International Legally Binding Instrument Research Articles

Technology Transfer for the High Seas: Potential Modalities for Technology Transfer Under the International Legally Binding Instrument

The high seas, also known as areas beyond national jurisdiction (ABNJ), account for 64% of the total surface of the ocean, almost 90% of the ocean’s volume and 40% of the entire planetary surface. This vast environment increasingly bears the stamp of human economic activity, including shipping, fishing and prospecting for seabed resources. At the time time, the interrelated phenomena of climate change and ocean acidification are exerting new pressures on high seas biological diversity and habitats. There is an urgent and growing need to protect this environment. In recognition of these challenges, the UN General Assembly has launched a process to negotiate a new treaty for high seas protection; specifically, an international legally binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). This process, the fruit of more than a decade of informal discussions, entered the intergovernmental negotiation phase in 2018. While much remains unclear about the contours of the emerging deal and its prospects for adoption, the mandate for negotiation identifies an integral role for technology. The four pillars of the planned agreement are marine genetic resources; area-based management tools; environmental impact assessments; and capacity-building and technology transfer. The necessity of greater international cooperation on marine technology transfer has been broadly recognised. The challenge of negotiating technology transfer rules and modalities are particularly great in the context of ocean governance, which has to date seen but limited implementation in this field.

Considering Indigenous Peoples and local communities in governance of the global ocean commons

The United Nations are currently negotiating a new international legally-binding instrument to govern the global ocean commons, a vast area beyond national jurisdiction (ABNJ) owned by everyone but not cared for by any single entity. Indigenous Peoples and local communities (IPLCs) have been underrepresented in the debate about governance of ABNJ despite their internationally recognized rights and their role as custodians of many globally-significant migratory species that travel between coasts and high seas. Here we use examples of active transboundary connectivity by migratory species as case studies to highlight the relevance of IPLCs on islands, coasts and beyond to the governance of the global ocean commons, and make a case for their essential and beneficial inclusion in it. Many migratory species are culturally and economically important to IPLCs, who are frequently the first to suffer if these species are overexploited or decline due to inadequate management in ABNJ. Four case studies (Pacific salmon, Marine Turtles, Black-footed and Laysan Albatrosses, Northern fur seal) illustrate knowledge, innovations and practices of IPLCs that have global importance in informing strategies for conservation, sustainable and equitable use of marine species in general. IPLCs can contribute to enriching the diversity of approaches and solutions, and by elaborating on principles directly relevant for governance of ABNJ within the UN process and beyond.

Sovereignty and Challenges of the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction: How to Reconcile the Individual Interests of States at Sea and the ‘Common Interest of Mankind’?

Although dealing with strictly international maritime areas, the future implementing agreement (ILBI) under UNCLOS currently negotiated raises important challenges as regards the combination and reconciliation of States’ individual and collective interests at sea. There is, indeed, a common interest for biodiversity in international maritime areas (biodiversity conservation being a ‘common concern of humankind’), which appears not entirely compatible with the individual interest of States at sea, as it focuses mainly on conservation of marine biodiversity, sharing of resources and benefits, access and global integrity of common spaces, rather than on exploitation and geostrategic or individual economic interests. How to concretely reconcile, then, in the international spaces, the individual interests of coastal and non-coastal States and the common interest of the international community? How could the future agreement take those interests into account? The purpose of this article is to suggest a different prism for analysing the gaps and challenges regarding the current law of the sea regime in the field of marine biodiversity and the adoption and content of a new UNCLOS implementing agreement. Among all the available options under scrutiny in the context of the discussions related to the adoption of a new implementing agreement under UNCLOS, some are more likely to reconcile individual and common interests at sea than others. It appears necessary to place the cursor where the equilibrium between those interests is best preserved in order to ensure simultaneously a sufficiently voluntary conclusion and implementation of the future agreement and the effective and sufficient achievement of the treaty objectives.

Revisiting Bioprospecting in the Southern Ocean in the Context of the BBNJ Negotiations

abstractThis article revisits marine bioprospecting in the Southern Ocean in the context of the efforts to develop an international legally binding instrument (ILBI) under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. After briefly introducing the Antarctic Treaty System (ATS), this article examines the extent to which the ILBI will likely spatially overlap with the ATS. As the next step, it is highlighted that future provisions on marine genetic resources (MGRs) in the ILBI might substantively differ from the way the ATS currently regulates bioprospecting. Based on that, the final section reflects on how the ILBI will normatively and institutionally relate to the ATS.

Options for managing human threats to high seas biodiversity

Areas beyond national jurisdiction (ABNJ) constitute 61% of the world's oceans and are collectively managed by countries under the United Nations Convention on the Law of the Sea (UNCLOS). Growing concern regarding the deteriorating state of the oceans and ineffective management of ABNJ has resulted in negotiations to develop an international legally binding instrument (ILBI) for the conservation and sustainable use of biodiversity beyond national jurisdiction under UNCLOS. To inform these negotiations, we identified existing and emerging human activities and influences that affect ABNJ and evaluated management options available to mitigate the most pervasive, with highest potential for impact and probability of emergence. The highest-ranking activities and influences that affect ABNJ were fishing/hunting, maritime shipping, climate change and its associated effects, land-based pollution and mineral exploitation. Management options are diverse and available through a variety of actors, although their actions are not always effective. Area-based management tools (ABMTs), including marine protected areas (MPAs), were the only consistently effective option to mitigate impacts across high-ranked activities and influences. However, addressing land-based pollution will require national action to prevent this at its source, and MPAs offer only a partial solution for climate change. A new ABNJ ILBI could help unify management options and actors to conserve marine biodiversity and ensure sustainable use. Incorporating a mechanism to establish effective ABMTs into the ILBI will help deliver multiple objectives based on the ecosystem approach.

Reflecting on the Role of the Arctic Council vis-à-vis a Future International Legally Binding Instrument on Biodiversity in Areas Beyond National Jurisdiction

Negotiations are ongoing to develop an international legally binding instrument (ILBI) under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). If adopted, the ILBI will likely apply to parts of the Arctic Ocean where the Arctic Council has played an important role for ocean governance. This begs the question of what role the Arctic Council will play vis-à-vis a future ILBI, which is envisioned to “not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies” (UN General Assembly Resolution 72/249). Against this backdrop, this article reflects on the future relationship between the Arctic Council and the ILBI. In so doing, the article initially discusses possible meanings of the notion of not undermining and, more broadly, how the ILBI will likely determine its institutional relationship with relevant bodies for BBNJ. Based on that, the article provides a short overview of the role of the Arctic Council in Arctic Ocean governance and explores whether the Arctic Council would qualify as a relevant regional body that shall not be undermined by the future ILBI.

Arctic Ocean governance in light of an of an international legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction

A global process is underway towards an international legally binding instrument (ILBI) under the Law of Sea Convention (LOSC) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction This global instrument may influence the governance of the Arctic Ocean of which a large part is beyond national jurisdiction. The Ocean remains one of the last great oceanic wilderness areas of the planet while at the same time being highly vulnerable to climate change and the increased human activity that may follow from the retreating sea ice. The physical changes of the Arctic Ocean have led to growing international attention and perception of the Arctic Ocean as a global common with calls for its increased protection. Alongside with the process towards an ILBI, various initiatives have been taken and discussions conducted within the Arctic region on a mechanism for Arctic marine governance including on the role of the Arctic Council. The current legal framework for governance of the Arctic Ocean is fragmented and incomplete in terms of protecting biodiversity. The article discusses the relevance of a future global instrument for the protection of biodiversity in the Arctic Ocean and its relationship with regional initiatives and existing instruments governing the Ocean. It suggests that Arctic states should use the ongoing global negotiation process as an incentive to take responsibility and be proactive in creating a comprehensive protection regime for the Ocean rather than waiting for the global instrument to serve as the platform.

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.

Towards a Practical Approach to Regulating Marine Genetic Resources

Negotiations are currently underway for a new international legally binding instrument (ILBI) under the United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ). The General Assembly has authorised negotiations on four elements of a “package”. One part of the package is the legal framework for the exploitation of marine genetic resources (MGRs) in areas beyond national jurisdiction. The precise definition of MGRs is currently subject to negotiation, but the Convention on Biological Diversity defines genetic material as any material of plant, animal, microbial or other origin containing functional units of heredity. Genetic resources are genetic material of actual or potential value. It should be noted that the MGRs regime is unlikely to apply to fish caught as a commodity for food or other uses such as fish meal.

Legal Analysis on the Access and Benefit-sharing of Marine Generic Resources with a Draft Text of an 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 (resolution 69/292) and Convention on Biological Diversity : Intellectual Property

Legal Analysis on the Access and Benefit-sharing of Marine Generic Resources with a Draft Text of an 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 (resolution 69/292) and Convention on Biological Diversity : Intellectual Property

What is the Sargasso Sea? The problem of fixing space in a fluid ocean

The political boundaries used to territorialize ocean spaces are often negotiated as largely social relations, with little attention to material aspects. Material aspects of ocean spaces include physical forces, interacting life, and constant transformation. In this paper, we use Steinberg and Peters' (2015) “wet ontology” and concepts of the hydrosphere, liquidity, dynamism, and emergence to reflect on how the Sargasso Sea was located in geographic space through analysis of scientific data that revealed its complex materiality. Drawing from policy documents, white papers, presentations, and 14 semi-structured interviews with scientists, government officials, and NGO representatives, we then trace how the Sargasso Sea Alliance produced the linear boundaries that define the Sargasso Sea as an Ecologically and Biologically Significant Marine Area and, later, as an area for international collaboration on its conservation. Although the data used to locate the Sargasso Sea demonstrated its mobility and complexity, policymaking processes calling for legible boundaries produced a simplified and fixed Sargasso Sea that obscures its “wet” materiality. This ‘fixed’ Sargasso Sea was created, in part, to test the potential of existing high seas governing bodies in the lead-up to current negotiations for an international legally-binding instrument for high seas governance; this case thus demonstrates how the social relations that construct existing understandings of territory in oceans may continue to dictate policy options, even as new, more dynamic management techniques are developed. We conclude with a discussion of emerging governance possibilities that may better address and account for the entangled material and social realities of oceans.

The once and future treaty: Towards a new regime for biodiversity in areas beyond national jurisdiction

The current regime governing Areas Beyond National Jurisdiction (ABNJ) as a global commons has resulted in overutilization of fisheries resources and patchwork attempts to regulate resource extraction. States are looking to expand resource extraction in ABNJs, including marine genetic resources, creating pressures to regulate these activities. As a result, since 2004, the United Nations has been holding preparatory meetings to lay the groundwork for a new international legally binding instrument (ILBI) to address the gaps left by UNCLOS. The negotiations for an ILBI are focuses on four thematic focus areas: marine genetic resources (including benefit sharing), area based management tools (including MPAs), environmental impact assessments, and capacity building and technology transfer. At the conclusion of the first round of negotiations in September 2018, we comment on the process and the tensions observed during the two weeks of talks based on observations and interviews with delegates and observers, contextualized within the authors’ expertise and perspectives

Implementation challenges of area-based management tools (ABMTs) for biodiversity beyond national jurisdiction (BBNJ)

Area-based management tools (ABMTs), including marine protected areas (MPAs) are widely recognized as a key mechanism for conserving and restoring biodiversity. The developing international legally-binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ) is considering a range of approaches to ABMTs. While the process is still in early stages, this paper looks ahead to anticipate implementation challenges for ABMTs, given previous experiences with regional fisheries management organizations (RFMOs) and high seas MPAs. Drawing on the implementation of MPAs under the OSPAR Convention and the Convention on the Conservation of Antarctic Living Marine Resources (CCAMLR), key suggestions revolve around: (1) improving the evidence basis for protecting BBNJ, (2) designing effective compliance and enforcement mechanisms, and (3) engaging adequately with relevant stakeholders. In addition to the case studies, which are primarily marine pollution and fishing-oriented, considerations related to mitigating the effects of deep sea mining and the harvesting of marine genetic resources are also touched upon.

Marine Genetic Resources Beyond National Jurisdiction: Elements of a New International Legally Binding Instrument

This note is intended to inform country representatives, negotiators, and legal and technical advisers of springboards and roadblocks to an acceptable international legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction under UNGA resolution 69/292.

Marine Technology Transfer under a BBNJ Treaty: A Case for Transnational Network Cooperation

Our ability to protect and sustainably use the high seas is ultimately subject to our ability to understand this vast and remote environment. The success of an international legally binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) will depend, in part, on utilizing technology to access ocean life, to analyze it, and to implement measures for its conservation and sustainable use. Indeed, technology, broadly defined, is integral to meeting the ILBI's objectives: not just the mandate to address “capacity-building and the transfer of marine technology,” but also the sustainable use and conservation of marine genetic resources, the implementation of environmental impact assessments, and biodiversity conservation measures such as area-based management tools. To maximize marine technology deployment to protect marine biodiversity in areas beyond national jurisdiction, transferring technology to developing countries will be critical. Provisions for the transfer of technology, generally from developed to developing countries, are included in many international environmental agreements and declarations, but these provisions have often proven difficult to implement. Part of the difficulty is that the relevant technology is dispersed among states; universities, research institutes and other nonstate actors; and private industry. The particular challenge in crafting an ILBI is, as the European Union has identified, to avoid repeating existing provisions and instead to “focus on added value.” One opportunity for an ILBI to add value on technology transfer is to further develop a network model to facilitate marine technology transfer.

The High Seas Freedom to Lay Submarine Cables and the Protection of the Marine Environment: Challenges in High Seas Governance

The freedom to lay submarine cables and pipelines, one of the most venerated high seas freedoms under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), faces an uncertain future under the new international legally binding instrument (ILBI) being negotiated in the United Nations. UN General Assembly Resolution 72/249, authorizing the intergovernmental conference for the new ILBI, does not expressly mention submarine cables or pipelines but states that “the work and results of the conference should be fully consistent with the provisions of” UNCLOS. The issues in a new ILBI that are likely to have an impact on the freedom to lay submarine cables and pipelines in areas beyond national jurisdiction are (1) area-based management tools, and (2) environmental impact assessments (EIAs), which are mechanisms used to protect and preserve the marine environment and biodiversity. The challenge for high seas governance (and indeed, the perennial challenge for the law of the sea) is how to balance these two ostensibly competing, but equally valuable, interests: the protection of the marine environment and biodiversity and the high seas freedom to lay submarine cables in areas beyond national jurisdiction.

The Limits of Sectoral and Regional Efforts to Designate High Seas Marine Protected Areas

This essay addresses the question of how the international community could designate high seas marine protected areas (MPAs) that would be binding on all states. This is a key issue for the forthcoming UN negotiations of an International Legally Binding Instrument (ILBI) on conservation and sustainable use of biodiversity in areas beyond national jurisdiction. However, this is a longstanding question, the importance of which transcends the ILBI negotiations. Some have argued for the establishment of a centralized Ocean Governance Authority, whose decisions would be universally binding; others have argued that existing regional and sectoral bodies can be relied on to protect biodiversity in areas beyond national jurisdiction. The experience of the Sargasso Sea project is that some sort of centralized or coordinating regime is needed to make MPAs effective across regional and sectoral bodies.

South Atlantic Perspectives on the Future International Legally Binding Instrument under the losc on Conservation and Sustainable Use of bbnj

Abstract The article focuses on the ocean governance systems of the South Atlantic Ocean aiming to contribute to the on-going debate concerning the development of an international legally binding instrument (ilbi) under the un Convention on the Law of the Sea on conservation and sustainable use of marine biodiversity beyond national jurisdiction (bbnj). For this purpose, a broad definition of South Atlantic Ocean has been adopted. The regional treaties and global initiatives relevant for the area are analysed in the context of discussions addressing bbnj. It also evaluated the importance of submissions to the Commission on the Limits of the Continental Shelf concerning the region. The main conclusion is that an ilbi is needed to supplement non-existent or insufficient ocean governance systems in the region and to strengthen and foster the progress of the regional ocean’s governance framework, provided that crucial factors such as transfer of technology and capacity-building are adequately addressed.

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.

Redefining environmental stewardship to deliver governance frameworks for marine biodiversity beyond national jurisdiction

Abstract In 2015 the United Nations General Assembly decided to develop an international legally binding instrument (ILBI) under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. To that end, it established a Preparatory Committee (PrepCom), to make substantive recommendations to the General Assembly on the elements of a draft text of an ILBI. The PrepCom has identified the tension between the principle of the common heritage of mankind and high seas freedoms embodied in UNCLOS as one of the issues which must be addressed in such an international agreement. Some participants in the process have proposed a sui generis regime as a way of resolving any apparent clash of these international legal principles, particularly as it relates to marine genetic resources and their access and benefit sharing. This article argues that environmental stewardship may provide the framework for such a sui generis regime. For it to do so, however, it must be grounded in international legal principles and act as a balance between competing values, perspectives and interests in the conservation and sustainable use of marine biodiversity beyond national jurisdiction. If appropriately redefined in this way, environmental stewardship can deliver a governance framework which addresses some of the central issues with which the PrepCom will have to deal. These include the practical problems of access and benefit sharing of the marine genetic resources of areas beyond national jurisdiction, and reconciling the conflicting pressure for international decision-making for the conservation and sustainable use of marine biological diversity on the one hand, and the maintenance of existing regional and sectoral frameworks on the other. Environmental stewardship, redefined, can provide an intellectual framework for an ILBI under UNCLOS on marine biodiversity beyond national jurisdiction.