Enactment of BBNJ Act brings UK closer to ratifying High Seas Treaty

The UK government has continued its journey towards the ratification of the High Seas Treaty – an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction – which is also known as the Biodiversity Beyond National Jurisdiction or BBNJ Agreement. The treaty entered into force on 17 January, having received the requisite number of ratifications approvals, acceptances or accessions.

The BBNJ Act, which was enacted on 12 February, creates a domestic framework to meet the international obligations set out in the Treaty. However, a number of its main provisions – including those on the collection, utilisation and benefits sharing of marine genetic resources and digital sequence information (DSI) from areas beyond national jurisdiction – are not yet in force. A number of the practical details and the commencement of these substantive provisions has been left to secondary legislation. This will need to be put in place before ratification can take place.

Those involved in biotechnology and genetic research using marine genetic resources from the high seas will want to continue to follow the UK's movement towards ratification and monitor the secondary legislation. This will set out the details and implementation of the access and benefits sharing mechanisms into national law.

Marine protection

The High Seas Treaty is an international agreement aimed at protecting vulnerable marine ecosystems from issues including resource exploitation, ocean degradation and deep-sea mining. The treaty also makes provisions for obligations concerning environmental impact assessments and designating marine protected areas.

Importantly, the treaty also covers access and benefits sharing mechanisms relating to the use of marine genetic resources and digital sequence information from beyond national jurisdictions. It builds on existing ocean governance and complements agreements under the Convention on Biological Diversity such as the Nagoya Protocol, which governs access and benefits sharing relating to tangible genetic materials within national boundaries (as opposed to digital genetic data addressed by the voluntary Cali Fund).

Non-monetary benefits sharing

At this stage, the BBNJ Act only provides for non-monetary benefit sharing provisions (reflecting article 14(2) of the treaty). It requires the deposit of samples and digital sequence information in “suitable” repositories and databases. The explanatory memorandum that accompanied the legislation when it was first presented to Parliament noted that the depositing of genetic data into open access databases prior to publication is a well-established practice in the scientific community and therefore it does not consider it to be controversial.

Nonetheless, these provisions are not yet in force and will require secondary legislation to bring them into force and elaborate on their practicalities – for example, the details of the repository for genetic materials and the database for DSI.

Monetary benefits sharing

Unsurprisingly, monetary benefits sharing is far more controversial and the Treaty leaves it to the Conference of Parties (COP) to agree the modalities of any payments required. This kicks the can down the road for some of the most contested provisions.

As a result, the BBNJ Act provides for deferred means of implementing monetary benefits sharing provisions by way of secondary legislation. That secondary legislation will be subject to the draft affirmative Parliamentary procedure. As will any secondary legislation that creates a civil sanction or varies a monetary penalty for their enforcement. Secondary legislation of this kind will receive a higher degree of scrutiny and must be actively approved by both Houses of Parliament following a debate. This will be a much slower process than implementing secondary legislation following the negative procedure.

Osborne Clarke comment

The enactment of the BBNJ Act in the UK moves us a step closer to ratifying the High Seas Treaty, but there is still some distance to travel. The first COP meeting under the treaty must take place before 16 January 2027. The UK government has stated that it intends to "play a leading role at [the first] and subsequent [COP] meetings" and therefore it will need to proceed with ratification to be able to vote on key decisions. The government has acknowledged that getting the secondary legislation "right" will take time, but it will need to move with relative speed to ensure the minimum obligations under the treaty are met before ratification can take place.

This, therefore, does not mean that the government will need to grapple with the monetary benefits sharing provisions at this stage. It is not clear whether these provisions will be discussed at the first COP meeting, but the UK will wish to be able to influence the debate, not least because of the government's aspirations for the engineering biology sector and the industry's concerns. Access to genetic resources and DSI is crucial for the industry and any hinderance to this could limit the sector's growth potential.

However, it is not clear at this stage how long it will take or if an agreement can be reached at all on the monetary benefits sharing provisions. Given that it took nearly two decades to agree the text of the Treaty, the process may be slow, especially because of the controversial nature of these provisions.

Edward Cator, a trainee solicitor at Osborne Clarke, contributed to this Insight.