The adoption of the “BBNJ” Agreement: What is in the text and what are the next steps?

At 9.25 pm on Saturday 4 March 2023, the Member States of the United Nations agreed in New York on the text of a new treaty on biodiversity in international maritime areas, after almost twenty years of discussions – including four of formal negotiations and a final marathon of almost 36 hours of negotiations. The President of the Intergovernmental Conference, Rena Lee, announced to the applause of the delegates that the ship had finally “reached the shore”. What are the main issues surrounding this new agreement? What is its content? And why has this news been unanimously welcomed in the media as a “historic” and “decisive” achievement? UN Secretary-General Antonio Guterres reacted indeed immediately to the conclusion of the text by mentioning “a victory for multilateralism and for global efforts to counter the destructive trends facing ocean health, now and for generations to come”^[1].

1/ A historic moment for the protection of marine biodiversity

States began to question the need to supplement the provisions of UNCLOS in the early 2000s, in the UN General Assembly, in a context where massive biodiversity loss was already being denounced. The question raised was the following: is the inadequate protection of biodiversity on the high seas solely the result of insufficient implementation of their obligations by States, or are there “gaps” that can be filled by international law? An Informal Working Group, established in 2004 to consider the various options available to States, issued its conclusions in 2015, calling for the adoption of a new implementing agreement to UNCLOS. The General Assembly therefore convened a Preparatory Committee, which met between 2016 and 2018 to prepare for the Intergovernmental Conference, a formal negotiating forum between States, which was to meet four times between 2019 and 2021. The process accelerated when the idea of adopting a “legally binding implementing agreement” was endorsed by the General Assembly. However, the coronavirus pandemic delayed the process somewhat and an additional session was finally necessary, as the fourth session failed to reach consensus.

At the fifth session of the International Governmental Conference, held in August 2022, many points still crystallized disagreements between States, in particular concerning the status and modalities of the exploitation of marine genetic resources (MGR) – used for the development of pharmaceutical, cosmetic or other products – which was one of the thorniest issues until the end of the discussions. The positions of developed and developing States appeared, for a long time, hardly reconcilable. While the former defended a regime of free access and exploitation, the latter, not yet having the necessary technologies, demanded a stricter framework and a sharing of the benefits received from their exploitation similar to the “common heritage of mankind” regime that characterizes the Area and its mineral resources. A compromise between these two positions was finally reached. The new treaty will make it possible to regulate access to these resources (notification system) and to ensure that any benefits (monetary and non-monetary) derived from their exploitation and from the utilization of the digital sequence information on those resources are shared, being used to support the implementation of the Agreement. Enhanced transparency and sharing of research and development outcomes are part of this new regime. A special fund will also be created and the COP will have to consider further modalities for monetary benefit sharing. Developing countries will also benefit from capacity building and the transfer of marine technologies. The fact that States finally agreed on this point is remarkable: for some, it is almost a miracle! At the end of August, the IGC President took the initiative not to close but to adjourn this session, thus facilitating the resumption of discussions in February and their eventual success.

The compromise that has been reached seems a priori ambitious in the context of the current ecological emergency. In particular, two important tools for biodiversity protection are developed: marine protected areas (MPAs) and environmental impact assessments (EIAs). With regard to MPAs, it establishes a global mechanism that will allow States to propose, individually or collectively, their designation and make them enforceable against all States Parties – in line with the 30×30 target established in December at the COP15 on biodiversity. The text specifies the details of the content of the proposals, the associated conservation measures and the monitoring of their implementation. States are invited to consult and collaborate with all relevant stakeholders, including civil society and indigenous peoples. A Scientific and Technical body will assess the proposals and the Conference of the Parties to the treaty will decide to adopt or not the proposal, by consensus or by a ¾ majority vote^[2]. An “opt-out” possibility has however been included in the process, meaning that States can refuse, at the very end, to be linked to the conservation measures of the protected area – in very strict and specific conditions. Furthermore, the treaty sets out the modalities for the implementation of the EIA requirement for activities that take place in, or are likely to cause harm to, international maritime spaces. Indications are given as to the threshold above which they are required to be carried out, the obligation to publish them, their content and the notification and stakeholder consultation process. The Scientific and Technical body will be involved in the process, but the State initiating the project remains exclusively competent to decide whether or not to carry it out, recalling that the regime remains clearly state-centered^[3]. Strategic Environmental Assessments (SEA) are also provided for by the text.

The preamble recalls that States already have a general obligation under UNCLOS to protect and preserve the marine environment and that they must be held accountable for any breach of their obligations in this regard. As the IDDRI notes, “by imposing a legal obligation to ensure conservation and sustainable use, recognizing the inherent value of biodiversity, and calling for Parties to ‘act as stewards of the ocean’ the Agreement provides a strong basis and renewed impetus for the protection of high seas biodiversity”^[4]. The preamble also refers to the impacts of climate change on marine biodiversity and allows for a systemic interpretation of the agreement, with the overall objective of working to limit the erosion of biodiversity in these areas for the benefit of future generations.

2/ When and how will the new treaty apply?

The new “BBNJ” treaty was formally adopted on 19 June 2023, and needs now to be signed and ratified by States in order to enter into force (in principle 120 days after the deposit of the 60th instrument of ratification). Some States, such as the United States and Russia, were initially unconvinced of the need for a new treaty, so their participation remains particularly uncertain. This process could take from one to several years, depending on the context surrounding this ratification process. The Paris Agreement, for instance, entered into force less than one year after its adoption. Other challenges will appear: “assessing the capacities and needs of States; building up the institutional framework; and advancing the scientific knowledge needed to support effective decision-making”^[5]. Its provisions will then be progressively refined by the Conference of the Parties (COP) established according to the agreement, and its implementation will depend on the goodwill of States. Some are pleading for the creation of a special Preparatory Commission (PrepCom) to advance preparations for the first COP and establish interim working groups to develop the institutional and financial mechanisms^[6].

Next to the upcoming and central COP, a mechanism for the settlement of disputes, inspired by the one consecrated in Part XV of UNCLOS, adding specific dispositions regarding the possibility for the COP to request an advisory opinion to the International Tribunal for the Law of the Sea, is provided. The creation of a secretariat, a scientific and technical body, a capacity building committee and a compliance committee should contribute to organize and ensure, as well, the effective implementation of the new agreement. The modalities of functioning of those institutions will be fixed by the first COP, whose role will therefore be decisive; the need for strong institutions has been stressed by civil society organizations. As regards the sensitive issue of the financing mechanisms which will allow the Agreement to be effective in practice, the COP will also have to set the rate of contributions to the benefit-sharing fund as well as to determine the role of the Global Environment Facility in providing financial support.

3/ Uncertainties and potential difficulties

A lot of determining elements remain on States’ good faith and are dependent on their sovereignty as, for instance, the acceptance and surveillance of MPAs or the final decision-making regarding EIAs. However, one can regret that the treaty does not mention one of the main challenges affecting the effectiveness of the law of the sea, as regards the protection of the marine environment nowadays, along with the surveillance issues: the flag of convenience issue and the persistent difficulty to engage the international responsibility of flag States. Another complex question remains on the fact that to be effective the agreement needs to be universal: biodiversity erosion and climate change being global problems, a global action is necessary to avoid a unilateralism that could undermine the efforts of the international community.

While the main aim of the Treaty is therefore to promote cooperation and coordination in the context of marine biodiversity conservation, an important difficulty will be to ensure that it should not undermine existing global and regional instruments, frameworks and bodies having a mandate on BBNJ, in order to preserve the coherence of the rules applicable to these areas and for the sake of legal certainty. The agreement aims to complement the current legal framework, which is considered insufficient to ensure effective protection of biodiversity, by adding to it without regulating activities that are already regulated elsewhere. The COP will, to that end, conduct consultations and make recommendations with those instruments, frameworks and bodies, and at the same time the Parties will have to promote conservation and sustainable use of BBNJ when participating in the diverse other decision-making processes. The COP will thus have to determine if processes conducted in other forums are coherent and compatible with the new framework. For instance, the articulation between the new treaty and deep seabed mining^[7], or fisheries, which are both implicitly excluded from the text as they are already regulated by other international forums, may not be so obvious in practice, particularly with regard to the establishment of MPAs or EIAs. Therefore, an important question will remain on how this “not undermine principle” will practically apply.

The COP will also work on the recognition of conservation measures adopted by other international organizations, especially by regional seas organizations such as the North East Atlantic OSPAR Commission. However, this will not be without difficulties. The precedent of the collective arrangement driven by the OSPAR Commission shows the complexity of coordinating several regional or global instruments, frameworks and bodies. Indeed, only two organizations are, so far, part of this collective arrangement: the OSPAR Commission and the North East Fisheries Commission, although other organizations like the International Maritime Organization or the International Seabed Authority were also invited to participate, in order to articulate their actions with this regional organization in the context of the development of the first network of MPAs in the high seas in the North East Atlantic. Each organization having its own mandate, State Parties, geographical area and scope of application, it turned out extremely complex and sensitive to achieve such an advanced form of coordination.

Other areas related to the preservation of biodiversity are not directly taken into account in the new agreement, as they are also already covered by specific bodies of standards. This is the case for climate change, as well as for pollution of the marine environment. Even if the new Treaty participates to the defragmentation of maritime areas and activities and is very interesting in this respect, the approach remains necessarily fragmented, which does not make it possible to really take into account the globality, complexity and interweaving of the issues related to the protection of marine biodiversity, as the ocean is, for example, the guarantor of climate stability while being particularly affected by this global change (acidification, warming and rising sea levels, etc.).

Despite all the remaining imperfections and uncertainties, the step that has just been taken is decisive and constitutes a new starting point for biodiversity conservation.