4.1 Introduction to the BBNJ Agreement
Following several years of negotiations, the BBNJ Agreement was adopted as a new international legally binding instrument (‘ILBI’) under UNCLOS. The BBNJ Agreement is rooted in both the law of the sea and international environmental law(1)Daniel Bodansky., ‘Four Treaties in One: The Biodiversity Beyond National Jurisdiction Agreement’ (12.03.2024) Cambridge University Press, and the BBNJ Agreement has been referred to as a landmark instrument aimed at halting and reversing biodiversity loss in the ABNJ(2)UN Sustainable Development Goals, ‘Fast Facts – Marine Biodiversity: Landmark Agreement Adopted’ (2023) https://www.un.org/sustainabledevelopment/blog/2023/08/marine-biodiversity-landmark-agreement-adopted/accessed the 30.04.2025. As has been observed,
“[t]he importance of an effective international treaty to protect and sustainably use marine life and ecosystems cannot be overestimated. The world’s oceans, with their multiple functions, are critical not only to humanity’s wellbeing, but, furthermore, to its survival.”(3)Asterios Tsioumanis, ‘UN Marine Negotiations: The Third Intergovernmental Conference and Future Prospects for the Ocean Negotiations’ (2020), Environmental Policy and Law, Volume 50, Issue 3, pages 201-206
The BBNJ Agreement has also been referred to as “the most important ocean agreement to be adopted in more than a quarter century”(4)Ibid n165. This view is compelling, given that the BBNJ Agreement constitutes the first comprehensive, legally binding framework specifically designed to safeguard marine biodiversity in ABNJ, addressing longstanding gaps resulting from a fragmented and sector‑based international regulatory landscape.
The BBNJ Agreement, as explained earlier in this thesis, has an extensive scope seeking to ensure the conservation and sustainable use of marine biodiversity in ABNJ. While UNCLOS establishes important general obligations and sector‑specific regimes applicable also in ABNJ, it does not provide a comprehensive and integrated framework specifically dedicated to the conservation and sustainable use of marine biodiversity in ABNJ, a gap which the BBNJ Agreement seeks to address. Bodansky characterises the BBNJ Agreement’s coupling of “conservation” and “sustainable use” as reflecting its overarching attempt to integrate environmental protection with developmental considerations(5)Ibid n165, page 306. Although the BBNJ Agreement is the first global, legally binding framework specifically for this purpose, it operates alongside a range of existing multilateral and bilateral agreements targeting specific activities and sectors in ABNJ, which, given the thesis’ focus and scope, will not be examined further. This chapter concentrates on the scope of the BBNJ Agreement and the EIA obligation it places upon States with respect to marine biodiversity in ABNJ.
The BBNJ Agreement entered into force on 17 January 2026, following its 60th ratification. The BBNJ Agreement was open for signatures from all States and regional integration organizations between 20 September 2023 and 20 September 2025. On the 19th of September 2025, the BBNJ Agreement reached the threshold of sixty ratifications, approvals, acceptances, or accessions that was needed for it to enter into force(6)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 (adopted 19 June 2023, entered into force 17 January 2026, New York) (BBNJ Agreement), and 120 days later the BBNJ Agreement entered into force, and it now constitutes a legally binding framework.
The BBNJ Agreement has been described as essentially representing “four treaties in one”(7)Ibid n165, a characterization that can be argued to accurately its structural complexity as well as its ambitious scope. Indeed, it has been argued that each of the Agreement’s four thematic areas could have formed the basis of a standalone treaty in its own right(8)Ibid n165. The BBNJ Agreement is split into four thematic areas: 1) marine genetic resources including the fair and equitable sharing of benefits(9)Part II BBNJ Agreement, 2) area-based management tools, including marine protected areas(10)Part IV BBNJ Agreement, 3) environmental impact assessments(11)Part III BBNJ Agreement, and 4) capacity-building and the transfer of marine technology(12)Part V BBNJ Agreement. The BBNJ Agreement establishes institutional mechanisms to support the implementation of the four thematic areas, each of which contains its own set of objectives, guiding principles, and obligations(13)Ibid n165.
The general objective of the BBNJ Agreement, as found in its Article 2, is
“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.”(14)Article 2 BBNJ Agreement
This focus on “long term protection, through effective implementation”(15)Article 2 BBNJ Agreement underscores the preventive orientation of the BBNJ Agreement, in which EIAs are a central mechanism for addressing potential risks to marine biodiversity before they materialise. It is within this preventive framework that EIAs under the BBNJ Agreement assume particular relevance, as discussed in the following section.