Biodiversity Beyond National Jurisdiction: Regimes and Their Interaction

Abstract

International efforts to better conserve the marine biological diversity of areas beyond national jurisdiction (BBNJ) through a new international legally binding instrument 1 are developing in a context of established norms and institutions. Existing regimes already address specific marine sectors (such as shipping), regions (such as fishing in the South East Atlantic), species (such as whales), and even underlying customary international law and territorial concepts (including the boundaries of the "high seas" 2 ). States have agreed that they will not "undermine" these existing frameworks. 3 We seek to contextualize this commitment within the fragmentation of international law and the interaction between regimes. 4 We argue that international law-making should not be overly restricted by deference to existing competencies and mandates, which are fluid and asymmetrically supported. An inclusive and adaptive approach to existing and future institutions is vital in the ongoing quest for integrated and effective oceans governance. A New Implementing Agreement and Relevant RegimesNegotiations for the new instrument will address the marine biological diversity of areas beyond national jurisdiction with a focus on marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology. 5 These elements reflect a long-standing recognition of unsustainable ocean use and management in areas that are not subject to the sovereignty of coastal states. Negotiations will thus elaborate a text that aims to improve on the * Associate Professor, Melbourne Law School.

On Dilemmas and Solutions for the Issues of High Seas Marine Protected Areas During the BBNJ Negotiation

“…Despite the definition of the OSPAR Commission has the elements of objectives, geographic scope and management measures, but it is not clear whether this definition includes MPAs established in the seabed area. However, the MPA networks of the North-East Atlantic are so far consisted by 7 high seas MPAs and 5 of them are located in the seamount or mid-ocean ridge areas (Young and Friedman, 2018). Hence, the ILBI should determine whether the geographic scope of MPAs' definition includes the seabed areas.…”

Revisiting Bioprospecting in the Southern Ocean in the Context of the BBNJ Negotiations

“…8 However, the ILBI will not be developed in a legal vacuum, but rather within the context of the current global and regional legal frameworks for BBNJ. 9 Globally, the LOSC and the Convention on Biodiversity (CBD), 10 albeit subject to jurisdictional limitations, 11 constitute two "main framework treaties" for BBNJ. 12 In addition to those global treaties, the Antarctic Treaty System (ATS) represents an example of a regional regime for BBNJ.…”

Reflecting on the Role of the Arctic Council vis-à-vis a Future International Legally Binding Instrument on Biodiversity in Areas Beyond National Jurisdiction

“…7 The aim of the IGC is to develop an "international legally binding instrument 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" (ILBI). 8 While the BBNJ negotiations represent an important opportunity "to promote a dynamic, inclusive, and adaptive approach to oceans governance," 9 it was also stressed that "a major concern in negotiating the ILBI is the avoidance of the potential for fragmentation of the law and decision-making procedures." 10 And indeed, one key problem is how to integrate the future ILBI within an already crowded global and regional normative landscape, where many instruments, frameworks and bodies operate with complementary, overlapping and sometimes competing mandates.…”