Published On: 7th October 2026
Authored By: Oyelere Promise Mary
Lead City University
Abstract
Marine biodiversity in areas beyond national jurisdiction (ABNJ), primarily the high seas and the Area, has been governed previously by a fragmented set of international law sources. The Law of the Sea Convention (UNCLOS) provides general principles for the conservation and sustainable use of marine living resources while securing freedom of navigation and other high seas activities. The Convention also stipulates specific measures regarding scientific research, as well as the responsibilities of States in relation to the marine environment in their national jurisdiction and on the high seas. Nevertheless, UNCLOS does not contain detailed provisions on genetic resources in ABNJ, area-based measures for conserving biodiversity, and common procedures for environmental impact assessments of activities affecting the biodiversity of ABNJ. The present article focuses on the Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement), adopted on 19 June 2023 and entering into force on 17 January 2026. The following question guides the analysis of the Agreement: what does the new Agreement change in international law in relation to marine biodiversity in the ABNJ? The article seeks also to respond to additional questions: what principles of UNCLOS applied to the high seas and the Area have been superseded by BBNJ Agreement? What implications do the innovations have in terms of the legal status of the high seas and the Area? Was anything left unregulated? Ultimately, the article argues that BBNJ Agreement does not overturn the existing law but rather develops and actualizes selected elements of the international law framework, contributing to coherence, conservation, and equitable benefit sharing in relation to the biodiversity of ABNJ. The Agreement’s impact ultimately depends on the combined effectiveness of institutions and measures taken at the national level and the States’ scientific and political capacities to implement the procedures and practices for which the Agreement provides.
INTRODUCTION
Marine biodiversity is essential to the functioning of marine ecosystems and to the scientific, economic and other human activities taking place in them. But much of the world’s oceans fall within the global commons, and therefore outside the jurisdiction of any coastal state. This includes the high seas and Area, the latter being the deep seabed beyond national jurisdiction, over which treaties have been concluded. Their management requires balancing universally recognized freedoms of action with the need to protect and conserve the marine environment, including its biological diversity.[1]
UNCLOS provides the legal framework needed to ensure harmony between these freedoms, especially for high seas, and obligations to protect and preserve the marine environment, including its biodiversity. Nevertheless, these legal frameworks were not developed as a single integrated system for the conservation and sustainable use of marine biodiversity in ABNJ, but have taken shape separately in different policy areas, including fisheries, shipping, the seabed, regional fisheries, and others.[2]
The BBNJ Agreement was negotiated within this framework. In accordance with resolution 69/292 adopted by the General Assembly, the process of preparing draft treaty text began. In addition, subsequent Assembly resolution 72/249 calls on States to participate in an intergovernmental conference on BBNJ, which will consider and adopt an implementing agreement.[3] The agreement to be concluded covers four main issues: marine genetic resources (MGRs) and benefit-sharing; area-based management tools (ABMTs), including marine protected areas; environmental impact assessments (EIAs); capacity-building and transfer of marine technology.[4]
MARINE GENETIC RESOURCES AND BENEFIT-SHARING
Pre-BBNJ legal position
UNCLOS provides relevant rules for regulating living resources, marine scientific research, and environmental protection, but it lacks an explicit benefit-sharing regime concerning MGRs taken from ABNJ.[5] The high seas legal framework is dominated by freedoms and general responsibilities in relation to living resources, while marine scientific research is “recognized as a legitimate pursuit subject to appropriate regulations” under the Convention.[6] However, UNCLOS proves inadequate in addressing modern access and benefit-sharing challenges relating to genetic resources, such as DNA sequence information, notice, tracking, and benefit distribution.
The problem appeared to be aggravated by the scientific and commercial significance of MGRs, which rendered them subject to utilization without an international law framework that would ensure the accessibility of benefits. Thus, the problem was not in the absence of ocean resources but in the inadequacy of UNCLOS provisions in addressing the problems of access, technology transfer, and the distribution of benefits related to MGRs in ABNJ.
BBNJ intervention
Part II of the BBNJ Agreement stipulates a separate regime of MGRs of ABNJ that provides for notification, information-sharing, and Clearing-House Mechanism functions and establishes the principle of monetary and non-monetary benefit-sharing.[7] The intervention aimed to make MGRs more accessible by removing informational barriers and establishing a transparent regime. The BBNJ Agreement’s norms go beyond the principles of UNCLOS by introducing a collective governance approach that enhances scientific and technological access to MGRs and promotes benefits from their usage.
Legal significance
The normative innovation of the BBNJ Agreement is manifested in procedural and substantive legal acts that impose additional requirements on the MGRs activities of States contracting the treaty. Thus, BBNJ does not repeal the freedoms provided by UNCLOS but introduces new obligations that must be followed when dealing with marine genetic resources. The legal significance of the agreement is determined by the introduction of a more comprehensive regulatory framework that governs access to and the use of MGRs while promoting benefit-sharing mechanisms. To this end, the BBNJ Agreement provides for transparency and information-sharing, establishing the Clearing-House Mechanism, and providing for access to MGRs for scientific research, especially for developing countries, for the purpose of technology transfer.
Limitations
The MGR regime nevertheless raises challenging implementation issues, as its success is conditional upon effective notification and consultation and does not address the underlying imbalance in access to technology on which benefit-sharing is predicated. The very notion of a right to share in benefits is of limited practical value if the developing States cannot engage effectively in the research or in utilizing the subject matter of the compulsory licensing.
AREA-BASED MANAGEMENT TOOLS AND MARINE PROTECTED AREAS
Pre-BBNJ legal position
Marine scientific research in the ABNJ was previously guided by a variety of sectoral and regional regimes, with UNCLOS establishing the overarching framework of law and responsibility for States concerned. It should be noted that while UNCLOS does provide a common legal framework for ocean governance, it does not contain a detailed procedure regarding the process for establishing, designating, and maintaining protected areas and other area-based measures in the ABNJ, which leaves the conservation and management of the ocean resources subject to various ad hoc agreements between States concerned.[8]
BBNJ intervention
Part III of the Agreement establishes a global process for negotiating ABMTs, including marine protected areas, with due scientific and technological assessment, and Conference of the Parties’ decision-making.[9] This represents a common institutionalized procedure for ABNJ conservation that was not present previously. Notably, the BBNJ Agreement does not aim to provide universal jurisdiction over all ocean-related matters: article 5 specifies the relationship with other treaties and agreements and the need for coherence with existing organizations, and the Agreement generally works through complementarity.[10]
Legal significance
The key institutional challenge is the danger of duplication: BBNJ measures that apply to areas subject to the competence of regional fisheries organizations or other entities will entail the need for coherence between different treaties and organizations. Article 22 deals with the interactions between BBNJ and other treaties and agreements, but legal coordination does not necessarily equate to effective diplomatic and administrative coordination. In other words, the Agreement must prove its ability to work within the existing international institutional and legal framework.
Limitations
Institutional overlap remains the principal unresolved issue. Where a proposed ABMT affects an area governed by a regional fisheries organization or another competent body, mandates may collide. Article 22 addresses the relationship between ABMTs and other instruments and bodies, but legal coordination on paper does not guarantee coordination in practice.[11] The Agreement must therefore prove that global biodiversity governance can coexist with established sectoral authority.
ENVIRONMENTAL IMPACT ASSESSMENTS
Pre-BBNJ legal position
The UNCLOS regime already contains important environmental assessment obligations: article 206 requires states to conduct environmental assessments of activities likely to cause substantial pollution or damage to the marine environment to the extent consistent with the law.[12] In addition, UNCLOS contains general obligations to protect and preserve the marine environment (article 192) and to prevent, reduce and control pollution (article 194).[13] Thus, the problem was not the lack of environmental assessment requirements per se, but the need to develop a more specific procedure tailored to the needs of ABNJ biodiversity conservation, with the necessary institutionalised oversight, consultation and decision-making processes.
BBNJ intervention
Part IV of the Agreement deals with these issues in detail, laying down detailed procedural requirements for screening, scoping, assessment, public notification and consultation, decision-making and monitoring, as well as relations with other impact assessment regimes.[14]
Legal significance
The significance of Part IV is that it transforms a general requirement to assess the environmental consequences of human activity into a detailed standardized procedure, which has the effect of making biodiversity-specific impact assessment a treaty obligation.
Limitations
A standardized impact assessment procedure does not guarantee environmentally benign outcomes, since the quality and consistency of impact assessment science can vary, as can the degree to which decision-makers respond to specific findings. It remains to be seen whether the procedural requirements enumerated in Part IV will be sufficient to actually ensure conservation-friendly outcomes or if they will be considered merely as a procedural ‘tick-box’ exercise.
CAPACITY-BUILDING AND TRANSFER OF MARINE TECHNOLOGY
Pre-BBNJ legal position
UNCLOS contains various relevant provisions on access to and transfer of marine technology, as well as the need to promote scientific research in general. However, it should be noted that states are not equal in their scientific research capabilities, which affects their ability to participate in ocean governance and contribute to scientific knowledge.[15]
BBNJ intervention
Part V of the Agreement contains a detailed section on capacity-building and technology transfer. The types of capacity-building measures to be taken by state parties are outlined, aimed at enhancing the scientific and technical capabilities of developing country states and facilitating their participation in the implementation of the Agreement, consistent with its overall institutional design and funding arrangements.[16]
Legal significance
The significance of Part V is that it makes capacity-building a treaty obligation and links it to broader funding and technology transfer considerations in order to actualize states’ equal participation in BBNJ measures in practice.
Limitations
As with most other elements of the Agreement, the value of capacity-building will be in its implementation. The lack of resources, technology and expertise will continue to limit developing country participation in ocean governance in general and the implementation of the BBNJ Agreement in particular.
BROADER LEGAL ANALYSIS: WHAT HAS CHANGED AND WHAT REMAINS UNRESOLVED
The most significant change brought by the BBNJ Agreement is increased coherence both within the international ocean governance regime and within the law on ABNJ biodiversity in particular. Previously, different treaties and organisations dealt with issues of conservation, sustainable use, science, technology transfer and capacity-building. The BBNJ Agreement combines these aspects into a single legal framework, within which their interaction can be considered holistically. In other words, the Conference of the Parties, scientific and technical bodies, Clearing-House Mechanism, funding arrangements and secretariat provided for by the Agreement are the institutional foundations upon which the coherence of the four pillars – MGRs, ABMTs, EIAs and capacity-building measures – will be based.[17]
Another significant change is the enhanced recognition of the need to pursue conservation and sustainable use objectives jointly. The Agreement does not separate the issues of conservation and sustainable use, considering them as separate objectives. Instead, it provides for a single set of procedures for implementing MGR-related provisions, which presupposes a balanced consideration of conservation and use issues. A third significant change is that the new Agreement explicitly recognises the importance of enhancing the participation of states in ocean governance based on their scientific and technical capacities, not just political will. This is important because the BBNJ Agreement concerns areas that are remote from most states, requiring specific scientific and technical expertise for participation in their governance.
Some issues, however, remain outstanding. First, states have to reconcile high-seas freedoms with enhanced conservation measures. Other treaties and organizations, including the UNCLOS organs, have to interact effectively with the new regime in a spirit of cooperation, ensuring coherence while avoiding unnecessary duplication.[18] The need to build consensus is no less urgent, since the effectiveness of the Agreement ultimately depends on voluntary national action. pre-collection notification,[19] showing that the treaty has entered an operational phase without yet establishing whether its procedures will produce significant conservation outcomes. Finally, the availability of adequate funding and scientific expertise will be of fundamental importance to the functioning of the new institutional mechanisms. The fact that states have designated focal points under the Agreement and that the first notifications of readiness to receive pre-collection information have already been received[20] is promising in this regard, but it remains to be seen how fruitful the initial steps will be for actual conservation.
CONCLUSION
The BBNJ Agreement is a historic contribution to international ocean law both in the sense that it addresses critically important lacunae in the original UNCLOS design while not undermining the normative role of the parent treaty. The challenge that BBNJ seeks to address was never the absence of environmental or conservation-related provisions in the 1982 Convention and its subsequent protocols, but rather the absence of a comprehensive legal framework for the conservation and sustainable management of biodiversity in ABNJ in all its dimensions, including the regulation of MGRs benefit-sharing and ABMT, as well as the necessary EIAs and procedural capacities for implementing such regulation consistent with states’ sovereignty concerns.
The Agreement covers these lacunae comprehensively by introducing appropriate substantive and procedural provisions. First, the MGR regime fills the critical gap in benefit-sharing and information-sharing mechanisms. Second, the ABMT framework addresses the need for a global rule-based approach to marine conservation. Third, the EIA regime introduces a common procedure to the Contracting Parties to assess the implications of their activities. Finally, Part V of the Agreement deals specifically with enhancing capacities in support of BBNJ implementation. All of these contribute to a more coherent, equitable legal regime in the realms of marine science and exploration.
However, it must also be noted that, despite the Agreement’s strengths, its overall impact on marine biodiversity governance should be evaluated with due caution: the issue of jurisdictional overlap, the tension between high seas freedoms and conservation objectives, as well as the potential limitations in scientific and financial capacity, may constrain the effectiveness of BBNJ in practice. However, the adoption of the treaty is only the first step towards closing the loopholes in international ocean law. What matters going forward is the extent to which states and international organizations will advance the treaty’s objectives in good faith and with the necessary resources.
REFERENCES
- Treaties and International Agreements
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS).
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 (adopted 19 June 2023, entered into force 17 January 2026) UN Doc A/CONF.232/2023/4 (BBNJ Agreement).
- UN Documents
UNGA Res 69/292 ‘Development of an international legally binding instrument 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’ (19 June 2015) UN Doc A/RES/69/292.
UNGA Res 72/249 ‘International legally binding instrument 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’ (24 December 2017) UN Doc A/RES/72/249.
- Official and Institutional Sources
United Nations, ‘BBNJ Agreement’ (United Nations, 2026) <https://www.un.org/bbnjagreement/en> accessed 10 August 2026.
United Nations Division for Ocean Affairs and the Law of the Sea, ‘Agreement on Marine Biological Diversity of Areas beyond National Jurisdiction: History’ (United Nations) <https://www.un.org/bbnjagreement/en/bbnj-agreement/history> accessed 10 August 2026.
United Nations, ‘Notification 2026-001: Focal Points for Formal Communications under the BBNJ Agreement’ (10 February 2026).
United Nations, ‘Notification 2026-002: Pre-Collection Notification under Article 12, Paragraph 2’ (16 July 2026).
[1] UNCLOS (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) arts 87, 192–194.
[2] UNCLOS (n 1) arts 87, 116–120, 192–194, 238–239.
[3] UNGA Res 69/292 ‘Development of an international legally binding instrument 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’ (19 June 2015) UN Doc A/RES/69/292; UNGA Res 72/249 ‘International legally binding instrument 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’ (24 December 2017) UN Doc A/RES/72/249.
[4] 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 (adopted 19 June 2023, entered into force 17 January 2026) UN Doc A/CONF.232/2023/4 (BBNJ Agreement) Parts II–V.
[5] UNCLOS (n 1) arts 87, 116–120.
[6] UNCLOS (n 1) arts 238–239.
[7] BBNJ Agreement (n 4) Part II, especially arts 9–16.
[8] UNCLOS (n 1) arts 87, 116–120 and Part XII.
[9] BBNJ Agreement (n 4) Part III.
[10] BBNJ Agreement (n 4) art 5.
[11] BBNJ Agreement (n 4) art 22.
[12] UNCLOS (n 1) art 206.
[13] UNCLOS (n 1) arts 192, 194.
[14] BBNJ Agreement (n 4) Part IV.
[15] UNCLOS (n 1) arts 238–244 and Part XIV.
[16] BBNJ Agreement (n 4) Part V, especially arts 42–46.
[17] BBNJ Agreement (n 4) Parts VI and VIII.
[18] UNCLOS (n 1) art 87; BBNJ Agreement (n 4) art 5.
[19] United Nations, ‘Notification 2026-001: Focal Points for Formal Communications under the BBNJ Agreement’ (10 February 2026); United Nations, ‘Notification 2026-002’ (n 8).
[20] United Nations, ‘Notification 2026-002: Pre-Collection Notification under Article 12, Paragraph 2’ (16 July 2026).
