Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction

Abstract

Abstract States have committed to “not undermine” relevant existing legal instruments, bodies, and frameworks in their negotiations over a new, legally binding instrument concerning biodiversity in areas beyond national jurisdiction (ABNJ). An agreed interpretation of “not undermine” will most likely be expressed through the institutional model adopted by this new instrument. Potential models should be evaluated in light of limitations on existing regional and sectoral ocean governance organizations, which may suggest governance gaps that the new instrument may fill. This article revisits the textual analysis of “not undermine” undertaken by Scanlon (2018) to explore its implications for the institutional models available to the new instrument. It reviews the practice of regional fishery management organizations as presented by Scanlon to identify areas where the new instrument might address persistent challenges. Finally, it suggests several potential models for the new instrument that might avoid “undermining” whereas improving governance outcomes in ABNJ. It concludes that a global institution with consultative links to existing organizations may provide the most logical means of implementation.