The High Seas Treaty aims to conserve marine biodiversity and manage resources in areas beyond national jurisdiction. Despite its merits, the treaty risks being less effective than ideally intended.
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Last month, the Indian government announced plans to sign and ratify the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement, a global initiative to protect the health of the oceans. Negotiated in March 2023, the treaty tackles major issues like marine pollution, conservation, and preserving biodiversity in areas beyond national borders. This is the third implementation agreement under the United Nations Convention on the Law of the Sea (UNCLOS), following the 1994 Part XI Implementation Agreement to control mining in international seabed areas and the 1995 UN Fish Stocks Agreement for conserving and managing fish populations. A crucial link in the ocean governance architecture, implementing agreements are meant to foster international collaboration in the conservation and management of maritime resources. The fundamental premise driving these agreements is the shared understanding that uncontrolled resource exploitation harms ocean biodiversity and requires a global response.
A crucial link in the ocean governance architecture, implementing agreements are meant to foster international collaboration in the conservation and management of maritime resources.
The BBNJ treaty, better known as the High Seas Treaty, is the result of over two decades of advocacy by marine conservationists and marine scientists who have long called for a comprehensive and fair governance framework for the world's oceans. Their pleas were largely overlooked until a few years ago when the deteriorating state of marine health became impossible to ignore. The treaty has three main objectives: conserving marine ecosystems, ensuring equitable sharing of benefits from marine genetic resources, and mandating environmental impact assessments for activities that could harm the marine environment. The task is difficult as the high seas are widely considered a “lawless wilderness” where governance is fragmented and marine life remains vulnerable to rampant exploitation. While regulatory bodies are in place to manage these spaces, governance is hampered by overlapping mandates and systemic inefficiencies, exacerbated by the adverse impacts of climate change. Geopolitical rivalries render the challenge even more complex.
Against this backdrop, India's decision to sign and ratify the treaty seems reasonable and well-considered. New Delhi has long supported the principle of equity in high seas governance, advocating for the fair distribution of benefits from marine resources, especially to developing nations that lack the technology or funds to harness these resources independently. India’s push for capacity-building measures reiterates its commitment to empowering developing countries to engage effectively in marine governance. This also aligns with the country’s broader goal of sustainable development and environmental stewardship in the maritime commons.
Despite its merits, which are manifest and undeniable, the High Seas Treaty suffers from some critical shortcomings. The main concern is the lack of consensus around implementation. The treaty requires ratification by at least 60 countries before it can come into force. Notably, however, out of the 91 states that have signed the treaty, only eight have ratified it. This is partly attributable to a lack of clarity on the status of disputed maritime spaces, such as the South China Sea. The treaty calls for setting up Marine Protected Areas (MPAs), which conflict with many states’ territorial claims in disputed waters, such as the South China Sea. Unsure of its implications, China and ASEAN countries are reluctant to ratify the treaty. Many other maritime states in Asia and Africa remain wary of having protected zones in resource-rich areas that sustain coastal communities.
The treaty calls for setting up Marine Protected Areas (MPAs), which conflict with many states’ territorial claims in disputed waters, such as the South China Sea.
The second area of concern involves marine genetic research and benefit-sharing. The treaty's provisions on marine genetic resources require countries to share a portion of their profits with a global fund for high-seas protection. This is ostensibly based on the understanding that high-income countries active in marine genetic research will, in good faith, contribute proportionately more to the fund. Even so, the treaty lacks enforceable accountability, as it does not compel high-income states to disclose the resources accessed or the profits generated. Critics say this could potentially compromise the interests of smaller, less capable states. Marine genetic research is already subject to complex legal regimes, such as the Convention on Biological Diversity (CBD) and the Trade Related Intellectual Property Rights (TRIPS). The treaty does not appear to be designed to harmonise existing institutions and frameworks—at least not in ways that would preserve the latter’s autonomy.
A third concern is capacity-building and technology transfer. The treaty stresses the importance of research, information sharing, and capacity-building in ocean science for low- and middle-income countries. Even so, there are no mechanisms to ensure that developed countries will fulfil their commitments. Despite its call for collaboration between parties at various levels and with diverse stakeholders, the treaty lacks measures to guarantee meaningful compliance. The critics say less capable nations could be left without resources and the necessary technology to benefit from joint marine research.
It is relevant that most flagrant transgressions of marine regulations occur, arguably, not on the high seas, but in the Exclusive Economic Zones (EEZs) and Territorial Seas where national laws apply. Since marine ecosystems are interconnected, degradation in coastal environments often extends into areas beyond national jurisdictions. Indeed, coastal pollution is known to spread into the high seas, and overfishing within EEZs frequently causes fish stocks to migrate across borders. The treaty calls for “Environmental Impact Assessments” (EIAs) for ‘planned’ activities in areas under national jurisdiction, but it does not address the reality that many environmentally damaging activities are ‘unplanned’ in nature and remain outside its purview. It also does not account for the inconsistencies between domestic legislation in many countries and international law—a discrepancy that undermines collective efforts to protect marine environments.
Coastal pollution is known to spread into the high seas, and overfishing within EEZs frequently causes fish stocks to migrate across borders.
In sum, the High Seas Treaty risks being less effective than ideally intended. Despite its promise, its success hinges on overcoming structural challenges that have historically proven resistant to simplistic solutions. Its biggest flaw, arguably, is that it overlooks the problem of entrenched mindsets that bedevil marine governance, with many coastal states unwilling to accept responsibility for environmentally harmful activities in their EEZs. This is a significant failing, even though it is precisely the problem that the treaty is technically not meant to address. Yet, the only reliable way to resolve the marine governance dilemma is to consider the maritime environment as a continuum, with the high seas as an extension of the EEZs, governed by common rules. Regrettably, there is little consensus on a truly integrated and comprehensive approach to the maritime commons.
Abhijit Singh is a Senior Fellow at the Observer Research Foundation
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A former naval officer Abhijit Singh Senior Fellow heads the Maritime Policy Initiative at ORF. A maritime professional with specialist and command experience in front-line ...
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