The Relevance of the Southern Ocean to the Development of a Global Regime for Marine Areas beyond National Jurisdiction—An Uncommon Commons

Abstract The Southern Ocean’s areas beyond national jurisdiction (abnj) are uncommon in a number of ways. This article first discusses features of the Southern Ocean’s uncommonness that may be relevant to the relationship between the Antarctic Treaty System (ats) and the development of the international legally binding instrument on the conservation and sustainable use of marine biological diversity of abnj under United Nations General Assembly Resolution 69/292 (ilbi). Second, the article considers the potential relationship between the ilbi and the ats. Third, the article discusses the current approach of the ats to governance of the Southern Ocean’s abnj by focusing on two particular topics which are to be included in the development of the ilbi. The topics discussed are measures (such as area-based management, including marine protected areas) and marine genetic resources.

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

ICES Journal of Marine Science ◽

10.1093/icesjms/fsx209 ◽

2017 ◽

Vol 75 (1) ◽

pp. 405-416 ◽

Cited By ~ 17

Author(s):

Zoe Scanlon

Keyword(s):

International Law ◽

Biological Diversity ◽

Sustainable Use ◽

General Assembly ◽

United Nations General ◽

National Jurisdiction ◽

General Assembly Resolution ◽

United Nations General Assembly ◽

Environmental Measures ◽

Regional Fisheries Management Organizations

Abstract United 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.

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Biological Prospecting in Antarctica – A Solution-Based Approach to Regulating the Collection and Use of Antarctic Marine Biodiversity by Taking the BBNJ Process into Account

The Yearbook of Polar Law Online ◽

10.1163/22116427_012010005 ◽

2021 ◽

Vol 12 (1) ◽

pp. 41-60

Author(s):

Katharina Heinrich

Keyword(s):

Biological Diversity ◽

Sustainable Use ◽

Extreme Environments ◽

Marine Biodiversity ◽

Polar Regions ◽

United Nations General ◽

Antarctic Marine ◽

Antarctic Treaty ◽

Convention On Biodiversity ◽

The Antarctic

Areas beyond national jurisdiction (ABNJ) are covering nearly two-thirds of the world’s oceans and are rich in biological diversity. These also include the Polar Regions, where marine organisms adapted to extreme environments and led to increased scientific interest and activities, including bioprospecting activities. As a result, marine biodiversity is increasingly threatened. Thus, the Convention on Biodiversity (CBD) was established to ensure the conservation and sustainable use of biodiversity but left ABNJ and bioprospecting activities widely unregulated. In Antarctica, for instance, bioprospecting has raised concerns, and the matter has been discussed since 2002. As a result, the United Nations General Assembly (UNGA) Resolution 69/292 concluded the establishment of a new international legally binding instrument (ILBI) on the conservation and sustainable use of marine biological diversity for ABNJ. However, the inclusion of the Antarctic Treaty Area remains unclear. In light of the current BBNJ negotiations, the Antarctic Treaty Consultative Meeting (ATCM) only acknowledges the Antarctic Treaty System (ATS) as the appropriate framework to regulate these activities in Antarctica. Further, it seems to aim for regulation under the ATS, if at all. Therefore, this paper discusses a solution-based approach for possible regulation of the collection and use of Antarctic marine biodiversity. The negotiations and achievements of the current BBNJ process will be taken into account, as they might provide support for the regulation of these issues in Antarctica and the Southern Ocean.

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Reflecting on the Role of the Arctic Council vis-à-vis a Future International Legally Binding Instrument on Biodiversity in Areas Beyond National Jurisdiction

Arctic Review on Law and Politics ◽

10.23865/arctic.v11.2554 ◽

2020 ◽

Vol 11 (0) ◽

pp. 189

Author(s):

Vito De Lucia ◽

Philip Peter Nickels

Keyword(s):

Arctic Ocean ◽

Biological Diversity ◽

Sustainable Use ◽

The Arctic ◽

Arctic Council ◽

Ocean Governance ◽

The Future ◽

National Jurisdiction ◽

General Assembly Resolution

Negotiations are ongoing 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 in areas beyond national jurisdiction (BBNJ). If adopted, the ILBI will likely apply to parts of the Arctic Ocean where the Arctic Council has played an important role for ocean governance. This begs the question of what role the Arctic Council will play vis-à-vis a future ILBI, which is envisioned to “not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies” (UN General Assembly Resolution 72/249). Against this backdrop, this article reflects on the future relationship between the Arctic Council and the ILBI. In so doing, the article initially discusses possible meanings of the notion of not undermining and, more broadly, how the ILBI will likely determine its institutional relationship with relevant bodies for BBNJ. Based on that, the article provides a short overview of the role of the Arctic Council in Arctic Ocean governance and explores whether the Arctic Council would qualify as a relevant regional body that shall not be undermined by the future ILBI.

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Common Heritage of Mankind and the Deep Seabed Area Beyond National Jurisdiction: Past, Current, and Future Prospects

Marine Technology Society Journal ◽

10.4031/mtsj.55.6.10 ◽

2021 ◽

Vol 55 (6) ◽

pp. 40-52

Author(s):

Edwin Egede ◽

Eden Charles

Keyword(s):

United Nations ◽

Biological Diversity ◽

Sustainable Use ◽

Future Prospects ◽

Common Heritage ◽

United Nations General ◽

Common Heritage Of Mankind ◽

National Jurisdiction ◽

The United Nations ◽

International Seabed Authority

Abstract The common heritage of mankind (CHM) is of a relatively recent origin. This study examines Arvid Pardo's speech to the United Nations General Assembly in 1967, in which he urged that body to designate the seabed beyond national control as CHM. The commentary next looks at Part XI of the United Nations Convention on the Law of the Sea 82, as amended by the 1994 Agreement, which incorporates the CHM as a core principle governing mineral mining in the deep bottom area beyond national jurisdiction. Finally, it discusses CHM's future prospects in relation to the draft International Seabed Authority (ISA) Exploitation Regulations, the Enterprise, an ISA organ that has yet to be operationalized, and ongoing discussions about an international legally binding instrument on the conservation and sustainable use of marine biological diversity under the UNCLOS. The purpose of this study is to highlight the complexity surrounding the CHM, which is a key principle governing deep seabed activities.

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Part V Regional Perspectives on Global Ocean Governance, 15 The Australian and Antarctic Perspective on Global Ocean Governance

10.1093/law/9780198824152.003.0015 ◽

2018 ◽

Author(s):

Warner Robin

Keyword(s):

Maritime Security ◽

Policy Framework ◽

Global Ocean ◽

Marine Biodiversity ◽

Law And Policy ◽

Ocean Governance ◽

National Jurisdiction ◽

Antarctic Treaty ◽

Marine Areas ◽

The Antarctic

This chapter examines issues of global ocean governance in Australia and Antarctica. It first provides an overview of Australia's law and policy framework for ocean governance as well as its maritime jurisdiction before discussing issues regarding management of rights and responsibilities on Australia's extended continental shelf. It then considers Australia's engagement with regional initiatives to conserve and sustainably use marine biodiversity, and the ways it addresses global and regional maritime security. In particular, it analyses the Australian Oceans Policy on maritime security and how it evolved in response to rising instances of ‘people-smuggling’ incidents to establish both national and regional policies against this practice. The chapter goes on to assess ocean governance in Antarctica, focusing on the Antarctic Treaty and the cooperation among its partners in the development of a comprehensive environmental protection regime which applies to marine areas both within and beyond national jurisdiction.

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

Frontiers in Marine Science ◽

10.3389/fmars.2021.667274 ◽

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.

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

Environmental Policy and Law ◽

10.3233/epl-210082 ◽

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.

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

10.1093/oso/9780192846501.003.0002 ◽

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.

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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

10.1093/law/9780198824152.003.0008 ◽

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.

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

AJIL Unbound ◽

10.1017/aju.2018.46 ◽

2018 ◽

Vol 112 ◽

pp. 144-149 ◽

Cited By ~ 1

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.

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