The High Seas for All

 

The High Seas for All: Challenges to the Principle of Common Heritage and Its Impact on the Global South

Introduction

The high seas, representing nearly two-thirds of the world’s oceans and almost half of the Earth’s surface, have long been recognized as a domain beyond the jurisdiction of any single nation-state. Historically viewed through the lens of res communis—a Roman legal concept indicating things belonging to all—the high seas are now increasingly governed under the modern principle of the “common heritage of mankind,” as codified in the United Nations Convention on the Law of the Sea (UNCLOS, 1982). This legal framework asserts that the resources of the high seas, particularly the seabed and its minerals beyond national jurisdiction, are not the property of any one country but are held in trust for the benefit of all humanity.

However, the practical realization of this ideal has come under strain in recent decades. With technological advancements enabling deeper and more efficient exploitation of marine resources, environmental degradation, geopolitical competition, and inequitable governance structures, the high seas are increasingly vulnerable to overuse and privatization. These challenges disproportionately affect the Global South—comprising developing and least-developed countries across Africa, Asia, Latin America, and the Pacific—who rely heavily on marine resources but often lack the political influence and technological capabilities to assert their rights within global ocean governance regimes.

This essay critically examines the evolving dynamics surrounding the high seas, with a focus on how the principle of “high seas for all” is being compromised. It specifically highlights the consequences of this erosion for the Global South, analyzing environmental, economic, and geopolitical impacts while also exploring efforts by Southern states to reclaim equity and justice in ocean governance. By combining legal analysis, case studies, and international policy discourse, the paper argues for a renewed commitment to inclusive, sustainable, and equitable management of the high seas as a truly global commons.

Legal and Philosophical Foundations

The legal evolution of the high seas is rooted in a tension between the principles of freedom and equity. Initially, the oceans were governed by the doctrine of the “Freedom of the Seas,” advocated by Dutch jurist Hugo Grotius in his seminal work Mare Liberum (1609). This principle held that the seas were international territory and free for navigation and trade by all. However, with the advancement of marine science and resource extraction technologies, the need for regulation and governance became apparent.

The UNCLOS, adopted in 1982 after years of negotiation, marked a paradigm shift. It created a zoning system for ocean space, including the 12-nautical-mile territorial sea, the 200-nautical-mile Exclusive Economic Zone (EEZ), and the Area—referring to the seabed beyond national jurisdiction. Most crucially, UNCLOS designated the Area and its resources as the "common heritage of mankind" (Article 136), mandating that their exploitation be carried out for the benefit of all, with special consideration for the needs of developing countries.

The International Seabed Authority (ISA) was established to manage resource extraction in the Area, regulate mining activities, and ensure equitable benefit-sharing. The intent was to create a collective stewardship mechanism in which all states, regardless of economic or technological development, could participate meaningfully. However, in practice, the dominance of technologically advanced countries and private entities has undermined the foundational equity promised by UNCLOS.

The 2023 UN High Seas Treaty on Biodiversity Beyond National Jurisdiction (BBNJ) is the latest effort to address governance gaps, focusing on marine genetic resources, environmental impact assessments, and capacity building. While it acknowledges the importance of equity and benefit-sharing, critics from the Global South argue that it continues to reflect asymmetrical power structures that marginalize their voices.

High Seas and Their Importance to the Global South

The high seas are vital to the Global South from ecological, economic, cultural, and strategic standpoints.

Ecological Importance

Oceans act as the planet’s lungs and carbon sinks, absorbing over 30% of carbon dioxide emissions and producing half of the world's oxygen. The high seas host critical biodiversity hotspots, including migratory routes and breeding grounds for numerous marine species. For many developing countries, particularly Small Island Developing States (SIDS), ocean health is inseparable from national survival due to their vulnerability to sea-level rise and marine ecosystem disruptions.

Economic Relevance

Fisheries constitute a major livelihood and protein source for many nations in the Global South. For example, in West Africa, the artisanal fishing sector supports millions of livelihoods. Additionally, the high seas hold immense potential for deep-sea mining and marine biotechnology, which could become vital sources of revenue and development if governed equitably.

Cultural and Geopolitical Dimensions

Many indigenous and coastal communities have historical and cultural ties to marine territories. Their traditions often emphasize harmony with nature, reinforcing sustainable practices. Moreover, ocean space can hold strategic and geopolitical importance, influencing trade routes, security, and diplomatic leverage.

How the High Seas Are Getting Affected

1. Environmental Degradation

One of the most immediate threats to the high seas is environmental degradation, which disproportionately affects countries with limited adaptive capacities.

  • Climate Change and Ocean Acidification: Rising CO₂ levels are causing ocean warming and acidification, leading to coral bleaching and disruptions in fish migration patterns. Countries such as the Maldives, Kiribati, and Bangladesh are already witnessing the consequences of rising sea levels and reduced fish catch.

  • Overfishing and IUU Fishing: Industrial fishing fleets, often from developed nations, dominate high-seas fishing, leading to overexploitation of key species like tuna and cod. Illegal, unreported, and unregulated (IUU) fishing is rampant, particularly in waters adjacent to Africa and Southeast Asia, depriving local communities of food and income.

  • Marine Pollution: Plastics, oil spills, and chemical pollutants continue to choke marine ecosystems. According to UNEP, over 80% of marine litter originates from land-based sources, but developing countries often lack the waste management infrastructure to combat this.

2. Commercial Exploitation

The race to exploit deep-sea minerals and marine genetic resources (MGRs) has intensified, driven by the demand for rare earth elements used in electronics and pharmaceuticals.

  • Deep-Sea Mining: While commercial extraction has not yet begun at full scale, exploration licenses granted by the ISA have mostly gone to developed countries and their corporations. Pacific Island nations like Nauru and Tonga have signed partnerships with foreign companies but often lack the bargaining power to secure fair terms.

  • Bioprospecting and MGRs: Pharmaceutical companies from the Global North are mining the ocean for genetic material to develop new drugs, often without transparent mechanisms for benefit-sharing with the nations whose waters are explored.

3. Geopolitical Rivalries and Militarization

Geopolitical tensions in maritime domains have grown with increased naval activity in the Indo-Pacific and South China Sea.

  • Great Power Rivalries: The U.S., China, and European powers have increased their naval presence and military exercises in international waters. This militarization poses risks to smaller nations, which may find their sovereignty and maritime claims disregarded or co-opted into larger strategic games.

  • Sovereignty and EEZ Disputes: Several developing nations face encroachment into their EEZs by foreign fishing and exploration vessels, as in the case of Argentina’s South Atlantic waters or Ghana’s disputes with trawlers.

4. Technological Divide

  • Access to Marine Technology: While UNCLOS emphasizes technology transfer, in practice, the Global South has not received meaningful access to deep-sea research equipment or satellite data.

  • Intellectual Property Rights: Much of the marine biodiversity knowledge is privatized through patents. This limits the ability of developing countries to benefit from innovations derived from their own marine ecosystems.

Global Governance and Exclusion of the Global South

The Global South’s limited representation in key decision-making bodies, such as the ISA and negotiations for the BBNJ treaty, undermines the ideal of equitable governance.

  • International Seabed Authority (ISA): Although the ISA was designed to ensure equitable resource management, most exploration contracts are held by corporations from the Global North. Developing countries often lack the scientific and legal expertise to navigate the ISA’s complex procedures.

  • BBNJ Treaty Negotiations: Many African, Latin American, and Pacific states advocated for legally binding benefit-sharing mechanisms and capacity building, but compromises diluted these provisions in the final draft of the 2023 agreement.

  • Funding and Capacity Gaps: Institutions like the Global Environment Facility (GEF) provide funding for marine conservation, but bureaucratic hurdles and geopolitical biases often delay or restrict access for developing countries.

Resistance and Proposals from the Global South

Despite systemic marginalization, countries of the Global South have persistently advocated for more just and inclusive governance of the high seas.

  • G77 and China: This coalition of developing countries has consistently demanded recognition of the common heritage principle and equitable benefit-sharing in UN fora. They were instrumental in pushing for the BBNJ negotiations to commence.

  • African Union’s Blue Economy Agenda: Africa’s Integrated Maritime Strategy (2050) and the Blue Economy agenda highlight the continent’s desire to develop marine resources sustainably and equitably.

  • Indian Ocean Rim Association (IORA): Comprising coastal countries of the Indian Ocean, IORA promotes regional cooperation in fisheries management, disaster risk reduction, and marine scientific research.

  • South-South Cooperation: Countries like India, Brazil, and Indonesia have promoted ocean research and marine technology exchange among Southern states to reduce dependency on the Global North.

Case Studies

1. Pacific Island States

Nations like Tuvalu, Kiribati, and Nauru are on the frontlines of oceanic climate change. They contribute negligibly to global emissions but suffer disproportionately. Some have signed deep-sea mining deals but are increasingly wary of environmental impacts. In 2021, Fiji led a regional moratorium call on seabed mining, highlighting the South’s growing resistance to exploitation.

2. India

India has advocated for the sustainable development of marine resources through its “Deep Ocean Mission.” It engages in deep-sea mining exploration under ISA contracts while also emphasizing the equitable sharing of benefits. India has also participated in BBNJ negotiations, advocating for a balance between conservation and development.

3. West Africa

Nations like Senegal and Ghana suffer from IUU fishing by foreign vessels. Local fishermen are displaced, fish stocks are depleted, and food insecurity rises. Despite regional cooperation through ECOWAS, enforcement remains weak due to limited surveillance infrastructure.

4. Caribbean Nations

Countries like Jamaica and Barbados are active in promoting marine biodiversity protection and equitable benefit-sharing in global forums. They also face the double burden of marine pollution and increasing storm events due to climate change.

Conclusion and Way Forward

The high seas are a shared resource vital to the ecological stability and economic wellbeing of the entire planet. Yet, the ideal of “high seas for all” is under threat from environmental degradation, inequitable resource distribution, and geopolitical imbalances. For the Global South, these challenges are particularly acute, given their limited capacity to engage in high-tech resource extraction and the disproportionate effects of oceanic degradation.

To restore the legitimacy of the common heritage principle, global governance mechanisms must prioritize inclusivity, transparency, and equity. The Global North must commit to genuine technology transfer, fair benefit-sharing, and capacity-building. Institutions like the ISA and the frameworks emerging from the BBNJ treaty must incorporate the voices of developing nations not merely as participants, but as co-designers of ocean governance.

Finally, the Global South must continue to strengthen its collective bargaining power through regional cooperation, strategic alliances, and South-South knowledge exchange. Only then can the high seas truly become a resource for all—preserved, protected, and governed in the interest of humanity as a whole.

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