A SUCCINCT ANALYSIS OF THE AGREEMENT UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA ON THE CONSERVATION AND SUSTAINABLE USE OF MARINE BIOLOGICAL DIVERSITY OF AREAS BEYOND NATIONAL JURISDICTION (BBNJ AGREEMENT)

ABSTRACT

This Paper examines a recent development in international law known as the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ agreement). Prior to this Agreement, various activities were carried out that threatened the marine biological diversity of the High Seas. This Agreement seeks to provide a legal framework for the preservation and sustainable use of the variety of life in the High Seas. This paper makes an analysis of this treaty particularly the four main areas it addresses and their relevant legal provisions, giving the readers a glimpse into significance and impact of this treaty.

INTRODUCTION

The Agreement was adopted on 19 June 2023 by the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction convened under the auspices of the United Nations, and entered into force on 17 January 2026. The BBNJ Agreement becomes the third implementing agreement to the United Nations Convention on the Law of the Sea.

Under the overall objective of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the convention and further international cooperation and coordination, the Agreement addresses four main issues:

• Marine genetic resources, including the fair and equitable sharing of benefits;
• Measures such as area-based management tools, including marine protected areas;
• Environmental impact assessments; and
• Capacity-building and the transfer of marine technology.

The Agreement also addresses a number of cross-cutting issues, establishes a funding mechanism and sets up institutional arrangements, including a conference of the parties and various subsidiary bodies, a Clearing-House Mechanism and a Secretariat.

The Agreement was open for signature by all States and regional economic integration organizations from 20 September 2023 to 20 September 2025, and entered into force on 17 January 2026.[1]

LEGAL ANALYSIS

The High Seas constitute all parts of the ocean that go beyond the boundaries of coastal states such that it does not fall within the territorial jurisdiction of any one State. These parts of the ocean are considered to be global common ground as they fall outside the territorial of every coastal State. Hence, because these parts of the ocean are not under the control of any given States. It remained exploited by various States who took advantage of the marine resources for their own benefit. While the United Nations Convention on the Law of the Seas(UNCLOS) established a legal framework governing the High Seas, it failed to make relevant provisions for the conservation and sustainable use of marine biological diversity in areas beyond National Jurisdiction. Thus, this led to the continued exploitation of the High Seas in such a manner that posed a threat to marine biological diversity.

This is where the significance and impact of the BBNJ Agreement comes into play. This treaty filled those regulatory gaps existing in the United Nations Convention on the Law of the Seas by creating a legal framework for the conservation and sustainable use of marine biodiversity in the High Seas. Prior to this agreement, overfishing threatened fish stocks, pollution damaged marine ecosystems, climate change affected ocean health, fragile habitats could be disturbed with little or no coordinated oversight, researchers and companies could collect valuable marine genetic resources with few internationally agreed benefit-sharing rules. However, the BBNJ agreement sought to provide a legal framework governing the use of marine genetic resources and the fair and equitable distribution of same as well as the provision of environmental impact assessments, marine protected areas, capacity-building and transfer of marine technology.

The implication of the BBNJ Agreement can de deduced from the four main areas that it addresses, as stated earlier, which are:

• The Use of Marine Genetic Resources and the fair and equitable sharing of benefits: The Agreement regulates the level of utilization of the genetic material inherent in marine organisms and provides for the distribution of the profits or benefits acquired from the use of these marine genetic resources to developing and underdeveloped Nations who lack the technical and financial capacity to extract or harness these resources. Thus, it seeks to remedy the previous state the things where only a handful of developed Nations could reap the benefits of the extraction of genetic material from organisms in the High Seas. The BBNJ Agreement explicitly states as one of its objectives; the fair and equitable sharing of benefits arising from activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.[2]
• The Implementation of measures such as Area-based management tools including Marine Protected Areas: Prior to the BBNJ Agreement, there was no global procedure for creating Marine Protected Areas. The Agreement created a means for the proposal, adoption, evaluation, and revision of Marine Protected Areas. Hence, in such areas, the level of human activities would be restricted or limited thus preventing activities that threaten fragile habitats and endangered species. Thus, this agreement brings down the rate at which human activities imperil certain habitats and ecosystems. It is worthy to note that the BBNJ Agreement states as one of its objectives; the conservation and sustainable use of areas requiring protection, including through the establishment of a comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas.[3] It also provides for the establishment of area-based management tools stating that, the conference of the parties, on the basis of the final proposal and the draft management plan, taking into account the contributions and scientific input received during the consultation process established under this part, and the scientific advice and recommendations of the scientific and technical body shall take decisions on the establishment of are-based management tools, including marine protected areas, and related measures.[4] This article essentially gives the conference of parties, (that is, the assembly of the parties to the BBNJ Treaty acting collectively as the governing body of the treaty) the power and obligation to make decisions pertaining to the institution of area-based management tools including marine protected areas and such decisions shall be made based on the final proposal, draft management plan and recommendations and advice from the scientific and technical body.
• Environmental impact Assessments: This Agreement ushered in a framework where a study must be conducted to evaluate the consequences of carrying out a particular project or activity on the environment. Where the project will pose a disastrous effect on the High Seas, then the assessment will indicate same and consequently, the project would not be carried out. This ensures that a project is not carried out merely for the benefit that can be attained from it without due consideration to the effect it may have on the High Seas. The BBNJ Agreement makes adequate provision for environmental impact assessments and the objectives of the agreement pertaining to environmental impact assessments.[5] The Agreement also places an obligation on the parties to ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control that take place in areas beyond areas beyond national jurisdiction are assessed as set out in the agreement before they are authorized.[6] It also states that when a party with jurisdiction over a planned activity that is to be conducted in marine areas within national jurisdiction determines that the activity may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction, that Party shall ensure that an environmental impact assessment of such activity is conducted in accordance with the agreement or that an environmental impact assessment is conducted under the Party’s national process.[7] This means that although the activity is to be conducted within State waters, where such activity poses a potential threat to areas beyond national jurisdiction, then an impact assessment must be carried out. It is also pertinent to note that the treaty also provides for the procedure for conducting an environmental impact assessment which include screening, scoping, impact assessment and evaluation, prevention, mitigation and management of potential adverse effects as well as public notification and consultation.[8]
• Capacity-building and the transfer of marine technology: The Agreement recognizes that the fact that certain States lack the capability and expertise to effectively harness marine resources in the High Seas so it encourages developed Nations to provide technical and financial aid to these undeveloped or developing Nations in order to equip them with the ability to extract and utilize the oceanic resources inherent in the High Seas. It is pertinent to note that the agreement explicitly states that Parties shall cooperate, directly or through relevant legal instruments and frameworks and relevant global, regional, subregional, and sectoral bodies, to assist Parties, in particular developing States Parties, in achieving the objectives of this Agreement through capacity-building and the development and transfer of marine science and marine technology.[9]

CONCLUSION

The BBNJ Agreement is a notable and substantive development in international law designed to safeguard marine biological diversity and promote its sustainable utilization in areas beyond national jurisdiction. Its provisions place an obligation on State parties to ensure that their activities do not infringe on the marine biodiversity of the high seas while ensuring that all states can harness its marine resources particularly developing and underdeveloped states.

REFERENCES

[1] United Nations, ‘Agreement on Marine Biological Diversity of Areas beyond National Jurisdiction’(Welcome to the United Nations), https://www.un.org accessed 7 August 2026.

[2] Agreement under the United Nations Convention on the Law of the Seas on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement, 2023), art 9(a).

[3] BBNJ Agreement, art 17(a).

[4] BBNJ Agreement, art 22 (1)(a).

[5] BBNJ Agreement, art 27.

[6] BBNJ Agreement, art 28(1).

[7] BBNJ Agreement, art 28(2).

[8] BBNJ Agreement, art 31(1).

[9] BBNJ Agreement, art 42(1).