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A Fresh Take

Insights on M&A, litigation, and corporate governance in the US.

| 7 minutes read
Reposted from Freshfields Sustainability

The new high seas treaty: part 1 – what does it provide?

In the late hours of March 4, 2023, United Nations member States reached a historic deal on the text of a new UN treaty on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement) (subject to renumbering). The BBNJ Agreement marks the culmination of nearly two decades of discussions and six rounds of intergovernmental conferences (IGCs) and supplements the United Nations Convention on the Law of the Sea (UNCLOS). It would apply to activities in the high seas and deep seabed, which comprise nearly two-thirds of the ocean, and creates the first comprehensive pact to protect marine biodiversity in those areas.

A cross-office Freshfields team has consulted on the negotiations since the first IGC in 2018. Over five years of negotiations, our team has advised on a wide range of international law topics covered by the BBNJ Agreement and its prior drafts.

The BBNJ Agreement, once it enters into force, will impose several new obligations on States, including highly technical ones concerning marine genetic resources and environmental impact assessments. To implement many of these obligations, States will likely pass new legislation. These anticipated legislative developments will affect all ocean stakeholders, including the private sector across diverse industries like life sciences, shipping, mining, and submarine cables.

Below we highlight some key elements of the BBNJ Agreement and their practical implications.

Marine Genetic Resources (Part II, Articles 7-13)

Collecting marine genetic resources—encompassing microorganisms and other living resources like corals, bacteria, and seaweed—has largely been unregulated in the high seas and deep seabed. For many years now, they have attracted increasing scientific and commercial attention given their potential use in biochemicals used in medicine, cosmetics, and food supplements, amongst other products.

The BBNJ Agreement aims to put controls on the exploitation of marine genetic resources. It states that activities relating to marine genetic resources “are in the interest of all States and for the benefit of all humanity.” Accordingly, under the BBNJ Agreement, benefits arising from activities involving marine genetic resources and their associated “digital sequence information” (for example, DNA data)—which could be significant—must be shared fairly and equitably among States. This includes not only the sharing of scientific data, but also the sharing of financial gains through a financial mechanism established under the Agreement.

The BBNJ Agreement also imposes robust notification requirements prior to the collection, use, and commercialization of marine genetic resources. For example, States must adopt measures to ensure that detailed information about a planned activity involving marine genetic resources is provided to a “clearing-house mechanism” (a centralized platform containing information managed by the UN Secretariat) at least six months prior to collection.

Environmental Impact Assessments (Part IV, Articles 21bis-41ter)

The BBNJ Agreement contains thirteen provisions on environmental impact assessments (EIAs), which (evidently) expands significantly on the single provision on EIAs in UNCLOS. These provisions require pre-authorization assessments of the potential impacts on the high seas or deep seabed of activities planned in those areas, which could include (for example) the exploitation of marine genetic resources, laying of submarine cables, and oil and gas exploration.

Under the BBNJ Agreement, States must ensure that EIAs are performed for any planned activities within their “jurisdiction or control.” The term “jurisdiction or control”  is not defined in the BBNJ Agreement. During negotiations, delegations understood activities within a State’s “jurisdiction or control” as covering activities such as those taking place in a State’s national territory and activities beyond national jurisdiction by ships flying their flags. EIAs may be needed for planned activities taking place in the high seas or deep seabed, as well as for those activities taking place within a country’s national jurisdiction that “may cause substantial pollution of” or “significant and harmful changes to the marine environment” in the high seas or the deep seabed.

The BBNJ Agreement details a four-stage process for conducting EIAs: (1) screening, (2) scoping, (3) impact assessment and evaluation, and (4) prevention, mitigation, and management of potential adverse effects. Screening determines whether a full EIA is required based on consideration of a non-exhaustive list of factors, including the type of technology to be used and characteristics of the ecosystem of the location for the planned activities. A screening must be conducted when a planned activity may have “more than a minor or transitory effect on the marine environment” or “the effects of the activity are unknown or poorly understood.” A full EIA is required if the screening shows that the planned activity “may cause substantial pollution of or significant and harmful changes to the marine environment.” At the scoping stage, the State with “jurisdiction or control” of the planned activities must ensure the identification of key environmental, economic, social, cultural, and human health impacts, including any cumulative impacts. To assess these impacts, the full EIA must use the “best available science” and, “where available, relevant traditional knowledge.” It must also identify measures to prevent, mitigate, and manage potentially adverse effects of the planned activities. The EIA must include a public notification and consultation process.

The BBNJ Agreement requires the preparation of a detailed EIA report, which must be made publicly available and which States must consider when deciding whether to authorize a planned activity. It further imposes a continuous obligation on States to monitor and periodically report on the environmental and associated effects of an authorized activity. Importantly, there is a carve-out providing that EIAs need not always be conducted in accordance with the BBNJ Agreement’s procedure. They may in certain circumstances be conducted in accordance with national laws or other applicable international instruments.

Area-based Management Tools (Part III, Articles 14-21)

The BBNJ Agreement gives States the means to establish “area-based management tools” in the high seas and deep seabed. These are measures to manage human activities in areas specifically delimited for conservation purposes. They prominently include “marine protected areas,” wherein some types of human activities, such as mining and shipping, are restricted. Prior to the BBNJ Agreement, there was no global mechanism to establish marine protected areas and other area-based management tools. Regulation of this variety was limited to single sectors (like fishing) and covered small areas of the ocean. Under the new framework established under the BBNJ Agreement, States will be empowered to implement larger-scale, legally binding, and multi-sectoral area-based management tools.

During negotiations, States carefully considered the potential impacts of such tools on existing uses of ocean areas and resources such as, for example, the laying of submarine cables that crisscross the ocean floors and enable internet connectivity. The BBNJ Agreement therefore requires States to collaborate and consult with “relevant stakeholders,” including the “scientific community,” “Indigenous Peoples and local communities,” and the “private sector,” when formulating and assessing plans for area-based management tools. Notably, area-based management tools established under the BBNJ Agreement will have to respect existing measures of other international bodies. These include regulations of fishing, shipping, and deep-sea mining by regional fishery management organizations, the International Maritime Organization, and the International Seabed Authority.

Capacity-building, Transfer of Marine Technology, and Financial Assistance (Part V, Articles 42-47bis; Part VII, Article 52)

The BBNJ Agreement includes a dedicated section on capacity-building and the transfer of marine technology. Marine technology includes the equipment and expertise relevant to the conservation and sustainable use of marine biodiversity, including marine scientific research. Notably, the BBNJ Agreement provides that States “shall cooperate” to assist each other, in particular developing States, in achieving the BBNJ Agreement’s objectives through capacity-building and the transfer of marine technology, including through partnerships with the private sector.

The BBNJ Agreement is notable for its establishment of a special fund providing financial assistance to developing States in implementing the treaty. The fund will be financed through annual contributions of States and financial gains made from the exploitation of marine genetic resources. Private entities may also make voluntary contributions to the fund. During the negotiations of the treaty, developing States overcame significant opposition from many developed States in securing this financial assistance mechanism.

Dispute Settlement and Advisory Opinions (Part IX, Articles 54ante-55bis; Part VI, Article 48(6))

The BBNJ Agreement’s dispute-settlement provisions largely draw on those of other law of the sea treaties. They provide that disputes of a “technical nature” will be referred to an ad hoc expert panel established by the parties to the dispute, as in Article 29 of the UN Fish Stocks Agreement. For disputes “concerning the interpretation or application” of the Agreement, the provisions incorporate by reference the dispute-settlement provisions of UNCLOS. Those provisions give States the choice to refer their disputes to either: (1) the International Tribunal for the Law of the Sea; (2) the International Court of Justice; (3) an arbitral tribunal established under Annex VII of UNCLOS; or (4) a special tribunal established under Annex VIII of UNCLOS, for disputes on the following specified topics only: fisheries, protection and preservation of the marine environment, marine scientific research, or navigation, including pollution from vessels and by dumping.

A novel feature of the BBNJ Agreement is that it authorizes the Conference of the Parties (the BBNJ Agreement’s governing body composed of all parties) to request an advisory opinion from the International Tribunal for the Law of the Sea “on a legal question on the conformity with this Agreement of a proposal before the Conference of the Parties on any matter within its competence.” Delegations carefully circumscribed the scope of this provision to address fears that advisory opinions would be misused to address contentious matters outside the scope of the BBNJ Agreement.  

Timing for Entry into Force (Part XII, Article 61)

While States have “locked in” the substance of the BBNJ Agreement, the text will undergo renumbering and harmonization before it is presented for official adoption by a simple majority of the UN General Assembly at a date to be determined. The BBNJ Agreement will then enter into force 120 days after its ratification by 60 States, the timing of which depends on political will. But businesses and other stakeholders with activities in the high seas and the deep seabed may start to feel the effects of the BBNJ Agreement before its entry into force, as States adopt or amend national legislation to implement its provisions.

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Part 2 of this blog post is forthcoming and will focus specifically on how the BBNJ Agreement will be relevant to the private sector.


biodiversity, environment, global