BBNJ Workshop: regime interaction

By Julia Schutz Veiga and Vanessa Lopes

The BBNJ Workshop: Regime Interaction was held at the University of Wollongong in Australia from 7 to 10 May. The event was organised by ANCORS, KIOST, CIL, NCLOS, and Ocean Voices. It was dedicated to promoting an intense debate on how the UN Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (hereinafter the BBNJ Agreement) will interact with other legal regimes and instigate reflections on the Agreement's additions to the international Law of the Sea. Khalil Hassanali, Research programme partner at the Ocean Voices, presented results of his research on environmental impact assessments, while I presented on the interaction of law of the sea and intellectual property. Vanessa Lopes, a Ocean Voices fellow and current Ocean Voices PhD candidate, was also present, actively participating in the discussions. 

I presented Part V of the BBNJ Agreement (focused on capacity-building and transfer of marine technology) to an audience of renowned academics, policymakers, and researchers on the subject. The presentation was incorporated into Session 6: Capacity-Building and Cooperation under the BBNJ Agreement, which was moderated by former UN/DOALOS Director Gabriele Goettsche-Wanli and also featured Dr. Sarah Lothian, Senior Lecturer at ANCORS. 

Recognising this moment as an opportunity to promote possible interpretations of Part V, the presentation highlighted the international recognition of technology transfer as a right of access, as well as its role as an elementary tool in capacity-building. To analyse Part V, a framework was created that integrates several specific elements of the legal framework for marine technology transfer and the international intellectual property regime. 

Having developed this IP technology transfer interface analysis model, the legal definition of ‘marine technology’ [Article 1(10)] and the conceptual elements incorporated into the chapeau of Article 44(1) of the BBNJ Agreement were discussed. With regard to marine technology, the interpretations of the action verb — to include, as a verb that promotes the timelessness of the definition, stood out. The verb to include combined with the caveat ‘inter alia’ promotes the understanding that this is a non-exhaustive indicative list, i.e., it is not restricted to the technologies listed in the definition. 

Next, a brief exercise was carried out to detail Article 40(c), identifying which were capacity-building measures and which were linked to technology transfer. This exercise helps law enforcers to identify the nature of the obligations, i.e., capacity building is mandatory, ‘shall ensure,’ while a cooperative model is used for marine technology transfer, using the verb phrase ‘shall cooperate to achieve.’ This differentiation helps in the development of policies and strategies to better address possible problems or replicate potential solution strategies. 

The questions revolved around the relevance of the recognition that the BBNJ Agreement gave to marine biotechnology, including this proviso in the definition of marine technology.  As well as the inclusion of the proviso ‘digital sequence information’ as one of the ways of utilising marine genetic resources, subject to the sharing of monetary and non-monetary benefits.  

Also, a notable element of this discussion was the analysis of the marine technology definition. This analysis highlighted the types of technologies listed in the definition, and based on this identification, whether it would be more appropriate to identify the type of transfer needed and the possible intellectual property rights associated.  

Overall, the workshop provided valuable insights and facilitated a deeper understanding of the complexities involved in the implementation of the BBNJ Agreement, highlighting the need for ongoing dialogue and cooperation among stakeholders. 

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