Introduction
4 March 2023 allegedly marked a turning point in human history: for during the late of the night of that historic Saturday, the United Nations finally agreed on a text for a treaty which aims to protect and sustainably use marine biodiversity beyond national jurisdiction, commonly known as the high seas, with the agreement called the ‘High Seas Treaty’ or BBNJ Agreement. The Guardian, for example, refers to this treaty as an ‘historic deal to protect international waters’ (McVeigh, 2023), being crucial “for enforcing the 30×30 pledge […] to protect a third of the sea (and land) by 2030” (ibid.). The German Die Zeit even referred to the adoption of the BBNJ Agreement as “the miracle of New York” (“Das Wunder von New York”, Böhm, 2023), which constitutes the third success for the protection of the natural environment after the consensuses found at the climate meeting in Sharm-el-Sheikh in November 2022 and the Biodiversity Conference in December 2022.
These are but two examples of the international media response to the adopted text of the treaty. In this article, I critically examine the way media sources consider the treaty, gauged against the available draft text of the BBNJ Agreement, which is available at the United Nations website (UN, 2023).
What is the issue at hand?
Before delving into the medial reflection of the treaty, it is important to understand what the topic at hand really is. Obviously, the treaty deals with the ‘high seas’, those marine areas beyond national jurisdiction, i.e. beyond the reaches of the 200 nautical mile Exclusive Economic Zones (EEZs). The EEZs were established under the UN Convention on the Law of the Sea (UNCLOS), which was adopted in 1982. Based on the provisions of the UNCLOS, the coastal state has exclusive rights to the conservation and use of resources within these marine regions, for instance with regard to fisheries, subsurface resources and the subsoil. While the freedom of navigation takes hold within the EEZs, meaning that other states can make use of respective UNCLOS provisions as to the use of the resources, these are also subject to the interests of the coastal state. This means, it is the coastal state which still exercises some degree of sovereignty over the EEZ (Churchill & Lowe, 1999, pp. 165-174).
While as such, EEZs can also be considered ‘international waters’, it is the waters beyond the EEZ which are of relevance for the BBNJ Agreement. These waters constitute around 60% of the world’s surface and are not governed by any international treaty. Although the UNCLOS, which is also considered the ‘constitution of the oceans’ does contain some provisions on the high seas, or which are at least relevant for the high seas, fisheries or other uses of the marine, subsurface and subsoil resources are not fully regulated. This is to say, as per the UNCLOS, it is the flag state, i.e. the state under whose flag a ship sails the high seas, which exercises its jurisdiction. The only exception is the international sea bed area, also referred to as ‘the Area’, which is considered a ‘common heritage of mankind’ and the exploitation of resources of which are under the umbrella of the International Seabed Authority (ISA), headquartered in Kingston, Jamaica.
Apart from the competences of the ISA, no other international body has similar competences over the high seas. Concerning fishing, the world’s oceans are partitioned by a large number of regional fisheries management organisations (RFMOs), each with its own terms of reference and liable only to the parties to the respective agreement under which it was established.
Also the International Whaling Commission (IWC) or the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are relevant for the conservation and sustainable use of (certain) species occurring in the high seas, while other bodies, such as the International Convention for the Prevention of Pollution from Ships (MARPOL) or the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) concern issues relevant for marine traffic, pollution or conservation. What these bodies do not address are other issues that are relevant for the conservation and sustainable use of the oceans, such as benefit-sharing, the use of genetic resources or a comprehensive system of marine protected areas, all overseen by one authority. And this is where the BBNJ Agreement comes into play.
What is the BBNJ Agreement for the media?
In the international media landscape, the 70-article BBNJ Agreement is first and foremost labelled as ‘historic’, ‘landmark’ agreement or a ‘ once-in-a-generation opportunity’ for the protection of marine biodiversity (e.g. Einhorn, 2023; Planelles, 2023; NatureNews 2023; SpiegelOnline, 2023; European Times, 2023; Stallard, 2023). While some characterise the agreement in the respective heading, most cite representatives of environmental non-governmental organisations (ENGOs). Especially Greenpeace and the WWF are often cited in this regard.
The second major point refers to the implementation of the 30×30 Target. This target is integral to the recently adopted Kunming-Montreal Global Biodiversity Framework (GBF) and aims to protect 30% of the world’s surface – terrestrial and marine – by 2030. As shown elsewhere, the scientific basis for this target is far from clear (Sellheim Environmental, 2023, pp. 25-33) and in terms of marine areas, the aspired putting in place of more marine protected areas (MPAs) and their effectiveness depends on a wide array of social and ecological factors (Ban et al., 2017). Despite these uncertainties, many news outlets consider the BBNJ Agreement to be the cure for continuing biodiversity loss in so far as it is a main tool for the implementation of the 30×30 target (e.g. Stallard, 2023; SpiegelOnline, 2023). While this does not necessarily occur directly, the quotations of representatives of ENGOs have this effect, further underlining the historicity of the text’s adoption. The quintessence of the articles essentially is: “If the oceans die, we die” – a phrase by Sea Shepherd’s founder Paul Watson – and the BBNJ Agreement is a major step to prevent this from happening.
Several articles (Einhorn, 2023; NatureNews, 2023; Stallard, 2023) note, however, that the mere adoption of the treaty text is not enough, but that it needs to be ratified. While from a legal perspective, this is a given, readers may easily be inclined to think that the adoption of the text equals the coming-into-force of the treaty. According to the text of the available draft, the treaty only comes into force after its ratification of the 60th Party. And this might take some time. In the case of the UNCLOS, for instance, this took 12 years! And with the treaty being in force, this does not mean that parties comply with it, especially if there is no overseeing body that may impose sanctions. In the case of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), for example, it is not even clear what the term ‘wildlife’ really means for each party, in addition to parties not even fulfilling their obligations to report to the secretariat (Wyatt, 2021). And CITES has been widely hailed as one of the most successful conservation treaties in the world.
What the media hardly says or doesn’t say
The overall gist of the international media landscape is marked by a very positive and optimistic perception of the BBNJ Agreement. While I am not in the position to comment on whether this is good or bad, particularly with regard to the Agreement’s effectiveness, if it ever comes into force, what I can comment on is the nature of reporting vis-à-vis the actual text of the Agreement (as available at the time of writing).
As such, the text does not contain any reference to the 30×30 Target. Altogether, the Agreement is highly technical and contains provisions which are of relevance for its proper and equitable implementation. Arguably, one of the major challenges for marine biodiversity is the fishing industry. As a response, many international regimes now address overfishing in one way or another (Young, 2016), but overfishing still constitutes one of the main causes for marine biodiversity loss (e.g. Yan et al., 2021). A logical assumption would therefore be that the BBNJ Agreement addresses fishing issues.
According to Article 8 (Application), however, the relevant provisions of the Agreement “shall not apply to:
(a) Fishing regulated under relevant international law and fishing-related activities; or
(b) Fish or other living marine resources known to have been taken in fishing and fishing-related activities from areas beyond national jurisdiction, except where such fish or other living marine resources are regulated as utilization under this Part.”
In other words, fishing is not affected by the Agreement, nor are military vessels or other vessels owned by parties engaged in non-commercial activities. The dominance of a scattered system for fisheries – subject to the UN Fish Stocks Agreement, other relevant international agreements, and RFMOs – remains unaffected.
While the overall objective of the Agreement is “to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” (Article 3), the prevalence of the Agreement rests on the equitable sharing of benefits arising out of the use of marine genetic resources, the establishment of MPAs, and the conduct of environmental impact assessments (EIA) by the state aiming to conduct an activity in the oceans. Especially concerning the latter, the Agreement refers to potential future pollution that is to be prevented, but does not address the status quo. Concerning benefit-sharing, it is commercial stakeholders which are by and large responsible for this.
Generally, large parts of the text refer to the ‘hows’ of conducting EIAs, of proposing the establishment of MPAs, of capacity-building and technology transfer, and of ensuring that developing states benefit equally from the use of marine genetic resources. Quite interestingly, the text underlines the principle of lex inferior, which means that the treaty, once adopted, needs to subdue to already existing agreements and conventions. This provisions is contained in Article 4(b) of the text, which notes that “the Agreement shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies.” In other words, the application of the BBNJ Agreement is to occur in a way that is coherent with the policies of other bodies that are of relevance. What this could mean in practice is that an RFMO could overrule the decisions of the BBNJ Agreement, if this RFMO considers the Agreement to undermine its operations. Whether this is the intended vision of the Agreement is truly uncertain.
What is not mentioned at all in the media articles referred to in this contribution is the fact that despite the Agreement concerning the high seas, it is set to pay due regard to the interests of indigenous peoples and local communities (IPLCs). Already the Preamble notes that “nothing in this Agreement shall be construed as diminishing or extinguishing the existing rights of Indigenous Peoples […] or of, as appropriate, local communities”. On numerous occasions, the draft text refers to IPLCs and the provisions of the Agreement must be read against the backdrop of the protection of their rights.
This is especially relevant in the context of the establishment of area-based management tools (ABMTs), which also include marine protected areas (MPAs). It is especially the link between indigenous rights and the establishment of MPAs which has found rather little attention in the scholarly literature, but which could be crucial for the advancement of effective biodiversity conservation as well as indigenous rights (Ban & Frid, 2018). The BBNJ Agreement therefore provides a legal avenue through which indigenous peoples have the possibility to make their voices heard in conservation and management.
Apart from the Convention on Biological Diversity (CBD), which makes the knowledge of IPLCs an important element for in-situ conservation, the BBNJ Agreement gives them significant leverage, also with regard to the implementation of free, prior, and informed consent (FPIC), a fundamental indigenous rights. This is especially so since the Agreement provides clear requirements for the conduct of EIA, as mentioned above. One of these requirements is the consultation of IPLCs, where appropriate (probably meaning where IPLCs are geographically located), before proposals for a specific ABMT is tabled. Unfortunately, this crucial element of the BBNJ Agreement is not referred to in media outlets.
Despite the fact that decisions are to be made by consensus, parties to the Agreement also have the possibility to lodge objections. Meaning: just because the Conference of the Parties (CoP) makes a decision, not all parties are necessarily bound to it – also one of the common misunderstandings concerning decision-making in international bodies. This is quite frequently referred to as a ‘loophole’. One of the best examples in this regard is probably the Whaling Convention (ICRW) under which, first, scientific whaling operations, first and foremost conducted by Japan as long as it was party to the ICRW, or, second, Norwegian whaling operations based on an objection to the moratorium are/were labelled illegal or as said ‘loophole’ (e.g. Diehn, 2016). Both scientific whaling and Norwegian whaling are, however, legally perfectly valid as they are enshrined in the text of the convention itself – the latter in so far as nations are legally entitled to lodge objections.
In the case of the BBNJ Agreement, this is also the case. If one were to apply the same terminology, the ‘loophole’ within the Agreement is enshrined in Article 19 bis4.-10 (‘bis’ indicating that it is still subject to editorial review). Here, three elements are highlighted, which allow the lodging of an objection: first, when the decision is inconsistent with the Agreement; second, when the decision is discriminatory towards the party; and third, when the part cannot practically comply with the decision. While there are other requirements to ensure that the objection is lodged properly, this certainly allows for parties to hamper the potential effectiveness of the Agreement, in case they are not content with the CoP’s decisions. From an ENGO perspective, this should indeed raise some eyebrows.
Conclusion
The available text of the BBNJ Agreement is a comprehensive and very technical document which contains a lot of information as to how parties are to implement its provisions. While one of its main foci are ABMTs, the term ’30×30′ never occurs throughout the document. In fact, as one attendant of the negotiations told me, it never occurred throughout the entire negotiations. In light of the possibility for parties to object, it remains to be seen in how far it will factually implement the target for the high seas.
That, of course, presupposes that it ever comes into force. As in the case of the UNCLOS, also the BBNJ Agreement requires 60 parties to become legally effective. This very high number of required parties make it difficult to imagine that its coming-into-force will occur within the next few years. In so far, the ‘historic’ high seas treaty may be yet another slow-swimming giant, which may take a long time to reach its destination.
If it does enter into force, it is unfortunate that the media depiction leaves out important parts, such as the due respect which is being paid to indigenous peoples and local communities. After all, the BBNJ Agreement is legally binding, and it is an example for the successful lobbying of IPLCs to insert their rights into international agreements. This, I dare to say, is truly newsworthy!
If one relies merely on one news source, it is likely that one might get a fully tilted picture of the BBNJ Agreement. But if one is interested, it is possible to find more detailed and more nuanced depictions of the contents of the treaty. Whether or not it is indeed a landmark, however, remains to be seen. First, it needs to come into force. Second, it needs to be implemented. And despite the creation of an Implementation and Compliance Committee, it remains unclear what its Terms of Reference will be.
Before all this, however, the available text needs to be edited and its final version adopted. And let’s see how long this will take again.
