The Quest for Shangri-La: The Expectations and Challenges Under the New BBNJ Treaty

The debate over the conservation of marine biodiversity in Areas Beyond National Jurisdiction (ABNJ) took a new turn at the beginning of this century when global leaders felt the need to develop a specific legal framework. To initiate the process an ad hoc open-ended informal working group was established by the United Nations General Assembly in 2004. Almost two decades later, in June 2023, the harrowing negotiation efforts culminated in the adoption of a treaty for the conservation of marine biological diversity in areas beyond national jurisdiction (BBNJ Treaty). The Treaty, the text of which is now confirmed, has blended both binding and voluntary measures, expressly upgrading the legal framework of the United Nations Convention on Law of the Sea (UNCLOS). It certainly appears reasonable to celebrate this development as the BBNJ Treaty is expected to accomplish multiple aspirations of various stakeholders by establishing a new international authority, backed by scientific and technical committees, which will watch over the diminishing and vulnerable biodiversity in ABNJ. The governance primarily is going to cover tasks like making biodiversity conservation meaningful in designated marine protected areas (MPAs), implementing environmental impact assessments of commercial activities, and operationalizing the equitable sharing of marine genetic resources. All these assignments have their characteristic challenges. But the overall success of the Treaty will depend on how the awaiting collective bargaining problems get resolved when the parties aim to fine-tune the applicable provisions of the Treaty. To that end, BBNJ Treaty has inherited the awkward legacy of almost every international treaty negotiation hold-up, such as difficulties related to reaching an agreement over the threshold of equitable benefit sharing of resources, optimum financial assistance, and meaningful technology transfer. Arguably, all these have beset some of the most important multinational legal documents. For example, the powerful nations that are yet to ratify UNCLOS are openly against mandatory sharing of technology and financial aid. Because BBNJ treaty wants to break free from the bottlenecks that have affected UNCLOS historically, it feels imperative to set the future incentivisation process sensibly. In this chapter, we argue that the BBNJ Treaty in its current format is yet to advance novel solutions for the conservation of marine biodiversity in ABNJ. The problems appear to be twofold. Firstly, the Treaty has failed to alter the rigid premise of state sovereignty and sovereign rights of powerful nations. In this context we reckon the principle of the common heritage of mankind, the guiding beacon for high sea regulations, available to the states as a shield and accordingly, they prefer to argue for thin legal framework. In other words, the claim for ‘absence of control’ inundates the normative requirement of ‘collective control’ on high seas and BBNJ Treaty is not free from such an adverse trade-off. Secondly, the complex issues like conservation and management of common resources leave a narrow space of elbowing for all nations irrespective of their positions in international politics. Therefore, the choice mechanism of the parties to the Treaty in the future must address the externality problem by reaching agreements over unsettled issues. This is to say that the BBNJ Treaty will remain a cause for greater celebration if and only if it remains ‘individually’ and ‘collectively’ rational in its fullest form.