Governing the Blue Commons

As India drafts its BBNJ law, simplicity, equity, and global credibility ought to shape how it safeguards ocean commons

The Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement), adopted in 2023, marks a major step in global ocean governance. For the first time, States agreed on rules to conserve and share the resources of the high seas, which make up nearly two-thirds of the world’s oceans and lie beyond national borders.

The BBNJ Agreement covers four broad areas: marine genetic resources, area-based management tools, environmental impact assessments, and capacity building. Of these, marine genetic resources (MGR) have drawn the sharpest debate. These include everything from microbes found at hydrothermal vents to deep-sea corals with compounds valuable to medicine, food security, and biotechnology. The central question is how to ensure that the benefits from these resources are shared fairly.

India signed the treaty in 2024 and has since set up a drafting committee under the Ministry of Earth Sciences to frame legislation governing high seas biodiversity. Such a law will shape how India participates in benefit-sharing, approaches conservation, and positions itself in international law. The stakes are high, as international law does not recognise domestic legislation as an excuse for failing to meet treaty obligations. The Permanent Court of International Justice made this clear in the Certain German Interests in Polish Upper Silesia case, stressing that a State cannot rely on its own domestic law to evade international responsibility. India's new law will thus be scrutinised abroad as evidence of compliance -- or non-compliance-- with the BBNJ Agreement.

India has some policy experience to draw on. The Biological Diversity Act, 2002, and subsequent Access and Benefit-Sharing (ABS) guidelines and regulations of 2014 and 2025, respectively, carry lessons. The 2014 guidelines were mired in a maze of percentages and approvals, making compliance difficult, enforcement weak, and disputes common. Though communities were promised the largest share of benefits, those promises often failed as the system became trapped in its own bureaucratic knots. The 2025 regulations corrected some of these flaws by introducing turnover-based slabs, explicitly covering digital sequence information (DSI), and digitising compliance mandates. But they also shifted power away from communities by giving regulators a larger role and reducing the share of direct benefits.

The lesson is that India’s new law must avoid both extremes. Complexity, as seen in the 2014 guidelines, risks collapse; centralisation, as in the 2025 regulations, risks alienating intended beneficiaries. The law must therefore be simple, transparent, and fair -- addressing a few essential points.

Digital sequence information must be covered, since omitting it allows companies to patent discoveries and profit without contributing to the commons. Benefit-sharing should be clear and auditable, ideally with a single-slab contribution for high-value resources. Non-monetary benefits such as technology transfer, scholarships, and restoration projects may be more valuable for India than short-term financial gains. The law must also apply extraterritorially – covering Indian vessels, nationals, private enterprises, and universities abroad – to prevent loopholes and ensure adherence to the BBNJ Agreement.

Another question is who should benefit domestically. While the BBNJ Agreement creates a global pool, India must ensure that coastal communities, researchers, and conservation projects gain tangible benefits from participation.

Challenges remain. Fisheries are excluded from the treaty, leaving a major gap in biodiversity protection. Enforcement will also be difficult across vast ocean areas, especially given overlapping treaties and the principle of flag-state jurisdiction. Geopolitical disputes, such as those highlighted in the South China Sea arbitration, show how political tensions can weaken legal commitments. 

These risks make robust domestic law essential. Weak reporting, poor enforcement, or unfair benefit-sharing could all be seen as evidence of non-compliance under international law. As scholars such as Fitzmaurice and Rousseau have argued, domestic law may prevail within a State but cannot excuse breaches of international obligations. A poorly designed law could invite diplomatic protests or even international litigation.

The way forward is a law built on simplicity and transparency – domestically robust and internationally defensible. It should mandate transparent reporting and equitable benefit-sharing, establish a national digital repository for marine genetic data, and foster cooperation within the Global South. Balancing economic growth with conservation is imperative. With such measures in place, India can demonstrate that the ocean commons can indeed be managed for the benefit of all nations rather than becoming another site of inequity.

(The writer is a research fellow at the Vidhi Centre for Legal Policy)