The BBNJ Agreement: Links between the New and Existing Laws on Protecting Marine Biodiversity - Centre for International Law

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• However, all brackets have been removed, and the negotiators have agreed that ‘there will be no reopening or discussion on substance’.

• Keen observers have followed closely the genesis and procedural history of the Agreement (see here, here and here)

• Building on the preparatory document, and by virtue of UNGA  72/249 (24 December 2017), the negotiators participated in six intergovernmental conference sessions (including one resumed session) from 2017 to 2023. The process took approximately 9 years, coincidentally similar to the time it took to negotiate the UNCLOS, which was presided over by another Singaporean, Ambassador Tommy Koh.

• Article 4 links this Agreement to UNCLOS by providing that ‘nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention’

• Article 5 reiterates general principles that have been widely recognised by the international community in past decades: the polluter-pays principle, the precautionary approach (Principles 15 and 16 of the Rio Declaration 1992), the principle of the common heritage of mankind (Article 136 UNCLOS) and the obligation to prevent transboundary harm (International Law Commission’s Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities 2001)

• Third, accessing genetic resources in waters deep below the surface and subsequently processing these resources might be the exclusive playground for developed countries. The Agreement, thus, includes a section on CBTMT (Part V). The term ‘shall’ is repeated throughout this section to remind the parties that MGRs in ABNJ must be shared in a fair and equitable manner, and it is the legitimate right of developing and least developed countries to be part of the game.

• may also decide to request the International Tribunal for the Law of the Sea to give advisory opinions on legal questions concerning the implementation of the Agreement ‘as a matter of urgency’ (Article 48.6).

• The past few years have been an exciting time for international environmental law lawyers. From the adoption of the WTO Fisheries Subsidies Agreement to the request for an advisory opinion on climate change before the ITLOS and now, at its crescendo, the conclusion of a new international agreement under UNCLOS to regulate the high seas.

• Second, the conclusion of the BBNJ Agreement has marked the international community’s commitment to transitioning to the blue economy, where the use of ocean resources for economic growth and improvement of livelihood must be accompanied by the duty to preserve the health of the ocean ecosystem.