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SEI’s Luciana Fernandes Coelho attended sessions of negotiations and analysed the new global agreement that protects marine biodiversity in areas beyond national jurisdiction.
The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ agreement) marks a significant milestone in an era where the sustainability of our oceans stands at a critical juncture. The final text of this agreement, under the framework of the UN Convention of the Law of the Sea (UNCLOS), took many years of negotiations, to reach a satisfactory text that will protect global biodiversity, foster equity and tackle climate change.
In a recent paper, SEI’s Luciana Fernandes Coelho joined the team of legal advisors to the Brazilian delegation to break down key elements of the agreement and the preceding negotiations, with a special focus on the role of Brazil. Fernandes Coelho provides an English summary here of their paper, originally published in Portuguese.
The BBNJ agreement represents a milestone in multilateralism, filling a regulatory void in areas beyond national jurisdiction (ABNJ). These areas cover two-thirds of the ocean and have so far been subject to a fragmented regulatory framework.
The agreement introduces a unified and comprehensive approach to the governance of these critical areas, rooted in the fundamental principles of international environmental law. It also emphasizes the climate-ocean nexus, the importance of traditional and Indigenous knowledge in ocean governance, and the special circumstances of Small Island Developing States.
The negotiation journey for the BBNJ agreement, spanning nearly two decades, reached a pivotal point with its final acceptance in June 2023. A turning point was the resumed fifth session of the intergovernmental conference (IGC5.2-BBNJ), held at the UN Headquarters in New York between February and March 2023. This session featured intense discussions, especially on marine genetic resources (MGR) and environmental impact assessments (EIAs), highlighting concerns over the fair and equitable sharing of benefits from MGRs and who would be held accountable for EIAs.
During this critical session, Brazil aligned its position with the Core Latin American Countries group and established collaborations with the G-77+China group, the Caribbean Community (CARICOM), the African Group and the Pacific Small Island Developing States. In contrast, the EU collaborated closely with the US, UK, Japan, Australia, Iceland, Norway, Switzerland and New Zealand.
The negotiations were notably enriched by contributions from civil society through non-governmental organizations, think tanks, universities, and the private sector, which helped shape the direction of the agreement.
The BBNJ agreement addresses the governance of marine genetic resources (MGRs), including the fair and equitable sharing of benefits from activities related to these resources and digital sequence information (DSI). Using the domestic legislation on MGR access as an inspirational model, Brazil played an important role in reaching commitment on how the BBNJ agreement would outline a series of non-monetary benefits to be shared from both in situ and ex situ acquisition of MGRs and DSI, and the modalities to do so. The country was also a key actor in reaching an agreement on establishing the sharing of monetary benefits from the utilization of MGRs and DSI. The trigger for sharing monetary and non-monetary benefits is linked to a batch identifier, to be generated by the Clearing-House Mechanism.
For area-based management tools (ABMT), including marine protected areas (MPAs), member states had divergent views on enhancing authority for international institutions versus maintaining a sovereignty-oriented perspective. Brazil endorsed an international framework to oversee AMBTs while asserting that states should retain the right to propose the creation of such areas.
Proposals for ABMTs must be supported by robust scientific evidence and traditional and Indigenous knowledge, requiring consensus for approval by the conference of parties (COP). In emergencies threatening marine biodiversity, the COP has the authority to implement emergency measures.
The BBNJ agreement’s considerations on environmental impact assessments (EIAs) include determining thresholds for EIA obligations and addressing activities within national jurisdictions that may impact ABNJs, the most controversial topics in this segment of the negotiations. Brazil favoured a member state–led process, advocating for a lower threshold for EIA requirements and a mix of international and civil society oversight.
This agreement mandates that a party with jurisdiction or control over a planned activity must undertake an EIA if the party deems that the activity could cause substantial pollution or significant harm to the marine environment. It outlines a comprehensive EIA procedure, encouraging participation from other states, Indigenous peoples, local communities and various stakeholders.
Divergent views on capacity building and the transfer of marine technology (CB&TMT) revolved around concerns that binding obligations could jeopardize intellectual property rights, particularly concerning marine technology transfer. Some argued that the treaty’s success depended on all states having enhanced scientific and technological capabilities, suggesting that intellectual property rights should not hinder ocean sustainability. Brazil aligned with the G77+China and CARICOM groups on this issue.
The final agreement text includes mandatory language for promoting capacity building and cooperative language guiding the transfer of marine technology obligation. The treaty delineates a vision, principles and guidelines for the implementation of CB&TMT obligations, ensuring their more enduring and impactful influence. Furthermore, it establishes a CB&TMT committee with responsibilities for monitoring and reviewing these obligations. Of significance, participating states are mandated to articulate assessments detailing prioritized needs in both capacity and marine technology.
In an in-depth analysis of these developments, Fernandes Coelho and another team of researchers presented the next steps for CB&TMT, publishing in npj Ocean Sustainability. Key remaining areas include action plans, capacity building and funding.
Financing was one of several cross-cutting issues that were sticking points in the BBNJ negotiations. As a result of Brazil and the G77+China group’s proactive engagement, the BBNJ agreement introduces a financial mechanism comprised of a voluntary trust fund, a special fund, and the Global Environment Facility trust fund, which will be crucial for the BBNJ’s successful implementation.
Over 80 countries have already signed the BBNJ agreement, and now the race for ratification is underway, with Palau, Chile, and Belize the first to do so. The treaty will enter into force 120 days after the 60th ratification, and the first COP will take place one year later.
In their article reviewing Brazil’s role in negotiating the final agreement, Fernandes Coelho and colleagues recommend that Brazilian authorities prioritize ratifying the treaty, in order to guarantee the country’s opportunity to participate in the first COP and to reaffirm Brazil’s commitment to marine biodiversity conservation. They also urge other member states to act swiftly to bring the agreement into force, as unified global action is needed to safeguard the marine biodiversity of ABNJ.
Journal article / In this paper, the authors discuss the achievements in the BBNJ treaty regarding capacity building and the transfer of marine technology.
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