On 8 June 2018, The Netherlands and Ocean Cleanup signed an Agreement between the State of the Netherlands and The Ocean Cleanup concerning the deployment of systems designed to clean up plastic floating in the upper surface layer of the high seas to facilitate and support the activities of ‘The Ocean Cleanup’ on the high seas, whilst also fulfilling the duty of care of the Netherlands under UNCLOS at the State of nationality of ‘The Ocean Cleanup’ (a dutch entity) concerning its activities on the high seas. Consistent with Article 7, this Agreement was extended in 2023 following an evaluation, with the intention of the Parties to seek amending and updating the Agreement. This update sought to address developments in how the activities of the Ocean Cleanup occur, as well as developments in the international regulatory field, notably the adoption of the BBNJ Agreement and updated safety standards (Ministry of Infrastructure and Water Management Decision Note (2024)).
On 29 May 2024, The Netherlands and Ocean Cleanup signed an Agreement to amend and update the Agreement between the State of the Netherlands and The Ocean Cleanup concerning the deployment of systems designed to clean up plastic floating in the upper surface layer of the high seas to “extend the Agreement as well as to update it to take into account the latest insights and developments”. The amended agreement contains numerous elements of interest to the law of the sea, including the promotion of “national and international cooperative measures to reduce plastic pollution in the marine environment, including existing plastic pollution” (UNEP Resolution 5/14 (2022), para 3(c); 2024 Amendments – Explanatory notes, p. 2).
To highlight here, one may note the existence of State practice reflecting relevant “best practice” for implementing the environmental impact assessment pillar (Part IV) of the BBNJ Agreement (not formally provisional application under BBNJ Agreement, Article 69). The wording of Article 3.1a of the Agreement “has been based as far as possible on the wording of the recently signed BBNJ Agreement” (2024 Amendments – Explanatory notes, p. 3).
Article 1.2 Interests
2018 Agreement between Netherlands and Ocean Cleanup (as amended, 29 May 2024) [amendments in bold]
The Parties will take appropriate precautionary measures to secure the safety of shipping, the protection of the marine environment and marine biodiversity and other uses of the high seas.
[…]
Article 3.1a Environmental impact assessment
The Minister may carry out an evaluation of the screening or the environmental impact assessment or have it carried out by an independent third party. If the conclusions of the third party differ from the screening or assessment by The Ocean Cleanup, the parties may consult with each other about this.
The Ocean Cleanup shall conduct a screening for any significant change made to the design of the system or to the manner in which the system operates, when it is expected that this significant change may have more than a minor or transitory effect on the marine environment or when the effect of this significant change are unknown or poorly understood, to determine whether an environmental impact assessment is required.
If reasonable grounds are found for believing that the significant change referred to in paragraph 1 may cause substantial pollution of or significant and harmful changes to the marine environment, The Ocean Cleanup shall conduct an environmental impact assessment on the basis of relevant national or international legislation. This involves identifying, as much as reasonably possible, the possible effects on the ecosystem and the costs and benefits of the cleanup activities on the marine environment.
The Ocean Cleanup will inform the Minister in good time that the screening or environmental impact assessment, as the case may be, is being carried out and will submit the results to the Minister as soon as reasonably possible.
De Maribus 