Introductory Course to 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

This course was developed in cooperation with the Division for Ocean Affairs and the Law of the Sea, UN
Office of Legal Affairs, on the basis of material developed by that Division.
Index
Table of Abbreviations............................................................................................................. 3
Lesson 1 ..................................................................................................................................... 5
1.1 Learning objectives .................................................................................................................... 6
1.2 Areas beyond national jurisdiction .......................................................................................... 6
1.3 Recap ......................................................................................................................................... 11

Lesson 2 ................................................................................................................................... 13
2.1 Learning objectives .................................................................................................................. 14
2.2 UNCLOS – General Aspects..................................................................................................... 14
2.3 Maritime zones – where are areas beyond national jurisdiction? .................................... 16
2.4 Protection and preservation of the marine environment .................................................. 21
2.5 Marine scientific research and the development and transfer of marine technology .. 27
2.6 Regime for activities in areas beyond national jurisdiction ............................................... 33
2.7 Recap ......................................................................................................................................... 37

Lesson 3 ................................................................................................................................... 43
3.1 Learning objectives .................................................................................................................. 44
3.2 The package of issues.............................................................................................................. 44
3.3 Marine genetic resources, including the fair and equitable sharing of benefits ............ 45
3.4 Measures such as area-based management tools, including marine protected areas . 51
3.5 Environmental Impact Assessments ..................................................................................... 55
3.6 Capacity-building and the transfer of marine technology ................................................. 59
3.7 Cross-cutting issues ................................................................................................................. 61
3.8 Recap ......................................................................................................................................... 67

2
Table of Abbreviations
ABMTs Area-based management tools
ABNJ Areas beyond national jurisdiction
ABS Access and Benefit-Sharing
BBNJ Marine biological diversity of areas beyond national jurisdiction
BBNJ Agreement 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
CBD Convention on Biological Diversity
CB&TMT Capacity-building and the transfer of marine
technology
CHM Clearing-House Mechanism
CITES Convention on International Trade in Endangered Species of
wild Fauna and Flora
COP Conference of the Parties
CMS Convention on Migratory Species of Wild Animals
DOALOS Division for Ocean Affairs and the Law of the Sea of the Office
of Legal Affairs of the United Nations
DSI Digital sequence information
EEZ Exclusive economic zone
EIA Environmental impact assessment
FAO Food and Agriculture Organization of the United Nations
IOC Intergovernmental Oceanographic Commission
ICP United Nations Open-ended Informal Consultative Process on
Oceans and the Law of the Sea
IFBs Legal instruments and frameworks, and global, regional,
subregional and sectoral bodies
IMO International Maritime Organization
IPLCs Indigenous Peoples and local communities
ISA International Seabed Authority
ITLOS International Tribunal for the Law of the Sea
MGRs Marine genetic resources
MPAs Marine protected areas
MSR Marine scientific research
Part XI Agreement Agreement relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea of 10
December 1982
REIO Regional Economic Integration Organization
RFMOs Regional Fisheries Management Organizations
RFMO/A’s Regional Fisheries Management Organizations and
Arrangements
SEA Strategic environmental assessment
STB Scientific and Technical Body
TMT Transfer of marine technology
UNCLOS United Nations Convention on the Law of the Sea
UNESCO United Nations Educational, Scientific and Cultural
Organization
UNFCCC United Nations Framework Convention on Climate Change
3
UNFSA Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10
December 1982 relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks
UN General Assembly United Nations General Assembly

4
Lesson 1
Introduction

5
1.1 Learning objectives
At the end of this module, you will be able to:
(1) Define areas beyond national jurisdiction (ABNJ).
(2) Describe the milestones in the process that led to the adoption 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).

1.2 Areas beyond national jurisdiction

Did you know?
Nearly two-thirds of the oceans are areas beyond national jurisdiction. But, what are areas
beyond national jurisdiction (ABNJ) under the United Nations Convention on the Law of the
Sea (UNCLOS)?

Hypothetical overview of repartition of oceans among high

seas areas and exclusive economic zones (EEZ) if all EEZ
had been declared up to 200 nautical miles.
 High seas: All parts of the sea that are not included in the EEZ, territorial sea, internal
waters, or archipelagic waters of an archipelagic State.
Area: The seabed and ocean floor and subsoil thereof
beyond the limits of national jurisdiction

Threats to BBNJ and the relevant governance framework

It has been recognized that many anthropogenic pressures, cumulatively, put marine
biological diversity of areas beyond national jurisdiction (BBNJ) at risk, including overfishing
and destructive fishing practices, climate change and ocean acidification and pollution from
various sources. Yet, BBNJ provides us with many goods and services, from the fish we eat to
the regulation of the global climate cycle.

Up to now several global and regional organizations had competence in ABNJ for a number of
sectoral activities, but there was no overall cross-sectoral management mechanism. Sectoral
organizations with a competence in ABNJ include the International Seabed Authority (ISA), the
Food and Agriculture Organization of the United Nations (FAO), the International Maritime
Organization (IMO) and the Intergovernmental Oceanographic Commission (IOC) of the United
Nations Educational, Scientific and Cultural Organization (UNESCO). The General Assembly of
the United Nations (UN General Assembly) provides global policy guidance on ocean affairs
and the law of the sea, including in relation to ABNJ, but it is not a management body.

Different legal regimes apply in ABNJ, namely the freedom of the high seas in the high seas
and the common heritage of humankind in relation to the Area and its resources.

BBNJ Agreement Timeline

7
Cognizant of this situation and the need to enhance the conservation and sustainable use of
BBNJ, the UN General Assembly launched discussions in 2004 to study various aspects of the
issue, including the legal, environmental, technological and socio-economic aspects, as well
as ways to strengthen international cooperation and coordination.

The adoption of the BBNJ Agreement is the outcome of a long, iterative process that took
place in various formats over nearly two decades. Discussions were extremely complex but a
shared sense of responsibility to improve the health and resilience of the ocean, and to
ensure that its conservation and sustainable use benefit all humanity, led to this significant
achievement.

• 2004: ICP meeting on new and sustainable uses of the oceans

The UN General Assembly first considered the issues relating to marine biological
diversity of ABNJ through the United Nations Open-ended Informal Consultative
Process on Oceans and the Law of the Sea (ICP).
The fifth meeting of the ICP focused its discussions, at the request of the UN General
Assembly, on the topic: “New and sustainable uses of the oceans, including the
conservation and management of the biological diversity of the seabed in areas beyond
national jurisdiction”.

• Establishment of the Ad Hoc Open-ended Informal Working Group

The UN General Assembly, taking into account the consensual elements adopted by
the meeting of the ICP, proceeded with the establishment of an “Ad Hoc Open-ended
Informal Working Group to study issues relating to the conservation and sustainable
use of marine biological diversity beyond areas of national jurisdiction” (A/RES/59/24,
para. 73).
From 2006 to 2011 the Ad Hoc Open-ended Informal Working Group held several
meetings. In 2010, it was, for the first time, mandated to make recommendations to
the UN General Assembly.

• 2011: A package of issues is agreed upon

2011 marked a turning point in the life of the Ad Hoc Open-ended Informal Working
Group with delegations deciding to establish a process, within the Working Group,
that would allow them to focus on a package of issues.
On the basis of the recommendations of the Working Group at that meeting, the UN
General Assembly decided to establish such a process with a view to ensuring that
the legal framework for the conservation and sustainable use of marine biodiversity
in ABNJ effectively addresses those issues by identifying gaps and ways forward,
including through the implementation of existing instruments and the possible
development of a multilateral agreement under UNCLOS.
It decided that this process should address the conservation and sustainable use of
marine biodiversity in areas beyond national jurisdiction, in particular, together and
as a whole, marine genetic resources, including questions on the 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.

8
 It also decided that this process would take place: (i) in the existing Working Group;
and (ii) in the format of intersessional workshops aimed at improving understanding
of the issues and clarifying key questions as an input to the work of the Working
Group.

• 2012: Rio+20
In 2012, the convening of the Rio+20 Conference provided an additional impetus to
the work of the Ad Hoc Open-ended Informal Working Group, with heads of States
and Governments:
o recognizing the importance of the conservation and sustainable use of marine
biodiversity beyond areas of national jurisdiction;
o noting the ongoing work under the BBNJ Working Group; and
o committing, building on the work of the Working Group and before the end of
the sixty-ninth session of the UN General Assembly, to address, on an urgent
basis, the issue of the conservation and sustainable use of marine biodiversity
of areas beyond national jurisdiction, including by taking a decision on the
development of an international instrument under UNCLOS.

• 2015: Decision of the UN General Assembly to Develop an International Legal

Binding Instrument under UNCLOS (Resolution 69/292)
2015 marked the completion of the work of the Ad Hoc Open-ended Informal
Working Group, with the adoption of its recommendations to the UN General
Assembly.
On the basis of those recommendations, the UN General Assembly adopted
resolution 69/292 of 19 June 2015, by which it decided to develop an international
legally binding instrument under UNCLOS on BBNJ, and established a Preparatory
Committee to make substantive recommendations on the elements of a draft text.
The Preparatory Committee met over four sessions in 2016 and 2017. In July 2017, it
adopted its report, including recommendations to the UN General Assembly.
In its report, the Committee recommended to the General Assembly:
o Elements of a draft text of an international legally binding agreement;
o That the UN General Assembly take a decision on the convening of an
intergovernmental conference to consider the Committee’s recommendations
on the elements and to elaborate the text of an international legally binding
instrument under UNCLOS.

• 2017: Decision of the UN General Assembly to convene the BBNJ

Intergovernmental Conference (Resolution 72/249)
On 24 December 2017, the UN General Assembly adopted Resolution 72/249, in
which, taking note of the report of the Preparatory Committee established by
resolution 69/292, it decided to convene an Intergovernmental Conference to:
o Consider the recommendations of the Preparatory Committee on the
elements of a draft text.
o Elaborate the text of an international legally binding instrument under
UNCLOS on the conservation and sustainable use of marine biological
diversity of areas beyond national jurisdiction.

9
 In resolution 72/249, the UN General Assembly also decided on a number of
substantive and procedural issues, including that:
o The negotiations would address the topics identified in the package agreed in
2011, namely, the conservation and sustainable use of marine biological
diversity of areas beyond national jurisdiction, in particular, together and as a
whole, marine genetic resources, including questions on the 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;
o The work and results of the Conference should be fully consistent with the
provisions of UNCLOS;
o The process and its result should not undermine existing relevant legal
instruments and frameworks and relevant global, regional and sectoral
bodies (IFBs);
o Neither participation in the negotiations nor their outcome may affect the
legal status of non-parties to UNCLOS or any other related agreements or the
legal status of parties to UNCLOS or any other related agreements.

• BBNJ Intergovernmental Conference

In accordance with resolution 72/249, the Conference held a three-day organizational

meeting in New York, from 16 to 18 April 2018, to discuss organizational matters,
including the process for the preparation of the zero draft of the instrument.

Between 2018 and 2023 the Intergovernmental Conference held five sessions:
o First session: 4 - 17 September 2018.
o Second session: 25 March – 5 April 2019.
o Third session: 19 – 30 August 2019.
o Fourth session: 7 – 18 March 2022.
o Fifth session: 15 – 26 August 2022.
On the last day of the fifth session, the Conference, in considering the way forward,
decided to suspend that session and resume it at a later date. The resumed fifth
session of the Intergovernmental Conference met from 20 February to 3 March
2023. At the end of that meeting, the Conference decided to further resume at a
later date with a view to adopting the agreement.

• Adoption of the BBNJ Agreement

Pursuant to UN General Assembly resolution 77/556 of 18 April 2023, the further

resumed fifth session of the Intergovernmental Conference was held at UN
Headquarters in New York on 19 and 20 June 2023. On 19 June 2023, the Conference
adopted, by consensus, the BBNJ Agreement. The Conference was closed on 20 June
2023.

• The way forward: Resolution 77/321 of the UN General Assembly

10
 On 1 August 2023, the UN General Assembly adopted resolution 77/321, in which it
welcomed the adoption of the BBNJ Agreement and approved the assumption by the
Secretary-General of the functions assigned to him under the Agreement, including
the depositary functions and the performance, through the Division for Ocean Affairs
and the Law of the Sea (DOALOS) of the UN Office of Legal Affairs, of the secretariat
functions under the Agreement until such time as the secretariat to be established
under the Agreement commences its functions.
In resolution 77/321, the UN General Assembly also requested DOALOS to undertake
activities to promote a better understanding of the Agreement and to prepare for its
entry into force.
On 20 September 2023, the BBNJ Agreement was opened for signature at UN
Headquarters in New York for two years, until 20 September 2025.

1.3 Recap
What are Areas Beyond National Jurisdiction (ABNJ)?
• The high seas - all parts of the sea that are not included in the EEZ, territorial sea,
internal waters, or archipelagic waters of an archipelagic State.
• The Area - the seabed and ocean floor and subsoil thereof beyond the limits of
national jurisdiction.

Threats to BBNJ and the relevant governance framework

• Pressures from overfishing and destructive fishing practices, climate change and
ocean acidification and pollution of the marine environment from various sources.
• Importance of BBNJ as a provider of many ecosystem services.
• Several sectoral organizations have competence in ABNJ.
• No cross-sectoral management body.
• Different legal regimes apply to the high seas and to the Area.

BBNJ Agreement Timeline

• In 2004, the UN General Assembly established an Ad Hoc Open-ended Informal
Working Group to study issues relating to BBNJ.
• From 2006-2015 the Ad Hoc Open-ended Informal Working Group carried out its work
including by focusing on a “package of issues” (marine genetic resources, including
questions on the 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).
• In 2015, the UN General Assembly, taking note of the recommendations of the Ad Hoc
Open-ended Informal Working Group, decided to develop an international legally
binding instrument under UNCLOS on BBNJ, and established a Preparatory Committee
to make recommendations on the elements of a draft text
• In 2017, the UN General Assembly, taking note of the report of the Preparatory
Committee, decided to convene an International Conference, under the auspices of
the United Nations, to elaborate the text of an international legally binding instrument
under UNCLOS on the conservation and sustainable use of marine biological diversity
of areas beyond national jurisdiction.
11
• From 2018 to 2023 the Intergovernmental Conference held five sessions.
• On 19 June 2023, the Conference completed its work by the adoption of the BBNJ
Agreement.

12
Lesson 2
The legal framework
2.1 Learning objectives
By the end of this module, you will be able to:
• Describe the international legal framework for ABNJ.
• Understand the legal and policy context surrounding the adoption of the BBNJ
Agreement.

2.2 UNCLOS – General Aspects

History of UNCLOS
• 1958: First United Nations Conference on the Law of the Sea
o Resulted in the adoption of four separate conventions on: the Territorial Sea
and the Contiguous Zone; the High Seas; Fishing and Conservation of the Living
Resources of the High Seas; and the Continental Shelf.
• 1960: Second United Nations Conference on the Law of the Sea
o Was convened to address the issue of the breadth of the territorial sea, but
failed to reach agreement on a compromise formula providing for a six-mile
territorial sea and a six-mile fishery zone.
• 1970: UN General Assembly Declaration of Principles (Resolution 2749(XXV))
o "The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of
national jurisdiction (hereinafter referred to as the “Area”), as well as the
resources of the Area, are the common heritage of mankind".
o The Area shall not be subject to national appropriation, nor be explored or
exploited except in accordance with an international regime to be established
and be used exclusively for peaceful purposes.
• 1973-1982: Third United Nations Conference on the Law of the Sea – UNCLOS
adopted and opened for signature on 10th December 1982

Key features of UNCLOS

• Entered into force on 16 November 1994
• 320 articles, 9 annexes
• Constitution for the ocean – sets out the legal framework within which all activities in
the oceans and seas must be carried out
• UNCLOS as a “package” – incorporates agreed compromises and balances competing
interests, producing an intricately balanced text to provide a basis for universal
adoption
• Ensures balance between the different interests of States (for example, the rights of
States to use the ocean and its resources, and the duty to protect and preserve the
marine environment)
• Imposes a duty on States to cooperate at global, regional and sub-regional levels -
international cooperation is one of the cornerstones of UNCLOS.
The “UNCLOS family” – Implementing Agreements
(1) Agreement relating to the Implementation of Part XI of UNCLOS (Part XI Agreement;
adopted in 1994)
(2) Agreement for the Implementation of the Provisions of UNCLOS relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks (UNFSA, adopted in 1995)
(3) 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, adopted in 2023)

UNCLOS as a framework Convention

UNCLOS addresses a wide range of issues and its provisions have been further elaborated
upon by sector-specific instruments.

Dispute settlement under UNCLOS

Disputes may arise in all maritime zones with respect to all kinds of activities in the ocean
and seas, including in the protection and preservation of the marine environment.

Part XV and annexes V to VIII provide for the regime to settle disputes concerning the
interpretation or application of UNCLOS.

General provisions
• General obligation to settle disputes by peaceful means (Article 279).
• Freedom to choose any peaceful means for settling disputes (Article 280).

15
Peaceful means
The peaceful means for dispute settlement provided under UNCLOS include, inter alia,
negotiation, conciliation, and compulsory procedures entailing binding decisions.

Advisory opinions
o The UNCLOS framework provides for the possibility of advisory opinions. Article 191
provides that the Seabed Disputes Chamber of the International Tribunal for the Law
of the Sea (ITLOS) shall give advisory opinions at the request of the Assembly or the
Council of the International Seabed Authority (ISA) on legal questions arising within
the scope of their activities and such opinions shall be given as a matter of urgency.
o Article 138 of the Rules of ITLOS states that it may give an advisory opinion on a legal
question if an international agreement related to the purposes of UNCLOS specifically
provided for the submission to the Tribunal of a request for such an opinion.

2.3 Maritime zones – where are areas beyond national

jurisdiction?
Overview of maritime zones provided for in UNCLOS
Baselines: Line from which breadth of maritime zones is measured. Four types: (1) Normal
baseline, (2) Straight baseline, (3) Closing line and (4) Archipelagic baseline.

Internal waters: Waters on landward side of baseline. Considered part of the territory:
coastal States have sovereignty.

Territorial sea (Articles 2-32): Sovereignty of a coastal State extends beyond its land
territory and internal waters and, in case of an archipelagic State, its archipelagic waters, to
an adjacent belt of sea: the territorial sea.
• Breadth: up to 12 nautical miles, measured from the baselines
• Entitlement: inherent part of its territory
• Scope: water column, air space, seabed and subsoil

16
 • Third States: right of innocent passage through the territorial sea; right of transit
passage through straits used for international navigation.

Contiguous zone (Articles 33; 303): The contiguous zone is a maritime zone contiguous and
seaward of the territorial sea within which coastal States have jurisdiction with regard to
customs, fiscal, immigration or sanitary laws, as well as the traffic of archaeological and
historical objects found in the contiguous zone.
• Breadth: from the outer limit of the territorial sea to up to 24 nautical miles,
measured from the baselines
• Entitlement: the coastal State may proclaim it
• Scope: water column and seabed
• Third States: freedoms of navigation, overflight and laying of submarine
cables/pipelines.

Exclusive economic zone (Articles 55-75): The EEZ is an area beyond and adjacent to the
territorial sea.
• Breadth: from the outer limit of the territorial sea to up to 200 nautical miles,
measured from the baselines
• Entitlement: the coastal State may proclaim it
• Scope: water column, seabed and subsoil
• Coastal States:
o Sovereign rights for the purposes of exploring, exploiting, conserving and
managing natural resources and with regard to other economic activities
o Jurisdiction: (i) establishment and use of artificial islands, installations and
structures; (ii) marine scientific research; and (iii) protection and preservation
of the marine environment
o Other rights and duties provided for in UNCLOS
• Third States: freedoms of navigation, overflight and laying of submarine cables and
pipelines, but also duties.

Continental shelf – legal regime (Articles 76-84): the continental shelf of a coastal State
comprises the seabed and subsoil of the submarine areas that extend beyond its territorial
sea.
• Breadth: from the outer limits of the territorial sea:
o up to 200 nautical miles, measured from the baselines, or
o for the States with continental margins extending beyond 200 nautical miles,
up to the outer limits established in accordance with Article 76, paragraph 8,
of UNCLOS, on the basis of the recommendations by the Commission on the
Limits of the Continental Shelf.
• Entitlement: inherent sovereign rights and jurisdiction
• Scope: seabed and subsoil
• Content of the legal regime: the coastal State has sovereign rights for the purpose of
exploring the continental shelf and exploiting its natural resources
• In this context, natural resources consist of mineral resources and other non-living
resources of the seabed and subsoil together with living organisms belonging to
sedentary species
• These rights are:
o Exclusive;
o Independent from occupation or proclamation.

17
 • Third States: no infringement of or unjustifiable interference by the coastal State with
navigation and other rights and freedoms of other States (Article 78). All States are
entitled to lay submarine cables and pipelines in accordance with Article 79.

Maritime zones beyond areas of national jurisdiction

High seas (Articles 86-120)
• Open to all States, whether coastal or land-locked
• Flag State exclusive jurisdiction with some exceptions
• Freedom of the high seas comprises, inter alia:
o navigation
o overflight
o laying of submarine cables and pipelines
o constructing artificial islands and other installations
o fishing, subject to duties of conservation and management
o scientific research.

Qualified freedoms of the high seas

High seas freedoms are qualified by general obligations in UNCLOS:
• States shall exercise the freedoms on the high seas with due regard for the interests
of other States in their respective exercise of the freedom of the high seas (Article 87)
• The high seas shall be reserved for peaceful purposes (Article 88)
• No State may validly purport to subject any part of the high seas to its sovereignty
(Article 89)
• The duty to protect and preserve the marine environment (Article 192).
High seas freedoms are also qualified by:
• Specific provisions in UNCLOS. For example, the freedom of fishing is subject to:
o The conditions laid down in Part VII, Section 2;
o Treaty obligations, for example, the UNFSA.
High seas freedoms must also be exercised with due regard for the rights and interests of
coastal States, including with respect to their sovereign rights over the continental shelf. For
example, sovereign rights over sedentary species v. high seas freedom of fishing.
18
Duties of the flag State
UNCLOS sets out general obligations on the flag State in authorizing its vessels to fly its flag.
• Every State shall fix the conditions for the grant of its nationality to ships, for the
registration of ships in its territory and for the right to fly its flag. Ships have the
nationality of the State whose flag they are entitled to fly. There must exist a “genuine
link” between the State and the ship (Article 91 – see also the Judgments of ITLOS in
the cases The M/V "SAIGA" (Saint Vincent and the Grenadines v. Guinea), The M/V "Virginia
G" (Panama/Guinea-Bissau)).
• Every State shall effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag (Article 94 – see also the Advisory
Opinion regarding illegal, unreported and unregulated fishing activities delivered by
ITLOS on the Request submitted by the Sub-Regional Fisheries Commission).
Measures to be taken by the flag State
Each State is required to adopt measures that conform to generally accepted international
regulations, procedures and practices and to take any steps which may be necessary to
secure their observance.
Enforcement jurisdiction on the high seas
• Exclusive jurisdiction of flag States on the high seas is subject to exceptions for ships:
o Engaged in piracy
o Engaged in slave trade
o Engaged in unauthorized broadcasting, under certain conditions
o Engaged in illicit traffic in narcotic drugs or psychotropic substances, under
certain conditions
o Without nationality
o Of the same nationality as the boarding warship, even though the boarded
ship is flying a foreign flag or refusing to show its flag.
• Warships of other States have “right of visit” (Article 110)
• Hot pursuit (Article 111)
• Other treaties also provide for enforcement action (e.g. UNFSA).

The Area
Over half of the earth surface.
Definitions
• “Area”: The seabed and ocean floor and subsoil thereof, beyond the limits of national
jurisdiction (Article 1(1)).
• ”Activities in the Area”: All activities of exploration for, and exploitation of, the
resources of the Area (Article 1(3)).
• ”Resources”: All solid, liquid or gaseous mineral resources in situ in the Area at or
beneath the seabed, including polymetallic nodules (Article 133).

Main characteristics of the regime for the Area

UNCLOS, Part XI:
• The Area and its resources are the common heritage of mankind (Article 136);
• Open to use exclusively for peaceful purposes (Article 141);
• Activities in the Area shall be carried out for the benefit of mankind as a whole,
irrespective of the geographical location of States, whether coastal or land-locked,

19
 and taking into particular consideration the interests and needs of developing States
(Article 140);
• No State shall claim or exercise sovereignty or sovereign rights over any part of the
Area or its resources (Article 137);
• All rights in the resources of the Area are vested in mankind as a whole, on whose
behalf the ISA shall act (Article 137);
• States Parties organize and control activities in the Area, particularly with a view to
administering the resources of the Area, through the ISA, in accordance with Part XI
of UNCLOS and the Part XI Agreement (Article 137).

Marine scientific research in the Area

• Exclusively for peaceful purposes and for the benefit of mankind as a whole (Article
143);
• All States, irrespective of their geographical location, and competent international
organizations have the right, in conformity with the provisions of Part XI, to conduct
marine scientific research in the Area (Article 256);
• Part XI provides that States Parties may carry out marine scientific research in the
Area (Article 143);
• States Parties shall promote international cooperation in marine scientific research in
the Area (Article 143);
• ISA shall promote and encourage the conduct of marine scientific research in the
Area, and shall coordinate and disseminate the results of such research and analysis
when available (Article 143).

Transfer of technology
• ISA to take measures in accordance with UNCLOS (Article 144):
o to acquire technology and scientific knowledge relating to activities in the
Area; and
o to promote and encourage the transfer to developing States of such
technology and scientific knowledge.

Protection of the marine environment in the Area

• Necessary measures shall be taken with respect to activities in the Area to ensure
effective protection for the marine environment from harmful effects which may
arise from such activities (Article 145);
• ISA to adopt rules, regulations and procedures for:
o The prevention, reduction and control of pollution and other hazards to the
marine environment; and
o The protection and conservation of the natural resources of the Area and the
prevention of damage to the flora and fauna of the marine environment.

20
2.4 Protection and preservation of the marine
environment
Introduction
The conduct of activities in all maritime zones, including in ABNJ, is subject to:
• The general obligation to protect and preserve the marine environment in Article 192
of Part XII of UNCLOS;
• Other applicable obligations in Part XII of UNCLOS and;
• Other Articles in UNCLOS as well as other relevant international instruments.
The preamble of UNCLOS states that one of the main goals of the legal order established
through UNCLOS is to promote the protection and preservation of the marine environment.
The provisions for the protection and preservation of the marine environment set out in
UNCLOS are of a general nature and are supplemented and further elaborated upon by
other instruments.

In this section you will learn about the regime for the protection and preservation of the
marine environment under UNCLOS and the numerous instruments and frameworks that
supplement UNCLOS, directly or indirectly addressing issues relevant to the conservation
and sustainable use of biodiversity in ABNJ. These include:
• Instruments and frameworks addressing biodiversity generally, including
conservation of endangered and/or migratory species;
• sectoral and/or regional instruments, which regulate activities, such as navigation,
fishing and seabed activities; and
• relevant instruments concerning sustainable development.

Part XII of UNCLOS, particularly Articles 192 and 193, as well as provisions of relevance in
various other parts of the Convention, reflect the balance between sovereign rights over
natural resources and uses of the ocean and seas for economic and social development and
the obligation to protect and preserve the marine environment.

Part XII UNCLOS

General Provisions – Section 1
Part XII opens with a series of general obligations, which apply to all States in all maritime
zones including ABNJ.
There is a general obligation for States to protect and preserve the marine environment
(Article 192). But this is qualified by Article 193 – “States have the sovereign right to exploit
their natural resources pursuant to their environmental policies and in accordance with their
duty to protect and preserve the marine environment”.
States have the duty to take all measures necessary to prevent, reduce and control pollution
of the marine environment (Article 194). This obligation is qualified by the statement that
States must do so in accordance with their capabilities and use for that purpose the best
practical means at their disposal. Article 1 of UNCLOS defines pollution.

21
 Definition of “pollution of the marine environment” under UNCLOS:
"The introduction by man, directly or indirectly, of substances or energy into
the marine environment, including estuaries, which results or is likely to result
in such deleterious effects as harm to living resources and marine life, hazards
to human health, hindrance to marine activities, including fishing and other
legitimate uses of the sea, impairment of quality for use of sea water and
reduction of amenities;”

• Measures taken include those necessary to protect and preserve rare or fragile
ecosystems as well as the habitat of depleted, threatened or endangered species and
other forms of marine life (Article 194(5)).
• ITLOS clarified, when it prescribed provisional measures in the Southern Bluefin
Tuna Case, that “the conservation of the living resources of the sea is an element in
the protection and preservation of the marine environment”. It reiterated and
elaborated further on the statement in the Request for an Advisory Opinion
submitted by the Sub-Regional Fisheries Commission, when it recalled that living
resources and marine life are part of the marine environment.
• States have a duty to take all necessary measures to prevent, reduce and control
pollution of marine environment resulting from the use of technologies under their
jurisdiction or control, and to protect the marine environment from significant and
harmful changes resulting from intentional or accidental introduction of alien or new
species (Article 196).
• States have a duty to prevent transboundary effects of pollution (Article 194(2)) and
not to transfer pollution from one part of the sea to another, or transform one type
of pollution into another (Article 195). The duty to prevent transboundary effects of
pollution and the duty not to transfer damage or hazards from one area to another
or transform one type of pollution into another are two examples of the holistic
approach the UNCLOS adopted on the protection and preservation of the marine
environment.

Global and Regional Cooperation – Section 2

The duty to cooperate covers three different aspects under UNCLOS:
First, cooperation on a global and regional basis in formulating and elaborating international
rules, standards and recommended practices and procedures for the protection and
preservation of the marine environment. In undertaking this duty States are requested to
take into account characteristic regional features. Many rules, standards and recommended
practices and procedures have been developed at the global and regional levels as detailed
below.
Second, cooperation is required in the form of a duty of notification of imminent or actual
damage as well as a duty for States and competent international organizations to cooperate
in eliminating the effects of pollution and preventing or minimizing damage. To this end,
States are under a duty to develop and promote contingency plans for responding to
pollution incidents.

22
Third, scientific cooperation. States are under:
(1) A duty to cooperate for the purpose of promoting studies, undertaking
programmes of scientific research and encouraging the exchange of information and
data acquired about pollution of the marine environment; and
(2) A duty to cooperate in establishing appropriate scientific criteria for the
formulation and elaboration of rules, standards and recommended practices and
procedures for the prevention, reduction and control of pollution of the marine
environment.

Monitoring and Environmental Assessment – Section 4

Under Article 204, States have a duty to observe, measure, evaluate and analyse, by
recognized scientific methods, the risks or effects of pollution of the marine environment. In
particular, States have to keep under surveillance the effects of any activities which they
permit or in which they engage in order to determine whether these activities are likely to
pollute the marine environment.
Article 205 complements the duty of monitoring by providing for the duty to communicate
the results obtained from monitoring. The importance of assessment is also underlined in
UNCLOS , in particular through the requirement that when States have reasonable grounds
for believing that planned activities under their jurisdiction or control may cause substantial
pollution of or significant and harmful changes to the marine environment, they shall, as far
as practicable, assess the potential effects of such activities on the marine environment and
shall communicate reports of the results of such assessments in the manner provided in
Article 205.
These provisions provide the basis for environmental impact assessments under UNCLOS.
They are complemented and further developed by the provisions on environmental impact
assessments contained in Part IV of the BBNJ Agreement.

International Rules and National Legislation – Section 5

States are required to establish in the case of pollution from seabed activities subject to
national jurisdiction, pollution from activities in the Area and pollution from vessels, or
endeavour to establish in the case of pollution from land-based sources, pollution by
dumping and pollution from or through the atmosphere, especially through the competent
international organizations or diplomatic conference, international rules to prevent, reduce
and control pollution of the marine environment from the afore-mentioned sources. Many
of such international rules can be found in sectoral/regional instruments regulating activities
in ABNJ.
States are also required to adopt national laws and regulations to prevent, reduce and
control pollution of the marine environment from different sources. The extent to which
such laws and regulations are to conform to applicable international rules and standards is
set out in different provisions of UNCLOS and varies according to the type of pollution
sources being regulated. In the case of pollution from vessels, seabed activities subject to
national jurisdiction, and activities in the Area by vessels, installations, structures and other
devices, national laws are to be no less effective than the international rules and standards.
As to pollution by dumping, national laws and regulations shall be no less effective than the
global rules and standards. Stricter rules can be adopted at national level, except those
affecting the design, construction, manning or equipment of foreign ships. In the case of
pollution from land-based sources and pollution from or through the atmosphere,
23
international rules and standards are to be taken into account in the adoption of national
laws.

Enforcement – Section 6
UNCLOS sets out obligations to enforce national laws and regulations and to adopt laws and
regulations and take other measures necessary for the implementation of applicable
international rules and standards, established through competent international
organizations or diplomatic conference, with respect to pollution:
• From land-based sources
• From sea-bed activities under national jurisdiction
• From or through the atmosphere
Applicable international rules and standards are to be found in other relevant instruments.
Enforcement of international rules, regulations and procedures to prevent, reduce and
control pollution of the marine environment from activities in the Area is governed by
UNCLOS Part XI.
Laws and regulations and applicable international rules and standards with respect to
pollution by dumping shall be enforced by the coastal State, the flag State and any other
State depending on the circumstances.
With respect to pollution from vessels, laws and regulations and applicable international
rules and standards shall be enforced by flag States, and may also be enforced by port
States and coastal States depending on the circumstances.

Safeguards – Section 7
Section 7 provides for procedural and other safeguards against abuses in the exercise of
enforcement powers. It is designed to protect the rights of foreign vessels. The inclusion of
this Section reflects a balance between the need to protect and preserve the marine
environment through more effective measures and the need to maintain freedom of
navigation. As a result, the articles in that Section primarily relate to “foreign vessels”.

Responsibility and Liability – Section 9

Article 235 provides that States are responsible for the fulfilment of their international
obligations concerning the protection and preservation of the marine environment and that
they shall be liable in accordance with international law.
o To note: The relevant work of the International Law Commission provides guidance in
that regard on the current state of international law (Draft articles on the
Responsibility of States for Internationally Wrongful Acts; Draft articles on Prevention
of Transboundary Harm from Hazardous Activities; and Draft principles on the
allocation of loss in the case of transboundary harm arising out of hazardous
activities).
States are under a duty to ensure that prompt and adequate compensation or other relief in
respect of damage caused by pollution of the marine environment by natural or juridical
persons under their jurisdiction are available.

24
Sovereign Immunity – Section 10
States have the duty to ensure that the following vessels or aircraft act in a manner
consistent with the provisions of UNCLOS regarding the protection and preservation of the
marine environment, so far as is reasonable and practicable:
• warships
• naval auxiliary
• other vessels or aircraft owned or operated by a State and used, for the time being,
only on governmental non-commercial service

Obligations under other conventions – Section 11

Part XII is without prejudice to:
• Specific obligations under special conventions and agreements concluded previously
on the protection and preservation of the marine environment
• Agreements which may be concluded in furtherance of the general principles set
forth in UNCLOS
Specific obligations under such conventions and agreements are to be carried out in a
manner consistent with the general principles and objectives of UNCLOS.
As a framework instrument, UNCLOS relies on the effective implementation of a number of
specialized instruments, and requires such instruments to be developed where these do not
exist.

Climate change
The interlinkages between climate change and the ocean call for diverse and cross-sectoral
responses to address the effects of climate change and related changes in the atmosphere
on oceans. Cooperation and coordination and integrated approaches at all levels are
therefore essential in the planning and implementation of successful action to tackle this
global challenge.

Several international legal and policy instruments contain measures to tackle the effects of
climate change on oceans:
o UNCLOS: While UNCLOS does not refer to climate change, its provisions on pollution
from land-based sources and pollution from or through the atmosphere provide a
relevant framework to regulate greenhouse gas emissions in as far as they impact
the marine environment.
o United Nations Framework Convention on Climate Change (UNFCCC): Has as its
objective the “stabilization of greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous anthropogenic interference with the climate
system to, inter alia, allow ecosystems to adapt naturally to climate change, to ensure
that food production is not threatened”.
o Paris Agreement: Commits all States to reduce rates of GHG emissions with the
objective of holding the increase in the global average temperature to well below 2°C
above pre-industrial levels and to pursue efforts to limit the temperature increase to
1.5°C.

25
Other relevant instruments

Convention on Biological Diversity (CBD)

Three main objectives (Article 1):
▪ Conservation of biological diversity,
▪ Sustainable use of its components, and
▪ Fair and equitable sharing of the benefits arising
out of the utilization of genetic resources.
Not applicable to components of biodiversity in ABNJ
(Article 4)
Obligation of cooperation for the conservation and
sustainable use of biodiversity in ABNJ (Article 5)

Kunming-Montreal Global Biodiversity Framework (GBF)

• Adopted in 2022 during the fifteenth meeting of the Conference of the
Parties (COP 15) to the CBD.
• Action- and results-oriented.
• Aims to transform societies’ relationship with biodiversity by 2030, in line
with the 2030 Agenda for Sustainable Development and its Sustainable
Development Goals, and ensure that, by 2050, the shared vision of living in
harmony with nature is fulfilled.
• Among its key elements are 4 goals for 2050 and 23 targets for 2030.

Convention on International Trade in

Endangered Species of Wild Fauna and Flora
(CITES)
▪ CITES addresses threats to biodiversity by
controlling and/or preventing trade in species of
wild fauna and flora when they are threatened by
over-exploitation or extinction as a result of trade.
▪ CITES bans commercial international trade on an
agreed list of endangered species (appendix I)
and regulates and monitors trade in others that
might become endangered (appendix II).
▪ Species that are not necessarily threatened on a
global level, but that are protected within
individual States, may be listed in appendix III
where that State has sought the help of other
CITES Parties to control international trade in that
species.

26
 Convention on Migratory Species of Wild Animals
(CMS)
▪ CMS requires its Contracting Parties to take,
individually or in cooperation, appropriate and
necessary steps to conserve migratory species and
their habitats.
▪ Migratory species and habitats protected by the
Convention are listed in two appendices: appendix I
species, which are in danger of extinction and for
which specific obligations are undertaken, and
appendix II species, which need or would significantly
benefit from international cooperation.
▪ Several marine species are included in appendices I
and II.

Sustainable Development instruments

Major global instruments on sustainable development, while not legally binding,
are also relevant to biodiversity in ABNJ. Indeed, the protection of biodiversity,
including marine biodiversity, has been an important point of emphasis since 1992.
Most recently:
▪ The 2030 Agenda: The 2030 Agenda for Sustainable Development incorporates
goals and targets – in particular Goal 14: “Conserve and sustainably use the
oceans, seas and marine resources for sustainable development” - the
implementation of which would also benefit ABNJ.
▪ UN Ocean Conferences to support implementation of SDG14: In 2015, the
UN General Assembly decided to convene a high-level United Nations
Conference to Support the Implementation of Sustainable Development Goal
14. The first UN Ocean Conference was held at UN Headquarters in New York in
2017. This first Conference was followed by a second one held in Portugal in
2022. A third UN Ocean Conference will be held in 2025 in France.

Other relevant instruments are outlined in section 2.6.

2.5 Marine scientific research and the development and

transfer of marine technology
Introduction
UNCLOS recognizes, in its preamble, the need to promote the study of the marine
environment.

UNCLOS sets out the legal regime for marine scientific research (MSR) and the development
and transfer of marine technology (TMT) in Parts XIII and XIV, respectively. However, there are
also provisions in other Parts of UNCLOS which are relevant.
27
Marine scientific research
UNCLOS Part XIII
Part XIII of UNCLOS lays down a comprehensive global regime under which States are
required to conduct MSR and cooperate in such research.
It strikes a balance between the rights of the coastal State to regulate and authorize the
conduct of MSR in zones under its sovereignty or jurisdiction, and the rights of researching
States to carry out research.

Scope of MSR
Different views were expressed during the negotiations of UNCLOS on what MSR might
encompass. Over the course of negotiations, it became clear that it would be difficult to
distinguish between research directed at the exploration and exploitation of marine
resources or at other purposes (i.e. applied research) and research not directed towards
those purposes (i.e. fundamental or pure research).
There is therefore no definition of MSR in UNCLOS. There is also no definition of other
related activities including survey activities, prospecting or exploration.
The result has been a divergence in State interpretations of what MSR encompasses.

General provisions
All States and competent international organizations have the right to conduct MSR. This
right is not absolute, but subject to the rights and duties of other States as provided for in
UNCLOS (Article 238).
States and competent international organizations have a duty to promote and facilitate the
development and conduct of MSR (Article 239).

General principles (Articles 240 and 241)

• MSR must be conducted exclusively for peaceful purposes;
• MSR must also be conducted with appropriate scientific methods and means;
• MSR must not unjustifiably interfere with other legitimate uses of the sea (e.g. fishing
or navigation shall be duly respected in the course of such uses);
• MSR must be conducted in compliance with relevant regulations (e.g. for the
protection and preservation of the marine environment);
• MSR activities cannot form the legal basis for any claim to any part of the marine
environment or its resources.

MSR in different maritime zones

MSR can be conducted in all maritime zones, but the regime that applies is different.

28
Territorial Sea:
• Coastal States have the exclusive right to regulate, authorize and conduct MSR. MSR
can only be conducted in the territorial sea with the express consent of and under
the conditions set forth by the coastal State (Article 245).

EEZ and Continental Shelf:

• Coastal States have the right to regulate, authorize and conduct MSR (Article 246).
o Coastal States shall, in normal circumstances, grant their consent for MSR
projects by other States or competent international organizations in their EEZ
or on their continental shelf to be carried out in accordance with UNCLOS
exclusively for peaceful purposes and in order to increase scientific knowledge
of the marine environment for the benefit of all mankind.
o Coastal States can only withhold consent in certain specific circumstances.
o Coastal States cannot withhold consent for MSR projects on the continental
shelf beyond 200 nautical miles, except in specific areas designated for
exploration or exploitation of resources.

Area:
• MSR in the Area is to be conducted in accordance with Part XI and XIII of UNCLOS and
the Part XI Agreement and for the benefit of mankind.
• The role of the ISA in this context is to (Article 143):
o Promote and encourage conduct of research;
o Coordinate and disseminate results of research and analysis, when available,
with particular emphasis on research related to the environmental impact of
activities in the Area; and
o May carry out MSR relating to the Area and its mineral resources and enter into
contracts for that purpose.
• States Parties to UNCLOS may also carry out MSR in the Area. They shall promote
international cooperation in MSR in the Area by participating in international
programmes and encouraging cooperation in MSR; ensuring that programmes are
developed through the ISA or other international organizations as appropriate with a
view to inter alia strengthen the research capabilities and training the personnel of
developing States and technologically less developed States; and effectively
disseminating research results and analysis.
29
 High Seas:
• All States, irrespective of their geographical location, and competent international
organizations have the right to conduct MSR (Article 238);
• Must have due regard for the interests of other States in their exercise of the freedoms
of the high seas (Article 87(2));
• Must have due regard for the rights related to activities in the Area (Article 87(2));
• Must make available by publication and dissemination knowledge resulting from MSR
(Article 244).

International cooperation in MSR

• States and international organizations shall promote international cooperation in
MSR on the basis of mutual benefit (Article 242).
• Specifically, international cooperation is foreseen in the form of:
o Conclusion of bilateral and multilateral agreements to create favourable
conditions for MSR (Article 243);
o Integration of the efforts of scientists in studying the essence of phenomena
and processes occurring in the marine environment and the interrelations
between them (Article 243).
• There are also a number of obligations in relation to publication and dissemination of
information and knowledge in UNCLOS. States and competent international
organizations are to make available information on MSR programmes, their
objectives and knowledge resulting from MSR (Article 244(1)). States are to actively
promote the flow of scientific data and information and the transfer of knowledge
resulting from MSR, especially to developing States, and the strengthening of the
autonomous MSR capabilities of developing States (Article 244(2)).
• Obligations regarding the publication of results, the dissemination of scientific data,
information and knowledge, including that acquired through MSR, are also included
in Parts XI, XII, and XIV.

Other provisions
• UNCLOS also contains provisions relating to the deployment and use of scientific
research installations or equipment in the marine environment (Articles 258 to 262);
responsibility and liability (Article 263); and settlement of disputes and interim
measures (Articles 264 to 265).

The BBNJ Agreement includes a number of provisions of relevance to marine scientific

research in areas beyond national jurisdiction.

Development and Transfer of Marine Technology

UNCLOS Part XIV
UNCLOS provides a strong treaty basis for fostering the transfer of marine technology (TMT)
to States that need and request technical assistance, particularly developing States.

Scope of TMT
“Marine technology” is not defined in UNCLOS. However, technology is described in the IOC
Criteria and Guidelines on the Transfer of Marine Technology and includes the following:

30
General provisions (Articles 266 and 267)

• Development and TMT on fair and reasonable terms and conditions;

• Development of marine scientific and technological capacity of States which may
need and request technical assistance in this field, particularly developing States,
including land-locked and geographically disadvantaged developing States, with
regard to the exploration, exploitation, conservation and management of marine
resources, the protection and preservation of the marine environment, marine
scientific research and other activities in the marine environment compatible with
UNCLOS, with a view to accelerating the social and economic development of
developing States;
• Fostering of favourable economic and legal conditions for TMT for the benefit of all
parties on an equitable basis;
• Due regard for all legitimate interests, including, inter alia, the rights and duties of
holders, suppliers and recipients of marine technology.
Objectives and how to achieve them:

The basic objectives are (Article 268):

• Acquisition, evaluation and dissemination of marine technological knowledge and
access to information and data;
• Development of appropriate marine technology;
• Development of necessary technological infrastructure to facilitate TMT;
• Development of human resources through training and education of nationals of
developing States and countries and especially the nationals of the least developed
among them;
• International cooperation at all levels.

31
To achieve the basic objectives, States shall endeavour to (Article 269):
• Establish programmes of technical cooperation for effective TMT to developing States
which have not been able to establish or develop their own technological capacity in
marine science and in the exploration and exploitation of marine resources or to
develop the infrastructure of such technology;
• Promote favourable conditions for the conclusion of agreements and contracts,
under equitable and reasonable conditions;
• Hold conferences, seminars and symposia on scientific and technological subjects;
• Promote the exchange of scientists and of technological and other experts;
• Undertake projects and promote joint ventures and other forms of bilateral and
multilateral cooperation.

National and regional centres

States shall promote the establishment, particularly in developing coastal States, of national
marine scientific and technological research centres, and the strengthening of existing,
national centres, in order to stimulate and advance the conduct of MSR by developing States
and enhance their national capabilities to utilize and preserve their marine resources for
their economic benefit (Article 275(1)). States are also to give adequate support to facilitate
the establishment and strengthening of such national centres so as to provide for advanced
training facilities and necessary equipment, skills and know-how (Article 275(2)).
States, in coordination with competent international organizations, are also to promote the
establishment of regional centres, particularly in developing States (Article 276), inter alia to
foster the transfer of marine technology, as well as (Article 277):
• Training, education and studies in various fields;
• Organization of regional conferences, seminars and symposia;
• Acquisition and processing of marine scientific and technological data and
information and dissemination of results of research;
• Publication and comparative study of national policies;
• Compilation of information on technology marketing, and on contracts and other
arrangements concerning patents;
• Technical cooperation with other States of the region.

International cooperation on MSR and TMT

UNCLOS imposes obligations related to international coordination and cooperation through
bilateral, regional, and multilateral programmes and appropriate funding, to facilitate MSR
and the development and TMT. This includes:
• Coordination of activities in the field of TMT of competent international
organizations, taking into account the interests and needs of developing States,
particularly land-locked and geographically disadvantaged States (Article 272);
• Cooperation with competent international organizations and ISA (Article 273);
• Cooperation among competent international organizations (Article 278);
• ISA is to acquire technology and scientific knowledge relating to activities in the Area,
and to promote and encourage their transfer to developing States (Article 144(1)),
and to ensure that States that may need and request technical assistance are
assisted in acquiring inter alia necessary equipment, technical know-how through any
financial arrangements provided for in UNCLOS (Article 274(d)).

32
Other relevant provisions of UNCLOS
• The marine environment:
o States are to promote programmes of scientific, educational, technical and
other assistance to developing States for the protection and preservation of
the marine environment and the prevention, reduction and control of marine
pollution, including by (Article 202):
▪ Training their scientific and technical personnel;
▪ Facilitating their participation in relevant international programmes;
▪ Supplying them with the necessary equipment and facilities;
▪ Enhancing their capacity to manufacture such equipment;
▪ Providing advice on, and developing facilities for, research, monitoring,
education and other programmes;
▪ Providing assistance for the preparation of environmental
assessments.
• The conservation and management of living marine resources:
o UNFSA also has dedicated provisions regarding cooperation in scientific
research, which includes an obligation to cooperate to strengthen scientific
research capacity in the field of fisheries and actively promote the publication
and dissemination of results (UNFSA, Article 14)

Although UNCLOS does not use the phrase “capacity-building”, several of its provisions
address the need to build the capacity of States, in particular of developing States, as well
as the transfer of marine technology.

The BBNJ Agreement includes provisions on the capacity-building and the transfer of marine
technology.

2.6 Regime for activities in areas beyond national

jurisdiction
Fishing
UNCLOS sets out the legal regime for sustainable fisheries under international law.
Part VII, Section 2, provides the legal framework for the conservation and management of
living resources of the high seas, including the obligation on States, whose nationals exploit
such resources, to cooperate in taking the measures necessary for the conservation of the
living resources concerned. In addition, Articles 63 and 64 set out specific obligations of
States for cooperation in respect of straddling fish stocks, which are located both within the
EEZ and in an area beyond and adjacent to it, and highly migratory fish stocks, which migrate
over vast areas of the oceans.
In this respect, all States have the right for their nationals to engage in fishing on the high
seas, subject to certain qualifications, including their treaty obligations, and the provisions
set out in Part VII, Section 2 of UNCLOS.
UNCLOS requires States to cooperate directly or through existing organizations for the
conservation and management of the living resources in the high seas. Cooperation in this
respect includes entering into negotiations with a view to taking conservation measures for
the stocks concerned, and establishing a subregional or regional fisheries management
33
organization where none exist, as a forum for such cooperation. It also includes the
exchange of available scientific information, catch and fishing effort statistics and other data
on a regular basis through the competent international organizations at the subregional,
regional and global levels.
UNCLOS also provides parallel obligations in the EEZ for States to adopt conservation and
management measures based on the best scientific evidence available, directed at
maintaining populations at levels that can produce the maximum sustainable yield (MSY), as
qualified by relevant environmental and economic factors, and for taking into consideration
the effects of these measures on associated or dependent species.
The UNFSA implements provisions in UNCLOS requiring cooperation between coastal States
and high seas fishing States and provides the legal regime for the conservation and
management of straddling fish stocks and highly migratory fish stocks.
In doing so, UNFSA contains principles of conservation and management already established
in UNCLOS as well as norms and rules developing, strengthening or facilitating the
implementation of relevant provisions of UNCLOS In some cases, UNFSA also contains
provisions which break new ground and go beyond what is already provided in UNCLOS.
Some of the elements of the UNFSA regime for fishing activities are:
o Cooperation in the conservation and management of straddling fish stocks and
highly migratory fish stocks
o Compatibility of conservation and management measures established for the high
seas and those adopted for areas under national jurisdiction to ensure conservation
and management of the straddling fish stocks and highly migratory fish stocks in
their entirety.
o Application of the precautionary approach
o Application of an ecosystem approach
o Flag State responsibilities
o Port State measures
UNFSA gives a key role to regional fisheries management organizations and arrangements
(RFMOs/As) for the conservation and management of straddling fish stocks and highly
migratory fish stocks in accordance with each RFMO/A’s geographic scope and specific
species coverage
Efforts are on-going to improve the conservation and management of covered stocks,
including through the Review Conference on UNFSA.
The provisions of UNCLOS and UNFSA are complemented by other international
instruments (e.g. FAO instruments, such as the Agreement to Promote Compliance with
International Conservation and Management Measures by Fishing Vessels on the High Seas,
UN General Assembly resolutions, Regional Fisheries Management Organizations (RFMOs)
instruments and biodiversity instruments)

Shipping
UNCLOS sets out the legal regime for navigation (and overflight), including on the high seas:
o The high seas are open to the vessels and aircrafts of all States.
o Freedom of navigation provides ships of any State with the right to traverse the high
seas with no or minimal interference from any other State. A key aspect of freedom
of navigation is that it is exercised under the exclusive jurisdiction of the flag State.

34
 o However, even on the high seas, freedom of navigation is not without limitations and
obligations. It must be exercised subject to the conditions laid down in UNCLOS,
including those on the protection and preservation of the marine environment, and
other applicable treaties and principles of international law.
The provisions of UNCLOS are complemented by other international instruments, in
particular those established under the auspices of the IMO. A large number of IMO
instruments regulate shipping on the high seas, including:
o Pollution prevention
o The International Convention for the Prevention of Pollution from Ships, 1973
as modified by the Protocol of 1978 (MARPOL 73-78) - including designation of
special areas
o Pollution preparedness, response and cooperation
o International Convention on Oil Pollution Preparedness, Response and Co-
operation and its 2000 Protocol
o Anti-fouling systems on ships
o International Convention on the Control of Harmful Anti-fouling Systems on
Ships
o Ballast water management
o The International Convention for the Control and Management of Ships'
Ballast Water and Sediments
o Dumping
o Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, 1972 and its 1996 Protocol

Laying of cables and pipelines

Under UNCLOS, all States are entitled to lay submarine cables and pipelines on the bed of
the high seas beyond the continental shelf.
Other relevant international instruments include the International Convention for the
Protection of Submarine Telegraph Cables 1884.

Construction of artificial islands and other installations

States have the freedom to construct artificial islands and other installations on the high
seas beyond the continental shelf.
But installations used for carrying out activities in the Area must comply with Part XI, and are
subject to the rules, regulations and procedures of the ISA.

Land-based activities
Pollution from land-based sources is one of the most pressing threats to coastal and marine
habitats, accounting for approximately 80% of marine pollution globally. Areas beyond
national jurisdiction, though far from land, are also affected by pollution from land-based
sources.
o Global Programme of Action for the Protection of the Marine Environment from
Land-based Activities (GPA):
Adopted in 1995, the GPA aims to be a source of conceptual and practical guidance
to be drawn upon by national and regional authorities for devising and implementing

35
 sustained action to prevent, reduce, control and eliminate marine degradation from
land-based activities.
o Basel, Stockholm and Minamata Conventions
Also relevant to efforts to control pollution from land-based sources are:
• The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal: Governments recently amended the Basel Convention
to include plastic waste in a legally-binding framework which will make global
trade in plastic waste more transparent and better regulated, whilst also ensuring
that its management is safer for human health and the environment.
• The Stockholm Convention on Persistent Organic Pollutants, and
• The Minamata Convention on Mercury.
o A new international legally binding instrument on plastic pollution, including in the
marine environment, is currently under negotiation within the framework of an
intergovernmental negotiating committee established by a resolution of the United
Nations Environment Assembly of the United Nations Environment Programme.
o Regional Instruments:
There are also relevant regional instruments which address issues related to
pollution from land-based activities. For example, the Protocol Concerning Pollution
from Land-Based Sources and Activities to the Cartagena Convention (Wider
Caribbean Region) and the Protocol for the Protection of the Mediterranean Sea
against Pollution from Land-based Sources.

Pollution from or through the atmosphere

Another pathway of ocean pollution occurs from or through the atmosphere. As noted
above, this is recognized in Article 212 of UNCLOS.
Relevant international instruments, which regulate human activities affecting the ozone
layer, include the Vienna Convention for the Protection of the Ozone Layer and the Montreal
Protocol on Substances that Deplete the Ozone Layer. MARPOL, in its Annex VI, includes
regulations on emissions from ships which are also relevant in this context.

Exploration and exploitation of resources in the Area

Activities in the Area are to be carried out for the benefit of mankind as a whole, irrespective
of the geographical location of States, whether coastal or land-locked. The Area shall be
open to use exclusively for peaceful purposes.
Exploration and exploitation in the Area can only be carried out under a contract with the
ISA. The ISA may conclude contracts with:
• States Parties to UNCLOS
• State enterprise sponsored by a State Party to UNCLOS
• Natural or juridical person possessing the nationality of a State Party and sponsored
by a State Party.
Provisions governing exploration and exploitation activities in the Area include:
• UNCLOS, Part XI
• Part XI Agreement

36
 • Rules, regulations and procedures adopted by the ISA:
o Regulations on Prospecting and Exploration for Polymetallic Nodules
o Regulations on Prospecting and Exploration for Polymetallic Sulphides
o Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese
Crusts
The ISA is currently developing draft regulations on exploitation of mineral resources in the
Area.

New activities
Technological advances are rendering possible new activities on the high seas and in the
Area. Such activities might include, for example, geoengineering, generation of energy from
renewable sources and open ocean aquaculture.
As the UNCLOS list of high seas freedoms is not exhaustive - it is introduced by the words
“inter alia” - the presumption is that new activities on the high seas are governed by the
freedom of the high seas. Accordingly, these activities shall be carried out with due regard
for the interests of other States in their exercise of the freedom of the high seas, and also
with due regard for the rights under UNCLOS with respect to activities in the Area.
The BBNJ Agreement contains a number of provisions that will also apply to new activities in
the high seas and in the Area.

2.7 Recap
UNCLOS - general aspects
• UN Convention on the Law of the Sea. Opened for signature in 1982 and entered into
force in 1994.
• Constitution for the Ocean – sets out the legal framework within which all activities in
the ocean and seas must be carried out, incorporating agreed balances and
compromises.
• Framework Convention – UNCLOS addresses a wide range of issues and its provisions
have been further elaborated upon by sector-specific instruments (including Part XI
Agreement, UNFSA) and the BBNJ Agreement.
• Part XI, section 5, Part XV and annexes V to VIII set out the regime for the settlement
of disputes concerning the interpretation or application of UNCLOS. General obligation
to settle disputes by ”peaceful means" which include negotiation, conciliation, and
compulsory procedures entailing binding decisions.

37
Maritime Zones

Areas within national jurisdiction

Zone Breadth Rights of coastal Rights of third States

States

Internal Waters Waters on the landward Sovereignty Rights of innocent

side of baselines passage in certain
circumstances, and
access to ports in case
of distress and based
on bilateral treaties

Territorial Sea From the baselines up Sovereignty Rights of innocent

to 12 nautical miles (M) passage and of transit
passage (in straits used
for international
navigation)

Archipelagic Waters From the landward side Sovereignty Rights of innocent

of archipelagic baseline passage and of
to the seaward side of archipelagic sea lanes
straight or normal passage
baselines

Contiguous Zone From the outer limits of Jurisdiction with regard Freedoms of navigation,
the territorial sea up to to customs, fiscal, overflight, and other
24 M immigration or sanitary international lawful
laws as well as the uses related thereto,
control of traffic of such as laying of
archaeological and submarine
historical objects found cables/pipelines
in the contiguous zone

Exclusive Economic From the outer limits of Sovereign rights for the Freedoms of navigation,
Zone the territorial sea up to purpose of exploring overflight, and other
200 M and exploiting the international lawful
zone’s natural resources uses related thereto,
and related activities, such as laying of
and jurisdiction with submarine
regard to the cables/pipelines
establishment and use
of artificial islands,
installations and
structures, marine
scientific research,
protection and
preservation of the
marine environment

Continental Shelf From the outer limits of Sovereign rights for the Laying of submarine
the territorial sea’s purpose of exploring cables/pipelines
seabed and subsoil up and exploiting,
to 200 M or, for States jurisdiction over
with continental artificial islands,
margins wider than 200 installations and
M, up to the outer limits structures, and cables
and pipelines used in

38
 established pursuant to connection with
UNCLOS’ Art. 76 exploration and
exploitation or the
operation of artificial
islands, installations
and structures

Areas Beyond National Jurisdiction

Zone Location Legal regime

High Seas All parts of the sea that • Open to all States, whether coastal or land-
are not included in the locked
exclusive economic • Flag States exclusive jurisdiction with some
zone, in the territorial exceptions
sea or in the internal • Freedom of the high seas comprises, inter
waters of a State, or in alia,
the archipelagic waters o Navigation
of an archipelagic State. o Overflight
o Laying of submarine cables/pipelines
o Fishing, subject to certain conditions
o Scientific research
• These freedoms are qualified by:
o General obligations under UNCLOS,
including duty to protect and preserve
the marine environment and to
cooperate in the conservation and
management of living resources
o Due regard for the interests of other
States in their exercise of the freedom
of the high seas, and also with due
regard for the rights under UNCLOS
with respect to activities in the Area.
o Specific provisions in UNCLOS
o Other treaty obligations (e.g. UNFSA)

International seabed Seabed and ocean floor • Area and its resources are the common
area (The Area) and subsoil thereof, heritage of mankind
beyond the limits of • Activities in the Area shall be carried out for
national jurisdiction the benefit of mankind as a whole
• States Parties organize and control activities
in the Area, particular with a view to
administering its resources, through the
ISA, in accordance with Part XI of UNCLOS
and the Part XI Agreement

Protection and Preservation of the Marine Environment

• Part XII, UNCLOS sets out the general obligation to protect and preserve the marine
environment (Article 192).
• States are required to take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce and control
pollution of the marine environment from any source. The measures taken shall
include those necessary to protect and preserve rare or fragile ecosystems as well as

39
 the habitat of depleted, threatened or endangered species and other forms of marine
life.
• States are required to take all measures necessary to ensure that activities under their
jurisdiction or control are so conducted as not to cause damage by pollution to other
States and their environment, and that pollution arising from incidents or activities
under their jurisdiction or control does not spread beyond the areas where they
exercise sovereign rights.
• States are required to cooperate on a global and regional basis in formulating and
elaborating international rules, standards and recommended practices and
procedures consistent with UNCLOS, for the protection and preservation of the marine
environment.
• When States have reasonable grounds for believing that planned activities under their
jurisdiction or control may cause substantial pollution of or significant and harmful
changes to the marine environment, they shall, as far as practicable, assess the
potential effects of such activities on the marine environment and report on them.
• Other relevant international instruments include:
o Biodiversity instruments and frameworks (e.g. CBD, GBF, CITES, CMS)
o Pollution instruments (e.g. MARPOL)
o Sustainable development instruments

Marine scientific research and the development and transfer of marine

technology

• Marine Scientific Research

o UNCLOS Part XIII lays down a comprehensive global regime under which all
States and competent international organizations have the right to conduct
MSR and a duty to promote and facilitate such research.
o There is no definition of MSR in UNCLOS.
o MSR must be conducted exclusively for peaceful purposes, using appropriate
scientific methods and means, and not unjustifiably interfere with other
legitimate uses of the sea. States and international organizations shall
promote international cooperation in MSR on the basis of mutual benefit.
o States also have obligations concerning the publication and dissemination of
information and knowledge.
o MSR in the Area is to be conducted in accordance with Part XI of UNCLOS and
the Part XI Agreement and for the benefit of humankind. The ISA has a
specific mandate in this context.
o All States, irrespective of their geographical location, and competent
international organizations have the right to conduct MSR in the high seas. They
must have due regard for the interests of other States in their exercise of the
freedoms of the high seas, and for the rights related to activities in the Area.
• Development and transfer of marine technology
o UNCLOS contains obligations related to the development of marine scientific
and technological capacity of States which may need and request technical
assistance, particularly developing States, regarding a number of activities in
the marine environment compatible with UNCLOS, with a view to accelerating
the social and economic development of developing States.
o The basic objectives of Part XIV include the acquisition, evaluation and
dissemination of marine technological knowledge and access to information
40
 and data; the development of appropriate marine technology; the
development of the necessary technological infrastructure to facilitate TMT; the
development of human resources; and international cooperation at all levels.
o To achieve the basic objectives, States shall endeavour to establish
programmes of technical cooperation for effective TMT; promote favourable
conditions for the conclusion of agreements and contracts; hold events on
scientific and technological subjects; promote the exchange of scientists and of
technological and other experts; undertake projects, and promote joint
ventures and other forms of bilateral and multilateral cooperation.
o States shall promote the establishment of national and regional centres in
order to inter alia stimulate and advance the conduct of MSR by developing
States. The functions of regional centres also include to foster the transfer of
marine technology.

Regime for various activities in ABNJ

• Fishing
o UNCLOS sets out the legal regime for sustainable fisheries under
international law.
o UNFSA sets out a detailed legal regime for straddling fish stocks and highly
migratory fish stocks.
o Complemented by other international instruments (e.g. FAO instruments, UN
General Assembly resolutions, RFMOs instruments and biodiversity
instruments).
• Shipping
o UNCLOS sets out legal regime for navigation (and overflight) on the high seas
under international law.
o Complemented by other international instruments, including those
established under the auspices of the IMO.
• Cables and pipelines
o UNCLOS: all States are entitled to lay submarine cables and pipelines on the
bed of the high seas beyond the continental shelf.
o Other relevant international instruments include the International Convention
for the Protection of Submarine Telegraph Cables 1884.
• Artificial islands and other installations
o Freedom to construct artificial islands and other installations permitted under
international law on the high seas beyond the continental shelf.
o But installations used for carrying out activities in the Area must comply with
Part XI, and are subject to the rules, regulations and procedures of the ISA.
• Land-based activities
o Global Programme of Action
o Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal
o Stockholm Convention on Persistent Organic Pollutants
o Minamata Convention on Mercury
o Vienna Convention and Montreal Protocol on Ozone Layer
o New development: New plastics treaty under negotiation
• Pollution from or through the atmosphere
41
 o UNCLOS includes provisions on pollution from or through the atmosphere.
o 1992 UNFCCC, 1997 Kyoto Protocol, 2015 Paris Agreement.
o Emissions from ships - MARPOL, Annex VI.
• Exploration and exploitation of resources in the Area
o UNCLOS Part XI.
o Part XI Agreement.
o Rules, regulations and procedures of ISA:
▪ Regulations on Prospecting and Exploration for Polymetallic Nodules
▪ Regulations on Prospecting and Exploration for Polymetallic Sulphides
▪ Regulations on Prospecting and Exploration for Cobalt-Rich Crusts
o New development: Exploitation Code.
• New activities
o The UNCLOS list of freedoms on the high seas is non-exhaustive.
o Presumption that the regime of qualified freedoms of the high seas also applies
to new activities on the high seas
o A number of BBNJ provisions will apply to new activities in ABNJ

42
Lesson 3
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
3.1 Learning objectives
By the end of this module, you will be able to:
• Explain what is understood by marine genetic resources (MGRs) and the key elements
of the BBNJ Agreement addressing MGRs of areas beyond national jurisdiction.
• Define area-based management tools (ABMTs), including marine protected areas
(MPAs), and understand the applicable legal framework in the BBNJ Agreement.
• Explain what an environmental impact assessment (EIA) is and the key elements of the
BBNJ Agreement relating thereto.
• Explain what is understood by capacity-building and the transfer of marine technology
and how they are addressed under the BBNJ Agreement.
• Understand the cross-cutting issues addressed in the BBNJ instrument.

3.2 The package of issues

As we saw in the introductory lesson, in convening the BBNJ Intergovernmental Conference,
the UN General Assembly decided that the negotiations were to address the “package of
issues” agreed in 2011, namely, the conservation and sustainable use of marine biological
diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine
genetic resources, including questions on the 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. Cross-cutting
issues were also considered.
The BBNJ Agreement contains provisions addressing this package of issues, including the
four key issues and cross-cutting issues. See the diagram below:

We are now going to study these issues and the key elements of the BBNJ Agreement
addressing them.
3.3 Marine genetic resources, including the fair and
equitable sharing of benefits
Introduction
Genes hold the information to build and maintain an organism's cells and pass genetic traits
to offspring. All organisms have genes corresponding to various biological traits, some of
which are immediately visible, such as eye colour, and some of which are not, such as blood
type, increased risk to specific diseases, or the thousands of basic biochemical processes
that comprise life.
Owing to their properties, which allow certain species and organisms to thrive under
extreme conditions of heat, pressure and toxicity, there is increasing scientific and
commercial interest in marine genes from a number of sectors such as pharmaceuticals
(including to create medicines to cure diseases such as cancer or HIV for example) and the
food sector, cosmetics sector and bioremediation sector. Yet, capacity to access and carry
out relevant research and development is uneven among States.
Part II of the BBNJ Agreement sets out a legal framework for activities with respect to marine
genetic resources and digital sequence information on marine genetic resources of areas
beyond national jurisdiction, including the fair and equitable sharing of benefits arising from
such activities.

Key elements of the BBNJ Agreement in relation to marine genetic resources,

including the fair and equitable sharing of benefits

Objectives

The BBNJ Agreement specifies four objectives of Part II, which include:
• The fair and equitable sharing of benefits arising from activities with respect to
marine genetic resources and DSI on MGRs of ABNJ;
• The building and development of capacity of Parties, particularly developing States
Parties, to carry out activities with respect to MGRs and DSI on MGRs of ABNJ;
• The generation of knowledge, scientific understanding and technology innovation,
including through the development and conduct of marine scientific research; and
• The development and transfer of marine technology. (Article 9)

The BBNJ Agreement defines “marine genetic resources” as any material of marine plant,
animal, microbial or other origin containing functional units of heredity of actual or potential
value” (Article 1(8)).

This is the first internationally agreed definition of marine genetic resources. Notably, it is
consistent with the CBD which define:
• Genetic resources as “genetic material of actual or potential value” and;
• Genetic material as “any material of plant, animal, microbial or other origin
containing functional units of heredity”.

The BBNJ Agreement does not define “digital sequence information”. At the time of the
conclusion of the BBNJ Agreement, work was ongoing under the Convention on Biological

45
Diversity on the issue of DSI. In decision 15/9, the 15th meeting of the Conference of the
Parties to the CBD, recognizing the different understandings of the concept and scope of DSI
on genetic resources and the range of views regarding the need to define such concept and
scope, agreed on the continuing use of the term “digital sequence information” for further
discussions.
Despite the absence of a definition, the importance of digital sequence information is well
recognized. The BBNJ Agreement contains a paragraph in its preamble acknowledging that
the generation of, access to and utilization of digital sequence information on MGRs of ABNJ,
together with the fair and equitable sharing of benefits arising from its utilization, contribute
to research and innovation, and to the general objectives of the Agreement.
The BBNJ Agreement indicates that “utilization of marine genetic resources” means to
conduct research and development on the genetic and/or biochemical composition of
marine genetic resources, including through the application of biotechnology (Article 1(14)).
“Biotechnology” is defined as “any technological application that uses biological systems,
living organisms, or derivatives thereof, to make or modify products or processes for specific
use” (Article 1(3)).

Scope of application

Temporal scope

The provisions of the BBNJ Agreement apply to activities with respect to MGRs and DSI on
MGRs of ABNJ collected and generated after the entry into force of the Agreement for the
respective Party. The Agreement will also apply to the utilization of MGRs and DSI collected
or generated before the entry into force by default, but a Party may opt-out of this default by
making an exception in writing under article 70 of the Agreement on reservations and
exceptions (Article 10(1))

Material scope

The provisions of the BBNJ Agreement apply to activities with respect to both MGRs of ABNJ,
and with respect to DSI on MGRs of ABNJ. The application of the provisions of Part II,
including the obligations in Part II, is, however, subject to two categories of “carve-outs”.

First, the provisions of Part II do not apply to:

• Fishing regulated under relevant international law and fishing-related activities; or
• Fish or other living marine resources known to have been taken in fishing and fishing-
related activities from ABNJ, except where such fish or other living marine resources
are regulated as utilization under Part II. (Article 10(2))

Second, the obligations in Part II also do not apply to a Party’s military activities, including
military activities by government vessels and aircraft engaged in non-commercial services.
The Agreement further clarifies, however, that the obligations in Part II with respect to
utilization of MGRs and DSI on MGRs of ABNJ shall apply to a Party’s non-military activities.
(Article 10(3))

46
Activities with respect to marine genetic resources of areas beyond national
jurisdiction and digital sequence information on such resources

General rules

The BBNJ Agreement sets out a suite of general rules governing activities with respect to
MGRs and DSI on MGRs of ABNJ.

First, the Agreement clarifies that such activities may be carried out by all Parties,
irrespective of their geographical location, and by natural or juridical persons under their
jurisdiction (Article 11(1)). At the same time, Parties have an obligation to promote
cooperation in all such activities (Article 11(2)).

Second, the Agreement requires that the collection in situ of MGRs of ABNJ shall be carried
out with “due regard” for the rights and legitimate interests of coastal States in areas within
their national jurisdiction, as well as for the interests of other States in ABNJ. To this end,
Parties shall endeavour to cooperate, as appropriate, including through the Clearing-House
Mechanism (Article 11(3)).

Under the Agreement, “collection in situ”, in relation to MGRs, is defined as the collection or
sampling of MGRs in ABNJ (Article 1(4)).

Third, the Agreement provides that no State shall claim or exercise sovereignty or sovereign
rights over MGRs of ABNJ (Article 11(4)), and that collection in situ of MGRs of ABNJ shall not
constitute the legal basis for any claim to any part of the marine environment or its
resources (Article 11(5)).

Fourth, the Agreement affirms that such activities are in the interest of all States and for the
benefit of all humanity, particularly for the benefit of advancing the scientific knowledge of
humanity and promoting the conservation and sustainable use of marine biological diversity,
taking into particular consideration the interests and needs of developing States (Article
11(6)).

Last but not least, the Agreement provides that such activities shall be carried out exclusively
for peaceful purposes (Article 11(7)).

Notification

The BBNJ Agreement provides for a notification system on activities with respect to MGRs
and DSI on MGRs of ABNJ. Under this system, Parties have the obligation to take the
necessary legislative, administrative or policy measures to ensure that information is
provided to the Clearing-House Mechanism at different stages of the collection and
utilization of MGRs and DSI on MGRs of ABNJ. (Article 12(1))

Pre-collection stage: Certain information, as specified in the BBNJ Agreement, must be

notified to the Clearing-House Mechanism six months or as early as possible before the
collection or sampling of MGRs in ABNJ. This includes, among others, the nature and
objectives of the collection, subject matter of the research, geographical areas of the
collection, methods and means, timeframe, sponsoring institution(s), and opportunities for

47
international scientific collaboration, in particular with scientists from developing States, and
a data management plan (Article 12(2)). Upon notification, the Clearing-House Mechanism
will automatically generate a “BBNJ” standardized batch identifier (Article 12(3)). In case of a
material change to the information provided in the pre-collection notification, updated
information must also be notified to the Clearing-House Mechanism within a reasonable
period, and, when practicable, no later than the start of collection in situ (Article 12(4)).

Post-collection stage: Parties have the obligation to ensure that certain information, together
with the “BBNJ” standardized batch identifier, is notified to the Clearing-House Mechanism
no later than one year from the collection or sampling of MGRs in ABNJ. Such information
includes the repository or database where DSI is or will be deposited, where MGRs collected
in situ are or will be deposited, a report detailing geographical area of collection and
available findings, as well as necessary updates to the data management plan (Article 12(5)).
Parties must ensure that MGR samples and DSI in repositories or databases under their
jurisdiction can be identified as originating from ABNJ (Article 12(6)), and ensure that these
repositories and databases prepare biennial aggregate reports on access to MGRs and DSI
linked to their “BBNJ” standardized batch identifier, making them available to the Access and
Benefit-Sharing Committee (Article 12(7)).

Utilization stage: Parties are also required to ensure that certain information relating to the
utilization (including commercialization) of MGRs of ABNJ is notified to the Clearing-House
Mechanism as soon as such information becomes available. This applies equally to the
utilization of DSI on MGRs of ABNJ where practicable. The information to be notified to the
Clearing-House Mechanism includes the “BBNJ” standardized batch identifier, where the
utilization results could be found, details of post-collection notifications related to MGRs
utilized, where the original sample utilized is held, modalities for access to MGRs and DSI
utilized, and available information on sales of relevant products. (Article 12(8))

Traditional knowledge of Indigenous Peoples and local communities associated with

marine genetic resources in areas beyond national jurisdiction

The BBNJ Agreement recognizes the role of traditional knowledge of Indigenous Peoples and
local communities (IPLCs) associated with MGRs in ABNJ, and contains provisions in this
respect, outlining three key elements:
• Such traditional knowledge shall only be accessed with the free, prior and informed
consent or approval and involvement of IPLCs holding such knowledge. Parties are
obliged to take legislative, administrative or policy measures to that end.
• The Clearing-House Mechanism may play a role in facilitating access to such
traditional knowledge.
• Access and use of such traditional knowledge must occur on the basis of mutually
agreed terms. (Article 13)

Fair and equitable sharing of benefits

The BBNJ Agreement establishes a framework for the fair and equitable sharing of benefits
arising from activities with respect to MGRs and DSI on MGRs of ABNJ. Key elements of this
framework are outlined below.

48
Mandatory benefit-sharing

The Agreement provides that benefits arising from activities with respect to MGRs and DSI
on MGRs of ABNJ must be shared in a fair and equitable manner, as outlined in Part II of the
Agreement, and contribute to the conservation and sustainable use of BBNJ (Article 14(1)).
These benefits include both non-monetary and monetary benefits, for which the Agreement
sets out respective modalities for benefit-sharing. Parties will have to take the necessary
measures, as appropriate, to ensure that benefits resulting from relevant activities
undertaken by natural or juridical persons under their jurisdiction are shared in accordance
with the Agreement (Article 14(11)).

Modalities for the sharing of non-monetary benefits

Non-monetary benefits will be shared in various forms which include but not limited to
access to samples and DSI, open access to scientific data, information contained in the
notifications (along with “BBNJ” standardized batch identifiers), capacity-building and
transfer of marine technology, as well as increased technical and scientific cooperation
(Article 14(2)).

To this end, Parties have the obligation to take the necessary measures to ensure that MGRs
and DSI on MGRs of ABNJ subject to utilization by natural or juridical persons under their
jurisdiction are deposited in publicly accessible repositories and databases together with
their “BBNJ” standardized batch identifiers. Such deposit must be done no later than three
years from the start of utilization or as soon as the MGRs and DSI become available (Article
14(3)).

Access to MGRs and DSI deposited in repositories and databases under a Party’s jurisdiction
can be subject to reasonable conditions which include the need to preserve the physical
integrity of MGRs, reasonable maintenance and access costs, and other reasonable
conditions in line with the objectives of the Agreement. The Agreement also clarifies that
opportunities may be provided to researchers and research institutions from developing
States for them to access such MGRs and DSI on fair and most favourable terms, including
on concessional and preferential terms. (Article 14(4))

Modalities for the sharing of monetary benefits

Monetary benefits from utilization (including commercialization) of MGRs and DSI on MGRs
of ABNJ shall be shared:
• Fairly and equitably;
• Through the financial mechanism established under the Agreement (specially
through a special fund noted below); and
• For the conservation and sustainable use of BBNJ. (Article 14(5))

Initial modality from the entry into force of the Agreement: The Agreement sets out an initial
modality for monetary benefit-sharing from its entry into force until a decision by the
Conference of the Parties (COP) to the Agreement on the modalities for the sharing of
monetary benefits from the utilization of MGRs and DSI on MGRs of ABNJ. Under this initial
modality, developed Parties are obligated to make annual contributions to a special fund,
which is established as part of the financial mechanism of the Agreement to fund, among

49
others, capacity-building for developing States and to assist them to implement the
Agreement. The rate of contribution for each developed Party is set at 50 per cent of its
assessed contribution to the budget adopted by the COP. (Article 14(6)).

Modalities for sharing monetary benefits from utilization: The COP may decide on various
modalities for sharing monetary benefits from utilization of MGRs or DSI on MGRs of ABNJ,
such as milestone payments, payments linked to commercialization, tiered fees based on
level of activities, and other forms decided by the COP, including by a three-fourths majority
if consensus is not reached. Similarly to the initial modality, payments will be channelled
through the special fund. (Article 14(7))

In relation to modalities for sharing monetary benefits from the use of DSI, the Agreement
recognizes that such modalities should be mutually supportive of and adaptable to other
access and benefit-sharing instruments (Article 14(9)).

Temporary extension of the application of the initial modality: Parties may declare a delay of
up to four years for these modalities decided by the COP to take effect for them, during
which they must continue the payments under the initial modality (Article 14(8)).

Biennial review of monetary benefits: The COP will conduct biennial review of the monetary
benefits from the utilization of MGRs and DSI on MGRs of ABNJ, including considering annual
contributions paid to the special fund under the initial modality. The first of such reviews will
take place no later than five years after the entry into force of the Agreement. (Article 14(10))

Access and Benefit-Sharing Committee

The Agreement establishes an Access and Benefit-Sharing (ABS) Committee which will be
composed of 15 members nominated by Parties and elected by the COP. Its terms of
references and operation modalities will be determined by the COP (Article 15(2)).

Established as, among others, a means to establish benefit-sharing guidelines, provide

transparency and ensure a fair and equitable benefit-sharing (Article 15(1), the ABS
Committee is mandated to make recommendations to the COP on matters relating to MGRs,
including benefit-sharing (Article 15(3) and (5)). Parties are required to provide relevant
information to the ABS Committee, such as the measures they take, information on national
focal points and other information required by the COP (Article 15(4)). The ABS Committee is
also authorized to consult and facilitate information exchange with relevant IFBs on activities
under its mandate (Article 15(5)).

Monitoring and transparency

The Agreement clarifies that the monitoring and transparency of activities with respect to
MGRs and DSI on MGRs of ABNJ will be achieved through notification to the Clearing-House
Mechanism, through the use of “BBNJ” standardized batch identifiers, and according to
procedures adopted by the COP as recommended by the ABS Committee (Article 16(1)).

In addition, Parties are required to submit periodic reports on their implementation of

provisions concerning these activities and benefit-sharing (Article 16(2)). The ABS committee
will prepare a report based on such information which will be shared with Parties for their

50
comments. After considering this report and comments by Parties and the recommendation
of the ABS Committee, the COP may establish appropriate guidelines for the implementation
of monitoring and transparency, which must take into account national capabilities and
circumstances of Parties. (Article 16(3)).

3.4 Measures such as area-based management tools,

including marine protected areas
Introduction

An increasing number of international instruments recognize the important contribution of

area-based management tools (ABMTs), including marine protected areas (MPAs), for the
protection and preservation of the marine environment and the sustainable use of its
resources, including in ABNJ. To this end, at the global level, the 2022 Kunming-Montreal
Global Biodiversity Framework sets a target of effectively conserving and managing at least
30 per cent of terrestrial and inland water areas, and of marine and coastal areas and
restoring at least 30 per cent of areas of degraded terrestrial, inland water, and coastal and
marine ecosystems by 2030.

ABMTs can have a variety of management objectives, such as preservation of ecological or

geomorphological processes, conservation and management of species, protection of
cultural or historic sites, environmental monitoring and assessment and scientific research.
ABMTs can be designed to achieve these objectives by managing the pressures of human
activities that negatively impact or have the potential to negatively impact the ecosystem and
resources of a geographically defined area. The degree of protection will vary depending on
the specific conservation and management objectives adopted for any specific area. For
example, some areas might be strictly protected, while in others multiple uses might be
permitted under regulation.

Types of ABMTs
The types of ABMTs that are provided for under existing instruments include:
• Protected areas, including MPAs and specially protected areas: The primary goal of a
protected area is to protect and conserve the biodiversity and productivity of that
area, including ecological life support systems that can be achieved through different
layers of protection, based on specific conservation and sustainable use objectives.
• Special areas and particularly sensitive sea areas: In the shipping context, area-based
management measures to address the impacts of shipping activities, on sensitive
marine environments, such as unique oceanographic conditions, critical habitats for
marine resources and rare or fragile marine ecosystems, and vessel traffic
characteristics, can be adopted by the International Maritime Organization.
• Spatial and temporal closures, including for vulnerable marine ecosystems: In the
fisheries context, spatial and temporal closures and gear restrictions for specific
areas to protect fish stocks and other vulnerable species are available management
tools to protect fish stocks and other vulnerable species.
• Sanctuaries, reserves and migratory corridors: These tools provide essential
safeguarding for specific marine species and habitats.

51
 Additional ABMTs and approaches being developed by States and IGOs include areas of
particular environmental interest, biosphere reserves, large marine ecosystems, marine
spatial planning, and other effective area-based conservation measures.

BBNJ Agreement – main elements on area-based management tools, including

marine protected areas

The BBNJ Agreement provides for the establishment and implementation of area-based
management tools, including marine protected areas, in areas beyond national jurisdiction.
The Agreement defines an “area-based management tool” as a tool, including a marine
protected area, for a geographically defined area through which one or several sectors or
activities are managed with the aim of achieving particular conservation and sustainable use
objectives in accordance with the Agreement (Article 1(1)).

It further defines a “marine protected area” as a geographically defined marine area that is
designated and managed to achieve specific long-term biological diversity conservation
objectives and may allow, where appropriate, sustainable use provided it is consistent with
the conservation objectives (Article 1(9)).

The relationship and differences between these definitions are important, as is the hierarchy
of objectives in the definition of “marine protected area”, which gives priority of
consideration to the achievement of “specific long-term biological diversity conservation
objectives” and secondary consideration to “sustainable use”, with the proviso that
sustainable use objectives must also be “consistent with” conservation objectives in the
designation and management of MPAs in ABNJ.

Objectives
The BBNJ Agreement specifies that its objectives in relation to ABMTs in ABNJ are to: (i)
conserve and sustainably use areas requiring protection; (ii) strengthen cooperation and
coordination in the use of ABMTs, including MPAs; (iii) protect, preserve, restore and
maintain biological diversity and ecosystems and strengthen resilience to stressors; (iv)
support food security and other socioeconomic objectives; and € support developing States
through capacity-building and the development and transfer of marine technology in
developing, implementing, monitoring, managing and enforcing ABMTs, including MPAs
(Article 17(a) to €).

Area of application
The Agreement clarifies that ABMTs established under the Agreement shall not include areas
within national jurisdiction and, moreover, that establishment of ABMTs shall not be relied
upon as a basis for asserting or denying claims to sovereignty or jurisdiction, including in
respect of any related disputes. The Agreement provides that the COP shall not consider for
decision proposals for the establishment of such ABMTs, including MPAs (Article 18).

Proposals
Parties to the Agreement will be able to submit proposals to the Secretariat for the
establishment of ABMTs, including MPAs, in ABNJ (Article 19). In the development of
proposals, Parties are required to collaborate and consult with relevant stakeholders,

52
including States, in particular adjacent coastal States and global, regional, subregional and
sectoral bodies, as well as civil society, the scientific community, the private sector, and
Indigenous Peoples and local communities (Article 19(1) and (2)).
The Agreement also sets out the key elements to be included in a proposal, including
geographic or spatial description of the area, human activities in the area and their possible
impact, the state of the marine environment and biological diversity in the identified area,
conservation and sustainable use objectives to be applied, and a draft management plan
(Article 19(4)).

Process for the establishment of ABMTs, including MPAs

Upon receipt of a proposal, the Secretariat will make it publicly available and transmit it to
the Scientific and Technical Body (STB) for a preliminary review. The outcome of the review
will also be made publicly available (Article 20). The proponent will re-transmit the proposal
to the Secretariat, having taken into account the preliminary review. The Secretariat will then
notify Parties and make the retransmitted proposal publicly available.
Consultations on the proposal will then take place, which will be open to all relevant
stakeholders, including States and global, regional, subregional and sectoral bodies, as well
as civil society, the scientific community, Indigenous Peoples and local communities. The
consultations will be facilitated by the Secretariat (Article 21).
The proponent will revise the proposal, as appropriate, after having considered the
contributions received during the consultation period. The revised proposal will then be
submitted to the STB for assessment and recommendation to the COP.
On the basis of the final proposal and the draft management plan, and taking into account
the contributions and scientific input received during the consultation process, the COP will
take a decision on the establishment of ABMTs, including MPAs, and related measures. The
COP may decide on measures compatible with those adopted by relevant IFBs, in
cooperation and coordination with those IFBs. Where proposed measures are within the
competences of other bodies, the COP may make recommendations to promote the
adoption of relevant measures through those bodies (Article 22).
The Agreement stipulates that decisions and recommendations adopted by the COP on
ABMTs shall not undermine the effectiveness of measures adopted in respect of areas within
national jurisdiction and shall be made with due regard for the rights and duties of all States.
Additionally, where proposed measures would affect or could reasonably be expected to
affect the superjacent water above the seabed and subsoil of submarine areas over which a
coastal State exercises sovereign rights, such measures shall have due regard to those
sovereign rights. Consultations will be undertaken to that end (Article 22(5)).

Relationship with relevant legal instruments and frameworks and relevant global,
regional, subregional and sectoral bodies
In taking decisions, the COP is required to respect the competences of, and not undermine
relevant IFBs. In this connection, the COP shall make arrangements for regular consultations
to enhance cooperation and coordination with and among relevant IFBs, including
coordination with regard to related measures adopted under such instruments and
frameworks and by such bodies (Article 22(3)).

53
To further international cooperation and coordination, the COP may also consider and
decide to develop a mechanism regarding existing ABMTs, including MPAs, that have been
adopted by relevant IFBs (Article 22(4)).
Procedures are also in place for changes to be made to ABMTs, including MPAs, established
by the COP that subsequently fall within the national jurisdiction of coastal States or the
competence of a new or existing IFB (Article 22(6) and (7)).

Opt-out
Parties may opt-out during the 120-day period before decisions by the COP on ABMTs,
including MPAs, enter into force by making an objection based on the grounds provided for
in the Agreement (Article 23(5)).
Following an objection, that Party is required to adopt alternative and equivalent measures
and not to take actions that would undermine the effectiveness of the decision, except
where such measures or actions are essential for the exercise of rights and duties in
accordance with UNCLOS (Article 23(6)). Objecting Parties are also required to report to the
COP (Article 23(7)). Such objections are deemed to be withdrawn unless renewed by the
objecting Party every three years (Article 23(8) and (9)).

Emergency measures
The Agreement provides that the COP shall take decisions to adopt measures in ABNJ, to be
applied on an emergency basis, when a natural phenomenon or human-caused disaster has
caused, or is likely to cause, serious or irreversible harm to marine biological diversity in
ABNJ to ensure that the serious or irreversible harm is not exacerbated (Article 24(1)). Such
measures shall be considered necessary only if, following consultation with relevant IFBs, the
serious or irreversible harm cannot be managed through the application of other articles of
the Agreement or by a relevant IFB (Article 24(2)). The time limit for such measures is two
years, unless terminated earlier by the COP.

Implementation
Parties are required to ensure that activities under their jurisdiction or control that take
place in ABNJ are conducted consistently with decisions adopted by the COP on ABMTs,
including MPAs (Article 25(1)).
In addition, Parties are required to promote the adoption of measures within relevant IFBs of
which they are members to support the implementation of the decisions of the COP (Article
25(4)).
The Agreement also provides that Parties shall encourage non-Parties to adopt measures
supporting the decisions of the COP on ABMTs, including MPAs (Article 25(5)).

Monitoring and review

Under the Agreement, Parties shall report to the COP on the implementation of ABMTs,
including MPAs, established under the Agreement. Relevant IFBs are also invited to provide
information to the COP on the implementation of measures to achieve the objectives of
ABMTs, including MPAs, established by the COP (Article 26(1) and (2)).
The STB will monitor and periodically review ABMTs, including MPAs, established under the
Agreement to assess their effectiveness, including related measures, and progress in
achieving their objectives. The STB will also provide advice and recommendations to the COP
54
and the COP shall, as necessary, take decisions or recommendations on the amendment,
extension or revocation of ABMTs, including MPAs, and any related measures (Article 26(3) to
(5)).

3.5 Environmental Impact Assessments

Introduction
Environmental impact assessments (EIAs) are an important component of national
legislation, and more recently, international agreements that seek to protect the
environment. Many different national and international EIA processes exist, but they
generally consist of a tool used to assess, as early as possible, the effects of a
proposed/planned activity on the environment with the aim of avoiding or mitigating
negative effects, by, for example, deciding not to proceed with the activity or imposing
certain conditions on the conduct of the activity.

Definitions of Environmental Impact Assessment (EIA) and Strategic Environmental

Assessment (SEA)
The BBNJ Agreement defines an environmental impact assessment (EIA) as “a process to
identify and evaluate the potential impacts of an activity to inform decision-making” (Article
1(7)). This definition makes clear that the EIA process in the BBNJ Agreement does not itself
produce a decision on whether an activity can proceed, but rather it informs the decision-
maker. Diverse definitions for the term can also be found in the national legislation of many
States.
Another type of environmental assessment that has been developed more recently is the
Strategic Environmental Assessment (SEA). The BBNJ Agreement does not define SEAs, but it
does state that they are to be conducted for “plans and programmes relating to activities”,
while EIAs are to be conducted for planned activities (Article 31(1)). The Protocol on Strategic
Environmental Assessment (Kiev Protocol) to the Espoo Convention defines a strategic
environmental assessment (SEA) as the: “Evaluation of the likely environmental, including
health, effects, which comprises the determination of the scope of an environmental report
and its preparation, the carrying out of public participation and consultations, and the taking
into account of the environmental report and the results of the public participation and
consultations in a plan or programme”.
Therefore, EIAs can be thought of as applying to individual activities, such as a new
construction project, while SEAs apply to plans and programmes relating to activities.

Objectives in the Agreement in relation to EIAs

The Agreement sets out a number of objectives in relation to EIAs, namely:
• Operationalize the provisions of UNCLOS on EIAs for areas beyond national
jurisdiction (ABNJ) by establishing processes, thresholds and other requirements for
conducting and reporting assessments;
• Achieve a coherent EIA framework for activities in ABNJ;
• Ensure that relevant activities are assessed to prevent, mitigate and manage
significant adverse impacts for the purpose of protecting and preserving the marine
environment;
• Provide for SEAs;

55
 • Build and strengthen the capacity of Parties, particularly developing States Parties, to
prepare, conduct and evaluate EIAs and SEAs in support of the objectives of the
Agreement; and
• Support the consideration of cumulative impacts and impacts in areas within national
jurisdiction.

Obligation to conduct an EIA

The Agreement requires that Parties ensure that the potential impacts on the marine
environment of planned activities under their jurisdiction or control that take place in ABNJ
are assessed before they are authorized (Article 28). This is already an obligation under
UNCLOS but the Agreement further elaborates on this obligation in a number of ways. It
also requires that when a Party determines that an activity to be conducted in marine areas
within national jurisdiction may cause substantial pollution of or significant and harmful
changes to the marine environment in ABNJ, that Party shall ensure that an EIA is conducted
in accordance with the Agreement or the Party’s national process (Article 28(2)).
Furthermore, a Party conducting such an EIA under its national process, must provide
information during the process as well as EIA and monitoring reports to the Clearing-House
Mechanism (Article 28(2)).

Thresholds and factors for conducting EIAs

Parties to the Agreement are required to conduct a screening of a planned activity under
their jurisdiction or control that takes place in areas beyond national jurisdiction when that
activity may have more than a minor or transitory effect on the marine environment, or
when the effects of the activity are unknown or poorly understood (Article 30(1)). If, based
on this screening, the Party has reasonable grounds for believing that the activity may cause
substantial pollution of or significant and harmful changes to the marine environment an EIA
shall be conducted in accordance with the Agreement (Article 30(1)(b)). The Agreement
requires that cumulative impacts (Article 30(1)(a)(ii)) and a list of non-exhaustive factors
listed in it (Article 30(2)) be considered when determining if this threshold is met.

Relationship to EIA processes under relevant legal instruments and

frameworks and relevant global, regional, subregional and sectoral bodies
The Agreement requires that Parties promote the use of EIAs and the adoption and
implementation of the standards and/or guidelines developed by the Scientific and Technical
Body in relevant IFBs of which they are members (Article 29(1)). Furthermore, the COP shall
develop a mechanism for the Scientific and Technical Body to collaborate with IFBs (Article
29(2)).

It is not necessary to conduct a screening or an EIA under the Agreement if a Party

determines that the planned activity has been assessed in accordance with other relevant
IFBs; and that the assessment already undertaken is equivalent to the one required under
the Agreement, or the regulations or standards of the relevant IFBs arising from the
assessment were designed to prevent, mitigate or manage potential impacts below the
threshold for EIAs under the Agreement (Article 29(4)).

56
Process for EIAs
The Agreement requires that Parties ensure that the process for conducting an EIA includes
the following steps: screening (Article 31(1)(a)); scoping (Article 31(1)(b)); impact assessment
and evaluation (Article 31(1)(c)); and prevention, mitigation and management of potential
adverse effects (Article 31(1)(d)).
• Screening: Parties are required to undertake screening to determine whether an EIA
is required in respect of a planned activity under its jurisdiction or control.
• Scoping: Parties are required to ensure that key environmental and any associated
impacts, as well as alternatives to the planned activity are identified.
• Impact assessment and evaluation: Parties are required to ensure that the impacts
of planned activities, including cumulative impacts and impacts in areas within
national jurisdiction, are assessed and evaluated.
• Prevention, mitigation and management of potential adverse effects: Parties
are required to ensure that measures to prevent, mitigate and manage potential
adverse effects of the planned activities under their jurisdiction or control are
identified and analysed to avoid significant adverse impacts.

Parties may conduct joint EIAs (Article 31(2)) and a roster of experts will be created under the
Scientific and Technical Body so Parties with capacity constraints may request advice and
assistance from these experts to conduct and evaluate screenings and EIAs (Article 31(3)).

Decision-making
The decision on whether to conduct an EIA for a planned activity is also taken by the Party
under whose jurisdiction or control the activity falls (Article 31(1)(a)). If a Party determines
after a screening that an EIA is not required, under a so-called “call-in mechanism”, other
Parties may register their views on the potential impacts of the planned activity with the
Party that made the determination and the STB (Article 31(1)(a)(ii)). The STB may in turn
make recommendations to the Party that took the decision, which that Party must consider
(Article 31(1)(a)(iv)).

The decision on whether planned activities are allowed to proceed following an EIA, is also to
be taken by the Party (State or regional economic integration organization (REIO)) under
whose jurisdiction or control the activity falls (Article 38(1)). Here again the Agreement
provides for a “call-in mechanism” to allow other Parties to register their concerns in relation
to an authorized activity with the Party that authorized it, and with the STB, which may in
turn may make recommendations that must be considered by the Party that authorized the
activity (Article 37(4)).

Public notification and consultation

Parties area required to ensure timely public notification of a planned activity, including by
publication through the Clearing-House Mechanism and through the Secretariat, and
planned and effective time-bound opportunities, as far as practicable, for participation by all
States, in particular adjacent coastal States and any other States adjacent to the activity
when they are potentially most affected States, and stakeholders in the EIA process (Article
32(1)). Potentially most affected States include coastal States whose exercise of sovereign
rights for the purpose of exploring, exploiting, conserving or managing natural resources
may reasonably be believed to be affected by the activity and States that carry out, in the
area of the planned activity, human activities, including economic activities, that may
reasonably be believed to be affected (Article 32(2)). The stakeholders in this process include
57
Indigenous Peoples and local communities with relevant traditional knowledge, IFBs, civil
society, the scientific community and the public (Article 32(3)). Substantive comments
received during the consultation process, shall be considered and responded to or
addressed by the Party under whose jurisdiction or control the planned activity falls (Article
32(5)). Special provisions apply where a planned activity affects areas of the high seas that
are entirely surrounded by the exclusive economic zones of States (Article 32(6)).

Environmental impact assessment reports

The Agreement requires that Parties ensure the preparation of an EIA report for any EIA
undertaken under the Agreement (Article 33(1)), and lists the minimum information that
must be included in such an EIA report.
The EIA report shall include, at a minimum, the following information (Article 33(2)):
• a description of the planned activity, including its location;
• a description of the results of the scoping exercise;
• a baseline assessment of the marine environment likely to be affected;
• a description of potential impacts, including potential cumulative impacts and any
impacts in areas within national jurisdiction;
• a description of potential prevention, mitigation and management measures;
• a description of uncertainties and gaps in knowledge;
• information on the public consultation process;
• a description of the consideration of reasonable alternatives to the planned activity; a
description of follow-up actions, including an environmental management plan;
• and a non-technical summary.
The Party shall make the draft EIA report available through the Clearing-House Mechanism
during the public consultation process, to provide an opportunity for the Scientific and
Technical Body to consider and evaluate the report (Article 33(3)). The STB may make
comments to the Party on the draft environmental impact assessment report, which the
Party shall give consideration to (Article 33(4)).

Monitoring, reporting and review

The Agreement sets out a mechanism for ensuring monitoring, reporting and review.
• Monitoring: Parties are required to keep under surveillance the impacts of any
activities in areas beyond national jurisdiction that they permit or in which they engage
(Article 35).
• Reporting: Parties are required to periodically report on the impacts of the authorized
activity and the results of the monitoring (Article 36). Monitoring reports shall be made
public, including through the Clearing-House Mechanism, and the Scientific and
Technical Body may consider and evaluate the monitoring reports (Article 36(2)).
• Review: Parties are required to ensure that the impacts of the authorized activity
monitored are reviewed (Article 37). On the basis of the reports received, the STB may
notify the Party that authorized the activity if it considers that the activity may have
significant adverse impacts that were either not foreseen in the EIA or that arise from
a breach of any conditions of approval of the authorized activity and, as appropriate,
may make recommendations to the Party (Article 37(3)).

58
Standards and/or guidelines related to environmental impact assessments
The Agreement provides that the STB shall develop standards or guidelines for consideration
and adoption by the COP on a number of aspects related to EIAs (Article 38).

Strategic environmental assessments (SEAs)

The Agreement calls on Parties to, individually or in cooperation with other Parties, consider
conducting SEAs for plans and programmes relating to activities under their jurisdiction or
control, to be conducted in ABNJ, in order to assess the potential effects of such plans or
programmes, as well as of alternatives, on the marine environment (Article 39(1)).
Furthermore, the COP may conduct an SEA of an area or region to collate and synthesize the
best available information about the area or region, assess current and potential future
impacts and identify data gaps and research priorities (Article 39(2)).

3.6 Capacity-building and the transfer of marine

technology
Introduction
During the negotiation of the Agreement, capacity-building and the transfer of marine
technology (CB&TMT) were recognized as cross-cutting issues, essential to enabling all to
participate in achieving the conservation and sustainable use of marine biological diversity of
areas beyond national jurisdiction. As a result, references to these aspects permeate the
Agreement. General obligations as well as modalities regarding CB&TMT, types of CB&TMT
and monitoring and review of CB&TMT are set out in Part V and Annex II.

Scope of CB&TMT
While neither “capacity-building” nor “marine technology” are defined by UNCLOS, the BBNJ
Agreement provides a definition of “marine technology” in its use of terms (Article 1(10)).
This definition takes inspiration from the IOC Criteria and Guidelines on the Transfer of
Marine Technology (see Section 2.5), with the addition of the terms “inter alia” and “related
biotechnology”. The BBNJ Agreement does not define the term “capacity-building”, but an
indicative and non-exhaustive list of types of capacity-building and of the transfer of marine
technology can be found Article 44(1), which is further elaborated in Annex II to the
Agreement.

BBNJ Agreement – main elements regarding capacity-building and the transfer of

marine technology
Objectives
The objectives of Part V are to assist Parties, in particular developing States Parties, in
implementing the Agreement, to enable inclusive, equitable and effective cooperation and
participation in activities undertaken under the Agreement; to develop the marine scientific
and technological capacity of Parties; and to increase, disseminate and share relevant
knowledge (Article 40).
More specifically, Part V aims to support developing States Parties, in particular the least
developed countries, landlocked developing countries, geographically disadvantaged States,
small island developing States, coastal African States, archipelagic States and developing

59
middle-income countries, through CB&TMT under the Agreement, in achieving the objectives
relating to MGRs, ABMTs and EIAs.

Cooperation
The Parties are required to cooperate, directly or through relevant IFBs, to assist Parties, in
particular developing States Parties, in achieving the objectives of the Agreement through
CB&TMT.
In this respect, the Parties are to cooperate at all levels and in all forms, including through
partnerships and with the involvement of all relevant stakeholders, as well as through
strengthening cooperation and coordination between relevant IFBs.
This entails a commitment to give full recognition to the special requirements of developing
States Parties, and to ensure that the provision of CB&TMT is not conditional on meeting
onerous reporting requirements (Article 41).

Modalities
Within their capabilities, the Parties are under an obligation to ensure capacity-building for
developing States Parties and to cooperate to achieve the transfer of marine technology to
them, where needed and requested (Article 42). The Parties must also provide resources to
support CB&TMT and facilitate access to other sources of support.
Under the Agreement, CB&TMT are envisaged as country-driven, transparent, effective and
iterative processes that are participatory, cross-cutting, and gender-responsive. CB&TMT are
intended to build upon, rather than duplicate, existing programmes, guided by lessons
learned, and maximizing efficiency and results. CB&TMT are further to be based on and
responsive to the needs and priorities of developing States Parties, whether self-assessed or
facilitated through the CB&TMT Committee and the Clearing-House Mechanism (see Section
3.7).The transfer of marine technology is to take place on fair and most favourable terms,
including on concessional and preferential terms, and in accordance with mutually agreed
terms and conditions as well as the objectives of the Agreement.
Parties must further promote and encourage economic and legal conditions for the transfer
of marine technology to developing States Parties, which may include providing incentives to
enterprises and institutions. Conversely, the transfer of marine technology must take into
account rights over such technologies and be carried out with due regard for legitimate
interests, including rights and duties of holders, suppliers and recipients, and take into
consideration interests and needs of developing States. The relevant technology shall be
appropriate, relevant and, to the extent possible, reliable, affordable, up to date,
environmentally sound and in an accessible form (Article 43).

Types of CB&TMT
Article 44 of the Agreement sets out an indicative and non-exhaustive list of types of
CB&TMT, which includes support for the creation or enhancement of the human, financial
management, scientific, technological, organizational, institutional and other resource
capabilities of Parties.
This list includes, for example, the sharing and use of data and information, awareness-
raising, as well as the development and strengthening of infrastructure, institutional
capacity, national regulatory frameworks, expertise, guidelines, programmes, and tools for
the monitoring, control and surveillance of activities.

60
The list is further elaborated in Annex II of the Agreement, which is subject to periodic review
by the COP, to account for the evolution of technology, innovation and needs.

Monitoring and review by the CB&TMT Committee

CB&TMT under the Agreement are subject to periodic monitoring and review, carried out by
a CB&TMT Committee under the authority of the COP (Article 45).
The CB&TMT Committee consists of members possessing appropriate qualifications and
expertise that serve objectively in the best interest of the Agreement (Article 46). Members
are nominated by Parties and elected by the COP, taking into account gender balance and
equitable geographical distribution and providing for representation from least developed
countries, small island developing States and landlocked developing countries. The terms of
reference and modalities for the operation of the Committee are decided by the COP.
The CB&TMT Committee is to review the needs and priorities of developing States Parties
and the support required, provided and mobilized, as well as gaps in meeting assessed
needs. It is also tasked with identifying and mobilizing funds under the financial mechanism
established by the Agreement, including for the conduct of needs assessments. The
Committee is further mandated to measure performance on the basis of agreed indicators
and review results-based analyses, including on the output, outcomes, progress and
effectiveness of CB&TMT, as well as successes and challenges. It may make
recommendations for follow-up activities.
The Parties must submit reports to the CB&TMT Committee, which are to take into account
inputs from regional and subregional bodies and are made publicly available. The COP
determines the intervals and formats of these reports and ensures that reporting
requirements are streamlined and not onerous. The CB&TMT Committee submits reports
and recommendations to the COP.

3.7 Cross-cutting issues

What are cross-cutting issues?
“Cross-cutting” issues address general, procedural and institutional matters that relate to
several substantive provisions of the BBNJ Agreement or that are relevant to the Agreement
as a whole.
Given their overarching nature, cross-cutting issues can have a significant effect on the
substantive interpretation and application of the Agreement.
The cross-cutting issues cover:
(1) The preamble
(2) General provisions;
(3) Institutional arrangements;
(4) Financial resources and mechanism;
(5) Implementation and Compliance;
(6) Settlement of disputes;
(7) Non-parties to the Agreement;
(8) Good faith and abuse of rights; and
(9) Final provisions.;.

61
Preamble
The general purpose of a preamble is to articulate the purposes and considerations that led
States to conclude a treaty. It can serve as a tool for understanding the context and rationale
of the drafters. The preamble of the BBNJ Agreement contains a number of statements and
understandings considered important for delegations who negotiated the Agreement.
General provisions
Along with the preamble, general provisions set the context for the substantive elements of
the Agreement and bind them together into a coherent normative framework. They
address:
• Definitions of the terms used in the Agreement;
• The objective of the Agreement and its scope of application;
• Exceptions to the applicability of the Agreement;
• Its relationship with UNCLOS and other relevant IFBs;
• General principles and approaches; and
• International cooperation.

Objective
The objective of the Agreement is to ensure 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 UNCLOS and further
international cooperation and coordination (Article 2).

Scope of application
The Agreement applies to areas beyond national jurisdiction, namely the high seas and the
Area (Article 3).

Exceptions
The BBNJ Agreement does not apply to:
• Any warship, military aircraft or naval auxiliary;
• Other vessels or aircraft owned or operated by a Party and used, for the time being,
only on government non-commercial service (except for Part II) (Article 4).

Relationship with UNCLOS and other relevant instruments, frameworks or bodies

As an implementing Agreement to UNCLOS, the BBNJ Agreement must be interpreted and
applied in the context of and in a manner consistent with UNCLOS (Article 5(1)).
Likewise, it must be interpreted and applied in a manner that does not undermine relevant
IFBs and that promotes coherence and coordination with those IFBs (Article 5(2)).
Finally, the legal status of non-parties to UNCLOS is not affected by the Agreement (Article
5(3)).

General principles and approaches

The BBNJ Agreement includes a list of fourteen general principles and approaches, which
shall guide Parties in their interpretation and application of the Agreement, with a view to
achieving its objectives (Article 7).

62
International cooperation
Parties are required to cooperate under the Agreement, including through strengthening
and enhancing cooperation with and among relevant IFBs (Article 8(1)). They must also
endeavour to promote the objectives of the Agreement when participating in decision-
making under other relevant IFBs (Article 8(2)).

Institutional arrangements
The Agreement establishes a number of bodies to review and assist in its implementation,
including a Conference of the Parties and several subsidiary bodies. It also establishes a
Secretariat and a Clearing-House Mechanism.

Conference of the Parties

The COP is established as the decision-making body under the Agreement. Its functions
include to:
• Keep under review and evaluation the implementation of the Agreement and, for
this purpose, to:
• Adopt decisions and recommendations;
• Promote cooperation and coordination with and among relevant IFBs;
• Establish subsidiary bodies;
• Adopt a budget;
• Promote transparency in decision-making processes and other activities carried
out under the Agreement (Article 47(6)); and
• Request advisory opinions from the International Tribunal for the Law of the Sea
(Article 47(7)).
The first meeting of the COP shall be convened by the Secretary-General of the United
Nations no later than one year after the entry into force of the Agreement. Thereafter, the
COP will meet at regular intervals to be determined by the Conference itself (Article 47(2)).

Subsidiary bodies
These include:
• The Scientific and Technical Body (see also sections 3.4 and 3.5). Its mandate
includes to:
o Provide scientific and technical advice to the COP;
o Perform other functions assigned to it by the Agreement or determined by
the COP; and
o Report to the COP on its work (Article 49(4)).
• The Access and Benefit-sharing Committee (see also section 3.3). It will serve as a
means for establishing guidelines for benefit-sharing, providing transparency and
ensuring a fair and equitable sharing of both monetary and non-monetary benefits
resulting from activities in ABNJ (Article 15(1)). It may also make recommendations to
the COP on matters relating to the implementation of Part II of the Agreement on
marine genetic resources (Article 15(3)).
• The Capacity-building and Transfer of Marine Technology Committee (see also
section 3.6). Its functions include to:
o Facilitate needs assessments on CB&TMT (Article 42(4));
o Conduct, under the authority of the COP, the monitoring and review of
CB&TMT undertaken under the Agreement (Article 45(3));

63
 o Submit recommendations, including on types of CB&TMT (Articles 44(3) and
46(3)); and
o Regularly report to the COP (Article 46(3)).
• The Finance Committee. It will periodically report and make recommendations on
the identification and mobilization of funds under the financial mechanism
established by the Agreement. It may also perform other functions assigned to it by
the Agreement or determined by the COP (Article 52(14)).
• The Implementation and Compliance Committee. It will be facilitative in nature
and function in a manner that is transparent, non-adversarial and non-punitive
(Article 55(1)). Its functions include to:
o Consider issues of implementation and compliance at the individual and
systemic levels;
o Report periodically; and
o Make recommendations to the COP (Article 55(3)).

Secretariat
The Secretariat will:
• Provide administrative and logistical support to the COP and its subsidiary bodies;
• Facilitate cooperation and coordination with the secretariats of other relevant IFBs;
• Manage the Clearing-House Mechanism;
• Provide assistance with the implementation of the Agreement;
• Perform other functions, as may be determined by the COP or assigned to it under
the Agreement (Article 50(4)).
Arrangements for the functioning of the Secretariat, including the decision on its seat, will be
made at the first meeting of the COP (Article 50(1)). In the interim period, until the
Secretariat to be established under the Agreement commences its functions, the Secretary-
General of the United Nations, through DOALOS, performs the secretariat functions
thereunder (Article 50(2)).

Clearing-House Mechanism
A Clearing-House Mechanism is also established (Article 51(1)). It will serve as an open-
access, centralized platform to enable Parties to access, provide and disseminate
information with respect to activities taking place pursuant to the provisions on ABMT,
including MPAs, MGRs and EIAs (Article 51(2) and (3)(a)).
It will also facilitate the matching of capacity-building needs with the support available and
with providers for the transfer of marine technology, and facilitate access to related know-
how and expertise (Article 51(3)(b)).
In the management of the Clearing-House Mechanism, full recognition shall be given to the
special requirements of developing States Parties, as well as the special circumstances of
small island developing States Parties (Article 51(5)).

Financial resources and mechanism

Funding arrangements are key to ensuring that institutions established under the
Agreement have the necessary resources to function and to ensuring that Parties to the
Agreement can be assisted in its implementation and participate in activities thereunder.

64
The institutions established by the BBNJ Agreement will be funded through assessed
contributions of the Parties (Article 52(2)).
The Agreement also provides for the establishment of a financial mechanism to assist
developing States Parties in its implementation, including through funding in support of
CB&TMT, and perform other functions related to the conservation and sustainable use of
marine biological diversity (Article 52(3)). The financial mechanism will consist of:
• A voluntary trust fund to facilitate the participation of representatives of developing
States Parties in the meetings of the bodies established under the Agreement (Article
52(4)(a));
• A special fund (Article 52(4)(b)); and
• The Global Environment Facility trust fund (Article 52(4)(c)).
The special fund and the Global Environment Facility trust fund will be utilized, among
others, to fund capacity-building projects under the Agreement and support conservation
and sustainable use programmes by Indigenous Peoples and local communities as holders
of traditional knowledge (Article 52(6)).
Additionally, in recognition of the urgency to address the conservation and sustainable use
of marine biological diversity of ABNJ, the COP shall determine an initial resource
mobilization goal through 2030 for the special fund from all sources (Article 52(11)).

Implementation and Compliance

Parties are required to take the necessary legislative, administrative or policy measures, as
appropriate, to ensure the implementation of the Agreement (Article 53). They must also
monitor the implementation of their obligations and report on measures taken in this
respect to the COP (Article 54).
In addition, the Implementation and Compliance Committee established under the
Agreement is assigned the task to facilitate and consider the implementation of and
promote compliance with its provisions (Article 55(1)).

Settlement of disputes
Parties must settle their disputes by peaceful means of their choice (Article 57).
Disputes of a technical nature may be referred by the Parties concerned to an ad hoc expert
panel which will endeavour to resolve the dispute expeditiously without recourse to binding
procedures (Article 59).
Disputes concerning the interpretation or application of the Agreement must be settled in
accordance with the provisions for the settlement of disputes provided for in Part XV of
UNCLOS (Article 60(1)). Taking into account that the Agreement is open to States or regional
economic integration organizations that are not parties to UNCLOS, two different scenarios
are envisaged in the Agreement:
• First, for those that are already parties to UNCLOS:
The procedures they have accepted pursuant to Article 287 of UNCLOS will apply for
the settlement of disputes under the Agreement unless they accept another
procedure (Article 60(4)); and
• Second, for those that are not Parties to UNCLOS:
They will be free to choose, by means of a written declaration to the depositary one
or more of the procedures set out in Article 287 of UNCLOS (Article 60(5)). In the

65
 absence of such declaration, they will be deemed to have accepted Annex VII arbitral
tribunal as their choice of procedure (Article 60(6)).

Other cross-cutting provisions

Other cross-cutting provisions include:
• Non-parties to the Agreement. Parties must encourage non-parties to the Agreement
to become Parties thereto and to adopt laws and regulations consistent with its
provisions (Article 62).
• Good faith and abuse of rights. Parties must fulfil in good faith the obligations
assumed under the Agreement and exercise the rights recognized therein in a
manner that would not constitute an abuse of right (Article 63); and
• Final provisions, including concerning signature (Article 65); ratification, approval,
acceptance or accession (Article 66); entry into force (Article 68); provisional
application (Article 69); reservations and exceptions (Article 70); amendments (Article
72); denunciation (Article 73);designation of the depositary (Article 75); authentic
texts (Article 76); and other matters. Pursuant to its final provisions:
o The BBNJ Agreement will enter into force 120 days after the date of deposit of
the sixtieth instrument of ratification, approval, acceptance or accession
(Article 68(1)).
o Pending entry into force, it may be provisionally applied by any State or REIO
that consents to such provisional application through notification to the
depositary, namely the Secretary-General of the United Nations (Article 69(1)).
o No reservations or exceptions may be made to the Agreement unless
expressly permitted by its provisions (Article 70).
o Other declarations or statements are permitted, provided that they do not
purport to exclude or modify the legal effects of the provisions of the
Agreement in their application to the declaring Party (Article 71).
o Parties may propose amendments to the Agreement, which will be
considered by the COP (Article 72(1)).
o A Party may denounce the Agreement by written notification to the
depositary, without the need to indicate its reasons (Article 73(1)).

66
3.8 Recap
Marine genetic resources, including the fair and equitable sharing of benefits
What?
• ”Marine genetic resources” is defined under the BBNJ Agreement as any material of
marine plant, animal, microbial or other origin containing functional units of heredity
of actual or potential value. This is the first internationally agreed definition of marine
genetic resources.
• “Digital sequence information” is not defined in the BBNJ Agreement. At the time of
the conclusion of the BBNJ Agreement, work was ongoing under the Convention on
Biological Diversity on the issue of digital sequence information.
Legal framework for MGRs, including fair and equitable benefit-sharing under the
BBNJ Agreement
• There are specific objectives of Part II of the Agreement on MGRs, including the fair
and equitable sharing of benefits.
• The Agreement specifies the temporal and material scope of application of its
provisions on MGRs. Notably, the provisions of Part II do not apply to fishing
regulated under relevant international law and fishing-related activities, or fish or
other living marine resources known to have been taken in these activities from
ABNJ, except where they are regulated as utilization under Part II.
• The Agreement sets out general rules governing activities with respect to MGRs and
DSI on MGRs of ABNJ. It also provides for a notification system on such activities.
• The Agreement addresses the access and use of traditional knowledge of Indigenous
Peoples and local communities associated with MGRs in ABNJ.
• The Agreement provides for the fair and equitable sharing of both monetary and
non-monetary benefits arising from activities with respect to MGRs and DSI on MGRs
of ABNJ:
o Non-monetary benefits are to be shared in the form of access to samples, DSI
and scientific data, information contained in notifications, capacity-building
and transfer of marine technology, as well as increased technical and
scientific cooperation;
o Monetary benefits will be shared through payments to a special fund,
including annual contributions by developed Parties of additional 50 per cent
of their assessed contribution to the budget adopted by the COP until a COP
decision on the modalities for sharing monetary benefits from the utilization
of MGRs and DSI on MGRs of ABNJ.
• An Access and Benefit-Sharing Committee is established as, among others, a means
to establish benefit-sharing guidelines, provide transparency and ensure a fair and
equitable benefit-sharing.
• The Agreement also contains provisions on the monitoring and transparency of
activities with respect to MGRs and DSI on MGRs of ABNJ, including an obligation of
Parties to submit periodic reports on their implementation of provisions concerning
these activities and benefit-sharing.
Main elements
• Objectives of Part II of the Agreement
• Scope of application of provisions with respect to MGRs
• General rules on activities with respect to MGRs and DSI on MGRs of ABNJ, and a
notification system on such activities
67
 • Traditional knowledge of Indigenous Peoples and local communities associated with
MGRs in ABNJ
• Fair and equitable sharing of both monetary and non-monetary benefits arising from
activities with respect to MGRs and DSI on MGRs of ABNJ
• An Access and Benefit-Sharing Committee
• Monitoring and transparency

Measures such as area-based management tools, including marine protected

areas
What?
• Tools for the protection and preservation of the marine environment and the
sustainable use of its resources. AMBTs and MPAs are specifically defined under the
Agreement.
Legal framework for ABMTs under the BBNJ Agreement
• There are specific objectives for Part III of the Agreement on ABMTs, including MPAs.
• The area of application is ABNJ. ABMTs, including MPAs, shall not include any areas
within national jurisdiction.
• Part III of the Agreement sets out the process for the establishment of ABMTs,
including regarding the development of proposals, consultations with relevant
stakeholders, review by the STB and decisions and recommendations by the COP.
• The Agreement also sets out the relationship between the COP and IFBs, including by
stipulating that, in taking decisions, the COP shall respect the competences of, and
not undermine IFBs, and shall make arrangements for consultations to enhance
cooperation and coordination.
• There are also provisions on the implementation, monitoring and review of ABMTs,
including procedures for measures to be amended, extended or revoked by the COP.
Main elements
• Objectives;
• Area of application
• Proposals, including publicity, preliminary review; consultations and assessments;
• Establishment of ABMTs, including MPAs
• Decision-making
• Emergency measures
• Objections
• Implementation
• Monitoring and review

Issue 3 - Environmental Impact Assessments

What?
• The BBNJ Agreement defines Environmental impact assessments as “a process to
identify and evaluate the potential impacts of an activity to inform decision-making”.
This definition makes clear that the EIA process in the BBNJ Agreement does not itself
produce a decision on whether an activity can proceed, but rather it informs the
decision-maker.
• Another type of environmental assessment addressed in the BBNJ Agreement is the
Strategic Environmental Assessment . The Agreement does not define SEAs, but it

68
 does state that they are to be conducted for “plans and programmes relating to
activities”, while EIAs are to be conducted for planned activities.

Legal framework for EIA

• The objectives in relation to EIAs include to operationalize the provisions of UNCLOS
on EIAs for ABNJ by establishing processes, thresholds and other requirements for
conducting and reporting assessments;
• The Agreement requires that Parties ensure that the potential impacts on the marine
environment of planned activities under their jurisdiction or control that take place in
ABNJ are assessed before they are authorized This is already an obligation under
UNCLOS but the Agreement further elaborates on this obligation in a number of
ways.
• Under the BBNJ Agreement it is not necessary to conduct a screening or an EIA under
the Agreement if a Party determines that the planned activity has been assessed in
accordance with other relevant IFBs and other requirements set out in the
Agreement are met;
• The process for conducting an EIA includes the following steps: screening; scoping;
impact assessment and evaluation; and prevention, mitigation and management of
potential adverse effects.
• The decision on whether to conduct an EIA for a planned activity under the
Agreement is taken by the Party under whose jurisdiction or control the activity falls,
however, the Agreement also provides a so-called ‘call-in mechanism” for other
Parties to register their views on the potential impacts of the planned activity with the
Party that made the determination and the STB;
• The Agreement establishes several notification and consultation requirements and
lists the minimum information that must be included in EIA reports.
• It also establishes a mechanism for ensuring monitoring, reporting and review of the
authorized activities.

Main elements
• The objectives of the Agreement in respect of EIAs;
• The obligation to conduct an EIA; the relationship to the EIA processes under other
IFBs;
• The process for conducting an EIA;
• Decision-making in respect of EIAs;
• Public notification and consultation; EIA reports;
• Monitoring, reporting and review;
• Sandards and/or guidelines to be developed on the conduct of EIAs; and
• SEAs.

Issue 4 - Capacity building and the transfer of marine technology

What?
• The BBNJ Agreement includes a definition of “marine technology”, based upon the
Criteria and Guidelines on the Transfer of Marine Technology of the
Intergovernmental Oceanographic Commission.
• Article 1 of the BBNJ Agreement sets out an illustrative enumeration of “marine
technology”, and Article 44 and Annex II an indicative list of types of CB&TMT.

69
 • CB&TMT plays a key role in realizing the goals of the BBNJ Agreement in relation to
MGRs, ABMTs and EIAs.
Legal Framework for CB&TMT
• Part V of the Agreement comprises provisions on objectives, cooperation and
modalities, as well as a system for monitoring and review.
• It establishes a designated CB&TMT Committee that submits reports and
recommendations to the COP.
• Part V also illustrates types of CB&TMT, which are further elaborated in Annex II.

Main elements
• Objectives;
• Cooperation;
• Modalities;
• Types of CB&TMT;
• Monitoring and review; and
• CB&TMT Committee.

Issue 5 - Cross-cutting issues

What?
• “Cross-cutting” issues address general, procedural and institutional matters that
relate to several substantive provisions of the BBNJ Agreement or that are relevant to
the Agreement as a whole. As such, they are key for its interpretation and
implementation.
• General provisions, along with the preamble, set the context for the substantive
elements of the Agreement and bind them together into a coherent normative
framework.
• Institutional arrangements established under the Agreement include a Conference of
the Parties as the governing body of the Agreement and several subsidiary bodies, as
well as a Secretariat and a Clearing-House Mechanism.
• Other cross-cutting provisions contained in the Agreement govern various, mainly
procedural, aspects that may arise before or after its entry into force.
Provisions of the Agreement of a cross-cutting nature
• Preamble;
• Use of terms;
• General objective;
• Scope of application;
• Exceptions
• Relationship with UNCLOS and relevant IFBs;
• Without prejudice
• General principles and approaches;
• International cooperation;
• Institutional arrangements;
• Financial resources and mechanisms;
• Implementation and compliance;
• Settlement of disputes;
• Non-parties to the Agreement;
• Good faith and abuse of rights;
• Final provisions.

70