The President of the United Nations (“UN”) intergovernmental conference (“IGC”) on biodiversity beyond national jurisdiction (“BBNJ”), Rena Lee, proposed on March 27, 2023 that the IGC reconvene on June 19, 2023 to adopt the BBNJ treaty. The IGC interrupted its work late on March 4, 2023 after states had reached an agreement on the text of the new treaty, following years of negotiation. The private sector should follow this process closely: the BBNJ treaty may soon result in new binding obligations with which companies will need to comply when operating in areas beyond national jurisdiction (“ABNJ”), which comprise about 95% of the world’s oceans.
At this stage, the draft treaty is only an agreement in principle among states. The text is currently subject to technical editing and translation into all official UN languages. Once the text is finalized, the adoption of the treaty will require a two-third majority vote at the IGC. Its entry into force will then require 60 ratifications and take place 120 days after the 60th ratification. Although it took 12 years for the UN Convention on the Law of the Sea (“UNCLOS”) to enter into force after its adoption in 1982, this could happen much faster with the new BBNJ treaty: there is a real sense of emergency at the UN on the need to protect the deep oceans. It is a question of survival for many small island states, in view of the rising sea levels. The United States could become a party to the BBNJ treaty, even though it is not a party to UNCLOS.
The entry into force of the BBNJ treaty (if and when it happens) will make its provisions binding on states parties. Non-parties and non-state actors will not be bound. Yet the purpose of the BBNJ treaty is to regulate all activities conducted in ABNJ, and most maritime activities are conducted nowadays by companies, and not by states. States parties will need to transpose the treaty into their domestic laws, before the treaty can become binding on companies and other non-state actors. Some international bodies like the International Maritime Organization may also revisit their regulations to account for the new BBNJ treaty.
The treaty requires that states apply the new BBNJ environmental safeguards to activities “within their jurisdiction or control” in ABNJ. The jurisdictional focus is on the activities, and not on the persons conducting them. As a result, states parties will need to ensure that high seas activities falling within their jurisdiction or control comply with the new requirements of (inter alia) environmental impact assessments, area-based management tools and marine protected areas under the BBNJ treaty. However, the treaty does not define the concept of jurisdiction or control. Nor was this concept discussed in any substantive manner at the IGC.
The only state that appeared to focus on this issue was the Vatican. The Vatican emphasized at the IGC that it would be difficult to determine which state has jurisdiction or control over activities conducted by multinational companies in ABNJ, and the Vatican proposed to use the concept of “center of main interest” to make that determination. Other states showed no interest in that proposal. Therefore, the draft BBNJ treaty does not shed any light on the meaning of the expression “jurisdiction or control” which is copied from Part XII of UNCLOS on the protection and preservation of the marine environment.
This expression can also be found in other environmental treaties and declarations adopted by states since the 1970s, in the context of the no-harm principle. It is well established under international environmental law that states have to avoid that activities conducted under their jurisdiction or control cause harm to the environment outside their jurisdiction. However, there is little guidance on what it means for a state to exercise jurisdiction or control over an activity conducted in the high seas.
For some activities, the answer is relatively straightforward. The flag state of a vessel is expected to assert jurisdiction over that vessel’s shipping activities in ABNJ. The sponsoring state of a deep seabed mining project is expected to assert jurisdiction over the relevant exploration and exploitation activities. However, for other activities, the answer is far from clear. For example, there is a growing number of remotely operated, unmanned underwater vehicles that operate in ever-deeper waters in ABNJ. They are not flagged with any state, and do not always have a mother ship. There are also about 550 international subsea cable systems, which land in multiple coastal states, are not registered in any state, and are generally owned by multinational companies or consortia of international companies. These companies use ships flagged in various states to survey the cable routes and lay and maintain the cables. It is possible that several states will seek to simultaneously exercise jurisdiction or control over such activities in ABNJ under the BBNJ treaty. It is also possible that states will have difficulties enforcing the treaty on these activities due to the lack of clear jurisdictional link. The new bodies created by the BBNJ treaty may weigh in on these implementation questions—and in particular, the conference of parties, the scientific and technical body, and the implementation and compliance committee.
It is in the best interest of the companies that operate in the high seas to start preparing to face the new obligations and jurisdictional and legal issues that are likely to arise—especially in the sectors as to which the application of the treaty is not straightforward. They may choose to obtain expert legal advice, and to approach their regulators to discuss the BBNJ implementation process.