Beyond National Jurisdiction: The BBNJ Agreement Ushers in a New Era of Ocean Governance

The high seas cover nearly two-thirds of the world's oceans and almost half of the Earth's surface. Their protection is no longer simply an environmental imperative—it is a legal necessity.

Introduction

For more than four decades, the United Nations Convention on the Law of the Sea (UNCLOS) has served as the constitutional framework governing the oceans. Although UNCLOS established fundamental principles governing maritime zones, navigation, marine scientific research and the protection of the marine environment, it did not comprehensively regulate the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (ABNJ).

Areas beyond national jurisdiction, the high seas and the seabed beyond national jurisdiction represent almost two-thirds of the world's oceans. These areas support irreplaceable ecosystems, regulate global climate systems, provide vital fisheries, and contain marine genetic resources with significant scientific, pharmaceutical and commercial potential. Yet, despite their ecological significance, the legal framework governing biodiversity in these areas remained fragmented for decades.

While UNCLOS imposes a general obligation upon States to protect and preserve the marine environment, it does not establish detailed mechanisms for creating marine protected areas on the high seas, regulating access to marine genetic resources, conducting environmental impact assessments for activities in ABNJ, or ensuring equitable sharing of benefits derived from marine biodiversity.

As technological advances made deep-sea exploration increasingly accessible, concerns grew regarding the potential overexploitation of marine biodiversity. The absence of a comprehensive international governance framework created uncertainty regarding conservation measures, benefit-sharing and coordinated international management. This regulatory gap underscored the need for a dedicated international agreement.

A Landmark Achievement in International Ocean Governance

After nearly two decades of negotiations under the auspices of the United Nations, Member States adopted 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 Agreement) on 19 June 2023. Following the required number of ratifications, the Agreement entered into force on 17 January 2026, becoming the third implementing agreement under UNCLOS, after the 1994 Part XI Implementation Agreement and the 1995 Fish Stocks Agreement.

The Agreement seeks to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination.

Rather than replacing UNCLOS, the BBNJ Agreement strengthens and complements it by establishing practical mechanisms for implementing conservation and sustainable use obligations in ABNJ while respecting existing legal instruments and competent international organisations. 

Pillars of the BBNJ Agreement

The Agreement establishes an integrated governance framework founded upon four interrelated pillars.

1.Marine Genetic Resources and Benefit Sharing

Marine genetic resources (MGRs) have become increasingly valuable for pharmaceutical research, biotechnology and scientific innovation. Prior to the BBNJ Agreement, no international legal framework regulated access to these resources in ABNJ or addressed how benefits derived from their use should be shared.

The Agreement establishes procedures for notification, transparency and the fair and equitable sharing of both monetary and non-monetary benefits arising from the utilisation of marine genetic resources. This promotes scientific collaboration while recognising the common interest of humanity in conserving marine biodiversity.

2.Area-Based Management Tools and Marine Protected Areas

Perhaps the Agreement's most transformative innovation is its establishment of a legal process for creating Area-Based Management Tools (ABMTs), including Marine Protected Areas (MPAs) on the high seas.

These mechanisms enable States collectively to identify ecologically or biologically significant marine areas requiring enhanced protection. They also support global biodiversity commitments, including the objective of protecting at least 30 per cent of the world's oceans by 2030.

3.Environmental Impact Assessments

The Agreement introduces comprehensive Environmental Impact Assessment (EIA) requirements for planned activities that may have significant adverse effects on the marine environment in ABNJ. These provisions enhance transparency, scientific assessment, public participation and international cooperation before potentially harmful activities are undertaken, strengthening precautionary decision-making in ocean governance.

4.Capacity Building and the Transfer of Marine Technology

Recognising disparities in scientific and technological capacity among States, particularly developing countries, the Agreement promotes capacity-building, technical assistance and the transfer of marine technology.

These provisions seek to ensure that all States can participate meaningfully in marine scientific research, biodiversity conservation and implementation of the Agreement.

Role of International Maritime Organization as Supporting UN Entity

Yet, as with many multilateral agreements, adoption is only the beginning. The true measure of the BBNJ Agreement will not be found in the text itself, but in how effectively it is implemented across an already complex landscape of international institutions. The United Nations system was never designed for a single organization to govern every aspect of the oceans. Instead, responsibilities have evolved across specialized agencies and treaty bodies, each bringing distinct expertise to a common objective. In this context, the BBNJ Agreement should be understood not as a standalone instrument, but as part of a broader governance ecosystem, one in which organizations such as the International Maritime Organization (IMO) will continue to play an essential role within their respective mandates. The challenge ahead is therefore not institutional substitution, but institutional coherence.

Throughout the BBNJ negotiations, the IMO has participated to ensure that the Agreement complemented rather than undermined the Organisation's existing mandate over international shipping.

The BBNJ Agreement expressly provides that it shall be interpreted and applied in a manner that does not undermine relevant legal instruments, frameworks and bodies. Consequently, IMO conventions remain central to protecting marine biodiversity from shipping-related impacts. The significant IMO instruments include:

1. the International Convention for the Prevention of Pollution from Ships (MARPOL), which regulates operational and accidental pollution from ships;

2. the International Convention for the Control and Management of Ships' Ballast Water and Sediments, which reduces the spread of invasive aquatic species; and

3. the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), which strengthens international preparedness and response to oil pollution incidents.

These instruments illustrate that implementation of the BBNJ Agreement will rely upon cooperation among existing international organisations rather than institutional duplication.

Preparing for Implementation

Recognising that the adoption of the Agreement represented only the beginning of implementation, the United Nations General Assembly adopted Resolution 78/272 in April 2024 establishing the Preparatory Commission (PrepCom). PrepCom was mandated to prepare for the Agreement's entry into force and the convening of the first Conference of the Parties (COP). Its responsibilities include:

1. developing institutional governance structures;

2. establishing financial rules and funding mechanisms;

3. operationalising the Clearing-House Mechanism;

4. creating the Secretariat and Scientific and Technical Body;

5. preparing implementation procedures for marine protected areas, environmental impact assessments, marine genetic resources and capacity-building.

Between 2025 and 2026, PrepCom convened three substantive negotiating sessions. Its final report contains recommendations for consideration by the first Conference of the Parties, including agreement on:

1. procedures for selecting the seat of the Secretariat;

2. the relationship between the Secretariat and the United Nations;

3. establishment of the Voluntary Trust Fund;

4. operationalisation of the Special Fund;

5. a Memorandum of Understanding with the Global Environment Facility (GEF);

6. the Clearing-House Mechanism;

7. cooperation with relevant international organisations and legal instruments; and

8. reporting obligations of Parties.

Although significant consensus has been achieved, several issues remain under negotiation and are expected to be finalised during the first Conference of the Parties (COP-1), scheduled for 11–22 January 2027.

Looking Ahead

The BBNJ Agreement represents one of the most significant developments in international environmental law since the adoption of UNCLOS itself. It transforms decades of political commitment into a comprehensive legal framework for conserving biodiversity in the global commons. Yet treaties alone do not conserve ecosystems. Their effectiveness ultimately depends upon implementation, adequate financing, scientific cooperation and political commitment. As climate change, marine pollution, biodiversity loss and emerging ocean industries continue to place unprecedented pressure on marine ecosystems, the BBNJ Agreement offers an opportunity to shift from fragmented governance towards integrated stewardship of the world's oceans. 

The high seas have long symbolised the freedom of the seas. The BBNJ Agreement reminds the international community that such freedom must now be accompanied by shared responsibility. This includes the continuing role of competent international organizations such as the International Maritime Organization, whose mandate on maritime safety, security, pollution prevention, and shipping-related environmental protection remains central to the sustainable use of the oceans. In an increasingly interconnected world, effective governance is no longer measured by the number of treaties or institutions that exist, but by their ability to work together toward a common objective. The next chapter of ocean governance will be defined by whether that freedom can continue to coexist with collective responsibility, shared stewardship, and sustained international cooperation.

Sipho J. Mbatha, Special Advisor on Legal and Maritime Affairs