On 17 January, a new agreement on the conservation and use of marine biodiversity enters into force. The agreement has attracted much international attention with claims that it will revolutionize ocean management. Is this true? And what is the agreement about?
By Alf Håkon Hoel, Professor, Norwegian College of Fisheries Science and Center for Geopolitics- UiT The Arctic University of Norway
On 17 January, a new agreement on the conservation and use of marine biodiversity enters into force. An implementation agreement under the Law of the Sea Convention (UNCLOS), the agreement applies to areas beyond national jurisdiction, i.e., in the High Seas beyond the 200 nautical mile exclusive economic zones and the deep seabed beyond the continental shelves. The agreement has attracted much international attention with claims that it will revolutionize ocean management. Is this true? And what is the agreement about?
Background
In the early 2000s, developing countries found themselves left behind in the race for marine genetic resources, which require significant technological investment. At the same time, some Western countries sought stricter rules for ocean conservation. These two groups found common ground in the demand for a new, international agreement to address these issues, supplementing the existing global oceans governance framework. A working group was therefore established under the UN General Assembly to discuss these issues. In 2011, the group agreed that further discussions would cover four themes: marine genetic resources, assistance to developing countries, area-based management tools, and environmental impact assessments. In 2017, the UN General Assembly mandated negotiations on an agreement. The talks took place from 2018 to 2023 when the agreement was adopted.
The final agreement is a package deal comprising the four themes mentioned above. Due to major disagreements and time constraints, the agreement adopted in June 2023 contained unfinished business, and further talks are ongoing to resolve issues related to, among other things, financing, procedural rules for the many bodies under the agreement, and questions regarding the understanding of certain rules. A central issue is what the Scientific and Technical Committee should look like – the agreement’s four themes target different scientific areas, which require very different sets of expertise.
Entry into force
An important point about the agreement is that it is an implementing agreement under the Convention on the Law of the Sea. Such implementing agreements already exist for deep-sea minerals (1994) and fisheries (1995). The implementing agreements are intended to build on and supplement the rules in the Convention, thereby consolidating and deepening the global law of the sea framework. This is also a key point of the BBNJ Agreement – it is a further development of the existing law of the sea regime.
As of now, some 80 states have joined the agreement. Key maritime nations such as the USA and Russia will not join. This is not surprising given the current US stance on international cooperation, and Russia has long been critical of the project.
Also, the fact that an agreement enters into force does not mean that it will have an immediate effect. The implementation of such agreements is a long-term and ongoing process. For example, the UN Agreement on Fisheries entered into force six years after its adoption, while implementation work continues to this day and will continue in the future. This involves, among other things, establishing national regulations to enforce the agreement’s rules.
Implications for ocean management
In debates surrounding the negotiation of the BBNJ Agreement, many believed it would have significant implications for the management of the world’s oceans. This is not impossible, but it will take a long time. Experience with implementing the Convention on the Law of the Sea and the other two implementing agreements shows that it takes decades to translate words on paper into practical management and to achieve tangible results. Also, the BBNJ agreement does not apply to the waters and seabed under national jurisdiction, where most marine economic activity takes place. Only about 5% of global marine fisheries occur in the High Seas.
There are also provisions in the BBNJ Agreement that require work under this agreement not to undermine work under other agreements. Both for seabed minerals, shipping, and fisheries, there are well-established bodies and rules, including for the High Seas. The International Seabed Authority is responsible for the management of the development of mineral resources on the deep seabed, the International Maritime Organization for shipping, while regional fisheries management organizations look after fisheries. Mineral extraction on the continental shelf of states is the responsibility of the individual state to manage. In the short term, therefore, the BBNJ Agreement is unlikely to entail major changes to existing ocean governance. In the near term, its most important effect is the expansion of the UNCLOS-based legal framework for the ocean