The Legal Loopholes of the High Seas Treaty
An analysis of the High Seas Treaty’s potential to protect our oceans in light of its legal loopholes.
Published November 13th, 2026
Written by Macy Goldfarb
As climate change and plastic pollution increasingly threaten our oceans and marine life, international powers are collaborating to develop protective solutions. The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, known as the High Seas Treaty, went into effect on January 17th, 2026. The treaty responded to a growing need for management of international activities on shared waters through an environmental framework. Despite the treaty’s promise, it contains legal loopholes that raise concerns regarding adherence to its provisions.
What is the High Seas Treaty?
The National Oceanic and Atmospheric Administration outlines how the high seas are one of several water zones regulated by international law. Countries have either full or partial authority over the zones closest to their coasts, such as internal waters, territorial seas, and exclusive economic zones. The high seas are different as they are waters beyond national jurisdiction. According to the International Fund for Animal Welfare, the high seas represent approximately two-thirds of the world’s oceans and cover half the planet. The waters take in thirty percent of the carbon dioxide produced annually by humans through elaborate marine ecosystems, making them integral to society’s survival. While the ocean’s biodiversity and health are critical to the planet's overall functioning, only one and a half percent of the high seas are entirely protected from pollution and other environmental degradation.
The High Seas Treaty seeks to establish international regulations to protect the waters and the ecosystems within them. The American Society of International Law describes the agreement as a way to bridge national oceanic regulations and close existing gaps in governance. This will help enhance marine conservation and protect biodiversity, especially in newly defined marine protected areas. The treaty also sets guidelines to distribute marine resources more equitably, giving developing countries increased access to technological knowledge. This sharing of information helps these countries build the capability to make discoveries and help protect the shared waters. Furthermore, the treaty addresses the shortcomings in how other industries are regulated. For instance, shipping and fishing industries have areas of weak oversight on the high seas, and the treaty aims to fill these gaps. Similarly, the World Resources Institute outlines that the pharmaceutical industry benefits from marine animals’ genetic material, which can contribute to innovative medicines. In both cases, the industries gain financially from high seas resources, and without clear rules, they may choose profit over protecting biodiversity. The High Seas Treaty addresses this by creating stricter regulations.
The process of finalizing the High Seas Treaty was prolonged. The Nature Conservancy notes that the treaty was deliberated for almost two decades, with the last five years dedicated to formal negotiations. After the deliberations, the treaty reached the necessary sixty ratifications, but implementing it will require continued cooperation and persistence.
The Legal Loopholes
Despite its potential to advance marine protection, the treaty’s success remains uncertain due to legal loopholes. The opt-out clause for marine protected areas creates a legislative gap. According to Science Advances, the treaty indicates that member states have the ability to present objections to specific regulations and offer reasons why they cannot comply. This provision provides a way for members to evade punishment for not complying with the regulations. Moreover, the agreement does not clarify whether states’ objections have limits. If certain member states present objections, it could create a ripple effect as nations are constantly competing for innovations and profits. While it is unclear how countries may utilize the opt-out clause, it is a loophole that could be exploited.
The High Seas Treaty’s provision to comply with other agreements is also a legal loophole that limits its effectiveness. Science Advances notes that the treaty cannot compromise the authority of other regional or global bodies. The goals of these bodies may not align, presenting a challenge to the treaty's efforts to strengthen protection for waters beyond national jurisdiction. For instance, Pew Charitable Trusts discusses how the International Seabed Authority controls mineral-related regulations in these waters. Reports suggest that the ISA’s environmental impact assessment processes may allow harmful exploration and require reform. However, the High Seas Treaty cannot undermine the ISA’s policies. As a result, even though the treaty attempts to increase regulations, existing authorities may limit how much progress the treaty can achieve.
Another limitation of the treaty stems from the fact that several countries have not ratified it. According to the High Seas Alliance, while both the United States and Canada have signed the treaty, neither country has ratified it. The World Resources Institute states that while countries that have signed the treaty cannot directly counter its objectives, they are not legally obligated to comply with its terms. Given that both countries are highly developed nations that influence global environmental conditions, this could lead to environmental degradation. For instance, Frontiers indicates that the United States has sanctioned permits for exploration and mining of the high seas without ISA approval. These activities can negatively impact biodiversity and encourage other countries to pursue similar exploration due to competitive interests. Without ratification from influential developed countries such as the United States and Canada, it remains unclear how much the treaty can accomplish.
The High Seas Treaty is a significant step toward ensuring the health of our oceans and the planet. Given that only a small percentage of waters beyond national jurisdiction are protected, international regulation is critical. Creating the treaty was an exhaustive process, making its existence an accomplishment. Nonetheless, it is important to acknowledge its shortcomings to encourage further efforts to improve ocean legislation. The legal loopholes illustrate the need for continued cooperation, regulation and ratification to strengthen protections for our high seas.
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