Convolutions Emerging Through the BBNJ Agreement

Conservation of the marine environment in the high seas has been neglected for the past few decades, there are scarce provisions addressing such issues in international agreements as well. UNCLOS which is commonly referred to as the constitution of the oceans predominantly governs territorial seas and the EEZs but addresses issues regarding conservation of the marine environment in the high seas in only a handful of provisions. For instance, Part XII concerns "protection and preservation of the marine environment," although it only includes a negligible number of environmental protection regulations. The high seas are the archetypal example of global commons i.e., areas outside the purview of any one sovereign state but critical for everyone's economy and well-being. Unfortunately, they are inadequately managed by a patchwork of multilateral agreements and regional agreements addressing various issues like deep-sea mining, marine pollution, migratory bird populations, and fisheries.

As a result, it became imperative for states to create a comprehensive convention that expressly tackles issues related to oceanic environment conservation. As a result, the UN International Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ), chaired by Ambassador Rena Lee of Singapore, reached a consensus on the draft text of a new UNCLOS (United Nations Convention on the Law of the Sea 1982) convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the BBNJ Agreement). The BBNJ treaty would thus bring order to this pandemonium as it is a legally enforceable agreement under UNCLOS. It would create a new international authority for the high seas with its own secretariat once it has been adopted by the member states. This authority would be governed by an intergovernmental conference of parties and supported by a new scientific and technical committee. The treaty encompasses three preeminent measures i.e., the creation of marine protected areas, sharing of marine genetic resources, and environmental impact assessments, to protect/conserve the marine environment in the high seas. They are likely to have a significant effect on the management of marine species and ecosystems given that they make up 90% of the volume and biomass of the ocean; however, implementing such measures poses various challenges.

Marine Protected Areas (MPAs)

In an effort to protect fragile, biodiverse regions, the treaty establishes a procedure for designating marine protected areas (MPAs) and other area-based mechanisms. Numerous ecologically fragile areas can be found on the high seas, but nations have been deliberating on how to oversee them collectively. Approximately only 1% of the high seas are currently protected, despite the fact that several countries have established MPAs within their exclusive economic zones. Although the treaty has enabled the creation of MPAs, no information has been given on who would ensure the protection of such areas. Therefore, the international community is yet to decide on how this measure is to be implemented and put forth detailed policies regarding the same.

Sharing of Marine Genetic Resources

One of the most contentious areas of dispute during the negotiations was with respect to the provisions for equitable distribution of marine genetic resources. On this divisive issue, negotiators were able to overcome the North-South divide and work out a noteworthy agreement to divide the consequent financial benefits. In order for developing/ under-developed countries to achieve their treaty obligations, get access to marine species and habitats that are currently out of their grasp, and participate fully in a burgeoning blue economy, the agreement also commits developed nations to sharing scientific information and technologies. Furthermore, it established a separate fund for these objectives.

Irrespective of the fact that the negotiations have concluded on the agreement, this measure is likely to defer developed countries to become a signatory to this agreement and ratify it. Developed countries or the global north has been reluctant to include this provision in the agreement during the negotiations itself, thus this provision may potentially discourage such countries from becoming a signatory to it. It is difficult to envisage that the BBNJ Agreement will enter into force over the next several years given the fact that it requires 60 signatories to be legally effective. The 'historic' High Seas accord may turn out to be another ploddingly moving legal process that may take a long time to enter into force. 

Environmental Impact Assessment (EIA)

The BBNJ agreement establishes new guidelines for the evaluation of the environmental impact of business operations on the high seas. Nations and corporations subject to their jurisdiction are required to examine and report publicly on the potential harm that could occur to marine ecosystems and organisms prior to the launch of any large for-profit operations on the high seas. Provisions with respect to EIA have been put forth in a lucid and coherent manner, therefore notable issues under this provision are not likely to emerge. However, the extent to which these new criteria will affect the decision-making of current regional and international organisations tasked with overseeing fisheries, mining, and high-seas shipping is still unknown.

Conclusion

The BBNJ Agreement's completion signifies the global community's commitment to the transition to the blue economy, where the exploitation of ocean resources for economic development and living standards improvement must be supported by a responsibility to maintain the condition of the ocean ecosystem. Although the conclusion of negotiations on this agreement may be viewed as a commendable step towards the conservation of the marine environment, formal adoption and ratification of this treaty may be a few decades away and its implementation even further. Consequently, crucial measures must yet be taken to accelerate its implementation.

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