On 17 January 2026, the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, commonly known as the BBNJ Agreement, has entered into force. The BBNJ Agreement was concluded in September 2023 as the third implementing agreement under the 1982 UN Convention on the Law of the Sea (“UNCLOS”).
The BBNJ Agreement covers a variety of activities carried out by States or entities under their “jurisdiction or control” in areas beyond national jurisdiction. These encompass maritime areas beyond the Exclusive Economic Zone and the outer limits of the continental shelf, and thus the vast majority of the world’s oceans. The treaty introduces a new regulatory and governance framework for four substantive areas: (i) marine genetic resources; (ii) area-based management tools to protect and conserve marine biodiversity, including marine protected areas; (iii) environmental impact assessments; and (iv) capacity-building and the transfer of marine technology. Excluded from the treaty are activities of “any warship, military aircraft or naval auxiliary” and activities of vessels on government non-commercial service (save in respect of marine genetic resources). The treaty also establishes new governance institutions, including a Conference of the Parties (“COP”), a Scientific and Technical Body, a Secretariat, a Clearing-House Mechanism, an Implementation and Compliance Committee, an Access and Benefit-Sharing Committee, and a Capacity-Building and Transfer of Marine Technology Committee.
Marine Genetic Resources. The Clearing-House Mechanism will facilitate co-ordination and information-sharing among States Parties, while the access and benefit-sharing committee will oversee the benefit-sharing obligation. States Parties must, inter alia: (i) notify the Clearing-House Mechanism of the start of their activities; (ii) keep repositories and databases of information about harvested marine genetic resources; and (iii) share the resulting benefits (both monetary and non-monetary) fairly and equitably. Fishing and “fishing-related activities” are excluded, however. The Access and Benefit-Sharing Committee will establish guidelines and ensure transparency of harvesting activities by reporting on those activities to the COP.
Area-Based Management Tools. States Parties may submit individually or collectively proposals for establishing area-based management tools, including marine protected areas. Such proposals should be based on the best available science. States Parties are also required to consult, as appropriate, with relevant stakeholders (comprising States, international bodies, civil society, the scientific community, as well as indigenous and local communities). The COP will decide on area-based management tools after, inter alia, receiving recommendations from the Scientific and Technical Body.
The COP’s decisions, in this regard, become final for all States Parties within 120 days, except for those that objected in writing within that time. An objection is limited to one of three grounds: (i) the decision is inconsistent with the treaty or the objector’s rights under UNCLOS; (ii) the decision unjustifiably discriminates against that State; or (iii) the State cannot practically comply with the decision at the time, despite making all reasonable efforts to do so. At the same time, the objector must: (i) adopt alternative measures or approaches of equivalent effect, to the extent practicable; (ii) not undermine the decision’s effectiveness where the measures are not essential to the exercise of its rights. An objection is valid for three years, at which point it is renewed, and the objector’s conduct is subject to transparency obligations.
Environmental Impact Assessments. States Parties are required to conduct an environmental impact assessment (“EIA”) for each activity under their jurisdiction or control that “may cause substantial pollution or significant and harmful changes to the marine environment”. As a threshold matter, a State Party must conduct screening when planned activities will have “more than a minor or transitory effect” or when the effects are “unknown or poorly understood”. The State must make its determination in that regard public. The scope of an EIA extends beyond traditional environmental impacts; it includes “associated impacts, such as economic, social, cultural and human health”, as well as potential cumulative impacts. It must also take into account the best available science. A State Party must also identify and analyse measures to “prevent, mitigate and manage potential adverse effects of the planned activities”.
As regards transparency, (i) planned activities must be notified through the Clearing-House Mechanism and the Secretariat; (ii) a State Party must consult with affected stakeholders; and (ii) EIA reports will be made public and considered by the Scientific and Technical Body. While it is ultimately for the State Party to decide whether to proceed with the planned activity, if it does proceed, the State Party must give periodic reports to the Clearing-House Mechanism and the Scientific and Technical Body (which can give recommendations).
Capacity-Building and the Transfer of Marine Technology. States Parties are required to co-operate in order to assist developing States Parties, in particular, to achieve the treaty’s objectives. Modalities for doing so include the transfer of marine technology, data sharing, dissemination of information, development of infrastructure, and human and financial management resources. The Capacity-Building and Transfer of Marine Technology Committee will monitor the implementation of this obligation and may issue recommendations for follow-up activities.
Financial Mechanism. A financial and funding mechanism will provide three types of funds for developing States: (i) a voluntary trust fund, established by the COP, to facilitate attendance at annual COP meetings; (ii) a special fund, funded from contributions and payments under the treaty; and (iii) a Global Environmental Facility trust fund for capacity-building projects, conservation programmes by indigenous peoples, and implementation of the treaty.
Decisions of the COP. By default, the COP’s decisions are by consensus. In the event of deadlock, “questions of substance shall be adopted by a two-thirds majority of the Parties present and voting”, while “decisions on questions of procedure shall be adopted by a majority of the Parties present and voting”.
Dispute Settlement and Advisory Opinions. The provisions of Part XV of UNCLOS are imported into the treaty, which includes declarations by States under Article 287 of UNCLOS (on dispute settlement means of their choice) and optional declarations under Article 298 of UNCLOS. However, certain types of disputes are excluded. In particular, “nothing in this Agreement shall be relied upon as a basis for asserting or denying any claims to sovereignty, sovereign rights or jurisdiction over land or maritime areas, including in respect of any disputes relating thereto”. In a new development, disputes of a “technical nature” may be submitted to an ad hoc expert panel. Finally, the COP may request an advisory opinion from the International Tribunal for the Law of the Sea on whether “a proposal” before the COP “on any matter within its competence” conforms with the treaty.
The text of the BBNJ Agreement is here.
The list of parties to the BBNJ Agreement is here.
The text of UNCLOS is here.
Fietta LLP’s previous PIL Update on the BBNJ Agreement is here.