Exploring the path towards implementation of the BBNJ Agreement
With 84 signatories already supporting the 2023 Agreement on Marine Biodiversity of Areas beyond National Jurisdiction (BBNJ), national governments and international judges are starting to consider the way forward towards implementing this ground-breaking international treaty. As part of these efforts, Hub Director Elisa Morgera was invited to reflect on fair and equitable benefit-sharing under the BBNJ Agreement at an international law conference in the Republic of Korea, which was co-organised by the Ministry of Foreign Affairs, the Korean Association of International Law, and the International Tribunal for the Law of the Sea (ITLOS).
Fairness and equity
The 8th International Conference on the Law of the Sea, titled “Law of the Sea for the Next Generation: BBNJ Agreement, from Definition to Regulation” (20-22 November 2023, in Seoul) was attended by the Facilitators of the different streams of international negotiations that led to the adoption of the BBNJ Agreement, the former and current Presidents of ITLOS and a number of ITLOS judges.
Elisa Morgera contributed to the session on marine genetic resources, including questions on the sharing of benefits, which was moderated by Konrad Jan MARCINIAK (Ministry of Foreign Affairs, Poland; ITLOS). Following the insights into the negotiations from Amb. Janine Elizabeth Coye-Felson (Permanent Mission of Belize to the UN), Elisa Morgera presented on “fairness, equity and effectiveness of benefit-sharing under the BBNJ Agreement.” Her presentation reflected on the innovations of the provisions of the BBNJ Agreement on fair and equitable benefit-sharing, taking into account lessons learnt in other international regimes on access to genetic resources and benefit-sharing. The presentation focused on the importance of developing treaty provisions on fairness and equity as a way to ensure more effective approaches to benefit-sharing, taking into account the power asymmetries in deep-sea research. The presentation suggested on how to interpret and apply the provisions on benefit-sharing in the BBNJ Agreement together with the other Parts of the Agreement, reflecting on the role of the ocean genome for the conservation and sustainable use of marine biodiversity within and outside national jurisdiction. Specific insights were shared on the opportunities for transformative approaches to the institutional framework envisaged for the BBNJ Agreement implementation, and the conduct of regional Strategic Environmental Assessments.
Following comments and questions from two discussants (Prof. David Leary, University of Technology Sydney, and Dr. Youngdawng Moh, Korea Institute of Ocean Science and Technology), the panellists considered the need to further develop the benefit-sharing regime under the BBNJ Agreement, with Morgera calling for an inter-disciplinary representation (notably including the social sciences and Indigenous knowledge) in the subsidiary body that will shape more detailed rules and should also advise, iteratively, on the fairness and equity dimensions on these rules once they start to be implemented. On the question of whether fairness and equity are purely ethical standards, Morgera indicated that international human rights law is relevant and applicable to BBNJ, and provides procedural and substantive standards to clarify State obligations in relation to fairness and equity.
The other panels offered a series of further insights that provide important food for thought for all of those wishing to contribute to the implementation of the BBNJ Agreement, such as the:
- role of the BBNJ Agreement to engender international solidarity, including vis-à-vis future generations;
- relevance of the BBNJ Agreement for the regime of the international seabed;
- balance between international oversight and national flexibility in the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction, considering the “inconvenient truth” of limited effectiveness of marine conservation measures in areas within national jurisdiction;
- transformative potential of the innovative institutions to be created under the BBNJ Agreement;
- need to significantly advance the state of knowledge of BBNJ, and ensure more harmonization across scientific endeavours to enhance inter-operability and comparability of data;
- need to develop national laws to implement the novel provisions of the BBNJ Agreement, including on benefit-sharing and environmental impact assessments;
- potential for different interpretations with regard to exceptions and opt-out provisions in the BBNJ Agreement vis-à-vis the need to ensure cooperation and clarify due diligence standards;
- relevance of the BBNJ Agreement for ocean-based climate mitigation within and beyond areas of national jurisdiction;
- innovative content and integrated nature of the international obligations on capacity building and technology transfer; and
- ground-breaking provisions on the participation of Indigenous and local knowledge holders and the integration of their knowledge systems in global ocean governance.
Then One Ocean Hub will produce a new series of policy briefs to support the implementation of the BBNJ Agreement, building on our latest inter-disciplinary and trans-disciplinary research findings in early 2024.