The high seas treaty is agreed in New York: what the BBNJ text settles and what it leaves open

In the early hours of Saturday 4 March 2023, after about thirty-six hours of closed consultations led by the President of the Conference, Rena Lee of Singapore, delegates at United Nations Headquarters agreed the text of an international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction[3]. Lee announced the result with the words "the ship has reached the shore", and the room gave a standing ovation[2]. The talks had begun in 2004[2]. The General Assembly convened the Intergovernmental Conference by resolution 72/249 of 24 December 2017, with a mandate for four substantive sessions[4]. A fifth session was needed, and its first part, in August 2022, was suspended without agreement on monetary benefit-sharing, on environmental impact assessments and on the relationship with other international bodies[4]. The resumed session ran from 20 February to 4 March 2023[3]. Our generation will live with this treaty for the whole of its working life, so we read the text as law, with its institutions and its gaps.

What the text provides

The instrument is an implementing agreement under the United Nations Convention on the Law of the Sea. The Commission describes it as the third such agreement, after the 1994 agreement on seabed mining and the 1995 agreement on fish stocks[1]. It covers the four elements of the package agreed in 2011: marine genetic resources, including benefit-sharing; area-based management tools, including marine protected areas; environmental impact assessments; and capacity-building and the transfer of marine technology[4]. Areas beyond national jurisdiction cover nearly two-thirds of the ocean[1].

On marine protected areas, the delegates agreed modalities for proposing, reviewing and deciding on area-based management tools. Decisions are taken by consensus. Where consensus fails, a three-quarters majority applies, after the Conference of the Parties has decided by a two-thirds majority that efforts to reach consensus are exhausted[3]. That rule matters more than any other in the text. It means that one State cannot block a protected area on the high seas indefinitely. The Commission says that the treaty allows large-scale marine protected areas on the high seas and so supports Target 3 of the Kunming-Montreal Global Biodiversity Framework[1]. That Framework, agreed at COP15 in Montreal in December 2022, requires that at least 30 per cent of terrestrial, inland water, coastal and marine areas be effectively conserved and managed by 2030[5].

On environmental impact assessments, the text adopts a tiered approach. Screening applies where a planned activity may have more than a minor or transitory effect, and the threshold for a full assessment follows Article 206 of the Convention. After long debate, decisions on whether an activity may proceed remain with the State, with a call-in mechanism as a counterweight[3].

On marine genetic resources, the most contested element, monetary benefits will pass through the financial mechanism. Developed States will make annual contributions to a special fund, set at 50 per cent of their assessed contribution to the budget, and the Conference of the Parties will decide the modalities of sharing[3]. Digital sequence information is mentioned in the preamble and in the provisions on marine genetic resources, although no internationally agreed definition exists. The final text contains no provision on intellectual property rights[3]. The institutions are a Conference of the Parties, a stand-alone secretariat, a Scientific and Technical Body and a clearing-house mechanism[3]. The text also provides that the agreement must not undermine relevant international frameworks and bodies, including the regional fisheries management organisations, and it carries a clause without prejudice to sovereignty and maritime disputes[3].

Where the Union stood and what remains

The Union and its Member States led the High Ambition Coalition on BBNJ, which the Commission President, Ursula von der Leyen, launched at the One Ocean Summit in Brest on 11 February 2022[6]. The Coalition now counts 52 countries[1]. On 4 March the Commissioner for Environment, Oceans and Fisheries, Virginijus Sinkevičius, called the result "a historic moment for our Oceans" and recalled the Union's pledge of EUR 40 million under a Global Ocean Programme, with an invitation to Coalition members to make similar pledges[1]. During the session the Union's interventions pointed to other ocean pledges and gave assurances that funds would be available for the agreement[3].

We note three limits. First, the text agreed on 4 March is not yet adopted. No final text was public until about twenty-four hours after the closing gavel, and the draft was circulated late on 6 March[3]. An open-ended informal working group will make technical edits and align the six language versions, and a further resumed session will adopt the text formally[3]. Second, the agreement enters into force only after sixty ratifications, and estimates of the time needed vary[3]. The 1995 fish stocks agreement needed six years. Third, the Union will have to ratify as a party in its own right alongside its Member States, since fisheries fall within exclusive Union competence and environment within shared competence. A mixed agreement with twenty-seven national procedures is slow by construction.

We make four recommendations. First, the Commission should present its proposals for signature and conclusion within weeks of the formal adoption, so that the Union and its Member States can deposit their instruments together and count towards the sixty at once. Second, the Union should use the High Ambition Coalition to secure a common ratification calendar among its 52 members, because the sixty ratifications will not come from the Coalition alone and every early deposit shortens the wait. Third, the Union should pair the EUR 40 million pledge with a public account of how the special fund for marine genetic resources will be filled from the Union budget and from the Member States, since developed States agreed to contribute at 50 per cent of their assessed share. Fourth, the Union should begin now to identify, with its scientific bodies, the first high seas areas it will propose for protection once the Conference of the Parties meets, so that the three-quarters majority rule is tested early.