I have written a fair bit about the BBNJ Agreement and fisheries over the last couple of years, mostly from the perspective of someone who's spent his working life around fishing boats, operational MCS, and a multitude of meetings. So when a new paper on the BBNJ Agreement lands on my radar, my first reflex is to check whether I know about any of the authors, whether it's open access, and whether it confirms what I think, contradicts it, or simply looks at the same thing from a window I don't usually stand at.
This one is "The Transformative Potential of the BBNJ Agreement" by Joanna Mossop (Victoria University of Wellington, and adjunct at the Norwegian Centre for the Law of the Sea, whom I know and admire) and Bastiaan Klerk (Norwegian Centre for the Law of the Sea), published in the International Journal of Marine and Coastal Law, is part of a special issue on "reimagining ocean law", and it is open access, so there is no excuse not to read it.
As you may imagine, it is a legal paper, not a fisheries one. Fishing is barely mentioned by name (which is what you expect a BBNJ paper to do, as fisheries is not part of its scope!). Yet the core of their argument is about exactly the overlap I keep coming back to: what the BBNJ can and cannot do to the bodies that already run things on the high seas, and, as such, RFMOs are very much included.
What they argue
"Transformative change" has become one of those phrases that turns up in every Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) report and every BBNJ side event, usually without anyone saying what it actually means. The authors deserve credit for trying to pin it down. They borrow a framework from Scoones and colleagues (2020) that splits transformation into three types:
Structural: the big one, changing the underlying power relations and values of the system.
Systemic: incremental changes at the right leverage points that, over time, reorganise how the whole system works.
Enabling: giving more actors a voice and agency, and letting other kinds of knowledge into the room.
They then test three features of the BBNJ Agreement against these: the COP's job of promoting cooperation and coordination with existing "instruments, frameworks and bodies" (IFBs, which is where RFMOs sit); the role given to Indigenous Peoples and local communities and their traditional knowledge; and the idea of stewardship, which was kicked out of the principles in Article 7 during negotiations and ended up in the Preamble.
Their conclusions, in short:
Structural change through the institutions is basically ruled out. The "not undermine" clause in Article 5(2) was the price of getting reluctant States to the table, so the Agreement does not redistribute authority.
Systemic change is possible, but through soft influence: the COP's coordination mandate (Article 47(c)), Article 8(2) asking Parties to promote BBNJ objectives when they sit in other bodies, and Article 25 on promoting complementary measures in IFBs.
The IPLC provisions are a real step for the law of the sea, though mostly an enabling change.
Stewardship, oddly, has the most structural potential precisely because it is a values concept, shifting the frame from State rights and freedoms to duties and accountability. But it sits in the Preamble, and we are "a very long way" from it reshaping institutions.
The last line of the abstract sums up the paper: the potential is there, but whether it is realised largely depends on the State Parties.
Where it lines up with what I have written
Mostly, it does. In January, when the Agreement entered into force, I wrote a piece on fisheries, RFMOs and the BBNJ Agreement because I was tired of seeing it illustrated with tuna boats and whales, as if nobody was managing anything out there. My main point was simple: the Agreement does not manage fisheries; RFMOs do, and RFMOs are better placed to support BBNJ than the other way round.
Mossop and Klerk establish this through a fully academic route. They note that early proponents wanted the BBNJ Agreement at the apex of a hierarchy, able to influence the decisions of regional and sectoral bodies, and that the non-undermining instruction "clearly removed from the table" this vision from the table. They also point to the joint statement of the five tuna RFMOs, which welcomed the Agreement while reminding everyone that they have carried binding mandates for decades under UNCLOS and the Fish Stocks Agreement. Polite, but the message is clear: welcome to the neighbourhood, mind the fences.
The second point of agreement is about who actually decides. I ended that January post by saying implementation is the challenge, and that after more than 40 years of UNCLOS, we still struggle to get flag States to do what they signed up to.
The authors' bottom line is the same, expressed in fully educated, formal language: everything depends on States' willingness. In my world, that means the same delegations, often the same individuals, who sit at WCPFC. The overlap in membership the authors see as a channel for influence is, from where I sit, simply the same people wearing different lanyards.
Third, they are honest that this will be slow. Coordination takes work, cooperation agreements take years, and the marine governance landscape moves at the speed of consensus. Nobody who has sat through WCPFC transhipment in the HS TCC agenda item for the fourth year in a row would disagree.
Where I would push back, or add a fisheries view
Which way does the influence flow? In January I wrote that while some non-specialist groups see the Agreement as a way to influence RFMOs, the opposite is more likely. The authors lean the other way: their whole case for systemic change rests on BBNJ norms seeping into other bodies through Article 8(2) and the COP.
I don't think we are contradicting each other so much as betting on different speeds. RFMOs have the data, stock assessments, compliance schemes, and a habit of negotiating. In the first decade, I still expect them to shape what BBNJ ABMTs look like more than BBNJ shapes RFMO measures. Over a longer horizon, the authors may well be right.
Coordination is not free. The paper treats cooperation and coordination as a legal and political question. For me, it is also a staffing question. In my January post, I said RFMOs will need more resources and people with the right experience to engage with the COP, the STB, the Implementation and Compliance Committee and the Clearing-House Mechanism. Small island delegations already cover WCPFC, FFA, PNA, the ISA and now BBNJ with a handful of officers. As I wrote recently, lack of capacity is not a side issue; it is the issue. A coordination mandate with no one to carry it out remains a mandate.
The gap where there is no RFMO. Coordination assumes there is someone to coordinate with. In the Southwest Atlantic, there is no RFMO, and I flagged the catch-22 before: under which forum do you agree to a high-seas MPA when the fisheries body doesn't exist? The paper's model works best in waters already crowded with institutions, which isn't where the worst problems are.
Accountability on paper versus at sea. The authors find the Agreement reflects stewardship most clearly in its accountability and transparency provisions: compliance committees, reporting, public notification of EIAs. Fair enough. But when I worked on a study on surveillance and enforcement of high-seas MPAs, we concluded that BBNJ has no robust enforcement mechanism or cooperative inspection scheme and that it relies on flag States. Reporting is not enforcement. Fisheries learnt that the hard way, which is why we ended up with high-seas boarding and inspection, VMS, observers and port State measures.
Stewardship is not new to some of us. The stewardship section is the most interesting part of the paper, and I like the shift from rights to duties. And this is well known in the Western and Central Pacific; coastal State stewardship has underpinned tuna management for decades through FFA, PNA, and the VDS. It is no accident that the Pacific Small Island States group proposed that Indigenous Peoples nominate their own representatives to the STB.
I still believe that an example of what Article 25 complementary measures could look like: my suggestion from last year still stands: run a ten-year trial in the WCPFC high-seas pockets, which are already closed to purse seiners under PNA conditions and already covered by FFA and WCPFC MCS tools, so just add longliners and transhipments. Stop it if it fails, keep it if it works.
So, transformative?
Eventually…. I agree with the authors that the Agreement will not overturn how the high seas are governed, and that whatever change comes will be slow, incremental and driven by States rather than by the treaty text. Where I would add a fisherman's caution is on the practical side: capacity, enforcement and the places where no fisheries body exists. That is where good legal architecture meets the reality of marine resource exploitation… and reality has the well-documented habit of ignoring legal architecture.
Old salty fisherman thoughts aside, it is a thoughtful paper, and refreshingly modest about what law alone can do. Absolutely worth reading and keeping in the reference pile.