Three Structural Pillars of the Future International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction

Abstract

The Intergovernmental Conference on marine biodiversity of areas beyond national jurisdiction has started its work on the development of an international legally binding instrument (ILBI) on the conservation and sustainable use of such biodiversity. The negotiations on marine biodiversity beyond national jurisdiction (BBNJ) will therefore further evolve within this new stage of the process. Based on a role-playing game conducted with students of the master's in public international law at Utrecht University, this chapter looks at how the regulation for marine biodiversity in areas beyond national jurisdiction could unfold by analysing three structural aspects of the development of the ILBI. First, as the ILBI is to be developed as an agreement under the United Nations Convention on the Law of the Sea, the first substantive section focuses on the relationship between the two treaties (Sect. 2). The next section looks at biodiversity itself, through the relationship between the Convention on Biological Diversity and the ILBI, notably on how the instruments could complement one another in areas beyond national jurisdiction (Sect. 3). Finally, the last substantive section assesses the character of the ILBI, to see whether institutional arrangements should be rooted in a global, region/sectoral and/or hybrid approach (Sect. 4). These three issues form, in our view, the three pillars of the structural development and practical significance of the ILBI.While the authors share collective responsibility for this chapter, Otto Spijkers was the lead author of Sect. 2, Catherine Blanchard of Sect. 3, and Wen Duan of Sect. 4.

The International Legal Regime relating to Marine Protected Areas in Areas beyond National Jurisdiction: Identifying and Addressing Gaps

“…66 Legal positivism separates the law from morality and considers that law is "the observable phenomenon of legislation, custom and adjudication by courts and other legal institutions". 67 Thus, legal positivism is suitable for research that intends to describe and interpret the law as it is. 68 The analysis of this PhD research will primarily determine the content of legal rules in relation to MPAs in ABNJ.…”

“…62 Gjerde et al also note that the key global concerns related to the conservation and sustainable use of marine environment and biodiversity beyond national jurisdiction may not be addressed by the existing focus on MPAs in ABNJ only at the regional level. 63 Thus, there is a need for developing a global or centralised regime dealing with the establishment of MPAs in ABNJ at the global level, 64 which can fill the gap in the geographical coverage of existing legal regimes related to MPAs in ABNJ in those regions where a regime competent to establish MPAs in ABNJ is absent or the regional regimes competent to establish MPAs in ABNJ perform inadequately.…”

“…Chapter 2 analyses the general obligations and principles relating to MPAs in ABNJ and addresses the question as to whether those 62 Kristina M. , p. 369. 63 Ibid. 64 See Ibid.,p.…”

“…If the measures relating to MPAs in ABNJ have no legal effect on non-party States, their effectiveness would be reduced. 65 The issues concerning the legal effect on non-party States will be analysed in Chapter 4.…”

“…60 This is because the establishment of an MPA, by its nature, represents the formulation and elaboration of regulations that are more stringent in defined marine areas than their surroundings. Such regulations may include more stringent discharge standards (special mandatory methods for the prevention of marine pollution in Special Areas 61 ), special navigation standards (mandatory routeing in PSSAs 62 ), and more stringent procedures for carrying out certain activities (mandatory prior permit for entry into ASPAs 63 ) and so on.…”