Beyond Undermining: COP Competences to Establish ABMTs and MPAs under the BBNJ Agreement

This article examines the scope and operation of the Conference of the Parties’ (COP) decision-making powers under Article 22 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), which will enter into force on 17 January 2026. It interrogates the persistent ambiguity surrounding the Agreement’s relationship with other relevant legal instruments, frameworks, and bodies (IFBs), especially in the context of area-based management tools (ABMTs), including marine protected areas (MPAs). This article contends that prevailing interpretations of the “not to undermine” proviso in Articles 5(2) and 22(2) are overly restrictive, reflecting the political sensitivities of the negotiation phase rather than the treaty’s object and purpose. It argues that in the implementation phase, “undermining” must be reinterpreted through the lens of the Agreement’s objectives of conservation and sustainable use. Against this backdrop, this article advances a textual and teleological reading of Article 22 that supports a more proactive COP, capable of adopting measures that complement and reinforce, rather than merely defer to, existing IFBs. Special attention is given to the concept of “compatible” conservation measures in Article 22(1)(b) as a mechanism for ensuring a balanced and mutually reinforcing relationship of BBNJ institutions.