Significance of the BBNJ Agreement from the Perspective of the Historical Development of the Law of the Sea

Based upon the Lectures by the author on the 15^th of April of 2024, at the IMO International Maritime Law Institute

and based upon articles by the same author

Atsuko Kanehara, “What Does a New International Legally Binding Instrument on Marine Biological Diversity of Areas beyond National Jurisdiction ‘under the UNCLOS’ Mean?”, Sophia Law Review [Jochi Hogaku Ronshu], Vol. 59, No. 4, (2016), pp. 53-73..

(Contents)

1. The Adoption of the BBNJ Agreement in 2023
2. The Characteristics and the Arguments on the Contents of the BBNJ Agreement
3. Historical Development of the International Regulation on the Ocean Uses of High Seas
4. The New Wave of the International Regulation on the Uses of High Seas That Is Been Introduced by the BBNJ Agreement
5. Fundamental Change of the Idea of Oceans

1.The Adoption of the BBNJ Agreement

(1) The Adoption of the BBNJ Agreement in 2023 and Its Current Status

In 2023, after very long arguments and many sessions of the international governmental conference for fifteen years,[1] it was agreed by the conference, and adopted at the United Nations (UN) in 2023.[2]

(2) The Current Status of the BBNJ Agreement

On the occasion of the adoption at UN, 67 States signed it. As of the 18^th of April, 2024, 89 States signed it and 4 States ratified it.[3] After 120 days from ratification by 60 States, it will enter into force according to Article 68, Paragraph 1 of the agreement.

While certain enthusiastic celebration has been frequently heard since the adoption o：f the BBNJ Agreement, the current status, only 4 States’ ratification, might demonstrate a slow development of it toward being actually a legally binding document. Without coming into force, the BBNJ Agreement, while the name means an agreement with legally binding force, is a document solely with certain normative contents.

2.The Characteristics and the Arguments on the Contents of the BBNJ Agreement

(1) The BBNJ Agreement as the Third Implementation Agreement for the 1982 United Nations Convention on the Law of the Sea (UNCLOS)

UNCLOS is expected to work together with its implementation agreements. The BBNJ Agreement is the third implementation agreement for UNCLOS. The first is the Agreement Relating to the Implementation of Part XI of the Convention, with respect to the exploration and exploitation of the natural resources on the deep sea-bed. The second is the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the Fish Stock Agreement).

As an implementation agreement, there has voiced some criticism against the contents of the BBNJ Agreement, because it “over steps” “and “is going beyond” UNCLOS not being an “implementation” agreement for UNCLOS.

For instance, the area-based tools, or it might be said to be tools of “marine protected areas” may conflict to the freedom of the high seas. The marine genetic resources were not recognized, when Part XI of UNCLOS was adopted in 1982, and therefore they do not fall within the regulation under UNCLOS.

(2) The Characteristics of the BBNJ Agreement

As for the characteristics of the BBNJ Agreement, the following points can be pointed out. The equitable distribution of the interests from the development of marine genetic resources, area- based management tools, human resources development and capacity building, and technology transfer. All of them deserve thorough analysis.

Nonetheless, rather than examining the contents of the BBNJ Agreement, in detail, and a critically analyzing its being “stepping out” of UNCLOS, this column will consider what the significance and achievement of the BBNJ Agreement demonstrate, from the perspective of the historical development of the law of the sea. Such consideration seems to be useful, as it may form, at least to a certain degree, its slow progress toward being coming into force and becoming really a legally binding instrument with the firm support by international society’s normative conscience.

How has the international regulation on the uses of high seas developed, and how can it proceed further by the BBNJ Agreement?

3.Historical Development of the International Regulation on the Ocean Uses of High Seas

(1) Traditional Controversy in the History of the Law of the Sea

①　“Mare Liberum”

It is really a historical controversy, namely, a controversy on the legal status of oceans between “mare liberum” and “mare clausum” in the 17^th Century. The most famous conflicting arguments were conducted between Hugo Grotius of the Netherlands, the so-called founder of international law, and John Selden of the United Kingdom. With the background of the mercantilism and necessity of marine transportation, “mare liberum” surpassed “mare clausum.”

Thus, the oceans became to be understood as being wide and free for uses of all human kind. This formed the fundamental idea of oceans that still maintains some influence even in the current days. Such an idea, as being explained later, will inevitably change for the purpose of the common interest in the conservation and sustainable use of biodiversity. This would be a remarkable result that the BBNJ Agreement will bring to the law the sea.

② Dual zone system: high seas and territorial seas

With the development of the understanding of territorial seas as “sea zones” over which coastal States have a comprehensive right (sovereignty), the dual zone system, that of high seas and territorial seas, was established. Initially coastal States did not have a concept of “sea zones”, and claimed different distances for their exercises of rights depending on different matters, such as maritime security, fishing, immigration, marine pollution and etc. At the latest, at the end of the 19^th century, States became to grasp their sea areas near to their coasts as “sea zones” over which they exercise a comprehensive right in relation to the various matters. The sea areas mean territorial seas.

The zone system of high seas and territorial seas forms a main pillar of the 1958 four Geneva Conventions on the Law of the Sea. Among the four conventions, the two are related to high seas and territorial seas: the Convention on the High Seas, and the Convention on the Territorial Sea and Contiguous Zone.

The 1982 UNCLOS established multiple zone system. In addition to high seas and territorial seas, there are contiguous zones, exclusive economic zones, continental shelf, archipelagic waters, deep se-bed. Under UNCLOS, too, the zones of high seas and territorial seas still stand out as principal legal regimes of oceans.

(2) Development of the International Regulations on the Uses of High Seas

① Reasonable (Due) regard principle under Article 2 of the 1958 Convention on the High Seas

Article 2 of the Convention on High Seas reads:

These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas (emphasis added).

Article 87, Paragraph 2 prescribes for the same idea as follows:

These freedoms shall be exercised by all States 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 this Convention with respect to activities in the Area (emphasis added).

According to the reasonable (due) regard principle, the logic of the international regulation is to seek “compromise on an ad hoc basis” when two (plural) uses of high seas conflict with each other.

For instance, States may conduct military drills, and for the safety of foreign vessels and for the protection of the military equipment, they may set a safety zone where the navigation of foreign vessels is restricted. If the safety zone is unreasonably and unnecessarily wide, such a use of high seas would be criticized as lack of reasonable (due) regard for the interests of other States, mainly the freedom of navigation of other States. Thus, it would infringe upon the freedom of navigation of foreign vessels.

Concrete contents of such international regulation on the uses of high seas by the reasonable (due) regard principle are decided on an ad hoc basis as compromise between two (plural) uses of high seas which conflict with each other.

② International regulations on the uses of high seas depending on individual matters: “a sector-specific” regulation

Mainly since the mid of the 20^th century, international society recognized its common interests in, such as the fishery resources conservation and management, the protection of the marine environment, the safety of navigation. To achieve the goals, the relevant treaties were agreed. They are, the 1995 Fish Stock Agreement and regional treaties for the conservation and management of fishery resources, the MARPOL Convention regime and the London Convention regime on ocean dumping for the protection of the marine environment, SOLAS and the 1988 SUA Convention with its protocol for the safety of navigation.

Based upon the recognition of common interests of international society that built its normative conscience, the relevant treaties could be agreed. These individual matters reflect the common interests of international society. Such international regulations on the uses of high seas are targeting the individual matters, and thus, it is “a sector-specific” regulation for each matter on the uses of high seas.

As for UNCLOS, its preamble may indicate the idea of “a cross-sectoral regulation on the uses of high seas” in the phrase saying “the problems of ocean space are closely interrelated and need to be considered as a whole.” However, UNCLOS regulates the uses of high seas, such as navigation (Article 94), fishing (Articles 116 to 119), harmful uses to the marine environment (Part XII), and marine scientific research (Part XIII). These provisions build “a sector-specific” regulation by UNCLOS.

This is also the case with the treaties other than UNCLOS. As mentioned above, for the protection of the marine environment, there are the MARPOL Convention regime and the London Convention regime. As to the conservation and management of fishery resources, there are regional treaties for each sea area, and the 1995 Fish Stock Agreement. As for the safety of navigation, there are SOLAS and the SUA Convention with its Protocol.

Until recently, such “a sector-specific” regulation of the uses of high seas has continued both under UNCLOS and under the relevant treaties.

Considering these developments of the international regulations on the uses of high seas, the reasonable (due) regard principle and “a sector-specific” regulation, what is the BBNJ Agreement bringing into the law of the sea? What achievement is it introducing into the law of the sea?

４. The New Wave of the International Regulation on the Uses of High Seas That Is Been Introduced by the BBNJ Agreement

(1) The Common Interest in the Conservation and Sustainable Use of BBNJ (= Common Interest in BBNJ)

The BBNJ Agreement reflects the common interest in BBNJ. The important point is that this common interest has really a special nature.

It cannot be realized by the simple aggregation of the common interests to be realized on the individual matters, such as the protection of the marine environment, the conservation and management of fishery resources, the safety of navigation, and etc.

(2) Common Interest in BBNJ to be Realized by Preventing the Integrative Effects on BBNJ Exserted by Various Harmful Uses of High Seas

① Biodiversity

In the common interest in BBNJ, a key term is biodiversity. Article 2 of the Convention on Biological Diversity gives its definition.

"Biological diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.

② Various harmful uses to biodiversity

Authorities have count various harmful uses against biodiversity. They are, destructive fishing practice, such as bottom trawling, and the so-called IUU fishing, vessel-source pollution, construction of artificial islands and pipelines, offshore oil and gas exploration, sea bed mining, exploration of thermal vents, bioprospecting, more intrusive marine scientific research, environmental modification activities to mitigate the effects of climate change and etc.

Then, what is the integrative effects upon biodiversity, different from a simple aggregation of the effects caused by individual harmful acts?

③ Integrative effects

The various harmful uses of high seas cause damages to biodiversity, not only individually, but also, as a result of a synergy of, the integration of, the harmful effects of all individual uses of high seas. The integrative effects to be assessed considering the synergy are not the same as the simple total of the independent harmful effects exserted by the individual harmful uses of high seas.

Considering such integrative effects of various harmful acts to biodiversity, to achieve the goal of the BBNJ Agreement, a new method of international regulation on uses of high seas is indispensable. The special nature of the common interest in BBNJ really requires particular new methods of international regulation on the harmful uses of high seas.

(3) Ecosystem Approach

① Ecosystem

As for promising method of such international regulation, ecosystem approach has been proposed. As to ecosystem, Article 2 of the Convention on Biological Diversity reads:

"Ecosystem" means a dynamic complex of plant, animal and micro-organism commuities and their non-living environment interacting as a functional unit.

② Ecosystem Approach

Already in 1995, the Fish Stock Agreement defines ecosystem approach in Article 5 (d) and (e).

(d) assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks;

(e) adopt, where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened;

(3) Integrative Regulation and/or Cross-Sectoral Regulation (Cross-Cutting on Matters)

Every activity that exerts harmful effect to BBNJ and biodiversity needs to be regulated by integrative and/or cross-sectoral approach on the international regulation on the uses of high seas. To make such regulation effective, calculation is critically important on the harmful impacts by every harmful act, not only individually, but in an integrative manner to assess the synergy of every harmful effect. The calculation of and assessment of the synergy effects of all harmful activities to biodiversity should be the core of the new method of integrative regulation on high sea uses for the purpose of the conservation and sustainable use of BBNJ.

5. Fundamental Change of the Idea of Oceans

Such an integrative/a cross-sectoral approach on the international regulation on the uses of high seas will inevitably bring a fundamental change in the traditional idea of oceans as “wide and open oceans” that since the triumph of the idea of mare liberum has dominated in the law of the sea.

Oceans are enough wide to prevent serious collisions between vessels. Oceans are enough wide to ensure the reproduction of fishery resource. Oceans are enough wide so that they themselves clean up pollution. Therefore, oceans could be free and open for the uses of all human kind.

This traditional idea of “wide and open oceans” is on the verge of a fundamental change. The new idea of oceans is an idea of oceans as “closed water tank(s).” In order to consider and assess the synergy effects of all harmful activities to BBNJ, an idea of “closed water tank(s)” is keenly indispensable. Within the closed water tank(s) the synergy effects, and integrative effects of all harmful acts to BBNJ actually obtain significance. Such an idea of “closed water tank(s) is fundamentally and radically different from the traditional idea of oceans as “wide and open oceans.”

International society has adopted at least a similar idea of “closed water tanks(s)” in the practice and the experience of the marine protected areas. The BBNJ Agreement would further strengthen the newly emerging idea of oceans as “closed water tank(s)” by indispensably introducing a new approach of the international regulation on the uses of high seas, an integrative/cross-sectoral approach of international regulation on the uses of high seas.

When such a radical and fundamental change is firmly recognized by international society, the BBNJ Agreement would substantially acquire the status of a legally binding convention deeply rooted in the normative conscience of international society.

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[1] Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction | (un.org)
[2]The official text of the BBNJ Agreement is given at: https://www.un.org/depts/los/XXI10CTC%28EN%29.pdf
[3] The current Status is given at: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en