High time we protect the High Seas

Among those hailing this watershed commitment to protect marine biodiversity beyond national jurisdiction is environmental law expert Rui Lopes, managing director at Lopes Attorneys Inc., whose firm has been at the forefront of protecting vulnerable species in South Africa.

Lopes, who heads the Animal Welfare and Environmental Department, has applauded the announcement of the High Seas Treaty which seeks to maintain the biological diversity of two-thirds of the high seas – a vast amount of the open waters – thus conserving marine life, which previously was only protected in small percentages globally.

Mandla Mogola, a candidate attorney at Lopes Attorneys, noted that the treaty, which at this stage remains purely a commitment, when drafted and ratified, will likely regulate certain activities such as illegal fishing that take place in international waters outside the exclusive economic zones that don’t belong to anyone, yet benefit all.

Lopes and Mogola are both excited to see how the process unfolds and how the treaty will be domesticated into South African law. At the same time, they hope its provisions for enforcement will be greater than those of the Paris Agreement which, they say, does not have true hard enforcement provisions for member states.

Lopes envisions the High Seas Treaty resulting in reporting mechanisms similar to those of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Lopes stated, however, that there are likely to be many nuances around this, especially considering the protection of biodiversity within international waters.

“What it will yield for us, and what we are hoping to see in the draft treaty, is mechanisms by which contravening parties or individuals may be held to account from a criminal, administrative or civil perspective that would disencourage those individuals from contravening the treaty,” Lopes commented.

In the South African law context, Lopes and Mogola say that the treaty will likely be given effect under the National Environmental Management Act or a piece of subsidiary legislation such as the National Environmental Management: Biodiversity Act.

“Those provisions already have quite extensive sanctions that may be imposed for contraventions. However, what we find, as a public interest law firm that often engages in investigative mechanisms to determine compliance and non-compliance, is that although there may be high levels of non-compliance, there are unfortunately very low levels of enforcement,” Lopes said, emphasising that the legislation is only as effective as its implementation.

While the prospect of such a treaty may be daunting for companies operating in that space, The firm is well positioned to advise clients on how to navigate the High Seas Treaty when it comes into effect, including implementing and complying with the treaty’s provisions.

“We have vast experience that can intermingle with the enforcement and abiding by the implementation of the treaty,” Lopes explained. These services would serve a variety of clients from public interest organisations to logistics and cargo companies.

Lopes Attorneys’ association with the Legal Netlink Alliance, a global network of independent law firms, allows them to tap into information on numerous jurisdictions, enabling them to advise foreign clients coming into South African waters and vice versa.

“Within our animal welfare and environmental department we have specialists in the different kinds of animal welfare such as domestic companions, farmed, wild and aquatic, Mogola being one of them. We are one of the very few, if not the only firm in South Africa that has these legal resources at our disposal,” Lopes shared.

While it may take some time before the treaty is ratified, Lopes says there must be a push towards sustainable operations, emphasising this does not necessarily mean the eradication of the use of the oceans’ resources, but rather the diversion from unsustainable to sustainable business practices.

To join Africa Legal's mailing list please click here