BBNJ Treaty: Conserving the High Seas or Legalizing Biotechnological Resource Control -By Fransiscus Nanga Roka

The BBNJ Treaty has been hailed as a historic win for global ocean conservation. So far, it has received praise from governments, international organizations and environmental advocates as a long-awaited legal instrument to safeguard marine biodiversity beyond national jurisdiction. In theory it is a win for human values: long regarded as an anarchic zone of plunder, the high seas are finally to be ruled by binding international laws. However, under that celebratory rhetoric is an ambiguous question about the true nature of the BBNJ Treaty: Is it really saving the oceans or erecting a legal scaffolding for seizing and privatising marine genetic wealth?

That is the dilemma at the heart of this treaty. Marketed as some kind of global protection mechanism, yet it arrives in a geopolitical juncture marked by technological asymmetry, concentrations of corporate power and disproportional scientific capacities. In reality, the states and companies best able to access those marine genetic resources on some of these high seas are not likely going to be ones most vulnerable nor remaining communities that have historically been excluded from ocean governance. They are high technology nation states, biotech companies and research institutes with deep sea vessels, genetic sequencers, vast data processing resources and patent strategies capable of turning ocean life into commodities.

And this is where the feelgood promo starts to fall apart. Given these conditions, conservation can be the moral language needed to wrap around rights-based control. Though the treaty does not explicitly communicate that marine biodiversity be economically captured, it effectively paves regulatory pathways whereby access regimes can be normalized & rationalized under the guise of global stewardship against a backdrop of data extraction, research claims and downstream commercial applications. What is described as “protection” threatens to be a more refined language of enclosure.

Judicial fiction of this sort has always been politically vulnerable on the high seas. For centuries, the doctrine of freedom of the seas had implied both openness and shared access. In truth, “freedom” in international law has served mostly those who have had the ships, sticks and stones to profit by it. That inequality of today is not only structured on naval superiority. So much of it is based on the idea that biotechnological supremacy. In fact, the race is not merely for fish or minerals; it is a battle over marine genetic resources, microscopic organisms whose potential value in pharmaceuticals, biochemicals and undersea biological materials to be commercialized are enormous.

The real, central risk is not simply extraction. It is lopsided extraction cloaked with the choreography of legality. Many marine genetic materials can be sampled, digitized, sequenced and stored as data; thus control shifts from the physical ocean to those institutions that can govern information. The real frontier is not only the seabed. This is the database, this is how to laboratory patent office and algorithms. A treaty that does not speak this shift with brutal honesty will, rather than be a bulwark for biodiversity, become more an enabling charter of technocratic capture.

That is why the 30×30 target, laudable as it might be in its ethical grounding. Aiming for a 30% protection of the ocean by 2030 seems visionary, even drastic. But who defines protection? Who governs protected areas? Who determines what activities are banned, which ones require a licence and which kinds of “scientific research” will be considered neutral? Conservation is not an inherently just enterprise if its institutions are controlled by powerful technological and financial actors who have already enshrouded the world. Conservation without distributive justice can be exclusion in disguise.

And exclusion, in the age of marine biotechnology, is all too often intentional. It is structural. The BBNJ Treaty is framed in this context as offering developing countries a fair and equitable approach to benefit sharing. But such richness in language about fairness literally pales by comparison to the lack of anything resembling enforcement. In the absence of strong transparency mechanisms, technology transfer and non-monetary benefit sharing provisions, open-science access measures (and limitations on patent monopolisation), this treaty could very well embed humanity’s oldest governance pattern in our relationship with genetic resources: the appropriation by a few at least cost to them arising from extraction through intellectual property rights regimes funded mainlyby global public sources.

This should sound familiar. International economic law has a long history of arrangements purporting to be benefit for all but that in fact institutionalised hierarchy. Going from colonial trade regimes to modern intellectual property frameworks, legal systems have continually structured asymmetry as order and dubbed it cooperation. If not subject to critical scrutiny, the BBNJ Treaty is in danger of falling into that tradition. It might signify the not of democratizing the global commons, but its capture more accurately.

Backers of the treaty can point out that any governance is better than none. They are not entirely wrong. The high seas have been a legal vacuum for decades, allowing abuse, overexploitation and impunity to flourish. A binding framework is necessary. Necessity is not a claim to innocence. International law should never be measured on the basis of what it hopes to achieve. It needs to be judged by the systems of power it consolidates, the injustices it preserves and the structures of domination that only get a polite rebranding as governance.

That is how we will actually see if the BBNJ Treaty works. Is this the product of restraining corporate and geopolitical competition over marine genetic resources or just a civilizing one that operates through procedure? Is it a safeguard for biodiversity, the common heritage of mankind to be shared among its members; or is it an inventory that reduces biodiversity and in reality paves the way towards managing such resources as commercial quantities? If the answer is a little more towards the latter, then that’s not really revolutionary ocean justice as opposed to treaty. Overages are a fancy way of legally renaming extraction.

Beware of international agreements that come cloaked in ecological virtue but leave change to the foundation of economic power largely untouched. Law can liberate but it also be a numbing agent. It can placate the global conscience whilst redistributing control upwards. In that sense, perhaps the most serious threat of BBNJ Treaty lies in its non-failure. Maybe it gets what it’s aiming for and presents the next wave of ocean grab as responsible, collaborative and eco friendly.

If world leaders want this treaty to be an instrument of justice, not a container for state-sanctioned control, then they must turn celebration into confrontation. It means taking on patent monopolies, confronting scientific inequality, confronting weak benefit-sharing and potentially even fighting the notion that conservation theology is being used to sanctify a new marine bioeconomy controlled by many of those same actors who have historically managed global resources for private profit.

The oceans don’t require yet another exquisitely crafted treaty that flatters the humanity whilst rewarding power. So they need a court that is willing to say the obvious: Conservation ceases to be conservation if it complexifies any meaningful measure of equality. It becomes possession.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya Indonesia