On 4 March 2023, at an inter-governmental conference in the United Nations’ headquarters in New York, delegates agreed the text of a legally-binding instrument under the United Nations Convention on the Law of Sea (“UNCLOS”) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the “BBNJ Agreement” or “Treaty”). The BBNJ Agreement marks the culmination of nearly two decades of preparatory work and is the third implementing agreement under UNCLOS.
The objective of the BBNJ Agreement is “to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term” through “effective implementation” of UNCLOS and “further international cooperation and coordination”. Parties to the Treaty can be States or regional economic integration organisations.
The BBNJ Agreement establishes specific mechanisms and processes for activities in the High Seas, as well the seabed, ocean floor and subsoil (the “Area”). The Treaty’s provisions cover four main subjects: (i) marine genetic resources, including the fair and equitable sharing of benefits; (ii) measures such as area-based management tools, including marine protected areas; (iii) environmental impact assessments; and (iv) capacity-building and the transfer of marine technology.
The BBNJ Agreement also incorporates a number of “general principles and approaches” for activities in the High Seas and the Area – in particular, the polluter-pays principle, the precautionary principle/approach, an ecosystem approach, and an integrated approach to ocean management. Parties are required to cooperate to achieve the Treaty’s objectives, including “through strengthening and enhancing cooperation with and promoting cooperation among relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies”.
In order to operationalise the BBNJ Agreement, a number of institutions were established, which include: (i) a Conference of the Parties (the “COP”); (ii) a Scientific and Technical Body; (iii) a Secretariat; (iv) an Implementation and Compliance Committee; and (v) a Clearing-House Mechanism, which serves as a centralised platform enabling Parties to access, provide and disseminate information regarding their activities. In the event of “a natural phenomenon or human-caused disaster”, the COP “shall take decisions to adopt measures” on an “emergency basis, if necessary”.
The dispute resolution provisions of Part XV of UNCLOS apply to the BBNJ Agreement, unless a Party accepts another procedure. However, where a dispute “concerns a matter of a technical nature”, the Parties may refer the dispute to “an ad hoc expert panel”.
The BBNJ Agreement will enter into force 120 days after the sixtieth instrument of ratification, approval, acceptance or accession.
- The text of the BBNJ Agreement, pending final paragraph renumbering, is here