The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement), adopted on 19 June 2023 and opened for signature on 20 September 2023 by the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (convened by the UNGA Resolution A/RES/72/249), is considered a milestone for the future development of the Law of the Sea. As of 10 July 2024, 91 States have signed the agreement, and so far, 8 States ratified it. The agreement requires 60 States to ratify it for it to enter into force.
The organisational meeting of the PrepCom convened from 24 to 26 June 2024 at United Nations (UN) Headquarters in New York to elect its Co-Chairs (Belize and Australia) and Bureau members, adopt its programme of work, and scheduled its future meetings. Elected by acclamation, the Co-Chair, Coye-Felson from Belize, introduced the provisional agenda (A/AC.296/2024/L.1). The final document, distributed by Co-Sponsors to members, contained 14 items in four clusters: governance issues, issues on institutional arrangements, financial issues, and other issues of relevance for consideration by the first meeting of the COP. A summary of the organisational meeting and interventions can be found here.
The BBNJ Agreement is the third implementing agreement of the UN Convention on the Law of the Sea (UNCLOS) and provides for the establishment of new institutional arrangements and bodies, including a Conference of the Parties (COP), which must meet within one year after the Agreement’s entry into force (Art 47(2)). The Scientific and Technical Body (STB) has the function of providing scientific and technical advice to the COP (Art 49) and must be formed by members appointed by the Parties and elected by the COP (Art 49(2)). The BBNJ Agreement also establishes additional bodies, including the Implementation and Compliance Committee, the Finance Committee, the Access and Benefit-Sharing Committee, and the Capacity-Building and Marine Technology Committee, each with specific functions and mandates.
Having a BBNJ COP marks an important departure in the operational dynamics of UNCLOS, which does not have a COP. Three institutional arrangements were created under the UNCLOS framework: the International Seabed Authority (ISA), the Tribunal for the Law of the Sea (ITLOS), and the Commission on the Limits of the Continental Shelf (CLCS). The 1994 Implementing Agreement to Part XI modified the ISA structure, stipulating that the general policies of the ISA will be determined by the Assembly in partnership with the Council. Additionally, the agreement made it challenging for the Assembly to override the recommendations of the Council (Arts 159(8) and 160(1) of UNCLOS).
The BBNJ voting system gives precedence to consensus while allowing for decisions to be made by a simple majority for procedural matters and a two-thirds majority for substantive matters (Art 47(5)), representing a pivotal shift in the governance framework of UNCLOS. Another significant change is the scope of powers of the COP, including its competence to request advisory opinions from ITLOS on legal questions concerning the conformity with the Agreement (Art 47). The Meeting of States Parties to UNCLOS is not authorised to seek advisory opinions on such matters. For more information, see here and here.
This blog explores some of the topics discussed at the organisational meeting in anticipation of COP 1, including the boundaries of the PrepCom mandate, financial regulations, resources, and mechanisms.
What is Next for the BBNJ Agreement Implementation Phase?
During the organisational meeting, several delegations (The UK, the EU, Canada, and Brazil) expressed their views that ‘it would be worth studying the experiences of other treaties and determining best practices, noting there is no need to reinvent the wheel’. Iceland also noted that PrepCom should not “redraft” the Agreement but should ‘translate it from the page into practice’. Being the first COP under the UNCLOS framework, the scope of the mandate of PrepCom in anticipation of the COP was ambiguous and a source of significant debate among attending delegations (agenda item 4). Stakeholders have also submitted their views on the role of PrepCom.
Several delegations argued that there should be no general statements at the first substantive meeting of the PrepCom. There was no consensus on whether there should be limitations on PrepCom’s mandate in addressing benefit-sharing (item 11), a key component of the BBNJ Agreement. This position was supported by Brazil, but rejected by the UK, Canada, the EU, and Norway. While Article 14 establishes that the COP ‘may adopt other forms of sharing considering the recommendations of the Benefit-Sharing Committee’, there are no limitations preventing PrepCom from discussing these topics, including forms of monetary sharing. PrepCom is not bound by the Benefit-sharing Committee, which has yet to be established.
The EU and the US recognised that the decision regarding the headquarters could not rest solely with PrepCom. Chile formally presented its candidacy to host the BBNJ Secretariat, receiving positive feedback from the delegations. It is also noteworthy that Belgium has presented its candidacy.
Many delegates were supportive of an “institutional interplay” between the BBNJ COP and relevant bodies and frameworks (see the ISA Secretary-General Statement). They advocated for regular consultations and cooperation (e.g., Art 22). However, it remains to be seen how granular this cooperation will be, considering efforts to refine the powers of the COP to ensure it does not undermine relevant legal instruments and frameworks, as well as global, regional, subregional, and sectoral bodies (e.g., Arts 5, 22(2)).
Financing the Implementation of the BBNJ Agreement
Another contentious point relates to financing and resource mobilisation. On June 14, 2024, the Global Environment Facility (GEF) approved the first funding of $34 million to support the ratification and implementation of the BBNJ Agreement. Recently, the GEF has allocated higher figures to the Global Biodiversity Framework Fund (GBFF) ($37.8 million) and endorsed $203 million for 21 climate change adaptation projects. The GEF is listed as one financial mechanism, along with a special fund and a voluntary trust fund (Art. 52 caput, (6)).
The announced GEF support is particularly useful to some members, including the Dominican Republic on behalf of the Core Latin American Group (CLAM), who appealed for the BBNJ Secretariat to ‘ensure the participation of all our delegates’. CLAM, the Caribbean Community (CARICOM), China, and the Maldives also called ‘to avoid parallel sessions to facilitate the participation of small delegations’. The capacity of the BBNJ COP to secure funding and mobilise resources is a significant concern for the PrepCom Co-Chairs. They are considering the incentives and messages that can encourage delegations and private partners to contribute to this forum, especially given financial limitations.
The PrepCom will eventually be hosted by the interim Secretariat (UN-DOALOS), which is a contentious issue concerning the regular budget of the UN. This is particularly crucial given the financial challenges faced even by the UN at the highest level, leading to significant budgetary constraints for working groups and divisions (see the UN Secretary-General’s Statement and here).
Mobilising resources to implement substantial aspects of the BBNJ Agreement is also on the agenda. This includes developing a mechanism for existing area-based management tools and modalities for their consultation and assessment processes (Arts 22(4), 21(8)), as well as modalities for benefit-sharing (Art 14). As noted by Brazil, addressing some of the substantial aspects of funding mechanisms—beyond just technical and procedural issues (e.g., participation in meetings and implementation assistance)—could provide a clearer understanding of the financial figures required to turn ambition into action.
Concluding Remarks
The first Conference of the Parties (COP1) of the BBNJ Agreement will establish a new institutional governance model within the framework of UNCLOS, aligning with other international agreements focused on biodiversity conservation and climate change. Rather than “reinventing the wheel”, the BBNJ Agreement aims to innovate within the existing UNCLOS framework, as reflected in the diverse positions of delegations regarding the PrepCom mandate and its limitations. Adhering to environmental law-related COP practices could be viewed as a response to the compartmentalisation and specialisation in the field, as well as an attempt to adopt a more holistic approach to the Anthropocene’s effects on the traditional body of the Law of the Sea.
The interventions and official notes from the organisational meeting highlight the importance of universal participation, emphasising the need to consider the rights and interests of Indigenous peoples, local communities, civil society, scientific organisations, and traditional and Indigenous knowledge in decision-making processes and across the four elements of the “Package”. However, based on the discussions held during the meeting, the extent to which participation and inclusivity will be effectively implemented remains contentious, particularly due to funding constraints. The PrepCom will set the tone in anticipation of COP1. As ambitions run high during this pre-implementation phase, the outcome of the delegation’s discussions underscores the necessity for high ambition to be matched by equally high commitment, especially from those with greater capabilities to allocate resources at the global level.
The Commission is scheduled to meet for two sessions in April and August 2025, pending approval by the General Assembly. An additional session is planned for 2026, which will be determined by the Secretary-General in consultation with the Co-Chairs.
Laisa Branco de Almeida is a PhD candidate in international law at The Graduate Institute of International and Development Studies (IHEID) and a Member of DOSI Minerals and BBNJ Working Groups.
Dr Barbara Mourão Sachett holds a PhD in international and comparative law from the University of São Paulo (USP) and is a lecturer at the Methodist University of São Paulo. She acted as an adviser for the Brazilian delegation at the 5ª IGC BBNJ and is a researcher at CEDMAR-VMR-USP.
Disclaimer: This text represents the opinions of the authors and is the product of professional research. It does not represent the position or opinions of the Brazilian Minister of Foreign Affairs or its members, nor the official position of any staff members. Any errors are the fault of the authors.