Marine Biological Diversity In Areas Research Articles

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.

Biodiversity Beyond National Jurisdiction: Regimes and Their Interaction

International efforts to better conserve the marine biological diversity of areas beyond national jurisdiction (BBNJ) through a new international legally binding instrument1 are developing in a context of established norms and institutions. Existing regimes already address specific marine sectors (such as shipping), regions (such as fishing in the South East Atlantic), species (such as whales), and even underlying customary international law and territorial concepts (including the boundaries of the “high seas”2). States have agreed that they will not “undermine” these existing frameworks.3 We seek to contextualize this commitment within the fragmentation of international law and the interaction between regimes.4 We argue that international law-making should not be overly restricted by deference to existing competencies and mandates, which are fluid and asymmetrically supported. An inclusive and adaptive approach to existing and future institutions is vital in the ongoing quest for integrated and effective oceans governance.

Managing Biodiversity Beyond National Jurisdiction in the Changing Arctic

The development of an Internationally Binding Legal Instrument (ILBI) for the conservation and sustainable management of marine biological diversity in areas beyond national jurisdiction (BBNJ) has profound implications for the future regulatory activities of a host of regional governance structures exercising competence over these waters. In the rather stilted vernacular of the BBNJ Process, the ILBI aspires to “not undermine” the work of preexisting institutions and initiatives. Inevitably, given the emphasis upon future institutional symbiosis, a key challenge facing the ILBI is to promote its four thematic priorities—marine genetic resources, area-based management tools, environmental assessment, and capacity building and technology transfer—in a manner that can be effectively harnessed by current regional and sectoral frameworks. One region in which the intriguing set of challenges and opportunities presented by the ILBI are strikingly manifested is the Arctic. Some have argued for a regional treaty or clearer recognition of the “special” nature of Arctic conditions. However, we view the ILBI as a potential milestone in Arctic governance that can provide a firm platform to build on current cooperative arrangements for these vulnerable and rapidly changing marine ecosystems. Moreover, we argue that the present legal and institutional framework for the Arctic need not be revisited at this juncture, as it provides a strong regime through which to implement the core objectives of the ILBI. Its ability to do so, however, will depend on whether the ILBI (1) is effectively designed to work with preexisting machinery and (2) succeeds in clarifying and advancing universally-agreed methodological requirements for its four priority areas.

Law Beyond Boundaries: innovative mechanisms for the integrated management of biodiversity beyond national jurisdiction

Abstract On 24 February 2017, a workshop entitled “Law Beyond Boundaries: innovative mechanisms for the integrated management of biodiversity beyond national jurisdiction” was held in Wollongong, Australia hosted by the Oceans and International Environmental Law Interest Group of the Australian and New Zealand Society of International Law, in association with the Australian National Centre for Ocean Resources and Security at the University of Wollongong. The aim of the workshop was to address the question, how can international law be used in innovative ways to effectively conserve and sustainably manage marine biological diversity in areas beyond national jurisdiction (ABNJ)? In this introduction, we briefly summarize five of the papers developed for the workshop, highlighting the way in which they address three important themes: the promise and limits of existing institutional mechanisms governing activities in ABNJ; interactions between established principles and regimes for ABNJ; and the lessons that can be drawn from existing global and regional approaches to ABNJ. We hope that the ideas developed in this article theme set will contribute to the ongoing discussions at the United Nations General Assembly, as the international community works toward the development of an international legally binding instrument to govern activities in ABNJ.

The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction

AbstractUnited Nations General Assembly resolution 69/292 provides that in developing an internationally legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, the process should “not undermine” relevant existing legal instruments and frameworks and relevant global, regional, and sectoral bodies. An analysis of the varied interpretations of this ambiguous expression and its surrounding language raises questions about the role envisaged for such existing architecture. This article considers the practice of regional fisheries management organizations as an illustration of the possibilities and potential for improved practices generated from within existing architecture. It reviews measures taken to protect biodiversity and innovative applications of international law that have improved the ability of RFMOs to take such environmental measures. It seeks to highlight the importance of avoiding too narrow an interpretation of the notion of “not undermining”, and of recognizing the potential in existing architecture when designing an improved regime for the protection of biodiversity beyond national jurisdiction.

Marine Genetic Resources in Areas beyond National Jurisdiction: Issues with, in and outside of UNCLOS

The negotiations for a new international legally binding instrument under UNCLOS, on marine biological diversity in areas beyond national jurisdiction, has brought to the fore interesting questions over the applicable regime for marine genetic resources, including issues of benefit sharing. This article examines the different principles that have been suggested as applying to marine genetic resources, as well as suggestions of middle-of-the-way approaches. The freedom of the high seas, common heritage of mankind, common concern of humankind, Part xiii of UNCLOS on marine scientific research, and the Nagoya Protocol, are reflected on in turn. Brief reflections are also offered on the matter of intellectual property rights. This article recognizes the need for coherence with the existing UNCLOS regimes that apply to the areas beyond national jurisdiction, whilst taking into account the specific characteristics of marine genetic resources. There is potential utility in distilling means by which the seemingly diametrically opposed notions in Part vii and Part xi of UNCLOS may overlap. Perhaps the best point of entry for successful navigation of the issues is through the regime for marine scientific research, appropriately informed by other experiences, other existing agreements, and related regimes. Ultimately, the new implementing agreement, like its parent treaty (UNCLOS), will need to maintain a balance of interests.

New implementing agreement under UNCLOS: A threat or an opportunity for fisheries governance?

The purpose of this paper is to analyse the relationship of the proposed new UNCLOS Implementing Agreement concerning the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction with the current legal framework concerning fisheries. It elaborates on selected elements that are under negotiations, namely: marine genetic resources, area-based management tools, including marine protected areas, as well as environmental impact assessments. Each of those elements is analyzed with particular emphasis being laid on the following issues. Firstly, how the current legal status quo in the relevant area looks like. Secondly, how the question of fisheries could be included in a future treaty and, thirdly, what bearing it could have on the current framework of the management of fisheries.The article concludes with the identification of possible fields where the new treaty could bring added value. However, some possible challenges are mentioned as well. They relate in particular to the fact that the mandate of negotiations underscores that they shall not ‘undermine existing legal instruments and frameworks and relevant global, regional and sectoral bodies’.

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.

A(n) (Im)Possibility of Justice in the Case of Conservation of Marine Biodiversity of Areas Beyond National Jurisdiction

The advent of biotechnology in 1980 profoundly changed the attitude of scientists, and more recently of lawyers working with international marine environmental law, as well as in the fields of science and technology, and intellectual property and patent law, towards biological diversity in far-off marine areas, including the deep seabed. The extraordinary protection and adaptation properties of the deep seabed organisms seem to represent invaluable material for the pharmaceutical innovation, and especially life-saving drugs. Bioprospecting, a technique that consists of exploring the ocean biodiversity by identifying and harvesting commercially valuable bio-resources, ended up alerting the need, at the global scale, for greater legal certainty in this area. Namely, bioprospecting and further bio-remediation, and numerous pharmaceutical applications trigger the debate about the extent of ownership rights over these discoveries; as well as which discoveries, and to what extent, represent inventions, hence also involving questions of patent deposition. The mere assumption that the deep seabed should be exploited, and possibly appropriated, necessitates a serious discussion. In 2015, the United Nations (UN) members launched the consultative process on a global agreement on the conservation and sustainable use of the marine biological diversity of areas beyond national jurisdiction (ABNJs). To date, the negotiation positions are various. Some countries focus on the exploitation of marine genetic resources and the rights to those resources on a first-come-first-served basis; few see these resources’ conservation and sustainable use as a priority; many are those discussing a fair, equitable and transparent risk and benefits-sharing related to the resources in those areas through the system of patents. In March 2017, two ground-breaking domestic decisions, namely, a bill in New Zealand and a municipal court’s ruling in India, have recognised the ecosystems in question (the rivers, in the case at hand) as living entities, thus giving them a legal personality, including standing in court proceedings. The Indian court’s decision has in particular implied that any harm, including pollution, to the rivers will be legally equivalent to harming a living human. These newest environmental law developments suggest that harming, especially through pollution that may be induced by the bioprospecting, the biodiversity of the deep seabed where forms of life with valuable genes live, might amount in not so distant future to a legal offense. This might put most of the agenda of the new instrument defending the exploration and exploitation of marine genetic resources on quite a precarious perch. This article aims at: (i) outlining and unpacking the multilayered legal space that currently and prospectively governs marine biodiversity of ABNJs, and (ii) mapping out the more discursive and narrative space that has impacted the legal mechanisms at play and that also dominates current consultations and future negotiations in the field. The study discusses together UNCLOS, CBD and WTO TRIPS in an attempt to move further the debate about the nexus between conservation and justice. Overall, the objective is to analyse relevant present contestations and likelihoods, and ultimately expose to what extent, in terms of justice, the existing theory, instruments, agenda, and course for action are based on differing, and oftentimes simply irreconcilable projects. Lastly, the article discusses alternative visions of justice beyond present bifocal projects ‘man-nature’. While drafting this article, some of such visions have even become reality, as, for example, granting representation to such non-human entities as rivers.

Submarine Telecommunication Cables and a Biodiversity Agreement in abnj: Finding New Routes for Cooperation

In 2016, countries began meeting at the United Nations (un) to prepare for negotiations to develop an international legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (abnj). How the instrument will relate to submarine cables, if at all, remains to be decided. The preparatory committee will address a “package” of issues, among them the application of area-based management tools, including marine protected areas (mpas) and environmental impact assessments (eias) to activities in abnj. eias and mpas already affect submarine cable operations in national jurisdictions. In abnj, a new instrument should formalize a cooperative framework with the cable industry to provide limited environmental management where necessary without over-burdening cable operations. This approach would be consistent with the un Convention on the Law of the Sea and could also inform governance with respect to other activities likely to be benign in abnj.

A Deep Dive into the High Seas: Harmonizing Regional Frameworks for Marine Protected Areas with the UNCLOS Convention on the Conservation and Sustainable Use of Marine Biological Diversity in Areas beyond National Jurisdiction

A Deep Dive into the High Seas: Harmonizing Regional Frameworks for Marine Protected Areas with the UNCLOS Convention on the Conservation and Sustainable Use of Marine Biological Diversity in Areas beyond National Jurisdiction

Capacity Building and Technology Transfer for Marine Biodiversity in Areas Beyond National Jurisdiction

Marine science and technology have long been recognized as key issues to enable states to implement the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Scientific capacity development and technology transfer are cross-cutting issues in the development of a new international legally binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction under UNCLOS. The acquisition, exchange, and application of scientific knowledge are critical issues in the development of the ILBI.

Marine science and technology transfer: Can the Intergovernmental Oceanographic Commission advance governance of biodiversity beyond national jurisdiction?

Marine scientific research is crucial to forge solutions in the development of a new international legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (ABNJ) under the 1982 United Nations Convention on the Law of the Sea . The transfer of marine technology, capacity development and marine genetic resources are key issues. This paper examines how the Intergovernmental Oceanographic Commission (IOC), as a competent international organisation for marine scientific research and technology transfer, can inform the development of the instrument. Synergies between marine technology transfer and non-monetary benefit sharing of genetic resources are illustrated. Four key lessons from the IOC are examined: 1. Coordinating international cooperation in marine scientific research; 2. Enabling open access to data and knowledge; 3. Facilitating capacity development through scientific training and education; and 4. Governance of marine scientific research. Realising the potential of the IOC to advance governance solutions for ABNJ will depend on increased political will from Member States and strengthened partnerships to reduce resource constraints and enhance the IOC's capacity at global and regional scales.

Ocean governance: strengthening the legal framework for conservation of marine biological diversity beyond areas of national jurisdiction

ABSTRACTMarine ecosystems are a rich source of biodiversity, and healthy oceans are integral to the well-being of the ecosystem. Marine biological diversity, which is unique, is, however, unprotected and is threatened by various stressors on the oceans. The paper outlines the existing ocean governance framework and analyses the gaps and limitations in addressing the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (BBNJ). It discusses the ongoing mechanisms to address issues related to BBNJ, presents the deliberations and arguments and explores the nature of future agreement for protection of marine biological diversity in areas beyond national jurisdiction. The way ahead for strengthening of institutional arrangements to address existing ocean governance gaps is also discussed. The paper concludes that there is a need for further international cooperation and global support for ensuring conservation of BBNJ.

International law problems of the istablishment of marine protected areas

RETRACTED Review. The article is devoted to the analysis of international law aspects of protection of marine biodiversity and its main component, namely, Marine Protected Areas (MPAs). The authors propose the international law definition of the MPA. They also analyze the definitions of MPAs set forth in legislation of states. The reasons and grounds for establishing such areas are considered Types of MPAs are considered in more detail. It is noted that at present the following types can be distinguished: marine protected areas, particularly sensitive sea areas; areas of protection of the world cultural heritage, protected areas or areas where special measures need to be taken to conserve biological diversity, marine protected areas per se. The article analyzes the provisions of international treaties, as well as recommendatory acts, that provide for the possibility and necessity of the establishment of MPAs. Much attention is paid to the United Nations' contribution to the development of the institute of MPAs. The large role of the UN Secretary-General in the process of determining the role of MPAs in the conservation of marine living resources and biodiversity is noted. Resolutions of the UN General Assembly are presented and considered. It was noted that particular attention should be paid to the UN Resolution adopted in 2015 «Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation andsustainable use of marine biological diversity of areas beyond national jurisdiction». During the development of a legally binding instrument MPAs establishment problems will be examined. In addition to the United Nations, the activities of other international intergovernmental organizations on various issues concerning MPAs, namely FAO, UNESCO, NEAFC, have been analyzed. The authors give examples of establishing MPAs in the waters under the jurisdiction of a number of countries: Canada, USA, Japan, Mexico and Cuba. National legal acts, in accordance with which such areas have been established, have been determined and analyzed. Special attention is paid to the activities of the CCAMLR aimed at establishing MPAs in the area of regulation of the Convention on the Conservation of Antarctic Marine Living Resources 1980. It is noted that the organization is actively taking various measures to establish such areas. The CCAMLR decisions have been subjected to thorough analysis. As the result of the consideration of problems mentioned above, the authors suggest that an international code on the legal status of MPAs should be developed and adopted.

Legal Issues in the Protection of Marine Biological Diversity Beyond National Jurisdiction

States are facing new challenges with respect to conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). This underscores a significant gap in the existing legal regime, as embodied in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), for protection of marine biological diversity beyond national jurisdiction. Thus, there is a critical need for a legal instrument to specifically address the regulatory and governance gap in this area. To this end, the United Nations General Assembly (UNGA) has set up an ad-hoc BBNJ Working Group. In January 2015, the BBNJ Working Group recommended that an international legally binding instrument under UNCLOS needed to be developed. This will enable UNGA to decide in its forthcoming 69th Session, in 2015, whether or not to launch negotiations for a new Implementing Agreement under the UNCLOS on the conservation and sustainable use of the marine biological diversity in areas beyond national jurisdiction. The details and contours of the new legal instrument, however, have yet to be agreed to, by the international community. It is suggested that international community may consider the precedent of the United Nations Fish Stock Agreement (UNFSA) for taking the next steps in devising a legal instrument. Further, there is also a need to consider an institutional arrangement to address existing BBNJ governance gaps.

Systematic Conservation Planning: A Better Recipe for Managing the High Seas for Biodiversity Conservation and Sustainable Use

AbstractAt the UN Conference on Sustainable Development in Rio in June 2012, world leaders committed to the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (the high seas). Our analysis of gaps in high seas management indicates that a paradigm shift to a more systematic approach will be needed to safeguard high seas biodiversity from mounting threats. Experience from terrestrial and coastal areas indicates that a systematic approach to conservation planning and management can help to maintain ecosystem health and productivity while enabling sustainable use. Our analysis further demonstrates that the current legal regime on the high seas is insufficient to realize these objectives: management institutions have neither an adequate mandate for integrated planning nor the ability to effectively coordinate across multiple management regimes. We identify key elements for future high seas management and posit that a two‐pronged approach is most promising: the development of an improved global legal regime that incorporates systematic planning as well as the expansion of existing and new regional agreements and mandates. This combined approach is most likely to achieve the required ecosystem‐based, integrated and science‐based management that world leaders at Rio acknowledged should underpin ocean management.