Decades in the Making, the High Seas Treaty (BBNJ) Is Now Binding: What Happens Next?
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On January 17, 2026, the High Seas Treaty, also known as the BBNJ Agreement, officially entered into force.
The Treaty is a major achievement, being one of the most ambitious and wide-reaching international environmental agreements in Ocean governance. Focused on the protection of biodiversity and the sustainable use of marine resources, its purpose is to strengthen environmental obligations under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in areas beyond national jurisdiction. Those areas include the seabed, Ocean floor, and subsoil beyond the limits of national jurisdiction, referred to as “the Area” or “the High Seas.” These are all the parts of the sea not included in the exclusive economic zones (EEZs) or territorial or internal waters of any state (UNCLOS, Article 1). Areas beyond national jurisdiction constitute more than two-thirds of the world’s Ocean, and a great part of marine biodiversity exposed to major human-driven threats is located there.
Since its entry into force, states that have ratified or acceded to the BBNJ Agreement have the responsibility to respect and implement it, while signatory states must refrain from acts contrary to its objective. The third and final Preparation Commission (PrepCom) has recently come to an end, laying the ground for the first Conference of the Parties (COP1, January 2027) to decide on institutional set-up and rules of procedure of the newly established Convention system. In the meantime, parties can begin by checking the consistency of existing national laws with the BBNJ, drafting relevant legislation, and fostering capacity-building.
The Pre-existent Legal Framework in the High Seas
Before the BBNJ Agreement, rights and responsibilities of the international community regarding the use and protection of the High Seas were mainly provided by UNCLOS and international customary law. The pre-existing framework was based on the principle of freedom of the high seas (UNCLOS, Article 87), according to which international waters are available for collective use such as navigation and marine research, and which critics cite as allowing unrestrained exploitation, degradation of biodiversity, and other impacts. Such freedom was intended to be balanced with a general duty to protect and preserve the marine environment (UNCLOS, Article 192) and other environmental obligations arising from international agreements. Governance of those areas is split between sectoral authorities with different mandates, such as the International Seabed Authority (ISA), the International Maritime Organization (IMO), and Regional Fisheries Management Organizations (RFMOs). The consequence was fragmentation and gaps in environmental protection, especially with regard to maritime resources and biodiversity.
The BBNJ Agreement’s Innovative Approach
The High Seas Treaty marks a shift away from the human-centered and fragmented approach typical of international environmental treaties, as it attempts to embrace an integrated approach to Ocean management. This transition is reflected by the adoption of an ecosystem-based view, including the recognition of the interconnectedness of all Earth components and the inherent value of biological diversity beyond its utility to humankind. It is likewise reflected through its acknowledgment of Indigenous Peoples and local communities not only as holders of valuable traditional knowledge but as fundamental actors whose perspectives have to be taken into account within the new normative framework.
The inclusion of Indigenous Peoples and local communities and their rights in the text is novel when compared to earlier Ocean governance treaties such as UNCLOS. Under the BBNJ Agreement, Indigenous Peoples’ participation is framed through consultation (as in the case of proposals regarding ABMTs in Article 19) and knowledge-sharing mechanisms, which highlight the importance of traditional knowledge to complement the best available science. While addressing an historical injustice, this recognition provides the crucial opportunity of having real and active representation and governance power for previously under-represented voices. This may prove beneficial for the creation of a system that prioritizes the well-being of the Ocean and acknowledges its intrinsic value. Notwithstanding great hopes in this regard, the precise modalities to secure effective participation of Indigenous Peoples in decision and policy-making processes still have to be decided (see the Policy Brief Operationalizing Indigenous Peoples’ Participation in BBNJ Governance).
The BBNJ Agreement opens a meaningful space for the advancement of Earth law and ecocentric principles. Based on a new understanding of Nature as a living entity with intrinsic rights, Earth law could provide a strong ethical foundation for a holistic conception of the Ocean and its conservation. Rights of Nature laws can recognize the right of the Ocean to thrive and to be free from destructive practices such as deep sea mining, bottom trawling, and pollution. Furthermore, Earth law could strengthen the role of states as stewards of the Ocean, as proposed by the Agreement, through the application of legal guardianship models, which could be included while adopting or reforming domestic laws to comply with the agreement.
First Steps Toward Operationalizing the BBNJ Agreement
The Treaty text was finalised on March 4, 2023, after a process lasting nearly two decades, and it was formally adopted on June 19th of that same year. On September 19, 2025, the sixtieth ratification triggered the 120 day countdown for the entrance into force on January 17, 2026, causing a shift of focus from negotiation to implementation. Today, the Treaty counts almost 90 ratifications and 145 signatory states. However, global reach is considered fundamental to achieve the Agreement’s full potential.
The operationalization of the Agreement will be completed during COP1. Though the third PrepCom guided the transition toward the creation of a functional legal regime, many details remained undecided when it was concluded on April 2, 2026. These include the establishment of a strong set of institutions such as a COP, a secretariat, an assembly, a clearing-house mechanism, an implementation and compliance committee, and a scientific and technical body.
BBNJ COP1 is required to happen by one year after the entrance into force, namely before January 17, 2027. It will be the first step toward actual implementation of the Treaty, and the forum for the establishment of all the processes and mechanisms that will enable the BBNJ to function and to put in practice the global commitments undertaken.
What Is Implementation?
The success of international agreements typically depends on national efforts and capacities to comply with the obligations undertaken, and the BBNJ is no different in this regard.
In general terms, implementation refers to the enactment of measures (policies, laws, and practices) to translate the content of international provisions at the domestic level. The practice of recognizing international norms at the national level varies from country to country. The result is a variety of methods left to the discretion of individual states, where the main distinction is between monist and dualist legal systems. In monist states, international law is directly incorporated into the domestic legal system through ratification, allowing it to be applied without further legislative action. By contrast, dualist states require a separate domestic legal act to give effect to international law, reflecting a clear separation between international and national legal orders.
In this context, it is important that the application and interpretation of new rules be guided by the overall objective of the Agreement, which is “to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination” (BBNJ, Article 2). The underlying question of whether conservation and sustainable use can effectively co-exist in a legal regime such as the BBNJ remains to be answered in practice.
The Content of BBNJ Obligations
The BBNJ Agreement imposes obligations under four main areas: Marine Genetic Resources (Part II), Measures such as Area-Based Management Tools (Part III), Environmental Impact Assessments (Part IV), and Capacity-Building and the Transfer of Marine Technology (Part V).
Marine Genetic Resources
Marine genetic resources (MGRs) refer to any material of marine plant, animal, microbial, or other origin which contains functional unity of heredity of actual or potential value (BBNJ, Article 1(8)).
The aim of Part II of the Agreement is to provide for the establishment of a framework for the equitable sharing of benefits arising from MGRs of areas beyond national jurisdiction. In order to do so, Article 12(2) requires relevant actors to notify relevant information to the Clearing House Mechanism (CHM) in three distinct phases: before the collection of MGRs, after the collection, and in case of discovery of potential use for them (for instance, commercialization).
In the case of notification prior to collection, the obligation could be implemented by enacting national legislation that directly imposes a registration or a notification regime on relevant actors. Alternatively, states could establish a national authorization regime where actors are required to apply for approval before starting the activity. During this stage of implementation, the main recommendations while enacting national legislation are:
Provide clear and precise definitions of the activities for which notification/authorization is required, and specify the information that must be submitted
Identify relevant actors and the responsible state agency for implementing Article 12
Indicate basic rules and timelines (in line with the Treaty’s requirements) for the notification/authorization process
Determine an oversight system, as well as sanctions and penalties for failure to comply
In case of notification following collection of MGRs (within a one year limit), states have to ensure that the CHM is notified about, among others: the BBNJ standardized batch identifier, the repository or database where digital sequencing information on MGRs is or will be deposited, information regarding where all MGRs collected in situ are or will be deposited or held, and, as much as available, the findings from the activity.
States can begin by deciding on an effective mechanism to gather and supply this information to the relevant government agency. They might have to enact legislative measures in order for the relevant databases to meet the minimum international standards and reporting duties. The establishment of functioning databases and repositories is essential to implement the obligation to promote access to scientific data, and therefore the fair and equitable sharing of benefits that is central to this objective of the BBNJ Agreement.
In case of discovery of potential use of MGRs, states must ensure that relevant information concerning such utilization, including commercialization, is communicated to the CHM in detail. To implement this obligation, national legislation may impose direct national requirements on users to report their activities and provide the necessary data.
2. Area-based Management Tools
Area-based management tools (ABMTs) are instruments to manage activities in a specific geographical area with the aim of achieving conservation and sustainable use objectives (Article 1(1)). ABMTs include Marine Protected Areas (MPAs) to restore and maintain ecosystem health in places of interest in international waters, Particularly Sensitive Sea Areas (PSSAs), and fisheries conservation and management measures.
Part III of the Agreement requires states to ensure that ABMTs are established and managed in compliance with decisions made at the BBNJ COPs. Proposals may be submitted by Parties to the secretariat and developed in collaboration with relevant stakeholders, including Indigenous Peoples (BBNJ, Article 19). The COPs will take decisions regarding the establishment of ABMTs and, as necessary, recommendations on their amendment, extension, or revocation (BBNJ, Article 26). In order to implement these decisions, states may need to adopt secondary legislation to cover new developments over time. Therefore, enabling legislation should:
Specify the nature of the measures that may be adopted though secondary legislation and the process to enact it
Identify the governmental authority responsible for taking such measures
Provide for mandatory reporting
Determine sanctions or penalties for failure to comply, as well as enforcement powers to investigate non-compliance
3. Environmental Impact Assessments
Environmental Impact Assessments (EIAs) are a type of mechanism for evaluating the potential impacts of an activity to guide decision-making (Article 1(7)). EIAs require the establishment of common requirements to assess activities under a state’s jurisdiction or control taking place in areas beyond national jurisdiction, or within national jurisdiction with a possible impact on the High Seas.
To implement obligations under Part IV, states must establish a legal regime for those areas/activities not already covered by some form of EIAs. Implementing this obligation means enacting legislation able to:
Provide clear and precise definitions on the activities requiring EIAs
Determine procedures, content, and timeframes of EIAs in accordance with the Agreement
Identify national authorities that oversee EIAs and their approval
Establish a mandate for publication of the EIAs and the consequent authorization decision
Ensure monitoring and review of EIAs, as well as mandatory reporting of any incident
Determine sanctions or penalties for failure to comply
4. Capacity Building and the Transfer of Marine Technology
Capacity building and the transfer of marine technology (CBTMT) refers to cooperation in collecting relevant data and information, knowledge, and research. Furthermore, CBTMT includes strengthening institutional capacity and ensuring support to developing states.
Part V of the Agreement requires the establishment of a framework for CBTMT, which ideally would include the development of national policies that:
Align national priorities with the objectives of CBTMT
Identify national institutions responsible for implementation, and relevant national stakeholders
Decide indicators to evaluate capacity-building and technology transfer programs
Establish a national framework for actors to report and share information on CBTMT
Conclusion
The High Seas Treaty marks a watershed moment in Ocean governance. Its implementation is entrusted to states, which hold the primary responsibility to act in compliance with the obligations set out in the Treaty. While waiting for BBNJ COP1, which will define the institutional layout and the rules of procedure of the new legal regime, states can begin drafting relevant legislation and fostering capacity building.
While adopting or reforming domestic laws, states have the opportunity to embed Earth law principles while meeting international obligations. The effective application of such norms will depend on administrative resources and specific conditions of contracting states, as well as on the establishment of strong processes and efficient institutions. Earth law could be of assistance in providing a strong legal and ethical framework to the obligations set out in the High Seas Treaty. The hope is to see them work together to effectively protect marine species and ecosystems.
