Rights and obligations for Third States functional consent as an enforcement mechanism

Abstract

The governance of oceanic commons is undergoing a reconfiguration driven by the new Agreement on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction, an instrument that integrates conservation, benefit-sharing of genetic resources, and mitigation of climate impacts on the high seas. The gap motivating this study lies in the uncertainty about how the agreement’s compliance mechanisms simultaneously interface with treaty-law rules, global climate commitments, and Brazilian legal practice. The core objective is to examine how the agreement’s innovations align with the consent provisions of the Vienna Convention, assessing the potential of a “soft” enforcement model -grounded in incentives and transparency - to curb the free-rider behavior typical of marine public goods. The research employs an exploratory and descriptive approach, supported by a literature review and comparative documentary analysis of the treaty text, the Vienna Convention, and climate instruments. Results indicate that the agreement creates functional consent: any State wishing to exploit resources or undertake risk-bearing activities on the high seas must file plans, reports, and data, subjecting itself to an implementation committee, thereby raising exclusion costs without infringing sovereignty. Moreover, the requirement to assess cumulative impacts allows the incorporation of acidification and deoxygenation variables, operationally linking biodiversity and climate. The study concludes that the agreement offers an intermediate architecture between voluntarism and coercion, capable of integrating science, economic incentives, and shared responsibility; its implementation in Brazil could catalyze normative reforms, strengthen inter-agency cooperation, and position the country as a regional leader in high-seas protection.