The draft Agreement under the 1982 UN Law of the Sea Convention (UNCLOS) on the conservation and sustainable use of marine biological diversity (MBD) of areas beyond national jurisdiction is now available to facilitate the negotiation of the final Agreement.[1] Marine biological diversity is the diverse systems of genes, species and ecosystems in the marine environment[2] and is found in approx. 64% of the world’s oceans which lies beyond the limits of national jurisdiction.[3]
Marine resources can traverse different jurisdictions during their life cycles and marine ecosystems are not neatly distributed within national boundaries, therefore it is imperative that sustainable management discourse is framed multi-jurisdictionally
UNCLOS does not specifically address sustainability and MBD although Article 192 of UNCLOS provides for the protection of the marine environment and Article 194 enjoins states to protect rare and fragile ecosystems. UNCLOS was of its time and when drafted, negotiating states’ attention was focused on defining the limits of states’ entitlements off their coasts and the regulation of rights and obligations applicable thereto.
Areas Beyond National Jurisdiction in UNCLOS and Beyond: Mind the Gap
Transboundary agreements and agreements governing areas beyond the limits of national jurisdiction are not novel. Indeed, UNCLOS established the Common Heritage regime for mineral resources recovered on or beneath the seabed beyond national jurisdiction.[4] With regard to fisheries, the 2012 Convention on the Conservation and Management of High Seas Resources in the South Pacific Ocean fills a crucial gap in the conservation and management of fisheries beyond areas of national jurisdiction but is restricted to a section of the Pacific Ocean.[5] Focusing on biodiversity, the 1993 Convention on Biological Diversity (CBD) complements UNCLOS albeit with jurisdictional limitations; it applies to biological diversity within national jurisdiction.[6]
Governance frameworks over areas beyond national jurisdiction should form part of a longer-term goal of continually addressing regulatory gaps in the conservation and sustainable use of areas beyond national jurisdiction. This is in keeping with Article 197 of UNCLOS which provides that states should co-operate on a global basis in agreeing international rules for the protection of the marine environment.
The Benefit of Co-operation on a Global Basis
The UN General Assembly, as the forum for the development and codification of International Law through its resolutions[7] in accordance with UNCLOS can, according to Abott and Snidal’s view in relation to the role of international organisations, enhance efficiency further producing political effects such as shaping understandings and elaborating norms.[8]
This is indicative of the zeitgeist; state autonomy in relation to sustainable management of resources is reinvented as states are desirous of ensuring that emerging laws over our marine resources are rooted in sustainability principles
Staying the Sustainable Course
A comprehensive institutional framework is foundational to sustainability. Therefore, time will tell if agreed institutional arrangements namely, the Conference of the Parties, would address any arguable lack of coordination, collaboration and exchange of information between related institutions and state parties.[9] Specifically, the ball would be in state parties’ courts to ensure the following:
The development and transfer of technology particularly in the realm of marine science towards global baseline data to support further understanding of the marine ecosystem;
The promotion of capacity-building; and
Regional co-operation and co-ordination between state actors and scientific observers to develop spatial approaches to ocean use and management.
[1] https://undocs.org/en/A/CONF.232/2019/6 and https://www.un.org/bbnj/sites/www.un.org.bbnj/files/draft_text_a.conf_.232.2019.6_advanced_unedited_version_corr.pdf.
[2] Centre for Marine Conservation and others, ‘Marine Biological Diversity: Definition and Importance’ in Norse, Elliott. A (ed), Global Marine Biological Diversity: A Strategy for Building Conservation Into Decision Making (Island Press, Washington 1993 USA).
[3] Collins, J. (2019) Report of the Workshop “Marine genetic resources in areas beyond national jurisdiction: bridging policy, law, science and research and development” 21-22 May 2019, Brussels.10.
[4] UNCLOS Article 133. This maritime zone beyond national jurisdiction is known as the Area.
UNCLOS also established the institution framework for the common heritage regime. The International Seabed Authority.
[5] http://www.fao.org/fishery/docs/DOCUMENT/sprfmo/legal/SPRFMOConvention.pdf.
[6] The Nagoya Protocol of the CBD was set up to regulate the exploitation of genetic resources and the fair and equitable sharing of the benefits of the same.
[7] See General Assembly Resolutions 69/292 and 72/249.
[8] Abbott, Kenneth. W & Snidal, Duncan, Why States Act through Formal International Organisations, 42 The Journal of Conflict Resolution, 1 (1998) 9.
[9] Romero Lares Maria C, Some Considerations about the Shortcomings of the United Nations Convention on the Law of the Sea as a Contribution to the Sustainable Governance of the Oceans, 11 Anuario Colombiano de Derecho Internacional 131 (2018) 153.