46th COLP - 20-23 September 2023

The Dispute Settlement Provisionsof the BBNJ Agreement
Kentaro NISHIMOTO
Tohoku UniversityQuestion
Part IX Settlement of Disputes
Article 56 : Prevention of disputes
Article 57: Obligation to settle disputes by peaceful means
Article 58: Settlement of disputes by any peaceful means chosen by the Parties
Article 59: Disputes of a technical nature
Article 60: Procedures for the settlement of disputes
Article 61: Provisional arrangements• Were States successful in designing a dispute settlement procedure that serves tofacilitate the effective implementation of the agreement?

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Negotiating History of Part IX of the BBNJ Agreement
Draft text (A/CONF.232/2019/6)- Art. 54 Obligation to settle disputes bypeaceful means> now Art. 57- Art. 55 Procedures for settlement ofdisputes> identical to Art. 30(1)(3)(4) of UNFSA

IGC 3
Aug 2019

IGC 4
Mar 2022- DS provisions identical toDraft text

Rev. draft text (A/CONF.232/2020/3)

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Further Rev. draft text (A/CONF.232/2022/5)- Addition of articles 54bis, 54ter, 55bis, 55ter> now Arts. 56, 59, 61> Art. 55 ter later moved to Art. 47(7) [advisory opinion]- A new Option II (non-compulsory DS) added to Art. 55- What was Art. 55 became Option I; addition of paras on optional
exceptions and DS in IFBs > now Art. 60 paras. 4, 7 and 8

IGC 5Aug 2022

[Refreshed draft text](A/CONF.232/2022/CRP.12)

Further refreshed draft text
(A/CONF.232/2023/2)

IGC 5bis
Feb 2023[Updated draft text](A/CONF.232/2023/CRP.1)[1:30 am version of the
updated draft text]- Addition of Article 54 ter ante > now Art. 58- Reformulation of Art. 55 Option I- Addition of para. 8 on unsettled disputes concerning sovereignty
or other rights over territory > now para. 9 with changes

Negotiating History of Part IX of the BBNJ Agreement
Draft text (A/CONF.232/2019/6)- Art. 54 Obligation to settle disputes bypeaceful means> now Art. 57- Art. 55 Procedures for settlement ofdisputes> identical to Art. 30(1)(3)(4) of UNFSA

IGC 3
Aug 2019

IGC 4Mar 2022
- DS provisions identical toDraft text

Rev. draft text (A/CONF.232/2020/3)

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Further Rev. draft text (A/CONF.232/2022/5)- Addition of articles 54bis, 54ter, 55bis, 55ter> now Arts. 56, 59, 61> Art. 55 ter later moved to Art. 47(7) [advisory opinion]- A new Option II (non-compulsory DS) added to Art. 55- What was Art. 55 became Option I; addition of paras on optional
exceptions and DS in IFBs > now Art. 60 paras. 4, 7 and 8

IGC 5Aug 2022

[Refreshed draft text](A/CONF.232/2022/CRP.12)

Further refreshed draft text
(A/CONF.232/2023/2)

IGC 5bis
Feb 2023[Updated draft text](A/CONF.232/2023/CRP.1)[1:30 am version of theupdated draft text]- Addition of Article 54 ter ante > now Art. 58- Reformulation of Art. 55 Option I- Addition of para. 8 on unsettled disputes concerning sovereignty
or other rights over territory > now para. 9 with changes

Arts. 56-59 and 61

5repeats the first sentence of Article 28 ofUNFSA
almost identical to Article 29 of UNFSA

closely follows the text of Article 27 of UNFSA
with some modifications
repeats Article 31(1) of UNFSA
closely follows the text of Article 280 ofUNCLOS

Negotiating History of Part IX of the BBNJ Agreement
Draft text (A/CONF.232/2019/6)- Art. 54 Obligation to settle disputes bypeaceful means> now Art. 57- Art. 55 Procedures for settlement ofdisputes> identical to Art. 30(1)(3)(4) of UNFSA

IGC 3Aug 2019

IGC 4Mar 2022
- DS provisions identical toDraft text

Rev. draft text (A/CONF.232/2020/3)

6Further Rev. draft text (A/CONF.232/2022/5)- Addition of articles 54bis, 54ter, 55bis, 55ter> now Arts. 56, 59, 61> Art. 55 ter later moved to Art. 47(7) [advisory opinion]- A new Option II (non-compulsory DS) added to Art. 55- What was Art. 55 became Option I; addition of paras on optional
exceptions and DS in IFBs > now Art. 60 paras. 4, 7 and 8

IGC 5Aug 2022

[Refreshed draft text](A/CONF.232/2022/CRP.12)

Further refreshed draft text
(A/CONF.232/2023/2)

IGC 5bis
Feb 2023[Updated draft text](A/CONF.232/2023/CRP.1)[1:30 am version of theupdated draft text]- Addition of Article 54 ter ante > now Art. 58- Reformulation of Art. 55 Option I- Addition of para. 8 on unsettled disputes concerning sovereignty
or other rights over territory > now para. 9 with changesArt. 60: Procedures for the Settlement of Disputes

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Q: Compulsory dispute settlement based on UNCLOS Part XV or non-compulsory disputesettlement?
Option IOption IIOption III- Compulsory DS in accordance withthe provisions in Part XV of UNCLOS- Choice of procedures (Art. 287 ofUNCLOS)- Optional declarations (Art. 298 ofUNCLOS)- Without prejudice to DS in IFBs
+ Cannot consider disputes
necessarily involving concurrent
consideration of sovereignty orother rights over land territory- DS by negotiation; good offices+ mediation- Opt-in to arbitration/ITLOS/ICJ
as compulsory- [Conciliation procedure]- Non-application to disputes
concerning land territory,
sovereignty, sovereign rights or
jurisdiction- DS through “friendlyconsultations andnegotiations”- Possibility of submitting
disputes to a range of DS
procedures by agreement- Non-application to disputes
concerning territory,
sovereign rights or
jurisdiction- UNCLOS Part XV “may” apply
mutatis mutandis••(UNCLOS non-parties opposed to“application” of Part XV)

The majority of delegations were in support of Option IEfforts were made to incorporate elements of Option II and III into Option I as much as possible

Addressing UNCLOS Non-parties’ Concerns
Further revised draft text

… apply mutatis mutandis, … whether or not they
are also Parties to the Convention
Further refreshed draft text

… in accordance with procedures … in Part XV of theConvention whether or not … also Parties to the Convention

Agreed text

Para. 1: shall be settled in accordance with theprovisions … in Part XV of the Convention
Para 2: The provisions of Part XV and Annexes … shall bedeemed to be replicated … disputes involving a Party …
that is not a Party to the Convention

8Exclusion of Disputes Concerning Sovereignty/Jurisdiction
Further refreshed draft text

Agreement, Art. 60

The jurisdiction of courts and tribunals underPart IX of the BBNJ Agreement excludes:• dispute that concerns or necessarily
involves the concurrent consideration ofthe legal status of an area as within
national jurisdiction• dispute concerning sovereignty or otherrights over continental or insular land
territory or a claim thereto of a Party

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Observations• Provisions are based on dispute settlement provisions of UNCLOS and UNFSA• Consistency with UNCLOS Part XV- Disputes could arise under both BBNJ and UNCLOS (and UNFSA, RFMO Conventions)• The types/nature of disputes under BBNJ may be different from those arisingunder UNCLOS or UNFSA- UNCLOS Part XV envisages disputes between States regarding rights/obligations
allocated to them
- Disputes under BBNJ Agreement may involve infringement of community interests that
may not be broken down into individual State interests- ex. Article 25(1) (on ABMTs/MPAs) “Parties shall ensure that activities under
their jurisdiction or control that take place in areas beyond national jurisdiction
are conducted consistently with the decisions adopted under this Part.”• Alternative approaches were not fully explored• Little discussion on the relationship between Part IX and the implementation andcompliance committee (Art. 55)

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Observations• Questions remain on the scope of disputes excluded under Article 60(9)- One issue that was in the minds of some delegations was the application of theBBNJ Agreement to the South China Sea• “any dispute that concerns or necessarily involves the concurrent consideration of thelegal status of an area as within national jurisdiction”- the language adopted is very broad (would cover waters around Antarctica or issues
involving the continental shelf beyond 200M)- however, there is a unique situation in the South China Sea that the legal status of
the waters was clarified through a binding decision from a tribunal having jurisdiction
under UNCLOS Part XV- “concurrent consideration of …”: is there an issue to “consider”?
- the proviso on the applicability of UNCLOS Part XV suggest that such issues wereconsidered suitable for consideration under UNCLOS Part XV

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Conclusions• A missed opportunity in designing the dispute settlement to best address the disputesthat could arise under the Agreement• Some States were more concerned about the implications of the dispute settlement
provisions BBNJ Agreement for their jurisdictional claims/disputes rather than for theeffective implementation of the agreement• There is still room to discuss the possible role of a multilateral environmentalagreement (MEA) – type mechanism when the COP decides on the modalities for theimplementation and compliance committee (Art. 55)- the relationship between the role of the committee and dispute settlement
procedures could be taken into account• How the dispute settlement procedure is put into operation will be an interesting
testing ground for theories related to dispute settlement and compliance mechanisms
for multilateral treaties (– but it may also be possible that the shortcomings may leadto the disuse of the procedures)12