The Global Commons and Common Interests: Is there Common Ground?

2021 ◽  
pp. 13-45
Author(s):  
Nilufer Oral
Keyword(s):  
Common Ground ◽  
Biological Diversity ◽  
Outer Space ◽  
Sustainable Use ◽  
The Moon ◽  
Global Commons ◽  
National Jurisdiction ◽  
Common Interests ◽  
And Control ◽  
High Seas

The global commons, or common areas, are those areas that lie beyond the national jurisdiction and control of any state. In general, these areas include the deep seabed, the high seas, the atmosphere, the Moon and outer space, and Antarctica. However, other than falling under a common nomenclature there is no common regime that applies to these common areas, or global commons. This chapter examines the different regimes of common heritage, common concern, and the freedom of the high seas, as they apply to the different global commons looking at the specific case of the new international legally binding instrument for conservation and sustainable use of biological diversity in areas beyond national jurisdiction under negotiations at the United Nations. In conclusion the legal landscape that emerges for the global commons is one more of variation than commonality.

From Mare Liberum to the Global Commons: Building on the Grotian Heritage

Grotiana ◽  
2009 ◽  
Vol 30 (1) ◽  
pp. 168-206 ◽  
Author(s):  
Vid Prislan ◽  
Nico Schrijver
Keyword(s):  
Natural Resources ◽  
International Law ◽  
Marine Mammals ◽  
Common Property ◽  
Outer Space ◽  
Sustainable Use ◽  
Polar Regions ◽  
The Moon ◽  
Global Commons ◽  
National Jurisdiction

AbstractThis article addresses the heritage of Grotius's concept of common goods (res communes) as developed in his seminal work Mare liberum. This contribution identifies the basic tenets of Grotius's thinking on the nature of common property and identifies the relevance of these ideas for the present day management of global commons, i.e., the areas and natural resources beyond the limits of national jurisdiction. Successively, the article examines the regimes for: the deep seabed, the high seas, and marine mammals; outer space, particularly the moon; the two polar regions; and the atmosphere, in particular the ozone layer and the climate system. The article demonstrates how some of the original tenets of Grotius's concept of res communis – in particular the idea of inexhaustibility – can no longer be upheld and how the freedom of access to the global commons has become increasingly qualified and supplemented, if not replaced by a new law of international co-operation aimed at conservation and sustainable use of natural wealth and resources beyond the limits of national jurisdiction. The global commons function as laboratories for the testing of new principles of international law and new forms of international co-operation, which can be said to clearly build upon the Grotian heritage.

Marine Protected Areas beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead

2012 ◽  
Vol 27 (2) ◽  
pp. 351-373 ◽  
Author(s):  
Kristina M. Gjerde ◽  
Anna Rulska-Domino
Keyword(s):  
Protected Areas ◽  
Marine Protected Areas ◽  
Biological Diversity ◽  
Research Question ◽  
Sustainable Use ◽  
Marine Conservation ◽  
Marine Biodiversity ◽  
National Jurisdiction ◽  
Political Commitments ◽  
High Seas

Abstract Despite strong legal duties and political commitments for marine conservation and ecosystem-based management, biodiversity in the high seas and the Area (jointly referred to as areas beyond national jurisdiction (ABNJ)) is under increasing threat. One important tool for enhancing conservation and multi-sectoral cooperation is the establishment and maintenance of representative networks of marine protected areas (MPAs). This commentary reviews potential avenues for accelerating progress towards representative MPA networks as part of a larger-scale effort towards improving the conservation and sustainable use of marine biodiversity beyond national jurisdiction. It builds on the report by Petra Drankier, Marine Protected Areas in Areas beyond National Jurisdiction, Report on Research Question 2 of the Study on ‘Biological Diversity and Governance of the High Seas’ (2011), which describes the applicable global and regional conventions by discussing the strengths and weaknesses of proposed avenues for progress, including a possible multilateral agreement under the UN Convention on the Law of the Sea (LOSC). The commentary concludes with some observations for a pragmatic path ahead.

scholarly journals Marine Genetic Resources in Areas Beyond National Jurisdiction: Promoting Marine Scientific Research and Enabling Equitable Benefit Sharing

2021 ◽  
Vol 8 ◽  
Author(s):  
Alex D. Rogers ◽  
Amy Baco ◽  
Elva Escobar-Briones ◽  
Kristina Gjerde ◽  
Judith Gobin ◽  
...  
Keyword(s):  
Technology Transfer ◽  
United Nations ◽  
Genetic Resources ◽  
Biological Diversity ◽  
Science And Technology ◽  
Sustainable Use ◽  
Scientific Research ◽  
Benefit Sharing ◽  
National Jurisdiction ◽  
The United Nations

Growing human activity in areas beyond national jurisdiction (ABNJ) is driving increasing impacts on the biodiversity of this vast area of the ocean. As a result, the United Nations General Assembly committed to convening a series of intergovernmental conferences (IGCs) to develop an international legally-binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity of ABNJ [the biodiversity beyond national jurisdiction (BBNJ) agreement] under the United Nations Convention on the Law of the Sea. The BBNJ agreement includes consideration of marine genetic resources (MGR) in ABNJ, including how to share benefits and promote marine scientific research whilst building capacity of developing states in science and technology. Three IGCs have been completed to date with the fourth delayed by the Covid pandemic. This delay has allowed a series of informal dialogues to take place between state parties, which have highlighted a number of areas related to MGR and benefit sharing that require technical guidance from ocean experts. These include: guiding principles on the access and use of MGR from ABNJ; the sharing of knowledge arising from research on MGR in ABNJ; and capacity building and technology transfer for developing states. In this paper, we explain what MGR are, the methods required to collect, study and archive them, including data arising from scientific investigation. We also explore the practical requirements of access by developing countries to scientific cruises, including the sharing of data, as well as participation in research and development on shore whilst promoting rather than hindering marine scientific research. We outline existing infrastructure and shared resources that facilitate access, research, development, and benefit sharing of MGR from ABNJ; and discuss existing gaps. We examine international capacity development and technology transfer schemes that might facilitate or complement non-monetary benefit sharing activities. We end the paper by highlighting what the ILBI can achieve in terms of access, utilization, and benefit sharing of MGR and how we might future-proof the BBNJ Agreement with respect to developments in science and technology.

Negotiating an International Legal Instrument on Biodiversity Beyond National Jurisdiction: A Look Ahead

2021 ◽  
pp. 1-17
Author(s):  
Marta Abegón Novella
Keyword(s):  
Legal Status ◽  
Biological Diversity ◽  
Sustainable Use ◽  
Marine Biodiversity ◽  
General Interest ◽  
Due Diligence ◽  
Look Ahead ◽  
National Jurisdiction ◽  
Final Agreement ◽  
Core Issues

The negotiation of the future Agreement governing the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction is in its final stage. Essentially a treaty for the protection of general interests, the Agreement can generate several benefits for the governance of the oceans. However, in the first three sessions of the intergovernmental conference, deep discrepancies have emerged with respect to the core issues of the package agreed in 2011. This article identifies various formulas and strategies that have been considered in the negotiations and incorporated in the Revised draft text as possible regulatory options with the potential to bring positions closer and facilitate the agreement: avoiding explicit reference to the legal status of marine genetic resources; the incorporation of differential and contextual norms; the introduction of due diligence obligations; the incorporation of internal soft law; and the reduction of the scope of the treaty. These options may help to provide flexibility and differentiation in the regulation but, as essentially pragmatic measures, they tend to sacrifice the ambition of the final Agreement. On the other hand, if States assume their real role and responsibility in the process –that of interpreters of general interest and custodians of marine biodiversity –they would be in a better position to find novel and more ambitious solutions for bringing this crucial Agreement to fruition. This article advocates a return to basics and the placing of the marine environment at the centre of the regulations.

Part III Marine Biodiversity Conservation and Global Ocean Governance, 8 Marine Biodiversity of Areas Beyond National Jurisdiction: Securing a Sound Law of the Sea Instrument

2018 ◽  
Author(s):  
Millicay Fernanda
Keyword(s):  
Biological Diversity ◽  
Sustainable Use ◽  
Global Ocean ◽  
Law Of The Sea ◽  
Marine Biodiversity ◽  
Ocean Governance ◽  
Preparatory Committee ◽  
National Jurisdiction ◽  
Un General Assembly ◽  
United Nations Convention

This chapter examines the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). It first provides an overview of the Preparatory Committee (PrepCom), convened by the UN General Assembly to make recommendations on the elements for a possible future multilateral agreement under the United Nations Convention on the Law of the Sea (UNCLOS). The material scope of the PrepCom is constituted by ‘the package’ agreed upon in 2011 and includes the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The chapter discusses the challenges of the package, focusing on two interlinked dimensions of the package plus the big issue that underlies it. It also considers two main tasks facing PrepCom: the first is to clearly identify all elements of each substantive set of issues composing the package, and the second task is to understand the implications of each element of these three substantive sets of issues and the inter-linkages between them.

scholarly journals Marine Technology Transfer under a BBNJ Treaty: A Case for Transnational Network Cooperation

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 144-149 ◽  
Author(s):  
Stephen Minas
Keyword(s):  
Developing Countries ◽  
Technology Transfer ◽  
Biological Diversity ◽  
Sustainable Use ◽  
Added Value ◽  
Marine Biodiversity ◽  
The European Union ◽  
Private Industry ◽  
National Jurisdiction ◽  
Marine Technology

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.

scholarly journals Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks

1999 ◽  
Vol 14 (1) ◽  
pp. 1-25 ◽  
Author(s):  
A.E. Boyle
Keyword(s):  
Dispute Settlement ◽  
Sustainable Use ◽  
Access To Justice ◽  
Fish Stocks ◽  
Legal Principle ◽  
National Jurisdiction ◽  
The Right ◽  
Settlement Of Disputes ◽  
Fisheries Law ◽  
High Seas

AbstractModern fisheries law has for some time recognised the special interest of coastal states in the management of adjacent high seas fisheries. It has been slower to acknowledge a comparable interest on the part of high seas fishing states in the conservation and management of EEZ stocks by coastal states. This imbalance of rights and obligations between these two groups of states continues to be reflected in the fisheries articles of the 1982 UNCLOS and in the 1995 Agreement on Straddling and Highly Migratory Fish Stocks. Much of the Law of the Sea Convention is about balancing the interests of different groups of states, and maintaining that balance is one of the reasons for adopting the principle of compulsory binding dispute settlement of disputes in Part XV of the Convention. Disputes about straddling fish stocks are necessarily disputes about the balance between coastal and high seas fishing states, and more generally, about the interest of the international community in sustainable management of stocks. Despite the significant changes which the 1995 Agreement makes to the substantive UNCLOS fisheries law, it remains far from clear that disputes concerning coastal state overfishing or inadequate management of straddling stocks within its own EEZ can be the subject of any form of binding process initiated by another fishing state or entity, even if there is a serious impact on the viability of stocks in other EEZs or on the high seas beyond national jurisdiction. But while coastal states and high seas states may have unequal rights and obligations with regard to fisheries access and management, they do have an equal interest in access to dispute settlement options. Both share a need for authoritative interpretation of difficult and complex texts; in both cases compulsory dispute settlement may be required in the event of failure to reach agreement on the management of shared access to straddling stocks. To hold that only coastal states have the right to compulsory binding settlement in such cases is to stabilise and protect one side of an equitable balance while leaving the other side vulnerable to erosion and instability. The question whether disputes concerning all or part of a straddling stock fall inside or outside compulsory jurisdiction is thus more than a technical question of treaty interpretation. It poses some fundamental questions about the nature of equitable utilisation as a legal principle governing use of common resources. Both in the interests of equitable access to justice, and the effective management and sustainable use of straddling stocks, compulsory jurisdiction should apply to all aspects of such a dispute. The rights of coastal states

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

2017 ◽  
Vol 32 (1) ◽  
pp. 1-35 ◽  
Author(s):  
Andrew Friedman
Keyword(s):  
Marine Protected Areas ◽  
Biological Diversity ◽  
Sustainable Use ◽  
Management Tools ◽  
Cable Industry ◽  
Environmental Impact Assessments ◽  
New Instrument ◽  
Preparatory Committee ◽  
National Jurisdiction ◽  
Submarine Cables

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.

Marine Protected Areas on the High Seas: Some Legal and Policy Considerations

2004 ◽  
Vol 19 (1) ◽  
pp. 1-17 ◽  
Author(s):  
Tullio Scovazzi
Keyword(s):  
Protected Areas ◽  
International Law ◽  
Marine Protected Areas ◽  
Biological Diversity ◽  
Customary International Law ◽  
National Jurisdiction ◽  
The Subject ◽  
Consultative Process ◽  
Specially Protected Areas ◽  
High Seas

AbstractThe 2003 meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea made a call to explore a range of tools for the protection and management of vulnerable and threatened marine ecosystems and biodiversity beyond national jurisdiction. To achieve this aim, the establishment of marine protected areas (MPAs) on the high seas not only fully complies with customary international law, but is also the subject-matter of specific obligations arising under a number of treaties (starting from UNCLOS Art. 194, para. 5). Today the time-honoured concept of freedom of the sea is to be understood in the context of the present range of marine activities and in relation to all the potentially conflicting uses and interests, such as the protection of the marine environment and the sound exploitation of marine living resources. The 1995 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean is an interesting precedent on the issue of MPAs on the high seas.

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