Challenges and transformative potential of the BBNJ Agreement

The BBNJ Agreement, which entered into force in January 2026, marks a potential step forward in strengthening sustainable ocean governance. The Agreement applies to marine areas beyond national jurisdiction (ABNJ)—covering nearly half of the world’s ocean—and establishes new rules on access to, and benefit-sharing of, marine genetic resources; area-based management tools, including the designation of marine protected areas (MPAs); environmental impact assessments; and capacity building and the transfer of marine technology. While it builds on the foundation of the United Nations Convention on the Law of the Sea (UNCLOS), it goes considerably further in addressing contemporary environmental and equity concerns.

Yet the BBNJ Agreement arrives at a challenging moment in international politics, and its success is not guaranteed. Several significant challenges can already be identified: political resistance from major powers, the likely non-participation of the United States, current or planned activities in ABNJ such as fisheries and deep-sea mining, and complex interactions with existing international bodies. This workshop brings together stakeholders and scholars to explore how these challenges might impact the transformative potential of the BBNJ Agreement, and how they can possibly be overcome.

Talks

The workshop started with an introduction by Alex Oude Elferink, followed by three talks of experts to provide context to three case studies: 1) Deep Seabed Mining by Klaas Willaert from Ghent University, 2) the Antarctic Treaty System by Erik Molenaar from Utrecht University, and 3) Non-participation in the BBNJ Agreement by Rozemarijn Roland Holst.

In his introduction, Alex Oude Elferink (Utrecht University) first placed the BBNJ Agreement in the broader Incubator project by asking whether UNCLOS lives up to its preamble on ‘equitable’ and ‘efficient’ utilization of ocean resources and the preservation of the marine environment. Unsustainable ocean use, environmental degradation and limited effectiveness challenge the ambition of a sustainable ocean order. The BBNJ Agreement emerges in the midst of this challenge as well as a moment of global political contestations, as the rules-based international order is under strain. As compared to UNCLOS, the BBNJ Agreement has a much more developed institutional framework including a Conference of the Parties (COP) that among other can take decisions on the establishment of MPAs. To achieve its objectives, the BBNJ Agreement and its institutions will have to interact with many other international institutions, bodies and frameworks (IFBs) that are concerned with regulating activities in ABNJ that impact on biodiversity and the marine environment. How that interaction will develop remains uncertain. On the one hand, the Agreement has to avoid undermining relevant IFBs, which might suggest that other IFBs take precedence in decision making, but at the same time the BBNJ Agreement is charged with promoting coherence and coordination with those IFBs (BBNJ Agreement, article 5(2)). Much will depend upon how the BBNJ Agreement will be able to structure its relationship with other IFBs, a matter that will be further considered during the first COP that is scheduled to take place in late 2026, or early 2027.

Focusing on the challenge of deep-sea mining, Klaas Willaert (Ghent University) continued with his presentation ‘The interplay between the BBNJ Agreement and the Deep Sea Mining Regime’. He noted that the aims pursued by the BBNJ Agreement and the regime governing deep-sea mining are often considered to be diametrically opposed, but close analysis reveals a more complex relationship. The BBNJ Agreement stipulates in a negative sense that it shall not ‘undermine’ existing instruments, frameworks and bodies, but the exact meaning and implications of this term remain relatively unclear. It appears that ‘undermining’ at least encompasses exercising competences belonging to another body or framework, and also comprises having a subversive impact on the powers of these bodies or frameworks. While identifying the specific mandate of the ISA, it is clear that its environmental competences are limited to deep sea mining activities, seemingly leaving ample room for the BBNJ Agreement to manoeuvre. Apart from that, Willaert also wondered: can strengthening environmental protection really be considered as undermining the deep sea mining regime? Following a more detailed theoretical analysis of the undermining clause, he then presented different scenarios in the context of Area-Based Management Tools (ABMTs), offering his thoughts on the potential interplay between the two regimes and the interpretation of the undermining clause in this regard. Willaert was of the opinion that ABMTs issued under the BBNJ Agreement can prescribe broad protective measures in or above the Area, despite the potential impact on deep sea mining activities. He also shared thoughts on how existing ISA ABMTs and the associated procedures should be regarded within this new legal context, following the entry into force of the BBNJ Agreement. His contribution concluded with a general outlook, stating that there are certainly avenues for the BBNJ Agreement to impact the deep sea mining regime, but that these options are not boundless and will be limited by the undermining clause, which introduces a delicate balance. Sectoral organizations arguably remain in the driver’s seat, so whether the BBNJ Agreement is able to install the holistic, cross-sectoral approach that many envisioned, remains to be seen.

Erik Molenaar (Utrecht University) went on to discuss the challenge of fishing under existing instruments, frameworks and bodies in his talk ‘The BBNJ Agreement and the Antarctic Treaty System’. He sketched the history of the Antarctic Treaty System which began in 1959 as an agreement to disagree on Antarctic sovereignty. Prior attempts failed, in particular since the Soviet Union was kept out. The negotiations on the Antarctic Treaty eventually succeeded in the late 1950s, and were also driven by a desire to avoid India bringing the ‘Question of Antarctica’ to the General Assembly, which might have led to global governance over Antarctica. Molenaar then focused on one of the system’s treaties: the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), which focuses mainly on fisheries regulation. Its relation to the BBNJ Agreement is unclear because the CAMLR Convention Area is not uniform or generally accepted, raising questions about whether this area is beyond national jurisdiction or not. Still, CCAMLR – the Commission established by the CAMLR Convention - is not like other regional fisheries management organizations. Its objective is conservation not utilization, and it is uniquely bound to the Antarctic Treaty’s overarching objective of safeguarding peace. CCAMLR’s efforts to establish a representative network of MPAs have stalled since 2016 – mainly due to opposition from China and Russia, who are not keen on MPAs and seem to prefer ABMTs. Molenaar further noted that if CCAMLR members manage to vote as a block at the BBNJ COP, this could be an important signal and chilling effect to its proceedings.

Thirdly and finally, Rozemarijn Roland Holst (University of Edinburgh) spoke of another potential challenge: ‘Non-participation in the BBNJ’. Non-participating states are not bound by the Agreement or decisions of the COP, so differing and even conflicting sets of rules might apply as a result between participating and non-participating states. Yet, Roland Holst broadened the perspective and asked: How does non-participation impact distributive ambitions of the Agreement in terms of equity, fairness and justice, besides biodiversity? Or, in moving beyond a focus on states alone, how can the participation of local communities, indigenous peoples/knowledge and private parties be ensured, as all are key to reaching the BBNJ Agreement’s goals? She listed potential consequences of non-participation for each of the agreement’s four pillars: 1) marine genetic resources: non-parties are not bound by the benefit and information-sharing obligations which has huge consequences for parties as well, although non-parties will remain subject to UNCLOS and customary law obligation of due regard; 2) area-based management tools: only state parties can submit proposals for MPAs, while it is unclear whether individual non-participating states that engage in incompatible behaviour can be accused of breaching customary law; 3) environmental impact assessment: non-participating states still have obligations to conduct assessment in case of harmful impact in areas beyond national jurisdiction, but they are not bound by the specific requirements and procedures set out in the Agreement, including on public participation – yet the possibility for non-state and sub-state actors (e.g. NGOs, scientists, or local authorities and communities) from non-participating states to participate in IEA processes under the Agreement remains; 4) Capacity-building, transfer of technology: the lower the participation, the lower the financial buffer of the regime will be.

Discussions

After the talks, discussions were held in three interdisciplinary groups of about seven participants. Participants were invited to share what they envision for the future and how they think the BBNJ agreement might contribute to reaching those future and which challenges in the BBNJ agreement might hamper this trajectory. The participants were given a glossary and a worksheet to aid in the discussions (see supplementary information). The worksheet was divided into several topics, including contemporary problems, desired futures, and aspects of the BBNJ agreement that lead to desired futures and aspects that might hamper the trajectory towards desired futures. From the worksheets, we gathered which themes were mentioned within the three groups (figure 1).

Natural and cultural heritage

Not surprisingly, ecosystem health was mentioned in all three groups as a contemporary problem and as a desired future. All three groups went as far as suggestion no extraction (i.e., mining and fishing) as a desired future. The possibility to protect natural and cultural heritage through environmental impact assessments (EIAs) and marine protected areas (MPAs) were mentioned as promising aspects of the BBNJ agreement. The precautionary approach was mentioned both as a promising aspect of the BBNJ agreement as well as a desired future.

Cultural heritage and indigenous knowledge and people were also broadly discussed and the possibility for non-state stakeholders to involve themselves in issues through the BBNJ agreement was seen as a promising aspect. Together with equity being a theme discussed broadly (e.g., rights of nature), the overall view appears to be that a fairer weighing of the needs of all humans and non-humans is necessary.

Implementation of the BBNJ agreement

Problems with authority and regulation, and forms of obstructivism (e.g., roadblocking) by states were seen as contemporary problems. Possible authority and accountability problems within the BBNJ agreement, pertaining to the not-undermining clause, were seen as a challenge. Further challenges were identified with respect to implementation and weak enforcement (e.g., a watered-down legal structure to appease developed states). The focus on cooperation and the equitable structure are seen as promising aspects of the BBNJ agreement, but these might be debilitated by the currently low participation of developed states. So, although the BBNJ aims to correct power imbalances, current authority and regulation problems might not be adequately addressed because of limited enforcement possibilities currently implemented within the BBNJ agreement and low participation of powerful states.

Conclusion

The workshop underscores the transformative potential of the BBNJ Agreement while realizing that tapping this potential will require action by a wide range of actors, including the Netherlands. The Netherlands could, for example, work through the European Union and relevant regional and sectoral bodies to promote forms of coordination that reinforce the Agreement’s objectives. This effort could create synergies to ensure that existing IFBs fulfil their mandate and exercise their competences on the basis of the environmental principles of UNCLOS, as further detailed in the BBNJ Agreement. In addition, the discussions highlight the importance of Dutch support for broad participation of relevant NGOs, local communities and parties in the Global South. The Kingdom’s own timely ratification of the Agreement, ideally ahead of the first Conference of the Parties, would be an important first step. Taken together, these steps would allow the Netherlands to respond directly to the challenges identified in the workshop while helping to advance the more precautionary and equitable futures that participants saw as desirable.