THE DEEP BRIEF · ISSUE 02
The BBNJ Agreement and the race between international law and geopolitics
“The ship has reached the shore.”
— Rena Lee, President of the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, New York, 4 March 2023
When Rena Lee told delegates in New York that the ship had reached the shore, she was marking the conclusion of one of the most protracted negotiations in modern multilateral environmental diplomacy. The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction — the BBNJ Agreement — had taken nearly two decades, four intergovernmental conferences, and thirty-six hours of final-stage negotiations to produce.
The achievement was real. What remained unclear was the political environment into which it had arrived.
The question confronting the Agreement is not whether its text is ambitious. It is. Nor is the question whether the Agreement closes identifiable governance gaps in areas beyond national jurisdiction. It does.
The question is whether the geopolitical conditions necessary for implementation still exist.
That distinction matters because multilateral agreements are not sustained by legal drafting alone. They depend on continuing political willingness by states to absorb the institutional, financial, and strategic costs of collective governance over time. The durability of a governance framework is determined less by the moment of adoption than by what states do once implementation begins — when obligations become operational, funding becomes recurrent, and procedural choices begin allocating real authority.
The BBNJ Agreement enters into force at a moment when those conditions are becoming less reliable across the international system.
The analysis that follows takes the Agreement seriously as a legal and institutional achievement. It also takes seriously the widening distance between multilateral ambition and geopolitical behaviour — a distance already visible in the Agreement’s preparatory process and likely to define the trajectory of implementation in the years ahead.
What the Agreement actually does
Public discussion of the BBNJ Agreement has often reduced it to shorthand descriptions of a “High Seas Treaty.” The phrase is useful politically but incomplete legally.
The Agreement governs not only the high seas water column but also the international seabed Area beyond national jurisdiction — the deep ocean floor designated under UNCLOS as the common heritage of mankind and administered through the International Seabed Authority (ISA). An instrument operating across both spaces carries wider institutional implications than a framework concerned only with surface waters beyond national jurisdiction.
The distinction is consequential because the governance problems attached to those spaces are different.
The Agreement is organised around four substantive pillars.
The first concerns marine genetic resources and benefit-sharing. Advances in marine biotechnology have increased the commercial value of genetic material derived from deep-sea organisms, hydrothermal vents, cold-water corals, and other ecosystems beyond national jurisdiction. Prior to the BBNJ Agreement, no binding international framework governed how benefits derived from those resources would be shared or what obligations attached to their use. The Agreement establishes systems for notification, monitoring, and monetary and non-monetary benefit-sharing, supported through a Special Fund intended to widen participation in research and governance capacity.
The second pillar concerns area-based management tools, including marine protected areas. For the first time, states have created a binding framework through which protected areas may be designated collectively in waters beyond national jurisdiction. Given that the high seas and the Area together constitute roughly sixty-four percent of the ocean, the absence of such a mechanism had long represented one of the most significant structural gaps in ocean governance.
The third pillar establishes environmental impact assessment obligations for activities that may cause significant adverse effects in areas beyond national jurisdiction.
The fourth addresses capacity-building and the transfer of marine technology. This pillar reflects one of the Agreement’s central political premises: that developing states cannot participate meaningfully in ocean governance frameworks without corresponding technical, scientific, legal, and institutional capacity.
Taken together, these pillars constitute the most significant development in the law of the sea since UNCLOS entered into force in 1994.
That assessment is not rhetorical inflation. It is the baseline against which the implementation challenges now emerging should be understood.
Built on contested ground
The negotiations that produced the BBNJ Agreement were never primarily technical. They were political negotiations conducted through legal form.
At the centre of the process was a dispute over how the economic value derived from marine biodiversity beyond national jurisdiction should be distributed and governed.
Developed states — possessing advanced marine research infrastructure, biotechnology industries, and established deep-sea scientific capacity — resisted approaches that would apply expansive common heritage principles to marine genetic resources. Their position reflected concern that extensive benefit-sharing obligations could discourage scientific investment and commercial development.
Developing countries, led largely through the Group of 77 and China and pushed consistently by small island developing states, argued the opposite: that genetic resources derived from areas beyond national jurisdiction could not be treated as effectively open-access inputs for technologically advanced economies while the benefits remained concentrated among states already possessing research and industrial advantage.
The final Agreement does not fully resolve this disagreement. It institutionalises it.
The text establishes a benefit-sharing framework while deferring several of the most politically difficult operational questions — including the modalities of monetary contributions, distribution mechanisms, and governance arrangements for the Special Fund — into the implementation phase.
That outcome was not a drafting failure. It was a recognition that political compromise had reached its limit within the negotiating process itself.
The tensions embedded in the Agreement did not disappear with adoption. They migrated into the institutions being constructed to implement it.
What PrepCom III revealed
The third session of the Preparatory Commission, convened in New York in March 2026, revealed with unusual clarity that implementation politics are likely to prove at least as consequential as the treaty negotiations that preceded them.
Formally, the Preparatory Commission exists to prepare for the operationalisation of the Agreement before the first Conference of the Parties. In practice, PrepCom III functioned as a continuation of the political contest that shaped the Agreement itself — now expressed through debates over procedure, financing, institutional design, and authority allocation.
The central question running beneath the session was straightforward: how much of the Agreement’s equity architecture states remain willing to operationalise once implementation carries material financial and political consequences.
The most consequential structural challenge originates outside the Agreement entirely. The United States remains outside UNCLOS and therefore outside the BBNJ Agreement itself. This is more than a membership issue. The United States is simultaneously:
- the world’s foremost naval power,
- one of the largest actors in marine scientific research,
- a major biotechnology power,
- and one of the principal states sustaining the broader multilateral architecture on which the Agreement depends.
The institution now being built will govern maritime spaces in which the world’s most powerful state has extensive strategic and commercial interests but no treaty obligations under the framework itself.
Russia presents a different challenge. Unlike states that broadly supported the Agreement while contesting implementation details, Moscow maintained sustained objections throughout the negotiating process itself. Those objections centred on concerns that the Agreement could constrain existing sectoral bodies and create governance arrangements that conflict with Russian strategic and commercial interests, particularly in the Arctic.
At PrepCom III, Russia reaffirmed that position through repeated disassociations from emerging consensus language. What matters is not simply that Russia objected. States object regularly in multilateral negotiations. What matters is that a permanent member of the Security Council with extensive Arctic interests continues to treat core elements of the framework as politically and institutionally misaligned with its strategic priorities.
Iran’s position carried a different significance. Its formal statement distancing itself from UNCLOS-related frameworks arrived at a moment when freedom of navigation through the Strait of Hormuz had again become entangled with acute geopolitical confrontation. In that context, procedural disassociation carried implications extending well beyond conference-room positioning.
More revealing than these external tensions, however, were the fractures visible within the coalition of states publicly supportive of the Agreement itself.
States that strongly endorsed the Agreement politically often proved substantially more cautious once implementation discussions turned to financing obligations, institutional access, participation support, and operational equity mechanisms.
This pattern is not unique to the BBNJ process. It is characteristic of multilateral environmental governance more broadly: consensus around aspirational frameworks tends to weaken as implementation begins allocating recurring obligations and institutional costs.
The equity gap
The financial architecture discussions at PrepCom III exposed the clearest gap between rhetorical support for the Agreement and willingness to operationalise its equity provisions fully.
This distinction should be stated carefully.
Developing countries — particularly small island developing states — are not requesting concessions beyond the Agreement’s text. They are pressing for implementation of obligations already negotiated into the treaty itself, including commitments relating to adequate, accessible, new, and additional financial resources.
The operational problem is that institutional commitments recognised during negotiations become substantially more contested once they require sustained funding, governance mechanisms, and procedural guarantees.
The Special Fund remains unoperationalised. Participation support mechanisms for developing states remain dependent on voluntary contributions whose adequacy cannot be assumed. Discussions surrounding the clearing house mechanism revealed further disagreement over what equitable participation requires in practice.
For many developed states, a lean and centralised digital architecture appears administratively efficient. For many developing states — particularly SIDS operating with uneven digital infrastructure and limited institutional capacity — a centralised system risks reproducing the same asymmetries the Agreement was intended partly to address.
The disagreement is therefore not merely technical. It concerns whether equity obligations will be interpreted narrowly as formal inclusion within institutions or more substantively as the creation of conditions that allow meaningful participation within them.
That distinction is likely to shape implementation across the Agreement’s broader architecture.
When procedure becomes substance
One of the clearest lessons of PrepCom III was that procedural negotiations are rapidly becoming proxy contests over the Agreement’s future operational character.
This was most visible in discussions surrounding Draft Rule 39 bis and related provisions governing area-based management tools and marine protected areas.
Several states entered reservations or expressed concern that the evolving objection procedures could either weaken conservation mechanisms excessively or, conversely, constrain sovereign rights and strategic flexibility beyond what they regarded as politically acceptable.
These disagreements are not peripheral.
The marine protected area mechanism is the Agreement’s most politically ambitious component because it creates the possibility that states may collectively impose conservation-oriented restrictions within areas beyond national jurisdiction where major powers possess active commercial, strategic, or resource interests.
The procedural rules governing objections, voting thresholds, quorum, and adoption mechanisms will therefore determine how much practical authority the conservation architecture actually possesses once contested proposals emerge.
A framework that appears ambitious in legal text may prove considerably narrower in operational effect if procedural rules evolve toward broad de facto veto capacity.
That risk is already visible.
The secretariat question
The competition to host the permanent BBNJ secretariat illustrates another reality frequently understated in public discussion of multilateral governance: institutional geography is never politically neutral.
Belgium, Chile, and China each framed their candidacies in the language of multilateral commitment and effective governance. But secretariat placement shapes institutional culture, diplomatic access, administrative networks, and political proximity over time in ways that extend far beyond logistics.
A Brussels-based secretariat would embed the institution within an established ecosystem of European multilateral governance. A Chilean secretariat would carry different symbolic and geopolitical implications, particularly regarding Global South institutional ownership. A secretariat hosted in China would place Beijing in close proximity to governance processes directly relevant to deep-sea research, marine genetic resources, and area-based management debates in which Chinese interests are already extensive.
None of these implications determines outcomes independently. But institutional environments shape governance cultures gradually and cumulatively. States understand this. That is why secretariat contests are rarely administrative exercises, however they are publicly framed.
What to watch
Three developments will shape whether the BBNJ Agreement consolidates into a functioning governance framework or evolves toward a more symbolic institutional architecture.
The first is COP1 itself. The first Conference of the Parties inherits unresolved disputes over voting thresholds, objection procedures, financial rules, participation support, and institutional authority. The critical question is not whether agreement is formally reached on procedural rules. It is whether the resulting procedures preserve meaningful collective governance capacity once politically contested conservation proposals emerge.
The second concerns the first contested marine protected area proposal. The first proposal brought before the COP will likely function as the Agreement’s first operational stress test. It will test simultaneously the scientific body’s authority, the political body’s decision-making capacity, and the willingness of states to accept constraints once strategic or commercial interests become directly implicated. The handling of objections during that first dispute may establish governance expectations that shape every subsequent proposal.
The third concerns whether the Agreement’s equity architecture survives implementation. The Special Fund must become operational. Participation support mechanisms must remain financially viable. The clearing house mechanism must function effectively for states possessing limited technical infrastructure as well as for those already institutionally advantaged. These are not peripheral administrative questions. They concern whether the governance framework being constructed reproduces existing asymmetries or meaningfully broadens participation within the institutions now emerging.
FURTHER READING
Selected readings for those who want to go deeper on the issues examined in this issue.
ACADEMIC & SCHOLARLY
The Interaction Between the BBNJ Agreement and the International Deep Sea Mining Regime: More Questions than Answers?
Ocean Development & International Law (2025) — An important examination of the unresolved institutional relationship between the BBNJ Agreement and the International Seabed Authority, particularly regarding overlapping governance authority and deep-sea resource management. Essential reading before Issue 03.
GLOBAL SOUTH PERSPECTIVES
Big schools of small fish in a big pond: the influence of small-island developing states in the BBNJ process
Kahlil Hassanali, Nellie Catzim, Rián Derrig, Harriet Harden-Davies, Vui Gemma Nelson and Angelique Pouponneau (Frontiers in Marine Science, April 2026) — A detailed account of how SIDS shaped negotiations through coalition-building, procedural coordination, and sustained institutional engagement. The most authoritative insider account from a Global South perspective. Available open access at frontiersin.org.
LITERARY & GENERAL NONFICTION
Ocean: A Global Odyssey
Sylvia Earle (National Geographic, 2021) — A scientifically rigorous and deeply accessible account of the ocean’s ecological condition and the governance failures increasingly shaping it.
The High Seas: A Human and Natural History
Olive Heffernan (2024) — An accessible but analytically serious examination of the ecological, political, and legal stakes surrounding governance beyond national jurisdiction.