Introduction

  The European Union (EU) has developed a comprehensive approach to ocean governance, combining legal regulation, international diplomacy, scientific expertise, and financial support in order to advance the sustainable use and conservation of marine resources. Within its internal system, this orientation is most clearly reflected in the Marine Strategy Framework Directive (MSFD), which serves as the central legal guide for achieving Good Environmental Status (GES) across EU waters.

At the international level, the EU also played a significant role in the negotiation and adoption of the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement), thereby extending its engagement from regional environmental regulation into multilateral treaty-making.

Although operating at different jurisdictional scales, the MSFD and the BBNJ Agreement share related objectives and institutional principles, particularly in relation to Ecosystem-Based Management (EBM), coordinated planning, and science-based oversight.

On that basis, this article examines the relationship between the two instruments and considers to what extent EU regional practice can serve as a relevant point of reference for the emerging application of the BBNJ Agreement.

The MSFD as an EU Mechanism for Environmental Governance

  All EU action is grounded in treaties democratically approved by the Member States in accordance with the rule of law. These treaties constitute the primary law of the Union and establish the institutional architecture, competences, and decision-making procedures through which EU objectives are pursued [1]. On this constitutional foundation, secondary legislation—including regulations, directives, decisions, recommendations, and opinions—translates treaty principles into concrete policy measures [2]. Within this legal setting, the MSFD occupies a central place by linking environmental protection with the sustainable use of resources and by establishing GES as the overarching objective for EU waters. To give effect to this goal, Member States are required to develop national strategies that include environmental assessments, measurable targets and coordinated monitoring programmes aimed at improving the condition of their waters [3]. In this way, the Directive does not remain at the level of general environmental intent but creates a cyclical governance process through which policies are continually adjusted in response to scientific findings.

  A particularly important feature of the MSFD is the formal incorporation of EBM as a legally binding principle [4]. This approach seeks to balance resource use with conservation by recognizing ecological connectivity and coordinating land- and sea-based human activities in order to minimize cumulative impacts on ecosystems [5]. This is reflected in Article 1(3) of the Directive, which requires Member States to apply EBM when managing human activities affecting the wider marine environment [6].

  The Directive also operates alongside a broader set of EU policies and legislation. These include, among others, the Water Framework Directive, the Birds and Habitats Directives, the Common Fisheries Policy, and Maritime Spatial Planning. Rather than acting independently, the MSFD builds on and interacts with these measures, helping to reduce fragmentation and improving coherence across different policy areas [7].

Its application is further supported through the Common Implementation Strategy (CIS), a coordination mechanism that guides Member States in applying the MSFD consistently. Operating in six-year cycles, the CIS provides a process for review, reporting, and evaluation, with the most recent phase examining progress between 2018 and 2023 [8]. Through this iterative system, the Directive integrates adaptive governance and continuous improvement into EU environmental policy, ensuring that its measures remain open to review and adjustment over time.

The Directive’s coordinating logic extends beyond the EU’s internal institutions, as Member States must align their strategies with one another and, where appropriate, with third countries through established regional cooperation arrangements. In the European context, this occurs primarily through the four Regional Sea Conventions covering the Baltic Sea, the North-East Atlantic, the Mediterranean Sea, and the Black Sea, which bring together EU Member States and neighboring countries sharing regional sea basins [9]. This regional dimension acknowledges the ecological interconnectedness of shared waters and reinforces the need for collective environmental responses that extend beyond strictly national perspectives.

In addition, Annex I of the MSFD defines eleven qualitative descriptors through which GES is assessed, providing Member States with a common benchmark for evaluating environmental conditions and adapting national measures [10][11].

UNCLOS and the Emergence of the BBNJ Agreement

  At the global level, ocean governance is shaped by the United Nations Convention on the Law of the Sea (UNCLOS), often referred to as the “Constitution of the Oceans.” UNCLOS establishes the overarching legal regime governing all maritime zones, from territorial seas and exclusive economic zones to the high seas, while regulating marine resource use, environmental protection, and dispute settlement [12].

Under UNCLOS, areas beyond national jurisdiction (ABNJ) include both the high seas and the Area. The high seas refer to the water column beyond exclusive economic zones, as defined in Article 86, whereas the Area covers the seabed and subsoil beyond national jurisdiction pursuant to Article 1(1) and Part XI of the Convention [13]. Although both fall outside national jurisdiction, they are governed by distinct legal principles: the high seas are based on freedoms of use under Article 87, while the Area and its resources are considered the common heritage of mankind and must be managed for the benefit of all [14]. This distinction matters because the BBNJ Agreement applies across both domains, which means it must accommodate different legal logics within a single system.

The importance of these areas is not only legal but also ecological. ABNJ make up nearly two-thirds of the ocean and contain ecosystems that are both highly significant and poorly protected. [15] They are increasingly affected by pressures such as overfishing, pollution, shipping, and climate change [16]. These pressures are cumulative and often cross-national boundaries, making them difficult to address through existing regulatory procedures [17].

The BBNJ Agreement emerged precisely in response to these shortcomings. Adopted as an implementing agreement under UNCLOS, it seeks to strengthen the conservation and sustainable use of marine biological diversity in ABNJ through a more coherent and integrated legal approach [18]. Its substantive architecture is structured around four central elements: marine genetic resources and benefit-sharing; area-based management tools, including marine protected areas (MPAs); environmental impact assessments; and capacity-building together with the transfer of marine technology. These core components are further supported by institutional arrangements, funding provisions, and a clearing-house mechanism designed to facilitate cooperation, transparency, and information-sharing among Parties.[19]

One of the Agreement’s most significant contributions lies in the way these provisions shift away from isolated sectoral responses by introducing procedures for collective decision-making, conservation planning, scientific review, and more inclusive participation among States. In this way, the treaty seeks to address not only persistent conservation gaps but also the longstanding inequalities that have constrained the effective involvement of developing States in ABNJ governance, thereby providing a more consistent basis for shared action in the global commons [20].

  Following its adoption in March 2023, the treaty was opened for signature and ratification by States and regional economic integration organizations. The EU signed it in September 2023 and subsequently advanced its internal approval process, securing the consent of the European Parliament and the Council decision to conclude it on behalf of the Union [21]. Through ratification, the EU reaffirmed its commitment to strengthening multilateral ocean governance and signaled its intention to play an active role during the treaty’s operational phase through financial and technical support initiatives [22][23].

  This engagement is consistent with the EU’s broader diplomatic positioning throughout the negotiations. Its leadership was particularly visible at the One Ocean Summit in March 2022, where the launch of the High Ambition Coalition on BBNJ reinforced political momentum toward an ambitious outcome [24][25]. Yet the EU’s relevance to the BBNJ process is not limited to diplomacy, it also lies in the institutional experience accumulated through internal legal regimes such as the MSFD, which provides a practical example of how shared environmental objectives can be organized and advanced over time.

Comparing the MSFD and the BBNJ Agreement

  When considered side by side, the MSFD and the BBNJ Agreement reveal several important points of contact. A first indication of this connection is found in the European Commission’s assessment of existing EU rules and policies in the areas addressed by the BBNJ Agreement, together with the Union’s legislative steps toward its internal incorporation. This process concluded that the Agreement is compatible with EU law and policy priorities, aligns with the Union’s broader international ocean agenda, and reflects procedural and institutional approaches comparable to those already present within the EU [26].

  An example is the incorporation of EBM as a guiding principle: while the MSFD expressly requires Member States to apply it to the management of human activities, the BBNJ Agreement similarly reflects this approach across operative provisions relating to area-based management tools and environmental impact assessments. In both cases, the objective is to move away from isolated sectoral responses toward integrated forms of conservation planning that take cumulative impacts and ecological interdependence into account.

A similar pattern can be seen in the use of spatial measures. Within EU waters, the MSFD supports the development of marine protected areas (MPAs), which are defined as clearly delineated zones established to conserve biodiversity over the long term. At the global level, the BBNJ Agreement introduces procedures for identifying and managing such areas in ABNJ. This is particularly significant for the high seas, where coordinated mechanisms for spatial protection have historically been limited.

Regarding monitoring and review, Member States are required under the MSFD to conduct periodic evaluations, establish coordinated monitoring programmes and report on progress toward environmental targets, thereby embedding accountability and adaptive adjustment within the Directive’s functioning [27]. Likewise, the BBNJ Agreement establishes obligations to monitor adopted measures, report through institutional bodies, including the Conference of the Parties, and evaluate potential impacts through its environmental impact assessment provisions. In both instruments, scientific review is therefore treated not as a supplementary exercise but as an essential condition for regulatory correction. This parallel is particularly relevant because both legal regimes recognize that conservation cannot rely exclusively on static legal commitments. Rather, effective implementation depends on the continuous circulation of scientific information, institutional reporting, and periodic reassessment in order to maintain regulatory credibility over time.

However, similarities in design do not automatically lead to strong outcomes. Experience with the MSFD shows that progress has been uneven, and Member States have not yet met the GES objective within the expected timeframe. Challenges remain in areas such as enforcement, coordination, and resource allocation [28]. A European Commission review, echoed by civil society analyses, also points to continuing shortcomings in enforcement, policy coherence, and resource allocation, suggesting that protection efforts have remained below the level required to secure effective environmental results [29]. This indicates that even well-developed legal systems depend heavily on political will and consistent application.

Despite these convergences, important differences remain between the two instruments. The MSFD operates within a relatively integrated regional system, where Member States share institutions and legal obligations. By contrast, the BBNJ Agreement must be applied in a more decentralized international context, where coordination is more complex and depends on the willingness and capacity of individual States.

For that reason, the MSFD should not be seen as a model that can simply be replicated. Its value lies instead in showing how broad commitments can be translated into concrete procedures, how coordination can be organized across jurisdictions, and in what ways scientific information can be integrated into decision-making. At the same time, it highlights the limits of such systems when political support or resources are lacking. The EU experience therefore offers not only examples of procedural organization but also evidence of the practical tensions involved in sustaining long-term environmental commitments across multiple jurisdictions. In that sense, the relationship between the two instruments is best understood as complementary: one offers practical lessons that can guide future application, while the other provides a global legal framework for ocean governance.

[1] [2] European Commission. Types of EU Law. https://commission.europa.eu/law/law-making-process/types-eu-law_en

[3] European Commission. Marine Environment: EU Policies to Protect Europe’s Oceans, Seas and Coasts. https://environment.ec.europa.eu/topics/marine-environment_en

[4] United Nations Environment Programme. Ecosystem-Based Approaches. Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive). Off. J. Eur. Union 2008, L164, 19–40

[5] United Nations Environment Programme. Ecosystem-Based Approaches. https://www.unep.org/topics/ocean-seas-and-coasts/ecosystem-based-approaches

[6] United Nations. BBNJ Agreement—About the Agreement. Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive). Off. J. Eur. Union 2008, L164, 19–40

[7] [8] [9] [10] [11] European Commission. Marine Environment: EU Policies to Protect Europe’s Oceans, Seas and Coasts. https://environment.ec.europa.eu/topics/marine-environment_en

[12] United Nations. BBNJ Agreement—About the Agreement. https://www.un.org/bbnjagreement/en/bbnj-agreement/about-agreement

[13] United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982; entered into force 16 November 1994; 1833 U.N.T.S. 397

[14] Tanaka, Y. The International Law of the Sea, 4th ed.; Cambridge University Press: Cambridge, UK, 2023.

[15] [16] InforMEA; United Nations Environment Programme; Division for Ocean Affairs and the Law of the Sea, United Nations Office of Legal Affairs. Introductory Course to 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; n.d.

[17] United Nations. BBNJ Agreement—History and Overview. https://www.un.org/bbnjagreement/en/bbnj-agreement/history

[18] [19] 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. United Nations Treaty Collection, Chapter XXI-10, 2023.

[20] Harden-Davies, H., Amon, D.J., Chung, T.-R., Gobin, J., Hanich, Q., Hassanali, K. et al. (2022). How can a new UN ocean treaty change the course of capacity building? Aquatic Conservation: Marine and Freshwater Ecosystems, 32(5), 907–912

[21] Council Decision (EU) 2023/1974 of 18 September 2023 on the signing, on behalf of the European Union, 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. Off. J. Eur. Union 2023, L241, 1–2.

[22] European Commission. Proposal for a Directive of the European Parliament and of the Council on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. COM(2025) 173 final, Brussels, 2025.

[23] Harikhrishna, S. EU ratifies High Seas Treaty, marking major step in international environmental law. JURIST News, May 2025. https://www.jurist.org/news/2025/05/eu-ratifies-un-high-seas-treaty-marking-major-step-in-international-environmental-law/

[24] [25] Santos, B. S., Fuller, S., Bustamante, R. H., McDonald, J., Mendenhall, E., Ntona, M., Ota, Y., Popova, E., Roberts, C., Singh, G., & Vierros, M. (2022). The diverse benefits of biodiversity conservation in global ocean areas beyond national jurisdiction. Frontiers in Marine Science, 9, 1001240.

[26][27] European Commission. Proposal for a Directive of the European Parliament and of the Council on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. COM(2025) 173 final, Brussels, 2025.

[28] Boyes, S.J.; Elliott, M.; Murillas-Maza, A.; Papadopoulou, N.; Uyarra, M.C. (2016) Is existing legislation fit-for-purpose to achieve good environmental status in European seas? Marine Pollution Bulletin, Volume 111, Issues 1–2

[29] European Commission. Commission Staff Working Document: Evaluation of Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 Establishing a Framework for Community Action in the Field of Marine Environmental Policy (Marine Strategy Framework Directive). SWD(2025) 50 final, Brussels, 2025.