For almost 20 years, member countries of the United Nations (UN) addressed the issue of marine protection in areas beyond national jurisdiction, without reaching an agreement that would protect the interests of those involved. In 2023, however, Member States concluded the treaty on the subject under the aegis of the 1982 United Nations Convention on the Law of the Sea (also known as the Montego-Bay Convention), establishing an international legal framework that deals with marine biodiversity and the sustainable use of resources originating from the high seas and the Area.
Initially, it is important to clarify that this agreement, known as BBNJ, does not apply to jurisdictional waters, nor to the Antarctic region. Its scope is to regulate marine biodiversity in areas beyond jurisdictional waters (high seas and Area), according to article 2, and it does not overlap with previous conventions that deal with special subjects, such as the Antarctic Treaty. According to article 5 (2) of the BBNJ:
This Agreement shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies.
Although Antarctica is a neutral territory, over which no State can claim sovereignty, it is not considered high seas for the purposes of applying the BBNJ. Given the existence of regulation through the 1959 Antarctic Treaty, the Antarctic region is a specific subject, with its own rules. Therefore, the BBNJ agreement cannot regulate matters concerning the Antarctic territory that are already covered by the 1959 Treaty, even if this region is beyond the jurisdictional waters of the States.
Some of the guiding principles of the BBNJ are, according to article 7, the idea of common heritage of humanity; the ecosystemic view; integrated marine management; and the understanding that the ocean must be approached in a way that creates resilience in the ecosystem to the adverse effects of acidification and climate change. Having as support the United Nations Convention on the Law of the Sea, from 1982, the BBNJ seeks to balance the economic and social development of States and marine environmental protection, and brings principles and guidelines that had already been covered in the Convention on Montego-Bay.
It is important to point out that the 1982 Convention is considered an “umbrella convention” (ZANELLA, 2017, p. 525), as it covers a range of matters. Although it is cutting-edge and the main international legal document on the Law of the Sea, the Montego-Bay Convention left gaps in certain matters that it discussed in general, and this generic nature applies to the maritime spaces of the high seas and the Area, which are treated by the said Convention in a way that is not very effective in practice.
In its Part VII, the 1982 Convention presents freedom of fishing and scientific research as principles of the high seas, and considers any form of claim to sovereignty in this maritime space to be illegitimate. Regarding the Part XI, when dealing with the Area, the aforementioned Convention presents as a principle the idea of common heritage of humanity, and considers it a space whose activities must be carried out for the benefit of humanity in general, in addition to taking into account the needs of developing countries.
However, the Montego-Bay Convention does not provide direct means of implementing these principles, nor does it present possible sanctions for non-compliance. With the advancement of technology in recent decades, several gaps have become evident regarding the protection of marine resources that exist beyond the jurisdictional areas of States, such as the sharing of marine genetic resources, marine pollution generated by the use of plastic, overfishing, emergence of dead marine zones (without oxygen), water acidification, impacts caused by climate change and the growing need to create protected marine areas.
Because of this, the creation of an agreement that directly dealt with these issues was essential, and since 2004 the UN General Assembly has sought to negotiate a treaty that would cover such issues. At the time, the working group proposed through Resolution 59/24 an agreement that would deal with marine genetic resources (and their sharing), management tools and creation of marine protected areas, environmental impact assessments and transfer of marine technology.
With the advent of the BBNJ, an attempt was made to combine respect for the principles presented by the Montego-Bay Convention with effective methods of their implementation. The idea of “common heritage of humanity” introduced in 1982 was one of the most difficult points in balancing interests during almost 20 years of meetings and negotiations. The States involved had different views on intellectual property rights, benefit sharing and governance over marine areas to be protected. Another issue involved balancing the principle of “freedom of fishing” on the high seas with marine sustainability.
The arrival of an agreement between the participating countries regarding the text of the BBNJ made possible one of the main advances in the Law of the Sea in recent years, which is the creation of tools for planning marine spaces (Area-Based Management Tools – ABMT), which includes marine protected areas (MPAs), according to article 1 (1), in verbis:
“Area-based management tool” means a tool, including a marine protected area, for a geographically defined area through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives in accordance with this Agreement.
This is a relevant regulatory framework for the maritime scenario, given that, for years, the high seas and the Area were protected in a fragmentary manner, depending on the actions of institutions, regional groups and interested States. The existence of international legislation that regulates the creation of MPAs on the high seas makes it possible to protect marine ecosystems more effectively, enabling the protection of 30% of land, oceans and rivers by 2030, as proposed by the Kunming-Montreal Agreement (2022). Currently, less than 1% of areas beyond national jurisdiction are protected (as per the Marine Protection Atlas), so the BBNJ represents the first milestone for MPAs to have global enforcement mechanisms in international waters.
According to Y. Wang (2019), the creation of MPAs on the high seas is a controversial topic, due to dilemmas concerning their nature. For the author, the difficulty in creating a universal concept of MPA that would please all interested parties; the absence of objective criteria that justify the creation of an MPA on the high seas; as well as governance disputes in the MPAs created were some of the impasses that caused the delay in preparing the BBNJ. When dealing specifically with MPAs, the BBNJ provides in its article 17 (b) that States Parties must:
Strengthen cooperation and coordination in the use of area-based management tools, including marine protected areas, among States, relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies.
This objective brought by the agreement requires cooperative action between the signatory States to create and manage marine areas on the high seas that must be protected. According to Elizabeth Mendenhall, Rachel Tiller and Elizabeth Nyman (2023, p. 5), collaboration between new maritime space management tools and existing sectoral, regional and global organizations (known as International Frameworks and Bodies – IFB) is essential for the effectiveness of MPAs and other tools on the high seas. For them:
This connection between BBNJ and external bodies is a critical part of implementation. One of the objectives of the ABMT section is to “strengthen cooperation and coordination” in the use of ABMTs. The BBNJ agreement requires collaboration and consultation with relevant groups, including IFBs, when formulating ABMT proposals.
Thus, it can be seen that the BBNJ is an important step towards marine environmental protection beyond national jurisdiction. The regulation of MPAs on the high seas and the proposal of mechanisms to implement the sustainability principles originally brought by the 1982 Convention demonstrate the intention of the States involved in protecting marine biodiversity.
Although the Montego-Bay Convention is a legal document of great importance, a new international document was needed to fill the gaps left with regard to the high seas and the Area. In this way, the search for a balance between the economic development of States and the protection of the marine environment becomes possible, considering the regulation of tools such as MPAs and the objective of collaborative protection of the ecosystem of this maritime space.
