NEW YORK — As ratifications for the Agreement on Biodiversity Beyond National Jurisdiction (BBNJ, or the High Seas Treaty) advance, the legal framework governing international waters is undergoing its most significant revision since the conclusion of UNCLOS in 1982.
While high seas governance has historically rested on the freedom of the seas (mare liberum) codified in UNCLOS Article 87, the BBNJ Agreement introduces mandatory environmental impact assessments (EIAs) and multilateral area-based management mechanisms across maritime space beyond national jurisdiction.
1. Marine Genetic Resources: Article 87(f) vs. The Common Heritage Principle
The substantive debate centers on the legal regime applicable to Marine Genetic Resources (MGRs) collected in international waters and the seabed:
- High Seas Freedom Position: Technologically advanced maritime states have maintained that sample collection and genetic research fall under the freedom of scientific research (UNCLOS Article 87(f)), conferring private intellectual property rights on discovering entities.
- Common Heritage Position: Developing states argued that marine biodiversity in areas beyond national jurisdiction should be governed analogously to the deep seabed under Part XI of UNCLOS, treating genetic material as the common heritage of humankind.
The final treaty text adopts a compromise regime: high seas collection remains permitted, but commercial utilization triggers mandatory benefit-sharing obligations, including financial contributions to a global fund and access to digital sequence information.
2. Area-Based Management Tools and Third-State Rights
Part III of the BBNJ Agreement authorizes the Conference of the Parties (COP) to establish Marine Protected Areas (MPAs) in international waters, creating coordination questions with existing regimes:
| UNCLOS (1982) Framework | BBNJ Agreement Regime |
|---|---|
| Flag states exercise primary jurisdiction over vessels on the high seas (Article 92). | COP adopts conservation measures across designated high-seas regions. |
| Broad freedoms of navigation, fishing, and cable laying (Article 87). | Mandatory Environmental Impact Assessments for activities causing substantial harm. |
| Regional fisheries bodies maintain sector-specific management authority. | Treaty calls for coordination without undermining existing regional instruments. |
Under Article 34 of the Vienna Convention on the Law of Treaties, treaties do not create rights or obligations for third states without consent (pacta tertiis). Flag states that do not ratify the BBNJ Agreement may maintain that their vessels are not bound by COP-designated restrictions on high-seas transit or exploration.