The Signing Ceremony Begins
How the New BBNJ Agreement is Set to Transform Interactions in Areas Beyond National Jurisdiction
In March 2023, the treaty text of the new Treaty on Biodiversity in Areas Beyond National Jurisdiction (‘the BBNJ Agreement’) was approved at the United Nations in New York, marking the end of almost twenty years since the start of discussions. The BBNJ Agreement is an Implementing Agreement to the UN Convention on the Law of the Sea (‘UNCLOS’) and has been opened for signature on the 20th of September 2023. The Agreement will enter into force after the deposit of the 60th instrument of ratification.
Across the four key elements of the BBNJ Agreement ‘package’ (Marine Genetic Resources, Area-Based Management Tools Environmental Impact Assessment, and Capacity-Building), ambitious provisions will spark reflections on new modes of interactions across traditional public international law. The BBNJ Agreement provides new contours to global ocean politics, reflecting societal and political transformations in ocean governance. The BBNJ Agreement provides for new conceptual, regulatory, and procedural interactions under and through UNCLOS. These innovations include the new concept of marine biological diversity, which could bridge the gap between marine living resources and genetic resources in the high seas. Additionally, it allows non-parties of UNCLOS to join the BBNJ Agreement without having to join UNCLOS.
UNCLOS adopted a sector management and species-based approach to areas beyond national jurisdiction (ABNJ), dividing activities, such as fisheries, shipping, and deep seabed mining, into separated and (often) disconnected legal frameworks. As a result, these ‘fractions’ in the legal framework made networking interactions between governance actors and institutions in the ABNJ more difficult for public participation in law-making and decision-making processes. Indigenous peoples, local communities, and civil society are calling for more participatory rights and an active role in environment management plans, the adoption of a science-based approach to protected areas and impact assessment requirements, and more equitable access to genetic resources and benefit-sharing. I want to focus on two primary regime interactions in the BBNJ Agreement: 1) between international organisations and 2) non-state actors.
Interactions between International Organisations (IOs)
Recent empirical studies suggest that over 52 IOs are involved in different aspects of the BBNJ Agreement, and states referred to 38 IOs in 39 provisions throughout the five Intergovernmental Conferences between 2018 and2022. One way the BBNJ Agreement proposes to change interactions is by standardising procedures at the international level. An example of an ‘internationalisation’ approach is Article 23 on Environmental Impact Assessments . This article stipulates exceptional circumstances under which, in the absence of monitoring or review mechanisms from other governance institutions, procedures are channelled through the ‘clearing-house mechanism’ within the BBNJ’s institutional structure. A similar example is Article 22 (2), which obliges states conducting activities within national jurisdiction that “may cause substantial pollution of or significant and harmful changes to the marine environment in ABNJ” to ensure a series of procedural obligations under the BBNJ Agreement, including sharing any relevant information, monitoring and publishing monitoring reports. The question then is how will the BBNJ institutional setting interact with other institutions that already apply their standards for Marine Protected Areas or Environmental Impact Assessments in ABNJ, including regional organisations, such as the Convention for the Protection of the Marine Environment of the North-Atlantic East (OSPAR), with 13 approved Marine Protected Areas in ABNJ.
The BBNJ Agreement adopts a comprehensive approach to certain procedural and substantive obligations while simultaneously acknowledging regional and institutional competence limitations through the use of ‘rules of reference’, such as the provision in Article 4, which stipulates a duty “not to undermine”. Scholarly debate persists regarding whether the BBNJ Agreement adopts a regional, hybrid, or global approach to ocean governance, and general support for a holistic approach to the four elements of the package and a robust institutional setting. The precise meaning of the obligation “not to undermine” and whether it will sustain its global approach or take a ‘narrow interpretation’ remains unclear. In this sense, previous cross-regime interactions between the Convention on International Trade in Endangered Species (CITES) and other biodiversity-related conventions in imposing trade restrictions regarding vulnerable or endangered species (Res Conf. 9.24 (Rev. CoP17)) could be of assistance to the BBNJ Secretariat.
Fostering cross-regime interaction in implementing the BBNJ Agreement will require reconciling it with other treaties that, including with those where not all state parties overlap (See Article 4(2),(3)). This is currently manifesting, to some extent, within the International Seabed Authority (ISA), which has been identified as having a high likelihood of institutional overlap with the BBNJ Agreement. During the negotiations of the ISA Mining Code at the last ISA meeting in July 2023 in Kingston, member states frequently invoked the “BBNJ Agreement” or the “High Seas Treaty”, thereby highlighting their potential areas of overlap (see here and here). The competence of the ISA is confined to mineral resources in the Area (Article 157, UNCLOS), and it does not possess competence over genetic or living resources in the deep seabed.
Interactions between Non-State Actors
The BBNJ Agreement proposes to change interaction in international law by including non-state actors in the decision-making processes and granting them institutional advisory functions. During the negotiations leading to the BBNJ Agreement, non-state actors played a pivotal role in shaping numerous provisions related to the conservation of marine biodiversity which is reflected in the final version of the treaty text. For instance, the term ‘civil society’ is mentioned seven times in the treaty, indigenous peoples 33 times, the private sector or entities seven times, and local communities 31 times. Indigenous peoples and local communities are mentioned, for example, in Article 5 (i) and 10 bis, concerning the use of relevant traditional knowledge associated with Marine Genetic Resources in areas beyond national jurisdiction. The latter also acknowledges the rights of indigenous and local communities to free, prior and informed consent or approval in decision-making processes relating to Marine Genetic Resources.
Cooperation with scientists and scientific institutions is welcomed by Article 11 on fair and equitable sharing of benefits, recognising the importance of technical and scientific cooperation with developing countries. The creation of a Scientific and Technical Body (STB) also proposes to enhance scientific cooperation and take direct advice when appropriate from scientists and experts, as may be required (Article 49 (3)). The STB will create a permanent “roster” of experts to assist a diverse range of activities, including “to conduct and evaluate screenings and environmental impact assessments for a planned activity under their jurisdiction or control. (Article 30 (3)).” In fact, Article 49 (2) mentions the need to account for multidisciplinary expertise that includes traditional knowledge of Indigenous Peoples and local communities, gender balance, and equitable geographical representation.
It is still unclear whether this body of experts will be assigned to a specific and new scientific body under the BBNJ institutional structure, such as the Intergovernmental Panel on Climate Change (IPCC), and whether they will interact with the BBNJ Secretariat and other institutional bodies as a decision-making or advisory body. Proposals for Area-Based Management Tools, such as Marine Protected Areas, will undergo a consultation process that includes civil society, the scientific community, the private sector, Indigenous Peoples and local communities, as set out in this Part (Article 17).
The BBNJ Agreement is a traditional treaty grounded in the consent of states, and states are still the masters of this ship. However, to achieve the purposes and objectives of the BBNJ Agreement, states must share the helm with non-state actors who can actively contribute to protecting and conserving marine biodiversity. The BBNJ Agreement acknowledges an emerging trend in the negotiations of environmental treaty bodies to incorporate scientific inputs into decision-making processes, taking decisions following emerging principles and approaches of international law, such as the precautionary principle, turning interactions more dynamic and up-to-date with scientific developments. It promises to render the oceans in ABNJ more visible and culturally accessible, or in Rozwadowski’s words, a ‘human ocean,’ acknowledging millennia-old traditional knowledge on the vast expanse of the world ocean.