What are the challenges with the High Seas Treaty? | Explained Today World News

The story so far: The High Seas Treaty was ratified by over 60 countries in September; it will now be enforced in January 2026. The treaty sets rules to preserve and use marine biodiversity sustainably and addresses threats from climate change, overfishing and pollution.

What is the treaty about?

The Biodiversity Beyond National Jurisdiction (BBNJ) agreement, as the High Seas treaty is formally referred to, creates an all-inclusive framework to govern and manage common marine biodiversity. It identifies Marine Genetic Resources (MGRs) as the common heritage of humankind, insisting on a fair and equitable sharing of benefits. Besides, the Area-Based Management Tools (ABMTs) include Marine Protected Areas (MPAs) that can be recognised to protect biodiversity. This will help in improving climate resilience and provide food security, combining science and indigenous knowledge. The treaty also entails Environmental Impact Assessments (EIAs) for events potentially affecting these areas, especially when cumulative and transboundary impacts are taken into account. The first steps for the treaty began two decades ago. In 2004, the UN General Assembly formed an ad-hoc working group to fix the gap in the UN Convention on the Law of the Sea (UNCLOS), 1982, which did not have clear guidelines on protecting BBNJ. By 2011, states had agreed to negotiate on four key issues, mainly MGRs, ABMTs, EIAs, and capacity building and technology transfer. Following this, four Intergovernmental Conference sessions were held between 2018 and 2023. The parties to these discussions finally reached an agreement in March 2023, which led to the adoption of the treaty in June 2023.

What are the major issues?

First is the uncertainty over the principles of “common heritage of humankind” and “freedom of the high seas.” The “common heritage principle” supports equitable access and benefit-sharing of marine resources for all, while the “freedom on the high seas” stresses on unrestricted rights of states to carry out navigation, resource usage and research activities. However, the common heritage principle is only applicable partially, especially when it comes to MGRs. This shows a compromise instead of a resolution. It also creates ambiguity in exploration, research and benefit sharing. Second, is the use of MGRs. The governance of MGRs was earlier not defined, raising concerns over “biopiracy” and unfair exploitation by developed countries. Developing nations were concerned that they would be excluded from the profits of scientific discoveries from the high seas. The treaty now includes a framework on sharing monetary and non-monetary benefits, but with no clear details on how such benefits will be calculated or shared. Third is the reluctance of big powers to get engaged. The treaty is under threat due to non-participation from the U.S., China, and Russia, who are yet to ratify the treaty. Fourth, is interaction with multilateral institutions. The treaty must coexist and not ignore existing international institutions, such as the International Seabed Authority (ISA) and Regional Fisheries Management Organisations (RFMOs). The BBNJ agreement must also blend with existing international treaties to prevent legal conflicts and lead to more fragmentation of ocean governance.

What next?

The treaty provides more clarity to the UNCLOS provisions, focusing on science-based requirements for EIAs, ABMTs and benefit sharing. However, the ambiguous language in the MGRs and the common heritage of humankind principle challenge the execution of the treaty. There is a need for dynamic management of MPAs, and regular monitoring. To deliver the BBNJ, linking climate-biodiversity with the ocean will be crucial for resilient management.

Padmashree Anandhan is a project associate at NIAS, Bangalore.