Biodiversity In Areas Beyond National Jurisdiction Research Articles

The integration of the ecosystem approach in the BBNJ agreement—An initial assessment of limits and opportunities

AbstractThis paper carries out an initial assessment of the integration of the ecosystem approach in the recently adopted agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). The analysis seeks to assess whether or not such integration is likely to be effective. In this respect, this paper follows up on earlier analyses offered during the negotiating process and aims at offering some initial considerations on, and reactions to, the final text of the BBNJ agreement, in order to map the limits of this integration and the opportunities it may offer, for an effective implementation of the ecosystem approach in the context of the BBNJ agreement, focussing especially on article 7 (on general principles and approaches), on part III (on area‐based management tools, including marine protected areas) and part IV (on environmental impact assessments) with specific focus on strategic environmental assessment.

Sustainable development and utilization of marine genetic resources in areas beyond national jurisdiction: A Chinese perspective.

Breakthroughs in marine science and technology have profoundly expanded our knowledge of the ocean, driving unprecedented levels of marine resource utilization. Consequently, the immense value of marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ) has catapulted them to the forefront of international competition. In response to the existing gap in international legal frameworks governing the conservation and sustainable use of biodiversity in ABNJ, the 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) was adopted on 19 June 2023. This study aimed to explore China's participation in this new frontier of global ocean governance, focusing on the opportunities and challenges it faces. By employing document analysis and policy analysis, the study delved into international legal frameworks such as the United Nations Convention on the Law of the Sea (UNCLOS) and the BBNJ Agreement, as well as China's domestic policies related to marine resource development. It systematically examined the relevant legal frameworks and their historical contexts. Additionally, comparative analysis was used to contrast the policy-making and development practices of developed and developing countries, allowing for a comprehensive assessment of China's role and challenges in the sustainable use of MGRs in ABNJ. It is concluded that while China has made remarkable progress in MGR research, it still lags behind traditional maritime powers in patent accumulation and the commercialization of MGRs. China also lacks comprehensive domestic legislation to address issues such as benefit-sharing and effective regulation of MGRs in ABNJ. Therefore, China must enhance its scientific research and innovation capabilities, actively participate in the follow-up work of the BBNJ Agreement, and promote global marine biodiversity conservation guided by the concept of a Maritime Community with a Shared Future.

Establishing marine protected areas in the southern ocean, lessons for the BBNJ agreement

This paper first gives a brief overview of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)’s struggle to establish Antarctic Marine Protected Areas (MPAs). The paper then addresses the question: what lessons can countries learn from CCAMLR’s experience in establishing high seas MPAs under the Biodiversity in Areas Beyond National Jurisdiction (BBNJ) Agreement? The paper finds that the final text of the BBNJ Agreement did largely reflect CCAMLR’s experience when it comes to MPAs. This is particularly so with respect to 1) clarification of the relationship between conservation and use; 2) the interpretation and application of a science-based precautionary approach; and 3) consensus-based decision-making process. The paper concludes that the insights CCAMLR provides for navigating geopolitical tensions between major powers is an important reference for the future operation of the BBNJ Agreement.

ChatBBNJ: a question–answering system for acquiring knowledge on biodiversity beyond national jurisdiction

The marine biodiversity in Areas beyond national jurisdiction (ABNJ), encompassing approximately two-thirds of the global ocean, is persistently declining. In 2023, the agreement on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) was officially adopted. Implementing the BBNJ Agreement has the potential to effectively meet global needs for preserving marine biodiversity. Nevertheless, the implementation requires dealing with thousands of legal clauses, and the parties participating in the process lack adequate means to acquire knowledge connected to BBNJ. This paper introduces ChatBBNJ, a highly efficient question-answering system that combines a novel data engineering technique with large language models (LLMs) of Natural Language Processing (NLP). The system aims to efficiently provide stakeholders with BBNJ-related knowledge, thereby facilitating and enhancing their comprehension and involvement with the subject matter. The experimental results demonstrate that the proposed ChatBBNJ exhibits superior expertise in the BBNJ domain, outperforming baseline models in terms of precision, recall, and F1-scores. The successful deployment of the suggested system is expected to greatly assist stakeholders in acquiring BBNJ knowledge and facilitating the effective implementation of the BBNJ Agreement. Therefore, this is expected to contribute to the conservation and sustainable use of marine biodiversity in ABNJ.

(Un)claiming rights, resources, and ocean spaces: Marine genetic resources and area-based management tools in high seas governance negotiations

After years of informal efforts, the parties to the United Nations Convention on the Law of the Sea (UNCLOS) are negotiating an international legally binding instrument to address governance gaps that have impeded attempts to conserve biodiversity in areas beyond national jurisdiction (ABNJ). Though these discussions were initiated in response to concerns about biodiversity, states have used them to advance competing claims regarding rights of access, ownership, and control of ocean spaces and resources. This paper examines how states have discussed ocean space in negotiations regarding area-based management tools (ABMTs) and marine genetic resources (MGRs) at the first three intergovernmental conferences regarding biodiversity in ABNJ. ABMTs, which have become widespread in governing ocean space for conservation, are premised on an ontological framing that ocean space can be divided by geographical boundaries into territories for management. MGRs, on the other hand, are newly recognized governance objects that cross existing spatial boundaries: between areas of national and international jurisdiction, between the seafloor and water column, and between the ocean and the laboratory. Through their mobility, MGRs reveal how territorial forms of governance over material resources intersect with other forms of exclusion, control, and rights-based institutions, suggesting the need to develop creative management regimes that go beyond territorial approaches.

Biodiversity in Areas Beyond National Jurisdiction (BBNJ): the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and the United Nations BBNJ agreement

ABSTRACT The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) has addressed the management of biodiversity in areas beyond national jurisdiction since its establishment under the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention). The development of a draft 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) reinforces the significance of conservation oriented, ecosystem-based management in areas beyond national jurisdiction pioneered by CCAMLR. This paper explores the potential interplay between CCAMLR and the BBNJ Agreement, noting that while the BBNJ Agreement commits not to ‘undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’, it is likely to sharpen assessments of CCAMLR’s performance.

Protecting marine biodiversity beyond national jurisdiction: A penguins’ perspective

The expansion of human activities in offshore maritime regions has outpaced the development of scientific knowledge and cooperative governance across these areas beyond national jurisdiction (ABNJ). In this context, current negotiations by the United Nations aim for an international legally-binding instrument to improve governance and sustainable use of biodiversity in ABNJ. Penguins are among the most threatened seabird groups today, notably at sea from fisheries and oiling. Here, we examine the available information on penguins’ movements and evaluate their use of ABNJ across species and life-cycle stages. We highlight that in most of the 18 extant penguin species, the birds may undertake spectacular migrations, seasonally or throughout life-cycle stages. Long-range movements were reported in 16 species, with trans-jurisdictional distribution in 14 species, including 13 in ABNJ. Species richness in ABNJ varied extensively according to oceanic region, and also varied according to season. Transboundary movements, notably to ABNJ, are thus remarkably prevalent among penguin species. Consequently, provisions of the treaty under negotiation may crucially benefit penguin conservation, notably by creating a uniform legal framework to designate protected areas in ABNJ, and by promoting the precautionary approach to extraction activities. However, the seasonally-dynamic utilisation of ABNJ by penguins supports the pertinence of adding innovative protection tools, such as mobile Marine Protected Areas, to the negotiations for a more adequate protection of marine biodiversity. Underlining penguins’ remarkable connectivity to the high seas can thus further strengthen this instrument aiming to protect a global ocean commons heritage of mankind.

Who owns marine biodiversity? Contesting the world order through the ‘common heritage of humankind’ principle

ABSTRACT The governance of marine biodiversity in areas beyond national jurisdiction (BBNJ) lacks a legal framework that would ensure the conservation and sustainable use of the oceans. In order to fill this gap, governments have been negotiating a new treaty under the United Nations Convention on the Law of the Sea. Negotiations have been afflicted by polarisation between two principles: The ‘Freedom of the High Seas’ (FOS) and the ‘Common Heritage of Humankind’ (CHP). Instead of discussing the CHP from a purely legal perspective, we examined, through an ethnographic lens, how it has become a practice of contestation: it is used as a tool and negotiation technique to challenge deeply rooted inequalities in the current world order. The CHP could make a difference if it was integrated into the text as a general principle committing all states to protect and preserve BBNJ for future generations – regardless of their imminent economic value as commercial assets.

Marine protected areas in the Southern Ocean: Is the Antarctic Treaty System ready to co-exist with a new United Nations instrument for areas beyond national jurisdiction?

Marine protected areas (MPAs) are a fundamental tool for effective marine conservation and areas beyond national jurisdiction (ABNJ) prove most challenging for their designation. Largely to blame is the currently fragmented and sector-based governance framework under the United Nations Convention on the Law of the Sea (UNCLOS, 1982). In the face of rapidly deteriorating biodiversity in ABNJ, negotiations are underway for a new international legally binding instrument (ILBI) mandated to promote the conservation and sustainable use of biodiversity beyond national jurisdiction using tools including MPAs. The Southern Ocean, however, is a uniquely governed space, with two MPAs already established in ABNJ under the Antarctic Treaty System (ATS). This article critically examines the status quo for designating MPAs under the ATS and uses the findings to reflect on how the system might interact with the new United Nations ILBI. Despite this critique, complementary synergies between the two instruments are still possible. I therefore hypothesise that Antarctic Treaty Consultative Parties (ATCPs) and members of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) must collectively engage with the ILBI process and across instruments within the ATS, to ensure the future interplay is one of opportunity, not conflict. The article concludes with recommendations to help ATCPs and CCAMLR members more proactively and effectively engage with progressions in the international law of the sea.

Coral Reefs of the High Seas: Hidden Biodiversity Hotspots in Need of Protection

Coral reefs are widely regarded as one of the top science and conservation priorities globally, as previous research has demonstrated that these ecosystems harbor an extraordinary biodiversity, myriad ecosystem services, and are highly vulnerable to human stressors. However, most of this knowledge is derived from studies on nearshore and shallow-water reefs, with coral reef ecosystems remaining virtually unstudied in marine areas beyond national jurisdiction (ABNJ), commonly known as the high seas. We reviewed information on the spatial distribution of reef-building corals throughout their depth range, and compiled a total of 537,782 records, including 116 unique records from ABNJ at depths between 218-5,647 m. The majority of reef-building coral records in ABNJ were in association with geomorphological features that have steep topographies. These habitats, which include escarpments, seamounts, and submarine ridges accounted for >74% of the records in international waters. Such geomorphological features, particularly those that occur within close proximity to the sea surface, should be prioritized for future scientific exploration. The majority of the reef-building coral records in ABNJ (>77%) were recorded in unprotected waters, and this study discusses the challenges and opportunities for protecting marine biodiversity in ABNJ. Finally, this study offers a definition of high seas coral reefs, and provides a framework to better understand and conserve these fragile ecosystems.

Settlement of disputes in a BBNJ agreement: Options and analysis

The regulatory process on developing an internationally legally binding instrument for conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ) under the United Nations Convention on the Law of the Sea (UNCLOS) has come to a vital stage. However, it is difficult to reach consensus by delegations on mechanisms for settling disputes. This article summarizes the current proposals for the settlement of disputes in the BBNJ Agreement. Then it proposes four criteria for assessing mechanisms for dispute settlement and applies them to existing six types of proposals. It is arguable that Article 55 of Zero Draft should be modified to adapt to the BBNJ Agreement. While provisions on “disputes of a technical nature” and “provisional measures” could be included, the proposals on “modifying Article 55 of Zero Draft through strengthening the role of ITLOS” and “applying Article 55 of Zero Draft on voluntary basis” could be treated as a starting point for further negotiations.

Negotiation and Dispute Prevention in Global Cooperative Institutions: International Community Interests, IUU Fishing, and the Biodiversity Beyond National Jurisdiction Negotiation

Abstract In areas beyond national jurisdiction communitarian interests are vulnerable to a weak legal order, evidenced by the prevalence of IUU fishing. The negotiation of an agreement for conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ) and the still-evolving jurisprudence for erga omnes obligations present opportunities to strengthen them through global cooperative institutions by empowering states and non-state actors. BBNJ bodies designed to lead effective cooperation with other regimes should be considered strengthening, not undermining, to the legal order of the ocean, as economic interests emphasized in other instruments may be enhanced in the long-term by the BBNJ agreement’s planning, transparency, capacity building and technology transfer provisions. International courts have found that individual states have standing to represent community interests; non-state actors could also be recognized to have standing to access judicial fora when existential interests of humanity are at stake.

The Question of the Common Heritage of Mankind and the Negotiations Towards a Global Treaty on Marine Biodiversity in Areas Beyond National Jurisdiction: No End in Sight?

The third substantive session of the intergovernmental conference (IGC-3) that is to adopt a new implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction was held in August 2019. While the progresses made fell well short of expectations, hopes and necessities – given the process is supposed to end at the fourth and final session, schedule for the end of March 2020 – it has also marked an undeniable shift in focus. This contribution will assess the state of play in relation to one of the central point of divergence in the negotiations, and indeed ever since the start of the process on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ): the question of the common heritage of (hu)mankind. The article first gives some background information on the BBNJ process and its current status. Subsequently it discusses the genealogy of the “polemic” and its trajectory during the preparatory committee (PREPCOM) and the first two IGCs, before discussing specifically IGC-3. Finally, the article offers concluding remarks and views on possible ways forward.

Adjacency and due regard: The role of coastal States in the BBNJ treaty

In the negotiations for the new treaty on biodiversity beyond national jurisdiction (BBNJ), a fundamental question will be the relationship between the regime for areas beyond national jurisdiction (ABNJ) and areas under coastal State jurisdiction. Adjacency has been raised as a concept that might assist in bridging these areas. It has been suggested that adjacency is a legal principle that could give coastal States additional rights or responsibility in relation to biodiversity in ABNJ proximate to their own national maritime jurisdictions. However, there has never been an accepted principle in the law of the sea that coastal States have priority over other States in ABNJ. We propose that due regard is a more appropriate lens to address this issue and one that would be consistent with existing principles under the United Nations Convention on the Law of the Sea (UNCLOS). References to adjacent coastal States can be found in the draft text considered by the Intergovernmental Conference. The article analyses challenges arise in defining adjacent States as well as applying due regard to elements of the package. It considers the use of adjacency in the draft texts issued for the third and fourth sessions of the Intergovernmental Conference, as well as proposals made by delegates.

The Ecosystem Approach and the BBNJ Negotiations

The ecosystem approach is an increasingly central concept for addressing the conservation and sustainable use of biological diversity. Endorsed in the mid-1990s as the primary framework of action by the Convention of Biological Diversity, it has subsequently gained traction in a variety of fields and contexts, including ocean governance and fisheries management, thanks to its promise to overcome the traditionally fragmented management paradigm, and instead facilitate holistic ecosystem governance. Not surprisingly then, the ecosystem approach is one of the suggested guiding principles and/or approaches for a future international legally binding instrument (ILBI) on marine biodiversity in areas beyond national jurisdiction (BBNJ). This article will assess the status of the debate on the ecosystem approach in the BBNJ process, to highlight and analyze risks and opportunities linked to the different modalities of its inclusion in a future ILBI.

Ocean plastics and the BBNJ treaty\u2014is plastic frightening enough to insert itself into the BBNJ treaty, or do we need to wait for a treaty of its own?

Marine litter, and plastics in particular, is fast rising to the top of the political agenda at all levels of governance. The popular phrase today, evoked at all political meetings, in all speeches and at all cocktail parties, is that by 2050, there will be more plastics than fish in the ocean. This is a simple and valid prediction naturally, since global fish stocks are fished at capacity and therefore not increasing in number—whereas the inflow of plastics into the ocean is continuous and rising. Stopping litter from entering the marine ecosystem is therefore the logical step to stop the prediction from coming true. Do we have time to wait for the international community to come together to ratify a treaty text on this, with the required years of negotiations in between, though? Granted, the United Nations Environment Program (UNEP) passed 13 nonbinding resolutions in December of 2017 of which one was on marine microplastics. They are still nonbinding though and without any teeth or financial instruments attached. The General Assembly, however, adopted resolution 72/249 also in December 2017, on a conference spanning a 2-year period, starting in 2018, where the end goal is to agree on a treaty on the protection of biodiversity in areas beyond national jurisdiction (BBNJ). We argue in this article that, rather than waiting for a treaty that is plastics specific, a path to fast action could be to incorporate this into these negotiations, since plastic is interweaved as a substantial stressor to the system and to biodiversity in all areas of the ocean.

A world of difference ‐ opportunities for applying the 1972 World Heritage Convention to the High Seas

Abstract The 1972 World Heritage Convention has not to date been applied to marine areas beyond national jurisdiction (ABNJ), i.e. to high seas and deep sea bed sites. Examples are given of high seas and deep seabed sites that appear to meet the criteria of Outstanding Universal Value for inscription. The ongoing negotiations at the United Nations for a new International Legally Binding Instrument (ILBI) on the conservation and sustainable exploitation of biodiversity in ABNJ are highlighted as a significant complementary initiative. Three feasible modalities are suggested by which the Parties to the 1972 Convention might be able to allow inscription of sites in ABNJ and establish appropriate management regimes: incremental and pragmatic agreement to minor changes in the way that they apply the treaty or formally announcing a change in the way that they intend to apply a treaty among themselves in the future; agreeing to an Amendment outside the terms of the 1972 Agreement; or developing an optional protocol to the 1972 Convention could be developed through an international negotiation among States Parties, binding only on those States that choose to ratify any resulting protocol. The merits of these different options are explored. Under any scenario, a system will also need to be elaborated for the protection of World Heritage sites in areas beyond national jurisdiction. This will be an important undertaking which will require collaboration between UNESCO and the relevant competent international organizations and their States Parties.

The role of NGOs in negotiating the use of biodiversity in marine areas beyond national jurisdiction

In 2004, the UN General Assembly resolved to establish a working group to consider issues pertaining to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). The group met nine times between 2006 and 2015 before concluding its mandate by recommending the development of an international legally binding instrument on BBNJ under the United Nations Convention on the Law of the Sea. Based on in-depth interviews with working group participants, this research examines how NGOs contributed to the working group process. Respondents from government delegations highlighted the usefulness of workshops and side events convened by NGOs, and the role of NGOs in bringing experts on technical issues – particularly marine genetic resources and the sharing of benefits – into the BBNJ negotiations. Respondents from both NGOs and government delegations emphasized the importance of fostering personal relationships in order to ensure a steady and constructive information flow. Social media efforts by NGOs were considered by some government representatives to have occasionally hampered open discussion, although they noted that conditions have improved. The lengthy working group process was marked by substantial fluctuation in participation, particularly within government delegations from developing states. Of 1523 individuals who participated in at least one of the working group meetings, only 45 attended more than half of the meetings, and 80% of these were representing NGOs or highly industrialized countries. Respondents felt that this comparatively small number of individuals provided a source of continuity that was crucial for moving the discussions forward.

Negotiating the Use of Biodiversity in Marine Areas beyond National Jurisdiction

A relatively small group of states is disproportionately active in marine areas beyond national jurisdiction (ABNJ), raising questions of equity, while a myriad of sectoral regulations and guidelines spread across multiple international bodies has led to uneven conservation and use of biological diversity and resources in these areas. Within this context, the UN General Assembly resolved in 2015 to begin negotiations on an international legally-binding instrument to conserve and protect biodiversity in ABNJ, with the negotiations framed by four issues: (1) marine genetic resources, including questions on the sharing of benefits; (2) measures such as area-based management tools, including marine protected areas; (3) environmental impact assessments; (4) capacity building and the transfer of marine technology. Yet our analysis demonstrates that least developed countries (LDCs) and small island developing states (SIDS) are significantly under-represented in regional and international meetings on such issues, while the authorship of academic literature on these topics is dominated to an unusual extent by Organization for Economic Cooperation and Development (OECD) member states (97%). Statistical analysis of delegation statements delivered during the first round of negotiations following the UN General Assembly resolution also illustrates that the interests of OECD member states differ substantially from LDCs and SIDS, suggesting that imbalanced representation has the potential to result in skewed negotiations. Moreover, the restriction on negotiating parties not to undermine the mandate of existing organizations limits their maneuverability, and may hamper progress towards achieving ambitious time-bound commitments to promote sustainable resource use and reduce inequality (e.g. under the Sustainable Development Goals and Aichi Targets). With ABNJ covering half the world’s surface, self-interested compliance with new regulations is the most promising pathway to conservation and sustainable use, yet remains unlikely unless states feel their views, concerns and best interests have been reflected in the negotiated agreement.

Deep-sea genetic resources: New frontiers for science and stewardship in areas beyond national jurisdiction

The deep-sea is a large source of marine genetic resources (MGR), which have many potential uses and are a growing area of research. Much of the deep-sea lies in areas beyond national jurisdiction (ABNJ), including 65% of the global ocean. MGR in ABNJ occupy a significant gap in the international legal framework. Access and benefit sharing of MGR is a key issue in the development of a new international legally-binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of marine biological diversity in ABNJ. This paper examines how this is relevant to deep-sea scientific research and identifies emerging challenges and opportunities. There is no internationally agreed definition of MGR, however, deep-sea genetic resources could incorporate any biological material including genes, proteins and natural products. Deep-sea scientific research is the key actor accessing MGR in ABNJ and sharing benefits such as data, samples and knowledge. UNCLOS provides the international legal framework for marine scientific research, international science cooperation, capacity building and marine technology transfer. Enhanced implementation could support access and benefit sharing of MGR in ABNJ. Deep-sea scientific researchers could play an important role in informing practical new governance solutions for access and benefit sharing of MGR that promote scientific research in ABNJ and support deep-sea stewardship. Advancing knowledge of deep-sea biodiversity in ABNJ, enhancing open-access to data and samples, standardisation and international marine science cooperation are significant potential opportunity areas.