Making Sense of the Agreement on Biodiversity Beyond National Jurisdiction: The Road Ahead

4.1 Marine Genetic Resources, Including Questions on the Sharing of Benefits

The regulation of MGRs and the question of benefit sharing have always been the core issues of the BBNJ Agreement and the chapter of the negotiation where the most ‘red lines’ were concentrated. 31 First, regarding MGRs’ legal status, the States’ positions have been strongly polarised, ranging from those that advocated considering MGRs as the CHH –in a similar way to mineral resources in the Area (mainly, developing States that intend to reverse the status quo) 32 –to those that claimed that MGRs were subjected to the principle of the freedom of the high seas (mainly, certain industrialised States favoured by the uncertainty of the status quo). 33 Second, concerning access to MGRs, there were fundamental discrepancies when determining the types of access that the Agreement should regulate (developed States defended a regulation only of access in situ, while developing States supported a broad Agreement including access ex situ and in silico) and the ways to which the access was provided (free access, prior notification or licensing system). 34 Third, the sharing of benefits was also controversial, especially in regard to the type of benefits that should be distributed (i.e., only non-monetary benefits related to the dissemination of knowledge and results, as defended by the developed States and recognised, for example, in the ATS 35 , or monetary benefits as well, as was established in the UNCLOS regarding the Area 36 , which was the main claim of the developing States) and how. 37 Finally, there were wide discrepancies about the possibility of addressing intellectual property rights. Since both industrialised States and private corporations already had patents that represented for them a lucrative source of benefits, the exclusion of intellectual property rights from the scope of the future Agreement constituted a red line in the negotiation. 38

In the final Agreement, this section is made up of eight articles, from art. 9 to 16. Regarding MGRs’ legal status, the big surprise is that the principle of CHH has been recognized, both explicitly as a general principle (art. 7b of the BBNJ Agreement), and in the MGRs section –without naming it in that section –. Thus, art. 11.4 establishes that ‘no State shall claim or exercise sovereignty rights over marine genetic resources of areas beyond national jurisdiction’; art. 11.6 confirms that ‘activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction are in the interests of all States and for the benefit of all humanity, particularly for the benefit of advancing the scientific knowledge of humanity and promoting the conservation and sustainable use of marine biological diversity, taking into particular consideration the interests and needs of developing States’; and art. 11.7 determines that such activities ‘shall be carried out exclusively for peaceful purposes’. It is also important to note that, in order to build consensus, the text also recognizes the freedom of the high seas (art. 7c).

Concerning access to MGRs, the BBNJ Agreement only refers to collection in situ (arts. 1.4, 11 and 12), but activities with respect to digital sequence information are also subjected to the regulation (arts. 9, 11, 12, 14, 15, 16). In this sense, the Preamble of the Agreement acknowledges that ‘the generation of, access to and utilization of’ digital sequence information to MGRs of ABNJ contribute to research and innovation and to the general objective of the Agreement. According to it, however, both types of activities will have to be notified to the Clearing-House Mechanism created by the treaty (art. 12) and hence are not subjected to previous authorisation.

Regarding benefit-sharing, one of the most challenging issues, developing States maintained ‘strong, and consistently unified positions’ 39 and the treaty establishes that both non-monetary and monetary benefits shall be shared (art. 14.2 and 5). To implement this, the Agreement creates an Access and Benefit-Sharing Committee with competences for establishing guidelines, providing transparency and, at the end, ensuring a fair and equitable sharing of both types of benefits (art. 15).

The fourth controversial aspect, the question of intellectual property rights, appears to have been some sort of compensation for the cessions made in this chapter –and others–. Thus, after all the discussions around provisional art. 12, the final text of the Agreement does not include any reference to intellectual property rights. The ‘not undermining’ mandate of the UNGA has clearly benefited the status quo.

4.2 Measures such as Area-based Management Tools, Including Marine Protected Areas

Divergences had also emerged concerning measures such as area-based management tools (ABMT), an expression that includes a variety of approaches for conserving biodiversity which are regulated by other relevant legal instruments, frameworks, and global, regional and sector bodies. Effectively, in several marine areas beyond national jurisdiction a plurality of marine protected areas (MPAs) are recognised today under the auspices of different regional and sectoral organisations –in particular, ‘areas of special environmental interest’ designated by the ISA, ‘particularly sensitive marine areas’ and ‘special zones’ created by the IMO, ‘specific zones’ articulated by RFMOs, or sanctuaries delimited by the International Whaling Commission. Precisely because numerous States that were negotiating the future BBNJ Agreement also participated in these instruments and structures, beyond the consensus in understanding these mechanisms as a useful and essential tool to support ecosystem approaches at national, regional and global levels 40 , there was substantial disagreement about how to articulate new MPAs without undermining the existing tools –particularly as the Agreement was likely to create extra obligations in addition to those already imposed by the other instruments 41 . Thus, discrepancies were becoming evident when deciding on the design and management model of these tools 42 : just as there were proposals for the new marine protected areas in ABNJs to be managed at the regional level, there were also calls for the creation of a centralised management system under the responsibility of a global body. 43 After the fourth IGC session, other additional questions emerged in the debate. Among the most relevant were the possibility to establish an ‘opting-out’ mechanism for States opposing the creation of a particular ABMT; and the opportunity to recognise some sort of procedure for adopting emergency measures.

Part III of the final BBNJ Agreement goes from art. 17 to art. 26. Arts 19 to 24 regulate the procedure to designate ABMT (including MPAs) in ABNJ, a long-awaited possibility. This procedure, centralised and guided by consensus if possible (art. 23), is made up of several steps: the proposals, that could be submitted by Parties, individually or collectively (art. 19 and Annex I); the publication of the proposal by the Secretariat and its preliminary review by the Scientific and Technical Body (art. 20); the consultation process, opened to all relevant stakeholders (art. 21); and the establishment of the ABMT, which could be decided by the COP ‘taking into account the contributions and scientific input received during the consultation process’, ‘and the scientific advice and recommendations of the Scientific and Technical Body’ (art. 22).

The procedure has finally incorporated an ‘opting-out’ mechanism for States making and objection with respect the creation of a particular ABMT (art. 23.4), a possibility requiring the explanation of the grounds of such opposition (art. 23.5), as well as the adoption of alternative measures and approaches equivalent in effect (art. 23.6). It has recognised, too, the competence for the BBNJ Conference of the Parties (BBNJ COP) to adopt emergency measures ‘when a natural phenomenon or human-caused disaster has caused, or is likely to cause, serious or irreversible harm to marine biological diversity of areas beyond national jurisdiction, to ensure that the serious or irreversible harm is not exacerbated’ (art. 24).

Among the objectives of this Part there is that of ‘(s)trengthen cooperation and coordination in the use of area-based management tools, including marine protected areas, among States, relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’ (art. 17b). Thus, the question of the relationship between the BBNJ regulation and other legal instruments, frameworks and bodies, in regard to the designation of an ABMT, has been resolved, not by establishing the possibility for the BBNJ COP to recognise the ABMT created by those other instruments, frameworks and bodies, but by a more moderated option, a disposition under which the BBNJ COP shall decide for regular consultations to enhance such cooperation and coordination (art. 22.3).

4.3 Environmental Impact Assessments

The obligation to conduct environmental impact assessments (EIAs) is already contained in art. 204 of the UNCLOS which stipulates that ‘States shall, consistent with the rights of other States, endeavour, as far as practicable, directly or through the competent international organisations, to observe, measure, evaluate and analyse, by recognised scientific methods, the risks or effects of pollution of the marine environment’. However, the Convention does not establish either the procedure or the standards for conducting these evaluations and, in practice, the existing structures and mechanisms are fragmented and underdeveloped compared to those applicable to marine areas within national jurisdiction. 44 Once again, there was a consensus in recognising that EIAs should be conducted in these areas but, beyond that, disagreements were evident on several points. The first disagreement was in relation to the activities to be evaluated, i.e., whether only those originating in ABNJs should be evaluated (the ‘outside-in’ approach) or also activities that took place in marine areas within national jurisdiction that may have an impact on ABNJs (the ‘inside-out’ approach) –which was unacceptable to coastal States. 45 Secondly, there were also discrepancies about whether the EIAs should be conducted based on the type of activity or on the expected impact, and whether the Agreement should include a list of activities to be evaluated or a list of exempted activities. 46 Thirdly, differences had also emerged regarding the procedure for conducting EIAs and the competences that the bodies created under the Agreement would have for controlling them. 47

The final BBNJ Agreement regulates EIAs in its Part IV (arts. 27 to 39). Under this Part, Parties will have two basic obligations, reflecting both the ‘outside-in’ and the ‘inside-out’ approach, respectively. On the one hand, that of ensuring that the potential impacts on the marine environment of planned activities under their jurisdiction or control that take place in ABNJs are assessed according the BBNJ regulation before they are authorised (art. 28.1). Secondly, when a planned activity under their jurisdiction or control that is to be conducted in areas within national jurisdiction may cause ‘substantial pollution of or significant and harmful changes to the marine environment’ of ABNJ, Parties shall ensure that an EIAs is conducted, either under the BBNJ regulation or under national process (art. 28.2).

According to the text of the BBNJ Agreement, EIAs should be conducted based on the expected impact, rather than on the type of activity. Thus, art. 30 regulates thresholds and factors for conducting EIAs. It could be deduced from this article that EIAs are not compulsory when Parties determine that the planned activity may only have ‘minor or transitory effects’. In all other cases, Parties shall conduct EIAs according to a process that includes several steps: an screening to determine if the activity may cause ‘substantial pollution of or significant and harmful changes to the marine environment’ and whether, therefore, an EIA is required (art. 31.1a); and impact assessment and evaluation using the ‘best available science and scientific information and, where available, relevant traditional knowledge of Indigenous Peoples and local communities’ (art. 31.1c) and including, at least, the information established in art. 33.2; the identification and analyse of measures to prevent, mitigate and manage the potential adverse effects of planned activities (art. 31.1d); and some obligations of public notification and consultations (art. 31.1e and f, and art. 32). The final decision to authorise a planned activity corresponds to the Party under whose jurisdiction or control the activity falls (art. 34.1) but this authorisation shall only be made when, ‘taking into account mitigation or management measures, the Party has determined that it has made all reasonable efforts to ensure that the activity can be conducted in a manner consistent with the prevention of significant adverse impacts on the marine environment’ (art. 34.2).

It is important to note that it is in this Part that there is the only mention to ‘human health’ in the entire BBNJ Agreement. Thus, there is the obligation for Parties to ensure that not only environmental impacts of potential harmful activities are identified, but associated impacts, too, such as economic, social, cultural, and human health impacts (art. 31.b). These same impacts will have to be monitored once the activity is eventually authorised.

4.4 Capacity-Building and the Transfer of Marine Technology

Regarding capacity-building and the transfer of marine technology, there was a widespread recognition that not all States had the same scientific, technical, and technological capacities for using and exploiting the biodiversity of the ABNJs 48 , and about the suitability of including, as a general objective to be pursued by the Agreement, the need to strengthen capacity-building and technology transfer. 49 However, profound discrepancies were becoming evident, firstly, when it came to deciding on the voluntary or compulsory nature of the mechanisms to be created to implement that capacity-building and technology transfer 50 , and, secondly, on how to identify the necessities and priorities in this field. Here, some text proposals explicitly stipulated the transfer of technology and capacity ‘to developing States’, while some delegations asked for the inclusion of pertinent criteria to identify which States in particular should be the recipients. 51

In the final BBNJ Agreement, capacity-building and the transfer of marine technology is regulated in its Part V (arts. 40 to 46). The general objective of this Part is to assist Parties in implementing the provisions of the Agreement and to achieve its objectives (art. 40a). Therefore, Parties shall cooperate, directly or through relevant legal instruments, frameworks, and bodies, to assist Parties, in particular developing States Parties, in achieving the objectives of the BBNJ Agreement through capacity-building and the development and transfer of marine science and marine technology (art. 41.1).

Several considerations are required here. First, according to this Part, Parties assume real obligations regarding capacity-building and transfer of technology. However, the intensity of these obligations differs depending on whether it is related to capacity-building –Parties, within their capabilities, shall ensure capacity-building–or to transfer of marine technology –Parties shall cooperate to achieve the transfer of marine technology–.

Second, developing States Parties have also succeed in explicitly incorporating their special necessities in the treaty. Art. 42.1 is particularly explicit when recognises the need for capacity-building of developing States Parties, and of transfer of marine technology ‘of developing States Parties that need and request it, taking into account the special circumstances of small island developing States and of least developed countries’. Likewise, they have assured a representation in the Capacity-Building and Transfer of Marine Technology Committee established by the treaty (art. 46), which will be competent to submit reports and recommendations to the BBNJ COP.

Third, this Part makes no distinction between types of technology–technology already available or technology under research or development –nor includes any mention to biotechnology –it is only mentioned in art. 1–. 52

And fourth, although the developing States proposal to include financial capacity building in this Part was discarded, art. 44 lists types of capacity-building and of transfer of marine technology, including support for the creation or enhancement of the human, financial management –a more ambiguous expression–, scientific, technological, organizational, institutional and other resource capabilities of Parties.

4.5 Some Cross-cutting Issues

Finally, many important differences had existed with respect to certain cross-cutting issues. The first was the scope of the treaty. While there was no agreement on the ‘outside-in’ or ‘inside-out’ approach that the regulation should adopt, at a more elementary level it had not yet been decided whether the future Agreement would cover fish. 53 On this point, fishing States were belligerent and their inclusion in a broad sense constituted a red line in the negotiations. 54 They argued that their exclusion would be consistent with the mandate of the UNGA not to undermine existing legal instruments or frameworks. 55 Secondly, with respect to the institutional model of the Agreement: some proposals had advocated the establishment of a centralised governance model that would attribute implementation and control competences to a global body, either newly created or already existing, but with an expanded mandate; other proposals had defended a decentralised governance model that granted competences to regional or sectoral bodies, or even a ‘hybrid’ one which would have extend these competences also to domestic institutions. 56 During the negotiations, it seemed highly probable that the institutional model of the future Agreement would be made up of a COP, a Scientific and Technical Body, and a Secretariat. 57 However, the competences each one of them were difficult to define, as was the relationship they would maintain with other international organisations or already operational bodies that exercise competences over the same marine areas. Thirdly, the decision regarding the dispute settlement system 58 was also controversial, as was the financing mechanism of the regime –here, the interest of developing States in providing broad funding was opposed to the much more limited proposals put forward by industrialised States. 59

Regarding the scope of the treaty, as demanded by fishing States, fishing activities in ABNJ have been excluded from the BBNJ Agreement, in favour of the existing international fisheries regime. It is clearly stated in art. 10, ‘except where such fish or other living marine resources are regulated as utilization’ under Part II. In other words, the treaty exclude fish caught as commodities. Although predictable, this important exclusion conflicts with the treaty’s overall objective of protecting marine biodiversity of ABNJ. As has been stated, unsustainable fishing practices are one of the main threats to marine biodiversity and to exclude them from the BBNJ regulation would be a mistake 60 .

Part IX of the BBNJ Agreement regulates the settlement of disputes, which has been essentially solved by establishing the general obligation to settle the disputes concerning the interpretation or application of the treaty by peaceful means (art. 57); making a referral to Part XV of UNCLOS (art. 60.1); and adding some provisions to determine the procedure in case of a dispute affecting a Party to the Agreement that is not Party to the UNCLOS (art. 60.2, 5, 6 and 7).

Finally, the question of financial resources of the Agreement, regulated in Part VII, connects funding with benefit-sharing by creating a mechanism (art. 52) that will include, together with a voluntary trust fund to facilitate the participation of representatives of developing States Parties, a ‘special fund’ composed, among others, of annual contributions and payments by Parties (art. 14. 6 and 7), as a way to share monetary benefits from the utilization of MGRs and digital sequence information on marine genetic resources of ABNJ.

5.1 Avoiding Explicit Reference to the Legal Status of MGRs

The aspect that was generating the most controversy in the BBNJ negotiations was, without doubt, that of the legal status of MGRs. As had been pointed out, ‘as long as the North and South continue their ideological battles over the common heritage of mankind, then concluding negotiations on more important aspects of the package deal will be further delayed’. 66

The concept of CHH, which was actually incorporated in the Revised draft text as a potential governing principle 67 , ‘presupposes a third kind of regime that is different from both the traditional regimes of sovereignty, applicable in territorial seas, and of freedom, applicable on the high seas’. 68 In short, the CHH is ‘a principle that sets out that certain global common resources should be owned collectively by mankind, and the benefits arising from their utilisation should be shared’. 69 Thus, it could imply the prohibition of claim or exercise of sovereignty or sovereign rights, as well as the prohibition of recognising any national appropriation; the use of resources exclusively for peaceful purposes; the equitable sharing of resources; the need to carry out activities for the benefit of humankind as a whole, irrespective of their geographical location, with particular consideration for the interests and needs of developing countries; and the subjection of activities of exploration and exploitation to an international regime. 70

The recognition of MGRs as the CHH seemed to be, for developing States, a sine qua non requirement to accept the regulation. But at the same time, industrialised States rejected it out of hand. Since this issue was generating profound controversy, the main strategy of the IGC President had been to try to negotiate its substantive elements but with no explicit reference to the CHH 71 , a pragmatic position, focusing more on consequences than on principles. 72 The idea was that such an omission may facilitate further progress in the negotiation and perhaps obtain certain concessions on the part of both industrialised and developing States. Moreover, not mentioning the CHH would have avoid the identification between the regime under negotiation and the regime of the Area and its resources. 73

Given that the failure to mention the legal status of MGRs was considered unacceptable by several delegations 74 , and since the omission strategy had not proven effective to date, an alternative that had been suggested was to change the framework by declaring the conservation and sustainable use of marine biodiversity of ABNJs as a Common Concern of Humankind (CCH) instead. 75 Along these lines, the International Union for Conservation of Nature proposed the following text for the preamble of the Agreement:

‘Aware that the conservation of marine biodiversity is a common concern and the shared responsibility of all States and that States have the obligation to protect and preserve the marine environment in ABNJ and to assist other States to do the same’. 76

The CCH approach was identified as one requiring further discussion by the Preparatory Committee established by General Assembly resolution 69/292. 77 Its legal implications would certainly not be equivalent as those of the CHH. 78 However, as has been pointed out, it may succeed in providing a global framework for approaching the conservation and sustainable use of BBNJ by emphasising certain principles of interest to States, such as intergenerational equity, international solidarity, shared decision-making and accountability, and benefit- and burden-sharing through financial cooperation. 79 One potential positive impact of mentioning the CCH may also have been linking the regime under negotiation with others also facing global problems, such as the ‘conservation of biological diversity’ 80 , ‘change in the Earth’s climate and its adverse effects’ 81 or ‘the atmospheric pollution and atmospheric degradation’ 82 , in so far as the concept of CCH ‘is particularly suited to environmental problems, which do not respect national boundaries’. 83 Although this would offer a powerful way forward in the negotiations, huge efforts would be required to convince certain delegations to accept it, as some of them had identified the use of alternative concepts as a ‘red line’. 84

It has been said that the question of the recognition of MGRs as the CHH “produced some of the most passionate, strident, and apparently well-prepared speeches of the resumed IGC-5”. 85 Certainly, even in the latest rounds of negotiation, developing States have not renounced to its incorporation in the Agreement. Thus, neither the omission strategy nor the one consisting in changing the framework towards the recognition of MGRs as CCH have succeeded. On the contrary, as explained in the previous section, the treaty not only explicitly includes the CHH as a general principle in art. 7, but some of its main substantive elements are detailed in art. 11 as well.

Such unexpected result can only be explained by assuming that developing States represent a clear majority of the UNGA –therefore, a clear majority of potential States Parties to the Agreement –and by enlarging the picture to see what the trade-offs have been. Undoubtedly, the treaty also recognises the freedom of the high seas as a general principle in art. 7 and, among many other exclusions, intellectual property rights have been eliminated from the regulation.

5.2 Differential and Contextual Norms

A second strategy with potential to facilitate the agreement was to pay special attention to the existing differences between States by designing and incorporating different types of norms. This was a strategy that has been used, too, for example, in the Paris Agreement on Climate Change 2015. 86 Thus, the Revised draft text included in some of its wording different types of norms that could be classified, in line with the categorisation developed by Daniel B. Magraw, as absolute, differential, and contextual norms. 87 The final BBNJ Agreement also incorporates these types of norms.

According to Magraw, an absolute norm is a norm that provides identical treatment to all countries. In the BBNJ Agreement, this would be the case, for example, of the norm included in art. 16.2, which requires Parties to “periodically submit reports to the access and benefit-sharing committee on their implementation of the provisions in this Part on activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction and the sharing of benefits therefrom”. 88 In norms of this kind, no differential treatment is applied. In contrast, the norm that requires Parties to ‘ensure capacity-building for developing States Parties” and “cooperate to achieve the transfer of marine technology, in particular to developing States Parties that need and request it, taking into account the special circumstances of small island developing States and of least developed countries” (art. 42.1) could be considered a differential norm 89 or, according to this author, a norm that provides different standards for one set of States and others. Another clear example –maybe the most direct differential norm in the treaty- is the norm establishing that the implementation of the measures adopted under the Part on ABMT ‘should not impose a disproportionate burden on Parties that are small island developing States or least developed countries, directly or indirectly’ (art. 25.3). In general, in the Agreement, this type of norm is aimed at developed States, for the benefit of developing States. They are used to acknowledge the existence of different capabilities or geographic characteristics in order to provide some compensation in the regulation. As a result, a certain dose of equity and compensation is reflected in the treaty, as generally required by multilateral environmental treaties and by the principle of ‘common but differentiated responsibilities’. In this kind of norm, ‘disputes may arise regarding whether or not a country qualifies as ‘developing”. 90 This has been fairly evident in the BBNJ negotiations since, in return, many delegations have expressed their interest in maintaining a certain margin of interpretation. For example, the European Union and its Member States proposed maintaining the objective of building the capacity of developing States, but defining them not as ‘least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States and developing middle-income countries’, but rather as ‘developing States that might need and request technical assistance’. 91 It should be noted that the final BBNJ Agreement maintains such recognition (art. 9b) –also incorporating a reference to archipelagic States- and even made it more explicit when it lists as a general principle/approach the ‘(f)ull recognition of the special circumstances of small island developing States and of least developed countries’ (art. 7 m) and the ‘(a)cknowledgement of the special interests and needs of landlocked developing countries’ (art. 7n).

Finally, according to Daniel B. Magraw, a contextual norm is a norm that provides identical treatment to all States affected by the norm but the application of which requires or permits the consideration of some characteristics that might differ from country to country. One such case is the norm establishing that “Parties shall ensure that samples of marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction that are in repositories or databases under their jurisdiction can be identified as originating from areas beyond national jurisdiction, in accordance with current international practice and to the extent practicable” (art. 12.6, emphasis added). 92 Another example is the norm according to which, when developing or updating standards or guidelines for the conduct of EIAs, ‘the Scientific and Technical Body shall, as appropriate, collaborate with relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’ (art. 29.3, emphasis added). This type of norm ‘typically involves balancing multiple interests and characteristics’ 93 and its indeterminacy can be advantageous for several reasons. 94 Firstly, because it is easier to reach agreement on a contextual norm than on a more precise one. Secondly, because they serve to recognise that a certain situation is a legitimate concern of all or part of the international community and can lead to the subsequent formulation and acceptance of more precise norms. Thirdly, because their indeterminacy may lead to flexibility in interpreting and applying the norm.

Although the strategy of using different types of norms has been retained in the final BBNJ Agreement, some of the rules have varied in type throughout the negotiation. A clear example is the obligation to conduct EIAs. While in the provisional versions of the Agreement, that was a contextual norm requiring Parties ‘[as far as practicable] to assess the potential effects of planned activities under their jurisdiction or control’ (art. 22.1 of the Revised draft text), in the BBNJ Agreement this is an absolute norm according to which ‘(p)arties shall ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control that take place in areas beyond national jurisdiction are assessed as set out in this Part before they are authorized’ (art. 28).

5.3 Due Diligence Obligations

Closely related to the above, the introduction of due diligence obligations in the text was also a formula to facilitate agreement between the negotiators. Due diligence obligations are contained within norms ‘that prescribe or express the expectation of a certain standard of conduct, rather than of result. It is generally a standard of reasonableness (and appropriateness) responding both to the complexity of the challenge at hand and the large and shifting diversity of states’ national circumstances’. 95

Due diligence obligations can be explicitly or implicitly incorporated 96 and, from a material perspective, they can be divided into two types: obligations of a procedural type and obligations relating to the States’ institutional capacity. 97 The former include obligations to notify or report certain events and to warn other States, obligations to consult or cooperate with other States or actors, as well as obligations to conduct environmental impact assessments. Examples of the latter include obligations to take legislative or administrative measures. The final BBNJ Agreement, just as the Revised draft text did, contains both kinds of due diligence obligations. Article 39.1, for example, incorporates a procedural due diligence obligation when it establishes that ‘Parties shall, individually or in cooperation with other Parties, consider conducting strategic environmental assessments for plans and programmes relating to activities under their jurisdiction or control, to be conducted in areas beyond national jurisdiction, in order to assess the potential effects of such plans or programmes, as well as of alternatives, on the marine environment’. However, article 13 incorporates a due diligence obligation relating to States’ institutional capacity when it stipulates that ‘Parties shall take legislative, administrative or policy measures, where relevant and as appropriate, with the aim of ensuring that traditional knowledge associated with marine genetic resources in areas beyond national jurisdiction that is held by Indigenous Peoples and local communities shall only be accessed with the free, prior and informed consent or approval and involvement of these Indigenous Peoples and local communities’.

Due diligence, as a ‘requirement to behave diligently’ 98 , can constitute a ‘bridge principle between law and other spaces of normativity’, facilitating ‘dealing with uncertainty in the face of a plurality of actors which are diverse’. 99 Thus, due diligence enables us to consider ‘varied situatedness and capacities of actors’, thereby allowing ‘the grading of legal obligations and concomitant legal responsibility based on distinct degrees of risk proximity’. 100 As long as there were a plurality of interests and polarised positions, the normative openness of the due diligence standard had the potential to facilitate treaty negotiations 101 and it has been effectively used to reach an agreement.

5.4 Internal Soft Law

The incorporation of internal soft law in the treaty –that is, soft law provisions contained within a legally binding instrument 102 –was a fourth strategy contained in the Revised draft text. It included proposals of this kind of provision, for example, when it established that the States Parties that have collected, accessed or used marine genetic resources of the ABNJs ‘may share’ (as an alternative to ‘shall share’) the benefits arising therefrom (art. 11.1 of the Revised draft text); or when it established that the environmental impact assessment reports ‘may include’ certain information (art. 35.2 of the Revised draft text). Other examples of softness were incorporated in provisions that required States Parties to ‘encourage’ certain behaviours, such as adopting measures supporting the conservation and management objectives of the measures adopted and area-based management tools (art. 20.5 of the Revised draft text) or becoming Parties and adopting laws and regulations consistent with the Agreement (art. 56 of the Revised draft text) regarding non-parties to the Agreement.

During negotiations, some delegations seem to had identified the potential impact of the inclusion of soft law in the BBNJ Agreement. For instance, the Core Latin American Group proposed differentiating between ‘the principles under a normative status (...) and approaches of an informative character as implementation guides’. 103 These ‘soft’ obligations, in general, provide flexibility by including exhortations, requirements or even recommendations to act in a certain way. The aim of incorporating them would be to condition the behaviour of the actors according to the Agreement’s objectives. However, they do not entail real obligations, nor does their breach generate liability.

Certainly, the final BBNJ Agreement incorporates some dose of softness in its dispositions. This is the case, for example, of articles encouraging certain behaviours (arts. 25.5, 43.3, 52.13 and 62). Or of many dispositions in Part V regarding capacity-building and the transfer of marine technology, too, an issue area where, in the last negotiation rounds, the debate was mostly focused on the intensity of the obligations assumed by Parties. Discrepancies on whether establish obligations ‘to cooperate’ or ‘to ensure/achieve’ have been resolved by combining strong obligations with qualifiers 104 like “within their capabilities” (for example, in art. 42.1).

However, in general, the Agreement language is stronger than the one incorporated in previous versions of the text. With the exception of Part IV, all parts of the package deal have had an increase of the occurrences of ‘shall’ as opposed to ‘may’. 105 From the perspective of the ambition of the regulation, this is good news. Nevertheless, such strong language, as noted in Section 6 of this work, may make it difficult for some States to ratify the treaty.

5.5 Reducing the Scope of the BBNJ Treaty

Finally, a fifth formula that could be identified in BBNJ negotiations was that of reducing the scope of the treaty by leaving certain elements out of the regulation. At a time when the negotiations seemed far from reaching an agreement, that was a potential way to facilitate reaching a consensus over a narrower treaty. Here, there were two possibilities: either leaving some elements simply unregulated, or explicitly agreeing their regulation in a future agreement or decision. Both options could serve to unblock discussions over elements whose resolution did not prevent States from addressing the rest of provisions. The option of leaving certain issues unregulated had already been suggested in the case of the debate over the legal status of MGRs. As some delegations highlighted, its determination was not a precondition for addressing other issues, such as benefit-sharing. 106 It had also been suggested with respect to the treatment of intellectual property rights (art. 12 of the Revised draft text). 107 That decision had, however, an important limitation and an inherent problem. The limitation was the decision of the UNGA to address the negotiation of the instrument as an agreed package of elements that must be addressed together and as a whole. Although there was certain opposition to including some of the elements in the package 108 , once established, there could not be no new instrument without reaching an agreement on all of them. As a consequence, it was not possible to leave a whole section out of the Agreement. The inherent problem of this strategy was that not answering certain issues, in practice, could be equivalent to taking sides for the position favourable to the status quo, something attractive to some States, but not to others, and definitely not in the public interest.

Following those same examples, while the final BBNJ Agreement, against all odds, has not left the CHH principle out, reaching an agreement on MGRs and the fair and equitable sharing of benefits has certainly entailed to ‘scratch parts of the treaty that were too difficult to conclude’ 109 , this is, the provisional art. 12 concerning intellectual property rights. Discrepancies between delegations about how to address this issue without affecting the developments at the World Intellectual Property Organisation have become irreconcilable and any mention to intellectual property rights has been eliminated from the treaty. This, without a doubt, favours those who benefit from the status quo, namely, developed States and private corporations already possessing patents associated to MGRs of ABNJ.

A second option was to agree explicitly that certain controversial issues will be regulated later outside the treaty, either through a complementary agreement or a future decision by the competent body established by the Agreement itself. The former option implied the use of a frequent technique in multilateral environmental treaties, the convention-protocol model 110 , consisting of dividing the regulation into a framework agreement with the general principles, and successive protocols with the technical aspects. In practice, however, this would have involved adding a supplementary technical agreement to the implementing Agreement under negotiation, which seemed a rather complex formula only to be considered as a last resort. The latter option, regulating certain issues through a future decision of the competent body, had already been proposed by the European Union and its Member States in the case of the criteria for identifying marine areas requiring protection according to art. 16 of the Revised draft text. In their opinion, the criteria ‘may be developed as necessary by the Scientific and Technical Body for consideration by the Conference of the Parties’:

‘The EU and its Member States are not opposed to keeping flexibility regarding the criteria and making sure the process is time-proof. However, whether the criteria are in the body of the text or in an annex, changing (amending/revising/ . . .) them would require a modification of the treaty, which, for many States would be a very heavy procedure. We are suggesting this ‘development’to take place outside the treaty, as a lighter procedure, hence our proposal for ‘guidance” 111 .

This second strategy, mostly applied to technical questions, has also been used to reach the BBNJ Agreement. Thus, the question of the criteria for identifying marine areas requiring protection has been definitively resolved by adding an annex with indicative criteria to take into consideration (Annex I), but also by attributing the competence to further develop and revise them as necessary to the Scientific and Technical Body for the consideration by the BBNJ COP (art. 19.5). Similar competences regarding further developments of technical aspects of the regulation have been also attributed to the Scientific and Technical Body (art. 19.6, 21.8), as well as to other bodies established by the BBNJ Agreement, like the BBNJ COP (art. 44.3), or the Access and Benefit-Sharing Committee (art. 15.3).