Biodiversity Beyond National Jurisdiction Research Articles

The social science side of marine biodiversity monitoring

Abstract Marine biodiversity monitoring is a complex task given the vast ocean areas to be covered, the types of data to be integrated, and the large number of possible parameters to consider when measuring biodiversity change. International agreements, such as the Convention on Biological Diversity (CBD) or the recently adopted ‘BBNJ treaty’protecting biodiversity beyond national jurisdiction (BBNJ), encourage states to monitor marine life both within and beyond their national waters to foster marine biodiversity conservation and sustainable use. While oceanographers in general, and marine biologists in particular, are aware of the challenges and complexities of measuring biodiversity in the ocean, the politics of marine biodiversity monitoring and the added value of social science perspectives tend to be neglected. This story from the frontline describes our experiences with turning marine biodiversity monitoring into an object of social science inquiry. The MARIPOLDATA project developed an innovative multi-sited approach to capture both the politics and practices of monitoring marine life. During our research, we were confronted with a diversity of perspectives and expectations of what monitoring is, how it works, why it should be done, and whom it should serve. By adopting a mixed-method approach and collecting data at different epistemic sites (negotiation rooms, scientific fields, laboratories, and conferences), we tried to cut through some of the observed ambiguities and trends. We conclude that studying monitoring necessitates a multidisciplinary approach and a sensitivity for the regional, institutional, and cultural specificities and inequalities that shape how we know and govern the ocean.

Assessing the Legal Framework for Marine Protected Areas in High Seas: Challenges and Prospects under the UN BBNJ Agreement

Oceans, integral to a healthy global ecosystem, are protected partly through marine protected areas (MPAs). Despite numerous MPAs within national jurisdictions, the Areas Beyond National Jurisdiction (ABNJ) remain significantly neglected. Currently, most MPAs in ABNJ are governed by the OSPAR or CAMLR frameworks, which exhibit substantial deficiencies due to the fragmented state of international laws. United Nations Convention on the Law of the Sea (UNCLOS), for instance, offers limited provisions for ABNJ. To address these legislative gaps, negotiations for the Biodiversity Beyond National Jurisdiction (BBNJ) were initiated, leading to the successful adoption of the BBNJ Agreement in March 2023. This paper critically examines the existing regional treaties overseeing high-seas MPAs and explores the innovative approaches introduced by the BBNJ Agreement for the conservation and sustainable use of marine biological diversity in ABNJ. The analysis concludes that the BBNJ Agreement provides a more comprehensive and sustainable management framework for high-seas MPAs, thus effectively overcoming the limitations inherent in regional treaties.

When the “best available science” is not good enough: The need for supporting scientific research in the United Nations treaty to protect biodiversity beyond national jurisdiction

The distant ecosystems of the high seas are growing closer every year as humans create and deploy novel technologies to harvest resources from the open ocean. A new international agreement, the treaty for Biodiversity Beyond National Jurisdiction (BBNJ), is intended to ensure the conservation and sustainability of such ecosystems. Among other issue areas, the BBNJ agreement establishes requirements for conducting Environmental Impact Assessments (EIAs) for activities within (or impacting) Areas Beyond National Jurisdiction. This short communication argues that the EIA process created by the BBNJ treaty will not be effective at achieving the goals of conservation and sustainable use of marine biodiversity beyond national jurisdiction without strong scientific support. The basic problem is that EIAs require more information than what is available for even the most accessible marine ecosystems in Areas Beyond National Jurisdiction. We consider three cases of ocean uses – plastic cleanups, deep seabed mining, and mesopelagic fisheries – to demonstrate that available scientific knowledge is insufficient to conduct and evaluate informative EIAs. We suggest three ways that the Scientific and Technical Body established by the BBNJ agreement could be augmented by the Conference of Parties in order to help avoid dysfunction in the EIA process, support scientific discovery, and increase environmental protection.

Voice, capacity, awareness: Early career ocean professionals’ perspectives on the equitable implementation of the Biodiversity Beyond National Jurisdiction Agreement

Abstract The urgent need for the conservation and sustainable use of the ocean has come into focus as an international concern over the last decade, prompting negotiations for a new legally binding instrument under the UN Convention on the Law of the Sea to conserve and sustainably use marine biodiversity of areas beyond national jurisdiction: the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement. After almost 15 years of debate, the BBNJ Agreement was concluded in March 2023. This paper is an opinion piece that showcases our perspectives as two early career ocean professionals from developing countries (Brazil and Cabo Verde) who participated as observers in the Fifth Intergovernmental Conference for the development of the BBNJ Agreement, held in 2022 and 2023. We identified factors that affected the equitable participation of professionals from developing countries in the BBNJ Agreement process. We offer our reflections on the underrepresentation of some countries in negotiations, as well as in science, and the factors hindering capacity to express their own needs and concerns. We present three suggestions for creating more equitable participation of countries in such negotiations and enabling the future implementation of the BBNJ Agreement by developing countries: (1) Increase professional opportunities and develop capacity of early researchers from developing countries; (2) fair participation in implementation of BBNJ Agreement; and (3) enabling capacity in developing countries to be sustained in the long term.

Negotiating regime complexity: Following a regime complex in the making

AbstractThis article broadens the understanding and empirical study of regime complexes by shifting the focus from the negotiation outcome to the processes of negotiating new international agreements. Although they are important to regime-complex formation and delimitation, the sites where states negotiate new agreements are rather neglected. We aim to enhance the methodological toolbox available to scholars studying global governance in two ways: (1) by demonstrating how dynamic relationships between states and international organisations (IOs) unfolding within the social space of international treaty negotiations contribute to regime-complex formation; and (2) how social network analysis (SNA) can help us to detect patterns in these relationships. Combining participant observation and collaborative event ethnography (CEE) with social network analysis, we present new empirical material illustrating how we delimited a regime complex and how IOs interact throughout the negotiation process. We applied our methodology to the case of marine-biodiversity governance and use observational data collected during three intergovernmental conferences (IGCs) (2018–19) on a new treaty for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) for our analysis. We discuss the results in relation to our approach’s strengths and weaknesses and implications for future research on regime complexity.

The influence of Antarctic governance on marine protected areas in the Biodiversity Beyond National Jurisdiction Agreement negotiations

With the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement adopted, the negotiations process left questions related to what would be included in the final text and how the BBNJ Agreement architecture would function. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), an international body, has successfully established high seas marine protected areas (MPAs), a key aspect of the BBNJ Agreement. Here, we investigate if and how CCAMLR has influenced negotiations on the BBNJ Agreement and how it may influence the forthcoming structure. This work used ethnographic notes and documents from the negotiations and interviews with actors who overlapped at both the BBNJ negotiations and the CCAMLR meetings to elucidate themes of influence that CCAMLR has had on the BBNJ negotiations. We found that CCAMLR is influencing the BBNJ negotiations in several ways, including through setting precedent and as an example for lessons learned. Additionally, we found that there was a divergence of views on whether CCAMLR would be considered a competent body by the decision-making mechanism of the BBNJ Agreement to establish MPAs due to the issues CCAMLR faces on reaching consensus. We found that some aspects of CCAMLR, such as the exclusivity (i.e., restricted to only actors working within the CCAMLR space) was perceived negatively by interviewees, thus affecting the BBNJ Agreement negotiations through hidden red lines. With the BBNJ Agreement adopted, there is still the potential for CCAMLR to be an example for the BBNJ structure and to be a participant in the BBNJ Agreement architecture.

How Australia’s Middle Power Identity Has Informed Its Behaviour at the BBNJ Negotiations

Abstract The negotiations for a new international legally binding instrument to conserve and sustainably utilise marine biodiversity beyond national jurisdiction (BBNJ) have been the subject of much analysis and commentary since their commencement. Yet there is still relatively little consideration of what can be learnt about state behaviour from the BBNJ negotiations. This article engages in an analysis of Australia’s behaviour as a case study of the often-overlooked category of middle power states. Hence, this article is envisioned as an exploratory study into middle powers in international environmental negotiations, with the goal of prompting further exploration of both the BBNJ negotiations specifically, as well as the role of different kinds of states in the creation of international environmental law. The overarching question being asked here is “How has Australia’s middle power identity informed its behaviour at the BBNJ negotiations?”

The ship has reached the shore: The final session of the ‘Biodiversity Beyond National Jurisdiction’ negotiations

The negotiations for a new legal instrument for Biodiversity Beyond National Jurisdiction (BBNJ) concluded in March 2023 with a successful, and somewhat surprising, finalization of a treaty. The BBNJ treaty is a remarkable achievement. But these outcomes – the circumstances of finalization and the content of the final agreement – are complicated to explain. They are the result of the complex interactions between different avenues of influence and constraint, a broad and multifaceted set of interested parties, and the shifting modalities and pressures that characterized the negotiations. This paper is the sixth in a series of analyses that help explain the outcomes of the BBNJ process by tracing the patterns and trends that shaped negotiations at each inter-governmental conference (IGC). We use a combination of process tracing, narrative coding, and ethnographic methods in order to construct a thick description of the negotiations that sheds light on the drivers and shapers of the process. In this analysis, we focus on the role of diplomatic practices in a pressurized environment, and the assignment of particular functions and decisions to as-yet-unconstituted BBNJ bodies, such as the Conference of Parties. The paper concludes by considering the future implementation of the BBNJ agreement, and associated research agendas.

Protecting the Salas y Gomez and Nazca Ridges: A review of policy pathways for creating conservation measures in the international waters of the Southeast Pacific

Seamount ecosystems host ecologically important species, including many that are found nowhere else on Earth. The Salas y Gomez and Nazca Ridges, two adjacent seamount chains in the Southeast Pacific, are biodiversity hotspots marked by the highest levels of marine endemism on Earth. Historically isolated from many human activities, this region has produced a unique biodiversity and provides an excellent opportunity for protecting a global biodiversity hotspot before it is degraded. However, no legal protection mechanism currently exists for comprehensively protecting areas beyond national jurisdiction (ABNJ) of the Salas y Gomez and Nazca Ridges. After years of negotiations at the United Nations for a legally binding instrument to address conservation in ABNJ, the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement was finally agreed in March 2023. While this Agreement may provide one avenue for protecting the high seas, the Agreement has yet to be adopted and ratification may take several years. As it stands, conservation efforts in ABNJ will rest on sectoral bodies primarily set to manage large-scale industries like fishing, shipping, and mining, but that do have the ability to enact conservation measures other than restricting these industrial activities. Our study provides an overview of the major international organizations managing activities in the ABNJ of the Salas y Gomez and Nazca Ridges, identifies current conservation measures, and maps out potential policy pathways for creating conservation measures in this unique region. Our synthesis focused on identifying conservation procedures within the documents of international organizations and applying their rules and procedures to implement conservation measures. We identify three potential pathways. A regional and national pathway that relies on cooperation among international organizations spearheaded by the South Pacific Regional Fisheries Management Organization (SPRFMO), and an international pathway through the BBNJ Agreement.

The BBNJ agreement and liability

The Biodiversity Beyond National Jurisdiction (BBNJ) negotiations are approaching the final phase, with significant urgency to conclude an agreement. But the current draft text lacks provisions for liability and compensation. This short communication investigates that absence, and its impact on consistency with UNCLOS and implementation effectiveness. It also considers existing models for liability and compensation, and questions why the Group of 77+China coalition has backed off its insistence on such provisions. In other words, the paper answers the “what,” “why,” and “how” for the inclusion of liability and compensation in the BBNJ agreement.

From Undermining to Strengthening:

Abstract Among the most pressing issues that remain unresolved in the process of negotiating a new international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ) are the institutional arrangements, as they underpin the treaty as a whole. This article seeks to shed new light on the question of what institutional shape the ILBI should take, by closely analysing the pluralistic governance model that is reflected in the BBNJ Draft text and exploring its potential normative and institutional interactions with the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), under which a vast network of marine protected areas (MPAs) has been put in place. The BBNJ ILBI has great potential to strengthen regional bodies in their endeavours to establish MPAs as opposed to ‘undermine’ them.

Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex

The ongoing negotiations for a legally binding UNCLOS (United Nations Law of the Sea Convention) Implementing Agreement for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) take place within the framework of a complex landscape of existing International Organizations (IOs) addressing different aspects of ocean governance relevant to the principles and provisions of the new BBNJ Agreement. Addressing the relationship to other instruments, Art. 4 of the current BBNJ draft text indicates that the instrument should not ‘undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’. This article seeks to clarify which existing ‘legal instruments and frameworks’ have such a contingent relation to the BBNJ Agreement, in which provision of the draft text they may play a role, and to formulate policy recommendations based on the observed complexity. Using ethnographic data collected during three intergovernmental conferences (IGC), we give an overview about involved IOs and their relation to the BBNJ negotiations. Acknowledging the complex interrelations and overlaps between a myriad of IOs and different provisions of the Treaty, we identify the emergence of a BBNJ regime complex. We identify a total of 52 involved IOs of which 10 are mentioned in the latest version of the draft text. We argue that IOs which policymakers perceive as relevant to BBNJ need to be considered in the implementation of the BBNJ agreement and urge negotiators to carefully define relationships with IOs to strengthen cooperation in the implementation of the BBNJ agreement.

Direction, not detail: Progress towards consensus at the fourth intergovernmental conference on biodiversity beyond national jurisdiction

After a two year delay caused by the COVID-19 pandemic, the fourth intergovernmental conference (IGC-4) in the negotiations for a new UN treaty to address the conservation and sustainable management of biodiversity beyond national jurisdiction (BBNJ) took place in March 2022. This meeting differed substantially from previous IGCs in terms of process, with much of the discussions occurring in ‘informal informals,’ or off-the-record meetings open only to delegates and registered observers. Additionally, in-person participation was extremely limited and observers only had access to web broadcasts, i.e., no in-person interactions with delegates. A draft text of the treaty was circulated in advance and provided the basis for discussion and negotiation at the meeting. This paper examines IGC-4 in line with previous analyses of the first three IGCs, tracing the process and outcomes to date, aiming to understand the factors and players that are building a new BBNJ agreement. Key themes explored include marine genetic resources (MGRs), area-based management tools, including marine protected areas (ABMTs/MPAs), environmental impact assessment (EIA), and capacity building and transfer of marine technology (CB/TMT). Some progress toward consensus has been made, buoyed by intersessional discussions, but several sticking points remain with regard to definitions, content, and processes enshrined in the draft treaty, and a fifth IGC is scheduled to take place from 15 to 26 August 2022.

The diverse benefits of biodiversity conservation in global ocean areas beyond national jurisdiction

The end of the long and winding road towards a milestone new treaty focused on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) is near. The BBNJ treaty has the potential to dramatically transform environmental stewardship in the high seas, making it essential that vigorous support towards a strong treaty continues, without weakening the agreement’s full potential. Historically, the dialogue surrounding the BBNJ negotiations has focused on the agreement’s environmental and conservation-related impacts. Here, we begin to highlight the many diplomatic, economic, and social benefits of a vigorous and equitable BBNJ treaty. We found that strong support for the BBNJ treaty could strengthen multilateral institutions and bolster international cooperation towards common environmental goals. It could also enhance the health of shared marine ecosystems and resources and drive truly sustainable ocean-based economic growth. Finally, the treaty provides an opportunity to engage equity as a key principle, to begin tackling global ocean inequalities in a meaningful way. Together, we find that the new treaty has the potential for widespread and diverse benefits for all member nations. It is past time for the international community to address the global governance gap in the high seas in an ambitious and equitable manner.

Australia and the pursuit of “not undermining” regional bodies at the biodiversity beyond national jurisdiction negotiations

The United Nations General Assembly Resolution 69/292 formally established the negotiations on a new legally binding instrument for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ). This resolution stated that the instrument “should not undermine” existing bodies and legal instruments. While a consensus on the accurate legal interpretation of this requirement has largely eluded the delegations, it is rather how this directive is utilised by states within the negotiations that is most revealing. Specifically, this article will explore Australia’s use of the “not undermining” directive at the BBNJ negotiations in order to further clarify its potential function. Of particular interest is how states may shape the direction of the negotiations to serve their policy interests through relying on the authority of this original directive. Australia’s interests in Regional Fisheries Management Organisations (RFMOs) will serve as a case study when examining how this phenomenon plays out in practice. Ultimately, tentative answers to burning questions regarding “not undermining” will be determined based on Australian positions. These answers will be contrasted with the current BBNJ draft text in order to highlight how state interests at the negotiations will affect the meaning prescribed to the “not undermining” directive going forward.

Implementing the Duty to Cooperate under the 1982 UNCLOS for the Conservation and Sustainable Use of Biodiversity in Areas beyond National Jurisdiction under a New BBNJ Agreement

Abstract This article examines the duty to cooperate under the United Nations Convention on the Law of the Sea (UNCLOS) in relation to the obligations of States to protect and preserve the marine environment and in relation to the protection of the marine environment in areas beyond national jurisdiction. It demonstrates that the new Biodiversity Beyond National Jurisdiction (BBNJ) Agreement plays an important role in creating the necessary mechanisms for cooperation, thereby fulfilling the multiple obligations that States have under UNCLOS to cooperate regarding the protection and preservation of areas beyond national jurisdiction. Additionally, the BBNJ Agreement provides an important opportunity for States to effectively operationalize the UNCLOS provisions for marine scientific research, as well as the development and transfer of marine technology and capacity building. This article further analyses the duty to cooperate in relation to area-based management tools and environmental impact assessments, which are also key components of a broad framework of global cooperation under the BBNJ Agreement.

International cooperation and coordination in the Global Legislation of High Seas ABMTs including MPAs: Taking OSPAR practice as reference

In the negotiation of the new Agreement on the conservation and sustainable use of marine Biodiversity Beyond National Jurisdiction (BBNJ), how to resolve potential overlaps, inconsistencies and conflicts between the new Agreement and relevant global, sectoral and regional instruments, framework and bodies (IFBs) on the issues about Area-Based Management Tools (ABMTs) including Marine Protected Areas (MPAs) in ABNJ, is a key matter on the table. To explore how establishing high seas ABMTs including MPAs via the BBNJ might work in practice, this paper selects the practice of OSPAR and NEAFC as an example of regional cooperation. It finds that in the absence of top-down authority, this regional cooperation cannot fill the functional and geographical gaps, or harmonize different instruments relating to establishing and managing the High Seas ABMTs including MPAs. It then examines the challenges under a centralized global structure proposed in BBNJ negotiation, and proposes a practical global structure for cooperation and coordination. It suggests that a global decision-making body and their subordinates under the BBNJ may be empowered with different authorities under different scenarios. They may act as "cooperation initiator" and “conflict coordinator” of the ABMTs including MPAs where there is relevant IFBs, achieving objectives by coordinating with existing mechanisms; or act as “gap filler” by directly establishing and managing ABMTs including MPAs where there is no IFBs. This decision-making body should be empowered to develop general objectives and indicative criteria for the identification of areas, establish or designate ABMTs including MPAs, and strengthen monitoring and review.

The binding force of the BBNJ agreement on third parties

With the sustained progress of the relevant work of the United Nations General Assembly (UNGA) in the field of biodiversity beyond national jurisdiction (BBNJ), the draft of an international legally binding instrument has begun to take shape. However, wide divergences remain between governments on particular points. Specifically, the lack of a binding force on third parties poses a significant legal obstacle to a future effect of final BBNJ Agreement. In this paper, after a brief introduction, the disagreements and weaknesses of BBNJ negotiation progress will be pointed in the second part. Through the analysis in this part, we will further consider how the BBNJ Agreement binds the third parties Usually, there are two legal techniques to strengthen the legal binding force of the BBNJ Agreement upon third parties: (1) making the content of the agreement rise to the level of customary international law and (2) strengthening its binding force on third parties through the approach of soft law. In the subsequent two parts, this paper will present the analysis on above two legal techniques respectively. Although both approaches are feasible in theory, their shortcomings in practice are clear. Both approaches are unlikely to impose substantial legal restraint on third parties. In order to solve it, the fifth part of this paper puts forward new ideas. From the perspective of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), strengthening the binding force of the BBNJ Agreement as to third parties strengthens the agreement's integrity as a whole. We can improve the BBNJ Agreement through both internal and external pathways.

The Eastern Tropical Pacific Marine Corridor (CMAR): The Emergence of a Voluntary Regional Cooperation Mechanism for the Conservation and Sustainable Use of Marine Biodiversity Within a Fragmented Regional Ocean Governance Landscape

The San Jose Declaration formally established the Eastern Tropical Pacific Marine Corridor (CMAR) in 2004, a voluntary regional cooperation mechanism created by the coastal States of Ecuador, Costa Rica, Colombia, and Panama in response to anthropogenic pressures in the Eastern Tropical Pacific, one of the most productive and biodiverse oceans in the world. This article will explain how, in the absence of a coherent, overarching regional ocean governance framework, these four coastal States came together to create a regional cooperation mechanism for the conservation and sustainable use of marine biodiversity in the Eastern Tropical Pacific. The key normative features of CMAR will be examined, as well as legal and governance challenges, such as its non-binding nature, large scale, limited sectoral engagement, and insufficient resources. The analysis will be couched within a discussion of the wider regional ocean governance framework, which remains fragmented, with gaps and overlaps in terms of membership, mandates and geographic coverage. Possibilities for integration, and the potential impact of a new treaty protecting biodiversity beyond national jurisdiction (BBNJ), will also be considered.

Promoting equity in the use of algorithms for high-seas conservation

Promoting equity in the use of algorithms for high-seas conservation