Dispute Settlement Under the BBNJ Agreement: Accepting Part XV of the UNCLOS with a Twist

Introduction

On 4 March 2023, the Implementing Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) under the United Nations Convention on Law of the Sea (UNCLOS) was adopted after nearly two decades of negotiations. As the third ‘child’ of UNCLOS, the Agreement acquires from its parents and siblings some core characteristics but is also endowed with its own characteristics. With regards to dispute settlement, this means the BBNJ Agreement, similarly to its sister Fish Stocks Agreement, incorporates the dispute settlement system of Part XV of UNCLOS, while introducing new conditions and limitations for the availability of compulsory procedures. This post provides a first assessment of how dispute settlement under the BBNJ Agreement differs from UNCLOS and the implications of these differences. The article numbering used in this blog post is based on the advanced, unedited text adopted on 4 March 2023.

Dispute settlement under UNCLOS

The dispute settlement system under Part XV combines unilateral recourse to compulsory dispute settlement with considerable flexibility. Article 288(1) confers upon courts and tribunals jurisdiction ‘over any dispute concerning the interpretation or application of the Convention’. However, compulsory procedures become available only after States met the conditions imposed by Part XV, Section 1. Moreover, under Section 3 of Part XV, certain types of disputes are excluded from their jurisdiction as per Articles 297 and 298.

UNCLOS tribunals have not always been consistent in interpreting the conditions for the exercise of their jurisdiction. In particular, they have adopted different approaches in interpreting Article 288(1), thus leaving unclarified the exact scope of compulsory jurisdiction. Similarly, diametrically opposed interpretations of Article 281 of Section 1 have been proposed, as have different tests to define the ‘military activities’ exception under Article 298(1). At times, the tribunals have adopted interpretations that may not have been foreseen by the drafters of the Convention, as illustrated by the interpretation of Article 297(1) or the basis upon which the International Tribunal for the Law of the Sea (ITLOS) affirmed its general advisory jurisdiction. As a result, there is a certain level of uncertainty regarding the scope of compulsory jurisdiction under Part XV and prompted some criticisms that tribunals have overstepped their jurisdictional parameters.

Dispute settlement under the BBNJ Agreement

Against this background, the negotiations of the BBNJ Agreement witnessed both endorsement of the institutional setup of as well as some level of reluctance against Part XV of UNCLOS. Part IX on Settlement of Disputes can be seen as a compromise that reflects the different views of States on the scope of compulsory dispute settlement. Article 55, paragraphs (1) and (1)bis make the dispute settlement system of Part XV of UNCLOS available under the Agreement, not only for States parties to the UNCLOS but also for those which are not. The rest of Part IX then introduces some additional provisions.

The first article of this Part, currently numbered 54 ante, provides that “Parties shall cooperate to prevent disputes”. While this provision probably drew inspiration from and thus resembles Article 28 of the Fish Stocks Agreement, it does not specify the content of this duty similar to its sister agreement. The general wording of this article raises questions regarding its exact implications: does it entail an additional obligation to cooperate once it emerges that a situation may evolve into a dispute? When does the obligation to cooperate terminate, when a dispute has actually arisen or until it is resolved? What will be the implications of a breach of this duty to cooperate? Article 54 ante may result in slowing down the process that eventually will lead to compulsory proceedings but at the same time may expedite the crystallization of the dispute and therefore the process of settlement. The impact of article 54 ante will thus depend on whether it will be interpreted as a pre-condition for the exercise of jurisdiction, or as a stand-alone obligation.

With regards to how compulsory dispute settlement under the BBNJ Agreement may differ as compared to UNCLOS, paragraphs 7 and 8 of Article 55 are pertinent. Paragraph 7 provides that the provisions of article 55:

shall be without prejudice to the procedures on the settlement of disputes that Parties have agreed to as participants in a relevant legal instrument or framework, or as member of a relevant global, regional, subregional or sectoral body concerning the interpretation and application of such instruments and frameworks.

Articles 281 and 282 of UNCLOS – which are applicable to the BBNJ Agreement by virtue of Article 55(1) and 1(bis) – carve out exceptions to the applicability of Part XV of the Convention. What does paragraph (7) accomplish as compared to these articles? First, paragraph 7 only refers to disputes concerning the interpretation and application of other instruments and frameworks. As such, paragraph 7 concerns the impact of Part XV under the Agreement on external dispute settlement mechanisms. Articles 281 and 282, on the other hand, focus more on the impact of external agreements on Part XV. Second, the without prejudice provision of paragraph 7 may have broader implications than articles 281 and 282. It may be read as implying that dispute settlement procedures under other instruments and frameworks are insulated from the effect of the outcome of a related dispute settlement procedure under the BBNJ Agreement.

Paragraph 8 of article 55 excludes the consideration of disputes concerning the legal status of areas within national jurisdiction and sovereignty claims or other rights over continental or insular land territory or a claim thereto from the jurisdiction of courts and tribunals under the Agreement. The explicit exclusion of sovereignty disputes in paragraph 8 may be seen as a reaction to UNCLOS tribunals having left open the possibility of entertaining sovereignty disputes in the course of deciding law of the sea disputes, for example with the ‘ancillary’ and ‘weight of the dispute’ tests in the Chagos Marine Protected Area award. Article 55(8) has now shut that door of possibility.

Article 55(8)’s exclusion of disputes concerning the legal status of areas within national jurisdiction is not contained in UNCLOS. An expansive reading of the term ‘legal status’ might exclude the consideration of any matter related to how a coastal State defines its jurisdiction, and as such, the legal status of the coastal State’s maritime areas. However, such an expansive interpretation would seem to be contradicted by the fact that paragraph 8 also provides that “nothing in this paragraph shall be interpreted as limiting the jurisdiction of a court or tribunal under Section 2 Part XV of the Convention”. Jurisdiction under Part XV UNCLOS is defined by, among others, Article 297 of UNCLOS which excludes disputes with regard to the coastal State’s specific exercise of its sovereign rights or jurisdiction. Reading paragraph 8 in the light of Article 297 would mean that an expansive interpretation of the term ‘legal status’ to justify blocking the jurisdiction of UNCLOS courts and tribunals is untenable.

An important institutional innovation of the Agreement, as compared to UNCLOS, can be found in Article 48(6) which confers upon the Conference of the Parties (COP) the power to seek “an advisory opinion on a legal question on the conformity with this Agreement of a proposal before the Conference of the Parties on any matter within its competence” from the ITLOS. No such competence to seek advisory opinions is accorded to the Meeting of States Parties to UNCLOS, which has a very limited mandate as compared to the Conference of the Parties to the Agreement. The explicit recognition of the advisory jurisdiction of ITLOS is significant in light of the controversy surrounding ITLOS’s decision to establish advisory jurisdiction in the Advisory Opinion on IUU Fishing. At the same time, the fact that the COP is given the power to request an advisory opinion only with regard to a specific type of question, ie the conformity of a proposal before the COP with the Agreement, is arguably an attempt to circumscribe the ITLOS’s scope of the advisory function in relation to the BBNJ Agreement. This seems to be in response to some of the criticism regarding ITLOS’s advisory jurisdiction that is now resurfacing with the pending advisory request on climate change.

Concluding remarks

The additional provisions of the BBNJ can be seen as an attempt to tinker with the compromise on the availability of compulsory dispute settlement contained in the Convention and the judiciary’s practice that has operationalised this compromise. At the same time, the dispute settlement clauses of the BBNJ Agreement itself also indicate that it seeks to reconcile opposing views on the scope of compulsory dispute settlement. But, most importantly, compulsory dispute settlement will be available under the BBNJ Agreement and thus, it will remain the responsibility of courts and tribunals to delineate the scope of their jurisdiction under the Agreement.