I. Introduction
Combine and conquer. That was the strategy of those seeking to develop an international regime to address marine biological diversity found in areas beyond national jurisdiction—areas that constitute half of the world's surface and a much greater proportion of its habitable volume.Footnote 1 States had quite different visions for the regime. On the one hand, the European Union and other developed countries such as Australia and New Zealand wanted a conservation-oriented regime providing for the establishment of marine protected areas and setting rules for environmental impact assessments; on the other hand, developing countries wanted a resource-oriented regime that would allow them to get what they consider their fair share of the benefits of marine genetic resources and would assist them with capacity building and technology transfer. Only by combining these disparate topics in a single package was agreement possible.Footnote 2
The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement)Footnote 3 is the most important ocean agreement to be adopted in more than a quarter century and complements the Convention on Biological Diversity (CBD),Footnote 4 which addresses biodiversity found within national jurisdiction. In essence, it constitutes four treaties in one, all addressing marine biological diversity in areas beyond national jurisdiction (ABNJ), but each with its own objectives, principles, obligations, and—in some cases—institutions:
• A treaty on marine genetic resources (MGRs), including fair and equitable benefit-sharing.
• A treaty on the establishment of area-based management tools (ABMTs), including marine protection areas (MPAs).
• A treaty on environmental impact assessment (EIA).
• A treaty on capacity building and the transfer of marine technology (CBTMT).
The BBNJ Agreement has roots in both the law of the sea and international environmental law. It was adopted as the third implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS).Footnote 5 As such, it fleshes out the Convention's barebones provisions on environmental impact assessment,Footnote 6 capacity building, and technology transfer, as they relate to the high seas;Footnote 7 replicates the Convention's dispute resolution system; and draws on the Convention's jurisdictional rules and principles.
But in many respects, the BBNJ Agreement more closely resembles multilateral environmental agreements (MEAs) such as the CBD or the UN Framework Convention on Climate Change. Like MEAs, it is intended to be a dynamic agreement that evolves in response to new information and circumstances. Like MEAs, it establishes a variety of institutions to implement and elaborate its provisions, including a conference of the parties, a scientific and technical body, a clearing-house mechanism, an implementation and compliance committee, and a financial mechanism.
Negotiating four treaties in one raised many difficult issues. Some are familiar from multilateral environmental negotiations, such as the North-South debates about equity, technology transfer, and finance. Others are specific to the law of the sea, such as which UNCLOS principle governs MGRs from areas beyond national jurisdiction: the common heritage of humankind or freedom of the high seas?
Given the multitude and complexity of issues involved, the BBNJ Agreement was long in the making. Even after the package of topics to be addressed was agreed in 2011, the Agreement still took another dozen years to complete: four years of discussions in an ad hoc working group, two years of preparatory committee meetings, and six years of negotiations in an intergovernmental conference, ending in thirty-six continuous hours of negotiations. Until well along in this process, some countries, including the United States, argued that BBNJ could be adequately addressed under existing agreements and did not require negotiating a new treaty. Even now, the negotiations are still unfinished, since the BBNJ Agreement left many (in some cases, devilish) details to its conference of the parties.
The outcome of this tortuous process—the BBNJ Agreement—is widely considered a diplomatic triumph.Footnote 8 As a negotiating exercise, the praise is well deserved. Given the number and variety of issues involved, the widely disparate views among states, and the cross-cutting alliances among them, achieving consensus required enormous skill and perseverance.
But the significance of the BBNJ Agreement is more uncertain. Developing countries hoped that it would recognize MGRs from areas beyond national jurisdiction as part of the common heritage of humankind, subject to international management and benefit sharing. The Agreement provides for some specified types of benefit sharing, but without linking benefit sharing to the common heritage principle, which it lists alongside its opposite, freedom of the high seas, without choosing between them. Meanwhile, environmentalists hoped that the Agreement would provide a unifying framework for the conservation and sustainable use of high seas biodiversity, which is currently fragmented among a multitude of agreements and institutions with different memberships, geographic scopes, and subject matters. The BBNJ Agreement includes a nod in that direction, saying that it should be interpreted and applied in a manner that “promotes coherence and coordination” (Article 5). But, in general, those who wanted to preserve the decision making authority of existing agreements and institutions prevailed. As a result, the Agreement's ability to bring greater coherence to the governance of BBNJ may depend on its soft influence more than its legal authority, as well as on how it is elaborated going forward.
II. Background
Roughly half of the Earth's surface, two-thirds of the ocean's surface, and 95 percent of the ocean's volume lie in areas beyond national jurisdiction.Footnote 9 As of 2022, more than 225,000 marine species had been identified,Footnote 10 but knowledge of marine biodiversity is quite limited, so potentially many more species may be found. Only about 5–20 percent of the ocean has been explored.Footnote 11 In recent years, an average of 2000 new marine species have been discovered annually and estimates of the total number of marine species range from 500,000 to 1,000,000.Footnote 12 Of particular importance to marine biodiversity are a number of exceptionally species-rich “hotspots,” such as the International Union for Conservation of Nature's ten so-called “ocean gems.”Footnote 13
Marine biodiversity is impacted by a host of human-related causes, including shipping, fishing, pollution, climate change, and ocean acidification. By one estimate, only about 13 percent of the ocean remains “truly wild.”Footnote 14 More than 190 multilateral and bilateral agreements have been adopted relevant to the protection of marine biodiversity,Footnote 15 including, among others:
• UNCLOS, which establishes general duties to conserve marine living resources and to protect and preserve the marine environment.Footnote 16
• The CBD, which has established a process to identify “ecologically or biologically significant marine areas” (EBSAs).Footnote 17
• The International Convention for the Regulation of Pollution from Ships (MARPOL),Footnote 18 which regulates vessel-source pollution, including garbage and sewage.
• Treaties establishing regional fisheries management organizations (RFMOs) and similar bodies, through which parties manage marine fisheries, including on the high seas.Footnote 19
• The Convention on International Trade in Endangered Species (CITES),Footnote 20 which protects species (including marine species) threatened by international trade.
• The World Heritage Convention, which allows the creation of World Heritage Sites for “precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.”Footnote 21
• The United Nations Environment Programme (UNEP) Regional Seas ProgrammeFootnote 22 and associated regional agreements, four of which currently include ABNJ within their geographical coverage.Footnote 23
• Species-specific agreements such as the International Convention for the Regulation of Whaling.Footnote 24
Despite this multitude of agreements, significant gaps exist in the governance of BBNJ.Footnote 25 For example:
• There are no rules governing use of marine genetic resources of ABNJ, since the CBD's Nagoya Protocol on access and benefit-sharing applies only to genetic resources from areas within national jurisdiction.Footnote 26
• There is no global process to establish marine protected areas or other area-based management tools on the high seas.
• There is no mechanism to address the cumulative impacts of human activities on the marine environment of areas beyond national jurisdiction.
• There are no uniform standards or guidelines for conducting environmental impact assessments of activities that occur within or impact areas beyond national jurisdiction.
• There is no framework for capacity building and the transfer of marine technology specific to the conservation and sustainable use of BBNJ.
The BBNJ Agreement is intended to fill these gaps and provide a more comprehensive framework of international governance for the conservation and sustainable use of BBNJ.
III. History
Protecting biodiversity of areas beyond national jurisdiction has been a topic of international discussion for more than twenty years. In 2004, the United Nations General Assembly (UNGA), took an initial step to address it, creating an Ad Hoc Informal Open-Ended Working Group on the conservation and sustainable use of BBNJ, which began meeting in 2006.Footnote 27 That same year, the EU first expressed support for negotiation of an implementing agreement on BBNJ under UNCLOS.Footnote 28
In 2011, the Ad Hoc Working Group made a major breakthrough, agreeing to the package of four issues that ultimately became the basis for the BBNJ Agreement.Footnote 29 But although agreement on the 2011 package has been called a “watershed moment,”Footnote 30 it did not lead directly to treaty negotiations, due to the position of some countries (including the United States, Canada, Japan, Iceland, and Russia) that existing agreements adequately addressed BBNJ and that a new treaty was therefore unnecessary and could undermine high seas freedoms and regional fisheries organizations.
In 2015, UNGA decided to establish a Preparatory Committee (PrepCom) to make recommendations on possible elements of an international legally binding instrument on BBNJ, addressing the issues in the 2011 package, but on the understanding that the new instrument “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.”Footnote 31 Two years later, UNGA established an intergovernmental conference (IGC) to negotiate the new BBNJ instrument.Footnote 32
But agreement to develop an international legally binding instrument did not signify agreement on what the instrument should provide. States differed on a huge variety of issues, both large and small. Developed and developing countries disagreed about whether MGRs from areas beyond national jurisdiction are part of the “common heritage of mankind,” as well as about whether funding, capacity building, and technology transfer should be mandatory or voluntary. Countries such as Iceland and Russia that preferred addressing BBNJ in existing regional and sectoral bodies sought to protect the authority of these bodies. And states struggled with the multitude and complexity of more specific issues raised by the four topics under negotiations: How to define ABMTs and EIAs? How decisions should be made about ABMTs? What should be the trigger for EIAs? What should be the rights of adjacent states, which are likely to be most affected by activities on the high seas? The list could go on and on.
Not surprisingly, then, work in both the PrepCom and the IGC proceeded slowly. The PrepCom made only modest progress in its four sessions in 2016 and 2017.Footnote 33 And the first two sessions of the IGC were essentially an extension of the PrepCom, with states expressing their views but no negotiating text to work with. In September 2018 at IGC-1, the newly elected IGC president, Rena Lee of Singapore (referred to by some as the “mother of BBNJ”), lacking a mandate to prepare a zero draft, simply circulated a set of questions and discussion topics to countries as an “aid to discussions.”Footnote 34 For IGC-2, held in spring 2019, she circulated a more detailed “aid to negotiations” that set forth options for textual elements of an agreement.Footnote 35 Only after IGC-2 was Lee authorized to prepare a zero draft,Footnote 36 which she circulated in May 2019 and which served as the basis for negotiations at IGC-3 in August 2019.
According to observers, the introduction of a draft text “substantially changed the tenor, pace, and detail of interventions compared with the first two meetings.”Footnote 37 Prior to IGC-3, the IGC had met in plenary, taking up each of the four elements of the package seriatim. At IGC-3, the organization of the meetings changed, with greater use of “informal-informals,” organized along the lines of the four parts of the package deal, which met in parallel and operated without translation.Footnote 38
Throughout 2020 and 2021, the formal negotiations had to halt due to the COVID-19 pandemic. But an informal, Track 1.5 “High Seas Treaty Dialogue” continued to meet online,Footnote 39 and President Lee also organized several online sessions, allowing states to consider more fully the issues involved in the negotiations and their interrelationships.Footnote 40 When the formal negotiations finally resumed in March 2022, IGC-4 had a better tone. Nevertheless, it was able to make only limited progress on the text, with states continuing to disagree about a host of issues.Footnote 41
The IGC's negotiating mandate provided initially for four sessions.Footnote 42 But IGC-4 ended with “still a great distance to go” to finalize the treaty.Footnote 43 As a result, the UN General Assembly authorized a fifth negotiating session, held in August 2022, during which the final agreement began to take shape. In addition to informal-informals, the president initiated a “homework group” model at IGC-5, in which small groups were sent off to resolve particular issues.Footnote 44 Although many technical issues were resolved through this process,Footnote 45 the session ended without reaching breakthroughs on such core issues as whether the common heritage of humankind principle applies to MGRs from areas beyond national jurisdiction; whether to provide for mandatory monetary benefit-sharing from the use of MGRs; the powers and voting rules of the conference of the parties; its authority to adopt management measures for ABMTs that are within the competence of regional or sectoral bodies; how easily to trigger EIAs; and whether EIAs should be required for activities that impact areas beyond national jurisdiction but take place in areas within national jurisdiction.
To avoid convening a sixth session, President Lee instead suspended IGC-5, and a resumed session (dubbed IGC-5bis) was held from February 20 to March 3, 2023. Agreement continued to prove elusive, however, with new issues emerging, such as how to deal with disputed territories like the South China Sea. In the waning hours of IGC-5bis, with the negotiations on the brink of collapse, some delegates flew home not knowing whether there would be an outcome. But in thirty-six straight hours of negotiation on that final “day,” Lee was able to facilitate agreement on a deal, allowing the IGC to declare victory on March 4 and formally close the negotiations.Footnote 46 The BBNJ Agreement was adopted on June 19, 2023, at a further resumed IGC-5, after the text had been scrubbed and translated into the other five United Nations official languages. It was opened for signature on September 20, 2023, and, as of February 26, 2024, had been signed by eight-seven countries, including the United States.
IV. General Provisions
The BBNJ Agreement comprises four largely independent parts addressing marine genetic resources, area-based management tools, environmental impact assessment, and capacity building and technology transfer, which were negotiated, at the end, in parallel in separate groups. In addition, a fifth negotiating group focused on the Agreement's general provisions, including its scope of application, objectives, principles and approaches, institutions, dispute resolution system, and final clauses.
A. Scope of Application
As an implementing agreement to UNCLOS, the BBNJ Agreement uses UNCLOS's definitions and jurisdictional rules in delineating its geographic scope of application (“areas beyond national jurisdiction”Footnote 47), which Article 1(2) defines as including both the high seas and the “Area”—that is, the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.Footnote 48
B. Objective
Article 2 defines the objective of the Agreement as “ensur[ing] the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term.” Throughout the Agreement, “conservation” and “sustainable use” appear as a pair,Footnote 49 reflecting the Agreement's overarching balance between environmental and developmental purposes.
C. General Principles and Approaches
In contrast to multilateral environmental agreements such as the Minamata and Stockholm Conventions,Footnote 50 which do not contain a “principles” article, the BBNJ Agreement includes an extensive list of “general principles and approaches” to guide parties in achieving the Agreement's objectives (Article 7). The question of which principle from UNCLOS to include was the most contentious issue in the “principles and approaches” article and arguably the entire agreement: the common heritage of humankindFootnote 51 or freedom of the high seas. Developing states pushed to recognize MGRs from areas beyond national jurisdiction as part of the common heritage of humankind, like the mineral resources of the deep seabed, use of which may be regulated internationally and the benefits of which all countries are entitled to share. In contrast, developed states stressed freedom of the high seas, including freedom of marine scientific research, which allows actors to collect MGRs and use them as they wish. Ultimately the issue was sidestepped by simply including both principles, without any discussion of the relationship between the two or their implications for BBNJ.Footnote 52
The article's title, “General Principles and Approaches,” reflects, in part, the longstanding concern of the United States that the term “principle” is interpreted by some to mean a general principle of international lawFootnote 53 and that the items enumerated in the article (in particular, “precaution”) are better viewed as non-legal “approaches.” Accordingly, Article 7(e) refers to the “precautionary principle or precautionary approach, as appropriate.” The article also includes the principle of equity (but not the “principle of common but differentiated responsibilities” found in some MEAs), the polluter-pays principle, the use of the best available science and scientific information, and a suite of provisions focusing on particular groups (Indigenous Peoples, local communities, small island developing states, and landlocked developing states).
D. Institutions
Like other multilateral environmental agreements, the BBNJ Agreement creates a variety of institutions to elaborate, operationalize, and implement its provisions.
1. Conference of the Parties (COP)
In contrast to UNCLOS, the BBNJ Agreement establishes a COP with significant substantive decision-making authority, including to adopt modalities for sharing the monetary benefits from the utilization of MGRs (Article 14(7)), establish marine protected areas and other ABMTs (Article 23(2)), adopt standards and guidelines for EIAs (Article 38), request advisory opinions from the International Tribunal for the Law of the Sea (ITLOS) (Article 47(7)), and assess the adequacy and effectiveness of the Agreement at regular intervals, beginning within five years of entry into force (Article 47(8)).Footnote 54 The BBNJ COP arguably represents an improvement over the climate change COP in two respects: first, it will meet in one place (Article 47(3)) rather than move from one region to another, providing greater continuity; second, if efforts at consensus fail, it can make decisions by qualified majority vote (two-thirds, except where otherwise provided), rather than require consensus (Article 47(5)).
2. Clearing-House Mechanism
Building on the example of the Convention on Biological Diversity, the BBNJ Agreement establishes a Clearing-House Mechanism that plays a key role throughout the Agreement in promoting transparency and disseminating information (Article 51(3)).
3. Scientific and Technical Body (STB)
The Agreement establishes a Scientific and Technical Body with limited, expert membership—like the scientific expert groups established by MEAs such as the Rotterdam and Stockholm ConventionsFootnote 55 but with wider responsibilities. The STB plays a primarily advisory role, advising the COP on proposed ABMTs (Article 20), emergency measures (Article 24(3)), and possible standards or guidelines for EIAs, and making comments to parties on their draft EIAs (Article 33(4)).
4. Financial Mechanism
As in many MEA negotiations, a key issue was whether to establish a new fund. The BBNJ Agreement establishes a financial mechanism (Article 52(3)) and provides that it shall include both an existing fund—the Global Environment Facility (GEF)—as well as a new special fund (Article 52(4)). The special fund will operate under the authority and guidance of the COP (Article 52(9)) and provide assistance to developing country parties on the basis of need (Article 52(12)). The COP is to determine an initial mobilization goal through 2030 from all sources, both public and private. But, in any event, the special fund has a dedicated source of revenue from the guaranteed contributions of developed country parties under the monetary benefit-sharing provision of the MGR section (Article 14(6)), discussed below.
5. Implementation and Compliance Committee
The Agreement establishes an Implementation and Compliance Committee (Article 55), modeled on the committee of the same name operating under the Paris Agreement on climate change.Footnote 56 As is true of the Paris Agreement committee and similar committees under other MEAs, the BBNJ committee is to be facilitative rather than punitive in nature, reflecting the “managerial” rather than the “enforcement” model of compliance.Footnote 57
6. Specialized Institutions
Finally, the BBNJ Agreement establishes two specialized institutions:
• An access and benefit-sharing committee, which has an advisory role to the COP in recommending guidelines for MGR activities and developing monetary benefit-sharing rates or mechanisms (Article 15).
• A capacity building and transfer of marine technology committee to assess and review needs, identify and mobilize funds, and monitor and review implementation (Article 46).
E. Dispute Settlement
Part IX of the BBNJ Agreement replicates the dispute settlement system of UNCLOS, with some minor adjustments to take account of the fact that the BBNJ Agreement is open to states that are not parties to UNCLOS (Article 60(5)–(7)).
F. Entry into Force
The BBNJ Agreement requires ratification by sixty states to enter into force (Article 68(1)). Before then, states may provisionally apply the Agreement (Article 69).
V. Marine Genetic Resources
The section on governance of MGRs was perhaps the most difficult in the BBNJ negotiations and the one with the strongest North-South dimension. Marine genetic resources are potentially extremely valuable. As early as the 1960s, scientists showed that bioactive compounds from Caribbean sponges have anti-cancer and anti-viral qualities, and scientists believe that MGRs potentially have a wide range of uses in medicines, insecticides, industrial processes, and cosmetics, among other things.Footnote 58 But most of the research to date has focused on MGRs found within national jurisdiction, and patents based on MGRs generally involve organisms that are found both within and beyond areas of national jurisdiction.Footnote 59 So the value of MGRs in ABNJ remains uncertain, and commercialization of products made from MGRs remains a long way off. Developed countries have most of the technical capacity to research and utilize MGRs found in areas beyond national jurisdiction and, in the negotiations, wanted to protect their freedom to do so. Meanwhile, developing countries wanted to ensure in advance that they get their fair share of any future benefits.
In contrast to the other sections of the BBNJ Agreement, which are addressed by a variety of existing international agreements, frameworks, and bodies, no governance arrangements currently exist for MGRs found on the high seas. The BBNJ negotiations were, of course, not the first to address the general issue of access to and benefit-sharing of genetic resources. The issue is also addressed in the CBD and its Nagoya Protocol, as well as the International Treaty on Plant Genetic Resources for Food and Agriculture.Footnote 60 But these agreements apply only to genetic resources found in areas within national jurisdiction, and the approach they take—namely, to recognize the sovereign right of states to limit access and negotiate the terms of benefit-sharing for genetic resources found within their jurisdiction—could not be used in the BBNJ Agreement, which addresses genetic resources found in areas that have no sovereign.
The problem in the BBNJ negotiations was that states could not agree on an alternative. Developing states pushed to recognize MGRs as part of the common heritage of humankind, like the mineral resources of the deep seabed. In contrast, developed states stressed freedom of marine scientific research, including freedom to collect and use MGRs. At a meta-level, this debate over the status of MGRs was a familiar one, pitting developing countries, which wanted to ensure that they share in the benefits of marine genetic resources, against developed countries, which wanted to ensure that research and innovation were not stifled by burdensome rules on access and benefit-sharing.
When something is a matter of principle, compromise is difficult if not impossible. Often, the solution is to sidestep the dispute over principles and instead focus on what specific rules to adopt. That was the approach taken in the BBNJ Agreement. It references both principles—common heritage of humankind and freedom of marine scientific research—allowing each side to point to the principle they like, and then sets forth rules on collection and benefit-sharing of MGRs that strike a balance between the objectives of fair and equitable benefit-sharing, on the one hand, and generation of knowledge, scientific understanding, and technological innovations, on the other (Article 9(a), (c)). For example:
• As a middle ground between establishing a permitting scheme (as advocated initially by some developing countries) and not regulating collection at all (as some developed states wanted), the Agreement does not restrict MGR collection, but requires that collection be carried out with “due regard” for the interests of other states (Article 11(3)) and requires notifications to the Clearing-House Mechanism both pre- and post-cruise (Article 12).Footnote 61
• The BBNJ Agreement requires parties to ensure that MGRs and digital sequence information (DSI) be deposited in publicly accessible repositories and databases (Article 14(3), but permits databases to impose “reasonable conditions” on access (Article 14(4)), allows actors to preserve the confidentiality of information (Article 51(6)), and does not limit intellectual property rights.
• The MGR section provides for both non-monetary and monetary benefit-sharing (Article 14), but defers the issue of whether to establish any type of royalty system on profits from MGRs and does not establish a mechanism to track the provenance of DSI in order to determine which information can be traceable to MGRs from ABNJ, which scientists argued would make research almost impossible, given the ways that DSI is used.
A major issue in the MGR negotiations was whether to address not only MGR materials, fondly referred to as “wet stuff,” but also the digital sequence information obtained from MGRs (“dry stuff”). The Nagoya Protocol and the International Treaty on Plant Genetic Resource do not encompass the informational aspects of MGRs, and several countries, including the United States, vigorously opposed their inclusion in the BBNJ Agreement. But after parties to the CBD decided in December 2022 to begin developing a DSI regime,Footnote 62 the die was cast for the inclusion of DSI in the MGR section (Article 10(1)).Footnote 63
The MGR regime has three principal components. First, as noted above, it ensures transparency about the collection process by requiring notifications to the Clearing-House Mechanism both pre- and post-cruise, and by requiring the Clearing-House Mechanism to issue a standardized batch identifier so that MGRs collected in areas beyond national jurisdiction can subsequently be identified as such (Article 12(1)–(5)). Moreover, if the MGRs are ever utilized (including commercially), the utilizers must provide a variety of information to the Clearing-House Mechanism, including about patents and sales (Article 12(8)). Second, the MGR section requires parties to ensure that MGRs and DSI are deposited in publicly accessible repositories and databases (Article 14(3)). Third, it provides for non-monetary and monetary benefit sharing.
With respect to scope, the MGR regime applies retroactively to utilization of MGRs and DSI collected or generated before entry into force of the Agreement, unless a party submits a written exemption when ratifying (Article 10(1)). But it excludes fishing and fishing-related activities (except when fish are utilized as MGRs rather than food) to avoid burdening them with extensive pre- and post-cruise notification requirements (Article 10(2)).
The sharing of non-monetary benefits from MGR and DSI was relatively uncontroversial,Footnote 64 but monetary benefit-sharing was a major issue in the negotiations. States disagreed as to whether the agreement should:
• Provide for monetary benefit-sharing at all?
• If so, whether it should be voluntary or mandatory?
• How long monetary benefit-sharing should persist? For example, if MGRs or DSI are commercialized, should there be monetary benefit-sharing of the commercial profits?
As a compromise between those who supported royalty payments on the commercial benefits derived from MGRs and DSI and those who opposed monetary benefit-sharing altogether, the Agreement requires developed states initially to contribute a fixed amount equal to half of (and in addition to) their assessed contribution to the Agreement's administrative budget (Article 14(6)). This mandatory, guaranteed funding is important, because it is unclear when, if ever, MGRs and DSI from areas beyond national jurisdiction will be commercially developed and provide monetary benefits,Footnote 65 so the guaranteed funding will provide an immediate source of finance for developing countries after the Agreement enters into force. Subsequently, the COP may replace this guaranteed funding mechanism with other modalities for monetary benefit sharing, for example, involving milestone payments or royalties on the commercialization of products (Article 14(7)). But adoption of new modalities by the COP will require a three-quarters majority vote and parties will have the right to opt out for up to four years (Article 14(8)). Importantly, whatever monetary benefits are provided to developing countries will not go into their general treasury; rather, they must be used for the conservation and sustainable use of BBNJ (Article 14(5)).
Finally, like other parts of the BBNJ Agreement, the MGR section has an institutional dimension. It establishes an “access and benefit sharing committee,” which will have fifteen members and may make recommendations to the COP on a variety of topics, including a code of conduct for MGR activities; modalities, rates, and mechanisms for monetary benefit-sharing; and procedures for monitoring and transparency (Articles 15, 16(1)).
VI. Area-Based Management Tools
An area-based management tool is a tool, such as an MPA, for “a geographically defined area through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives” (Article 1(1)).Footnote 66 The ABMT section of the BBNJ Agreement has as a key objective to “conserve and sustainably use areas requiring protection, including through . . . ecologically representative and well-connected networks of marine protected areas” (Article 17(a)). This objective mirrors, sub silentio, that of the Kunming-Montreal Global Biodiversity Framework, which calls for the effective conservation and management of thirty percent of the Earth's surface by 2030 “through ecologically representative, well-connected and equitably governed systems of protected areas and other effective area-based conservation measures” (the 30×30 goal).Footnote 67 Achieving the 30×30 goal will require giving protected status to large areas of the high seas, which cover roughly half of the earth's surface.
A variety of existing international instruments or bodies provide for the establishment of ABMTs. For example:
• The International Maritime Organization can designate particularly sensitive sea areas (PSSAs) in which maritime activities are restricted, including through routing measures and Vessel Traffic Services.Footnote 68
• Several MARPOL annexes allow parties to designate Special Areas, in which heightened measures to prevent ship-based pollution apply.Footnote 69
• RFMOs limit fishing in designated areas, including areas beyond national jurisdiction.Footnote 70
• Several UNEP regional seas programs establish processes to designate marine protected areas (MPAs), and the OSPAR Convention parties have established eight MPAs in the North-East Atlantic in areas beyond national jurisdiction.Footnote 71
Given these existing mechanisms to designate ABMTs, some states argued in the BBNJ negotiations that establishing an additional mechanism was unnecessary.Footnote 72 None of the existing mechanisms, however, allows for the designation of MPAs that manage activities in a holistic manner and bind states globally. The IMO, MARPOL, and RFMOs can adopt only sectoral measures, and the regional sea programs apply only to states in that regional. As a result, there is no way to protect a high seas area from the full range of human activities that threaten it. Proponents of the BBNJ Agreement's ABMT mechanism hoped to remedy this deficiency.Footnote 73
The ABMT section has several significant elements:
• First it provides for the establishment of ABMTs by the COP by a three-quarter majority vote, if two-thirds of the parties agree that all efforts to reach consensus have been exhausted (Articles 22(1), 23(1)–(2)). This majority voting ruling helps ensure that a small group of states is not able to block the establishment of an ABMT or the adoption of management measures.
• Second, it requires “inclusive, transparent and open” consultations with relevant stakeholders, including adjacent states, the scientific community, and Indigenous Peoples (Article 21).
• Third, it gives the Scientific and Technical Body an important advisory role, including to review ABMT proposals (Article 20); provide scientific advice to the COP (Article 22(1)); elaborate further requirements for ABMT proposals as well as modalities for the consultation process (Articles 19(6), 21(8)); recommend emergency measures (Article 24(3)); and monitor and periodically review the effectiveness of ABMTs (Article 26(3)–(4)).
• Fourth, its list of criteria for identifying potential ABMTs includes two criteria of particular importance to environmental groups: vulnerability to climate impacts and cumulative impacts (Annex I, paragraphs f, q).
Several compromises necessary to reach agreement, however, make the BBNJ Agreement's ABMT section fall short of its proponents’ goal of establishing a truly global governance regime that allows states to establish MPAs and adopt management measures in a holistic, ecosystem-based, multi-sectoral manner:
First, at the insistence of many countries with large fishing interests, which wanted to preserve the authority of sectoral bodies such as RFMOs, the BBNJ Agreement defers to existing international instruments and frameworks and global, regional, subregional, and sectoral bodies (IFBs). In taking decisions to establish ABMTs and adopt management measures, the COP must “respect the competences of, and not undermine,” relevant IFBs (Article 22(2)). It may adopt management measures only if they are compatible with those adopted by IFBs (Article 22(1)(b)). And “where proposed measures are within the competences of other global, regional, subregional or sectoral bodies,” it may only make recommendations to these bodies, not take decisions (Article 22(1)(c)).
Second, as the price of allowing ABMT decisions to be made by a three-quarters vote rather than consensus, the BBNJ Agreement includes a concept originally introduced by Japan to allow parties to opt out of decisions for renewable three-year periods, although it bounds the right to object by (1) providing only limited bases for objection (for example, if a party cannot practicably comply) and (2) requiring an objecting party to explain the grounds of its objection in writing, adopt equivalent measures or approaches to the extent practicable, not adopt measures that would undermine the effectiveness of the decision, and report on implementation (Article 23(5)–(9)).
The ABMT regime has several additional limitations. Since treaties cannot create obligations for non-parties, the management measures adopted under the BBNJ Agreement will apply only to parties, not to all countries. Parties to the BBNJ Agreement can only encourage, not require, that non-parties adopt supportive measure (Article 25(5), 62). Furthermore, although the BBNJ Agreement aims to establish a network of MPAs, it does not establish any explicit process to do so. Finally, decisions by the COP regarding ABMTs may not undermine the effectiveness of measures by coastal states adopted for areas within national jurisdiction and must have “due regard” to their sovereign rights over the continental shelf (Article 22(5)).
Nevertheless, the BBNJ Agreement represents a considerable advance. Under the Agreement, the COP can establish a process to recognize high seas MPAs adopted by regional bodies (such as the high seas MPAs in the North-East Atlantic established under the OSPAR Agreement) (Article 22(4)).Footnote 74 It can establish new high seas MPAs and recommend to the relevant IFB the measures it believes necessary to protect these areas from the cumulative impacts of human activities—measures that parties are generally obligated to promote in the relevant IFB (Article 25(4)).Footnote 75 And it can fill gaps by adopting measures for regions or issues not within the geographic or substantive competence of an existing IFB. Assuming the Agreement comes into force, it will give states a mechanism to coordinate if not regulate globally, to address the full range of human activities that threaten biodiversity-rich marine areas.
VII. Environmental Impact Assessment
Part IV of the BBNJ Agreement builds on the environmental assessment provision of the United Nations Convention on the Law of the Sea, which provides:
When states have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments. . . .Footnote 76
Part IV of the BBNJ Agreement elaborates this rather barebones provision “by establishing common processes, thresholds and other requirements for conducting and reporting [EIAs]” (Article 27(a)).Footnote 77
Two issues, in particular, were central to the EIA negotiations: First, what should be the trigger for conducting an environmental assessment? Second, should the assessment process be purely national or involve some degree of international review and/or decision making?
A. Trigger/Threshold
The trigger for EIAs is important because it affects how many activities have the regulatory burden of requiring an assessment: a low trigger results in more activities needing EIAs; a high trigger, fewer. UNCLOS sets a rather high trigger: an EIA is required only when there are “reasonable grounds” for believing that a planned activity “may cause substantial pollution of or significant and harmful changes to the marine environment.”Footnote 78 Some states (including the United States) argued that, as an implementing agreement of UNCLOS, the BBNJ Agreement should use the same trigger. At the other extreme, PSIDSFootnote 79 and the Caribbean Community (CARICOM)Footnote 80 argued for the much lower (and hence more stringent) trigger for environmental assessments used in the Antarctic Environment Protocol, which requires an EIA anytime the potential impacts of an activity are likely to be more than “minor or transitory.”Footnote 81
Ultimately, the BBNJ Agreement resolved this issue through a compromise that retains the UNCLOS trigger for EIAs, but uses the more stringent, “more-than-minor-or-transitory” standard as the trigger for a screening process to determine whether a full EIA is needed. The result is a three-stage process:
• First, the party with jurisdiction or control over a planned activity must determine whether the activity may have “more than a minor or transitory impact” or has “unknown or poorly understood” effects (Article 30(1)). If not, then no further action is necessary.
• If the answer is yes, the party must then screen the activity to determine whether it meets the UNCLOS trigger for EIAs (Article 30(1)(a)). If the party determines at the screening stage that an EIA is not required, the off-ramp still requires parties to make the screening information public through the Clearing-House Mechanism, so that other states can register their views and the STB can review the determination and make recommendations (Article 31(1)(a)).
• Third, if the activity meets the UNCLOS trigger, then the party must ensure that a full-blown EIA is conducted (Article 30(1)(b)).
A key feature of this approach is that the screening stage is significantly less demanding than an EIA. In screening a planned activity, a state must consider only the type of technology involved; the duration, location, and potential impacts of the activity; and the extent to which the effects of the activity are unknown or poorly understood (Article 30(2)). In contrast, when conducting an EIA, a state must do a baseline assessment of the marine environment; analyze potential prevention, mitigation, and management measures; consider reasonable alternatives to the planned activity; and describe follow-up actions, including an environmental management plan (Article 33(2)).
B. International Review and Decision Making
A second key issue in the EIA negotiations was whether to preserve national control over the EIA process, as Russia and other developed countries generally insisted, or provide for some degree of international review and/or decision making, as mostly developing countries preferred.Footnote 82 At one end of the spectrum, an EIA could be a purely national process, in which the state with jurisdiction or control over an activity determines on its own whether the trigger for conducting an EIA has been satisfied, ensures that an EIA is conducted, and decides whether to authorize the activity. At the other end of the spectrum, EIAs could be internationalized, with an international body responsible for conducting EIAs and deciding whether, based on the EIA, a proposed activity should be allowed to proceed.
The BBNJ Agreement lands somewhere in between. Parties retain control over the conduct of EIAs and over decisions about whether a planned activity under its jurisdiction or control may proceed (Article 34(1)). But the BBNJ Agreement establishes a variety of obligations and processes aimed at promoting transparency, international consultation and review, and environmental integrity:
• To promote transparency, it requires parties to make their screening, draft EIA, and final EIA reports public through the Clearing-House Mechanism (Articles 32(1), 33(3), 33(5)).
• To allow international scrutiny, it affords potentially affected states and stakeholders an opportunity to comment and authorizes the Scientific and Technical Body to review and publicly comment on the party's screening, draft EIA, and monitoring reports.Footnote 83
• Finally, to promote environmental integrity, it requires parties to “give consideration” to the concerns of other states and to the STB's comments and recommendations (Articles 31(1)(a)(v), 33(4)); to take “full account” of its EIA in deciding whether to authorize an activity (Article 34(2)); to allow an activity to proceed only if the party “has made all reasonable efforts to ensure that the activity can be conducted in a manner consistent with prevention of significant adverse impacts on the marine environment” (Article 34(2)); to keep the environmental, economic, social, cultural, and health impacts of the activity under surveillance (Article 35); and to review its authorization decision if it identifies significant adverse impacts not foreseen in its EIA (Article 37).
C. Other Elements
The EIA section applies not only to activities that occur in ABNJ, but to activities occurring in areas within a party's national jurisdiction that may negatively impact the environment of ABNJ. But for activities that occur in areas within a party's national jurisdiction, the party may use its national EIA process (Article 28). Moreover, even for activities occurring in ABNJ, the BBNJ Agreement's EIA procedure is not exclusive. If an “equivalent” assessment of an activity's impact has been conducted under another IFB, a party need not screen or conduct an EIA of the activity (Article 29(4)(b)(i)). The BBNJ Agreement does set two minimum requirements for all EIA processes, regardless of whether they are conducted under the BBNJ Agreement, national law, or another IFB: the party concerned must make the EIA reports publicly available through the Clearing-House Mechanism (Articles 28(2)(c), 29(5)) and ensure that the activity in question is monitored (Articles 28(2)(b), 29(6)).Footnote 84
The EIA section contains two other provisions of particular importance to environmental groups. First, it requires parties to consider potential cumulative impacts when assessing and deciding whether to authorize an activity—including the impacts of climate change (Articles 1(6), 31(1)(c)). Second, although the BBNJ Agreement does not require parties to undertake strategic environmental assessments (SEAs) (that is, broader assessments of policies, plans, and programs),Footnote 85 it makes the preparation of SEAs an objective (Article 27(d)), authorizes the COP to conduct SEAs, and requires parties to “consider” doing so (Article 39).
Finally, like the ABMT section, the EIA section seeks to address the concerns of “adjacent states”—in particular, small island developing states (SIDS)—about the potential impacts of activities taking place immediately outside their EEZs,Footnote 86 by providing them opportunities to participate in the assessment process (Article 32) and to be kept informed through the Clearing-House Mechanism during the monitoring, reporting and review phases (Article 37(5)).Footnote 87
VIII. Capacity Building and Transfer of Marine Technology
Capacity building and the transfer of marine technology (CBTMT) are addressed both in a dedicated section of the BBNJ Agreement (Part V) as well as in its separate sections on MGRs, ABMTs, and EIA. CBTMT was the “least controversial” issue in the negotiations and the “earliest to be closed” at the final session of the IGC.Footnote 88 Engaging in marine scientific research and implementing conservation measures in areas beyond national jurisdiction are difficult. Relatively few countries, concentrated in the Global North, have the technological and financial wherewithal to do so. There was widespread agreement that this deficiency needs to be remedied, in order to enable developing countries both to participate in marine scientific research as well as to implement the Agreement's provisions on ABMTs and EIAs.Footnote 89
The BBNJ Agreement conceptualizes CBTMT broadlyFootnote 90 and provides that it be a country-driven, transparent, iterative, and needs-based process (Article 42). Like other sections of the BBNJ agreement, the CBTMT section includes an institutional component, establishing a Capacity-Building and Transfer of Marine Technology Committee to assess and review needs, identify and mobilize funds, measure performance, and make recommendations to the COP (Articles 45–46). The section also emphasizes broad participation, requiring parties to cooperate “at all levels and in all forms,” including through partnerships with the private sector, civil society, and Indigenous Peoples (Article 41(2)).
Despite agreement on the general need for CBTMT, states disagreed on many specific modalities, making progress initially slow. Important issues included:
A. Should Financial Contributions and Technology Transfer Be Mandatory or Voluntary?
Developing countries wanted to use the language of obligation in the provisions on finance and technology transfer and preferred the verbs “shall” and “ensure,” while developed countries preferred non-binding verbs such as “promote.”Footnote 91 In the end, the Agreement establishes different levels of obligation for capacity building and technology transfer, providing that parties “shall ensure capacity building,” but only need to “cooperate to achieve the transfer of marine technology” (Article 42(1) (emphasis added)). The outcome on monetary benefit-sharing of MGRs, which requires developed countries to pay into a special fund an additional amount equal to 50 percent of their assessed contributions (Article 14(6)), provides a source of guaranteed funding for developing countries and helped resolve the issue of finance in the CBTMT section of the Agreement. This dedicated, guaranteed source of revenue distinguishes the BBNJ Agreement from most other MEAs.
B. Who Should Provide Resources for Capacity Building and Technology Transfer?
The BBNJ Agreement also differs from other MEAs in not imposing the obligation to support capacity building and technology transfer only on developed country parties. Instead, the obligation applies to parties generally, although it is qualified by the phrase, “within their capabilities” (Article 42(2)).
C. Who Should Be Eligible to Receive Capacity Building and Technology Transfer?
States generally agreed that least developed countries (LDCs) and SIDS should be eligible for capacity building and transfer of marine technology. But states disagreed as to which other categories of developing countries should be eligible. Ultimately, they adopted an expansive list, including not only LDCs and SIDS, but also landlocked developing countries, geographically disadvantaged states, coastal African states, archipelagic states, and middle-income developing countries (Articles 40(e), 41(3)).
D. What Should Be the Terms of Technology Transfer?
One of the most significant sticking points in the CBTMT section was how to define the terms of technology transfer. This has been a recurring issue in international environmental regimes. On the one hand, developing countries argue that developed countries should transfer technology to them on “fair and most favored terms,” including through concessional financing. On the other hand, the United States and other developed countries argue that technology transfer should take place between countries on whatever terms the two countries agree. The BBNJ Agreement is nominally neutral as between these two approaches. It provides that “the transfer of marine technology . . . shall take place on fair and most favorable terms, including on concessional and preferential terms,” but then adds the qualification, “in accordance with mutually agreed terms and conditions” (Article 43(2) (emphasis added)). Similarly, the Agreement provides that technology transfer shall give “particular consideration” to “the interests and needs of developing countries,” but also requires, in the same sentence, that technology transfer “take into account all rights over such technologies and be carried out with due regard for all legitimate interests, including . . . the rights and duties of holders, suppliers, and recipients of marine technology” (Article 43(4))—a formulation that implicitly encompasses intellectual property rights.
IX. Cross-Cutting Themes and Issues
Although the BBNJ Agreement comprises four largely independent parts, a number of themes and issues cross-cut the different sections, some familiar from other multilateral environmental regimes and others more specific to ocean governance.
A. Relationship to Existing Agreements, Frameworks, and Bodies
As noted at the outset, many existing international agreements, frameworks, and global, regional, subregional, and sectoral bodies (IFBs) relate to the conservation and sustainable use of marine biodiversity, with different memberships, geographic scopes, and subject matters.Footnote 92 Some address a particular activity such as fishing, maritime transport, or ocean dumping, or a specific species such as whales or tuna, or a specific pollutant such as mercury, while others are more general but operate only on a regional basis. As a result, ocean governance is highly fragmented.
How the BBNJ Agreement would relate to these existing IFBs was one of the main points of contention in the negotiations. Some wanted the ABMT provisions of the BBNJ Agreement to provide an overarching framework that would allow the COP to address the interrelationships between different activities, impacts, and regions, and to regulate activities in ABNJ in a comprehensive, multi-sectoral, holistic manner. Others wanted to preserve the authority of existing IFBs, such as RFMOs and the IMO, and instead coordinate their efforts in order to establish effective ABMTs. They argued initially that a BBNJ Agreement was unnecessary and then insisted on language, in the negotiating mandate, that the IGC and its results “should not undermine existing relevant” IFBs.Footnote 93
The BBNJ Agreement attempts to square these contrasting views by providing in Article 5 that it be interpreted and applied in a manner that “promotes coherence and coordination” with existing IFBs but does not “undermine” them. Exactly what would “undermine” existing IFBs is unclear and will likely be a continuing source of debate. The IGC did not adopt proposals that would have clarified what should not be “undermined”: the effectiveness of existing IFBs or their competences?Footnote 94 The former proposal would have allowed the BBNJ Agreement to exercise concurrent authority with IFBs, so long as it did not undermine their effectiveness. In contrast, the latter proposal would have excluded the BBNJ Agreement from acting with respect to matters within the competence of an existing IFB.
While the general provision in Article 5 is somewhat ambiguous, the more specific provisions of the BBNJ Agreement suggest that the status quo largely prevailed. With respect to ABMTs, for example, the BBNJ Agreement generally defers to existing IFBs. Article 22(2) provides that the COP, in making decisions on ABMTs, shall “respect the competences of, and not undermine” relevant IFBs. If a proposed measure is within the competence of an existing IFB, the COP is authorized only to make “recommendations” to the relevant IFB, not to take decisions (Article 22(1)(c)). As a result, states may not use the BBNJ Agreement to forum shop. If a state wants to propose a shipping rule, it must ultimately go to the IMO for a decision; for a fishing rule, to the relevant RFMO; and for a rule to cordon off part of the seabed, to the International Seabed Authority. It may not use the BBNJ Agreement to circumvent these existing IFBs. Similarly, the provision on dispute settlement includes a savings clause, providing that it shall be “without prejudice” to the dispute settlement procedures to which parties have agreed as participants or members of a relevant IFB “concerning the interpretation or application” of the IFB (Article 60(8)).
Rather than promoting coherence in ocean governance by overriding or going around existing IFBs, the BBNJ Agreement seeks to promote coherence by working through them. For example:
• Article 8(1) requires parties to “cooperate . . . for the conservation and sustainable use of [the BBNJ], including through strengthening and enhancing cooperation with and promoting cooperation among relevant [IFBs]”—a sentiment echoed in Article 47(6)(c).
• Article 29(3) directs the Scientific and Technical Body to collaborate with IFBs in developing and updating standards and guidelines for EIAs, and Article 29(1) requires that parties promote the adoption and implementation of these standards and guidelines in relevant IFBs.
• Although Article 29(4) allows a party not to undertake an EIA pursuant to the BBNJ Agreement if it has undertaken an “equivalent” EIA pursuant to an IFB, Article 29(5) requires it to publish the assessment through the BBNJ's Clearing-House Mechanism.
• Article 41(2) requires parties to strengthen cooperation and coordination between IFBs in providing capacity building and technology transfer.
B. National Decision Making Versus International Prescription
Like many multilateral environmental agreements, the BBNJ Agreement tries to find a middle ground between national and international decision making. For example:
• It allows parties to collect MGRs, but requires that they provide international notifications.
• It authorizes the COP to adopt modalities for monetary benefit-sharing of MGRs and to establish ABMTs, but allows parties to opt out for specified periods of time (though in the latter case, only for certain reasons and subject to various constraints).
• It allows parties to conduct EIAs and make decisions about whether to authorize activities based on the EIAs, but provides for international input and review.
Broadly speaking, countries that expect to engage in significant activities on the high seas (generally developed countries and some middle income countries such as China and Brazil) preferred to preserve their national authority (for example, their freedom to collect MGRs, conduct EIAs, and decide which activities to approve), while countries with less capacity to utilize BBNJ and greater vulnerability to the impact of high seas activities (generally developing countries) preferred stronger international governance, for example, over the benefit-sharing and EIA processes.
C. Transparency and Consultation
Reflecting the fact that states more readily accept procedural obligations relating to transparency than substantive international regulation and decision making, transparency plays a major role throughout the BBNJ Agreement, as it does in many MEAs. For example:
• Parties must provide notifications through the Clearing-House Mechanism of their activities in collecting and utilizing MGRs (Article 12).
• The Secretariat must make proposals for ABMTs publicly available (Article 20).
• Parties must provide notifications of planned activities in ABNJ and make their screening information, draft EIAs, EIAs, decision documents, and monitoring reports publicly available through the Clearing-House Mechanism (Article 32).
• The COP is directed to promote transparency in decision-making processes and in the implementation of the Agreement (Article 48).
As a corollary of transparency and a check on national decision making, the BBNJ Agreement emphasizes inclusive and transparent consultations with all relevant stakeholders—including adjacent states and Indigenous Peoples—when proposing ABMTs (Article 21), throughout the EIA process, and in implementing the Agreement (Article 48(3)). In support of these consultation requirements, the Agreement directs its financial mechanism to “support public consultation at the national, subregional, and regional levels” (Article 52(6)(d)).
D. Capacity Constraints of Developing Countries
The Agreement is attentive to the capacity constraints of developing countries not only in its dedicated section on capacity building and technology transfer, but throughout. For example:
• The MGR section has as one of its objectives to build the capacity of developing states to carry out MGR activities (Article 9(b)) and requires parties to provide information on opportunities for developing country scientists to be involved (Article 12(2)(h)).
• The ABMT section provides that implementation of ABMTs “should not impose a disproportionate burden on parties that are small island developing states or least developed countries, directly or indirectly” (Article 25(3)).
• The EIA section tasks the Scientific and Technical Body with identifying experts to assist parties with capacity constraints in conducting and evaluating screenings and EIAs (Article 31(3)).
• The CBTMT section includes a provision prohibiting parties from making capacity building and technology transfer conditional on “onerous reporting requirements” (Article 41(3)).
E. Indigenous Peoples, Local Communities, and Traditional Knowledge
Reflecting the increased attention in international law to Indigenous rights and traditional knowledge, a coalition of countries that included PSIDS, Canada, Australia, New Zealand, and the United States pushed for a variety of provisions to recognize and protect the rights and interests of Indigenous Peoples and local communities. In addition to general provisions in the Preamble and the “Principles and Approaches” article, the MGR section requires parties to take measures to ensure that the traditional knowledge of Indigenous Peoples and local communities be accessed only with their free, prior and informed consent (Article 13); the ABMT section specifically identifies Indigenous Peoples and local communities as stakeholders with whom parties are to collaborate and consult in developing ABMT proposals (Article 19(2)); and the EIA section directs the Scientific and Technical Body to consider the relevant traditional knowledge of Indigenous Peoples and local communities when reviewing environmental impact assessments (Article 31(1)(a)(iv)).
F. Disputed Territories
One of the last issues to be resolved in the IGC was the concern of some countries that the BBNJ Agreement might be used to prejudice territorial or maritime claims—for example, China's claims in the South China Sea. The Agreement adopts a “belt-and-suspenders” approach in addressing these concerns. Article 6 provides that the BBNJ Agreement “shall not be relied upon as a basis for asserting or denying any claims to, sovereignty, sovereign rights or jurisdiction, including in respect of any disputes relating thereto.” Article 18 contains identical language with regard to the establishment of ABMTs, and “for the avoidance of doubt,” this same point is echoed in Article 60(10). In addition, to ensure that ITLOS is unable to rule on disputed territories, the Agreement specifically provides that the COP may not request an advisory opinion from ITLOS on “a matter that necessarily involves the concurrent consideration of any dispute concerning . . . the legal status of an area as within national jurisdiction” (Article 47(7)).
G. Intellectual Property Rights
Like the dog that did not bark,Footnote 95 the BBNJ Agreement is silent on the issue of intellectual property rights (IPRs). States disagreed about whether to include a provision protecting or overriding existing IPRs, so the solution was to say nothing, at least explicitly.Footnote 96 Nevertheless, three provisions arguably protect existing IPRs implicitly:
• First, Article 5(2)'s requirement that the Agreement be “interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies” presumably applies to IPR agreements and bodies (such as the World Intellectual Property Organization), since these are clearly relevant to sharing of MGRs and technology transfer.
• Second, Article 43(4) provides that technology transfer “be carried out with due regard for all legitimate interests, including, inter alia, the rights and duties of holders, suppliers and recipients of marine technology.”
• Third, Article 51(6) allows actors to preserve the confidentiality of information and provides that nothing under the Agreement “shall be interpreted as requiring the sharing of information that is protected from disclosure under the domestic law of a party or other applicable law.”
X. Conclusion
Almost two decades in the making, the adoption of the BBNJ Agreement has been rightly celebrated. It establishes comprehensive regimes addressing benefit-sharing from MGR and DSI activities, establishment of ABMTs in areas beyond national jurisdiction, environmental impact assessment, and capacity-building and technology transfer. To reach an outcome, some issues were resolved by artful compromises: for example, the guaranteed funding provided in the monetary benefit-sharing article and the three-step procedure for EIAs. Other issues were simply skirted: for example, by listing both common heritage of humankind and freedom of the high seas in the “Principles and Approaches” article. Other issues (and many details) were left to the future, such as elaborating additional modalities for monetary benefit-sharing. Like most MEAs, the BBNJ Agreement is intended to be a dynamic treaty that will evolve over time in response to new information and changing politics. The adoption of the BBNJ Agreement marks the end of one chapter and the beginning of another.
Although the BBNJ Agreement is much more than the “paper tiger” that some environmentalists feared, their hope that the BBNJ Agreement would provide for holistic, integrated governance of BBNJ was not fully realized, frustrated by the decision not to infringe the authority of existing international agreements and institutions. As a result, the BBNJ Agreement will need to rely as much on soft suasion as on regulatory power. One hopeful precedent is the 1995 Fish Stocks Agreement.Footnote 97 It also lacked authority to impose its standards on existing RFMOs, but RFMOs nevertheless largely incorporated those standards over time. The BBNJ Agreement seeks to have a similar influence; to that end, it requires parties to “endeavour to promote . . . the objectives of this Agreement when participating in decision-making under other relevant legal instruments, frameworks, or global, regional, subregional or sectoral bodies” (Article 8(2)). Whether parties heed this injunction, and the Agreement succeeds in promoting greater coherence in the fragmented landscape of high seas governance of BBNJ, is a key question for the future.
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