EGA Five Facts to Know: Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ)

Today, about 600 million people worldwide rely on fisheries and aquaculture for their economic livelihoods. But oceans are losing biodiversity at an alarming rate, especially in the two-thirds of ocean areas that are beyond the remit of national jurisdiction. Without a legally binding treaty to govern the conservation and sustainable use in these areas, marine biodiversity and the maritime economy are under threat from climate change, pollution, over-fishing and acidification.

A “treaty of the high seas” has been in negotiation for two decades, but finally, on March 4, was adopted at the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) under the UN Convention on the Law of the Sea (UNCLOS). The new legally binding instrument will provide guidelines for high sea economic and scientific activities (see Fact #3 below) and will also have important implications for businesses operating in these areas, including disclosure requirements and compensatory payments (Fact #4). Here are five facts to know about the BBNJ:

1. A Fragmented Legal Framework Left Marine Biodiversity at Risk

A fragmented puzzle of agreements and organizations have governed different aspects of oceans management. In 1994, the UN Convention on the Law of the Sea (UNCLOS) entered into force, establishing a global governance and legal framework for the use of the ocean, its resources, and the protection of the marine and coastal environment. The fifth session of the UN Environment Assembly (UNEA-5) in March 2022 endorsed a historic resolution to end plastic pollution and prevent micro-plastics from entering marine eco-systems. And December 2022 produced the Global Biodiversity Framework, adopted by 200 parties to the Convention on Biological Diversity (CBD), under which at least 30% of the world’s coastal areas and oceans are to be protected by 2030. Specific agreements also cover a number of ocean-related activities, including fish stocks and fisheries subsidies (UNCLOS, WTO) and deep-sea mining (International Seabed Authority).

But the global community has been slow to adopt measures to protect marine biodiversity in areas beyond national jurisdiction. Finally, after two decades of negotiation, the BBNJ treaty is an international legally binding instrument that can address critical governance gaps, allowing for the implementation of a network of high seas marine protected areas.

2. The BBNJ Treaty Addresses Previously Unregulated Issues

The new BBNJ treaty provides a strong policy framework to reverse the damages to oceans and to ensure the long-term sustainability of ocean ecosystems. It goes beyond already regulated activities, such as fish stocks and deep-sea mining, and will provide guidelines for high sea economic and scientific activities. Specifically, the treaty will:

  • Address the exploitation of marine genetic resources (MGRs) and, similar to the CBD framework, includes issues related to access and benefit sharing (ABS)
  • Establish area-based management tools (ABMTs), which would allow for the establishment of marine protected areas
  • Develop procedures for environmental impact assessments (EIAs)
  • Provide for capacity building and transfer of marine technology.

3. Treaty Provisions are Based on Important Guiding Principles

Negotiators worked from a set of principles similar to other environmental agreements and outlined in Article 5 of the treaty that it will be based on the following principles, among others:

  • The “polluter pays” principle
  • An integrated ecosystem approach
  • The use of best available science
  • Non-transfer of damage or hazards from one area to another and the non-transformation of one type of pollution into another.

The set of principles builds on existing environmental legislation. Negotiators had high ambitions for the treaty and sought to include as many principles as possible to add to its significance, including principles on equitable sharing of benefits.

4. Challenges Will Emerge for Businesses Around Disclosure Requirements

Under the treaty, high sea activities – including scientific expeditions and economic projects – will have to be checked against environmental and biodiversity risks. Financial returns that result from deep-sea research would trigger compensatory payments to developing countries. This would particularly apply to the use of genetic material from deep-sea living organisms that may lead to medical applications. Further regulations affecting deep sea mining are due to be discussed at the 28th session of the International Seabed Authority in Jamaica in March 2023. Facing increased regulation, businesses will have to be prepared for challenges around disclosure requirements. Opportunities may also emerge around oceanscape investment, with the BBNJ planning a special fund blending annual state and additional voluntary private sector contributions.

5. The Treaty Requires Ratification by 60 States to Enter Into Force

The next step is for countries to formally adopt the BBNJ treaty. The number of ratifications needed for the treaty to enter into force was agreed at 60 parties. Traditionally, such ratification can take a few years, but already the EU seems ready to ratify with no delay and the US – though not a party to UNCLOS – may also be willing to join. The parties to the BBNJ also decided on the establishment of a Conference of the Parties (COP) to be convened by the UN Secretary-General, which will further develop rules and modalities of implementing the treaty.