23 March 2023

A New York Moment for the Oceans to join the Paris Moment for the Climate?

‘The ship has reached the shore!’ With these emphatic words, Conference President Rena Lee announced the successful conclusion of negotiations on a binding Agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction on Saturday, 4th of March 2023. The so-called BBNJ agreement has been praised across the board, and described as the ‘New York Moment’ for the oceans, to join the ‘Paris Moment’ for the climate. To a certain extent, this might only be a symptom of the wider obsession with turns and moments. Nevertheless, a comparison of the two supposed moments seems opportune and might help to situate the new BBNJ agreement.

The Paris Agreement (PA) was considered to be such a moment, not just because it revived hopes that the world’s climate would receive sufficient and timely protection. More importantly, it constituted a significant paradigm shift in international environmental law, institutionally as well as substantively. The current draft of the BBNJ contains a paradigm shift of comparable significance for the law of the sea in at least three respects. First, the agreement shifts its regulatory approach to the high seas from centering around the freedom of the seas towards conservation and sustainable use (1). Secondly, it achieves a substantive and institutional rapprochement between the law of the sea and other fields of international environmental law by recognizing existing interdependencies and bridging significant gaps (2). Finally, it stipulates new, more authoritative instruments of environmental protection largely absent from other multilateral environmental agreements (MEA) (3). Together, these three elements represent a paradigm shift not only under the law of the sea, but for MEA’s as a whole.

The BBNJ and the high seas

The BBNJ agreement applies to ‘areas beyond national jurisdiction’. These include the seas beyond exclusive economic zones, and those not included in the territorial sea or in the internal waters of a State, or the archipelagic waters of an archipelagic State (Art 86 UNCLOS), as well as the corresponding areas of seabed and ocean floor, including the subsoil (‘the Area’, Art. 1.1 (1) UNCLOS). Their importance for earth’s ecosystems cannot be overstated: they cover 40 percent of the surface of our planet, embrace 64 percent of the surface of the oceans and comprise nearly 95 percent of its volume.

UNCLOS contains a regime for the high seas that was built around the principle of the freedom of the seas (Article 87 UNCLOS). It states that the high seas are open to all states and free of sovereignty claims. This principle specifically allows states freely to engage, inter alia, in fishing and scientific research in the high seas. In the Grotian tradition, this was premised on the idea of the ocean as an unlimited, ‘infinite,’ resource. Even if this freedom is not entirely unrestricted– already the negotiations on the whaling regime under the League of Nations were marked by the growing awareness of the finiteness of ocean resources – an underlying narrative of freedom of exploitation of natural resources persists.

Several restrictions on the freedom of high seas are rooted in environmental concerns. Indeed, UNCLOS can and must be considered as an important piece of international environmental law. It represents the first comprehensive codification of international law on the protection and preservation of the marine environment. Even before the BBNJ agreement, it provided some environmental protection for the areas beyond national jurisdiction, for example, through the high seas’ regime on management and conservation of marine living resources (Articles 116-120 UNCLOS) and the general principles of Part XII of the Convention (‘Protection and Preservation of the Marine Environment’). Additional limitations on the freedom of the high seas have developed over time, some under UNCLOS, others under other treaties such as those establishing regional fisheries management regimes (for a more detailed account see, e.g,. here).

Nevertheless, UNCLOS environmental success was limited. Many of its provisions have proven to be relatively vague and weak and essentially rely on self-regulation. This, coupled with the fact that a plethora of institutions are involved in different aspects of oceans governance, meant that environmental concerns have not been adequately addressed despite the increasing efforts of international courts and tribunals to supplement UNCLOS with principles of customary international law and other international legal instruments (see, e.g., here, here and here). These inadequacies have been apparent for quite some time now. In fact, negotiations on a new regulatory instrument date back to 2004 when the UNGA acknowledged the increasing threats and vulnerabilities of marine biodiversity in areas beyond national jurisdictions. This, in turn, led to the establishment of an Ad Hoc Open-Ended Informal Working Group in 2006, before the UNGA adopted Resolution 69/292 calling for the development of an international legally binding instrument under UNCLOS.

The new BBNJ Agreement’s approach differs quite remarkably from UNCLOS’ previous reasoning as it seems to depart from the centrality of the principle of freedom of high seas. The principle is only mentioned in third place in the article referring to general principles, and only after the common heritage of mankind principle. But much more than that: The BBNJ agreement aims effectively and comprehensively to regulate all activities with respect to marine genetic resources in areas beyond national jurisdiction. Moreover, it contains a procedure for the conference of the parties to establish Area-Based Management Tools, including Marine Protected Areas, by majority decision (but more on that below).

A first paradigm shift that this new draft agreement therefore seems to perform is one from the centrality of freedom of the seas towards conservation and sustainable use.

A rapprochement between UNCLOS and (other areas of) international environmental law

Both international environmental law and the law of the sea are heavily impacted by the North-South divide. Boysen describes international environmental law as Dekolonisierungsfolgenrecht; that is to say, as a law negotiating the process of decolonization. This arguably also describes the law of the sea, which has historically been a conscious scene of postcolonial renegotiation. However, in contrast to other fields of international environmental law which have been the site of more recent efforts in postcolonial renegotiation, the law of the sea has lagged behind. Not least because its treaty text stems from 1982, both its vocabulary and narrative as well as its regulatory approach have remained relatively stagnant.

With the new BBNJ agreement, however, the law of the sea regime catches up. For one, the agreement eschews the rigidity of the well-established distinction between developed and developing states. While this has formed the bedrock of many multilateral agreements, it has increasingly attracted criticism for failing to represent the multi-faceted reality of an international system comprised of States at many different levels of development and on different development trajectories. Instead, the BBNJ agreement picks up on more recent differentiations made in MEA Conference of the Parties (COP) decisions. When mentioning developing states, the agreement explicitly differentiates between ‘the least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States, archipelagic States and developing middle-income countries’. Of course, it remains to be seen whether this constitutes a substantive shift or merely a performative act. A second example concerns the central place awarded to Indigenous Peoples and traditional communities, and the explicit reliance on and protection given by the treaty to their traditional knowledge. The latter is, for example, to be included – upon free, prior and informed consent by the respective communities – in proposals for the establishment of marine protected areas in so far as they are relevant (Article 17.3).

Beyond these two examples the BBNJ agreement is marked by efforts to bridge the North-South divide. Thus, fair and equitable sharing of benefits are at the centre of the part of the agreement dedicated to marine genetic resources. Nevertheless, here again concerns remain to what extent these mechanisms actually benefit countries from the Global South. Moreover, the agreement establishes a range of funds as part of its financial mechanism intended to assist developing countries in implementing the agreement through capacity-building and the transfer of marine technology (Article 52).

Aside from these efforts, the BBNJ agreement achieves another and maybe more spectacular, rapprochement to other fields of international environmental law: it introduces the institutional structure of multilateral environmental agreements to the law of the sea. This encompasses the creation of institutions familiar to MEA’s such as the Conference of the Parties (Article 48) and the Secretariat (Article 50) as well as a Scientific and Technical Body (Article 48). The hope here is that the adaptation of the institutional framework to that of other MEA’s will improve the regime’s capacity to comprehensively respond to ever-evolving realities.

Of particular interest here, I believe, are two institutional developments: First, the creation of a number of funds under the agreement’s financial mechanism, including a trust fund under the Global Environment Facility, which operates funds for several environmental conventions. This underlines the institutional integration of the law of the sea into the broader landscape of international environmental law. Secondly, it is striking that the BBJN agreement adopts a ‘facilitative’, ‘non-adversarial and non-punitive’ compliance mechanism that in its wording closely resembles the one established by Article 15 of the PA, by creating an Implementation and Compliance Committee (Article 53ter; but facilitative compliance, of course, has been around for much longer than the PA). This serves to shift the centre of gravity of the law of the sea regime by adopting a cooperative compliance strategy as opposed to one of hard enforcement.

The BBNJ’s incorporation of remedies and solutions that other MEAs have been looking for is further evidence of the growing intertwinement between the law of the sea and other areas of international environmental regulation. The most obvious example is the Kunming-Montreal Global Biodiversity Framework negotiated last year at COP15 under the Convention on Biological Diversity. It stipulates that by 2030 at least 30 per cent of degraded, terrestrial, inland water, and coastal and marine ecosystems, including the high seas, should be under effective restoration and conservation. The BBNJ agreement now offers a procedure to create legally binding marine protected areas in the high seas, an area of utmost importance for biodiversity.

Together, these elements of the BBNJ perform a second paradigmatic shift by aligning the law of the sea with other areas of international environmental law, institutionally and substantively, and by filling regulatory gaps of existing environmental agreements.

A (new) set of teeth for international environmental law: marine protected areas and majority law-making

A third possible paradigm shift concerns the procedure for establishing a marine protected area under the BBNJ agreement. Marine protected areas are one type of ‘area-based management tools’ envisaged by the agreement, ‘through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives’ (Art 1.3). Article 19 of the current draft makes it possible to establish these with a three-quarters majority decision if no consensus is reached (a) and provided that a two-thirds majority has agreed that every effort to reach a consensus has been exhausted (b). This is a procedure mostly unknown to or at least unsuccessful in both MEA’s, and the institutions of the law of the sea, which have consistently relied on consensus for their decision making. Only the Ramsar Convention, CITES and the Montreal Protocol’s Rule of Procedure formally allow recourse to majority-based voting but have not relied on this in practice (For a more detailed account see here).

If actually utilized, the BBNJ’s new decision-making procedure can help circumvent the persistent or occasional opposition of a few states which has continuously hampered the effective development of international environmental protection. To put it simply, the introduction of a majority-based decision-making procedure is a potential game changer. In this sense, the BBNJ agreement goes beyond recreating the structures of multilateral environmental agreements in the field of the law of the sea. With a new attempt to anchor last-resort majority decisions, it could further develop the decision-making capabilities of the COPs. This might equip multilateral environmental agreements with a new degree of regulatory authority distinct from its state parties.

To conclude, if one would ever want to speak of a moment, the BBNJ’s conclusion would be it. Assuming it enters into force and is widely ratified, the three elements above indicate that the BBNJ agreement will catapult the law of the sea regime back to the forefront of international environmental law.