The High Seas Treaty heralds a new era of global ocean governance

This is an updated version of the Policy Outlook that was first published in June 2023.   

After nearly two decades of discussions and a 36-hour marathon of negotiations, Ambassador Rena Lee, President of the United Nations (UN) Intergovernmental Conference, announced on 4 March 2023 that “the ship has reached the shore” for a new, legally binding international treaty to protect marine life in international waters (High Seas Treaty).* This is the first time in over 40 years that world governments have gathered to finalize a treaty related to the ocean, and the first ever to address biodiversity in the high seas—finally putting this shared resource under global protection. In their lead article, Laiolo et al. (1) explain how understanding genomic diversity in the ocean is a critical pathway for science-based decision making to support both ocean conservation efforts and sustainable use of ocean resources. In this UN Decade of Ocean Science, the successful conclusion of the High Seas Treaty negotiations reflects an important shift in the world’s commitment to collectively address some of the most pressing challenges on our blue planet. To successfully implement the Treaty, a comprehensive science-based understanding of marine biodiversity and ecosystems in vast and largely unexplored ocean areas is necessary.   

What are some of the ground-breaking provisions of the Treaty and what is required to implement it? While the formal adoption of the Treaty, that took place on 19 June 2023, is a momentous achievement, it is essential to recognize that this milestone represents not the conclusion but the beginning of a new stage towards ratification and implementation, bringing its own unique set of challenges.  

Listen to the science

It has long been recognized that the current ocean governance regime is insufficient to address the growing multitude of anthropogenic stressors. The resulting effects include ocean warming and acidification; extensive oxygen-depleted “death zones”; decreasing marine biodiversity; collapsing fisheries; noise, plastic, and chemical pollution; and many other pressures now understood to threaten the ability of the ocean to sustain itself—and us. Adopted in 1982 and considered the “constitution of the ocean,” the UN Convention on the Law of the Sea (UNCLOS)* has failed to adequately protect the ocean’s immense and unique biodiversity, nor has it kept up with the rapid technological, scientific, and legal developments of the past 40 years.   

This is specifically true for the high seas, which comprise 64% of the global ocean and, therefore, almost half our planet, providing nearly 90% of the habitat for all life on Earth. The deep sea is one of the least explored and most inaccessible environments on Earth and with less than 5% of seafloor adequately mapped, a comprehensive understanding of its processes and biodiversity is still lacking (2). To date, the absence of comprehensive data on which aspects of the ocean need protecting or which areas will be significantly impacted has resulted in ongoing difficulties managing risks from a range of human activities. This situation has essentially resulted in a free-for-all for those countries and industries with the resources and technology to exploit the deep sea. Moreover, because these ocean areas lie beyond the ambit of any one nation, it has been extremely complex to negotiate marine protected areas amidst various regional, sectoral, and international bodies—some with overlapping jurisdictions or insufficient conservation mandates. As a result, only around 1% of the high seas are fully and highly protected, offering little refuge for ecosystems and vulnerable or rare species (3).  

Concurrently, through several leading studies, scientists have been repeatedly and urgently calling for urgent change in the way we manage the ocean and its biodiversity to address the impacts resulting from a multitude of human-induced stressors (4). Most recently, the Intergovernmental Panel on Climate Change (IPCC) released its 6th Assessment Report warning that the “choices and actions implemented in this decade will have impacts now and for thousands of years” (5). Despite these alarming reports, there seems to be a disconnect in terms of the corresponding urgency of international negotiations aimed at addressing global environmental problems, most recently highlighted by the disappointing outcome at the November 2023 third meeting of the International Negotiating Committee for a global agreement to end plastic pollution (6).  

The current situation leads many to question what more Is needed to build the political will and leadership necessary to reconcile competing interests between conservation efforts and the pursuit of economic benefits. Moreover, the growing Global North-South divide on issues of equity, financial resources, and responsibility-sharing that have repeatedly arisen in multilateral negotiations only add to the complexity of the challenge. However, the conclusion of the High Seas Treaty negotiations together with the successful outcome from the December 2022 UN Kunming-Montreal Global Biodiversity Framework (COP15) (7), signal promising developments toward a new era of ocean governance, with the agreed-upon global commitments and collaboration critical for achieving conservation goals.

 An innovative agreement for the 21st century

After over a decade of informal discussions on these issues (8), a formal treaty-negotiating conference was launched in 2018 by the UN General Assembly to address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. As the third “implementing” agreement under UNCLOS, the High Seas Treaty seeks to fill many identified gaps and creates several new important mechanisms. Monumentally, it sets forth the first detailed pathway to establish marine protected areas (MPAs), a key tool for biodiversity protection, in international waters. Paramount with respect to the establishment of MPAs, the Treaty allows for a voting procedure if consensus amongst Member States Parties cannot be reached, which ensures that no one nation can block a decision supported by a vast majority of countries—as has been seen in other processes, particularly regarding the Southern Ocean (9).  

The Treaty comes on the heels of another major victory for ocean biodiversity. Through the establishment of protected areas, the Kunming-Montreal Biodiversity Target 3, agreed upon in December 2022, aims to protect 30% of land and ocean by 2030 (7). Given that the high seas account for 64% of the ocean, the Treaty is the only viable means of achieving the 30% target for global ocean protection. Still, the agreement includes a provision that it “shall not undermine” relevant instruments and global, regional, and sectoral bodies. This refers to the level of deference and decision-making authority given to these bodies, for example, regional fisheries management organizations, particularly with respect to the establishment of MPAs and associated management measures. This was a highly contentious provision from the outset with continued divergence as to its interpretation; questions of treaty application in this regard will no doubt continue to be debated as future proposals for MPAs and corresponding management measures are developed. 

The High Seas Treaty also establishes a benefit-sharing regime for marine genetic resources and, crucially, provides for the sharing of monetary benefits—a hard-fought and divisive issue between the Global North and South throughout the negotiations. The unexplored deep sea is thought to contain a wealth of unique species and chemical compounds that could have important pharmaceutical applications (11). Accordingly, the G77 and others have argued that, as common heritage of mankind, any monetary benefits from commercialization should be equitably shared. A ground-breaking compromise was brokered in the last hours: monetary benefits will be shared “fairly and equitably,” but those benefits will go into a special fund towards implementation of the Treaty (11) while non-monetary benefits will include access to sample collections as well as digital sequence information. Further modalities of benefit sharing will need to be sorted at the first meeting of the Conference of Parties (CoP), guided by an Access- and Benefit-Sharing Committee to be elected by the CoP.  

The existing Environmental Impact Assessment (EIA) obligation under UNCLOS already required parties to assess potential pollution or harm to the ocean caused by activities under their jurisdiction but lacked a way to operationalize and enforce this provision. Thus, the High Seas Treaty presents a significant opportunity to provide necessary oversight and reporting of the increasing list of human activities that may damage marine ecosystems. Negotiations on the EIA provisions were some of the most challenging and, despite some strong regional arguments for robust international oversight, the Treaty’s final version incorporates a tiered, State-led process, whereby States Parties are obliged to conduct the EIA and determine if an activity will go forward with the CoP developing standards and guidelines and the Scientific and Technological Body receiving notifications and reports. Future strategic environmental assessments (usually undertaken at an early planning stage) (13), will also be considered as needed. Overall, the Treaty’s EIA provisions are a much-needed improvement and clarification of UNCLOS’ EIA provisions.               

The Treaty’s principle of equity is firmly grounded in the preamble, which recognizes the importance of contributing to a just and equitable international economic order. “The common heritage of mankind” is another overarching principle of the new agreement, balanced with the freedom of marine scientific research and “other freedom of the high seas” (12). As one of the Treaty’s four core elements, the importance of capacity building for developing nations is further heightened, with the concept woven throughout other elements of the Treaty. This element serves as a fundamental starting point to address long-standing global inequities, by aiming to ensure that all States Parties have equal opportunities to participate and fulfill their obligations under the Treaty.  

The establishment of a CoP will be a key feature, as it will serve as a forum for regular meetings to report on and assess progress towards the Treaty’s objectives. Several other subsidiary bodies will also be created, including a Secretariat (whose seat will be determined at the first CoP meeting, with Belgium and Chile both having expressed interest in hosting), a Scientific and Technical Body, and a clearinghouse mechanism (primarily an open-access platform) to be used as a central data-collection point. The CoP will also be tasked with setting up various committees, including an Implementation and Compliance Committee, an Access and Benefit-Sharing Committee, and a Finance Committee. To secure necessary resources, a funding mechanism will also be established and will include a voluntary trust fund, an annual contribution from developed States Parties to a special fund, and a Global Environment Facility Fund.  

Given the magnitude of the workload that must be addressed during the first CoP, an advance preparatory process/committee, established by a UN General Assembly resolution, would provide a valuable opportunity to plan and execute some of the essential organizational and administrative matters prior to the first official CoP meeting.  A modalities resolution for such a preparatory conference is expected to be negotiated at the UN in January 2024.  

Treaty adoption is only the beginning

While the High Seas Treaty negotiations have necessarily focused on finalizing the Treaty text, adoption of the Treaty is only the first step toward bringing about real change on the water. The Treaty's future success hinges on its provisions and the need for near-universal ratification to enable robust global implementation of its key elements. The Treaty was opened for signature in New York on September 20, 2023, and remains open for a 2-year period. Currently, 84 countries have signed, indicating their intent to ratify the Treaty (13).  The subsequent phase of ratification requires member states to undertake the necessary domestic legislation and policy measures to implement the Treaty at the national level.  This could take some time, as 60 UN member states need to ratify the Treaty for it to enter into force.  Notably, UNCLOS requiring 60 ratifications, took 12 years, while the Paris Agreement, requiring 55 ratifications, achieved entry into force within 1 year. This stark difference underscores the importance of both high-level political commitment and public pressure in expediting implementation.  

With nearly two decades already invested in the High Seas Treaty process, it is vital to galvanize political will and momentum from all ocean stakeholders to fast-track ratification efforts (14). This could be aided by high-level signature post adoption. The next UN Ocean Conference, co-hosted by the governments of France and Costa Rica in Nice, France, in June 2025, along with the High Level Event on Ocean Action:  Immersed in Change, in San Jose in June 2024, could provide needed impetus toward an early target date for the Treaty’s entry into force. While nearly 100 million $US has been pledged by the European Union, the Global Environmental Facility, and a group of leading philanthropies towards ratification efforts, the challenge will be to swiftly customize ratification support and training initiatives, taking into account the unique legal systems and individual needs of each country.   

Even after ratification, the real challenge lies in implementing the Treaty to ensure its provisions are translated into meaningful conservation measures and effective mechanisms, including the establishment of effective institutional components, integration of robust capacity building elements (15), as well as securing adequate funding. To achieve the Kunming-Montreal goal of protecting 30% of the global ocean by 2030, it is crucial to operationalize the Treaty’s provisions and initiate the establishment of MPAs in the high seas as soon as possible. Conservation groups and marine scientists are already recommending potential sites for the first generation of high-seas MPAs (16). Ongoing monitoring, reporting, and reviewing will also be essential to ensure that the Treaty’s objectives are met.  

Could the High Seas Treaty serve as a much-needed catalyst for other multilateral environmental processes? Amidst mounting global divisions, the successful negotiation of the High Seas Treaty offers a hopeful example of our capacity to come together to protect our invaluable shared resources. It signifies enhanced global ocean governance and oversight, laying the groundwork and momentum for more equitable cooperation in future multilateral discussions toward the responsible stewardship of our irreplaceable blue planet.  

Footnotes

*Formally called the agreement under the United Nations Conventions on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, and commonly referred to as the “BBNJ” or “High Seas” Treaty 

References

1. Laiolo E, Alam I, Uludag M, Jamil T, Agusti S, Gojobori T, et al. Metagenomic probing toward an atlas of the taxonomic and metabolic foundations of the global ocean genome. Front Sci (2024) 1:1038696. doi: 10.3389/fsci.2023.1038696 

2. Vermeer D. The next phase of industrialization will happen in our oceans. Duke Fuqua School of Business (2019). Available at: https://centers.fuqua.duke.edu/edge/2019/06/13/the-next-phase-of-industrialization-will-happen-in-our-oceans/

 3. Marine Conservation Institute. Marine Protection Atlas: High Seas. Available at: https://mpatlas.org/countries/HS. (In 2020, the Second World Ocean Assessment reported that marine protected areas covered 18% of the ocean within national jurisdictions, representing approximately 8% of the entire ocean. Meanwhile, to date, less than 1% of marine areas beyond national jurisdiction have been fully and highly protected.)

4. Pörtner HO, Roberts DC, Masson-Delmotte V, Zhai P, Tignor M, Poloczanska E, et al. IPCC Special Report on the Ocean and Cryosphere in a Changing Climate. IPCC. Cambridge, UK: Cambridge University Press (2022). Available at: https://doi.org/10.1017/9781009157964. 

5. Masson-Delmotte V, Zhai P, Chen Y, Goldfarb L, Gomis MI, Matthews JBR, et al. Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change. IPCC. Cambridge, UK: Cambridge University Press (2021). Available at: www.ipcc.ch

6. Mureithi C. Weeklong negotiations for landmark treaty to end plastic pollution close, marred in disagreements. Associated Press (2023). Available at:

https://apnews.com/article/united-nations-plastic-pollution-treaty-negotiations-inc-55283d8c15d9d4449ac25109ebebcd68

7. United Nations Environment Programme and Secretariat of the Convention on Biological Diversity. Decision adopted by the conference of the parties to the Convention on Biological Diversity. 15/4. Kunming-Montreal Global Biodiversity Framework. Nairobi: United Nations Environment Programme (2022). Available at: www.cbd.int/doc/decisions/cop-15/cop-15-dec-04-en.pdf

8. Ad Hoc Open-Ended Informal Working Group to study issues for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (2006-2015). UNCLOS: Division for Ocean Affairs and the Law of the Sea. Available at: https://www.un.org/depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm

 9. Harvey C. China and Russia continue to block protections for Antarctica. Scientific American (2022) Available at: https://www.scientificamerican.com/article/china-and-russia-continue-to-block-protections-for-antarctica/

 10. Stone S. Hope for new drugs arises from the sea. Scientific American (2022). Available at: https://www.scientificamerican.com/article/hope-for-new-drugs-arises-from-the-sea/

11. Draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. United Nations, General Assembly (2023). Available at: https://www.un.org/bbnj/sites/www.un.org.bbnj/files/aconf232-2023-crp2_draft_agreement_edited.pdf

12. Adelaide FM, et al. Ferreira MA, Johnson DE, Andrade F. The need for a global ocean vision within biodiversity beyond national jurisdiction: a key role for strategic environmental assessment. Front Mar Sci (2022) 9:878077. doi: 10.3389/fmars.2022.878077

 13. United Nations Treaty Collection, Chapter XXI, Law of the Sea (2023). Available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en

14. Gjerde KM, Clark NA, Chazot C, Cremers K, Harden-Davies H, Kachelriess D, et al. Initial reflections to support rapid, effective, and equitable implementation of the BBNJ Agreement. IDDRI Policy Brief No. 01/23 (2023). Available at: https://www.iddri.org/sites/default/files/PDF/Publications/Catalogue%20Iddri/Propositions/202302-PB0123-high%20seas.pdf

15. Roberts C, Mason L, Hawkins JP. Roadmap to recovery: A global network of marine reserves (2006). Available at: https://www.greenpeace.org/usa/research/roadmap-to-recovery-a-global/

16. Harden-Davies H, Lopes VF, Coelho LF, Nelson G, Schutz Veiga J, Talma S, et al. First to finish, what comes next? Putting Capacity Building and the Transfer of Marine Technology under the BBNJ Agreement into practice. Npj Ocean Sustain (2024) 3:3. doi:10.1038/s44183-023-00039-1