On 20 February 2023, the Fifth Session of the ‘Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, resumed. Also known as the ‘Biodiversity Beyond National Jurisdiction (‘BBNJ’) Treaty’, after over 15 years of discussions and five sessions of international negotiations, the agreement was very nearly finalised in August 2022. Governments will now gather at the United Nations in New York from 20 February to 3 March 2023 to negotiate, and hopefully finalise the details of this treaty.
The BBNJ Treaty
The BBNJ Treaty will cover “Areas beyond national jurisdiction” (“ABNJ”), defined in the draft text of the agreement as meaning “the high seas and the Area” (the “Area” is defined under Article 1(1) of the United Nations Convention on the Law of the Sea (“UNCLOS”) as “the seabed and ocean flood and subsoil thereof, beyond the limits of national jurisdiction.” The ‘high seas’, in international law, are parts of the ocean that do not form part of the territorial sea, exclusive economic zone, the internal waters of a country or the archipelagic waters of an archipelagic country. Accordingly, the high seas, and their associated resources, are not directly owned or regulated by any country.
On 24 December 2017, the United Nations General Assembly adopted by consensus Resolution 72/249, to convene an intergovernmental conference and undertake formal negotiations for a new legally binding instrument under UNCLOS for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Since 2018, States have gathered at the United Nations for five two-week negotiating sessions. The resumption of the fifth (and hopefully final) session will take place from 23 February to 10 March 2023.
The negotiations for the BBNJ Treaty and the current draft text (available here) address the following main areas:
- Conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, including genetic resources and the sharing of benefits
- Area-based management tools, including marine protected areas
- Environmental impact assessments
- Capacity building and the transfer of marine technology
Why is governance of the ‘high seas’ so important?
Because the ‘high seas’ lie outside of any country’s jurisdiction, they are considered and treated as a ‘global commons’. As a result, the high seas, which make up over two thirds of the ocean have been increasingly over-exploited by unsustainable and illegal fishing, as well as suffering from, among other things, the impacts of shipping traffic, noise pollution, plastic and chemical pollution. In addition, exploration contracts are in place for deep seabed mining, though activities have not commenced in ABNJ as rules and risk are still under revision by the International Seabed Authority.
There is a patchwork of rules that are not evenly applied to activities taking place in ABNJ and there is a need for uniformity of regulations and enforcement mechanisms.
As a recent example of why this treaty is critical, in December 2022, at the United Nations Biodiversity Summit (COP15), the historic Kunming-Montreal Global Biodiversity Framework was reached. This included a commitment to conserve 30% of our lands, waters and oceans by 2030 (30 x 30). Achieving 30 x 30 can only realistically be achieved if there is also effective protection of the high seas.
Therefore it is increasingly important that the BBNJ Treaty is agreed in the next few weeks and that it provides a strong legal framework for marine protected areas, environmental impact assessment and other vital conservation measures for the ocean.
The BBNJ Treaty, once concluded, will be a significant addition to the existing international ocean governance framework, providing a vital platform to improve integrated management of a changing ocean which is under increasing pressure, and support collaboration to sustain the marine environment.
To meet their obligations under the BBNJ Treaty, Parties to the BBNJ Treaty will need to develop legislative, administrative and policy measures, in cooperation with other States and stakeholders. They must ensure that sufficient national, regional and global institutional mechanisms are in place, taking into account capacity-building needs. In addition, partnerships and commitments of monetary and non-monetary support will be essential to advance science, knowledge and action.
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