The interaction of the BBNJ agreement and the legal regime of the Area, and its influence on the implementation of the BBNJ agreement
Shani Friedman
Abstract
The Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) is often framed as the ‘high seas treaty’. However, the BBNJ also applies to the international seabed (the Area), an aspect that has not gained sufficient attention during and after the negotiations, and in the discourse of scholars and practitioners. While the BBNJ institutional framework and the International Seabed Authority (ISA) have different competences, they apply (or have competences in the case of the ISA) in the same zone. Despite this institutional overlap, the BBNJ does not really acknowledge or address the ISA or the regime of the Area set out in UNCLOS, the governing instrument of the BBNJ. Essentially, there is a legal separation between the high seas and the seabed and between living and non-living resources. In practice, these aspects are interconnected, which poses some challenges for the implementation of the BBNJ agreement. This paper provides account for the connectivity of these aspects and analyzes the possible challenges that may hinder compliance with the new treaty. Although the BBNJ has not entered into force yet, it is useful to at least acknowledge these issues to promote better cooperation and compliance to enhance marine environmental protection.