A historic agreement was reached at the United Nations (“UN”) in New York on Saturday, March 4th, 2023 on the text of a new treaty for the conservation and sustainable use of biodiversity beyond national jurisdiction (“BBNJ”)—or to use the exact terms, on the conservation and sustainable use of the marine biological diversity of areas beyond national jurisdiction (“ABNJ”), which include the high seas and the Area (as defined in the UN Convention on the Law of the Sea (“UNCLOS”)).
This agreement is the culmination of talks that have spanned two decades, under the auspices of an ad hoc working group, followed by a preparatory committee, and then an intergovernmental conference, each established by the UN General Assembly to study and try to find global solutions to BBNJ issues. The issues at stake stem from the lack of environmental safeguards, under UNCLOS, with respect to the growing number of human activities conducted in international waters, and the related degrading health of the deep oceans. The new BBNJ treaty reflects an attempt by the international community to address these issues through the adoption of a set of new tools, including (i) a regime for the exploitation of marine genetic resources and the sharing of benefits derived therefrom, (ii) a requirement to conduct environmental impact assessments on planned activities that may lead to substantial pollution or harmful changes to the marine environment, (iii) a framework for the establishment of a network of area-based management tools and marine protected areas, and (iv) mechanisms for capacity-building and the transfer of marine technologies from developed to developing states. Each of these tools will be introduced in ABNJ after the BBNJ treaty is officially adopted and ratified by enough states—60—to enter into force. The treaty also creates new international bodies that will be in charge of overseeing its implementation, including a conference of parties, a secretariat, a scientific and technical body and an implementation and compliance committee.
The BBNJ treaty will significantly qualify and limit the principle of the freedom of the high seas, which dates back to 1609, when Hugo Grotius published Mare Liberum. The principle of the freedom of the high seas is currently firmly established under UNCLOS, and it has supported the growth of the maritime industry. The BBNJ treaty will have implications for all areas of the private sector that are active in international waters, including (among others) the shipping, fishing, deep-seabed mining and submarine cable sectors. It will also have implications for all areas of the private sector that use the marine genetic resources found in ABNJ, including (among others) the pharmaceutical and cosmetic sectors. These industries will need to work with the public sector, and the international bodies that will be created under the BBNJ treaty, to follow the new procedures and substantive requirements that will become applicable to their activities in international waters.
The stakes are high, and the treaty text reflects compromises that were negotiated at length, and often not reached until the final hours of the negotiations—in particular on marine genetic resources and decision-making questions. The BBNJ conference concluded with a 36-hour session of uninterrupted talks, from early on Friday to late on Saturday, during which all remaining issues were finally resolved under the leadership of its president Rena Lee, from Singapore. Despite some delegations’ complaints of sleep deprivation and physical and psychological impossibility to continue negotiating, Rena Lee pushed the conference to bring its work to completion. During consultations held behind closed doors, she helped states finally bridge longstanding differences, which often reflected the North-South divide. The conference ended with tears and a standing ovation as states realized the historic nature of the milestone.