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

Author(s):  
Sunil Kr. Agarwal
2021 ◽  
Vol 8 ◽  
Author(s):  
David S. Berry

Delegations are in the final stages of negotiating the proposed 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 will have tremendous scope. Geographically it covers all ocean areas beyond national jurisdiction, meaning approximately 60 percent of the earth’s surface. Substantively it deals with a range of complex topics necessary for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including marine genetic resources, sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology. Existing scholarship primarily explores the substantive choices for the Agreement; little examines its proposed institutional structure. This article critically assesses the competing positions advanced during negotiations for the Agreement’s institutional structure – the ‘global’ and ‘regional’ positions – and reviews the middle, or ‘compromise’ position adopted by the draft text. It suggests that both global and regional actors will be necessary to conserve and sustainably use marine biological diversity of areas beyond national jurisdiction, and that some form of coordinating mechanism is required to allocate responsibility for particular tasks. Two principles are proposed for use in combination to provide a mechanism to help coordinate Agreement organs (global) and regional or sectoral bodies, namely, the principles of subsidiarity and cooperation. These principles are found in existing international and regional structures but are advanced here in dynamic forms, allowing for temporary or quasi-permanent allocation of competences, which can change or evolve over time. This position is also grounded in the international law of treaties and furthers dynamic views of regional and global ocean governance by offering practical coordinating principles that work with the existing Agreement text.


AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 123-128 ◽  
Author(s):  
Margaret A. Young ◽  
Andrew Friedman

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.


2018 ◽  
Vol 6 (1) ◽  
pp. 259-296 ◽  
Author(s):  
Katrina M. Wyman

In discussions about the overexploitation of the vast oceans that lie beyond national jurisdiction, one bold proposal is to close fishing entirely on the high seas. Existing research suggests that converting the high seas into a giant reserve for fish might increase overall global fish catches by boosting fish catches within the adjoining areas of the oceans under national control. This conversion also might help to protect marine biological diversity, which is particularly important in an era of climate change. This Essay identifies the potential that the United States—a significant importer of high seas fish—might unilaterally take steps to end fishing on the high seas, using its market leverage. This Essay then analyzes the advantages and disadvantages of taking unilateral steps to end fishing on the high seas and the conditions under which the United States might take such steps.


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