The New "High Seas Treaty" Hasn't Even Entered into Force Yet, But Is Already Making a Difference
The world’s newest ocean treaty hasn’t taken effect yet—but it’s already changing how nations protect the high seas.
On September 16th, Morocco became the 60th country to ratify the High Seas Treaty. This triggered a countdown to January, when the treaty will enter into force. And though this treaty has not yet even formally been established, it is already having an impact on ocean conservation according to my interview guest, Nichola Clark, Senior Officer for Ocean Governance at The Pew Charitable Trusts.
The High Seas Treaty establishes a rules of the road for international waters that are beyond the territorial jurisdiction of any single country, particularly around conservation and preserving ocean biodiversity. At the core of the High Seas Treaty are the establishment of marine protected areas — think of these like national parks, but for the high seas.
Nichola Clark and I kick off discussing why the international community felt there a need for the High Seas Treaty in the first place. She then tells the story of how this treaty came to life before we have a broader conversation about what this treaty has already accomplished and how it may shape how the world approaches the deep ocean in the near future. It’s a great example of multilateralism done right.
Our conversation is freely available on Apple Podcasts, Spotify, or wherever you listen to shows.
This episode is produced in partnership with Lex International Fund, a philanthropic fund dedicated to strengthening international law to solve global challenges. It is part of a series that demonstrates the impact of treaties on state behavior that we are calling When Treaties Work.
Is there a treaty you think we should highlight in this series? Pitch me your idea!
Transcript edited for clarity
Mark Leon Goldberg:
Nichola, thank you so much for joining me. Just to kick off, can I have you explain and describe the problem that the High Seas Treaty is seeking to address?
Nichola Clark:
So, when people think about the high seas, probably they think maybe of pirates, but of faraway ocean spaces. And there’s a truth to a lot of it, right? The high seas are these places in the water that are beyond the jurisdiction of any single country. So, generally speaking, a country’s national jurisdiction over ocean areas extends to 200 nautical miles. Beyond that, it’s international waters, areas Beyond National Jurisdiction, or more colloquially, the high seas. And the challenge is that it’s much more difficult to regulate human activities that are taking place beyond national jurisdiction. And it’s even more difficult to do things like protect and conserve any sort of ocean resources that are beyond national jurisdiction. And so really, what the High Seas Treaty, or more formally or more wonkily, the BBNJ Agreement seeks to do is to really help to address these governance gaps that have existed for decades.
But particularly what it seeks to do is to better enable the international community to conserve as well as sustainably use the marine biological resources that are in these areas Beyond National Jurisdiction. And I would also say to help advance a more equitable global ocean governance paradigm in high seas.
Mark Leon Goldberg:
What are some examples of potentially problematic activities in the high seas that this treaty seeks to address?
Nichola Clark:
It’s a complicated answer, in part because there’s a couple of myths that exist. One of the myths is that the high seas are like the Wild West. It’s a free for all. There’s nothing out there. You can just go and do whatever you want. And while there are certainly relatively fewer laws and fewer management mechanisms in place in areas Beyond National Jurisdiction, there actually are dozens of different management organizations that manage different aspects of human activities. So, for example, there are Regional Fisheries Management Organizations, or RFMOs that manage many types, but not all types, but many types of fishing activities that take place on the high seas. You have another organization called the International Seabed Authority. That entity is responsible for managing seabed mining that would happen in areas Beyond National Jurisdiction. And then still others.
So, there’s the International Maritime Organization, or the IMO, and that body is responsible for managing shipping that takes place on the high seas. So, while we do have these existing management bodies that exist, there’s a couple of problems with how they’ve been working. One is that across all of these different management organizations that do exist on the high seas, effectively none of them, maybe except for Antarctica — Antarctica has its own special story — but for most of the high seas, none of these management organizations that are out there and operating have a conservation mandate or a conservation focus. Their focus and their mandate is to regulate human activities that are there. But none of them are really tasked with thinking about — oh, maybe we should think about some of these places that might be really important to protect or to conserve because they’re incredibly critical habitats for highly migratory species, as an example.
So, that’s one thing, is that there’s really no entity out there that’s thinking about what we need to do in order to effectively conserve these resources that exist, that are out there. And then the other thing that I would say is a sort of key governance gap is while we do have many human activities that are regulated by different bodies, the high seas are becoming an increasingly busy space. And certainly there are still a number of human activities that aren’t necessarily regulated by any existing body. So, again, for those sort of emergent activities, the BBNJ Agreement, the High Seas Treaty is an option to potentially help manage or mitigate impacts from some of those emergent activities. And then maybe finally, I would add that one of the things that this agreement does is it offers a way to think more comprehensively about how we are using and protecting and managing the high seas.
Though there is this sort of constellation of different management bodies that exist, they generally don’t do a really good job of cooperating and coordinating with each other, and they’re just sort of quite siloed and thinking about single focus, what activity is they’re meant to be managing. And so there, again, you might miss that, oh, this mining activity that is planned could actually have some really devastating impacts on a fish stock that’s managed by an entirely other body. So, the BBNJ Agreement actually provides a platform that the global community can use to more holistically consider and manage these different resources. And, again, a platform to actually bring about conservation measures to protect some of these really incredibly important places on our planet.
Mark Leon Goldberg:
Yeah. I mean, so you’re really describing the High Seas Treaty as an opportunity to close some key governance gaps in some key geographical areas on our planet, particularly as it relates to conservation, but treaties like this don’t invent themselves. What’s the story of how the High Seas Treaty came to life?
Nichola Clark:
There are several different starting points of the High Seas Treaty, and you can go as far back as 2002, 2001. I think it depends on how inside baseball you want to get. Of course, the most recent exciting thing that we had was the actual formal negotiations for the treaty text. So, the formal negotiations for the treaty text took place beginning in 2018. And we finally got that treaty over the finish line in 2023, with just a little two year disruption for Covid within that period.
Mark Leon Goldberg:
I should say that’s like not a bad pace or timeline when it comes to international treaties. So that, at least to me, suggests that there is a really broad buy-in for this treaty across sectors, across geographies, across geopolitical rivalries even.
Nichola Clark:
Absolutely. I mean, I will say that, by some measurements, you would hear some people and it’s often quoted, and not wrongly, right? That people have been working and thinking about this treaty for 20 years. When you say that, you think, oh my God, this is taking forever to get to it. But then I was actually recently speaking with the president of the negotiations just last week, and she was reminding us, actually, when you look at it, , we had a total of six negotiating meetings for the formal negotiations, and each of those meetings was two weeks long.
So really, you’re talking 12 weeks of actual negotiating time at the UN. Plus, of course, all of the really important international work. So that was the formal treaty negotiations, again, 2018 through 2023. Before that, there was a sort of less formal working method called the Preparatory Committee, which was shortened to the PREPCOMM. And basically that PREPCOMM was tasked with deciding whether or not they should recommend formal treaty negotiations for this idea. And that PREPCOMM lasted for two years. So, it was 2015 to 2017. And at the end of that two-year PREPCOMM they recommended, they said, “Yes, you should go ahead and start with formal negotiations.” So that’s what kicked off the 2018 formal negotiations. But then you could even go well before that. I like to talk about how, for people who aren’t involved in the UN, or for people who are, I think both find it amusing that there was a really long process that lasted for about a decade called the ad hoc Informal Working Group.
So, before there were the formal negotiations, there was the PREPCOMM, before there was the PREPCOMM, there was the ad hoc informal working group, where countries and a couple of observers and civil society organizations would gather and sort of discuss certain topics about, okay, well, hypothetically, if we were to have a treaty, what sorts of topics and issues would it cover? So, as an example, the actual content of the treaty text, there are four package elements, and they’re referred to sometimes as the package elements of the agreement. And what those package elements would be was actually agreed in 2011 during one of those ad hoc informal working group meetings. You can trace it back to sort of 2002 for like a formal UN mention of it.
But then there are those who have really been there from the beginning, and they point to like a workshop that happened in Germany in 2001 as really being sort of the place where this idea emerged.
Mark Leon Goldberg:
You know, I ask these process questions because, as regular listeners of my show know, one of my favorite dictums and truisms about the UN is that process dictates outcomes oftentimes at the United Nations. So, I’m curious to learn from you what exactly is in this treaty? What are some key elements of this treaty that flowed directly from the process you just described?
Nichola Clark:
I mentioned that there are four so-called package elements. And these four package elements really reflect the different interests and goals that different countries had for this agreement. So, on the one hand, you had some countries who were really, really interested in addressing some of the conservation governance gaps that existed. So, they’re looking around and they’re seeing, yeah, we don’t have any mechanism that would allow us to create marine protected areas on the high seas. That’s really important. This is two thirds of the ocean and half of the planet. We should have a way that we can create protected areas on the high seas.
Mark Leon Goldberg:
Essentially, like national parks for the high seas.
Nichola Clark:
Correct, Exactly. And others who were similarly conservation-minded and said, “Yeah, I mean, and not only should we be able to have these sorts of parks for the high seas, for particularly special places, but we need to just have some baseline safeguards to ensure that any sort of activities that are taking place there won’t cause irrevocable harm. So we need to have some sort of mechanism that would require that environmental impact assessments take place for activities that are taking place there in the high seas.” In addition to those two package elements, there were other countries who said, “Yes, of course, these are important gaps to address. But also let’s talk a little bit about global ocean governance equity here.” And so, as an example, if you look to some of the other resources that are found in areas Beyond National Jurisdiction, and more specifically, if you look to some of the non-living resources.
So, metallic nodules that are of great interest to seabed mining, the international agreement that regulates seabed mining quite historically, and a pretty big deal legally, legal precedent-wise, declared that these non-living resources in areas Beyond National Jurisdiction are the common heritage of mankind. And now we would say the common heritage of humankind. The benefits therefrom should be shared with humankind equitably. And so that was a pretty big deal. But the challenges that this sort of legal concept only applied to these sort of mineral resources that existed in areas Beyond National Jurisdiction. So, some people were looking around and saying, “Hey, but what about some of the living resources? And more specifically, what if, hypothetically, someone discovers the cure for cancer in some sponge that’s only found in the high seas in areas beyond national jurisdiction? Shouldn’t the same principle apply?”
Because, again, if this is found in the high seas, the global commons, surely the benefits from this should be shared equitably with the global community. So, that was an issue that had a lot of people interested. And this issue ends up in the package that’s referred to as marine genetic resources. And then on a similar vein of sort of advancing global ocean equity or creating a more equitable global ocean governance paradigm, just noting that these high seas species are so far from shore, it’s really expensive to get out there and actually do some of that marine scientific research and take advantage of the resources that are there. So, the fourth and final package element of this agreement is the capacity building and technology transfer provisions.
And basically what these provisions say is countries that are going out and do have the capacity to access high seas places and resources should be sharing that capacity and transferring that technology so that the global community, writ large, might have a better chance of accessing and conserving and sustainably using these resources, as well as doing scientific exploration as well.
Mark Leon Goldberg:
So, the treaty opened for signing and ratification in September 2023. In September 2025, just a few weeks ago, the 60th country, Morocco, I believe, ratified it, so it officially entered into force. I’m curious to learn from you how, in the two years since the treaty was open for signing and ratification, it may have impacted state behavior. How has this treaty influenced thus far how states have approached the high seas?
Nichola Clark:
One of the most incredible things about the BBNJ Agreement is the hope that it gives the global community, the hope that it gives for environmental conservation, and the hope that it gives for multilateralism writ large. And I think the fact that we achieved this remarkable feat in 2023, we finally got this global agreement. You know, the treaty text was adopted by consensus in 2023. That was a huge victory. And it was hailed, actually, oftentimes described as a victory for multilateralism. And I think that’s a really fair way to say it. And I think it was that victory for multilateralism, the hope that it instilled in the global community really helped to motivate countries to keep that hope and that dream alive. So, I think where there’s so much else going on in the world that it’s not fun and not pleasant to work on.
But the BBNJ Agreement, the High Seas Treaty, like, this is the hope spot. This is the thing, the what can we do to keep that hope and ocean optimism alive? And I think people are sort of hungry and desperate for that. And I think that we saw that reflected in really pretty rapid ratification of this agreement. And it was kind of funny because we saw, when the agreement opened for signature, there was a whole like elbowing of countries who wanted to be the first. They wanted to be the first to sign it. And they were very jealous when Micronesia, the Federated States of Micronesia got that first time slot. They were the first ones to actually get to have the appointment to sign the agreement. And it was another Pacific Island nation that was the first to ratify the agreement. Palau managed to formally ratify the agreement first, which was upsetting to other countries who wanted to have that number one slot.
I think it’s been great to see this sort of friendly competition to try and see who can ratify it first or who can take more positive action sooner. So, we’ve just seen a lot of positive momentum. And, of course, in addition to champion countries, there’s civil society organizations, and particularly the High Seas Alliance has really been working really hard, collaborating with countries to help to support, in advance, that ratification — helping with organizing workshops or building capacity to share more about what the agreement’s about and what are the benefits of ratifying and all that kind of good stuff. So, I think it was a multi-stakeholder collaborative effort with champions all around.
Mark Leon Goldberg:
I’m wondering, are you seeing methods of cooperation on the high seas that you might not have seen if this treaty had not been negotiated two and a half years ago? So, over the last, say, two years, are there kind of new or interesting examples of cooperation on the high seas that stem directly from the fact that this treaty was negotiated and open to signing?
Nichola Clark:
That’s a great question. I mean, of course, we’ve seen a proliferation of different sort of high ambition coalitions where sort of countries are working together to try and keep ambition high and be that for ratifying the agreement or implementing the agreement or helping to fund the agreement. But I suppose, you know, thinking about maybe some other collaborations that we’ve seen, for example, Germany and the EU both have provided a decent chunk of funding to support other countries who are interested either in ratifying the agreement itself or in thinking about implementing the agreement and starting to develop high seas marine protected area proposals. So, we’ve seen that sort of collaboration that started to pop up. We’ve also seen some scientific research.
We’ve seen certainly more, at least more visibility over, for example, different research cruises that are going to be taking place in the high seas and trying to ensure that there’s a diversity of different scientists who were participating in that. So, while I fully expect to see even more country collaboration in the future because it hasn’t technically entered into force yet, but already, just as you’ve pointed out, in anticipation of its entry into force, we are already starting to see different coalitions of governments starting to work together to gear up for its preparation. We also have seen Chile, for example, has shown a great deal of leadership. They were the second to ratify the agreement. They have made an offering, a formal offering to serve as the secretariat for the agreement because it hasn’t been decided yet where the Secretary would be. And Chile has also convened a group of countries who want to go ahead and start thinking about using the treaty to create marine protected areas.
And they’re calling it the First Movers Group. And so this is a group of countries who are interested in developing or supporting a first generation of MPAs to be adopted by the future BBNJ COP.
Mark Leon Goldberg:
Yeah. And MPA is Marine Protected Areas.
Nichola Clark:
Yes. Thank you.
Mark Leon Goldberg:
And presumably, and we can get there, that the High Seas Treaty, like other similar treaties, will have COPs or Conference of Parties which are regular gatherings in which treaty members gather to discuss it, figure out how they can iterate upon it, measure progress, and all that.
Nichola Clark:
Exactly. Thank you for catching me. I have a tendency to speak in acronyms. So, yes, exactly.
Mark Leon Goldberg:
I have been doing this show for 13 years. There is rare that an acronym can get over my head.
Nichola Clark:
Yes. So yes, exactly. So, Chile First Movers Group. And it’s quite a broad gathering of countries from every region of the world. Actually, there’s a member who’s participating in this First Movers Group. And, again, of those countries who are interested in developing Marine Protected Area, MPA proposals, to submit to the BBNJ Conference of Parties or the COP. And I think it’s been a really interesting initiative because the idea is that there’s a recognition that this is new territory that we’re going into, and the agreement provides a lot of guidance, but there’s still needs to sort of be a lot of exchange of ideas and best practice on how some of these treaty provisions are actually going to be operationalized in the real world.
And so I think it’s kind of cool and amazing that Chile and this First Movers Group is already starting to think about that. Right? They’re already starting to say like, “Well, okay, how are you thinking about pulling together your MPA proposals? And what does your stakeholder engagement process look like?” And going ahead and sort of starting that conversation now amongst different countries who will be party to BBNJ. I think is going to be so helpful to ensuring a smooth implementation once it has entered into force.
Mark Leon Goldberg:
So, it’s interesting, as you describe it, and the treaty will enter into force in January, if I’m not mistaken. Correct?
Nichola Clark:
Yes, correct.
Mark Leon Goldberg:
So, even though the treaty has not entered into force yet, it’s already inspiring action by like a diverse number of countries in interesting ways. They’re already taking steps, as you said, towards creating these marine protected areas. And you described earlier just a huge amount of enthusiasm around this treaty from, again, a diversity of countries. However, there are a few countries out there that are not seemingly as enthusiastic about the High Seas Treaty. The United States has signed the treaty, not ratified it. China as well. To what extent does the fact that these countries are outliers, to a certain degree, impact the viability of this treaty?
Nichola Clark:
One thing that I’m curious about is I cannot wait to see how many countries and which countries will ratify between now and that first Conference of Parties. So, yes, the BBNJ Agreement will enter into force in January, January 17th of 2026, and the first Conference of Parties will have to take place sometime within one year of its entry into force. So, while it could technically take place in January of 2027, many people are expecting that first BBNJ Conference of Parties, the first BBNJ COP to take place sometime in the second half of 2026. We’ve heard rumors that there are a number of countries who maybe they were waiting around to see, all right, who’s going to ratify? How long do we have?
Well, now it’s ratified. Now BBNJ is coming. Ready or not, here comes the first Conference of Parties. And of course, if you want to have a seat at that table, if you want to be part of the first conference of parties, you’re going to have to ratify so that you can have that seat. I personally am expecting and anticipating another big influx of ratifications as we work to the lead up of that first COP, just because I think there’s going to be a lot of countries who will want to make sure that they have a seat at that table. And one of the reasons is even if you haven’t ratified BBNJ and you’re reluctant or skeptical of it, regardless of that, BBNJ is shaping how we manage and govern the high seas, the global oceans.
As an example, Regional Fisheries Management Organizations, RFMOs, and these are the bodies that are responsible for managing fishing on the high seas, and there’s still plenty of fish stocks that are out there that aren’t actually managed by RFMOs. But pretty much any sort of commercial fishing that’s happening legally on the high seas is managed by a Regional Fisheries Management Organization. And many of those RFMOs are already starting to think about what they need to do to be ready to interact with the BBNJ agreement because one of the things the BBNJ agreement does is it talks about how BBNJ will help advance and foster collaboration with other bodies, including RFMOs.
And so let’s say that if you are a country that you haven’t ratified BBNJ, but you are a member of an RFMO, you’re still going to have to deal with BBNJ because BBNJ will be able to do things like recommend measures to those Regional Fisheries Management Organizations. And then countries that are a member of both BBNJ and the RFMO would then have an obligation to try and advance those recommendations within the RFMO. So, it’s sort of like you’re going to be impacted and affected by the BBNJ agreement, one way or the other. Might as well have a seat at the table. So, I personally suspect that we will see another big rush of ratifications come in as countries try to ensure that they do have a seat at the decision-making table.
Mark Leon Goldberg:
Well, Nichola, thank you. This is fascinating. I appreciate it.
Nichola Clark:
Thank you so much, Mark.
Mark Leon Goldberg:
Thanks for listening to Global Dispatches. The show is produced by me, Mark Leon Goldberg. It is edited and mixed by Levi Sharpe. If you are listening on Apple Podcasts, make sure to follow the show and enable automatic downloads to get new episodes as soon as they’re released. On Spotify, tap the bell icon to get a notification when we publish new episodes. And, of course, please visit globaldispatches.org to get on our free mailing list, get in touch with me, and access our full archive. Thank you!