Nafees Ahmad 
Over the past 10 years, there have been an increasing number of international gatherings, which is a sign of growing interest in ocean governance. These include the International Marine Protected Areas Congress, which has been organised three times since 2005; the Global Ocean Forum on Oceans, Coasts, and Islands, which has been held five times since 2001; the World Small-Scale Fisheries Congress, which has been held twice, in 2010 and 2014; the World Ocean Summit, which has been held three times since 2010; and the Our Oceans Conference.
These gatherings represent the scientific, governmental, nongovernmental, and business interests concerning specific maritime activities and ocean governance more generally.
The new Treaty on Biodiversity in Areas Beyond National Jurisdiction (BBNJ Agreement) was approved in March 2023 at the United Nations in New York, concluding nearly two decades of negotiations. On September 20, 2023, the BBNJ Agreement – an Agreement for Implementing the UN Convention on the Law of the Sea, or UNCLOS – was made available for signature. After the 60th instrument of ratification has been deposited, the Agreement will become effective.
Integrating BBNJ with public international law
Ambitious requirements in the BBNJ Agreement’s four major components – Marine Genetic Resources (MGR), Area-Based Management Tools (AMT), Environmental Impact Assessment and Capacity-Building (EIACB) – will prompt discussions of novel ways to integrate with conventional public international law. The BBNJ Agreement gives the governance of the oceans new dimensions that reflect sociological and political changes. New conceptual, regulatory, and procedural interactions under and through UNCLOS are made possible by this agreement. One of these breakthroughs is the idea of marine biological variety, which can potentially close the genetic resource gap between marine living resources and those found in the high seas. The BBNJ agreement also enables non-parties of UNCLOS to join without becoming a party to UNCLOS.
Concerning activities like deep seabed mining, shipping, and fisheries, UNCLOS chose a sector management and species-based approach in the Marine Areas Beyond National Jurisdiction or ABNJ, splitting them into separate and (often) isolated legal frameworks. As a result, these “fractions” in the legal system made it more challenging for the general public to join the legislative and executive decision-making processes in the ABNJ. Adopting a science-based approach to protected areas, impact assessment requirements, and more equitable access to genetic resources and benefit-sharing are among the demands of indigenous peoples, local communities, and civil society. The instant post focuses on two primary regime interactions in the BBNJ Agreement: a) communications among international organisations and b) non-state actors.
Communications among international organisations
The contemporary empirical research indicates that more than 52 international organisations are involved in various BBNJ Agreement components, and during the five Intergovernmental Conferences between 2018 and 2022, nations referenced 38 international organisations in 39 clauses. The BBNJ Agreement suggests standardising processes at the global level as one method to alter relationships. Article 23 on Environmental Impact Assessments serves as an illustration of an internationalisation strategy. The ‘clearing-house mechanism’ inside the institutional framework of the BBNJ is where proceedings are directed in extraordinary instances when there are no monitoring or review mechanisms from other governing institutions. An analogous example is Article 22 (2), which mandates states conducting activities within their national borders that “may cause substantial pollution of or significant and harmful changes to the marine environment in ABNJ” to comply with several BBNJ Agreement procedural requirements, such as disclosing any pertinent information, monitoring, and publishing monitoring reports.
The next question is how the institutional framework of BBNJ will interact with other organisations that already apply their standards for Marine Protected Areas or Environmental Impact Assessments in ABNJ, including regional organisations like the Convention for the Protection of the Marine Environment of the North-Atlantic East (OSPAR), which has 13 approved Marine Protected Areas in ABNJ. Large portions in the Wider Atlantic (OSPAR Region V) and the Arctic Waters (OSPAR Region I) that are outside of national Exclusive Economic Zones (EEZs) are included in the OSPAR maritime area. Regarding the OSPAR marine area, this Area Beyond National Jurisdiction (ABNJ) accounts for almost 40% of the whole. To create an ecologically cohesive and well-managed network of MPAs, OSPAR has agreed to designate Marine Protected Areas (MPA) in ABNJ.
The BBNJ Agreement uses rules of reference, such as the clause in Article 4 that states a duty “not to undermine” to take a comprehensive approach to some procedural and substantive obligations while simultaneously acknowledging regional and institutional competence limitations. There is ongoing scholarly discussion about whether the BBNJ Agreement adopts a regional, hybrid, or global approach to ocean governance and supports a comprehensive approach to the package’s four components and a robust institutional framework. It is uncertain what the commitment not to undermine means or whether it will maintain its broad perspective or adopt a narrow interpretation. In this context, the BBNJ Secretariat may benefit from past cross-regime interactions between the Convention on International Trade in Endangered Species (CITES) and other conventions such as Res Conf. 9.24 and Rev. CoP17 relating to biodiversity to impose trade restrictions regarding vulnerable or endangered species.
It will be necessary to reconcile the BBNJ Agreement with other treaties, particularly those where not all state parties overlap – it may be worthwhile to note Article 4(2),(3) – to promote cross-regime cooperation in its implementation. The International Seabed Authority (ISA), which has been identified as having a high potential for institutional overlap with the BBNJ Agreement, is currently exhibiting this to some level. Member states regularly referred to the “BBNJ Agreement” or the High Seas Treaty when negotiating the ISA Mining Code during the most recent ISA meeting in July 2023 in Kingston, noting their possible overlaps. According to Article 157 of the UNCLOS, the ISA’s authority is limited to the mineral resources in the Area; it has no authority over the deep seabed’s living or genetic resources.
Communications among non-state actors
The BBNJ Agreement seeks to alter how non-state actors engage with one another in international law by involving them in decision-making and giving them institutional advisory roles. Non-state actors were instrumental in crafting many clauses on preserving marine biodiversity throughout the BBNJ Agreement discussions, which is reflected in the final draft of the treaty text. For instance, the phrase “civil society” is used seven times throughout the treaty, 33 times when referring to indigenous peoples, seven times when referring to the corporate sector or other groups, and 31 times when referring to local communities. Native Americans and local communities are mentioned in Articles 5 (i) and 10 bis, which deal with using pertinent traditional knowledge connected to marine genetic resources in locations outside of national authority for global ocean governance. The latter also recognises the right to free, prior, and informed Agreement or permission of indigenous and local populations in decision-making processes involving marine genetic resources.
Article 11 on the fair and equitable sharing of benefits, which recognises the significance of technological and scientific cooperation with developing nations, welcomes collaboration with scientists and scientific institutes. The establishment of a Scientific and Technical Body (STB) also includes a proposal to improve scientific cooperation and to directly consult with scientists and other experts as necessary (Article 49 (3)). For a variety of tasks, such as “to conduct and evaluate screenings and environmental impact assessments for a planned activity under their jurisdiction or control, (Art. 30 (3)).” The STB will assemble a permanent “roster” of specialists. Article 49 (2) specifies the requirement to consider interdisciplinary expertise, including local community and Indigenous Peoples’ traditional knowledge, gender equality, and fair geographic representation. The Intergovernmental Panel on Climate Change (IPCC) is a new scientific body that may be assigned to the BBNJ institutional structure. It is also unknown how this group of experts will work with the BBNJ Secretariat and other institutional bodies as a decision-making or advisory body. According to this Part’s Article 17 (Civil Society, Scientific Community, Private Sector, Indigenous Peoples, and Local Communities), proposals for Area-Based Management Tools, such as Marine Protected Areas, will be subject to comment.
States continue to be the masters of this ship under this historic treaty, which is based on their permission. However, non-state actors who may actively contribute to protecting and conserving marine biodiversity must share the helm with governments to realise the BBNJ Agreement’s goals and objectives. The BBNJ Agreement recognises an emerging trend in which environmental treaty bodies negotiate to include scientific inputs into decision-making processes, taking decisions per emerging principles and international law approaches, such as the precautionary principle, and making interactions more dynamic and current with scientific developments. It promises to increase ocean visibility and cultural accessibility in ABNJ to create a “human ocean” that acknowledges long-standing traditional awareness of the vastness of the global ocean governance system.
Nafees Ahmad is an Associate Professor, Faculty of Legal Studies, South Asian University, New Delhi. He is the co-author of the book Climate Refugees in South Asia: Protection Under International Legal Standards and State Practices in South Asia.