—Jonah Godswill Ekwere, law graduate of the University of Uyo, Nigeria, research interests in constitutional and public law, and international governance
On 17 January 2026, a legally binding Agreement under the UN Convention on the Law of the Sea on Marine Biodiversity Beyond National Jurisdiction entered into force. This Agreement is widely recognized as a step towards ocean protection. However, its impact is more constitutional than environmental. From the moment it comes into force, States are charged with real responsibilities to monitor and supervise activities beyond their territorial jurisdiction. This raises fundamental questions under public law: how can domestic institutions ensure accountability when authority stretches beyond national borders, and what mechanisms can prevent inaction from carrying legal consequences.
This challenge is far from theoretical. In Pulp Mills on the River Uruguay , the International Court of Justice affirmed that States must, in practice, exercise due diligence to prevent transboundary environmental harm. The High Seas Treaty extends this principle even to areas where States lack territorial jurisdiction, making inaction, inadequate supervision or delayed reporting an actionable claim. The effect is that damage is no longer necessary to prove accountability as accountability is now preventive in nature.
Accountability Without Territory: The Treaty’s Constitutional Stakes
As the treaty takes effect on 17 January 2026, it does more than just advance environmental goals; it also raises questions as regards constitutional governance. By imposing liability on States for acts beyond their jurisdiction, it stretches the limits of domestic institutions (executive agencies, legislatures and courts) to ensure executive accountability, separation of powers and legislative oversight.
Environmental Impact Assessments and Area-Based Management Tools are no longer just technical rules but effective legal rules with legal accountability. Executives are now bound by duties whose fulfillment must be transparent to domestic legislatures and where necessary, capable of being reviewed by domestic courts. By inference, domestic institutions are now tasked with ensuring that these international obligations are not just noticed but also enforced, creating a bridge between global law and national constitutional governance.
This innovation raises sharp constitutional questions: If a State fails to supervise a vessel operating on the high seas, does that amount to a breach of executive accountability under the domestic Constitution? Courts may also face the problem of deciding whether domestic agencies have effectively carried out their duties which links judicial review to the enforcement of extraterritorial treaty obligations.
In reality, the treaty shifts responsibility from outcomes to governance as domestic institutions must answer not only when a harm has occurred but are also responsible for verifying whether executives have supervised and reported relevant activities on the high seas.
Through the High Sea Treaty international law has become not just a set of procedural rules, but a practical test of how domestic constitutional structures can lead to accountability beyond a State’s territorial jurisdiction.
Executive Discretion, Legal Uncertainty and the Rule of Law
Having dealt with the matter of identifying where the responsibility under the High Seas Treaty lies, let us next turn to a more delicate question under constitutional law: how much discretion can the executive claim in discharging those responsibilities? While the treaty imposes binding preventive duties, it offers only limited guidance on how compliance is to be measured. The international framework imposes pressures on domestic executives in line with core constitutional principles which include legality, accountability and the prohibition of the arbitrary exercise of public power.
At the heart of this problem lies the treaty’s over-reliance on due diligence rather than outcomes. In public law terms, this marks a peculiar shift in regulatory authority: judgement moves away from legislatures and toward executives and from clearly defined rules to discretion. Executive agencies such as maritime and environmental regulators are left to determine what amounts to adequate supervision in relation to activities on the high seas.
Furthermore, this treaty carries a direct consequence for legislative oversight. When compliance standards are defined by executive agencies, there is a limitation on the ability of the legislature to scrutinize performance. The efficiency of the oversight principle is reduced if legislators cannot measure inefficiency against a stable benchmark. What emerges is not flexibility but a hard risk as parliamentary control over executive is severely reduced.
The process of judicial review is affected along similar lines. Domestic courts that are generally charged with ensuring that public power is exercised within the recognized ambit of the law are severely affected. When obligations are phrased in “blanket terms” such as “reasonable supervision” or “appropriate monitoring”, the object of review becomes uncertain because of the legal questions which follow it. What are the courts to assess? To what extent is an action reasonable or appropriate? If the courts struggle with these now pertinent questions, executive discretion may operate beyond legal scrutiny. This will further contradict a fundamental constitutional principle: all public power is subject to the law.
This is more than just a theoretical issue. Ambiguity can encourage minimal compliance by easing administrative burdens yet claiming formal adherence to international obligations. If such practices are allowed to go unchecked, it directly contravenes the constitutional principles of transparency and accountability. In brief, the effectiveness of the High Seas Treaty is more dependent on the effectiveness of domestic constitutional systems than on international cooperation and how well those systems can guard discretion to enforce the law, not contravene it.
Who Controls the High Seas Data? A Constitutional Blind Spot
The High Seas Treaty raises yet another constitutional question that is usually overlooked: who controls the knowledge and information generated from activities on the high seas? Marine genetic resources, which are biological data from the high seas and all related information, are now subject to international obligations to be monitored, supervised and reported on.
On the surface, this gap may seem like a minor hiccup in treaty-making but more is at stake. From a public law lens, it reshapes the very principles of legislative and executive authority at a foundational level. When the decision on the definition of information, data, benefit sharing, and how such is reported lies with domestic executives, they control the information necessary for oversight. The legislature clearly cannot scrutinize what it does not have fully understand and neither can the courts review what has not been recorded.
The risk is a constitutional weakness as data governance becomes a proxy for executive discretion. Constitutional accountability mechanisms such as legislative oversight, judicial review are most effective when there is access to information. When the executive controls both the process and the outcome, constitutional principles are in jeopardy.
Consider a scenario where a developed State funds research on the high seas expecting to have control over the project and data gathered. Meanwhile, a developing State seeking to perform due obligations publishes the data openly. The question of which domestic institution resolves the conflict arises and which constitutional principles govern the outcome arises. However, the treaty provides almost no guidance for the resolution of such disputes, leaving domestic constitutional frameworks as the ultimate mechanism for dispute resolution. The constitutional stakes are obvious: the High Seas Treaty is not only a test for governance of the environment but also a test the enforcement of which depends on the ability of domestic institutions to regulate and monitor the high seas itself.
The question left for public law scholars and constitutional law experts is this: if constitutional checks fail where data is generated and controlled, international law may exist much more in theory than in practice.
Suggested citation: Jonah Godswill Ekwere, Accountability Without Territory: Constitutional and Public Law Implications of the High Seas Treaty, Int’l J. Const. L. Blog, Feb. 5, 2026, at: http:/www.iconnectblog.com/accountability-without-territory-constitutional-and-public-law-implications-of-the-high-seas-treaty/