Biodiversity Beyond National Jurisdiction (BBNJ) agreement - implementing Part IV: consultation analysis - summary report

2. Introduction

2.1 Background – Overview of the BBNJ Agreement

2.1.1 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 (the BBNJ Agreement) aims to ensure the conservation and sustainable use of marine biological diversity in Areas Beyond National Jurisdiction (ABNJ). The UK Government must ratify the BBNJ Agreement through the BBNJ Bill and subsequent secondary legislation, which will implement obligations under the BBNJ Agreement into domestic law.

2.1.2 Part IV of the BBNJ Agreement (Articles 27-39) established a framework for Environmental Impact Assessments (EIAs) for planned activities in ABNJ, reflecting existing UNCLOS obligations. Authorisation of planned activities in ABNJ rests with the state exercising jurisdiction or control over the activity, and must be based on a full consideration of any EIA, with activities authorised only where reasonable efforts have been made to prevent significant adverse impacts on the marine environment.

2.1.3 Article 30 (1) of the Agreement requires screening for EIA where a planned activity “may have more than a minor or transitory effect on the marine environment, or the effects of the activity are unknown or poorly understood”. If this ‘De Minimis Threshold’ is met, the state must assess the potential impacts of the activity to determine whether an EIA is required.

2.1.4 The EIA Threshold for a planned activity under the Agreement is the same threshold found in Article 206 of UNCLOS: “When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments...”.

2.1.5 For licensable marine activities in ABNJ, the EIA screening and assessment process will be done via the domestic EIA processes under the relevant EIA Regulations. The domestic EIA process broadly aligns with the BBNJ requirements but certain amendments will be made in Part IV of the BBNJ Bill. UK Government proposed such amendments on the BBNJ Bill at introduction stage.

2.1.6 In order to ensure that regulation is carried out in proportionate manner, changes to marine licensing requirements for activities in ABNJ and extension of exemptions are required to remove the need for a marine licence where the activity is below the De Minimis and EIA thresholds.

2.1.7 To enable ratification, the UK Government must be in a position to implement all the obligations imposed by the Agreement including EIA obligations set out in the BBNJ Agreement Part IV. Amendments to the current domestic marine licensing regimes are required and, given Scottish Ministers competence to control matters “in and as regards Scotland”, a Scottish Statutory Instrument (SSI) to extend Marine (Scotland) Act 2010 marine licensing for activities of Scottish actors in the ABNJ is required.

2.2 Current marine licensing in Scotland

2.2.1 Scottish Ministers can currently only license a narrow list of activities in ABNJ, from the list in Section 21 (1) Marine (Scotland) Act 2010:

• deposit of any substance or object which was loaded in either Scotland, or the Scottish marine area (item 2)
• scuttling (sinking) of any vessel or floating container if it was towed or propelled for the purpose of that scuttling either from Scotland, or from the Scottish marine area (item 4).
• loading a vessel etc. in Scotland or in the Scottish marine area with any substance or object for incineration anywhere at sea (item 10).

2.2.2 These three activities fall under an exemption (Article 35 of The Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011) when carried out from or controlled by a British vessel etc.

2.3 Proposed Scottish marine licensing in ABNJ

2.3.1 The proposed approach is to extend the marine licensing regime to cover additional activities occurring in ABNJ, amend current marine licensing exemptions to reflect activities occurring in ABNJ (where appropriate) and introduce new exemptions for certain activities in ABNJ, and also to update licensing exemptions to appropriately reflect the division of licensing responsibilities between UK Government and Scottish Ministers.

2.3.2 This requires the list of licensable marine activities in ABNJ to be extended to include all those categories which are currently licensable only in the Scottish marine area. In addition to the categories of activity which already require a marine licence if carried out anywhere at sea (items 2, 4 and 10), the categories of activities which require a marine licence in ABNJ must be extended to include:

• dredging,
• construction works (including maintenance, alteration or improvement of existing structures and assets),
• removal of any substance or object,
• deposit or use of explosives,
• deposit of any substances or objects,
• scuttling of any vessel or floating container, and
• incineration of any substance or object.

2.3.3 It is not proposed that such activities in ABNJ will require a marine licence if no EIA is required. Two routes to exemption are proposed: either 1) an activity is determined to be below the EIA Threshold following either a De Minimis Threshold screening or an EIA Threshold screening and thus falls within a new (proposed) exemption category, or 2) an activity is listed on a pre-determined exemption list (i.e. a specific activity exempt as it is sufficiently low risk and understood).

2.3.4 The UK Government considers the activities which are under UK control or jurisdiction for BBNJ purposes and need to be regulated in the UK include activities in ABNJ from a UK person/company and activities in ABNJ from a British vessel/structure etc.

2.3.5 Therefore, to mirror this approach, the Scottish Government proposed in the joint consultation that an activity could be considered to have a qualifying connection to Scotland if the individual or entity undertaking or exercising control over the activity is either established in Scotland or ordinarily resident there. A qualifying connection was also proposed to be established in the following circumstances:

• in the case of construction works, if they are carried on in or from a Scottish vessel/aircraft/marine structure
• in the case of removals, if a Scottish vessel/aircraft/marine structure or a floating container is used for the removal
• in the case of dredging, if it is carried on from a Scottish vessel/marine structure
• in the case of deposit or use of explosives, if the activity is carried on from or controlled by a Scottish vessel/aircraft/marine structure.

2.3.6 Following review of responses, it was decided that these connectors would not be used. The reasons for this are outlined in section 4 of this report.

2.4 Stakeholder engagement

Prior to consultation opening, stakeholders, who were previously identified as having an interest or impacted by the proposed changes, were informed by email of the commencement date. The consultation was also posted in the Scottish Government’s Economy Stakeholder’s Bulletin, Scottish Government’s social media platforms and on the Scottish Government Marine Directorate website pages. The consultation was held on UK Government’s Citizen Space website page, with a Scottish Government Citizen Space page set up to redirect respondents. Two online drop-in events were held by Defra and Scottish Government officials to provide opportunities for stakeholders to ask questions.

2.5 The consultation

2.5.1 The UK and Scottish governments held a joint consultation from 21 November 2025 to 19 December 2025, which sought views on marine licensing changes to enable the implementation of the EIA requirements in Part IV of the BBNJ Agreement as they apply to activities within the remit of marine licensing. The consultation covered proposed amendments to the marine licensing regimes in both the UK, under the Marine and Coastal Access Act 2009 (MCAA), and Scotland, under the Marine (Scotland) Act 2010 (MSA), including changes to secondary legislation, which are required to ensure compliance with Part IV of the Agreement on EIAs as it applies to licensable activities. The proposed legislative changes are to:

• Extend the marine licensing regimes to cover additional activities occurring in ABNJ

• Extend marine licensing exemptions^[1] to activities occurring in ABNJ

• Update licensing exemptions where needed to appropriately reflect the division of licensing responsibilities between relevant authorities

2.5.2 The consultation aimed to seek views on these approaches to ensure the UK can meet BBNJ obligations while keeping regulation proportionate to the activities taking place in ABNJ. It also aimed to reassess the split of licensing activities in ABNJ across the two licensing regimes (UK and Scotland). A list of the consultation question can be found in Annex A.

2.5.3 The consultation was aimed at anyone with an interest in marine activities which are regulated under UK control or jurisdiction in ABNJ, and encouraged responses from anyone who may be required to apply for a marine licence, including:

• businesses and operators that carry out, or plan to carry out, these activities (including exempted activities) in ABNJ
• conservation bodies and other groups that are concerned about the effects of activities on the marine environment, navigational matters and human health
• businesses that may be involved with novel uses of the marine environment

2.5.4 When the consultation closed, the UK Government shared redacted responses with the Scottish Government in order to conduct a rapid review, and consider comments pertinent to development of the SSI.

2.6 Purpose of summary report

2.6.1 An SSI is required to amend the Scottish marine licensing system to make the changes required for implementation of the BBNJ Agreement. Due to the time pressures brought on by a delay of consultation opening, and the upcoming Scottish election, the development of the SSI is progressing under a shortened timeframe. A rapid review of consultation responses is therefore required, which will take into consideration Scottish-relevant responses and inform updates to Scotland’s marine licensing regime in order to introduce the SSI and thus enable UK’s treaty ratification. This summary report also outlines initial analysis of any key points. A joint-Government response with DEFRA will be published at a later date.

2.7 Method of reviewing responses

2.7.1 After consultation closed, DEFRA provided redacted copies of all consultation responses. Responses which were classed as Scottish-relevant and met the following criteria were prioritised for review in this summary report. These included:

• Those who responded from the list of Scottish-identified stakeholders (Annex B) - or other easily identified Scottish based stakeholders (e.g. response mentions location within Scotland)
• Any stakeholders who responded to Question 8 which is specific to Scotland
• Any respondents who referred directly to 'Scotland' or 'Scottish' in their response.

2.7.2 It was also agreed that if a respondent answered only one question relevant to any of the criteria above, that all responses to the other questions submitted would be taken into account when reviewing.

2.7.3 However, to ensure any comments or issues raised on subjects relevant to the wider UK approaches were considered, the Scottish Government has had regard to all consultation responses to help to ensure alignment with the UK Government when drafting the SSI.