- An Overview of the Negotiation Process
Last March 4, 2023, Rena Lee, President of the Intergovernmental Negotiating Conference on an Agreement on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (the BBNJ Agreement), announced with emotion and symbolic words the happy outcome of the process: “the ship has reached the shore”. After 20 years of work, including 6 years of formal negotiations and 36 uninterrupted hours of final consultations behind closed doors, all outstanding issues had been overcome and the President was able to present a text reflecting the end of the negotiation. The process was successfully completed, pending final editorial refining of the text, translation into the six official languages of the United Nations, and formal adoption of the Agreement, which is scheduled for June 2023.
The negotiation process now behind us has been particularly difficult, not only because of the technical complexity and high political tension of the subject, but also because of the way in which the text has been elaborated. In fact, the preparatory work was carried out using a technique based on the compilation of thematic elements and a very detailed regulatory approach that sought to resolve in advance all the problems that the agreement might raise in order to make it future proof. The combination of these two elements, together with a certain academic orientation of some exercises in the negotiation process, gave rise to repetitive and time-consuming debates. In the end, many articles that had been discussed for long hours were either deleted or referred to the Conference of the Parties (COP) for further consideration. This procedural solution, which could have avoided many fruitless discussions, was not used more widely because of the wish of some negotiating States to settle the most contentious issues from the outset (according to their preferences) without waiting for them to be raised at the COP. In addition, the successive draft texts that served as a basis for negotiation showed some systematic flaws and unclear wording of many articles, which led to superfluous discussions. The text as a whole was plagued with brackets and multiple options that made it difficult to read and understand.
On the other hand, the Agreement covers a particularly complex and tensioned ocean space, the marine areas beyond national jurisdiction (ABNJ) comprising the high seas and the Area, which are characterized as “global commons”. This has provoked the irreducible collision between the principles of freedom of the high seas and common heritage of humankind applying in the Area which has been a major bone of contention among the negotiating groups. In addition, the relationship between marine areas beyond national jurisdiction and within national jurisdiction has raised countless debates concerning issues such as adjacency, the so-called “high seas pockets” (areas of the high seas fully surrounded by the EEZ of coastal States), and marine areas whose sovereignty or delimitation is controversial (disputed areas). Finally, the marine space covered by the Agreement is already partially occupied by numerous global and regional bodies whose relevant competences and functions must not be undermined. Such a host of highly complex political and legal problems have slowed down the completion of the negotiations.
- General provisions
General issues are specifically addressed in part I, although other provisions of a similar nature are covered elsewhere in the Agreement.
The general objective of the Agreement is to ensure the conservation and sustainable use of the marine biological diversity of areas beyond national jurisdiction, for the present and in the long term (Article 2). Therefore, the Agreement faces the difficult challenge of reconciling an environmental objective, the long-term conservation of marine biological diversity, with an economic objective, the sustainable use of marine biodiversity and marine genetic resources (MGR) in ABNJ.
The general “approaches and principles” set out in Article 7 reflect the most advanced approaches to marine ecosystem conservation, including integrated management, ecosystem resilience and restoration, the precautionary principle or approach, as appropriate, the principle of equity and fair benefit-sharing, and the polluter pays principle. The article also calls for the use of the best scientific information and traditional knowledge of Indigenous Peoples and local communities and recognizes the special circumstances of less developed countries, including small islands and landlocked States.
The stale conflict between the principle of common heritage of humankind and freedom of scientific research and other freedoms of the high seas has been settled by including the two concepts among the guiding fundamentals of the Agreement. This integrative solution that may act as a time changer in overcoming antagonistic and mutually exclusive ideological approaches can be interpreted in two ways. Read in a linear way, the inclusion of both principles in article 7 could mean that freedom of the high seas will apply to biological resources of the water column whereas the principle of common heritage of humankind will apply to biological resources of the seabed of the Area. But read in a more integrative vein, it could mean that both principles equally project their effects over the water column belonging to the high seas and over the seabed of the Area. The principles of freedom of the high seas and common heritage of humankind, traditionally seen as conflicting and irreducible, can then operate in an integrated manner for the conservation of biodiversity and the sustainable use of biological and genetic resources in all marine areas beyond national jurisdiction.
Other articles of this part address general issues such as the relationship between the Agreement and the UN Convention on the Law of the Sea, 1982, (the Convention) and relevant instruments, frameworks and bodies (IFB) (article 5), the lack of effects of the Agreement as a basis for asserting or denying any claims of sovereignty, sovereign rights or jurisdiction and disputes thereto (article 6), and international cooperation (article 8). The provisions on vessels and aircraft enjoying sovereign immunity, finally covered in an article entitled “exceptions”, are very extensive and rather opaquely worded: they lay down that the Agreement does not apply to warships and military aircraft or to other State vessels or aircraft used for governmental services, except when the latter carry out “non-military” activities relating to MGR within the framework of Part II (Articles 4 and 10, 3).
- The utilization pillar: sustainable use of marine genetic resources and fair and equitable sharing of benefits
The provisions of Part II specifically address sustainable use of marine genetic resources and equitable benefit-sharing.
For both developed and developing countries, this is a crucial issue, which each group views from a different perspective. In the background lays the fundamental fact that recent advances in microbiology and genetics have multiplied interest in research on genetic resources found in marine areas beyond national jurisdiction which are amenable to utilization for scientific and commercial purposes. The most significant components of such marine genetic resources are found in the seabed of the ocean particularly around the hydrothermal vents, cold water seeps, seamounts and deep-water coral reefs. So far, only few States and private entities have the financial means and sophisticated technologies needed to access the MGR of the seabed and neither the Convention nor the 1992 Biodiversity Convention and related Protocols provide any specific regulatory framework for their sustainable use.
a) Sustainable use of marine genetic resources
“Marine genetic resources” (MGR) means any marine, plant, animal, microbial or other material containing functional units of heredity and having actual or potential value (article 1, 8).
Despite its vital importance, the main basic elements relating to the sustainable use of marine genetic resources (are dealt with in part II in a rather elusive or veiled manner. Most terms regarding access, acquisition, ownership, intellectual property, exploitation, and other elements relating to economic uses of MGR were either absent from the outset or have been subsequently removed from the text of the Agreement. Much too often, core legal concepts have been substituted by generic wording or euphemistic terms. Quite curiously, when stating the objectives of this part article 9 does not even mention the main one: the regulation of sustainable use of MGR.
Activities with respect to “sustainable use” of MGR comprise in situ collection and digital sequence information (DSI) collected or generated after the entry into force of the Agreement or before this date, except for Parties that make a written exception upon becoming a Party to the Agreement (opting out) (article 10). The provisions of part II do not apply to fishing activities or to fish and other living marine resources, except when caught for use as MGR (Article 10, 2).
According to the provisions of Article 11, in situ collection activities may be carried out by “all Parties” and natural and legal persons under their jurisdiction, which implicitly endorses the principle of “free and open access” postulated by developed countries. This drafting seems to exclude non-Parties to the Agreement and their natural and legal persons from activities relating to marine genetic resources in ABNJ. Although not unprecedented in conventional practice, the exclusion of third States from access and sustainable use of MGR in ABNJ may create difficulties in the future.
In any case, collection in situ of MGR shall be carried out with due regard for the rights and legitimate interests of coastal States in areas under their jurisdiction, as well as for the interests of all States and for the benefit of all humanity, particularly for advancing scientific knowledge and promoting conservation and sustainable use. Access to traditional knowledge associated with MGR that is held by Indigenous Peoples and local communities shall only take place with their free, prior and informed consent (article 13). Information relating to activities undertaken with respect to collection in situ, processing and digitalization ex situ, and utilization or commercialization of MGR by natural and juridical persons must be reported to the Clearing-House Mechanism under the very detailed conditions set forth in Article 12.
b) Fair and equitable sharing of benefits of marine genetic resources
As a counterpart to the freedom of access and utilization of MGR, which essentially favors developed countries, part II establishes a broad regime of fair and equitable sharing of benefits arising from MGR (Article 14).
The regime of MGR benefit-sharing is configured in extensive terms, since it includes the sharing of both non-monetary and monetary benefits, the inclusion of which was accepted by developed countries only at the last moment. Non-monetary benefits consist of participation in uses that do not pursue a direct economic objective, such as access to samples and sample collections, exchange of scientific data and information, and digital sequence information (DSI); also included in this group are benefits from capacity building and transfer of marine technology and other forms of participation as may be determined by the COP. Monetary benefits are those derived from the economic utilization of knowledge on marine genetic resources and digital sequence information, as well as from the commercialization of the products obtained. The COP, at its first meeting, shall determine the rate of the annual contributions by developed Parties to the special fund for the sharing of monetary benefits referred to in article 52, and thereafter shall decide by consensus or, failing that, for a 3/4 majority the final payments and their modalities as provided for in article 14, 7.
The beneficiaries of the sharing of monetary and non-monetary benefits arising from activities related to MGR are developing countries, in particular the least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States, archipelagic States and middle-income developing countries (article 9, b). The sharing of monetary benefits, which are earmarked to contribute to the conservation and sustainable use of marine biological diversity will be channeled through the financial mechanism for capacity-building and technology- transfer provided for in article 52 (article 14, 1 and 5).
To contribute to the proper functioning of the system, an access and benefit-sharing committee is established, which will receive periodic reports from the Parties and make recommendations to the COP (Article 15). The Clearing-House Mechanism, the access and benefit-sharing committee and the COP itself shall contribute to the monitoring and transparency of activities related to MGRs (Article 16).
- The conservation pillar: area-based management tools and environmental impact assessments.
To achieve the objectives of conservation and sustainable use of marine biodiversity in ABNJ, part III of the Agreement designs two main instruments: area-based management tools, including marine protected areas and environmental impact assessments. Other possible measures enunciated in the title of this part are not further defined or concretized in the text of the Agreement.
a) Area-based management tools
“Area-based management tools” (ABMT), which constitute the genus, are defined as “a tool for a geographically designed area through which one or several sectors of activities are managed with the aim to achieving particular conservation and sustainable use” (Article 1, 1). “Marine protected areas”, which constitute the species, means “a geographically defined marine area that is designed and managed to achieve specific long-term conservation objectives and that may allow, where appropriate, sustainable use provided it is consistent with the conservation objectives” (article 1, 9).
The difference between the two types of spatial planning management tools is not one of substance but of degree: area-based management tools seem more oriented towards the sustainable use of biological and genetic resources, while marine protected areas seem more oriented towards long-term conservation objectives. In any case, both types of spatial planning management tools have common conservationist objectives, as they seek to protect, preserve, restore and maintain biological diversity and ecosystems, with the additional aim of contributing to food security and other socio-economic and cultural objectives (Article 17).
Proposals to establish such management tools with regard to identified areas in ABNJ shall be submitted by States Parties, individually or collectively, and shall include the key elements outlined in Article 19.4, including a draft management plan. In the case of ABMT aiming primarily at the sustainable use of MGR, it seems reasonable to assume that the proposal should include, mutatis mutandis, the informative elements set out in Article 12. Proposal are subject to a strict regime of publicity, preliminary review by the Scientific and Technical Body (article 20), and notification to and consultation with all stakeholders who shall be invited to submit their views and concerns (the so called “call-in mechanism”) (article 21).
Decisions on the establishment of area-based management tools, including MPAs, shall be taken by the Conference of the Parties by consensus or, failing that, by a 3/4 majority (Articles 22 and 23). Once established, Parties shall ensure the implementation of ABMT/MPA and shall promote that other IFB adopt measures that support its implementation (article 25). Parties shall report to the COP on the monitoring and review of their effectiveness and, if necessary, the COP shall take decisions or recommendations on the amendment, extension or revocation of ABMT/MPA (Article 26).
The COP may adopt emergency measures necessary to respond to natural or human-caused disasters that may cause serious or irreversible damage, after consultation with the relevant instruments, legal frameworks and bodies (article 24).
b) Environmental impact assessments
The provisions relating to environmental impact assessments (EIA), although substantially reduced throughout the negotiation process, constitute the most extensive and detailed part of the Agreement.
Part IV stablishes an environmental impact assessment procedure of universal scope, which applies to the potential impacts of all activities under the jurisdiction of control of Parties that take place in marine areas beyond national jurisdiction (article 28). This very broad configuration of EIA, which is not limited exclusively to activities planned in application of the Agreement, goes beyond the logical (and legal) limits imposed by the principle of relativity of treaties. It may also create difficulties with respect to EIA carried out under other global and regional agreements whose competences shall not be undermined. The all-encompassing option adopted by the negotiators, although plausible from an environmental point of view, has made it necessary to establish complex provisions tending to exclude the obligation to carry out an environmental impact assessment in cases where an EIA has already been carried out in the framework of another legal instrument (Article 29, 4, 5 and 6). Overall, the provisions on environmental assessments set up a very complete, detailed and ambitious regime.
In spite of efforts at the negotiations to further internationalize EIA procedures, the regime stablished regulates EIA as a county-driven process whereby the Party that plans the activity retains full power of direction and decision for its implementation. In determining whether an EIA is required, a tiered approach is followed, which establishes different thresholds at different stages of the process. Where the planned activity may have more than a minor or transitory effect or effects unknown or poorly known (the Antarctic standard), the Party controlling the activity shall conduct a preliminary screening (Article 30, 1); and where in the light of the screening there are reasonable grounds to believe that the planned activity may cause substantial pollution or significant and harmful changes to the marine environment (the Convention standard) the Party shall conduct an EIA (Article 30, 1 b). The regime provides for public notification and consultation with potentially most affected States particularly in cases were planned activities affect areas of the high seas entirely surrounded by the EEZ of States (“high seas pockets”) (article 32). Parties shall ensure the publication of EIA reports that shall include, as a minimum, all the information stated in article 33 and shall give consideration to any comments made by the Scientific and Technical Body (article 34). After the EIA is completed, the Party is responsible for determining if the planned activity may proceed, taking full account of the mitigation or management measures set up in article 34. Impacts of authorized activities shall be monitored, reported to the CHM and the STB and reviewed by the authorizing Party following the detailed procedures stated in article 37. The standards and/or guidelines to be developed by the STB related to EIA are set up in article 38.
On strategic environmental assessments, whose obligatory implementation was not accepted by many negotiating States, article 39 states that Parties “shall consider” their implementation in plans and programs and the Conference of the Parties itself “may consider” their implementation in areas or regions that so require.
- The solidarity pillar: capacity building and transfer of marine technology
Capacity building and development and transfer of marine technologies (CB/TMT), covered in Part IV, are the instruments for assisting and supporting participation of developing countries in the activities of the Agreement (Article 40).
The provisions of this part are largely responsive to the requests of developing countries, but have a greater projection on capacity building than on the transfer of marine technology. This is clearly reflected in the provisions concerning the mandatory scope of the measures to be taken, as the Parties shall “ensure” capacity building and only “cooperate” to carry out the transfer of technology “as mutually agreed” (Article 42.1 and 43.2). Likewise, the modalities and conditions for CB/TMT activities identified in Article 44 and Annex II refer almost exclusively to capacity building, with minimal references to types of concrete measures for the transfer of marine technology.
In contrast, the general conditions to be met by measures for capacity building and transfer of marine technology are quite demanding, Measures to be adopted shall be supported by additional and predictable resources provided or facilitated by the Parties, respond to the needs and priorities of developing countries, be transparent and participatory, be guided by lessons learned, and not be duplicative or require burdensome reporting (Article 42). Furthermore, the “mutually agreed terms” for the transfer of marine technology shall be fair and most favorable, economically and legally viable, reliable, affordable, up-to-date and available in an accessible manner for developing countries. In return, the rights and legitimate interests of holders, providers and recipients of transferred technologies shall be taken into account (Article 43). As already mentioned, a specific fund is established in accordance with the provisions of Article 52 for the financing of CB/TMT measures to be adopted.
Actions developed for CB/TMT shall be monitored and reviewed through the committee on capacity building and technology-transfer, to which the Parties shall submit periodic reports which are non-onerous for developing States Parties.
- Institutional arrangements, financial mechanisms, implementation and compliance, and dispute settlement.
Part VI, on institutional arrangements, establishes the main bodies for the implementation of the Agreement: the Conference of the Parties, the Scientific and Technical Body, the Secretariat and the Clearing-House Mechanism. Other parts of the Agreement establish other specialized bodies such as the committee on access and benefit-sharing (Article 15) and the committee on capacity-building and transfer of technology (Article 46).
In carrying out its governing functions, the COP shall make the necessary decisions and recommendations which, except where the Agreement itself provides otherwise, shall be taken by consensus and, if consensus cannot be reached, by a 2/3 majority of the Parties present and voting on substantive matters and by simple majority on procedural matters. The COP may request advisory opinions from the International Tribunal for the Law of the Sea, provided that their subject matter does not concern matters within the competence of other global, regional, sub-regional or sectoral bodies or involve consideration of questions of sovereignty or other rights over continental or island territories or the status of areas under national jurisdiction (Article 47). Transparency and public dissemination of information on the proceedings of the COP shall be promoted and its meetings shall be open to the participation of States not party and other relevant stakeholders who request to participate as observers (Article 48).
An independent Secretariat is established under the authority of the COP, which at its first meeting shall adopt the necessary arrangements for its functioning and decide on its headquarters. Until this process is completed, the Secretariat functions will be provided by DOALOS. The Secretariat and the host State may conclude a headquarters agreement and the Secretariat shall enjoy legal capacity in the territory of the host State, which shall grant it the privileges and immunities necessary for the exercise of its functions (Article 50).
The Clearing-House Mechanism consists of an open access platform whose main mission is to disseminate information on the activities developed within the framework of the Agreement, provide connections with other IFBs, promote transparency and perform other functions assigned to it by the COP. The Clearing-House Mechanism shall be managed by the Secretariat that shall pay special attention to the special requirements of developing countries and small island developing States and preserve confidentiality (Article 51).
Issues relating to financial resources and the financial mechanism, which were not discussed in depth until the final stage of the negotiating process, are regulated in Part VII in a single article entitled “financing”, which has a poor systematic structure and is difficult to understand (Article 52). Under the provisions of this article, each Party is required to provide (financial) resources according to its capabilities to achieve the objectives of the Agreement. The financial resources to be mobilized may come from public and private sources, both national and international.
The institutions established by the Agreement shall be financed by assessed contributions from the Parties. A “mechanism for the provision of financial resources” is established aimed primarily at supporting capacity building and technology-transfer to developing countries, comprising as operational instruments:
– a “trust fund”, to be funded by voluntary contributions, to facilitate the participation of developing countries in meetings convened under the Agreement.
– a “special fund” to finance capacity building and to assist developing countries and Indigenous Peoples in activities under the Agreement and such other activities as may be decided by the Conference of the Parties. This special fund is to be funded by annual contributions of developed Parties and payments from the monetary benefits from the utilization of MGR, by voluntary contributions from Parties and private entities that wish to do so, and by the Global Environment Facility (GEF) trust fund.
Eligibility for access to the Agreement’s funds should be open to developing countries according to their needs and to equitable participation of the most vulnerable, ensuring the effectiveness and simplicity of the procedures for accessing the special fund. Parties should encourage international organizations to grant preferential treatment and consider the special needs of developing countries, especially the most vulnerable. The COP shall establish a finance committee and, in light of its reports and recommendations, as well as its own periodic review, shall take appropriate measures for the proper functioning of the financial mechanism.
The COP may consider the establishment of additional funds to support the conservation, rehabilitation and ecological restoration of marine biodiversity of ABNJ.
Part VIII of the Agreement requires the Parties to take appropriate measures to ensure implementation and compliance and to report to the COP on the measures they have taken. A transparent, non-adversarial and non-punitive Implementation and Compliance Committee with facilitative functions is established to consider implementation and compliance issues at the individual and systemic level and make appropriate recommendations to the Conference of the Parties (Article 55).
Dispute settlement, addressed in Part IX, raised particular difficulties, especially relating to the status of States not party to the Convention and to China’s opposition to compulsory jurisdiction for the settlement of matters relating to disputed areas. The Agreement reiterates the general obligation to prevent disputes (Article 56) and to settle them by peaceful means (Article 57) of their own choice (Article 58). The possibility of submitting disputes of a technical nature to an ad hoc panel of experts established by them for this purpose is provided for in Article 59.
The procedures for the settlement of disputes are regulated in Article 60, which replicates the procedures set out in Part XV of the Convention, including Annexes V, VI, VII and VIII. The rules of Part XV fully apply to Parties to the Agreement that are also Parties to the Convention, both with respect to the choice of procedure made under Article 287 and to declarations providing for exclusions and exceptions of certain disputes made under Article 298 of the Convention. Parties to the Agreement who are not parties to the Convention may voluntarily accept any of the procedures provided for in Part XV, as well as make use of the optional limitations and exclusions provided for in Article 298, and, if they do not make such a voluntary declaration, they are subject to the obligation to have recourse to the arbitration provided for in Annex VII of the Convention.
In any case, disputes relating to the determination of whether an area is under national jurisdiction or to claims of sovereignty or other rights over continental or island territories are excluded from compulsory jurisdiction, without prejudice to the jurisdiction attributed to a court or tribunal under the provisions of the Convention (article 60, 9). Furthermore, the provisions of the Agreement may not be invoked as a basis for asserting or denying claims of sovereignty, sovereign rights or jurisdiction over land or marine areas and related disputes (article 60, 10).
The successful culmination of the BBNJ Agreement negotiation is a historic event. Demonstrating boundless dedication and admirable commitment to compromise, negotiators have produced an Agreement that aims to fill the remaining gaps in the international regime for biodiversity conservation and sustainable use in marine areas beyond national jurisdiction. The importance of the stakes is evidenced by the fact that ABNJs account for nearly two-thirds of the world’s ocean and 90% of its biomass the conservation of which faces unprecedented threats and is under extreme stress.
The BBNJ Agreement is set to become a key piece of the maritime governance system established by the Convention, of which it is the third implementing instrument. But its centrality with respect to other international frameworks and bodies, an issue largely present throughout the negotiations, will probably raise new challenges that shall be addressed considering the requirement “not to undermine” other IFB.
Most of the difficult issues in the negotiation of the Agreement have been overcome through a methodology of “sublimation by integration”. This technique consists of formulating normative binomials that provide common ground to satisfy competing claims: conservation and sustainable use, free access to marine genetic resources and fair and equitable sharing of benefits, area-based management tools and marine protected areas, common heritage of humankind and freedom of the high seas …. Many of these binomials have been articulated in a balanced and well-calibrated way that allows countries to find room for the possible satisfaction of their specific needs and interests. Maximizing the potential benefits for each group has proved to be a decisive element in transforming their competing claims into shared interests.
Overall, the final text is systematically consistent and quite rigorously drafted, although there is no shortage of concessions to “constructive ambiguity” in its most sensitive parts such as those relating to the sustainable use of MGRs, specific technology-transfer measures and financial issues. This should come as no surprise since, by allowing access to MGRs in areas beyond national jurisdiction for sustainable use, the Agreement reopens a thorny historical question: Who owns the oceans? The answer provided by the BBNJ Agreement opens a new stage in the use of areas that until now had remained relatively untouched. The exploitation of the mineral resources of the Area will thus be followed by the sustainable use of the biological and genetic resources of ABNJ. The contradiction between creeping jurisdiction and marine environmental protection thus emerges anew as a challenge that the Agreement aims to overcome.
At the end of the road, when the Agreement enters into force after collecting 60 instruments of ratification, the essential task will be for the COP to reconcile the environmental objective of conserving biological biodiversity and the economic objective of sustainable using the MGR of ABNJ. As the IISD report states.
“Balancing conservation and sustainable use is a demanding undertaking, but, when benefit sharing is added to the equation, getting the balance right is even more difficult”.
 RAYFUSE, R. “Moving beyond the tragedy of the global Commons: The Grotian legacy and the future of the biodiversity of the high seas”, in Leary and Pisupati (Eds) The future of international environmental law, UN University Press, 2010, pp. 201-224.
 Oude Elferink, A. G. “Exploring the future of the institutional landscape of the oceans beyond national jurisdiction”, RECIEL November 2019. pp. 236-243.
 Such as the “good faith and abuse of rights” provision in article 63 (Part XI).
 VIERROS, M. et al., “Who Owns the Ocean? Policy Issues Surrounding Marine Genetic Resources”, ASLO Bulletin, Volume 25, issue 2. pp. 1-8.
 SCOVAZZI, T. “The Right to Genetic Resources beyond National Jurisdiction: Challenges for the Ongoing Negotiations at the United Nations”, in Catherine Banet (Ed) The Law of the Seabed. Access, Uses, and Protection of Seabed Resources, 2020, pp. 213-237, p. 218.
 “Sustainable use” and “utilization” of MGR are defined in a quite anodyne way in article 1, 14 and 15.
 For instance, the 1995 Fish Stocks Agreement provides in article 8, 4 that “Only those States which are members of a (regional fisheries management) organization or participants in (a similar) arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply”.
 Whereas ABMT is a relatively new and little developed concept, MPAs have a long presence and consolidated status in International Law of the Sea. See: SCOVAZZI, T. “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations”, The International Journal of Marine and Coastal Law, Vol, 19, No 1, 2004, pp. 1-17.
 When listing the types of measures for transfer of marine technology Annex II refers only to “sampling and methodological equipment” (c) (ii) and “the acquisition (sic) of equipment necessary to support research capacity” (c) (iii).
 Earth Negotiations Bulletin  IISD., vol. 25 No. 250, p. 19.
About the author
Professor of International Law (Emeritus), University of Valencia, Spain