Marine Biological Diversity In Areas Research Articles

International Legal Regulation of Biodiversity Conservation in Northern Latitudes (Part 2)

International scientific and technical cooperation is critically important for making effective decisions and measures to manage Arctic biodiversity. The 2017 Agreement on Strengthening International Arctic Scientific Cooperation creates a solid legal basis for intensifying current and designing new scientific research in order to obtain the best scientific data as a basis for conservation and resource management. The basis of the international legal regime for the conservation and management of biodiversity beyond national jurisdiction in the Arctic is the 1982 UN Convention on the Law of the Sea. International legal acts on fisheries regulation have been adopted for all four areas of the high seas in the Arctic. The study of the Agreement on the Prevention of Unregulated Fishing on the High Seas in the central part of the 2018 SLA revealed significant shortcomings: when determining the spatial scope of application, an ecosystem approach is not used; a precautionary approach to fishing is not taken into account; the basis for the creation of a regional fisheries management organization is not created; the issue of fishing by third States remains open. The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond National Jurisdiction 2023 develops a number of institutions, including IOE and EIA. An analysis of its provisions indicates the inexpediency of Russia’s participation in it, taking into account the existence of the 2017 Agreement and a significant system of organizations involved in the implementation of joint marine research projects. The 2023 Agreement is not capable of having a significant positive effect on international cooperation in the conservation of Arctic biodiversity, but on the contrary will create additional obstacles to scientific research and impose financial burdens.See the beginning: Lex russica. 2024;77(8):112-129. (In Russ.). DOI: 10.17803/1729-5920.2024.213.8.112-129.

Transnational maritime environmental crime and the BBNJ Agreement

Marine areas beyond national jurisdiction are a prime target for transnational maritime environmental crime due to a fragmented international legal framework and a lack of coordination and cooperation between governance and institutional structures. On 19 June 2023, member States of the United Nations adopted 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). As the third Implementing Agreement to the 1982 United Nations Convention on the Law of the Sea (LOSC), the BBNJ Agreement seeks to secure the long term protection and integrated management of marine biodiversity through the effective implementation of relevant provisions of the LOSC and by strengthening and promoting cooperation and coordination between and among relevant legal instruments, frameworks and relevant global, regional, subregional and sectoral bodies. This article examines the relationship between the BBNJ Agreement and transnational maritime environmental crime and considers ways the instrument could assist in efforts to combat such crime. As part of this analysis, this article explores how the BBNJ Agreement could provide an important platform for the formation of key partnerships and alliances by means of regional and bilateral dialogues, outreach and coalition-building to address transnational maritime environmental crime and mobilize and sustain the momentum for global action on this issue.

HIỆP ĐỊNH THỰC THI CÔNG ƯỚC LUẬT BIỂN NĂM 1982 VỀ LĨNH VỰC BẢO TỒN VÀ SỬ DỤNG BỀN VỮNG ĐA DẠNG SINH HỌC BIỂN Ở VÙNG BIỂN NẰM NGOÀI QUYỀN TÀI PHÁN QUỐC GIA - MỘT BƯỚC TIẾN MỚI CỦA LUẬT BIỂN QUỐC TẾ

A new chapter in international law of the sea is unfolding with the adoption of a multilateral agreement dedicated to the governance of marine biological diversity in areas beyond national jurisdiction. Vietnam has been playing a proactive and influential role since the early drafting stages of this Agreement. The article offers a detailed overview of the drafting process, encapsulating the agreement’s primary contents. It also emphasizes Vietnam’s dynamic participation in the negotiations and suggests strategies for Vietnam to effectively become an official party to this Agreement.

THE EXTENT AND LEGITIMACY OF THE JUDICIAL FUNCTION IN UNCLOS DISPUTE SETTLEMENT

AbstractThis article examines reactions to the South China Sea and Chagos Marine Protection Area arbitrations under the United Nations Convention on the Law of the Sea (UNCLOS), in particular concerns about the potential widening of Part XV jurisdiction and its impact on the dispute resolution system's consent basis. It argues that assessing the impact of such cases involves a characterization of both the function of Part XV and of international judges. Ultimately, it suggests that the best test of whether UNCLOS case law has gone too far is the reaction of States in designing dispute settlement under the new Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction.

Internationalization of EIA rules in the BBNJ Agreement: Impediments and possible solutions

The International Legal Agreement for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) has been launched. The final agreement emphasizes that states are obliged to conduct Environmental Impact Assessment (EIA), providing more discretion to states that control planned activities. However, the EIA under the BBNJ negotiations, as well as the principles of international environmental law, customary international law and international organizations all call for the internationalization of the EIA and the restraint of states’ power and activities in areas beyond national jurisdiction (ABNJ). Therefore, an internationalized EIA system that subjects the state-led EIA process to global oversight or guidance is imperative. To demonstrate the necessity of EIA’s internationalization, this article analyses it from the multiple perspectives of international law and its significance to the BBNJ Agreement. Furthermore, the article examines the submissions of the Parties to the BBNJ Agreement and indicates that there is still an opportunity to internationalize the EIA system. The article concludes with recommendations that include the use of soft law documents, the internationalization of EIA guidance through list of activities, as well as the internationalization of EIA oversight through the process of public notification and consultation and rules on responsibility and liability.

Strategic environmental assessment in areas beyond national jurisdiction: existing regimes, challenges, and prospects

As a system based on domestic law, strategic environmental assessment (SEA) can take environmental factors into consideration in the formulation of policies, plans, and programmes, and has received much attention in the field of environmental governance of areas beyond national jurisdiction (ABNJ). The recently adopted “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) incorporates SEA into its text, but the BBNJ Agreement has not yet entered into force. Of other existing schemes governing ABNJ, some lack provisions on SEA, and some do not set SEA as a binding legal obligation. Conducting SEA in ABNJ faces several challenges, including fragmented rules and reluctance on the part of countries, which lead to unsatisfactory results. Therefore, this study suggests that the BBNJ Agreement should collaborate with regional treaties and international organizations in the future to complement and reinforce current systems and regulations, improving compatibility among them. At the same time, consideration should be given to identifying the protection of BBNJ as a common concern of humankind (CCH) to strengthen the implementation of future SEAs.

Tinkering While the Arctic Marine Environment Totters: Governance and the Triple Polar Crisis$

After describing how the marine environment is tottering in the face of the triple environmental crisis, this article explores the limited governance progressions at the global and regional levels in addressing the threats of pollution, climate change and biodiversity loss in the especially vulnerable Arctic. For pollution, key limitations include slow and arduous processes to add chemicals for control under the Stockholm and Rotterdam Conventions and reliance at the regional level on a fragmented array of pollution studies and projects but without specific region-wide legally binding pollution standards. For climate change, the world is not on track to meet the Paris Agreement’s temperature targets which is especially problematic for the Arctic cryosphere while the Arctic Council has largely been limited to providing general statements of concern and aspirational calls for enhanced climate mitigation and adaptation actions. For marine biodiversity losses, a pan-Arctic network of marine protected areas has yet to be developed and various implementation challenges surround the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean including the need to ensure adequate financial, human resource and technical support. The paper concludes by highlighting some promising future governance directions. They include: the conclusion of a global treaty on plastic pollution; implementation of a new Global Framework on Chemicals – For a Planet Free of Harm from Chemicals and Waste; expected further clarifications from international tribunals on State responsibilities to address climate change; and regional implementation of the Kunming-Montreal Global Biodiversity Framework and the new agreement under the UN Convention on Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

The likely impact of the BBNJ Agreement on the architecture of ocean governance

In June 2023, governments agreed to a new treaty on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). Unlike most other multilateral environmental agreements that typically emerge in response to newly identified transboundary environmental issues, the BBNJ Agreement steps into an already crowded institutional landscape as a global authority with broad objectives. The challenge facing this new legal instrument is unique. It must transform the architecture of ocean governance by harmonizing existing institutions, frameworks, and bodies (IFBs) while respecting their autonomy. This study examines the numerous references to IFBs in the treaty text to shed light on how the BBNJ Agreement might affect the dynamics with and among existing IFBs. The findings suggest that the BBNJ Agreement represents a new model for multilateral environmental agreements. It relies on its capacity to orchestrate incumbent IFBs and forge a new polycentric order centered around its treaty objectives. Its institutional power is likely to be constrained by the obligation to involve relevant IFBs in its decision-making processes. But the primary strength of the BBNJ Agreement lies in the normative authority it has established. Its objectives are effectively promoted within IFBs, potentially taking precedence in the event of serious or irreversible harm to marine biodiversity. When fully implemented, the BBNJ Agreement has the potential to redefine the relationships among existing IFBs and improve their coherence for more holistic ocean governance.

The role of environmental impact assessments in the establishment and management of marine protected areas under the UNCLOS and the BBNJ Agreement

AbstractThis article analyses the role of environmental impact assessments (EIAs) in establishing and managing marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ) under the United Nations Convention on the Law of the Sea (UNCLOS) and the Agreement under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement). The analysis is conducted by discussing Articles 194 and 205–206 of the UNCLOS and Articles 27–28 and 30 of the BBNJ Agreement. It concludes that the interaction between EIA and MPAs in ABNJ is not only desirable but also critical for the success of MPAs. The BBNJ Agreement operationalises the role of EIAs in establishing and managing MPAs under the UNCLOS by (1) granting EIA an important role in assessing the susceptibility of an MPA to the impact of certain human activities and (2) factoring part of indicative criteria for identifying potential MPAs in the list of criteria to be considered for conducting EIA screening.

The area-based management tools coordination between IMO and BBNJ agreement regimes and its implications on vessel pollution control

The International Maritime Organization (IMO), as a specialized agency of the United Nations responsible for the safety and security of international shipping and the prevention of pollution from ships, has applied two main area-based management tools (ABMTs): the “Special Areas” established under the MARPOL 73/78; and the “Particularly Sensitive Sea Areas” (PSSAs) established under the IMO resolutions. The new 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) stipulates the establishment of a comprehensive system of ABMTs to conserve and sustainably use areas beyond national jurisdiction. Strengthening coordination in the use of ABMTs established by the IMO and the BBNJ Agreement is important for vessel pollution control in the high seas. The IMO is a stakeholder for relevant proposals and consultations on proposals regarding the establishment of ABMTs in the BBNJ Agreements, and can provide information on the implementation of them. The Conference of the Parties (COPs) to the BBNJ Agreement can also make recommendations to the IMO and its parties to promote the adoption of special areas and PSSAs. This article respectively elaborates on the practices and effect of ABMTs of the IMO and explores the relevant rules of the BBNJ agreement and their enforcement. Then this article discusses the possible approaches for the ABMTs coordination between the IMO and the BBNJ agreement regimes and their implications on vessel pollution Control in the high seas. Overall, relevant rules of the BBNJ agreement shall be interpreted and applied in a manner that does not undermine relevant legal instruments of the IMO. Meanwhile, it is necessary to promote cooperation and coordination between the COPs to the BBNJ Agreement and the IMO under the idea of conserving ecosystem integrity, gradually forming a normal cooperation and information exchange mechanism.

Как управлять генетическими ресурсами в Северном Ледовитом океане?

The paper examines possible mechanisms for states to manage genetic resources in the Arctic Ocean in the general context of internationally agreed norms on the conservation of biological diversity and the increasing attention of states to the degradation of the world ocean ecosystems. The main attention is paid to the cumulative consideration of the rules on marine living resources, including genetic ones, which are provided for in the 1982 UN Convention on the Law of the Sea, the 1992 Convention on Biological Diversity, as well as its 2000 and 2010 Protocols. The entry into force of the UN Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction is being assessed as a long-term perspective. The authors provide arguments in favor of implementing a regional or bilateral mechanism for managing Arctic marine genetic resources.

International Legal Issues in the Conservation of Marine Genetic Resources

INTRODUCTION. Nowadays the issues concerning conservation of marine biological diversity become important for the community of States in the light of the expansion of the scale of economic activity in marine spaces and of the opportunities of using such resources. At the universal contractual level an answer was proposed to a number of questions that have arisen in this area: on March 4, 2023, the text of the Agreement (under the 1982 United Nations Convention on the Law of the Sea) with a long title: “on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction” was finalized. It is predicted that the entry into force of this Agreement in the future will create a multilateral legal basis for conservation of biological diversity on the high seas, with the orderly use of its biological resources, to protect such diversity based on the principle of cooperation between States.The purpose of the article is to analyze the legal regime of marine genetic resources conservation based on the text of this Agreement.MATERIALS AND METHODS. The subject of this study comprises international treaties, international customs, general principles of international law and other sources of international law related to conservation of marine biodiversity in general. The methodological basis of the research is represented by a wide range of research methods, namely: formal-legal, comparative-legal, historical-legal and system-structural methods. In addition, the author applied the methods of analysis and generalization.RESEARCH RESULTS. The article presents a comprehensive analysis of the international legal regime of marine genetic resources based on the provisions of 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. The author considers the history of the development of the draſt Agreement, analyzes its main provisions, and pays special attention to its innovative legal mechanisms.The author proposes their assessment of the content of the draſt Agreement as a universal legal basis for the conservation of marine biological diversity, and suggests some options for strengthening international cooperation in this area.DISCUSSION AND CONCLUSIONS. As a result of the study, it can be stated that the draſt Agreement, prepared over many years of negotiations and published in March 2023, is a significant political and legal achievement of a universal level in the field of marine biodiversity conservation. At the same time, one can not fail to note the rather general nature of this document, as well as the fact that the entry into force of the Agreement may also require considerable time: objectively, the interests of developed and developing countries in this area are not always close; moreover, each State party to the Agreement accepts the obligation, among other things, that the use of marine natural resources should be linked to the obligation to protect marine environment, and this is always sensitive: a number of developed countries, as is known, under the pretext of economic concern, impose on developing States “green” products of their enterprises, which exacerbates the gap between developed and developing States.That is why the author comes to the conclusion that the international community, along with the development of a universal international treaty, could take the path of developing regional agreements to clarify such a legal regime, which would also contribute to the strengthening of the legal regime for biodiversity conservation at the universal level.

Making Sense of the Agreement on Biodiversity Beyond National Jurisdiction: The Road Ahead

The negotiations of the future regulation governing the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction successfully concluded last March 2023 and the BBNJ Agreement was formally adopted by consensus on 19 June 2023. The previous article “Biodiversity Beyond National Jurisdiction: ways forward to reach a necessary Agreement”, published in the EPL 52 (1) 2022, defended the BBNJ Agreement potential to make a very positive impact on the governance of the oceans in general and proposed some formulas to facilitate the adoption of the treaty in a scenario where States had very different expectations. The present work reviews that article, first, to update what the result of the negotiation has been with respect to the main issue areas of the regulation; secondly, to identify which negotiation formulas have certainly helped to adopt the treaty; and thirdly, to reflect on to what extent the final text of the Agreement will be ambitious and effective enough to fulfil its objectives.

The Agreement Under the U.N. Convention on the Law of the Sea on the Conservation & Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

On June 19, 2023, the Intergovernmental Conference on 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 (BBNJ Intergovernmental Conference) adopted, by consensus, 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 or Agreement). The Agreement, which is grounded in and builds on the UN Convention on the Law of the Sea (UNCLOS), specifically addresses issues relating to the conservation and sustainable use of the marine biodiversity of the high seas. The adoption of the Agreement was the culmination of nearly two decades of work under the auspices of the UN General Assembly.

Area‐based management tools under the BBNJ Agreement: Ambition or illusion?

AbstractThis article intends to answer the question of whether and to what extent the arrangements for area‐based management tools (ABMTs) under the Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement) can contribute to the comprehensiveness, coherence and consistency of the international legal regime relating to ABMTs. To answer this question, the article analyses and evaluates the key aspects of the arrangements for ABMTs of the BBNJ Agreement, including consistency with the United Nations Convention on the Law of the Sea (UNCLOS), the interpretation of ‘not undermining’, decision making and the implementation mechanism. It concludes that the arrangements for ABMTs of the BBNJ Agreement are consistent with the UNCLOS and may contribute to the comprehensiveness, coherence and consistency of the international legal regime relating to ABMTs to a large extent. The article further notes that the arrangements for ABMTs of the BBNJ Agreement are ambitious, but lots of work needs to be done to ensure the ambition does not become an illusion.

Institutionalising science and knowledge under the agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ): Stakeholder perspectives on a fit-for-purpose Scientific and Technical Body

The use of science, scientific information, and other knowledge to inform decision-making is increasingly recognised as an integral feature of environmental governance – a governance principle which is reflected in the new agreement for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement). To support the integration of science and knowledge, the BBNJ Agreement establishes a Scientific and Technical Body (STB) and confers the task of finalising the formulation and function of this new advisory body to the Conference of Parties once the agreement enters into force. Therefore, it is a critical time for careful consideration of what is needed to achieve an effective STB. However, to date, there is limited research on what a fit-for-purpose STB would involve for BBNJ or what is needed to operationalise this in practice. As such, we aim to fill this knowledge gap by providing insights garnered from semi-structured interviews with key BBNJ stakeholders. Using qualitative content analysis, we identify and examine eight characteristics that stakeholders deem as important qualities for the STB to encompass, as well as challenges and opportunities for operationalising these qualities in practice. Our findings indicate that a fit-for-purpose STB extends beyond the mere production of high-quality scientific advice - it also necessitates the inclusion and due consideration of other fundamental qualities such as inclusivity and equity, transparency, flexibility, and synergy with the existing governance framework, amongst others, as well as proactive consideration of trade-offs associated with different design choices. These findings are pertinent to the forthcoming endeavour of designing and implementing an STB under the BBNJ Agreement, and more generally, provide insights on normative qualities that stakeholders perceive as important for science-policy interfaces.

The BBNJ Agreement: Through the Prism of Deep-Sea Vulnerable Marine Ecosystems

On 19 June 2023, member States of the United Nations adopted, by consensus, 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). The BBNJ Agreement seeks to address one of the greatest challenges of the 21st century—managing our deep ocean environment, including its ecosystems and resources, in a way that does not lead to its long-term decline and maintains its potential to meet the needs of present and future generations. This article assesses the BBNJ Agreement through an analysis of its application to deep-sea vulnerable marine ecosystems (VMEs). As VMEs represent a key component of marine biodiversity and are particularly susceptible to anthropogenic disturbance, they provide a useful medium for undertaking a legal analysis of the provisions, rules, and procedures of the recently adopted instrument.

Form follows function: An initial evaluation of the BBNJ Agreement’s achievements regarding the "not undermining" proviso

The adoption of 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) ushers in a new era of global ocean governance. At this juncture, it is necessary to take stock of what the BBNJ Agreement has achieved with regard to the once highly contested issues. To this end this paper examines how the issue of "not undermining" has been translated into specific legal provisions. After tracing back to UNGA Resolutions to the process of the Intergovernmental Conference, a thorough analysis of the key relevant provisions of the BBNJ Agreement has been undertaken, with a particular focus on Parts II to V. Two different approaches have been observed. Parts II and IV have adopted an open-ended approach, while Parts III and IV have pursued a comprehensive approach, reflecting the "Triple F" principle that form follows function. In order to achieve the envisioned goals such as better addressing conservation and sustainable use and universal participation, this paper argues that the implementation of the BBNJ Agreement should be guided by a new "Triple F" principle where form facilitates function.

The Common Heritage of Humankind Principle and Marine Genetic Resources: A Critical Assessment of the BBNJ Process

Abstract This article explores the negative implications of the biological diversity of areas beyond national jurisdiction (‘BBNJ’) process for the common heritage of humankind (‘CH’) principle, focusing on the discussions over its applicability to Marine Genetic Resources (‘MGRs’). This article argues that the CH under the United Nations Convention on the Law of the Sea for deep-sea mineral resources was neither necessary nor desirable for MGRs governance. An analysis of the BBNJ process demonstrates that CH’s exploitation bias is still persistent, which makes this principle politically controversial and prevents the principle from embracing sustainable development. Indeed, Article 7 of 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 stipulates the CH as a general principle of the new BBNJ regime. However, the BBNJ negotiations failed to articulate how the CH principle can contribute to managing the living resources, MGRs, in areas beyond national jurisdiction. This finding would cast doubt on the alleged potential of the CH principle to govern a broad range of subjects or resources other than deep-sea minerals.

Dynamic Ocean Management in Areas Beyond National Jurisdiction

Law and space are intimately connected. In the ocean, the natural environment is divided into maritime zones. Such a division neglects the interconnected nature of the ocean and its inhabitants. Since this zonal approach relies on geographically stable boundaries, it also limits the opportunities to manage a fluid ocean. Area-based management tools, including marine protected areas (MPAs), address some of the limitations of zonal management. However, MPAs are also static from a geographical point of view. The deteriorating state of many marine species and ecosystems indicates a failure of traditional management approaches and puts a renewed emphasis on adapting legal scales to “natural scales,” such as ecosystems. In this article, we argue that there are positive trends and new tools that could be developed within the current legal order to face the challenges that nature is facing in the Anthropocene. One such tool is dynamic ocean management, which moves away from the static rationale of traditional ocean management illustrated here by MPAs, toward a management system focused on the temporal and spatial dynamism of the marine environment. In order to understand how such a management tool could be developed and used within the current legal system, we show how traditional ocean management rests on the notion of delimited and static boundaries and temporarily fixed measures. We discuss this in terms of fixity and simplification. Then we analyze dynamic ocean management and its potential to capture more of the complexity of the marine environment. This analysis is followed by an overview of MPAs and networks of MPAs in areas beyond national jurisdiction (ABNJ), where we discuss the impact of the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Treaty) in the development of dynamic ocean management. This overview provides information about both the possibilities and challenges of area-based management in ABNJ. We argue that MPA networks and large marine ecosystems (LMEs), coupled with the establishment of coordination mechanisms between existing institutional structures, are necessary first steps to secure dynamic ocean management.