Beyond Jurisdiction: A Legal and Ecological Appraisal of the High Seas Treaty - I

By Mahima Navhal, a final year law student and Utsav Shreshth, a third year law student at Gujarat National Law Univeristy.

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Delineating the Fix 

Marine pollution is hitting heights every day and the marine life is the one at post to bear the brunt. Hit by the sway of modernity and consumerism, we are generating higher and higher waste every progressing day. As per a prediction by the World Bank, we would have increased waste generation by up to 70% by 2050 from 2.01 billion tons in 2022. In this context, it is important to learn that the scaling rate of pollution owes little to the augmenting population. The primary factor responsible for the high rates remains ever-increasing unsustainable consumption practices due to the lack of regulations. A huge chunk of this waste that is produced one way or the other ends up as marine debris. According to UNEP report it encompasses any solid material that is man-made or has undergone manufacturing or processing and has been discarded, disposed of, or abandoned in the marine and coastal surroundings. And no wonder plastic shares the highest share in marine debris. Other major hazards ailing the waters entail the rising coral bleaching, acidification, chemical-toxins pollution, nutrient overload, and exhaustion of fisheries.

In essence, it's no coincidence that a significant portion of the marine environment, the high seas, lacks major governance laws while it is also enduring considerable degradation from human activities on land, at sea, and in the air. The result is forth, loud and clear; absence of a legal framework to govern high seas has cast huge losses to the ecology that would soon be felt by the economy and society as well. It is not proposed that having a framework would solve the problems, but it would definitely be the first step in the direction of mitigating the problems.

Existing Framework for the Far Oceans

In the context of the above-mentioned environmental exigencies, a need for a comprehensive framework to govern Areas Beyond National Jurisdictions (ABNJ) that comprise 95 percent of the ocean’s volume under UNCLOS stems from the inadequacies of the UNCLOS in the protection of the marine commonwealth. Article 192 of UNCLOS provides that “States have an obligation to protect and preserve the marine environment” and article 194(5) of the UNCLOS requires that “measures taken shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”. However, the dilemma lies in the fact that the applicable law prescribes states to protect marine environment on overly vague terms and hence, were consistently proving inadequate for ensuring healthy state of the high seas. In absence of explicit authority granted, duty imposed and liability charged on states with respect to the high seas, these obligations were merely otiose. 

Today, only 1% of the High Seas falls under highly protected region in the scheme of Marine Protected Areas (hereinafter “MPA”) created under the Antarctic Treaty, mostly lying in the Ross Sea in the Southern Ocean. Beyond MPAs, the marine environment has been suffering from unchecked human activities. For instance, fishing operations have outstretched into deeper seas and more extreme environments like the Southern Ocean propelling several fish species on the margin of extinction. Commercialization of valuable deep-sea species like Patagonian Toothfish and Orange Roughy in the High Seas, is pushing them on the verge of extinction before Science has adequately learnt about them. In short, steps if at all taken, do not extend beyond EEZs (Exclusive Economic Zones extending up to 200 nautical miles from the baseline) despite the adverse effects transcending to the high seas.

Fixing the Fix Through the High Seas Treaty

Recently, the United Nations Treaty on marine Biodiversity Beyond National Jurisdiction (BBNJ), also referred to as the High Seas Treaty [hereinafter “the Treaty”], has entered into force on 17 January 2026. The high seas as per the 1958 Geneva Convention refers to the part of the oceans that are not internal or territorial waters of any country. With the ratification by 60 state members, the High Seas Treaty has come into operation under the framework of the United Nations Convention on the Law of the Sea (UNCLOS) as a legally binding International instrument.

The Treaty is officially known as the 'Agreement under the United Nations Convention on the Law of the Sea on conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction'. It would supplement the third Convention of UNCLOS, commonly called ‘Constitution of the Seas’. Most of the provisions of the UNCLOS have time and again been recognized as binding customary international law by states in practice besides courts in their rulings. Leaders are asserting that the Treaty would play a crucial role in achieving the goal set at UN CBD (Convention on Biological Diversity) COP15 for protecting 30% of the world's oceans by 2030, as also reaffirmed in the Kunming-Montreal Global Biodiversity Framework in December 2022.

Charting The Key Provisions

There are certain key provisions of the Treaty, discussed hereinafter, that constitute major breakthroughs in the area of governance of marine environment. Constitution of the Conference of the Parties (hereinafter “CoP”) is one such major step. It is set up as a new forum for international deliberations on all matters related to the high seas. Its key function is to conduct frequent meetings to evaluate and report on the advancement of the goals laid down under the framework. The CoP will also be responsible for creating a number of committees, including an Access and Benefit-Sharing Committee, an Implementation and Compliance Committee, and a Finance Committee. The committee on Access and Benefit-Sharing (ABS) is tasked with formulating guidelines on how to access and distribute the advantages derived from marine genetic resources located in areas outside of national jurisdictions. Further, various other supplementary bodies are directed to be created under the framework of Treaty, including a Secretariat and a Scientific & Technical Body.

The Treaty’s financial mechanism is made up of three components: a special fund to receive funds from the agreement's marine genetic resource sharing obligation; a voluntary trust fund to support delegates from developing countries to participate in meetings; and a Global Environment Facility Trust Fund. Under the Treaty, if companies and states are earning profit from research of the marine stock, they have to contribute a proportion of their profits into the fund for marine genetic resources. The CoP is charged with supervision of funding for marine conservation.

An open platform called CHM (Clearing-House Mechanism) under Article 15 is to be established. It will serve as a centralised database to allow member parties to access, impart and share information related to all the activities from marine genetic resource research to environmental assessment that states are indulging on the high seas. The objective is to foster enhanced accountability by easing equitable sharing of baseline information and to ease international scientific cooperation and collaboration. Further, in reference to capacity-building and technology-sharing, the negotiators have in verbatim privileged special requirements of developing states, in particular, least developed countries, geographically disadvantaged States, landlocked developing countries, small island developing States, developing middle-income countries and coastal African States.

The Treaty also enacts obligations to undertake environmental impact assessment of the planned activities which take place under the state’s control in the high seas. Projects of commercial operations by private players besides those undertaken by the government, like energy projects, cable-laying projects, etc. will fall in the ambit of these planned activities. The assessment includes carrying out scientific methods to identify, measure and manage potential adverse effects. Further, the results of the assessments are also to be shared into the public domain via the Clearing-House Mechanism.

Furthermore, there are special reservations for safeguarding regions beyond jurisdictions but under the control of indigenous and local communities. These areas cannot be utilized without their full consent by way of either their approval or active participation in the activities.

Finally, the Treaty lays down requirement of three-quarters vote of member countries to designate an area as MPA. This is a much lower threshold than the requirement enumerated under the Antarctic Treaty to designate an MPA, that is a unanimous approval. Establishment of MPAs would ensure higher compliances due to stricter regulations and entrust responsibilities to conduct more intensive remedial clean-up actions when accidents adversely affecting such regions occur. It also helps to keep noise or water pollution in check since they seek to limit overall disturbance on part of the vessels and other human activities.