Marine Policy 155 (2023) 105686

Contents lists available at ScienceDirect

Marine Policy
journal homepage: www.elsevier.com/locate/marpol

Full length article

The ship has reached the shore: The final session of the ‘Biodiversity
Beyond National Jurisdiction’ negotiations
Elizabeth Mendenhall a, Rachel Tiller b, *, Elizabeth Nyman c
a
University of Rhode Island, USA
b
SINTEF Ocean, Norway
c
Texas A&M University at Galveston, USA

A R T I C L E I N F O A B S T R A C T

Keywords: The negotiations for a new legal instrument for Biodiversity Beyond National Jurisdiction (BBNJ) concluded in
UNCLOS March 2023 with a successful, and somewhat surprising, finalization of a treaty. The BBNJ treaty is a remarkable
BBNJ achievement. But these outcomes – the circumstances of finalization and the content of the final agreement – are
High seas
complicated to explain. They are the result of the complex interactions between different avenues of influence
Marine genetic resources
and constraint, a broad and multifaceted set of interested parties, and the shifting modalities and pressures that
MPAs
Environmental impact assessment characterized the negotiations. This paper is the sixth in a series of analyses that help explain the outcomes of the
BBNJ process by tracing the patterns and trends that shaped negotiations at each inter-governmental conference
(IGC). We use a combination of process tracing, narrative coding, and ethnographic methods in order to
construct a thick description of the negotiations that sheds light on the drivers and shapers of the process. In this
analysis, we focus on the role of diplomatic practices in a pressurized environment, and the assignment of
particular functions and decisions to as-yet-unconstituted BBNJ bodies, such as the Conference of Parties. The
paper concludes by considering the future implementation of the BBNJ agreement, and associated research
agendas.

1. Introduction (TMT). So, whether the treaty is actually effective at achieving its goals
of conservation and sustainable use of marine biodiversity in Areas
Peter Thomson, UNSG’s Special1 Envoy for the Ocean, said in a tweet Beyond National Jurisdiction (ABNJ) remains to be seen. But the final­
March 6th 2023, two days after the conclusion of the resumed fifth ization of an agreement in the over-time of the resumed IGC-5 was a
session of the intergovernmental conference (IGC) for a new legally major accomplishment. Just days, and even hours, earlier, this outcome
binding instrument to govern ‘Biodiversity Beyond National Jurisdic­ was highly uncertain, as the chasm of polarized opinions, hopes and
tion’ (BBNJ), “All congratulations due to BBNJ President Rena Lee… demands was deep and seemingly impossible to bridge.
multilateralism is opening the doors to reversing the decline in the Ocean’s This paper explores the multilateralism that led to a finalized BBNJ
health. Now the real work begins.” The “real work” – after adoption and agreement, with an eye to identifying the patterns and trends that sha­
ratification – includes the domestication of BBNJ rules to apply them to ped the final outcome. The fifth session had resumed at the United
private actors under states’ control and jurisdiction, and the creation Nations headquarters in New York on February 20, 2023. Alternatively
and operation of BBNJ bodies. States must use BBNJ mechanisms to referred to as “IGC-5bis,” “IGC-5 + ” and “IGC-final,” the session was
propose and designate Area Based Management Tools (ABMTs) officially a resumption of IGC-5, which concluded in August 2022
including Marine Protected Areas (MPAs). The same mechanisms must without successful finalization of an agreement [43]. The disappoint­
also be used to conduct, review, and report on Environmental Impact ment of IGC-5, combined with a significant amount of informal inter­
Assessments (EIAs), to ensure notification and benefit-sharing around sessional work, supported a general sense of purpose and optimism as
Marine Genetic Resources (MGRs), and to “ensure” capacity building the negotiations resumed in February. Negotiations were based on the
(CB) and “cooperate to achieve” the transfer of marine technology “further refreshed draft text” (FRDT) released on the final day of IGC-5

* Corresponding author.
E-mail address: [email protected] (R. Tiller).
1
“we have a window of opportunity to seal the deal and we must not let this opportunity slip through our hands” –Rena Lee, evening plenary on Friday 3/3

https://doi.org/10.1016/j.marpol.2023.105686
Received 15 April 2023; Received in revised form 23 May 2023; Accepted 25 May 2023
Available online 3 June 2023
0308-597X/© 2023 The Author(s). Published by Elsevier Ltd. This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/).
E. Mendenhall et al. Marine Policy 155 (2023) 105686

in August (A/CONF.232/2023/2).2 Yet as the first week dragged on, 2. Methods

progress began to feel elusive, as the degree of entrenchment in diver­
gent positions resurfaced. On Saturday after the first week, in the late Throughout the series of articles we have published on the BBNJ
afternoon, President Rena Lee introduced an updated draft text (UDT) negotiations, our overarching research question has been “what explains
that still contained a large number of brackets, options, and even new (or will explain) the outcomes of the final BBNJ agreement?” Outcomes
text proposals introduced during the previous week. The understood include the specific treaty design and content, but also the circumstances
goal had initially been to finalize an agreement by Wednesday of the of finalization, how many (and which) states will choose to ratify, and
second week, allowing time for ‘legal scrubbing’ and the translation of the assignment of decision-making responsibility to the Conference of
the treaty into the other 5 official U.N. languages. With the updated text, Parties (COP) and other BBNJ bodies. As interdisciplinary social scien­
hopes for this aim dwindled. tists, we are especially interested in tracing the ideas, actors, and in­
Though the Wednesday goal ended up being too ambitious, it did terests that influence the negotiations and shape the treaty. Our
drive the pace of negotiations during the second week, which picked up overarching goal is to generate an explanatory narrative that sheds light
in two ways. Sessions increasingly went over time, and for longer on the BBNJ process and outcomes, situated within the broader litera­
amounts of time, and delegations made decisions (and concessions) on tures on regime creation and effectiveness, and the progressive devel­
bracketed text faster than in previous sessions. Over the course of the opment of the UNCLOS3-centered ocean governance regime [20]. Each
second week, text was ‘cleaned’ on issues of lower salience, increasingly of our papers contributes to this question from a different angle, high­
revealing the areas of deepest divergence which were pushed to nego­ lighting patterns and trends that become more or less evident or influ­
tiations in smaller sessions. More difficult topics were taken up in closed ential throughout different stages of the BBNJ process. This sixth
consultations, although daily Plenary meetings summarizing the con­ analysis paper focuses on the BBNJ negotiations as diplomatic practice,
clusions of the previous day facilitated some transparency. When dele­ highlighting among other things how the specific context and modalities
gates entered the room on Friday morning, March 3rd, the last scheduled of the resumed IGC-5 influenced the nature of the final compromises
day of the resumed IGC-5, predictions about whether a treaty would be that enabled the finalization of the agreement.
finalized were mixed. During the plenary session at 5 pm, President Our research method is detailed in previous papers (especially [21]
Rena Lee advised delegates and observers to “raid the vending ma­ and [43]), but is essentially a combination of process tracing, narrative
chines” for simultaneous consultations (closed) and intermittent coding, and event ethnography. Process tracing involves developing
informal informals, which would stop and start in keeping with the theoretical ideas and concepts through observing patterns, trends, and
progress of the consultations. Closed sessions and consultations then sequences [1]. We draw mostly on theoretical concepts from Political
continued for 36 h straight, with a dramatic conclusion on the evening of Science and International Relations. Narrative coding supports process
Saturday, March 4th. The last several hours took place in fully closed tracing, via systematic categorization of the large datasets of in­
sessions and consultations, but the emerging details of these final hours terventions that we have compiled during each IGC.4 Ethnographic
from social media updates by delegates and conversations with dele­ research methods rely on researchers “being there” as participants,
gates afterwards suggest that finalization involved bold and creative “getting deeply into the rhythms, logics, and complications of life” as
maneuvering by regional country coalitions over a central compromise lived by the delegates to the negotiations [19,33]. Ethnographic ap­
involving principles, voting thresholds, benefit sharing, and financial proaches make us attentive to more “lived” aspects of the session, such
mechanisms. as tone, mood, pauses, hunger, laughter, tears, and other elements that
This article helps to explain the outcome of the resumed IGC-5, in define the negotiations, but are not captured in a standard textual re­
particular the treaty design that emerged and the ways in which it re­ cord. This combination of methods enables us to construct a richer
flects a series of key compromises made in the second week of the ses­ overall understanding of how the negotiations work and how and why
sion. This is the sixth article in a series of analysis papers that have decisions are made.
traced the patterns and trends shaping the BBNJ process during all the Our research method has been shaped by the shifting modalities of
negotiation sessions since 2018 [5,21,22,41,43]. The series, and this the negotiations. In short, the further the negotiations have progressed,
paper, contributes to an ever-growing literature on the BBNJ process, the less access observers have had to the discussions. Negotiations at the
the governance approaches adopted by the treaty, and their impact on resumed IGC-5 took place through four types of meeting modalities:
the existing regimes for the ocean and biodiversity (see especially [2,7, plenary working groups (open to all), ‘informal informals,’ (open to
9–12,14,15,17,24,26–29,32,34–36,44]; [40,16,23]). The next section observers with access), small groups (closed to NGOs), and President’s
briefly outlines our methodology, after which we introduce the general consultations (closed to NGOs). This hybrid format was an adjusted
themes that will be traced through the body of the paper in Section 3. version of the modalities adopted during IGC-5, which were already at
Sections 4–5 detail the development of particular Parts of the treaty, in that time criticized as inequitable and inaccessible by delegates, while
order to shed light on the factors that influenced their design. In the being recognized as necessary to the task at hand. The small groups and
concluding section, we consider the future of the BBNJ regime, consultations were completely closed to observers, while the ‘informal
including opportunities and needs for future research, and discuss informals’ sometimes took place in rooms too small to accommodate all
whether this indeed could be the “Once and Future Treaty” (Tiller et al., observers. Although the plenary and informal sessions were available to
2018). registered participants via WebEx, our combination of methods required
us to be there in the physical conference rooms as much as possible. It
was therefore necessary for our research team to arrive early and take up
minimal space in the rooms that we were allowed access to.
Our analysis draws on the discussions we could access, as well as

2
It is important to note that there was also a new version of the FRDT that
3
was circulated on December 12, 2022. Though these had the same names, there United Nations Convention on the Law of the Sea, opened for signature 10
had been 347 changes made to this new version of the August agreed text. December 1982, 1833 UNTS 397 (entered into force 16 November 1994)
4
Although these changes were described as editorial, they became an issue at This dataset is embargoed until the adoption of the treaty, which represents
times during IGC5bis, where language had been changed slightly, and delegates the conclusion of the negotiation process. At that time, states can be identified
were working with different versions of the FRDT. One example of a change in their interventions during informal informals, as indicated by President Rena
that led to lengthy discussions between IG5 and IGC5bis was the capitalization Lee. The dataset will then be published and made accessible for other
of Indigenous Peoples. researchers.

2
E. Mendenhall et al. Marine Policy 155 (2023) 105686

other sources of information available to registered participants and connected their flexibility on an issue to the need for others to be flexible
information publicly shared on social media and elsewhere. The latter elsewhere. In at least one instance, a regional coalition conceded and
included sources such as informal anonymous conservations with dele­ then re-asserted a preferred text proposal specifically because another
gates, advocacy materials placed in and around the sessions, text pro­ regional group did not concede on their text proposal for the same
posals posted on the BBNJ website, and the formal documents released article. At the end of the second week, delegates referred openly to the
by the negotiation leadership. During the plenaries and informal in­ psychological and physical strain of late night and then all night nego­
formals we transcribed interventions in Microsoft Word and Excel for­ tiation sessions. During the last informal informals, observer delegations
mats, coding information both as we go and after the fact. Combined, were less restrained in their reactions – when Rena Lee requested at 1:30
this is the content used for process tracing. At the request of the lead­ am on Saturday morning that the negotiations continue past 2 am,
ership, we cannot report the details of ‘who said what’ during the without interpretation, applause seemed to be led by the observer sec­
informal informals yet, which, unlike the plenary sessions, are not tion. These various pressures drove a process of winnowing down the
available via UNTV. In this paper, we therefore only identify specific brackets and options to reveal the hard core lines of disagreement,
speakers in cases where statements were made during plenary sessions, which would be the essential components of a compromise package.
and/or were based on statements or text proposals that were made
public when uploaded on the BBNJ website. Our database will be 4. Elements of the BBNJ package
released, with approval from the President of the Conference, upon
adoption and signature of the agreement at a later date. These re­ The late stage of negotiations meant that several cross-cutting issues,
strictions were intended to enable delegations to discuss options and which had been repeatedly discussed, but generally negotiated around,
express degrees of flexibility more freely during the negotiations. finally had to be resolved, such as the inclusion of the principle of
Common Heritage of Humankind (CHH) (formerly referred to as
3. Negotiation under pressure “Common Heritage of Mankind”) in Article 7(b)8 as one of a list of
enumerated General Principles and Approaches. The topic of CHH,
Negotiation practices shifted5 during the resumed IGC-5 in ways that which has been consistently polarized, produced some of the most
reflected the pressure to finalize an agreement. The Facilitators – two of passionate, strident, and apparently well-prepared speeches of the
whom have been leading their issue areas since IGC-16 and all of whom resumed IGC-5. The principle had appeared to have “lost ground”
enjoy wide respect among delegates – played a more obvious and internationally during the 1990 s and early 2000 s, and its future
explicit role in moving things forward. Three new Facilitators were applicability was understood to be limited (Vadrot et al. [44], 2–3;
added for cross-cutting issues,7 a role which had previously been filled Brunnée [4], 563; Taylor [39], 357; McDorman [18], 202). By the
by President Rena Lee alone. This allowed Rena to invest her time as resumed IGC-5 session, however, it was crystal clear that the developing
President of the negotiations in active consultations with delegates on world had re-embraced the concept as critical to an equitable and
sensitive issues, but also served other purposes: attaching specific effective BBNJ agreement, and was unwilling to see the principle
focused leadership to smaller sets of related issues (General Provisions, excluded from the agreement. Other examples of long-simmering dis­
Institutional Arrangements, and Dispute Settlement and Implementation putes about the overall BBNJ package included the list of states recog­
and Compliance), and potentially insulating Lee from the perception nized for special circumstances or consideration, and the particular
that she is personally pushing things forward in ways that might rights of adjacent coastal states, including those surrounding ‘high seas
displease some states and coalitions. ‘Cleaning’ the text was often driven pockets.’ New cross-cutting issues, like carve outs for disputed areas and
by the Facilitators asking for quick responses, and interpreting a lack of whether to capitalize Indigenous Peoples, largely materialized in this
objections as acceptance. It involved pushback on textual proposals that final session.
did not obviously facilitate a compromise, or which re-introduced text or During the two weeks of negotiations, divergent positions were also
ideas that had already been eliminated from the text. In this way, text reflected in the draft versions that were circulated and negotiated. Not
proposals were somewhat pre-screened to prioritize creative solutions surprisingly, the final text in each of these areas generally reflects a
over re-assertions of parochial preferences that were unlikely to win moderate or weakened version of the strong versions proposed. Table 1
consensus support. While these procedures were occasionally ques­ gives an overview of the different draft texts and how they differed in
tioned, in general delegates rose to the challenge of formulating quick terms of strength of language (“shall”) and divergence (“options” and
responses. It was common for delegates and groups to ask for a few brackets) of opinions. We chose to only focus on Institutional Arrange­
minutes to consult via email, Whatsapp, and other expedients, after ments as an example of cross-cutting issues for the purposes of this paper
which they would come back with reactions from their larger coalition as an addition to the analysis of the four package items.9 This choice was
or from other colleagues. both for space limitations and to align with the other articles in this
Both external and internal pressure produced interactions between series.
delegates, delegations, and coalitions that were heightened, strained, Compared with the draft that the resumed IGC-5 started with, the
and otherwise intensified. External pressure came from the idea that the final version decreased in total word count, though this was – in terms of
‘eyes of the world’ were watching, the need to meet the 30 × 30 goal for the packages - because of the EIAs section. The length of the text is not as
protection of ocean space from the Kunming-Montreal Global Biodi­ much an indication of its potential strength as the inclusion of strong
versity Framework, and the connection between ocean health and (precise and/or obligatory) language. All parts of the packages, with the
climate change. Many states and coalitions seemed especially desperate exception of EIAs, also had an increase in the occurrences of “shalls”,
to conclude an agreement, such as the Pacific Small Island Developing which could be an indication of this agreement going beyond a ‘paper
States (PSIDS) and the European Union (EU). Delegates increasingly tiger’ [41]. The rest of this section goes into detail on each of the
package items and Institutional Arrangements, following the order of

5
“It’s not that I don’t welcome new ideas, but they need to be ideas that drive
8
people together…any ideas that get us to consensus are welcome.” –President May 3rd 2023 version of the Draft agreement
9
Rena Lee, during informal meeting with observer delegations, 2/20 This does not minimize the importance of Parts VII Financial Resources and
6
René Lefeber (Netherlands) for EIAs; Janine Coye-Felson (Belize) for MGRs Mechanisms, VIII Implementation and Compliance, IX Settlement of Disputes, X
7
Kurt Davis (Jamaica) for General Provisions; Victoria Hallum (New Zea­ Non-Parties to this Agreement, XI Good Faith and Abuse of Rights, XII Final
land) for implementation and compliance, and dispute settlement; Thembile Provisions or Annexes I and II. We intend to investigate the conclusion of these
Joyini (South Africa) for institutional arrangements areas of the agreement in future work.

3
E. Mendenhall et al. Marine Policy 155 (2023) 105686

Table 1
Versions of the treaty text negotiated during the resumed IGC-5 with changes. Red indicates that there is a negative trend and green that there is a positive trend
(irrespective of arrows. An increase in “shalls” for example may indicate stronger language - whereas and increase in “options” indicates divergence of opinions).
Version Section “Optionsa” “Shall’sb” Bracketed “shall’s” Brackets (search “]”) Word count (incl titles)

IGC5 Full draft 10 344 8 283 20,501

Further Refreshed Draft Treaty (FRDT) MGR 0 43 0 20 2 471
August 26th 2022 ABMT 0 62 0 31 3 056
EIA 7 90 8 184 5 014
CBTMT 0 23 0 3 1 628
Inst. Arr. 1 33 0 2 1 938
Version Section “Options” “Shall’s” Bracketed “shall’s” Brackets (search “]”) Word count (incl titles)
IGC5 Full draft 10 ↔ 345 ↑ 8↔ 292 ↑ 20,579 ↑
Further Refreshed Draft Treaty v2 (FRDT-2) MGR 0↔ 43 ↔ 0↔ 22 ↑ 2 478 ↑
December 12 2022 ABMT 0↔ 63 ↑ 0↔ 31 ↔ 3 072 ↑
What happened to the Saturday version? EIA 7↔ 90 ↔ 8↔ 192 ↑ 5035 ↑
Version CBTMT 0↔ 23 ↔ 0↔ 3↔ 1633 ↑
Inst. Arr. 1↔ 33 ↔ 0↔ 2↔ 1944 ↑
Version Section “Options” “Shall’s” Bracketed “shall’s” Brackets (search]) Word count (incl titles)
Updated Draft Text (UDT) Full draft 11 ↑ 383 ↑ 10 ↑ 661 ↑ 23,827 ↑
Saturday February 25 2023 MGR 2↑ 60 ↑ 1↑ 244 ↑ 3 542 ↑
End of week 1 of IGC5bis ABMT 1↑ 76 ↑ 1↑ 53 ↑ 3 827 ↑
EIA 4↓ 80 ↓ 5↓ 119 ↓ 4 624 ↓
CBTMT 0↔ 27 ↑ 1↑ 71 ↑ 1 995 ↑
Inst Arr. 1↔ 38 ↑ 1↑ 42 ↑ 2 107 ↑
Version Section “Options” “Shall’s” Bracketed “shall’s” Brackets (search]) Word count (incl titles)
1:30 am version Full draft 5↓ 324 ↓ 4↓ 287 ↓ 19,626 ↓c
Saturday March 4th 2023 MGRd N/A N/A N/A N/A N/A
ABMT 1↔ 92 ↑ 2↑ 47 ↓ 4 337 ↑
EIA 1↓ 84 ↑ 1↓ 54 ↓ 4 745 ↑
CBTMT 0↔ 25 ↓ 0↓ 0↓ 1 775 ↓
Inst Arr. 0↓ 38 ↔ 1↔ 29 ↓ 2 149 ↑
Version Section “Options” “Shall’s” Bracketed “shall’s” Brackets (search]) Word count (incl titles)
Draft Agreemente Full draft - 359 ↑ - - 21,515 ↓
May 3rd 2023 (− 936)
MGR - 52 ↑ - - 3 302 ↑
(+824)
ABMT - 75 ↑ - - 3 537 ↑
(+465)
EIA - 73 ↓ - - 4 138 ↓
(− 897)
CBTMT - 25 ↑ - - 1 795 ↑
(+162)
Inst Arr. - 36 ↑ - - 2 053 ↑ (+109)
a
For the purposes of this table, an “option” is a place in the draft text with multiple options, not the number of options in total. Each “option” could actually contain
two or more options, and/or include options under options. For example, article A may have option 1 and option 2. That is counted as one “option” because it is one
place with options. If there are two options under option 2, that is one more place with option.
b
Includes [shall…] as in [shall consider…]
c
Since the full draft does not include MGRs, the numbers are inconclusive and therefore they are neither red nor green in this table.
d
MGR negotiations were not included in this draft because these negotiations were in consultations still.
e
Compared to the December 22nd version from 2022.

the package items as listed in the final agreement. whatever the “big guns” in the MGRs discussion landed on, suggesting
that the MGR issue area was prioritized by many delegations.
Entering into IGC-5bis, the most challenging topics in this issue area
4.1. Marine genetic resources were questions around intellectual property rights (IPR) and monetary
benefits at the utilization stage. This issue was therefore prioritized from
The MGRs topic has always10 been one of the more contentious and the start, with the first parallel session being kicked off right after the
polarized, because of its connection to ideas of common ownership, and plenary on day one. The Facilitator noted the positive progress during
widely divergent assumptions about the magnitude of benefits involved IGC-5, in that they had restructured and cleaned up text, but emphasized
[42]. This polarization is connected to the empirical reality that “marine the major sticking points on monetary benefit sharing. Within that
biotechnology has been almost exclusively driven by highly industrial­ context, there were two specific tasks that needed to be dealt with
ized countries” [3]. Whereas advanced developed states emphasize the during this final round of negotiations, namely articles11 around (1) the
need to incentivize ‘bioprospecting’ by private actors, the developing details around monetary sharing, with emphasis on articles 11, 11bis
world insists on access to benefits from any exploitation of MGRs. The
special challenge of resolving the MGRs section was evident throughout
IGC-5bis, including in the high proportion of closed sessions, consulta­ 11
Article numbers are based on IGC5 Further Refreshed Draft Treaty v2
tions, and small working groups. Indeed, one small island state delegate (FRDT-2) from December 12, 2022 since that was what the disucssions were
in a discussion on cross-cutting issues referred to the need to defer to based on during the negotiations. These are later updated in the May 3rd 2023
version where they no longer include “bis” and numbering is different
compared to the earlier versions. The final article numbers from the May 3rd
10
“We need to move away from the poles and move towards the center”- version are reflected in the footnotes below where these are referred to
Facilitator, MGR on Monday of the last week as they closed on the topic of specifically.
monetary benefit sharing

4
E. Mendenhall et al. Marine Policy 155 (2023) 105686

and 1312; and (2) Articles 8 and 9.13 The latter set of articles were agreement by the middle of that very week! They then invited the other
relatively straightforward to resolve, at least compared to provisions delegates to start sharing their ideas - because their hope would be to see
dealing with financial contributions. For Article 8 on Application, there what they in turn would be able to present to the G77 + China at this
was general agreement that fish caught as commodities should be point. They emphasized that they had done it twice the previous
excluded from the provisions for MGRs, with the main question being Thursday so they knew that they could do it - and the room laughed a bit
how this distinction could be operationalized. There was also general at that again. The frustration was palpable from that side of the room at
support, by the end of the first week, for the inclusion of ‘digital the lack of flexibility of other states in making similar commitments and
sequence information’ (DSI) in Article 8 and throughout the MGRs concessions from their original standpoint.
section. This reflects trends in biotechnology, where users are becoming Money and benefit-sharing were the most challenging areas for
“less reliant on physical samples and, increasingly, working directly consensus building. At the beginning of the second week, a developing
with genetic sequence data” [3]. One developing country coalition also country coalition expressed concern about the lack of discussions on
noted the need for consistency with the Convention on Biological Di­ finance, and suggested taking the topic up in the MGRs discussions,
versity (CBD) decision 15/9 which standardizes the use of DSI and re­ which were also addressing monetary benefits. Discussions on financing
flects agreement on the importance of DSI for benefit sharing. and MGRs were connected, and moved largely to informal working
On benefit-sharing, developing country coalitions maintained groups and closed consultations. Progress (or change) on the MGRs part
strong, and consistently unified, positions. The discussions started with was not reflected in the UDT. Midway through week 2, President Lee
the G77 + China coalition emphasizing that their positions reflected that introduced a compromise proposal for the MGRs and financing sections.
of 134 U.N. member states – or 2/3 of all potential parties – and that The proposal was not generally embraced, although much of it re­
while their aim was not to obstruct the negotiations, their voices could sembles what ended up in the final treaty. One notable change was to
not be ignored because they would not be able to agree to a final deal if completely eliminate the Article on Intellectual Property Rights, because
their ideas were not reflected in the final agreement. The G77 + China of continued intransigent disagreement on how to address the rela­
emphasized that the articles that were key to them were 10 and 11 as tionship with other relevant agreements, especially as relates to de­
these would ensure that the benefits from utilization of MGRs would be velopments at the World Intellectual Property Organization. So while
shared to support developing state parties in, among other things, the final text on MGRs and financing is fairly well-articulated, the
increasing their scientific capacity. Specifically, the G77 proposal compromise also entailed scratching parts of the treaty that were too
included milestone payments and royalties, described as “payments or difficult to conclude.
contributions related to the commercialization of products,” in addition
to a tiered fee based on indicators of the aggregate level of MGR-related
4.2. Area-based management tools
activities by a state party.
Part of the resolution of this issue involved the delegation of aspects
The creation of a mechanism for area-based management15 tools
of decision-making to BBNJ bodies. The MGR issue area is the only one (ABMTs) including Marine Protected Areas (MPAs) has been cited as
with a dedicated committee, the Access and benefit-sharing committee
vital to ensuring the completion of the “30 by 30′′ initiative, calling for
created through Article 11bis.14 The original proposal made by the Af­ 30% of the oceans to be designated as protected areas by 2030 [7].
rican Group (with support from CLAM, CARICOM, and PSIDS) during
While there is no formal legal connection between the 30 × 30 pledge
IGC-4 was for an “Access and Benefit Sharing Mechanism” which would and the BBNJ agreement, the goal was very present in the minds of
provide technical expertise and operationalize benefit sharing along the
participants. One developing state proposed to add the 30 × 30 goal into
spectrum from access to utilization. During the resumed IGC-5 session,
the preamble, but the suggestion received tepid support, and ultimately
some developed states suggested changing the name from “mechanism”
did not end up in the final treaty. A developed country representative
to “advisory committee,” to more accurately reflect the reduced role
explained, “as a general line we don’t want to refer to other instruments
they envisioned for the body, and this option was added to the UDT.
or processes or bodies or agreements.”
There was some pushback from CLAM and the African Group on this
The ABMTs issue area was not an easy one to resolve, with informal
change, although the main substance of the debate concerned the
sessions in the first week often appearing to move backwards in terms of
functions assigned to the new body, which in the end was named a
adding both brackets and new text proposals. Three major issues char­
“committee” rather than a “mechanism.”
acterized the discussions: (1) the relationship between the BBNJ and
On the Monday of the last week, the G77 + China emphasized that
ABMT designations from existing IFBs, often referred to as ‘recognition,’
they had moved their positions a lot over the past week, but they could
(2) the creation of an ‘opt out’ mechanism for states who oppose
not give up on their main issues, like DSI and specific provisions on
particular ABMT designations, and (3) the creation of a procedure for
utilization and commercialization of products arising from MGRs,
emergency measures, which may or may not be limited to ‘fast track’
without this we will not be satisfied with these negotiations. They
ABMTs. While the relationship between BBNJ and other mechanisms
emphasized that over the weekend when the UDT came out, they had
had been up for discussion since the beginning of negotiations, the latter
managed to coordinate the positions of 134 countries – the G77 Chair
two issues were only introduced in later sessions.
looked at the room and asked whether they knew how hard that was to
The topic of recognition concerns the relationship between the BBNJ
do – and they had done it in less than 24 h. They expressed frustration by
COP and other IFBs, in regards to the use of ABMTs. This connection
saying that in the delegate’s opinion – and they said with a smile that
between BBNJ and external bodies is a critical part of implementation.
this was the way of Cuban democracy – the delegates were not moving at
One of the objectives of the ABMT section is to “strengthen cooperation
all now towards a treaty, though the group was meant to conclude the
and coordination” in the use of ABMTs. The BBNJ agreement requires
collaboration and consultation with relevant groups, including IFBs,
when formulating ABMT proposals. There was also discussion about
12
Article 11: Fair and equitable sharing of benefits (Article 14 in final having a BBNJ process for the COP to recognize the ABMTs created by
version); Article 11bis: Access and benefit-sharing committee (Article 15 in
final version) and Article 13: Monitoring and transparency (Article 16 in final
15
version). “The main discussion is if we have to have an objection, how annoying can
13
Article 8: Application (Article 10 in final May 3rd version) and Article 9: we make it to the country objecting while still framing it in a way that is
Activities with respect to marine genetic resources of areas beyond national acceptable to them? We saw two choices. Either we try and help shape it even if
jurisdiction (Article 11 in final version from May 3rd 2023). we don’t like it or we can complain about it afterwards. We will likely do
14
Article 15 in final May 3rd version both.”-regional group delegate, informal 2/22/23

5
E. Mendenhall et al. Marine Policy 155 (2023) 105686

IFBs external to the BBNJ system. The main utility of recognition, as 4.3. Environmental impact assessments
explained by a delegate from a group of developed states, was the in­
tegrated and holistic lens of the ocean it represented, especially in light The section on EIAs has been consistently17 challenging, and the
of the 30 × 30 goal. Others pushed back on recognition as a form of Facilitator of the EIA informal informals was often visibly frustrated,
hierarchy, wherein the BBNJ COP would have superior authority to disappointed, and concerned during the informal informals at IGC-5bis.
legitimate and evaluate ABMTs. The final agreement ended up being a Some central issues, such as the definition of EIAs, were resolved during
form of “light recognition,” where the COP “shall make arrangements for IGC-5 (see Art 1(10)). Most of the main issues remained to be addressed
regular consultations to enhance cooperation and coordination” with in the resumed session, however, including: (1) the activities versus
IFBs. impacts approach to EIA obligations, (2) how to compare or assess EIA
The idea of an objection procedure, which would allow states to ‘opt procedures from external IFBs, (3) the possible creation by BBNJ bodies
out’ of an ABMT or MPA, was initially proposed by Japan (in a publicly of global minimum standards, guidelines, and/or guidance, (4) the use
available text submission) during IGC-4, and eventually incorporated in of a tiered approach to EIAs, associated thresholds, and the potential
Art 19bis of the draft text introduced late in the resumed IGC-5. Whether internationalization of decision-making at different tiers of the process,
or not states can object to, and thereby opt out of, a proposed ABMT is and (5) a ‘call in’ mechanism through which Parties could register
connected to the conversation around decision-making. Some states, concerns about an activity and associated EIA that is under the juris­
such as China [6], preferred decision-making through consensus, thus diction of another party. Although these issues are distinct, their reso­
rendering an objection procedure unnecessary. Others were open to the lution took the form of a package – mid-way through the first week, the
inclusion of an objection procedure, but only through a highly restrictive facilitator referred to a triangle of compromise, a “zone of possible
process that would require additional work from the objecting party, to agreement” consisting of resolutions to thresholds, the tiered approach
ensure that objections were well-considered and adequately explained. and decision-making, and the call-in mechanism.
This was a particularly strongly contested area of the text, so much so The debate over the “impacts” versus “activities” approach animated
that according to one representative of a regional coalition, “the dis­ much of the discussion during IGC-5, and persisted through IGC-5bis.
cussions held thus far have made no one happy, and I think this is a sign The basic question is whether EIAs are necessary for any activities,
we are going in the right direction.” Having an opt out mechanism to including those taking place in Areas Within National Jurisdiction
allow for progress in cases where consensus fails would prevent the (AWNJ), that may have an impact in ABNJ. Though this difference in
gridlock seen in other existing IFBs [30], and over the course of IGC-5bis opinion between the “impacts’’ and ”activities” approaches was long
this idea slowly gained traction. The final decision was to allow approval standing [14], Option II of the updated draft text, which would allow
by a ¾ majority when consensus fails and allow objections in writing national EIA processes on activities from AWNJ with potential impacts
within 120 days of a decision. Such objections require explanation of the in ABNJ, emerged as a compromise text. As in other aspects of the EIA
grounds (Article 23(5)), adoption of “alternative measures or ap­ section, the delegate from Trinidad & Tobago, speaking on behalf of
proaches that are equivalent in effect” (Article 23(6)), and renewal CARICOM and a larger ‘like-minded group’ that included the African
every three years (Article 23(8)).16 Group, PSIDS, Chile, Costa Rica, and the Philippines, led the way on
The idea of emergency measures was introduced in IGC-5 by New identifying and proposing useful compromises. In the case of activities in
Zealand, to address situations where a “natural phenomenon or human- ABNJ with potential for “substantial pollution of or significant and
caused disaster” is likely to have a significant impact on the marine harmful changes’’ to the marine environment in ABNJ (a threshold
environment and “cannot be managed in a timely manner” via the usual decided as part of the larger compromise), the final result was a
procedures of the BBNJ agreement or other relevant IFBs [43]. Emer­ requirement for EIAs either under the BBNJ process or under national
gency measures were initially included in a sub-paragraph of Article 48 processes, with no particular requirement that national processes be
on the Conference of Parties, but by the end of IGC-5 were moved to equivalent to the BBNJ EIA process. States applying national EIA pro­
their own provision in the section on ABMTs (Article 24 in final May 3rd cesses would, however, be held to requirements for monitoring,
2023 version), because other non-ABMT emergency measures were not reporting, and information sharing.
seen as within the competence of the COP to adopt. Some cleaning up of Comparison between BBNJ EIA procedures and those of other IFBs
this provision took place during IGC-5bis, such as removal of an (for the purpose of assessing non-BBNJ EIAs) remained an outstanding
ambiguous reference to “an activity” as a potential trigger. Much of the issue into the second week. EIAs are generally considered a requirement
progress towards consensus took place in informal consultations led by under customary international law, and any EIA regime in the ABNJ
Victoria Hallum of New Zealand, with advances being reported by the would be built on and integrated with existing IFBs, including UNCLOS
Facilitator Renée Sauvé in plenary sessions. One of the final outstanding [31,38]. Existing regional and sectoral institutions, such as RFMOs, the
issues related to the threshold for invoking emergency ABMTs, with ISA, and IMO have their own processes for assessing environmental
references to “natural phenomenon or human-caused disaster” provok­ impacts. But one objective of the EIA part of the BBNJ agreement is to
ing expressions of uncertainty about what might precisely constitute an “Achieve a coherent environmental impact assessment framework for
emergency situation. As in the EIA section, some disagreement revolved activities in [ABNJ].” What does coherence look like, and how could it
around different options for the thresholds for triggering emergency be achieved? The key point of contention has been the metric of com­
measures, with the delegates eventually settling on “serious or irre­ parison between the BBNJ and other EIA processes, as a means to ensure
versible harm” over “significant adverse impact”. that the EIA process undertaken is ‘good enough’ compared to the BBNJ
standards. Options in the updated draft text included “functionally or
substantively equivalent” and/or “comparably comprehensive,
including with respect to such elements as the assessment of cumulative
impacts.” Compromise was reached by eliminating all qualifiers and

16
Article numbers are from May 3rd 2023 version of the final agreement.
17
“There is only one ocean, there is not a place where we can do more things
or less things. [.] We could have kept UNCLOS but we decided that was not
enough, that is why we are here. So to always come back to the threshold in
UNCLOS is really not what we are supposed to be doing. Always going back to
UNCLOS could be dangerous.” –Delegate from a developed state on the first day
of informal informals on EIAs at IGC5bis

6
E. Mendenhall et al. Marine Policy 155 (2023) 105686

descriptors in favor of the simple (and ambiguous) phrase “is equiva­ conversation, and the UDT included options for “financial and other,”
lent.” This compromise paralleled the one reached for the question of the “financial know-how,” and “fiscal.” Eventually, the delegates would
STB formulating “global minimum standards and guidelines” for EIAs. settle on “financial management,” which seemed to both capture the
During the first week, the like-minded group led by CARICOM agreed to intent of the article while making it clear that the financial support may
drop the “global minimum” in order to move past what had been a very not actually be of a monetary nature.
contentious topic in IGC-5. Another new debate focused on Article 45 (43 in May 3rd final
Resolution on the threshold for EIAs was tied up with the question of agreement version), (Additional) Modalities for the transfer of marine
adding a screening phase. The idea of a “preliminary assessment” and a technology, and the need to differentiate obligations and procedures
substantive threshold for conducting an EIA is well-established in depending on the type of technology concerned. A developed state
customary international law, although the precise details are highly delegate raised the issue that there were essentially two forms of tech­
ambiguous ([37], 3). The discussion on steps and thresholds spanned nology: technology that was readily available on the open market, that
Articles 22 (obligation to conduct EIAs), 24 (thresholds and factors for simply required the money to purchase, and technology that was held by
conducting EIAs), and 30 (process for EIAs). Support for Article 24(1) private industry as part of their research and development. They pro­
Option B, which used a single threshold (contained in UNCLOS) for a posed an Article 45(1alt) (which appeared in the UDT) that made a
single step (conducting an EIA), persisted until the end of the second distinction between the two, sparking a lively debate about what kind of
week. The Facilitator was able to announce agreement on the inclusion technologies specifically were seen as necessary under the BBNJ
of a screening phase with a lower threshold on the final Friday. agreement. The working text would eventually include a 1alt0, 1alt1,
Screenings would be conducted when an activity “may have more than a and 1alt2 of Article 45. Delegates worked hard to present a compromise
minor or transitory effect on the marine environment or the effects of the on Article 45 eventually settling on 1alt0, several joking that they had
activity are unknown or poorly understood.” After screening, EIAs are dreams about the treaty and about that paragraph in particular. The
required in the event that the activity “may cause substantial pollution final agreement does not distinguish two types of technology, but does
or significant and harmful changes to the marine environment.”18 include protections such as “due regard for…the rights and duties of
holders, suppliers, and recipients of marine technology” (Article 43(4) in
May 3rd 2023 version).
4.4. Capacity building and the transfer of marine technology The last major issue to be resolved was related to the above. Some
delegations, and one in particular, wanted biotechnology listed in
The section on CBTMT19 was generally understood as the most near Article 44(1) as a type of marine technology and thus part of the
completion, with the fewest remaining brackets, options, and funda­ agreement. Other states did not approve of biotechnology being singled
mental disagreements. This may be in part due to the fact that there is out, claiming it gave biotechnology undue weight in the agreement to be
general agreement on the importance of technology in ABNJ [25] and mentioned in this specific manner. Eventually, the compromise was to
the necessity of assisting developing countries in carrying out BBNJ remove the mention of biotechnology from 44(1) and move it to Article
obligations (De Santo et al., 2019; [8,10]). Developing countries 1 under the definition of marine technology. Such compromise, how­
continued to emphasize the need for this section to move beyond the ever, caused “heavy hearts” from the proponents of the inclusion of
voluntary, and generally unsuccessful, provisions for technology trans­ biotechnology, despite reassurance from other delegations that in some
fer contained in UNCLOS Part XIV [45]. Discussions revolved around way this was a better conclusion for them. 21
finalization of the articles for modalities and types of CBTMT, and the
requirements for monitoring and review.20 A major and consistent point 5. “The ship has reached the shore” but will it be able to dock?
of contention throughout the negotiations concerned the verbs used to
define the obligations for CB and TMT. Delegates landed on parties Recalling Peter Thomson’s congratulations22 to President Rena Lee
“within their capabilities, shall ensure” for CB and “shall cooperate to on steering the negotiation process to reach a multilateral agreement,
achieve” TMT. These phrases struck a balance between the stronger the key message to remember is that “Now the real work begins.”
“ensure” and “achieve” and the qualifiers “within their capabilities” and Scholars and practitioners alike began to turn their attention towards
“cooperate to.” implementation, even before the resumption of IGC-5 [9]. Imple­
New issues emerged around new proposals by developing states, mentation will be shaped by what happens directly after finalization of
such as the inclusion of financial capacity building in Art. 46(1). the agreement, how BBNJ bodies will be constituted, and under what
Developed state delegations preferred the removal of the word “finan­ conditions and mandates they will operate. The final week of negotia­
cial,” clearly fearing that this would turn into a demand for money. tions needed to resolve major topics, such as the identity and location of
Upon further discussion, it became clear that the idea was for assistance the secretariat, how often and where the COP will meet,
with building financial capacity within developing states. Such human decision-making procedures for the COP, the nature and utilization of
and educational resources are also vital parts of capacity building [13]. assessed contributions, the ratification threshold for entry into force, the
This was more palatable, and the discussion moved to proposed changes procedures for dispute settlement, and the procedures for amending
for this part of the draft, with “financial know-how” and “fiscal” being annexes. Parts I and VI-XII together create much of the institutional
introduced as compromises to the original text of “financial.” Multiple architecture that activates and animates the provisions of the BBNJ
delegations expressed their view that this was a productive agreement and answers these questions.
Article 66 on Ratification, approval, acceptance and accession details
the path towards bringing the ship to actual shore, the first steps after
18
In the May 3rd 2023 version, these were changed from Articles 22–28 finalization of the treaty. The BBNJ agreement will be open for accession
(obligation to conduct EIAs), 24–30 (thresholds and factors for conducting by States and regional economic integration organizations starting the
EIAs), and 30–31 (process for EIAs). day after the date on which the Agreement is closed for signature, and
19
“if we’re serious about those goals and if we’re serious about biodiversity will enter into force 120 days after the 60th State party has ratified and
being part of that solution, we need to be serious about invigorating this in­
strument with the language that allows the developing South to become the
partners that the developed North needs to solve the problems of climate
21
change and biodiversity loss, which is a problem that we in the global South Article 45 was changed to 42 in the May 3rd 2023 final version of the treaty
really didn’t create” - G77 member, 2/20 text.
20 22
Discussions are on the December 22nd 2022 version. Updated article “The COP can decide anything, they can decide anything” – Developed state
numbers in the May 3rd 2023 version are specified. representative, informal on cross-cutting issues, 2/20/2023

7
E. Mendenhall et al. Marine Policy 155 (2023) 105686

acceded to it (Article 68). Once it enters into force, however, the COP, Table 2
which will be tasked with substantial functions for the implementation Powers and functions of the COP in the different packages – May 3rd 2023
of the BBNJ agreement. While in previous analyses we focused on other version.
institutional bodies created by the BBNJ agreement, such as the Scien­ Part of the treaty text Article Related to
tific and Technical Body and clearinghouse mechanism, at this final General provisions 6 Without prejudice
stage, the modalities and expectations for the COP are especially MGR 14: (2(h)), 6, Fair and equitable sharing of benefits
important to highlight. 7,7 (d), 8, 9
The number and nature of decision-making functions assigned to the and 10.
15: 2, 3 (f), 4 Access and benefit sharing committee
COP in the agreement is important to the success of the treaty, for two
(c) and 6. (ABSC)
reasons. The first reason relates to reaching consensus on a final 16: 1 and 3 Monitoring and transparency
agreement, which states can and will ratify. Assigning functions and ABMT 18 Areas of Application
decisions to the COP can be a means of ‘kicking the can down the road’ 19: 5 and 6 Proposals
on contentious issues, allowing delegates to reach consensus on the 21: 7 and 8 Consultations on and assessments of
proposals
content of the BBNJ agreement. This essentially excludes controversial 22: 1–7 (all) Establishment of ABMT, including
items from the negotiations. The flip side of this is the risk that states will MPAs
not consent to future decisions on those issues. Indeed, one major 23: 2, 3, 7 and Decision making
developed state repeatedly expressed concern about being bound by 10
24: 1, 3, 4 and Emergency measures
future decisions made by a COP, which they could not predict in
5
advance. Despite that risk, the pattern of ‘kicking the can’ seems to have 25: 4 and 5 Implementation
occurred. At least one developed maritime state made the point 26: 1, 2, 4 and Monitoring and Review
explicitly, that delegates should “stick with the current text and let the 5
COP decide these issues in the future” because “the more text we add, EIA 29: 2 Relationship between this Agreement
and EIA processes under relevant
the more questions it raises.” And indeed, the COP has been assigned
instruments and frameworks and
significant decision-making functions across the agreement (Table 2). relevant global, regional, subregional,
The COP is mentioned 119 times in the draft treaty text from March and sectoral bodies
27th, 2023. 34: 4 Decision making
37: 2 Review of authorized activities and
The second reason COP functions and decisions matter to the success
their impacts
of the BBNJ agreement concerns whether it can actually achieve the 38: 1–2 Standards and/or guidelines to be
goals of conservation and sustainable use. Whether and how the COP is developed by the STB related to EIA
able to make good decisions is critical to the effective operation of the 39: 2 and 4 Strategic Environmental Assessments
agreement. Table 2 catalogs all the important functions assigned to the (SEA)
CBTMT 44:3 Types of CBTMT
COP. Who ratifies the agreement (and formally joins the COP), what the
45: 2–3 Monitoring and review
COP decides for rules of procedure, and how it fleshes out the modalities 46: 2–3 CBTMT Committee
of subsidiary BBNJ bodies will all be essential for determining whether Institutional 47: 1–8 (all) Conference of the Parties
the COP will be effective. Arrangements
48: 1–4 (all) Transparency
What we know now is that the COP will consist of the States Parties
49: 2 and 4 Scientific and Technical Body (STB)
to the BBNJ agreement and will convene no less than one year (Article 50: 1 and 4 (a- Secretariat
47(2)) after the entry into force of the treaty. It will have ordinary f)
meetings at regular intervals, and extraordinary meetings when neces­ 51: 2, 3(g), 4 Clearing House Mechanism
sary. The COP will meet at the location of the Secretariat (to be deter­ Financial Resources 52: 4(a), 5, 6 Funding
and Mechanisms (e), 9–11,
mined) or at the U.N. headquarters, and decide (via consensus) on rules
14–16
of procedure and financial rules during its first meeting. The institu­ Implementation and 54 Monitoring and Implementation
tional form of the BBNJ COP reflects general trends whereby COPs “have Compliance
come to be central venues for international law-making activities around 55: 2–3 Implementation and compliance
committee
collective concerns” (Brunnée [4], 569). The COP is notable among
Final provisions 72:1 Amendment
BBNJ bodies also because of its modalities for decision-making, which 74:3 Annexes
were an issue of significant contention during IGC-5bis, with some states
pushing for exclusive consensus based decision-making, and others
proposing specific voting thresholds as a fall-back option if consensus As noted in the introduction, the research capacity focused on the
building failed. Compromises led to a complicated provision delineated BBNJ has expanded rapidly, as evidenced by the trends in related pub­
in detail under Institutional Arrangements. lications. During the negotiations, delegates often referred to learning
from the lessons of the past in ocean governance, particularly from the
6. BBNJ research agendas inadequacies of UNCLOS. Now, the BBNJ negotiations are part of the
past, which we can still learn lessons from. As attention turns to the
The BBNJ agreement is a remarkable achievement, despite its flaws implementation process, we urge researchers to focus also on the
and ambiguities. The BBNJ universe – including process, participants, negotiation process detailed here. Examples of potential research
institutions, and outcomes – will be an important topic for social science questions include: In what ways were the negotiations (in)equitable, and
research and legal analysis for many years to come. Although the how did that affect the agreement? How transparent were the negotia­
negotiation modalities often obstructed documentation, there is a tions, and how did transparency affect negotiation dynamics? To what
wealth of data available through recordings, text proposals, statements, degree, and in what ways, were the negotiations influenced by private
interviews, conference reports, and secondary literature. At least three actors, including industry, scientists, and environmental groups? Who
databases of BBNJ interventions exist, and as the agreement is finalized were the critical leaders behind the scenes, and what made them so
and open for signature, this data will become open-access. The operation effective? How did the intervention of President Rena Lee alter negoti­
of the COP and associated BBNJ bodies will entail its own processes and ation process and outcomes? The BBNJ is a rich and well-documented
outcomes, shaped by both the strictures of the treaty and the partici­ case of multilateral negotiations, and future research can make an
pation of its members. important contribution to many different literatures and audiences.

8
E. Mendenhall et al. Marine Policy 155 (2023) 105686

CRediT authorship contribution statement [16] Arne Langlet, B.M.Vadrot Alice, Not ‘undermining’ who? Unpacking the emerging
BBNJ regime complex, Mar. Policy (2023), 105372, https://doi.org/10.1016/j.
marpol.2022.105372.
Elizabeth Mendenhal.: Conceptualization, Methodology, Investi­ [17] Deyi Ma, Jietao Zhou, The binding force of the BBNJ agreement on third parties,
gation, Data curation, Writing – original draft, Writing – review & Ocean Coast. Manag. 212 (2021), 105818, https://doi.org/10.1016/j.
editing. Rachel Tiller: Conceptualization, Methodology, Investigation, ocecoaman.2021.105818.
[18] Ted McDorman, Between Stability and Change in the Law of the Sea Convention:
Data curation, Writing – original draft, Writing – review & editing. Subsequent Practice, Treaty Modification, and Regime Interaction, in: R.
Elizabeth Nyman: Investigation, Data curation, Writing – original draft. Donald Rothwell, G.Oude Elferink Alex (Eds.), The Oxford Handbook of the Law of
the Sea, Oxford University Press, New York, NY, 2015, pp. 181–202.
[19] Carole McGranahan, What is ethnography? Teaching ethnographic sensibilities
Data Availability without fieldwork, Journal 4 (2015), https://doi.org/10.22582/ta.v4i1.421.
[20] Elizabeth Mendenhall, The ocean governance regime: international conventions
The authors do not have permission to share data. and institutions, in: Paul G. Harris (Ed.), Climate Change and Ocean Governance:
Politics and Policy for Threatened Seas, first ed., Cambridge University Press,
Cambridge, 2019, pp. 27–42, https://doi.org/10.1017/9781108502238.002.
Acknowledgements [21] Elizabeth Mendenhall, Elizabeth De Santo, Mathias Jankila, Elizabeth Nyman,
Rachel Tiller, Direction, not detail: progress towards consensus at the fourth
intergovernmental conference on biodiversity beyond national jurisdiction, Mar.
The authors acknowledge funding from Horizon2020 project Policy 146 (2022), 105309, https://doi.org/10.1016/j.marpol.2022.105309.
numbers 774499, 817806, 101094065 and Norwegian Research Council [22] Elizabeth Mendenhall, Elizabeth De Santo, Elizabeth Nyman, Rachel Tiller, A soft
project nr 321334. treaty, hard to reach: the second inter-governmental conference for biodiversity
beyond national jurisdiction, Mar. Policy 108 (2019), 103664, https://doi.org/
10.1016/j.marpol.2019.103664.
References [23] Elizabeth Mendenhall, Kahlil Hassanali, The BBNJ agreement and liability, Mar.
Policy 150 (2023), 105549, https://doi.org/10.1016/j.marpol.2023.105549.
[24] Fernanda Millicay, Marine genetic resources of areas beyond national jurisdiction
[1] Andrew Bennett, in: Jeffrey T. Checkel (Ed.), Process Tracing: From Metaphor to
and intellectual property rights, in: Tomas Heidar (Ed.), New Knowledge and
Analytic Tool, Cambridge University Press, Cambridge, 2014, https://doi.org/
Changing Circumstances in the Law of the Sea, Brill | Nijhoff, 2020, pp. 65–78,
10.1017/CBO9781139858472.
https://doi.org/10.1163/9789004437753_006.
[2] David S. Berry, Unity or fragmentation in the deep blue: choices in institutional
[25] Stephen Minas, Marine technology transfer under a BBNJ agreement: a case for
design for marine biological diversity in areas beyond national jurisdiction, Front.
transnational network cooperation, AJIL Unbound 112 (2018) 144–149, https://
Mar. Sci. 8 (2021), 761552, https://doi.org/10.3389/fmars.2021.761552.
doi.org/10.1017/aju.2018.46.
[3] Robert Blasiak, Jean-Baptiste Jouffray, Diva J. Amon, Joachim Claudet,
[26] Erik J. Molenaar, Multilateral creeping coastal state jurisdiction and the BBNJ
Paul Dunshirn, Peter S.øgaard Jørgensen, Agnes Pranindita, Colette C.C. Wabnitz,
negotiations, Int. J. Mar. Coast. Law 5 (2021) 1–54, https://doi.org/10.1163/
Erik Zhivkoplias, Henrik Österblom, Making marine biotechnology work for people
15718085-BJA10042.
and nature, Nat. Ecol. Evol. (2023), https://doi.org/10.1038/s41559-022-01976-
[27] Natalie Y. Morris-Sharma, BBNJ and MGRs: practical solutions for benefit-sharing,
9.
in: Tomas Heidar (Ed.), New Knowledge and Changing Circumstances in the Law of
[4] Jutta Brunnée, Common Areas, Common Heritage, and Common Concern, in:
the Sea, Brill | Nijhoff, 2020, pp. 79–98, https://doi.org/10.1163/
Daniel Bodansky, Jutta Brunnée, Ellen Hey (Eds.), The Oxford Handbook of
9789004437753_007.
International Environmental Law, by Jutta Brunnée, Oxford University Press, 2008,
[28] Joanna Mossop, Clive Schofield, Adjacency and due regard: the role of coastal
https://doi.org/10.1093/oxfordhb/9780199552153.013.0023.
states in the BBNJ agreement, Mar. Policy (2020), 103877, https://doi.org/
[5] Elizabeth M. De Santo, Elizabeth Mendenhall, Elizabeth Nyman, Rachel Tiller,
10.1016/j.marpol.2020.103877.
Stuck in the middle with you (and not much time left): the third intergovernmental
[29] Clement Yow Mulalap, Tekau Frere, Elise Huffer, Edvard Hviding, Kenneth Paul,
conference on biodiversity beyond national jurisdiction, Mar. Policy 117 (2020),
Anita Smith, Marjo K. Vierros, Traditional knowledge and the BBNJ instrument,
103957, https://doi.org/10.1016/j.marpol.2020.103957.
Mar. Policy (2020), 104103, https://doi.org/10.1016/j.marpol.2020.104103.
[6] Wen Duan, China’s participation in the discussion on marine protected areas in the
[30] Emily S. Nocito, Jenna Sullivan-Stack, Elizabeth P. Pike, Kristina M. Gjerde,
BBNJ negotiations and its implications, Mar. Policy 145 (2022), 105266, https://
Cassandra M. Brooks, Applying marine protected area frameworks to areas beyond
doi.org/10.1016/j.marpol.2022.105266.
national jurisdiction, Sustainability 14 (10) (2022) 5971, https://doi.org/10.3390/
[7] Veronica Frank, Options for marine protected areas under a new agreement on
su14105971.
marine biodiversity of areas beyond national jurisdiction, in: Heidar Tomas (Ed.),
[31] Alex G. Oude Elferink, Artificial Islands, Installations, and Structures. The Max
New Knowledge and Changing Circumstances in the Law of the Sea, Brill | Nijhoff,
Planck Encyclopedia of Public International Law, edited by Rüdiger Wolfrum and
2020, pp. 101–123, https://doi.org/10.1163/9789004437753_008.
Max-Planck-Institut für Ausländisches und Internationales Privatrecht, Oxford
[8] Iwao Fujii, Miko Maekawa, Nozomi Shimizu, Naohisa Kanda, Nariaki Mikuni,
University Press, Oxford; New York, 2012, pp. 661–665.
Kazunobu Suzuki, Izumi Tsurita, Miriam C. Balgos, Marjo K. Vierros, Implications
[32] Alex Oude Elferink, Baine P. Kerr, Finding a home for BBNJ – the CBD, the LOSC,
of existing capacity building efforts for the conservation and sustainable use of
and the General Assembly: Complementary Alternatives?”, in: Lucia Vito De, Alex
marine biological diversity of areas beyond national jurisdiction: a case study of
Oude Elferink, Lan Ngoc Nguyen (Eds.), International Law and Marine Areas
Japan, Mar. Policy 138 (2022), 105004, https://doi.org/10.1016/j.
beyond National Jurisdiction, Brill | Nijhoff, 2021, pp. 174–204, https://doi.org/
marpol.2022.105004.
10.1163/9789004506367_008.
[9] Kristina M. Gjerde, Nichola A. Clark, Clément Chazot, Klaudija Cremers,
[33] Raul Pacheco-Vega, Using ethnography in comparative policy analysis: premises,
Harriet Harden-Davies, Daniel Kachelriess, Cymie R. Payne, et al., Getting beyond
promises and perils, in: B. Guy Peters, Guillaume Fontaine (Eds.), Handbook of
yes: fast-tracking implementation of the United Nations agreement for marine
Research Methods and Applications in Comparative Policy Analysis, Edward Elgar
biodiversity beyond national jurisdiction, Npj Ocean Sustain. 1 (1) (2022) 6,
Publishing, 2020, https://doi.org/10.4337/9781788111195.00027.
https://doi.org/10.1038/s44183-022-00006-2.
[34] Ashley J. Roach, The BBNJ process: gaps and prospects for success, Ocean Yearb.
[10] Harriet Harden-Davies, Diva J. Amon, Tyler-Rae Chung, Judith Gobin,
Online 35 (1) (2021) 52–84, https://doi.org/10.1163/22116001_03501004.
Quentin Hanich, Kahlil Hassanali, Marcel Jaspars, et al., How can a new UN ocean
[35] Alex D. Rogers, Amy Baco, Elva Escobar-Briones, Duncan Currie, Kristina Gjerde,
treaty change the course of capacity building?”, Aquat. Conserv.: Mar. Freshw.
Judith Gobin, Marcel Jaspars, et al., Marine genetic resources in areas beyond
Ecosyst. 32 (5) (2022) 907–912, https://doi.org/10.1002/aqc.3796.
national jurisdiction: promoting marine scientific research and enabling equitable
[11] Kahlil Hassanali, Internationalization of EIA in a new marine biodiversity
benefit sharing, Front. Mar. Sci. 8 (2021), 667274, https://doi.org/10.3389/
agreement under the law of the sea convention: a proposal for a tiered approach to
fmars.2021.667274.
review and decision-making, Environ. Impact Assess. Rev. 87 (2021), 106554,
[36] Yubing Shi, Settlement of disputes in a BBNJ agreement: options and analysis, Mar.
https://doi.org/10.1016/j.eiar.2021.106554.
Policy 122 (2020), 104156, https://doi.org/10.1016/j.marpol.2020.104156.
[12] Kahlil Hassanali, Negotiating the BBNJ agreement: exploring the Caribbean
[37] Yan Song, The obligation of EIA in the international jurisprudence and its impact
community’s engagement from a blue economy perspective with special focus on
on the BBNJ negotiations, Sustainability 15 (1) (2022) 487, https://doi.org/
environmental impact assessment provisions, World Marit. Univ. Ph. D. Diss. 19
10.3390/su15010487.
(2022).
[38] Jinyuan Su, The adjacency doctrine in the negotiation of BBNJ: creeping
[13] Alf H.åkon Hoel, Capacity building in marine science–added value of the BBNJ?”,
jurisdiction or legitimate claim?”, Ocean Dev. Int. Law 52 (1) (2021) 41–63,
in: Myron H. Nordquist, Ronán Long (Eds.), Marine Biodiversity of Areas beyond
https://doi.org/10.1080/00908320.2020.1852841.
National Jurisdiction, Brill | Nijhoff, 2021, pp. 213–230, https://doi.org/10.1163/
[39] Prue Taylor, The common heritage of mankind: a bold doctrine kept within strict
9789004422438_012.
boundaries, in: David Bollier, Silke Helfrich (Eds.), The Wealth of the Commons: A
[14] Fran Humphries, Harriet Harden-Davies, Practical policy solutions for the final
World beyond Market and State, Amherst, Mass: Levellers Press, 2012.
stage of BBNJ agreement negotiations, Mar. Policy (2020), 104214, https://doi.
[40] Ina Tessnow-von Wysocki, Alice B.M. Vadrot, Governing a divided ocean: the
org/10.1016/j.marpol.2020.104214.
transformative power of ecological connectivity in the BBNJ negotiations, Polit.
[15] Eduardo Jiménez Pineda, The dispute settlement system of the future third
Gov. 10 (3) (2022), https://doi.org/10.17645/pag.v10i3.5428.
UNCLOS implementation agreement on biodiversity beyond national jurisdiction
[41] Rachel Tiller, Elizabeth De Santo, Elizabeth Mendenhall, Elizabeth Nyman, The
(BBNJ): a preliminary analysis, Paix Et. Secur. Int. (9) (2021) 1–18, https://doi.
once and future treaty: towards a new regime for biodiversity in areas beyond
org/10.25267/Paix_secur_int.2021.i9.1401.

9
E. Mendenhall et al. Marine Policy 155 (2023) 105686

national jurisdiction, Mar. Policy 99 (2019) 239–242, https://doi.org/10.1016/j. [44] A.B.M. Vadrot, A. Langlet, I. Tessnow-von Wysocki, Who owns marine
marpol.2018.10.046. biodiversity? Contesting the world order through the ‘common heritage of
[42] Rachel Tiller, Elizabeth De Santo, Elizabeth Mendenhall, Elizabeth Nyman, humankind’ principle, Environ. Polit. 23 (2021) 1–25, https://doi.org/10.1080/
Ian Ralby, Wealth blindness beyond national jurisdiction, Mar. Pollut. Bull. 151 09644016.2021.1911442.
(2020), 110809, https://doi.org/10.1016/j.marpolbul.2019.110809. [45] Marjo K. Vierros, Harriet Harden-Davies, Capacity building and technology
[43] Rachel Tiller, Elizabeth Mendenhall, Elizabeth De Santo, Elizabeth Nyman, Shake transfer for improving governance of marine areas both beyond and within
it off: negotiations suspended, but hope simmering, after a lack of consensus at the national jurisdiction, Mar. Policy (2020), 104158, https://doi.org/10.1016/j.
fifth intergovernmental conference on biodiversity beyond national jurisdiction, marpol.2020.104158.
Mar. Policy 148 (2023), 105457, https://doi.org/10.1016/j.marpol.2022.105457.

10