Shaping Our Oceans’ Future: International Cooperation in the Antarctic Ocean and Environmental Governance of the High Seas
Volume 12 | Número 116 | Mar. 2025
Por Elisa Blunt Villela e Eduardo Gonçalves Serra
Introduction
Sustainable and effective governance of the high seas or international waters has proved to be a significant challenge for the international community. Designing a regulatory apparatus and monitoring policies in areas beyond national jurisdiction demand effective articulation and the ability to reach consensus between several parties. When it comes to marine environment conservation, the task is no less challenging, as there are conflicting political, economic and scientific interests at stake.
Despite this challenge, the need to direct more attention to the global sustainability agenda and ocean protection in particular is increasingly pressing, as phenomena such as rising sea levels, ocean acidification, and loss of biodiversity become more severe (PRIYA et al., 2023, p.2), and considering that designated marine protected areas currently constitute less than 8% of the oceans (NIERO, 2023). Fortunately, the United Nations recently achieved a significant milestone when, in 2023, it adopted the Biodiversity Beyond National Jurisdiction (BBNJ) Treaty, also known as the High Seas Treaty. As a result of years of multilateral work, the approved text proposes an ambitious set of binding principles and goals toward sustainable use of marine biodiversity and collaboration with developing countries. Nonetheless, the BBNJ Treaty is not the first instrument used to promote sustainable use and conservation in international waters.
Since 1980, the Antarctic Ocean has served as an exemplary case, governed under the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Antarctic Treaty (1959). The Antarctic continent as a whole is crucial for the maintenance of climatic and biological equilibrium on Earth, and has been claimed by several countries. Nevertheless, the States managed to halt the dispute and create an effective regulatory framework, known as the Antarctic Treaty System, to ensure the use of the region for peaceful purposes, and recognize it as a global common[1]whilst keeping conserving its resources.
This article aims to understand the role of international cooperation to help close the governance gap in the high seas. For this objective, we have analyzed environmental governance in the Antarctic Ocean, by the agency of the CCAMLR, as a key precedent for design and implementation of policies in international waters. We also investigated the drivers of collaboration among actors with disputing interests, mainly using complex interdependence and neoliberal institutionalism as theoretical tools.
This research contributes to the debate on high seas governance, reinforcing the need for a strong global commitment to safeguard marine ecosystems in line with the UN’s Sustainable Development Goal 14 (Life Below Water), as well as other SDGs that imply the use of marine environments. Addressing this theme is crucial to tackle issues related to marine ecosystems protection and the impacts of climate change on the world’s oceans.
Background on International Laws of the Sea
According to International Laws, oceans can be classified into two large categories: waters of national jurisdiction and waters beyond national jurisdiction, also known as international waters or the high seas. Marine areas of national jurisdiction amount to a range of 200 nautical miles from the coast. Within that range, the coastal country has complete jurisdiction over living and non-living resources (UNCLOS, 1982, p. 27-28).
In contrast, waters beyond national jurisdiction, encompassing approximately 61% of all oceans, are governed by a more complex array of legal instruments with various international agreements and institutions, such as the International Seabed Authority, the International Maritime Organization and Regional Seas Programs. However, the primary framework for regulating the high seas is the United Nations Convention on the Law of the Sea (UNCLOS) of 1982. In terms of conservation, although UNCLOS provides foundational principles and obliges the signatory parties to ensure the “proper conservation[2]” of living resources. But it did not provide clear, legally binding guidelines for the management and protection of marine biodiversity, such as catch quotas or limits for the release of harmful substances onto the ocean (UNCLOS, 1982, p.46). This ambiguity can lead to varying interpretations and inconsistent implementation among different countries.
In the case of the high seas, the UNCLOS commands that States cooperate to conserve marine living resources, calling for measures to maintain or restore harvested species populations and encouraging the exchange of relevant scientific data (Articles 117 to 119). Nevertheless, the two-page section dedicated to living resources on the high seas lacks clarity regarding conservation measures and their enforceability, providing only general guidelines. The absence of specificity and enforcement mechanisms might allow non-compliance.
Non-compliance is critical because apart from undermining the legitimacy of the Convention, it can put the environment in jeopardy. The Food and Agriculture Organization’s reports that the percentage of stocks fished at unsustainable levels has been increasing (FAO, 2021). Furthermore, approximately 90% of global trade is transported via shipping, as a result, marine species are progressively threatened by ship strikes, noise pollution, and contamination from water discharges and fuel leaks (PEW, 2024, p.4). Shipping also accounts for nearly 3% of global greenhouse gas emissions (IMO, 2020, p.2). Enhancing the conservation measures would better address present issues, by providing clearer guidelines for implementation, and strengthening monitoring mechanisms (WORLD OCEAN REVIEW, 2015, p.81).
Although a consistent global level of protection for international waters has not been achieved to date, the BBNJ Treaty indicates a step in the right direction. In its preamble, it recognizes the need for a “comprehensive global regime under the Convention to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”. In its objectives, the treaty aims to guarantee preservation via “effective implementation of the relevant provisions of the Convention and further international cooperation and coordination”, an objective equally ambitious and urgent (UNITED NATIONS, 2023, p.4).
Reconciling the interests of several countries and garnering support from them to reach consensus is not an easy feat. The BBNJ Treaty will only enter into force once at least 60 countries ratify it, a process that can be complex and lengthy. As of September 2024, 104 countries had signed the Treaty but only 13 have actually ratified it (HIGH SEAS ALLIANCE, 2024). UNCLOS is also a good example of that complexity. In spite of being signed by 168 States, it has not been signed by Turkey, Peru or the United States of America, for instance. The latter does acknowledge the Convention as customary law, but policymakers feared that the treaty could compromise their economic and security interests (CURTIS, 2024). This illustrates one of the biggest challenges in the governance of shared resources and the global commons: the dilemma between relinquishing or safeguarding one’s own interests.
Despite difficulties inherent to policymaking with multiple stakeholders involved, it is important to highlight successful cases[3]. In the next section, we will examine environmental governance in the Antarctic Ocean, focusing on the Convention on the Conservation of Antarctic Marine Living Resources. We will explore how this framework demonstrates the feasibility of international cooperation regardless of conflicting interests and sets a precedent for future environmental regulatory policies in high seas areas.
The Antarctic Ocean case
Antarctica is considered a “global common”, this concept is relevant as it applies both to the high seas and the Antarctic continent as a whole. Therefore, analyzing governance of the Antarctic ocean might generate valuable insights to address environmental challenges in other high seas areas. Since its discovery, several countries have claimed portions of Antarctica due to its strategic position, natural resources. The first decades of human presence in the continent were marked by exploration, resource extraction and territorial claims. However, the dispute over sovereignty posed a delicate scenario because without mutual recognition and overlapping of the claims, it was difficult to reach consent between countries (AGUIAR, 2019).
In 1959, a solution to solve the problem was created: the Treaty of Antarctica, a succinct yet efficient agreement that regulates the region to this day. The Treaty presents a unique regime for Antarctica as it maintains an indefinite moratorium on its territorial claims, preventing new claims while not renouncing the existing ones. This paradoxical approach to sovereignty has guaranteed peace and cooperation in the continent, emphasizing the preservation of resources and promoting scientific collaboration (TREATY OF ANTARCTICA, 1959). Since then, the Antarctic governance apparatus has evolved significantly, incorporating more signatories, other treaties, new measures and resolutions. These combined instruments compose what is called the Antarctic Treaty System.
A significant development occurred in 1980 with the establishment of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and a respective Convention, originally created to address concerns about overfishing (FERREIRA, 2009, p.69). The Convention covers all marine life south of the Antarctic Convergence and is open to any state interested in research or extraction activities in the region. The Commission’s annual meetings involve discussing extraction activities, conservation measures, catch limits, and marine protected areas to mitigate the impact of fishing (CCAMLR, 2022).
The CCAMLR introduced innovative environmental conservation methods to the governance of the region, such as the ecosystem approach, science-based management, and the precautionary principle[4]. One of its notable achievements was the establishment of Marine Protected Areas (MPAs). After extensive discussions, the CCAMLR produced, in 2011, the General Framework for the Establishment of MPAs. Well-managed MPAs help safeguard marine habitats by protecting them from pollution and overfishing, and aid in carbon capture and storage (OECD, 2016). Highly protected MPAs can also aid marine ecosystems in better adapting to other effects of climate change (PEW, 2024, p.4).
The first high seas protected area in the world was established by the CCAMLR in the South Orkney Islands. But perhaps the Commission’s most remarkable feat was the creation of the world’s largest MPA in the Ross Sea region in 2016, despite most MPAs being within national waters. Spanning across almost 2.09 million km2, the Ross Sea marks a turning point in conservation due to its size and exemplifies the success of international cooperation following a complex negotiation process (CCMRL, 2016).
The proposal for the MPA of the Ross Sea was initially presented in 2012 by New Zealand and the United States but faced opposition over the size of the area and fishing restrictions. In 2014, a new proposal was also rejected by countries like Russia, China, and Ukraine, citing concerns about the duration of the protection and implications for fishing. In 2016, after bilateral negotiations and concessions, such as creating a Krill Research Zone, the proposal finally reached a consensus, with Russia yielding after intense diplomatic pressure from the US (CORDONNERY; KRIWOKEN, 2015; p.189).
China, initially against the proposal, changed its position after negotiations with the US and greater involvement in the CCAMLR discussions. Non-governmental organizations (NGOs) also played a significant role, especially the Antarctic and Southern Ocean Coalition, which has influenced negotiations through scientific backing and collaboration with national delegations. The approval of the Ross Sea MPA in 2016 exemplifies how cooperation and compromise among countries with divergent interests can lead to significant advances in environmental conservation (CORDONNERY; KRIWOKEN, 2015; p.188-206).
Despite contradicting interests, there are incentives that drive States towards a common goal. Within International Relations, the complex interdependence theory provides tools that can help us identify some of these contributing factors. In the following section a brief overview of this theory and Neoliberal Institutionalism is provided as well as an analysis of the elements that create conditions for cooperation.
The role of Complex Interdependence
The concept of cooperation, understood in this work as collaboration or joint action between different entities with a common purpose (AYLLÓN, 2007, p. 32), has been analyzed from various perspectives over time. In International Relations, neoliberalism highlights the importance of cooperation, especially through international institutions and regimes, as a means for States to achieve their interests. Neoliberals believe institutions can shape state behavior by clarifying expectations, reducing transaction costs, ensuring commitments, and facilitating reciprocity between parties. Institutions, in this sense, help build the normative framework that underpins the idea of an international society based on shared rules and values (KEOHANE; MARTIN, 1995, p. 42).
The institutional design of the Antarctic governance system, in particular, was developed to incorporate gradual changes without altering the core of its diplomatic culture, avoiding contentious themes and allowing productive ambiguity, which ensured the Treaty’s longevity and expansion. It is also clear that the success of governance in Antarctica heavily depends on cooperation between actors (SAMPAIO, 2022).
The theory of complex interdependence by Robert Keohane and Joseph Nye (1977) provides valuable tools for understanding the factors enabling cooperation within the framework of the CCAMLR. For them, institutions are capable of constraining and altering actors’ behavior. In this sense, the institutional structure of the CCAMLR seems to have contributed, for example, to the success of the Ross Sea MPA negotiation. Even for the countries most resistant to the proposal, notably China and Russia, it became evident that the costs of vetoing the MPA would be higher than the potential gains from commercial exploitation. These costs are related to the reputation that CCAMLR members, and even the international community, might have regarding their resistance. Persistently contesting the proposal could harm their relationships in the CCAMLR’s decision-making arena and in other multilateral forums. It could also strain their bilateral relations with other members, such as the United States, which brought the MPA negotiation to forums outside the Convention (TANG, 2017).
Although they secured some concessions in the proposal, China and Russia eventually opted to relinquish some of their economic interests. This decision was likely made after calculating the aforementioned costs, revealing that it is more advantageous to collaborate and remain part of the institution than to withdraw or dissociate from it. Thus, it is clear that the condition of interdependence among the parties involved in the negotiation generates integration and enables peaceful conflict resolution.
Key factors that help reach consensus include the interdependence among member countries which interact via multiple channels, generating greater integration. Additionally, the involvement of multiple non-state actors, such as NGOs and the international scientific community, can also influence the decision-making process. Moreover, according to the theory, issues in international affairs are not ranked in a clear hierarchy. As a result, environmental governance can hold as much political significance and impact as more traditional topics such as economic or military affairs (KEOHANE, NYE, 2001. p. 30-49). Therefore, states engaged in Antarctica recognize that cooperation is more advantageous, especially to maintain good relations with other actors and secure their participation in the multilateral arena. Due to the interdependence with each other, member countries tend to prioritize stability and harmony in the region.
Conclusion
It can be observed that, in Antarctica, cooperation is overall successful and is expressed in various ways. This is seen through the normative and regulatory framework established by the parties of the Antarctic Treaty System (ATS) in order to preserve its structure; through technical collaboration, even if imperfect, and the sharing of scientific information between countries; and, finally, through efforts to accommodate different interests of actors, whether state or non-state, with the aim of safeguarding harmony in the region. Although there are interests over resources, cooperation has managed to create mechanisms to protect them from aggressive exploitation, as seen in other parts of the world.
On a global scale, when comparing the target area of the CCAMLR with the Biodiversity Beyond National Jurisdiction (BBNJ) Treaty, it is fair to argue that the former is much less complex than the latter due to the delimited area of the continent and its remoteness. However, it is a misconception to say that the area is undisputed. In fact, Antarctica’s history has been marked by claims and several attempts of dominance, and there are challenges that still threaten its harmony. Elizabeth Buchanan and Ryan Burke (2021) posit that climate change could have serious geopolitical and security implications in the future, leading to increased competition and conflict in the region. For example, the melting of polar ice could make the extraction of mineral and energy resources more viable, attracting the interest of energy exporters. Although the Antarctic Treaty currently prohibits extractive activities, future revisions may expose vulnerabilities due to economic interests.
Nevertheless, international cooperation continues to surpass competition in the region, with mechanisms like the Antarctic Treaty System Consultative Meetings and the work of the CCAMLR in establishing Marine protected Areas (BUCHANAN; BURKE, 2021). The System is a clear example of how multiple actors have succeeded in creating a governing model for international waters, despite underlying individual interests of economic and/or political nature.
The Biodiversity Beyond National Jurisdiction Treaty (2023) represents a landmark effort in global ocean governance, focusing on four key areas: the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, the establishment of marine protected areas, environmental impact assessments, and capacity building, particularly for smaller states. However, it does not directly address issues such as fishing or deep-seabed mining, which are governed by existing international agreements and bodies (ALFRED-WEGENER-INSTITUT, 2024)..
The treaty negotiations were marked by conflicts over priorities, such as the debate between the “common heritage of humankind” and “freedom of the high seas,” as well as issues related to marine genetic resources and benefit-sharing. The successful outcome relied on reconciling the interests of industrialized, developing, and emerging economies, and reaching consensus with countries on key issues like marine protected areas. These challenges are expected to persist into the treaty’s ratification and implementation phases, requiring ongoing efforts to balance conflicting interests (BÖTTCHER; HANSEN, 2023).
While the BBNJ Treaty addresses the governance of high seas areas in general, its structure and objectives can be compared to the successful cooperation seen in the governance of Antarctica. The governance model based on cooperative efforts between nations and the sharing of scientific data, provides valuable lessons for managing high seas regions. By promoting multilateral dialogue and emphasizing shared principles, such as environmental stewardship and precautionary approaches, both frameworks illustrate the potential for international cooperation in marine conservation. Ultimately, the BBNJ Treaty reflects the growing recognition of the need for comprehensive governance structures for the high seas, balancing environmental protection with the interests of various stakeholders.
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[1] The global commons are defined as domains of supranational resources to which the principles of free access and common heritage of humanity apply. These include four major domains: the high seas, the atmosphere, Antarctica, and outer space. (PNUMA, 2011, p.30).
[2] “The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by overexploitation” (UNCLOS, 1982, p. 46).
[3] The Montreal Protocol, adopted in 1987, for instance, is a landmark international agreement that successfully contributed to the recovery of the ozone layer. It exemplifies effective environmental governance through collaboration among governments, industries, scientists, and NGOs. The Protocol’s adaptability to scientific findings and commitment to equity among countries have made it a model for global cooperation in addressing environmental challenges, and it was the first treaty in the history of the United Nations to achieve universal ratification (UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 2024). The Protocol’s success can be attributed to a coincidence of economic, political and environmental interests.
[4] The ecosystem approach is a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way. Science-based management uses scientific research and data to guide decision-making in conservation practices, this ensures that management strategies are effective and grounded in the best available evidence (CONVENTION ON BIOLOGICAL DIVERSITY, 2022). The precautionary principle generally states that in order to protect the environment, “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (UNITED NATIONS, 1992, p. 3).
Elisa Blunt Villela é bacharela em Relações Internacionais pela UFRJ e tecnóloga em Comércio Exterior pela Universidade Estácio de Sá. Atualmente, cursa um MBA em Desenvolvimento Sustentável e Economia Circular pela PUCRS. Elisa atuou nas missões diplomáticas do Reino Unido e de Israel, contribuindo para o desenvolvimento de negócios internacionais e projetos de cooperação entre estes respectivos países e o Brasil.
Eduardo Gonçalves Serra tem Doutorado em Engenharia Oceânica pela Coppe / UFRJ, é professor da Escola Politécnica e do Instituto de Relações Internacionais e Defesa da UFRJ, onde exerce o cargo de Diretor. É membro do Comitê Científico do SDEWES Centre – International Centre for Sustainable Development of Energy, Water and Environment Systems, com sede na Universidade de Zagreb, na Croácia.
