisheries management organization (RFMO). Similarly, the High Seas Treaty also exempts activities, including those relating to access and use of MGR in areas of high seas that fall under a RFMO jurisdiction, from environmental assessments. There are approximately 17 RFMOs worldwide. India is a member of only one so far- the Indian Ocean Tuna Commission (IOTC), as opposed to a country like China which is a member of around 7 RFMOs.
High seas fishing, also referred to as “distant water fishing” (DWF) has been the domain of few countries. The DWF Subsidy Atlas, developed by the U.S. based Pew Research Centre, for instance, notes that the most subsidies for DWF are provided by China, the European Union (EU), Japan, South Korea and Chinese Taipei.
With increasing interest in commercial fishing, India will need to consider designing subsidies and domestic laws consistent with international obligations. Equally important is the need to consider membership of relevant RFMOs other than the IOTC, in order to ensure adequate opportunities for access to marine resources particularly in the high seas. Domestic fishing law so far is confined to regulating coastal fishing. Addressing fisheries in India’s exclusive economic zone, and obligations of fishing fleet venturing into the high seas, also need to be regulated by clear rules in order to ensure adherence to India’s international obligations. The rules that are framed now will define the extent to which India plays a role in access to and use of marine resources.