The BBNJ Agreement – new treaty, old challenges
By Shani Friedman*
Published on 24 April 2023
On March 4, 2023, the text of the international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS/ Convention) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ treaty/ ‘high seas’ treaty) was finalised (see the announcement here). The new ‘high seas’ treaty is considered a ‘breakthrough’ – the culmination of nearly two decades of work, building on the legacy of UNCLOS. At the same time, the ‘high seas’ treaty seems also to import and preserve challenges from the Convention that may hinder state cooperation.
The New Treaty
The treaty text reflects accepted principles in international environmental law such as ‘the polluter-pays’, equity and equitable sharing of benefits, precaution, use of the best available science and scientific information, and prevention of transboundary harm. It also contains innovative ideas such as the recognition of rights of future generations, taking action now to protect future rights, regulation of collection and access to digital scientific information, and the establishment of a digital open-access platform (the clearing-house mechanism, see Article 51 of the treaty text and here) to provide and share information on implementation of the treaty.
The treaty establishes a broad institutional framework, including a Conference of the Parties (COP); a Scientific and Technical Body—an expert body under the ‘authority and guidance’ of the COP—to provide scientific and technical advice to the COP, and other duties as will be determined; a framework for settlement of disputes, including special provisions for disputes of a ‘technical nature’; and, advisory opinions on question arising from this treaty.
This is the first treaty to deal with environmental protection that applies in areas beyond national jurisdiction per se, rather than regulating states’ obligations vis-à-vis activities, vessels and persons under their jurisdiction and control. The BBNJ treaty is also unique because the drafting process goes back to an old practice of preparing draft text to negotiate on – similar to the International Law Commission’s drafts (e.g., the 1958 Convention on the Continental Shelf).
The BBNJ treaty seems to try and deal with the lacunae in UNCLOS. For example, the Convention did not formally establish the Meeting of State Parties or define its jurisdiction, especially vis-à-vis the Commission on the Limits of the Continental Shelf (CLCS) as an expert technical body. In addition, although UNCLOS contains scientific and technical provisions, it does not have experts that may help resolve disputes ‘of technical and scientific nature’ (e.g., continental shelf disputes). In contrast, the high seas treaty formally establishes a COP and defining its jurisdiction vis-à-vis the Scientific and Technical Body. Furthermore, the BBNJ seem to recognise the need for expert bodies to assist on issues and disputes of a ‘technical nature’. Thus, the new treaty seems to better address the challenges and lacunas in UNCLOS.
Old Challenges
The new treaty builds on the ‘legacy’ of UNCLOS. However, it also includes principles that may pose challenges to accession, cooperation and compliance.
Firstly, the BBNJ treaty contains detailed provisions on equitable sharing of benefits and transfer of technology. For example, it provides for sharing of benefits arising from activities involving marine genetic resources, including sharing of financial gains; and, includes a specific part relating to capacity-building, including monetary contributions and transfer of technology (see e.g., here).
These two aspects—capacity-building and technology transfer—may build upon UNCLOS, but may also pose challenges for compliance just as in the Convention. On the one hand, some scholars argue that the provisions for capacity building and the transfer of marine technology will strongly influence the ability of individual States to implement the BBNJ treaty. On the other hand, these aspects were also the cause for delay in UNCLOS entry into force.
For example, Part XI and Annex III of the Convention contain the legal regime applicable to deep seabed mining. Many industrialised States opposed this regime, mostly due to the requirements for mandatory transfer of technology and the monetary contributions to the regime’s institutions (see e.g., Dingwall). Those states refused to ratify UNCLOS and delayed its entry into force. This stalemate was solved by a compromise in the form of the Agreement on the Implementation of Part XI of UNCLOS (1994 Agreement), which removed some of the opposed aspects such as subsidisation of the Enterprise, the organ through which the International Seabed Authority was supposed to carry out its functions including the mandatory transfer of technology.
This process, which essentially rendered the aspects of capacity-building and technology transfer non-existent in UNCLOS, can also occur with respect to the BBNJ. While the negotiations of the BBNJ treaty have not been published, and it is hard to determine the impact of this issue on the drafters, it seems that not enough consideration was given in the discourse on the treaty negotiations to this challenge.
Another challenge to state cooperation and compliance with the BBNJ, which is somewhat similar to UNCLOS, is the resources regulated under the new treaty. UNCLOS Part VII concerning the high seas addresses conservation and management of resources, but only with respect to living resources. Part XII generally obligates states to protect and preserve the marine environment, without defining geographical scope. However, Part XII does not refer to marine resources, and it simultaneously reiterates coastal States’ right to exploit their natural resources.
Similarly, the BBNJ, as its name suggests, regulates conservation and sustainable use of marine biological materials, meaning living organisms. It does not apply to non-living resources such as oil and gas in the international seabed and water column, which constitutes an important economic interest of states. The activities regulated in the BBNJ might conflict with states activities with respect to utilisation of non-living resources or other resources not covered by the high seas treaty, such as fisheries. Past experiences indicate that when a goal or an interest conflicts with economic interests of states, the latter prevails.
A third challenge facing the implementation of the new treaty, which also arose in the negotiation of UNCLOS, is the infringement on states’ rights and freedoms. One of the challenges during UNCLOS negotiations was the extension of the continental shelf beyond 200 nm, which essentially encroaches on the Area (the international seabed). The creation of the EEZ also infringed on states’ freedom on the high seas. To circumvent these issues UNCLOS Article 82 established a revenue-sharing mechanism with respect to the extended continental shelf, essentially offering monetary compensation in exchange to limiting the international seabed. In addition, the EEZ regime was narrowed to sovereign rights over resources, preserving other states’ rights and freedoms.
The new treaty may infringe on states’ freedom of the high seas and possible extended continental shelves. For example, establishing area-based management tools such as marine protected areas (MPAs), which may restrict access to and utilisation of areas on the high seas and the Areas, essentially impinge on the freedom of the high seas and states’ rights in the Area. However, in contrast to UNCLOS, the new treaty does not include compensation mechanisms or limitation that might reduce the infringement and promote compliance.
Lastly, the new treaty preserves the tension in UNCLOS between the Area and the extended continental shelf beyond 200 nm. The Area starts where the continental shelf ends, including the extended continental shelf where applicable. Thus, the scope of the Area (and the scope of the BBNJ which applies to the Area) cannot be determined until all relevant coastal States demarcate the outer limit of their continental shelves beyond 200 nm (see e.g., here). Given the long standing procedures within the CLCS (see submission table here), determining the scope of the Area might take considerable amount of time. Compliance with the BBNJ might affect areas that could be attributed to coastal States and thus encroach on their sovereign rights. This issue might pose a challenge for the new treaty in terms of cooperation and compliance, and therefore should be taken into consideration.
Conclusion
The BBNJ treaty is a treaty-making milestone in international law. It is unique in the sense that it regulates activities in the high sea per se, rather than activities of entities under national jurisdiction. In many aspects, the new treaty seems to address the lacunas in UNCLOS in order to create a better framework for environmental protection. However, the new treaty seems to also import aspects that in the past have proven to hinder cooperation and compliance.
While constructing and negotiating the new treaty, it is reasonable that the drafters formulated a regulatory arrangement which was as broad as possible. However, now—when the text of the treaty still has to undergo harmonisation—is the time to consider these challenges to promote state cooperation and compliance with the new treaty, and to ensure implementation and the actual protection of the marine environment.
Adv. Shani Friedman
Adv. Shani Friedman is currently a PhD candidate and a research fellow at the Faculty of Law, Hebrew University of Jerusalem and a Member of the Israeli Bar Association. Shani is also a research assistant and a teaching assistant, teaching courses in international law in the Faculty of Law and the assistant academic coordinator in the International Law Forum in the Faculty of Law, in the Hebrew University (ILF). Shani researches various topics within the field of the Law of the Sea, international institutions and the interaction between international law and international relations, including theoretical aspects.
shani.friedman@mail.huji.ac.il | Twitter, LinkedIn