The relationship between the continental shelf regime and a new international instrument for protecting marine biodiversity in areas beyond national jurisdiction

Abstract

States have acknowledged that the new internationally legally binding instrument (ILBI) for the conservation and sustainable use of marine biodiversity beyond national jurisdiction must take account of the interests of coastal states with continental shelves that extend beyond 200 nautical miles. This article argues that the ILBI should go beyond repeating the existing legal position as set out in international treaties and customary international law. In particular, the concept of sedentary species is unhelpful in the context of a legal regime governing the use of marine genetic resources. The article makes a number of suggestions for possible inclusions in the ILBI to clarify the relationship between the continental shelf regime and the regime for biodiversity beyond national jurisdiction.

The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review

“…RFMOs (Tladi, 2015) Secretariat (DOALOS) (Tladi, 2015) legal, scientific and/or technical commission (Tladi, 2015) COP for adoption (Marciniak, 2017); decision-making body (Tladi, 2015;Gjerde et al, 2016Gjerde et al, , 2019 Involvement of all relevant sectors stakeholders (De Santo, 2018), including the fisheries industry and scientific community, in monitoring, control and surveillance activities through e.g., data collection and sharing UNCLOS Duty to "protect and preserve the marine environment" (Tladi, 2015) Art. 194( 5): Legal basis for the establishment of MPAs in ABNJ, but no provision regarding procedures for their designation and management (Elferink, 2019) Due regard and adjacency: "Due regard" provides the general benchmark for addressing the relationship between coastal States and States carrying out activities in ABNJ (necessary for BBNJ, otherwise not consistent with UNCLOS); "adjacency" only in the context of the regime for fisheries (Elferink, 2018) UNFSA "Duty to cooperate" to influence organizations without undermining them; "ecosystem approach"; "precautionary approach"; "science based approach" (Art.5); mechanisms for international cooperation (Part III) (Gjerde et al, 2019) Compatibility and adjacency of Article 7, ensuring that measures for the high seas "do not undermine the effectiveness" of measures adopted by coastal State; "compatibility" elaborates on rights and obligations of States to cooperate in relation to straddling fish stocks and highly migratory fish stocks (Elferink, 2018 et al, 2018) CBD Capacities of regional organizations vary (Ribeiro, 2017;De Santo, 2018;Mossop, 2018) Limited geographical coverage of ABNJ through existing instruments: Abidjan convention (Dias et al, 2017;Ribeiro, 2017), Cartagena Convention (Ribeiro, 2017); abyssal regions in OSPAR MPAs (Evans et al, 2015); no coverage of South American Atlantic waters (Dias et al, 2017) Limited powers of OSPAR and NEAFC to prosecute individuals and need commitment of commercial industries, such as fishing and shipping (Evans et al, 2015) Failure of South Orkney Islands MPA, which leaves several pelagic bioregions and geomorphic zones unrepresented and adjacent regions with highest conversation value unprotected in or...…”

Seamounts, plateaus and governance issues in the southwestern Indian Ocean, with emphasis on fisheries management and marine conservation, using the Walters Shoal as a case study for implementing a protection framework

“…Yet, these possibilities will remain pure theory if not connected to documented and scientifically supported cases of seamounts, alongside diplomatic actions and financial resources allocated to this aim. Nevertheless, a number of issues still need to be resolved within the ILBI with relevance to seamounts, inter alia: a more clear definition of the sedentary species (still open to controversy) especially the fact that such status is disconnected from the concept of biodiversity, the possibility to develop area-based measures (ABMTs) in the water column in support of environmental protection of the shelf (or seamount) biodiversity, and the articulation of the new regulation with existing regional and global organizations (Mossop, 2017). In the following section, we shall connect these reflections with a practical case, the Walters Shoal, and discuss whether it could be a candidate for a fully protected seamount.…”

Adjacency and due regard: The role of coastal States in the BBNJ treaty

“…This issue is an especially acute consideration where areas of high seas within ABNJ overlie areas of continental shelf that extend beyond 200 nautical mile exclusive economic zone (EEZ) limits -areas that encompass over 37 million km 2 [9]. While the coastal State has sovereign rights over sedentary species in these areas in accordance with article 77(4) of UNCLOS, the reality is that many of the species concerned are part of complex benthic ecosystems that span the seabed/water column divide and, indeed, may spend part of their lifecycle in the water column, for instance in larval or juvenile stages, and the remainder on the seabed, thus transcending the ABNJ/AWNJ divide [10,11]. Of even wider significance is that ecosystems can be connected to distant parts of the ocean either passively through ocean currents or actively through the migratory patterns of sea birds, sea turtles, sharks and marine fish [12,13].…”