Key rights and obligations
The BBNJ Agreement pertains to the conservation of marine biological diversity in areas beyond national jurisdiction. The five key rights and obligations imposed by the BBNJ Agreement, as currently published in draft version on the UN website dated 4 March 2023 (pending paragraph renumbering), are as follows:
- States must share the non-monetary and monetary benefits from the utilisation of marine genetic resources and digital sequence information. (See Article 11);
- ‘Developed States’ must make annual contributions to a ‘special fund’ established to fund capacity-building projects and to assist developing State Parties to implement the BBNJ Agreement. The agreement also establishes a Global Environment Facility trust fund for the same purpose. (See Articles 52(4), 11(5 bis) and 11(5 bis ante));
- States “shall” submit proposals regarding the establishment of area-based management tools, including marine protected areas, which shall include certain prescribed elements. These proposals will be reviewed by a newly established Scientific and Technical body and are subject to a stakeholder consultation process. On the basis of the resulting final proposal, the Conference of the Parties to the BBNJ Agreement shall decide on the “establishment of area-based management tools, including marine protected areas, and related measures.” (See Articles 17, 17bis, 18, and 19).
- States must ensure that an environmental impact assessment is conducted of planned activities in their jurisdiction or control that “may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction”. (See Article 22); and
- States must take measures to ensure that certain information in relation to the collection of the collection in situ of marine genetic resources of areas beyond national jurisdiction is notified to a newly established clearing-house mechanism. This clearing house mechanism is a centralized open-access platform, for such information-sharing purposes and to match capacity-building needs with available support. (See Articles 10 and 51).
The BBNJ Agreement does not allow States to make any reservations other than those reservations expressly provided for in the agreement. (See Article 63).
Background
The BBNJ Agreement concludes almost two decades of negotiations. It is the culmination of discussions that began in 2004 when the UN General Assembly constituted an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. Those discussions led the General Assembly, in 2017, to convene an Intergovernmental Conference to elaborate the text of an internationally legally binding instrument under the United Nations Convention on the Law of the Sea (“UNCLOS”) on the conservation and sustainable use of biodiversity. States finally adopted this BBNJ Agreement at the Resumed Session of the fifth intergovernmental conference to negotiate this agreement.
The provisions of the BBNJ Agreement do not prejudice the rights and obligations of States under UNCLOS. (See Article 4 (1)). Likewise, the BBNJ agreement is to be “applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, sub regional and sectoral bodies”. Examples of such relevant legal instruments are regional seas conventions that include areas beyond national jurisdiction under their geographical coverages, such as the Convention for the Protection of the Marine Environment of the North-East Atlantic (the Ospar Convention).
High praise
The international community has applauded the conclusion of the BBNJ United Nations Secretary-General, António Guterres, lauded the agreement as, “[…] a victory for multilateralism and for global efforts to counter the destructive trends facing ocean health, now and for generations to come.” In a similar vein, the president of the current session of the UN General Assembly, Mr Csaba Kőrösi, noted: “[t]his is a massive success for multilateralism. An example of the transformation our world needs and the people we serve demand.”
The European Commissioner for the Environment, Oceans and Fisheries, Virginijus Sinkevicius, called the BBNJ Agreement, “[a] historic moment for our Oceans.” The Swedish Minister for Foreign Affairs, Tobias Billström, considered it, “the most important international environmental deal since the [2015] Paris Agreement.”
While the Head of the African Group, and ambassador and Deputy Permanent Representative to the UN for Legal Affairs for Sierra Leone, Michael Imran Kanu, commented prior to the conclusion of the BBNJ Agreement that, “[t]he major point [in the final negotiation of the BBNJ Agreement] is that all monetary benefits will go into conservation and sustainable use, hence remediating the global biodiversity crisis created by the developed [S]tates with activities in the high seas.”
A first step on a long road
The BBNJ Agreement is a significant step towards the protection of maritime biodiversity in areas beyond the national jurisdictions. However, there remain immediate hurdles to overcome towards its effectiveness.
The agreement’s success will first depend on its ratification by States. The BBNJ Agreement does not come into effect, and will thus not be legally binding, until 120 days after the sixtieth ratification. States can, however, elect to apply it provisionally. Such ratification will also likely require new national rights and obligations for companies and other stakeholders whose activities pertain to the marine environment.
In addition, the BBNJ Agreement has deferred certain important issues to the Conference of the Parties, including: (i) the establishment of (and proposals for) area-based management tools, including marine protected areas, and related measures; (ii) the modalities for the sharing of monetary benefits from the utilisation of marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction; (iii) the specific modalities for the operation of the clearing-house mechanism; and (iv) the setting up of various institutional bodies such as the Access and Benefit Sharing Committee, the Scientific and Technical Body and the Capacity-Building and Transfer of Marine Technology Committee as well as the secretariat of the Conference of the Parties.
This development underscores the importance of States and resource extraction enterprises interested in the High Seas to obtain expert legal advice to support their activities there.
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