Introduction
On 19 June 2023, after nearly two decades of negotiations, the United Nations concluded the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (the BBNJ Agreement), commonly referred to as the High Seas Treaty. The agreement addresses one of the most significant governance gaps in modern international law: the absence of a comprehensive multilateral framework for the protection and sustainable use of the marine environment in areas beyond any national jurisdiction, approximately sixty-four percent of the ocean’s surface. These areas, lying beyond the two-hundred-nautical-mile Exclusive Economic Zones of coastal states, are governed under the United Nations Convention on the Law of the Sea (UNCLOS 1982) at the framework level but lacked specific operational mechanisms for biodiversity conservation, the equitable sharing of benefits from marine genetic resources, and the assessment of environmental impacts from new uses.
The BBNJ Agreement’s conclusion coincided with intensifying pressure on the deep seabed from the prospect of commercial deep-sea mining, an industry that promises access to polymetallic nodules rich in cobalt, nickel, manganese, and rare earth elements critical to clean energy technologies, while also threatening some of the least-disturbed ecosystems on the planet. This article examines the BBNJ Agreement’s legal architecture, the International Seabed Authority’s regulatory framework for deep-sea mining, the controversial Nauru “two-year rule” that accelerated regulatory development, India’s deep-sea mining programme and its BBNJ ratification position, and the civil society campaign for a moratorium on deep-sea mining.
Legal Framework
UNCLOS divides the ocean into zones reflecting graduated coastal state jurisdiction. The high seas (Article 86 et seq.) lie beyond the territorial sea, contiguous zone, and EEZ, and are open to all states for freedom of navigation, overflight, fishing, scientific research, and the laying of submarine cables. The seabed and ocean floor beyond national jurisdiction (the “Area,” Article 1(1) UNCLOS) are declared the common heritage of mankind (Article 136 UNCLOS), meaning no state may claim or exercise sovereignty over them, and their resources must be managed for the benefit of mankind as a whole, with particular regard for the interests and needs of developing states.
The International Seabed Authority (ISA), established under Part XI of UNCLOS and the 1994 Implementation Agreement (which modified Part XI to accommodate market-economy concerns and bring the US closer to ratification, though the US never ratified UNCLOS), manages the Area’s mineral resources. The ISA has issued exploration contracts to numerous contractors (states and state-sponsored entities) for polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts. Exploitation contracts, however, had not been issued as of 2026, as the ISA had not finalised its Mining Code (the exploitation regulations that would govern commercial operations in the Area).
The BBNJ Agreement (which is the third implementing agreement under UNCLOS, after the 1994 Agreement and the 1995 Fish Stocks Agreement) fills the governance gaps identified over decades of scientific and diplomatic work. Its four main pillars are: marine genetic resources and the equitable sharing of benefits from their use (addressing bioprospecting in the high seas, analogous to the Nagoya Protocol for terrestrial biodiversity); area-based management tools including the establishment of marine protected areas in the high seas; environmental impact assessments for activities that may have significant effects on the marine environment in ABNJ; and capacity building and marine technology transfer to support developing country participation.
Key Developments: The Nauru Rule and Regulatory Urgency
The most significant development in the ISA’s regulatory process came from the Pacific Island state of Nauru. In June 2021, Nauru, acting as the sponsoring state for Nauru Ocean Resources Inc (NORI, a subsidiary of Canadian deep-sea mining company The Metals Company), triggered a provision in the UNCLOS Annex III system by formally notifying the ISA that NORI intended to submit an application for an exploitation contract within two years. This so-called “two-year rule” (Article 15 of Annex IV to UNCLOS), designed to prevent indefinite delay in exploitation regulation, obliged the ISA Council to complete the Mining Code within two years or consider provisional applications under existing UNCLOS rules.
The Nauru notification created enormous pressure on the ISA, accelerating Mining Code negotiations that had previously moved at a leisurely multilateral pace. By the July 2023 ISA Assembly, the two-year deadline had formally elapsed, but the Mining Code remained unfinished. The ISA Council decided to continue negotiations without automatically approving NORI’s application, a decision that was welcomed by the anti-mining coalition but challenged by The Metals Company, which argued that its application should be processed under existing provisions. As of 2026, the exploitation regulations remain in draft form, and commercial deep-sea mining in the Area has not commenced.
The BBNJ Agreement’s environmental impact assessment provisions are particularly relevant to deep-sea mining because, although the Agreement does not directly regulate ISA-governed mining activities (which fall under a specific treaty regime), it establishes a general EIA framework for ABNJ activities that may influence ISA practice and create parallel obligations for states parties engaging in or sponsoring seabed activities.
Contemporary Issues and Analysis
The core tension in the BBNJ and deep-sea mining debates is the collision between two legitimate but competing imperatives: the need for the materials that enable the energy transition (cobalt, nickel, and manganese are critical for battery technology, and the IEA projects dramatic demand increases under any net-zero scenario) and the need to protect deep-sea ecosystems that are poorly understood, extremely slow to recover from disturbance, and potentially irreplaceable in their biological diversity.
Over 700 marine scientists signed an open letter in 2022 calling for a pause on deep-sea mining pending adequate environmental assessment and regulatory development. More than twenty states, including France, Germany, Chile, New Zealand, and Costa Rica, have called for a precautionary pause or moratorium on exploitation contracts pending completion of adequate regulations and environmental baseline studies. The Pacific Island Forum, whose member states include the most oceanically vulnerable countries in the world (and many of which will be profoundly affected by climate change that accelerated mining of transition metals is intended to address), has been divided: some states support the mining pause, while others including Nauru, Kiribati, and Tonga (and their associated commercial sponsors) want exploitation to proceed.
The biodiversity-climate nexus is particularly complex: the deep-sea floor contains significant carbon stocks in polymetallic nodule fields (the sediment and the nodules themselves sequester carbon); mining activities disturb the sediment and potentially release both carbon and trapped pollutants. The climate benefit of accelerated clean energy deployment must therefore be set against the carbon and biodiversity costs of the mining that enables it.
Marine Protected Areas and the BBNJ Framework
The BBNJ Agreement’s area-based management tool provisions represent the first multilateral mechanism for establishing marine protected areas in the high seas through a process that does not require consensus among all states. Under the Agreement, any state party may propose an MPA in ABNJ; proposals are reviewed by a Scientific and Technical Body; and the Conference of Parties adopts the MPA by a qualified majority. The MPA obligations bind all parties to the Agreement but not non-parties.
This creates a legal complexity for states that are party to UNCLOS (which affirms high seas freedoms including fishing for all states) but have not ratified the BBNJ Agreement: they may continue activities in areas designated as MPAs under the Agreement without being legally bound by the MPA’s restrictions. The effectiveness of high seas MPAs therefore depends critically on widespread ratification of the BBNJ Agreement, and on the extent to which MPA restrictions can be incorporated into the flag state obligations of vessels of non-party states through UNCLOS’s general marine environment protection obligations.
The Antarctic Treaty System’s approach to marine protection, through the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), offers a useful comparison. CCAMLR has established some of the world’s largest MPAs in Antarctic waters, including the Ross Sea MPA (2016, the world’s largest MPA at 1.55 million square kilometres). The CCAMLR model operates through consensus, however, which has made subsequent MPA proposals highly contentious as China and Russia have blocked additional Antarctic MPAs since 2016.
India’s Programme and Position
India has an ambitious deep-sea mining programme operating under the Ministry of Earth Sciences. The Deep Ocean Mission, approved in 2021 with a budget of approximately 4,000 crore rupees over five years, encompasses exploration for polymetallic nodules, hydrothermal sulphides, and cobalt-rich crusts in the Indian Ocean, alongside development of deep-sea mining technologies, submersibles, and ocean science infrastructure. India holds exploration contracts with the ISA for polymetallic nodules in the Central Indian Ocean Basin (since 1987, making India one of the earliest exploration contractors) and for polymetallic sulphides in the Indian Ocean.
India’s position on the BBNJ Agreement has been supportive of the Agreement’s negotiation in principle, reflecting India’s historic advocacy for the common heritage of mankind principle and for developing country rights in maritime governance. India participated actively in the BBNJ negotiations. As of 2026, India’s ratification timeline for the Agreement is uncertain; the Agreement requires sixty ratifications to enter into force and has attracted signatures from over 90 states, though ratifications have been slower.
On deep-sea mining, India has not joined the moratorium-supporting coalition, consistent with its own active exploration programme and its broader position that developing countries should not be denied access to resources under the common heritage principle that wealthier states exploited during their development. India argues that stringent international regulation (rather than a moratorium) is the appropriate approach, allowing responsible exploitation with adequate environmental safeguards.
Practical and Policy Implications
The BBNJ Agreement’s benefit-sharing provisions for marine genetic resources draw from the model of the Nagoya Protocol on Access and Benefit-Sharing under the Convention on Biological Diversity. Companies engaged in bioprospecting in the high seas, collecting deep-sea organisms with potential pharmaceutical, agricultural, or industrial applications, will under the Agreement be required to share a portion of the monetary benefits of commercial use with a global fund dedicated to marine conservation and developing country capacity building. This is a significant shift: historically, high-seas bioprospecting has been essentially unregulated, with companies from developed countries capturing the commercial value of biological resources found in international waters.
The practical implementation of benefit-sharing will face the same challenges that the Nagoya Protocol has encountered: tracing the origin of genetic sequences once they are shared in scientific databases is technically difficult, and enforcement against non-complying companies in non-party states is essentially impossible without a global regulatory architecture that does not yet exist.
Suggestions and Reforms
The most urgent reform needed in the deep-sea mining regulatory framework is completion of the ISA’s Mining Code with adequate environmental safeguards, including minimum standards for environmental impact assessment, baseline studies of ecosystem conditions before mining begins, and requirements for environmental monitoring and liability for damage. The fact that commercial exploitation contracts could potentially be issued under incomplete or provisional regulations represents a fundamental regulatory failure that the ISA Council must urgently address.
The BBNJ Agreement’s MPA provisions would benefit from a strong non-derogation clause ensuring that ISA-sponsored activities in designated MPAs are subject to the Agreement’s environmental standards, even though the ISA is not technically a party to the Agreement. Developing a formal relationship between the BBNJ Conference of Parties and the ISA (analogous to the relationship between CITES and the FAO in fisheries governance) would reduce the risk of regulatory fragmentation.
India should ratify the BBNJ Agreement promptly, as its extensive maritime interests (both in the Indian Ocean EEZ and as an ISA exploration contractor) give it a direct stake in the Agreement’s implementation, and its participation in the Agreement’s governance bodies will ensure that developing-country perspectives shape the new framework.
Conclusion
The BBNJ Agreement represents one of the most significant achievements in international environmental law of the past decade. Its adoption filled a governance void that the architects of UNCLOS recognised but left for future generations to address. The Agreement’s success in entering into force and achieving effective implementation will depend on broad ratification, adequate funding for capacity building, and resolution of the deep-sea mining regulatory crisis at the ISA. The race between ocean governance and ocean exploitation has not been conclusively won by either side: the BBNJ Agreement’s tools are available, but their deployment is contingent on political will that remains contested. India, as a major ocean state with significant interests in both maritime resource use and marine environmental protection, has both the interest and the capacity to play a constructive role in this crucial next phase of ocean governance.
