After more than 15 years of negotiations, the United Nations adopted the first international treaty on the protection of the high seas on 19 June 2023. The new agreement on the “conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”, known as the BBNJ, specifically focuses on the international implementation of regulations for the protection of life in the open oceans. Its main objective is to enhance international cooperation among various actors and bridge existing gaps in marine biodiversity protection.
There has long been a governance gap related to the protection of marine biodiversity and addressing the challenges posed by illegal, unreported, and unregulated (IUU) fishing, as well as other human-induced pressures in areas beyond national jurisdiction. The governance of the high seas has been fragmented thus far, with various regional and sectoral actors having become involved. This led to international efforts to develop a new, unifying “High Seas Treaty” under the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS serves as the governing “constitution” for the world’s oceans; however, it primarily focuses on regulating economic activities.
The key focus of the BBNJ agreement is to strike a balance between the benefits of ocean use and the exploitation of marine resources and the risks posed by such activities to marine ecosystems. It aims to provide states with detailed processes, thresholds, and guidelines for conducting environmental impact assessments (EIAs) in the marine environment. The agreement also includes provisions for considering the cumulative impacts of multiple activities and proposes comprehensive monitoring and reporting obligations.
The BBNJ will enter into force 120 days after it has been ratified by 60 signatory states – a process that may take several years, though key actors such as France are pushing for the treaty to enter into force before the 2025 UN Ocean Conference in Nice. In the meantime, the regular sessions of the proposed Preparatory Commission could provide a forum to engage on crucial matters concerning marine biodiversity, including climate change. If the preparatory phase is handled with care, creating appropriate synergies and alliances, the BBNJ could become a game-changing global forum for ocean governance writ-large, with the potential to strengthen the connections between climate, ocean, and biodiversity governance.
Even as the world celebrates the successful adoption of the BBNJ treaty, it is evident that significant challenges remain to be navigated. The conflicts and tensions that shaped the treaty negotiations can be expected to be carried forward into the ratification and implementation phases. A key example of countries’ different priorities became apparent in the protracted debate surrounding the inclusion of the principle of the common heritage of humankind versus the reference to the “freedom of the high seas”. Other particularly contentious issues were those related to the use of marine genetic resources, especially the equitable sharing of benefits. The successful conclusion of negotiations heavily relied on the reconciliation of interests between industrialised countries, developing countries, and emerging economies. Also, reaching consensus with China on politically charged issues such as the establishment of marine protected areas in the South China Sea was crucial. Balancing these and other conflicting interests will continue to be essential for progress on the governance of the high seas.
Formally, it is possible to pass BBNJ resolutions with a three-fourths majority, meaning that not all parties need necessarily agree, for example, that a new marine protected area be created. However, achieving this would require significant political effort and the building of strategic alliances. In this vein, Germany and the EU should use this transition period to develop strategies to deepen existing partnerships, for example with African states, and create new international coalitions within the forum at the nexus of climate, ocean, and biodiversity governance.
To fully leverage the potential of the new forum, concerted coordination on joint positions and the sharing of competencies between the EU and the delegations of the member states will be necessary. In addition, it will be crucial that member states send delegations with a wide range of relevant experience and expertise to the new forum. This should ideally include not only the international lawyers who have primarily been involved thus far, but also biodiversity and marine protection experts. Within »Team Germany«, this may be partially ensured by shifting responsibility for coordinating BBNJ-related issues from the German Federal Foreign Office to the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection.
A final open question relates to the EU and Germany’s agenda within the forum, and the issues that delegations may want to focus on during the BBNJ implementation phase. We believe that identifying synergies at the nexus of climate, ocean, and biodiversity governance should be a key issue, especially in light of increased scientific and commercial interest in “using” the ocean as an enhanced carbon sink to help meet climate targets. Ocean biodiversity protection is a climate issue, and vice versa, and the BBNJ offers a unique new opportunity for the global community to jointly address this nexus.
Europe needs to clarify the balance between protection and use