Published 13 April 2018
At the United Nations (UN), the international community is currently negotiating an international legally binding instrument under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ). This process is often referred to under the acronym ‘BBNJ’ for ‘biodiversity beyond national jurisdiction.’ The development of a BBNJ Agreement could represent “a profound paradigm shift in the law of the sea”1 as it will hopefully address one of the greatest sustainability challenges of the 21st century — managing our deep ocean environment and its ecosystems and resources.2 After almost a decade of discussions by the BBNJ Working Group and four sessions of the Preparatory Committee (PrepCom), BBNJ negotiations are about to enter their final stage with the first Intergovernmental Conference due in September 2018. As the BBNJ process approaches a critical juncture, this is an appropriate time to assess exactly what is at stake.
What is Marine Biodiversity?
The 1992 Convention on Biological Diversity (CBD) introduced the concept of ‘biodiversity’ into international law.3 Under Article 2 of the CBD, ‘biological diversity’ is defined as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part.”4 This includes three distinct levels: diversity within species, between species and of ecosystems.5 Marine biodiversity therefore encompasses all forms, levels and combinations of marine life.6
Areas beyond national jurisdiction (ABNJ)
The geographical scope of a BBNJ Agreement will be limited to ABNJ, being, ‘the high seas’ and ‘the Area.’ The high seas encompass the water column beyond the Exclusive Economic Zones of coastal States,7 while the Area comprises the seabed, ocean floor and subsoil beyond the continental shelf (or outer continental shelf if it exists) of a coastal State.8
Why focus on marine biodiversity in ABNJ?
ABNJ represent close to one-half of Earth’s surface,9 and holds the largest remaining reservoir of biodiversity on Earth.10 While scientists are just beginning to understand the full extent of biodiversity in the world’s oceans,11 it is clear the deep sea is ‘teeming with life’12 and is home to a “wealth of habitats, life forms and genetic diversity needed for the planet to survive.”13 For example, Rice and Simcock highlight that unique and fragile ecosystems including seamounts, hydrothermal vents and cold-water corals have been recognised as ‘biodiversity hotspots.’14 Each supporting a rich and diverse biological community and an array of marine genetic resources (MGRs). These deep sea habitats represent a “relatively untapped source of new materials, compounds, and organisms”15 and have attracted increasing attention. However, in an exceedingly ‘crowded ocean’ such habitats are facing unprecedented threats to their health and well-being.16
Why do we need a BBNJ Agreement?
For a long time, because of their remoteness, ABNJ were thought to be protected from the impact of anthropogenic activities. However, the impact of our ecological footprint has grown exponentially in ABNJ since the adoption of UNCLOS.17 Not only have traditional uses of the ocean intensified, such as fishing and shipping,18 but new activities have emerged including the bioprospecting of MGRs, seabed mining, the construction of artificial islands, ocean fertilization and energy generation.19 Most of these activities take place “in a climate of uncertainty as to their long-term impacts”20 on the marine environment and pose “individual, cumulative and synergistic threats to marine biodiversity.”21 To compound the situation, the oceans are also facing a catalogue of anthropogenic stressors, most notably, from the effects of climate change.22 Ocean warming, acidification and an increase in deep-ocean hypoxia and anoxia pose significant challenges to the resilience of marine ecosystems,23 and they have also ‘been associated with each of the previous five mass extinction events on Earth.’24 Warnings have therefore been issued that unless action is taken urgently to safeguard marine biodiversity we could witness a global extinction event.25 Thus, without a BBNJ Agreement, there is a strong chance future generations will not enjoy the rich biodiversity our deep oceans have to offer.
To make matters worse, the rules, regulations and institutional structure of the current legal framework has not kept pace with the increase in activities in ABNJ.26 This is particularly true of UNCLOS as the overarching framework. At the time of its adoption, UNCLOS was considered ground-breaking as it was the first international agreement to codify “rules and principles for the protection and preservation of the marine environment.”27 Unfortunately, the environmental protection provisions under UNCLOS are only of a general framework nature,28 and there is a severe lack of modern governance principles and conservation tools. Both the ecosystem and precautionary approaches are not explicitly provided for in UNCLOS, nor are there detailed provisions for the establishment of area-based management tools (ABMTs) including marine protected areas (MPAs) or environmental impact assessments (EIAs) for the high seas.
While UNCLOS establishes a general framework for ABNJ, this is implemented at a global and regional level by sectoral regimes.29 For example, fishing is addressed by the FAO and is complemented at a regional level by Regional Fishery Management Organizations, shipping is regulated by the IMO and the exploration and exploitation of the mineral resources of the Area is overseen by the International Seabed Authority. However, the maze of organizations and institutions that make up the current legal framework actually “bear no real relationship to one another and operate independent of each other without an overarching framework to ensure structure, consistency and coherence.”30 Furthermore, a single-sector approach to ocean management is now considered to be a major factor in the deterioration of ocean health,31 as it “pays scant attention to the coordination between different activities and their cumulative impacts on the marine environment.”32
Peter Thomson, former President of the UN General Assembly has stressed that unless a new international system is developed to regulate all human activity in ABNJ they will remain “a pirate zone.”33 It is the hope that a BBNJ Agreement will provide a global solution to the inadequacies of the current legal framework,34 and instead utilise modern management approaches and tools to provide comprehensive, cross-sectoral and integrated protection for marine biodiversity in ABNJ.35
Turning Words into Action
Leading into the Intergovernmental Conference focus will turn to the “package deal” of issues consisting of four topics: (1) MGRs including issues of benefit sharing; (2) ABMTs; (3) EIAs; and (4) capacity building and the transfer of marine technology. Based on the PrepCom Report there remains a significant amount of disagreement between States on a number of key issues. While it is everyone’s hope that a BBNJ Agreement will provide the necessary tools and mechanisms to safeguard marine biodiversity in ABNJ, it will ultimately come down to the political will of States. A significant amount of work has been carried out to date and provides a glimmer of hope that one day in the near future there will be a comprehensive agreement in place. However, anything less will be a wasted opportunity.
1. Houghton, K. (2014). Identifying new pathways for ocean governance: The role of legal principles in areas beyond national jurisdiction. Marine Policy, 49, p.118.
2. Levin, L. A. (2015). Climate Change Impacts on Marine Biodiversity and Resilience. Paper presented at the Third International Symposium on the Effects of Climate Change on the World’s Oceans, Santos, Brazil. Access here.
3. Warner, R. (2015a). Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: Co-Evolution and Interaction with the Law of the Sea. In D. Rothwell, A. Oude Elferink, K. Scott, & T. Stephens (Eds.), The Oxford Handbook of the Law of the Sea. Oxford, UK: Oxford University Press, p.752-776.
4. Article 2 of the 1992 Convention on Biological Diversity.
6. Tanaka, Y. (2015). The International Law of the Sea (Second ed.). Cambridge, UK: Cambridge University Press, p.334.
7. Article 86, 1982 United Nations Convention on the Law of the Sea.
8. Article 1(1), 1982 United Nations Convention on the Law of the Sea.
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13. Levin (2015), ‘Climate Change Impacts’.
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24. Rayfuse (2016), ‘marine biodiversity and international law’, p.144.
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27. The Pew Charitable Trusts (2012), ‘Potential Elements of an UNCLOS.’
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34. Sengupta, S. (2017). Nations will Starts Talks to Protect Fish of the High Seas. New York Times. Access here.
35. Scanlon, Z. (2018). The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES Journal of Marine Science, 75(1), 405-416.
36. Gjerde, K.M., Currie, D., Wowk, K. & Sack, K. (2013). Ocean in peril: Reforming the management of global ocean living resources in areas beyond national jurisdiction. Marine Pollution Bulletin, 74(2), 540-551.
Sarah Louise Lothian is a PhD Candidate at the University of Sydney Law School. Sarah’s thesis will examine the legal framework required under a new BBNJ Agreement to protect marine biodiversity in areas beyond national jurisdiction. Sarah has completed a combined Bachelor of Arts/Law (Honours) degree at the University of Sydney, a Masters degree in Maritime Law (With Distinction) at the University of Nottingham and a Masters degree in Family Law at the College of Law Sydney. Sarah is currently a member of the NSW Bar.
To connect with Sarah on LinkedIn, click here.