A roadmap towards global ocean governance for Malaysia

AS State Parties prepare for the inaugural Conference of the Parties (COP1) to the BBJN Agreement (Agreement on Marine Biological Diversity of Areas beyond National Jurisdiction, also known as the High Seas Treaty) at the United Nations headquarters in January next year, the global ocean governance architecture is facing a major shift.

The Agreement under the United Nations Convention on the Law of the Sea (Unclos) entered into force in January 2026. Malaysia signed the treaty in September 2025 but has not ratified it yet. This interim period gives Malaysia a pragmatic opportunity to assess its internal legal frameworks, use its observer status to sidestep geopolitical conflicts, and prepare for eventual accession.

A polarised institutional choice for the permanent secretariat has emerged ahead of COP1. China (Xiamen) has pledged a US$70mil capital package (including a rent-free building and cash injections), which is appealing to many developing states. However, Western and some regional states view this with apprehension due to China’s extensive seabed exploration, distant-water fishing expansion and past resistance to high seas marine protected areas under the Antarctic framework.

Meanwhile, a Chile-Belgium joint bid offers a trans-Atlantic alliance, proposing a decentralised split with Valparaiso as the administrative headquarters and Brussels hosting the Clearing-House Mechanism (CHM). Critics from the Global South argue that this perpetuates Eurocentric clustering.

Regardless of the location, developing countries remain most focused on technical implementation and sustainable financial support.

Correcting the Malaysian domestic discourse

Recent domestic academic commentary suggests elevating the Malaysia Ocean Research Alliance (Mora) or the Department of Marine Park Malaysia to serve as the nation's BBNJ Agreement one-stop agency. This reflects a fundamental misunderstanding of international law and federal administrative operations.

1. Mora is an academic research network lacking statutory authority, enforcement mechanisms or executive competence to regulate treaties.

2. The Department of Marine Park Malaysia (under the Department of Fisheries) operates under a mandate strictly limited to localised conservation zones within national jurisdictions. It lacks extra-territorial jurisdiction to oversee international waters or areas beyond national jurisdiction (ABNJ).

Since international treaties are agreements between States, the domestic BBNJ focal point must be housed within a ministerial framework. Suitable bodies include the Prime Minister’s Office (PMO), Natural Resources and Environmental Sustainability (NRES) Ministry (biodiversity and environmental impact assessments), Science, Technology and Innovations Ministry (Mosti), Foreign Affairs Ministry (external state relations and Unclos compliance), and the Attorney General’s Chambers for legal guidance. Scientific networks should function as external advisory bodies.

Leveraging non-voting signatory status

Malaysia will likely miss the December 2026 deadline to deposit its instrument of ratification required for voting rights at COP1. A key legal hurdle is that Malaysia's Environmental Quality Act (EQA) 1974 is strictly territorial and lacks the extra-territorial reach to regulate activities in the ABNJ.

However, this non-voting observer status can be leveraged as a diplomatic advantage. If the secretariat host city goes to a vote due to a lack of consensus, voting for China could alienate Asean neighbours over South China Sea disputes, while voting against China could damage critical bilateral pacts. Non-voting status shields Malaysia from superpower polarisation.

Unlike the United States, which leverages its non-party status for strategic and operational immunity, Malaysia should focus on resolving domestic legislative gaps and building technical capacity.

Technical parameters: EIA and MGR

Malaysia can, inter alia, integrate the treaty’s technical requirements directly into its administrative machinery across two pillars.

1. Environmental Impact Assessment (EIA) framework. For example, NRES must pivot from localised projects to broad, systemic evaluations in the ABNJ through:

> Cumulative and transboundary stressor modelling: Using predictive models to calculate how high-seas operations combine with global environmental stressors like rising sea-surface temperatures and baseline pollution for cumulative impacts.

> The "Significant Harm" threshold: Legally mandating comprehensive impact assessments whenever an activity shows potential for more than a minor or transitory effect or occurs in a vulnerable high-seas zone.

> Strategic Environmental Assessments (SEAs): Developing protocols to evaluate entire maritime sectors (e.g., deep-water bioprospecting or high-seas ecotourism) instead of isolated projects.

2. Marine Genetic Resources (MGR) and CHM safeguards: As high-seas genetic materials hold high commercial value, NRES or Mosti could manage data flows through the treaty’s central CHM while safeguarding domestic biodiversity security via:

> Standardised BBNJ Batch Identifiers: Mandating unique tracking codes for geographical coordinates, depth, collection dates and vessel metadata for biological samples harvested by Malaysian entities.

> Data synchronisation with the Global CHM: Building a secure data pipeline to deposit Digital Sequence Information (DSI) and gene-mapping results into the open-access global repository.

> Intellectual Property (IP) Safeguards: Using a staged digital disclosure protocol where only baseline metadata is synchronised internationally, locking proprietary, high-value functional gene sequences under domestic encryption until local IP rights are legally secured.

> Benefit-sharing compliance: Establishing an office to monitor the commercialisation of high-seas MGR discoveries, ensuring domestic entities comply with international benefit-sharing rules while maximising technology transfers and cooperation.

Cooperation with regional organisations

The BBNJ framework mandates cooperation through regional and sub-regional bodies. Malaysia can leverage platforms like the Asean Working Group on Coastal and Marine Environment (AWGCME), the Indian Ocean Rim Association (Iora), Coral Triangle Initiative on Coral Reefs, Fisheries, and Food Security (CTI-CFF), Bay of Bengal frameworks, etc. By pursuing a unified regional approach, Malaysia and its neighbours could try to extend marine protection corridors into adjacent high-seas zones, pool scientific research capabilities, standardise high-seas EIA and CIA metrics, and collectively access international funding mechanisms.

This ensures that high-seas implementation reinforces rather than undermines regional security and coastal state sovereignty.

Legal and pragmatic actions

To maximise its standing during this interim period, Malaysia should adopt a three-pronged strategy.

1. Use the consensus mandate: The BBNJ rules require the COP to exhaust all consensus options before forcing a vote. As an unburdened observer state, a strong Malaysian delegation can use informal working groups to actively shape the operational regulations of the CHM, DSI and benefit-sharing frameworks.

2. Adopt flag-state compliance: While the comprehensive national Ocean Governance Act undergoes complex administrative delays, Malaysia can emulate Singapore’s pragmatic tactic by introducing targeted, extra-territorial amendments into the Merchant Shipping Ordinance. By leveraging flag-state jurisdiction, the Transport Ministry can legally require all vessels flying the Malaysian flag to comply with BBNJ provisions (such as cumulative impacts assessment) to maintain registration, sidestepping immediate domestic legislative delays.

3. Secure funding: More than 70 developing countries are competing for funds. Since BBNJ financial mechanisms allow non-party signatories to access readiness funds, Malaysia can immediately apply for its share of the Global Environment Facility's (GEF) BBNJ Readiness Fund to draft the Ocean

Governance Act, amend the EQA and Merchant Shipping laws, and construct local DSI/CHM laboratory infrastructure. Concurrently, targeted technical proposals should be submitted to the EU-funded Global Ocean Programme’s Technical Assistance Facility to acquire advanced maritime observation systems without straining the domestic fiscal budget.

By maintaining neutrality at COP1, aligning its flag-state shipping regulations, leveraging regional bodies cooperation, and coordinating domestic tasks through suitable government agencies, Malaysia can turn legislative delays into science diplomacy advantages in global ocean governance.

SHARIFAH NORA SYED IBRAHIM (PhD)

Independent Marine Professional

Malaysia