Tanguy STEHELIN
* Deputy Director of Legal Affairs, French Ministry of Europe and Foreign Affairs; Head of the French Delegation at the Fifth Session of the Intergovernmental Conference on BBNJ (20 February-3 March 2023).The author would particularly like to thank Amaury de la Grange, member of the French delegation for the negotiation of the BBNJ Agreement, for his careful review of this article.
On March 3, 2023, negotiations were concluded on the third implementing agreement for the United Nations Convention on the Law of the Sea, known as the Montego Bay Convention, the purpose of which is to protect biodiversity on the high seas and regulate the activities that take place there. This so-called BBNJ agreement (for Biodiversity beyond national jurisdiction) was formally adopted by consensus on the June 9, and now needs to be ratified and signed by future governmental parties. Based on Elinor Ostrom's classification of the high seas and the biological resources they contain as « common-pool resources », the aim of this article is to analyze the consequences of the adoption of this treaty for the governance of a common good, the exploitation of which is expected to generate a financial windfall that is as yet difficult to quantify.
The discussions that took place in New York from 20 February to 3 March 2023 were primarily focused on how to finance the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. These negotiations culminated in a treaty text aimed at protecting Biodiversity Beyond National Jurisdiction (hereinafter referred to as the “BBNJ Agreement”). Before analysing this point further, a few facts about this text must be pointed out. Negotiations started in 2014. Legally, it covers the high seas, i.e., maritime areas that are not under the authority of any State (as opposed to territorial seas, exclusive economic zones or continental shelves), i.e., just over 50% of the Earth's surface area and 64% of its oceans. Another specific feature is that this collective resource represents an unexplored potential,…
