Marine Biological Diversity In Areas Research Articles

The Adjacency Doctrine in the Negotiation of BBNJ: Creeping Jurisdiction or Legitimate Claim?

Adjacency, notwithstanding its status as a basis for generating maritime entitlements, has no place as a principle under the existing law of the sea. To endow it with such status in the negotiation of an agreement for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ) is likely to upset the delicate balance between the rights of coastal states and those of the international community, which is essential to the widespread acceptance of United Nations Convention on the Law of the Sea (UNCLOS). This article argues that the access regime for marine genetic resources (MGRs) straddling the boundary between areas beyond national jurisdiction (ABNJ) and areas within national jurisdiction (AWNJ) should be location based, and adjacent coastal states should not be accorded preferential rights in the distribution of benefits. However, due regard should be paid to the rights and legitimate interests of adjacent coastal states when transboundary impacts may result from measures adopted for and activities conducted in ABNJ, including those that directly affect MGRs straddling the boundary between ABNJ and AWNJ. At the procedural level, coastal states should be allowed to participate, primarily through prior notification and consultation, in the adoption of area-based management tools (ABMTs) in ABNJ and the conduct of environmental impact assessment (EIA) with respect to activities therein.

The Dispute Settlement System of the Future Third UNCLOS Implementation Agreement on Biodiversity beyond National Jurisdiction (BBNJ): a Preliminary Analysis

This article analyses the possible system of dispute settlement within the future implementation agreement of 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. In order to explain the dispute settlement system foreseen in UNCLOS Part XV, that likely will be adopted by the BBNJ Agreement, its main aspects are addressed in addition to, specially, its reception by the Part VIII of the implementation agreement on straddling fish stocks and highly migratory fish stocks. In this sense, the current terms of the draft agreement point out a new broad reception of the dispute settlement system of the Convention. Finally, taking into account the highly technic character of the disputes in this field, the article reflects on the possible convenience of changing the default mechanism for these disputes from the Annex VII arbitration to a more specialized jurisdictional organ, either the Annex VIII special arbitration or the International Tribunal for the Law of the Sea.

Maritime Biodiversity of Areas Beyond National Jurisdiction (BBNJ) from the French Perspective

Sustainable use of marine biological diversity of areas beyond national jurisdiction under the United Nations Convention on the Law of the Sea became a key topic for the negotiations since the 2012 United Nations Conference on Sustainable Development in Rio de Janeiro. Ocean change is now the most significant threat facing humanity, especially those living in coastal areas. The possible and already observed loss of territory, and thus sovereignty of the submerged states, is not the only legal consequence of ocean change happening now, in the 21st century. Another factor is the downsizing of Exclusive Economic Zones, which implies political tensions between the neighboring countries, both sovereign and dependent territories of the former colonial powers. France is present in the Indian Ocean and the Pacific Ocean via its overseas collectivities. Thus, instead of being at the 45th position in the world’s ranking of the ocean powers, the Republic of France comes in the second position, straight after the United States of America. This high and indeed precious position, both geostrategically and economically, affects its views toward the United Nations negotiations process on biological diversity beyond national jurisdiction.

The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review

Over one hundred governments are currently negotiating a new legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). The new agreement is to address four broad themes: marine genetic resources (MGRs); area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessments (EIAs); and capacity building and the transfer of marine technology (CB&TT). Although a large corpus of scientific BBNJ literature exists, a comprehensive overview and critical analysis of the academic debate is currently missing. This systematic review seeks to fill this gap by examining the main priority topics and recommendations in a sample of 140 multidisciplinary, geographically diverse publications. As an up-to-date summary and analysis, it is intended for researchers from diverse academic disciplines in the natural and social sciences, policy-makers, and practitioners. It untangles the complex BBNJ negotiations, highlights the policy relevance of existing work, and facilitates links between science, policy, and practice. It presents recommendations made in the literature sample for each of the four package elements of the future treaty and identifies four overarching themes: ocean connectivity, institutional design, the role of science, and digital technology. This paper identifies two important gaps that need to be addressed if we are to conserve marine biodiversity in international waters: the science-policy interfaces and the need for transformative change.

Hacia una regulación sobre la conservación y el uso sostenible de la diversidad biológica marina de las zonas situadas fuera de la jurisdicción nacional: el futuro acuerdo como un tratado de protección de intereses generales

El presente estudio examina, desde la perspectiva de los tratados de proteccion de intereses generales, la ultima version de noviembre de 2019 del proyecto de Acuerdo relativo a la conservacion y el uso sostenible de la diversidad biologica marina de las zonas situadas fuera de la jurisdiccion nacional. En primer lugar, expone el marco conceptual propio de esta categoria de tratados. En segundo lugar, aplica ese marco para analizar el futuro Acuerdo, destacando algunos de sus rasgos principales. En tercer lugar, identifica los beneficios de la adopcion de un tratado de esa naturaleza para la gestion de las areas marinas mas alla de la jurisdiccion nacional, asi como el coste de su adopcion: la inclusion de distintos grados de normatividad y tipos de obligaciones. El trabajo concluye con unas consideraciones finales que situan la negociacion del Acuerdo en el contexto de la evolucion del ordenamiento juridico internacional, y del Derecho del mar en particular.

The International Tribunal for the Law of the Sea and the Protection and Preservation of the Marine Environment: Taking Stock and Prospects

AbstractThis article takes stock of the contribution of the International Tribunal for the Law of the Sea (ITLOS) to the development of international environmental law. It examines in this regard the jurisdiction of the tribunal and provides an overview of its environmental jurisprudence. It then assesses the potential role of ITLOS in relation to some marine environmental challenges ahead. In particular, it considers the possibility of a request for an advisory opinion on climate change, the settlement of disputes regarding deep seabed mining, and the potential role of the tribunal under a new legal instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

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.

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.

Stakeholder Perspectives on Access and Benefit-Sharing for Areas Beyond National Jurisdiction

Negotiations for a new international legally binding instrument under the United Nations Convention on the Law of the Sea for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABNJ) are currently ongoing. A ‘package’ of four elements are under discussion, one of which is ‘marine genetic resources (MGR), including questions on the sharing of benefits’. Governance of MGR in ABNJ requires consideration of access and benefit-sharing options. The MGR element is considered the most contentious since there is a lack of convergence on this topic amongst delegates. This is currently hindering progress in negotiations. Therefore, resolving issues linked to MGR holds the key to reaching agreement of the instrument as a whole. The aim of this paper is to gather stakeholder perspectives on goals and options for a new genetic resource mechanism for ABNJ. A scoping literature review was conducted to identify goals and options in terms of access and of benefit-sharing in ABNJ. Next, semi-structured interviews were conducted with 24 people from five different stakeholder groups; scientific research community, private sector, developing States, developed States and civil society. Results indicated that stakeholders all agree with conservation and sustainable use of marine biological diversity of ABNJ as the most important goals of a potential new genetic resource mechanism for ABNJ. Stakeholders preferred a light-touch governance approach to access, with notification pre- (and possibly also post-) collection of MGR in situ. Mandatory non-monetary benefit-sharing at point of sampling was considered most appropriate, possibly with scope for voluntary monetary benefit-sharing at the point of commercialisation. It may be useful to keep these perspectives in mind during negotiations and also during future implementation processes in order to attain the goals of perceived greatest importance. By understanding the different view-points and priorities, delegates will be better equipped to negotiate the remainder of the issues related to MGR, to reach mutually-acceptable compromises and, ultimately, a new BBNJ agreement.

Digital sequence information as a marine genetic resource under the proposed UNCLOS legally binding instrument

The Convention on Biological Diversity and its supplementary agreement the Nagoya Protocol, the International Treaty for Plant Genetic Resources for Food and Agriculture and the Pandemic Influenza Preparedness Framework all establish schemes for access and benefit sharing (ABS) biological materials. A key contentious and unresolved question is how to deal with information like digital sequence information (DSI) – a placeholder term for genetic information about biological materials. The same issues are under consideration at the negotiation of an ABS scheme for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction in the international legally binding instrument under the Convention on the Law of the Sea. If DSI is to be addressed and included in this ABS scheme, then the essential choices available to negotiators are: (1) To consider DSI is already included within the current definitions of genetic resources; (2) Expressly include DSI within the definition of (marine) genetic resources; (3) Include DSI as a derivative of (marine) genetic resources; or (4) Seek alternative ways to compensate for DSI not being a resource. The article concludes that including information like DSI within the ABS transaction challenges the current practices of science research with detrimental consequences for the progress of open science, and that now would be a good time to reconsider alternative ways to deliver benefits.

Institutional arrangements in a BBNJ treaty: Implications for Arctic marine science

The aim of this article is to explore the implications for Arctic marine science of the treaty that is being negotiated under the auspices of the United Nations for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ) from the perspective of the necessary institutional arrangements. Given that the institutional architecture will be crucial to the successful implementation of the resulting treaty, this article examines the approaches to institutional arrangements as they relate to the discussions leading to the commencement of the BBNJ intergovernmental conference, developments at the intergovernmental conference, and their implications for Arctic marine science. The Arctic perspective is of particular interest because Arctic States and other States with significant interests in the Arctic have been largely skeptical of, and in some cases resistant to, the BBNJ process. This article concludes that although the BBNJ treaty negotiations provide a challenge to regional, sectoral, and national actors in the Arctic, they also provide an opportunity for these actors if the resulting treaty includes robust institutional arrangements that create mechanisms for greater integration and coordination of marine science, particularly Arctic marine science.

Biopiracy and genetic resources high seas: International Law perspectives

Concerned about the constant threat of biopiracy, which ensures developed countries a monopoly on the economic exploitation of genetic resources from poorer countries, the following research aims to discuss the biopiracy of genetic resources in ares beyond national jurisdiction from Internacional Law perspective. Therefore, are specific goals: analyze what international treaties provide about biopiracy and genetic resources; evaluate the draft of the treaty on the conservation and sustainable use of marine biological diversity in areas beyond the national jurisdiction under discussion; and identify whether the mechanisms of internationl protection have been sufficient to enrich the exchange of knowledge and favor the scientific progress of humanity as a whole. As for the methodology, the research is classified bibliographic research and documental analysis.

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.

Inclusive innovation: Enhancing global participation in and benefit sharing linked to the utilization of marine genetic resources from areas beyond national jurisdiction

Negotiations for a new international legally binding instrument under the United Nations Convention on the Law of the Sea for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABNJ) have commenced. For the new agreement to be fair and effective, it is vital that all States are able to participate in the long-term sustainable use and conservation of the ocean beyond national jurisdiction. This includes participation in marine scientific research and the utilization of marine genetic resources (MGR) through subsequent innovation processes. Open access to MGR, such as data, coupled with capacity building, can promote the equitable sharing of benefits associated with MGR. In this paper, it is hypothesized that an ‘inclusive innovation’ approach may facilitate participation and promote enhanced engagement in the conservation and sustainable use of biodiversity beyond national jurisdiction. A number of existing genetic resource initiatives provide examples of efforts to foster inclusivity in the innovation process, including BioBricks, Open Source Drug Discovery, GenBank and the Global Genome Biodiversity Network. An analysis of these examples enables clear identification of common elements that are adopted by such initiatives, whereby inclusive innovation either develops naturally or is promoted actively through measures for open access, capacity building, and collaboration. By empowering more States and stakeholders to participate in research and innovation processes, global potential in terms of enhanced scientific knowledge and opportunities associated with biodiversity of ABNJ can be promoted and the overall objective of the conservation and sustainable use can be best pursued.

Международно-правовые вопросы установления морских охраняемых районов

Международно-правовые вопросы установления морских охраняемых районов

A new perspective on marine biological diversity of areas beyond national jurisdiction (BBNJ): Making use of area-based management tools (ABMTs), including marine protected areas (MPAs)

A new perspective on marine biological diversity of areas beyond national jurisdiction (BBNJ): Making use of area-based management tools (ABMTs), including marine protected areas (MPAs)

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

Agreeing to disagree on what we have or have not agreed on: The current state of play of the BBNJ negotiations on the status of marine genetic resources in areas beyond national jurisdiction

United Nations General Assembly Resolution 69/292 has committed States to develop an international legally binding instrument under the 1982 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). The instrument must address a ‘package deal’ including questions relating to access and benefit sharing in relation to marine genetic resources (‘MGRs’) in areas beyond national jurisdiction (‘ABNJ’). This paper examines the recommendations to the UN General Assembly of the recently convened Preparatory Committee (Prep-Comm) to negotiations of the international instrument relating to MGRs. It examines the less controversial issues which in the words of the Prep Comm includes “non-exclusive elements that generated convergence among most delegations” and notes significant areas of agreement and some consequences of agreement on those points. This includes the preamble to the proposed instrument, its geographical scope, material scope, relationship to UNCLOS and other instruments and frameworks (globally and regionally). The second part of the paper then goes on to examine in detail some of the main issues on which there is a divergence of views including the ideological divide over the purported common heritage of mankind status of such resources, regulating access, the nature of the resources covered by the proposed instrument, what benefits are to be shared, the relationship with intellectual property rights and monitoring of the utilization of MGRs in ABNJ.

Linking Capacity Development to GOOS Monitoring Networks to Achieve Sustained Ocean Observation

Developing enduring capacity to monitor ocean life requires investing in people and their institutions to build infrastructure, ownership, and long-term support networks. International initiatives can enhance access to scientific data, tools and methodologies, and develop local expertise to use them, but without ongoing engagement may fail to have lasting benefit. Linking capacity development and technology transfer to sustained ocean monitoring is a win-win proposition. Trained local experts will benefit from joining global communities of experts who are building the comprehensive Global Ocean Observing System (GOOS). This two-way exchange will benefit scientists and policy makers in developing and developed countries. The first step toward the GOOS is complete: identification of an initial set of biological Essential Ocean Variables (EOVs) that incorporate the Group on Earth Observations (GEO) Essential Biological Variables (EBVs), and link to the physical and biogeochemical EOVs. EOVs provide a globally consistent approach to monitoring where the costs of monitoring oceans can be shared and where capacity and expertise can be transferred globally. Integrating monitoring with existing international reporting and policy development connects ocean observations with agreements underlying many countries' commitments and obligations, including under SDG 14, thus catalyzing progress toward sustained use of the ocean. Combining scientific expertise with international capacity development initiatives can help meet the need of developing countries to engage in the agreed United Nations (UN) initiatives including new negotiations for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, and the needs of the global community to understand how the ocean is changing.

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.