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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.
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.
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.
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.
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 effort to negotiate and adopt a legally binding instrument to manage marine biodiversity beyond areas of national jurisdiction (BBNJ) implicates national security interests both directly and tangentially. First, negotiations for any agreement will contend with the long-standing concept that the oceans are reserved for “peaceful purposes.” The maritime powers will insist that the concept, which reflects customary law and the practice of virtually all states, does not demilitarize the oceans. Second, any BBNJ treaty must overcome two interrelated spatial issues: the geographic parameters of what constitutes “areas beyond national jurisdiction” when those maritime boundaries are often uncertain, and how measures to protect the environment interact with military activities in those areas. Naval powers will insist that requisite marine protected areas (MPAs) and associated protective measures do not diminish naval freedom of navigation and other military uses of the sea. Third, BBNJ negotiations will be compelled to address how a new treaty will relate to the United Nations Convention on the Law of the Sea (UNCLOS), a host of other treaties, and customary norms. Imperfect as the contemporary global order of the oceans is, major maritime powers and even middle powers will seek to protect it and resist efforts at radical change that may destabilize existing regimes in pursuit of an ephemeral gain for BBNJ. This strategic interest in international stability, while understandable, unintentionally creates inertia that is likely to frustrate the most progressive proponents of BBNJ. Fourth, more broadly, any treaty is likely to affect marine ecosystem services and perhaps marine genetic resources (MGR), which help propel the “blue economy” and undergird national security. We may expect most coastal states to continue to jealously protect their exclusive rights to the living and nonliving resources offshore, and even to propose expansion of those rights and jurisdiction to “adjacent areas.” The most developed states, for their part, are unlikely to agree to any text that diminishes their rights to intellectual property related to marine biotechnology, which is a strategic sector for bio-weapons research and defense. In short, states with advanced military capabilities, and major maritime powers in particular, are unlikely to support more than incremental change to the regimes reflected in UNCLOS.