The Necessity of a Global Legal Framework for Protection of Marine Biodiversity in Areas beyond National Jurisdiction

Abstract

This paper will consider whether the ‘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’ (BBNJ agreement) could provide the basis for an integrated framework for the conservation and sustainable use of marine biological diversity in the area beyond national jurisdiction, and if in doing so, it could in turn give any impetus to the obligation of States to protect the marine environment stipulated in Article 192 of the United Nations Convention on the Law of the Sea (UNCLOS). To answer this question, Section 2 will briefly explain the gaps in two relevant international treaties for conservation and sustainable use of the marine biological diversity of areas beyond national jurisdiction (ABNJ). Section 3 will clarify the binding character of the BBNJ agreement in comparison to the existing relevant international agreements, such as the 1995 Fish Stocks Agreement and the Part xi Agreement. Section 4 will analyse provisions in area-based management tools and the environment impact assessment stipulated in the BBNJ draft text, to assess their role as an important basis for the conservation and sustainable use of marine biological diversity. Based on these analyses of the BBNJ draft text, Section 5 will then turn to consider the necessary elements that stand to play potentially significant roles as legally-binding tools for the conservation and sustainable use of the marine biological diversity of ABNJ. Three such elements are to be identified, the first being the binding effect of the due diligence obligation imposed by the BBNJ agreement, which could serve as a global tool for the conservation and sustainable use of marine biological diversity. The second element is the means to ensure effective implementation of the BBNJ agreement, wherein the institutional framework would play a decisive role. The third element is the characteristics of the due diligence obligation referred to in the first point. As a further consideration, Section 6 will also specifically examine the due diligence obligation for the protection of marine biological diversity of ABNJ.