The BBNJ Agreement: Links between the New and Existing Laws on Protecting Marine Biodiversity
By Nguyen Thanh Trung (CIL Research Fellow)
Published on 17 April 2023
4 March 2023 was a historic day for the international law of the sea. The United Nations International Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ), led by Ambassador Rena Lee of Singapore, agreed on the draft text of a new agreement under the United Nations Convention on the Law of the Sea 1982 (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the BBNJ Agreement). As of the time of writing, the Agreement has not been finalised. However, all brackets have been removed, and the negotiators have agreed that ‘there will be no reopening or discussion on substance’.
Once finalised and entered into force, the BBNJ Agreement will establish a co-operative framework for accessing and safeguarding biological diversity in the high seas, which covers nearly two-thirds of the ocean, and help address climate change, biodiversity loss and marine pollution. Keen observers have followed closely the genesis and procedural history of the Agreement (see here, here and here). This post will touch on some main features of the Agreement and highlight how this instrument complements UNCLOS and other international agreements in managing and protecting biological diversity of areas beyond national jurisdiction (ABNJ), which includes the high seas and the Area.
I. Something old
Like a monument, the BBNJ Agreement was not built overnight and on sand. Rather, its origin dates back to UNGA 69/292 (19 June 2015), where states decided to develop an international legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of ABNJ. To that end, the General Assembly established a Preparatory Committee, which held four sessions in 2016 and 2017, to consolidate ideas on the main issues of the Agreement. Building on the preparatory document, and by virtue of UNGA 72/249 (24 December 2017), the negotiators participated in six intergovernmental conference sessions (including one resumed session) from 2017 to 2023. The process took approximately 9 years, coincidentally similar to the time it took to negotiate the UNCLOS, which was presided over by another Singaporean, Ambassador Tommy Koh.
The language of the Agreement reminds one of UNCLOS and other international environmental agreements. Article 4 links this Agreement to UNCLOS by providing that ‘nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention’. Article 5 reiterates general principles that have been widely recognised by the international community in past decades: the polluter-pays principle, the precautionary approach (Principles 15 and 16 of the Rio Declaration 1992), the principle of the common heritage of mankind (Article 136 UNCLOS) and the obligation to prevent transboundary harm (International Law Commission’s Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities 2001). The core areas of the Agreement are not novel issues, but cover well-known areas such as management of marine genetic resources (MGRs), the use of area-based management tools (ABMTs), procedures to conduct environmental impact assessments (EIAs) and other capacity building and transfer of marine technology (CBTMT). These are topical issues that have been widely discussed in the literature and are now being crystallised into concrete rights and obligations.
II. Something new
More than an implementation agreement of the UNCLOS, the BBNJ Agreement has introduced innovative ideas and mechanisms that aim at strengthening the protection of biodiversity in ABNJ as well as striking a balance between the developing and developed worlds to consolidate consensus.
First, gathering economic benefits from the ocean is a consequence of the seaward approach under UNCLOS. Ironically, the Convention does not contain any specific provision that prescribes the benefit-sharing mechanism of MGRs in areas of the common. The Agreement has specified that the benefits arising from MGRs in ABNJ ‘shall be shared in a fair and equitable manner […] and contribute to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (Article 11). Notably, the Agreement has also envisioned a Committee that will oversee this process to ensure transparency with regard to both monetary and non-monetary benefits arising from this newly discovered wealth (Article 11bis).
Second, the right to reap benefits from the oceans must go hand-in-hand with the obligation to protect biodiversity and the sustainable use of resources. The negotiators have struck this balance by designing a mechanism for states to submit proposals to establish ABMTs, such as marine protected areas in the relevant area to ‘protect, preserve, restore and maintain biodiversity and ecosystems, including with a view to enhancing their productivity and health, and strengthen resilience to stressors, including those related to climate change, ocean acidification and marine pollution’ (Article 14 and Part III). Furthermore, Part IV of the Agreement sets out the obligation for the parties to conduct EIAs for planned activities in ABNJ that might potentially impact the marine environment. Aside from stipulating the general obligations, the Agreement has tailored detailed steps and procedural requirements for the parties to implement these obligations.
Third, accessing genetic resources in waters deep below the surface and subsequently processing these resources might be the exclusive playground for developed countries. The Agreement, thus, includes a section on CBTMT (Part V). The term ‘shall’ is repeated throughout this section to remind the parties that MGRs in ABNJ must be shared in a fair and equitable manner, and it is the legitimate right of developing and least developed countries to be part of the game. In realisation of these objectives, Article 46 and Annex II of the Agreement contain a non-exhaustive list of CBTMT initiatives, including sharing of knowledge and data, infrastructure development, strengthening technical expertise and collaboration and cooperation in marine science. The implementation of this Part will be placed under the monitoring and review of a CBTMT committee (Article 47), which will identify the needs and priorities of developing countries in terms of CBMTMT (through country’s reports) and recommend measures to enhance their implementation of the Agreement. Moreover, under Article 52, a ‘special fund’ will be established to support capacity-building initiatives under this Agreement, including the transfer of marine technology, and assist developing state parties in participating in projects on the conservation and sustainable use of marine biological diversity in ABNJ. These are aspects that have not been featured in other environmental treaties.
Fourth, the negotiators of the Agreement have included certain innovative designs in the institutional arrangements of the Agreement. The Conference of the Parties will not be another UN meeting to hear formal reports and consider budgetary issues but is also empowered to establish ABMTs (Article 19) and may also decide to request the International Tribunal for the Law of the Sea to give advisory opinions on legal questions concerning the implementation of the Agreement ‘as a matter of urgency’ (Article 48.6). A Scientific and Technical Body and other specialised committees, including a clearing house mechanism (Article 51) and an Implementation and Compliance Committee (Article 53 ter), are established to assist and monitor member states in performing the obligations and duties of the Agreement so that they are not empty promises. Remarkably, the negotiators have included gender balance and equality as one of the criteria in the appointment of members and decision-making in various organs of the Agreement – a timely response to the lack of women’s representation in international law and diplomacy today.
III. Something borrowed
The draft text of the Agreement reflects decades of legal developments in the law of the sea and international environmental law. Thus, it is only natural that many key terms and concepts in the Agreement are borrowed languages from other multilateral environment agreements.
In the use of terms (Article 1), the definition of MGRs combines the definition of ‘genetic material’ and ‘genetic resources’ found in the Convention on Biological Diversity (CBD). Similarly, the term ABMT is derived from the meaning of ‘protected area’ in the Convention, which refers to a ‘geographically defined area which is designated or regulated and managed to achieve specific conservation objectives’ (Article 2). The concept and procedural steps of conducting EIA in the Agreement are also borrowed from other international conventions, such as the London Dumping Convention (Articles 4 and 5, Annexes II and III), the CBD (Article 14) and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Article 4) as well as regional agreements, such as the Convention for the Protection of the Marine Environment and Coastal Areas of the South-East Pacific (Article 8), the Association of Southeast Asian Nations (ASEAN) Agreement on the Conservation of Nature and Natural Resources (Article 14), and the Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (Article 11).
This borrowing practice is essential to accumulate consensus among the negotiators and also to address fragmentation in the international legal regime, where similar rules are interpreted and defined differently in different bodies of law.
IV. Something…blue?
The past few years have been an exciting time for international environmental law lawyers. From the adoption of the WTO Fisheries Subsidies Agreement to the request for an advisory opinion on climate change before the ITLOS and now, at its crescendo, the conclusion of a new international agreement under UNCLOS to regulate the high seas. Though more time is needed for these stars to align, there are a few things that one can expect.
First, UNCLOS remains relevant in today’s era. As the Constitution for the Oceans, the Convention has remained the strong foundation for the international community to consolidate rules and regulations in the conservation and optimum utilization of ocean resources, protection and preservation of the marine environment from pollution and marine scientific research. After more than 40 years, the Convention has stood the test of time and become a living treaty, where new legal instruments are nourished and sprout to address pressing issues in the modern world.
Second, the conclusion of the BBNJ Agreement has marked the international community’s commitment to transitioning to the blue economy, where the use of ocean resources for economic growth and improvement of livelihood must be accompanied by the duty to preserve the health of the ocean ecosystem. As evident in the text, the Agreement will not only address the access and benefit sharing mechanism of MGRs in the high seas but also include tools to protect the ocean, such as the procedure to establish ABMTs and conduct EIAs, as well as build the capacity for developing countries to take part in this endeavour. The Agreement will be a useful tool for ASEAN countries to realise their leaders’ commitments in the ASEAN’s Declaration on the Blue Economy to foster sustainable and inclusive governance of oceans and seas in the region.
Finally, multilateralism is the right way to address global problems. After almost a decade of meticulous deliberation, the Agreement has received the blessing from the negotiators at the intergovernmental conference. The progress in bridging the gap between developed and developing nations is painstakingly slow and requires tremendous effort from all negotiators to arrive at a legally binding instrument to protect the high seas and biodiversity. The legal and diplomatic process is, nevertheless, necessary to have every nation on board and commit to the vow that the right to access ocean resources must come hand-in-hand with the obligations to protect the ocean for generations to come.