Between hope and hurdles on the high seas

‘The Biodiversity Beyond National Jurisdiction (BBNJ) Agreement’s biggest limitation is its inability to reconcile high-seas governance with coastal regulations’
| Photo Credit: The Hindu

India’s recent signing of the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement — better known as the High Seas Treaty — has drawn both praise and scepticism from maritime observers. Hailed as a landmark step in ocean governance, the treaty seeks to protect marine ecosystems and promote the sustainable use of resources in areas beyond national jurisdiction. However, despite its laudable intentions to address critical gaps in international maritime regulation, the pact’s structural complexities and potential challenges warrant closer examination.

As the third implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS), the BBNJ treaty follows earlier accords on deep-sea mining and fisheries management. Its provisions focus on three objectives: conserving marine biodiversity, ensuring equitable sharing of benefits from marine genetic resources, and mandating environmental impact assessments for harmful activities. Yet, like many ambitious multilateral agreements, it risks faltering against geopolitical rivalries, jurisdictional overlap, and weak enforcement mechanisms.

A framework fraught with challenges

The treaty’s ambitious goals are tempered by its lack of a clear implementation roadmap. With only 14 of its 104 signatories having ratified the agreement, it remains far from the required threshold of 60 needed to come into force. Much of the hesitation stems from disputes over maritime territories, particularly in regions such as the South China Sea, where overlapping claims complicate consensus on Marine Protected Areas (MPAs). Southeast Asian nations remain divided on whether high-seas “national parks” could affect territorial claims or limit economic opportunities for coastal communities that depend on marine resources. Similar apprehensions about MPAs affecting livelihoods and resource access are echoed by states bordering the Bay of Bengal, underscoring the broader regional hesitations surrounding the treaty’s implementation.

One of the treaty’s most contentious provisions involves marine genetic resources. The treaty obligates nations to share the profits derived from exploiting these resources through a global fund. However, without robust accountability measures, this provision risks being undermined by wealthier nations underreporting their activities. The pact also risks conflicting with regimes like the Convention on Biological Diversity, potentially disadvantaging smaller states and fragmenting enforcement.

Capacity-building and technology transfers present yet another challenge for low and middle-income countries. The treaty calls for equitable partnerships in ocean science, but lacks enforceable mechanisms, leaving less capable nations vulnerable to being sidelined. Asymmetry threatens to perpetuate inequalities in maritime research and governance.

A narrow focus

The treaty’s focus on the high seas overlooks the interconnectedness of marine ecosystems, where harmful activities in EEZs often spill over into international waters. While the BBNJ Agreement aspires to reshape global ocean governance, its potential hinges on bridging the gap between ambition and action. Its greatest limitation lies in failing to reconcile high-seas governance with coastal regulations, assuming international waters can be managed in isolation despite the impact of pollution, overfishing, and habitat destruction in EEZs.

More troubling is the reluctance of coastal states to assume greater responsibility for activities within their waters. While the treaty mandates environmental impact assessments (EIAs) for planned activities, it remains silent on the damaging harms during oil and gas exploration — that the pact does not cover — and which constitutes an important economic interest of states. This gap, compounded by the disinclination of states to accept an international review of EIAs, exposes the inherent weaknesses in the treaty’s enforcement framework, particularly in regions with weak institutional capacity and conflicting domestic and international legal standards.

Bridging the divide

For the High Seas Treaty to succeed, it must overcome its structural and political limitations. This requires a radical shift in maritime governance — one that integrates high-seas and coastal regulations into a cohesive framework. Coastal states, particularly those in the Global South, need incentives to align their domestic laws with international norms, while wealthier nations must commit to providing technical and financial support to ensure the treaty’s benefits are equitably shared.

The treaty’s success ultimately hinges on fostering a collective commitment among nations to safeguard the oceans as a shared global resource. Without political consensus, clear strategies, and enforceable mechanisms, the BBNJ risks becoming an ineffective instrument — an outcome the oceans, already under immense stress, cannot afford.

Abhijit Singh is Head of the Maritime Policy Initiative at ORF, New Delhi