Trouble on the High Seas

By: Amy Walsh

The UN Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, also known as the BBNJ, was convened in late 2017 to develop a new legally binding instrument under the UN Convention for the Law of the Sea (UNCLOS). Now, nearly seven years later, the High Seas Treaty has yet to be entered into force. With 45 additional countries needing to ratify the treaty by June 2025, the long-overdue protections for marine ecosystems hang in the balance. 

On December 24, 2017, the UN General Assembly adopted Resolution 72/249. This resolution, with over 140 government co-sponsors, demonstrated a global need to protect marine biodiversity in the open ocean. These protections are focused on areas for which no one nation has sole responsibility for management as they are beyond the territorial waters or exclusive economic zones of individual States. Subsequently, the BBNJ was tasked with developing the agreement. After five years of negotiations, the High Seas Treaty was agreed upon and adopted in June 2023. Over 100 countries and the European Union have signed onto the treaty, including the United States. 

UNCLOS is the legal foundation for international ocean protection. Thus far, it has been supplemented by two implementing agreements, one regarding seabed resources and another regarding transboundary fish stock. The High Seas Treaty would be the third implementing agreement. The treaty establishes common jurisdiction over approximately 50% of the Earth’s surface and 95% of the ocean’s volume. The treaty emphasizes four key elements. The first, marine genetic resources (MGRs), have the potential for many commercial benefits, especially through medicine, and the treaty requires equitable sharing of those benefits. Area-based management tools (ABMTs) will regulate human activity in various areas of the high seas, specifically in marine protected areas (MPAs). Environmental impact assessments (EIAs) will ensure that activities occurring on the high seas have minimal impacts on the ocean’s ecosystem. Finally, capacity-building and the transfer of marine technology (CBTMT) will facilitate knowledge and technology sharing across countries to promote sustainable access and use. The treaty highlights broader goals as well, such as ensuring cleaner oceans, managing fish stocks, and lowering ocean temperatures. 

If ratified and entered into force, each State will be responsible for the implementation of the treaty by developing regulations within their respective nation. However, this treaty, in particular, emphasizes cooperation and collaboration among States. For example, commercial profit from genetic resources is to be shared equally between nations. Given the breadth of the ocean, the high seas function as a shared commons that is vulnerable to exploitation. By working together, the States not only maximize knowledge and funding, but ensure sustainable use for all. With all States pushing towards the same goals, it also provides the best chance for long-term conservation of these ecosystems.  

Outside of State responsibilities, private entities will also have an important role to play. Various industries have existing operations in the high seas and can be a valuable resource in developing effective regulatory mechanisms. These existing operations can also be used to collect additional data. Finally, given the challenges of monitoring and enforcement, voluntary compliance by industry will be crucial to the success of the treaty. 

As of December 2024, only fifteen countries have ratified the High Seas Treaty. The treaty must be ratified by at least 60 countries by the 3rd UN Ocean Conference in June 2025 in order for the treaty to be entered into force, which would occur 120 days after the 60th ratification. The High Seas Treaty will ensure much-needed protection for some of our most sensitive ecosystems. Currently, only about 1% of the high seas are legally protected. The treaty will move the UN significantly closer to achieving the 2030 Agenda, which aims to protect at least 30% of the planet by 2030. With marine biodiversity facing serious threats from climate change, it is more important than ever to protect these species and their habitats on a global scale.