The BBNJ Agreement Will Enter Into Force In January 2026: What You Should Know

Key Takeaways:

• On 17 January 2026, the Agreement on Marine Biological Diversity of Areas beyond National Jurisdiction ("BBNJ Agreement" or "Agreement") will enter into force.
• The Agreement will regulate activities in relation to marine genetic resources in the high seas and the deep seabed. Such resources have potentially valuable uses in the pharmaceutical, cosmetic, biotechnology and food industries.
• The Agreement also contains requirements for the conduct of environmental impact assessments ("EIA") for activities in—or affecting—the high seas and the deep seabed, which will likely require States to update or adopt new legislation.

I. INTRODUCTION

On 17 January 2026, the BBNJ Agreement (also known as the High Seas Treaty) will enter into force, having reached the required number of ratifications on 19 September 2025 with Morocco's ratification. The Agreement has now seventy-five parties (including the European Union), with more to come. The Agreement will work in harmony with the UN Convention on the Law of the Sea ("UNCLOS").

This historic multilateral agreement, adopted after twenty years of negotiations, is a comprehensive pact for the conservation and sustainable use of marine biodiversity in the high seas and the deep seabed ("areas beyond national jurisdiction"). Among other things, the Agreement will regulate the use of marine genetic resources ("MGRs") found and obtained in those areas, as well as digital sequence information on such resources. MGRs are genetic material derived from plants, animals, or microbes¹ that are used in many industries, including pharmaceuticals, biotechnology, food and cosmetics.

This client alert sets out some of the key features of the BBNJ Agreement, including how it will regulate the use of MGRs, and it identifies the next steps in its implementation.

II. THE MAIN FEATURES OF THE BBNJ AGREEMENT

The BBNJ Agreement is structured in four main substantive sections: Marine Genetic Resources (Part II), Area-Based Management Tools, including Marine Protected Areas (Part III), Environmental Impact Assessments (Part IV), and Capacity-Building and the Transfer of Marine Technology (Part V). It also establishes a financial mechanism and contains dispute-resolution provisions. We provide an overview of these provisions below.

Marine Genetic Resources

The BBNJ Agreement creates a legal framework regulating activities in relation to MGRs in areas beyond national jurisdiction. The use of these resources has been, until now, largely unregulated under international law. The need to fill this lacuna has become acute in recent years as scientific and commercial interest in the high seas' immense genetic biodiversity has spiked.² In particular, MGRs of organisms surviving in the extreme environments of the deep sea (with no light, extreme temperatures and pressure) are sought after for their potential uses in the harsh conditions imposed by numerous industrial processes.

To ensure the conservation and sustainable use of these marine genetic resources, the BBNJ Agreement prohibits States from claiming sovereignty over them.³ Activities with respect to marine genetic resources (from which fishing is largely excluded) must be carried out "in the interests of all States and for the benefit of all humanity," and exclusively for peaceful purposes.⁴

Unlike mineral resources on the deep seabed, the exploration and exploitation of which is regulated by the International Seabed Authority, the BBNJ Agreement does not subject activities in relation to marine genetic resources to an international system of authorization. Instead, detailed information about the activities, including the genetic material to be collected and the geographical area of collection, must be notified prior to collection to the Agreement's Clearing-House Mechanism. The Clearing-House Mechanism is a centralized open-access platform that facilitates the exchange information and scientific cooperation, which will likely function similarly to the Convention on Biological Diversity's clearing-house mechanism.⁵ The results of the utilization of marine genetic resources (e.g., discoveries, patents, publications) must also be shared with the Clearing-House Mechanism.⁶ This obligation will likely entail some coordination with national patent offices.

Tracking the use of marine genetic resources through the Clearing-House Mechanism will enable the equitable sharing of their benefits. The Agreement establishes an innovative system of monetary and non-monetary benefit sharing among all States Parties. Non-monetary benefits will include access to samples, transfer of technology and scientific cooperation.⁷

The Agreement imposes obligations on States to take necessary legislative, administrative and policy measures to regulate the conduct of private actors in relation to marine genetic resources. These include measures to ensure (i) that information is notified to the Clearing-House Mechanism,⁸ (ii) that MGRs subject to utilization by natural or juridical persons under their jurisdiction are deposited in publicly accessible repositories and databases, maintained either nationally or internationally,⁹ and (iii) that benefits from activities with respect to MGRs are properly shared.¹⁰

Area-based Management Tools Such as Marine Protected Areas

Another major innovation of the BBNJ Agreement is that it provides a first-of-its-kind multilateral framework for the establishment of area-based management tools, such as marine protected areas ("MPAs") in areas beyond national jurisdiction. MPAs are designated geographical areas in the ocean where certain activities like fishing, shipping or mining, are prohibited or restricted to ensure the conservation of biodiversity. So far, most existing MPAs have been established within States' national jurisdictions, while only a few have been established in areas beyond national jurisdiction. The BBNJ Agreement will now provide a detailed process to designate new MPAs in areas beyond national jurisdiction. A key feature of this mechanism is that, although proposals for new MPAs must originate from State Parties, to develop them, States must collaborate with and consult all stakeholders, including not only other States, but also civil society, the scientific community, Indigenous Peoples and local communities, and the private sector.¹¹

Environmental Impact Assessments

The BBNJ Agreement supplements the requirements with respect to EIAs, i.e., procedures to evaluate potential social, environmental and other impacts of a proposed activity. It includes thirteen detailed provisions on the required EIA process, supplementing UNCLOS, which addressed EIAs in Article 206, but did not provide for a specific procedure to be followed.

The obligation to conduct EIAs is triggered not only for activities taking place in the high seas and the deep seabed, but also for activities within a State's national jurisdiction that "may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction."¹² For the latter, however, the EIA can be conducted either under the State's national process or in accordance with the Agreement's process. For activities taking place in areas beyond national jurisdiction, the Agreement specifies that an EIA must be completed before the activity is authorized and in accordance with the specified process.¹³

The EIA process is as follows:¹⁴ First, when a planned activity may have more than a minor or transitory effect on the marine environment, or the effects of the activity are unknown or poorly understood, the State with jurisdiction or control of the activity must conduct a screening to determine whether the planned activity meets the threshold for an EIA, i.e., if the State "has reasonable grounds for believing that the planned activity may cause substantial pollution of or significant and harmful changes to the marine environment."¹⁵ Second, a scoping of environmental, economic, social, cultural and health impacts must be conducted. Third, the identified impacts must be assessed. And fourth, measures to prevent and mitigate adverse effects must be identified.¹⁶

The BBNJ Agreement imposes on its parties the obligation to ensure that EIAs for activities by private actors under their jurisdiction or control that take place in areas beyond national jurisdiction are conducted in accordance with the procedure of the Agreement.¹⁷ This will thus require States Parties to adopt legislation or modify their existing laws in relation to EIAs for such activities to match the Agreement's process, which in turn could impact how private actors under their jurisdiction will be able to obtain the relevant permits.

As to activities within a State's national jurisdiction that may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction, State Parties will have to take measures to ensure that EIAs and monitoring are conducted at least in accordance with their national process, and that the reports are transmitted to the Clearing-House Mechanism.¹⁸

Capacity-Building and Transfer of Marine Technology

Capacity-building and the transfer of marine technology, in particular for the benefit of developing States, is one of the Agreement's stated objectives. To achieve this, the Agreement establishes a novel capacity-building and transfer of marine technology committee, which will review and monitor the compliance of States Parties with their capacity-building obligations and make recommendations on how information can be more effectively shared.¹⁹ Types of capacity-building and transfer of marine technology include, among others; (i) the sharing of data and knowledge, (ii) the development and strengthening of infrastructure and technical expertise, and (iii) the sharing of manuals, guidelines and standards.²⁰

Financial Mechanism

The BBNJ Agreement establishes a mechanism providing financial assistance to States Parties for its implementation. The mechanism will include a voluntary trust fund to facilitate the participation of developing States Parties, as well as a mandatory fund that will be funded through Parties' annual contributions and benefit-sharing payments resulting from the use of MGRs, among other funding sources.²¹

Settlement of Disputes and Advisory Opinions

The dispute-settlement procedure of the BBNJ Agreement replicates that of Part XV of UNCLOS, meaning that States Parties may choose to refer disputes concerning the interpretation or application of the Agreement to (i) the International Tribunal for the Law of the Sea ("ITLOS"), (ii) the International Court of Justice, (iii) or an arbitral tribunal under Annexes VII or VIII of UNCLOS.²² States Parties that are also parties to UNCLOS will be deemed to have accepted the means chosen for UNCLOS disputes unless they decide to accept another procedure.²³ The Agreement also provides that disputes of a technical nature may be referred to an ad hoc panel of experts.²⁴

In addition, the Conference of the Parties ("COP") has the power to request an advisory opinion from ITLOS "on a legal question on the conformity with this Agreement of a proposal before the Conference of the Parties on any matter within its competence."²⁵

III. NEXT STEPS

To lay the groundwork for the entry into force of the Agreement, two preparatory commissions ("PrepComs") took place in April and August 2025, respectively. Discussions have focused on the rules of procedure of the COP, the Clearing-House Mechanism, and financial arrangements. Another PrepCom is scheduled for March 2026, at which point the Agreement will already be in force.

The first meeting of the COP is likely to take place in 2026, and will be crucial in light of important gaps left for the COP to fill. Among other tasks, the COP will have to (i) decide on the modalities for the sharing of monetary benefits (i.e., milestone payments, royalties, etc.),²⁶ (ii) adopt modalities for the Clearing-House Mechanism,²⁷and (iii) establish specific procedures for the identification of MPAs, as well as further guidelines for EIAs.²⁸

IV. CONCLUSION

The BBNJ Agreement is a technical multilateral agreement that will raise many legal questions. Its provisions, including those on MGRs and EIAs, will require States Parties to enact or update legislation and regulations. Such laws may, in turn, impact private actors' rights and obligations in relation to activities in or affecting areas beyond national jurisdiction.

Footnotes

1 BBNJ Agreement, Article 1(8).

2 See, e.g., NIH, What lies underneath: Conserving the oceans' genetic resources, available at: https://pmc.ncbi.nlm.nih.gov/articles/PMC2972965/ (last accessed on October 23, 2025).

3 BBNJ Agreement, Article 11(4)-(5).

4 BBNJ Agreement, Article 11(6)-(7).

5 See Convention Biological Diversity, Clearing-House Mechanism, available at: https://www.cbd.int/chm (last accessed on October 23, 2025).

6 See BBNJ Agreement, Article 12.

7 BBNJ Agreement, Article 14.

8 BBNJ Agreement, Article 12(1), (5), (8).

9 BBNJ Agreement, Articles 12(6)-(7), 14(3).

10 BBNJ Agreement, Article 14(11).

11 BBNJ Agreement, Articles 19(2), 21.

12 BBNJ Agreement, Article 28(2).

13 BBNJ Agreement, Article 28(1).

14 BBNJ Agreement, Article 31.

15 BBNJ Agreement, Article 30.

16 BBNJ Agreement, Article 31.

17 BBNJ Agreement, Article 28(1).

18 BBNJ Agreement, Article 28(2).

19 BBNJ Agreement, Article 46.

20 BBNJ Agreement, Article 44.

21 BBNJ Agreement, Article 52.

22 BBNJ Agreement, Article 60; UNCLOS, Article 287(1).

23 BBNJ Agreement, Article 60(3).

24 BBNJ Agreement, Article 59.

25 BBNJ Agreement, Article 47(7).

26 BBNJ Agreement, Article 14(7).

27 BBNJ Agreement, Article 51(2).

28 BBNJ Agreement, Articles 19(5)-(6), 38(1).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.