Form follows function: An initial evaluation of the BBNJ Agreement’s achievements regarding the "not undermining" proviso

Abstract

The adoption of the 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 (BBNJ Agreement) ushers in a new era of global ocean governance. At this juncture, it is necessary to take stock of what the BBNJ Agreement has achieved with regard to the once highly contested issues. To this end this paper examines how the issue of "not undermining" has been translated into specific legal provisions. After tracing back to UNGA Resolutions to the process of the Intergovernmental Conference, a thorough analysis of the key relevant provisions of the BBNJ Agreement has been undertaken, with a particular focus on Parts II to V. Two different approaches have been observed. Parts II and IV have adopted an open-ended approach, while Parts III and IV have pursued a comprehensive approach, reflecting the "Triple F" principle that form follows function. In order to achieve the envisioned goals such as better addressing conservation and sustainable use and universal participation, this paper argues that the implementation of the BBNJ Agreement should be guided by a new "Triple F" principle where form facilitates function.