Unity or Fragmentation in the Deep Blue: Choices in Institutional Design for Marine Biological Diversity in Areas Beyond National Jurisdiction

Abstract

Delegations are in the final stages of negotiating the proposed 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 (BBNJ Agreement or Agreement). The Agreement will have tremendous scope. Geographically it covers all ocean areas beyond national jurisdiction, meaning approximately 60 percent of the earth’s surface. Substantively it deals with a range of complex topics necessary for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including marine genetic resources, 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. Existing scholarship primarily explores the substantive choices for the Agreement; little examines its proposed institutional structure. This article critically assesses the competing positions advanced during negotiations for the Agreement’s institutional structure – the ‘global’ and ‘regional’ positions – and reviews the middle, or ‘compromise’ position adopted by the draft text. It suggests that both global and regional actors will be necessary to conserve and sustainably use marine biological diversity of areas beyond national jurisdiction, and that some form of coordinating mechanism is required to allocate responsibility for particular tasks. Two principles are proposed for use in combination to provide a mechanism to help coordinate Agreement organs (global) and regional or sectoral bodies, namely, the principles of subsidiarity and cooperation. These principles are found in existing international and regional structures but are advanced here in dynamic forms, allowing for temporary or quasi-permanent allocation of competences, which can change or evolve over time. This position is also grounded in the international law of treaties and furthers dynamic views of regional and global ocean governance by offering practical coordinating principles that work with the existing Agreement text.

China’s choice on the participation in establishing marine protected areas in areas beyond national jurisdiction

“…(2) whether disputed areas should be included in MPAs; (3) the indicative criteria for the identification of areas requiring protection; (4) rights of adjacent states (Scott, 2019); and (5) management models (Berry, 2021). The "environmentalists" represented by the European Union, Australia and New Zealand called for the negotiation of the BBNJ international agreement to be completed as soon as possible to build up the construction of MPAs.…”

Towards an Ecosystem Approach to Management in Areas Beyond National Jurisdiction: REMPs for Deep Seabed Mining and the Proposed BBNJ Instrument

“…Options for practical arrangements to implement integrated biodiversity conservation in ABNJ are either through a mandatory cooperation requirement to all actors, through recommended collaborative arrangements among competent bodies, or as a minimum through voluntary commitments to collaborate towards a sustainable environmental governance agenda, such as through regional platforms mediating sectoral interests, regional spatial planning exercises complementing regional assessments, joint regional action plans or joint environmental monitoring programmes. Several constellations between central and polycentric governance arrangements are thinkable (Berry, 2021;Gjerde and Yadav, 2021). In any case, the sharing of competences and an unambiguous allocation of responsibilities to the different actors (Berry, 2021) as well as the will to mutual learning, building trust, adjustment and coordination (Gjerde and Yadav, 2021) will be crucial to make progress to achieving the biodiversity goals.…”

“…Several constellations between central and polycentric governance arrangements are thinkable (Berry, 2021;Gjerde and Yadav, 2021). In any case, the sharing of competences and an unambiguous allocation of responsibilities to the different actors (Berry, 2021) as well as the will to mutual learning, building trust, adjustment and coordination (Gjerde and Yadav, 2021) will be crucial to make progress to achieving the biodiversity goals.…”

The Need for a Global Ocean Vision Within Biodiversity Beyond National Jurisdiction: A Key Role for Strategic Environmental Assessment

“…This is further reflected in language pertaining to international cooperation and coordination of Area-Based Management Tools stressing the need to recognise their coherence and complementarity. Several commentators have also reflected on implications of this principle for institutional arrangements of the new Agreement (e.g., Clark, 2020;Berry, 2021) and global cooperation (Friedman, 2019). Considerable discussion was devoted to cross-cutting issues such as the remit of the Conference of the Parties (COP) and subsidiary bodies that the COP could establish.…”