I. INTRODUCTION
The fourth session of the Intergovernmental Conference (IGC) on a new implementing agreement under the United Nations Convention on the Law of the Sea (LOSC) concerning marine biological diversity in areas beyond national jurisdiction was scheduled to take place from 23 March to 3 April 2020.Footnote 1 This was supposed to be the final session of the IGC, convened on 24 December 2017 by the UN General Assembly (UNGA),Footnote 2 which would mark the end of a very long and difficult journey. Indeed, the issue of the conservation and sustainable use of biodiversity on the high seas and the deep seabed, commonly referred to as biodiversity beyond national jurisdiction (BBNJ), has been on the agenda of the UNGA since 2004.Footnote 3 However, in response to the COVID-19 pandemic, by decision 74/543 of 11 March 2020, the UNGA decided to postpone the fourth session of the conference to the earliest available future date.Footnote 4 At the time of writing (1 May 2020), it is not known when the fourth session will be rescheduled.
Yet, regardless of when the fourth session takes place, the omens are not in favour of the ‘BBNJ-canoe’Footnote 5 reaching its destination any time soon. As the latest version of the negotiating draft text that Ms Rena Lee, the ICG President, published on 27 November 2019 demonstrates, a plethora of important issues remain unsettled.Footnote 6 It seems highly unlikely that a compromise will be reached on all of them in the two weeks of the fourth session, and many experienced delegates anticipate a fifth or even a sixth session in 2021.
The quest for an agreement on BBNJ has proven very difficult, not only due to the complexity and significance of the topic, but also because it has proven hard to resolve the controversy that lies at its heart. This controversy is between, on the one hand, the ‘freedom of the high seas’, including the freedom of marine scientific research for bioprospecting purposes,Footnote 7 and, on the other, the common heritage of mankind (CHM).Footnote 8 As a contemporary iteration of the famous battle between ‘mare liberum’ and ‘mare clausum’ in the seventeenth century,Footnote 9 this controversy over what will be the tenet underpinning the BBNJ treaty has been haunting the negotiations since day one. In this vein, questions such as whether access to the marine genetic resources (MGRs) of the deep sea-bed will be free or regulated and whether the resulting monetary benefits will be shared, as well as whether the conservation of marine biodiversity in those areas will be a matter, primarily, for the individual user or for the international community to regulate, still persist.
It is trite that the most contentious issue in the course of the negotiations to date has been that of MGRs. Marine organisms, such as microorganisms that survive in extreme conditions of pressure, salinity, and the absence of oxygen and light, offer unique qualities possessing potentially significant commercial value.Footnote 10 Such organisms are to be found in the ecosystems of the deep ocean, including seamounts, hydrothermal vents and methane seeps, and in the diverse biological communities of the ocean floor.Footnote 11 Although the marine biotechnology industry is still in its infancy, MGRs have already been used in products that have anti-inflammatory, anti-cancer, or other medical properties, where the potential monetary rewards are extremely high.Footnote 12
Given the promising financial prospects of MGRs in areas beyond national jurisdiction (ABNJ), it came as no surprise that the Group of 77 (G-77), as they had done in the 1970s with respect to polymetallic nodules,Footnote 13 argued that the CHM principle should apply to MGRs.Footnote 14 Indeed, in their view, as reported by Freestone:
rather than being subject to the open access regime of the high seas as advocated by some States, if the drafters of the LOSC had been aware of these resources—rather than simply being aware of the famous ‘manganese nodules’—they would doubtless have specifically included these living resources within the deep sea bed regime.Footnote 15
On the other hand, there are many StatesFootnote 16 that argue that MGRs should be subject to the freedom of the high seas and the application of conventional intellectual property systems.Footnote 17 This is reminiscent of the controversy between the freedom of the high seas and CHM prevalent in the Third United Nations Conference on the Law of the Sea (UNCLOS III).Footnote 18
In addition, this controversy is noticeable not only with respect to the sustainable use of marine biodiversity, including the MGRs in ABNJ, but also with respect to the measures necessary to achieve better long-term conservation of marine biodiversity in ABNJ, such as area-based management tools (ABMTs), including marine protected areas (MPAs), and Environmental Impact Assessments (EIAs). These two measures, together with MGRs and capacity-building and transfer of technology (CB & TT), comprise the ‘package-deal’ that, in 2011, the UNGA agreed to be addressed by the new agreement.Footnote 19 MGRs aside, in respect of the other elements of the ‘package’, the controversy primarily lies not over whether these measures are required in ABNJs, since they are already provided for in the LOSC,Footnote 20 but over whether their regulation, including the respective decision-making processes, should be global, or whether it should be left to regional arrangements and bodies or individual States. The G77 advocate for the former option. However, the most developed States argue that the majority of these issues are already effectively regulated by regional organisations and that, in any event, it falls upon the individual State to decide upon the necessary regulatory measures.Footnote 21
Against such backdrop, this article discusses the negotiations for this new agreement, the extent to which, when concluded, could meet the objective of the effective conservation and sustainable use of marine biodiversity in ABNJ, and the challenges that lie ahead in making this a reality. Rather than providing an exhaustive treatment of the negotiations to date, this article offers a succinct overview of the background of the negotiations and the current state of affairs with respect to the process and the elements of the ‘package’. In so doing, it will underscore a few key elements, in particular: the relationship between the new agreement and existing and future relevant regional instruments and bodies, including the need for cooperation and coordination amongst them; the guiding principles of the new agreement; and the question of implementation and enforcement of the new agreement. These issues, and how delegations will choose to resolve them, highlight the above-mentioned controversy on the tenet underpinning the agreement, which has long bedevilled the negotiations. This article concludes with a pessimistic prognosis that, in general, the agreement will fall short of the expectations that many States, and the international community, had prior to the IGC.Footnote 22
II. BACKGROUND
The obvious gap in the legal framework of the deep seabed, namely the legal treatment of MGRs and the related—and as of yet unresolved—question of its legal regime, has been the main driver of the BBNJ negotiations.Footnote 23 Already, in November 1995, the Conference of the Parties to the Convention on Biological Diversity (CBD) adopted a decision requiring the Executive Secretary, in consultation with the UN Division for Ocean Affairs and the Law of the Sea (DOALOS), to undertake a study of the relationship between the CBD and LOSC with regard to the conservation and sustainable use of genetic resources on the deep seabed.Footnote 24 It was not until 2004, however, that the UNGA established the Ad hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (the BBNJ Working Group), which included the issue of MGRs.Footnote 25
The BBNJ Working Group first convened in 2006 and met several times in the following years, albeit without agreement on the legal and institutional mechanisms required to meet the objective of the conservation and sustainable use of BBNJ. In 2011, however, a consensus was reached and the Working Group finally recommended to the UNGA that ‘a process be initiated […] with a view to ensuring that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under [the LOSC]’.Footnote 26 In addition, the Working Group recommended that this process should address ‘together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, and environmental impact assessments, capacity-building and the transfer of marine technology’.Footnote 27 Such elements remain the constitutive elements of the future BBNJ treaty.
After three years of further discussions, the BBNJ Working Group held its last meeting in January 2015, leading to the adoption by the UNGA of Resolution 69/292 on 6 July 2015. In Resolution 69/292, the UNGA convened a Preparatory Committee (PrepCom) aimed at the development of recommendations on the elements of a draft text of a legally binding instrument on BBNJ.Footnote 28 The PrepCom met four times between 2016 and 2017, and submitted its recommendations to the UNGA in September 2017. These recommendations included the core elements of the future BBNJ treaty and paved the way for the adoption of Resolution 72/249 convening the IGC.Footnote 29
III. THE IGC AND THE ELEMENTS OF THE ‘PACKAGE’
A. IGC Sessions: Process and Progress
In defining the decision-making process, the UNGA, following the tradition of UNCLOS III,Footnote 30 decided that ‘the conference shall exhaust every effort in good faith to reach agreement on substantive matters by consensus’.Footnote 31 However, taking a more pragmatic stance, Resolution 72/249 also provided that if every effort to reach agreement by consensus has been exhausted, then ‘decisions of the conference on substantive matters shall be taken by a two-thirds majority of the representatives present and voting’.Footnote 32 As one commentator rightly notes ‘[t]his option appears quite realistic in the current context, as some States remain particularly reluctant to the adoption of a new international instrument … such as, to varying degrees, the Russian Federation, the United States and Iceland’.Footnote 33
The first negotiating session (IGC-1) took place between 4 and 17 September 2018.Footnote 34 The IGC-1 discussions focused on an ‘Aid to Discussions’ document,Footnote 35 rather than a ‘zero draft’, which did not help ‘switching into negotiating mode’ after more than a decade of preliminary discussions on BBNJ.Footnote 36 Nevertheless, the shared feeling was that some progress had been made at the meeting.Footnote 37
Expectations for IGC-2 were thus high. IGC-1 had given IGC President Rena Lee a mandate to produce a further document to facilitate IGC-2 engaging in text-based (or at least text-led) negotiations. The document produced was titled ‘Aid to Negotiations’ and included, in accordance with the mandate received at IGC-1, all existing options.Footnote 38
Having as background the President's Aid to Negotiations, delegations at IGC-2 (25 March–5 April 2019) discussed the options included therein on all the topics which had, since 2011, been identified as the ‘package’, as well as cross-cutting issues, such as the institutional arrangements. Unfortunately, there was no significant progress on the issues previously identified as points of divergence, such as the material scope of any treaty, the types and modalities of benefit sharing of MGRs as well as the institutional arrangements. Indeed, on some issues there remained ‘diametrically opposed positions’.Footnote 39 Further, the President's Aid to Negotiations, with its numerous options and sub-options, proved rather cumbersome and failed to significantly facilitate the discussions. It came as no surprise that several delegations suggested, first, that, prior to the next meeting in August 2019, IGC President Rena Lee should prepare and circulate a ‘no-options’ document containing treaty text, and second, that it was high time to revise the meeting format, calling for a more informal set-up to facilitate in-depth negotiations.Footnote 40
The President circulated a draft agreement (‘zero-draft’) three months prior to the third session,Footnote 41 which was held from 19 to 30 August 2019. It was the first time since the IGC had been convened that delegates had the opportunity to work on a ‘zero-draft’, provided well in advance of the third session and move away from reiterating general comments towards making concrete textual proposals. In addition, the decision to hold some meetings in a more informal setting (‘informal-informals’), ie not in a plenary layout, proved to be overall very helpful.
Notwithstanding the fresh air of optimism stemming from the third session, the truth remains that certain fundamental problems persist. It suffices to mention, in particular the divergence of views concerning: how access to MGRs would be regulated, and whether the benefit-sharing would be monetary or non-monetary; the decision-making mechanism with respect to the establishment of MPAs; the nature of CB & TT and whether this would be on a voluntary basis; and the criteria and threshold for an EIA and the relationship with the respective processes under other bodies and instruments.Footnote 42 The general sentiment is that ‘it will take more than one meeting to address the issues in which divergence exists’.Footnote 43
B. The Four Elements of the ‘Package’
1. Marine Genetic Resources (MGRs)
One of the key issues addressed in the 2011 ‘package’, the MGRs, including questions on the sharing of benefits, is probably the most complex and the most controversial aspect of the negotiations. A number of matters have, to date, been particularly contentious in this respect.
First, the scope of the application of the new agreement on MGRs. The MGRs may exist in three possible modes: in situ (on site in the ocean), ex situ (in collections, and no longer in the ocean, for example in gene banks or a biorepository), and in silico (MGRs that exist as digital data representing the genetic sequences of interest).Footnote 44 Reflecting the underpinning tug of war between freedom of the high seas and CHM, developed and developing States have very different ideas about whether all of these three modes, including derivatives, should be included in the new agreement as well as about at which stages MGRs should be susceptible to access and benefit sharing. To no surprise, developed States prefer the inclusion of only in situ MGRs,Footnote 45 while developing States call for all three modes as well as derivatives to be included.Footnote 46 The Revised Draft Text sets out all modes of MGRs in bracketed language, i.e. language yet to be agreed, while it seems to be agreed that ‘fish and other biological resources as a commodity’ would be excluded from the new agreement.Footnote 47 Also, further discussion is required on whether MGRs collected before the entry into force of the agreement, but accessed ex situ or in silico afterwards, would fall within the temporal scope of the agreement.Footnote 48
Second, with respect to access and benefit-sharing, developing States in general support a much stronger set of rules to govern access to MGRs, including both non-monetary and monetary benefit sharing and open access data repositories for the dissemination of in silico genetic information obtained in ABNJ.Footnote 49 They draw inspiration heavily from other instruments relevant to MGRs, such as the 2010 Nagoya Protocol to the CBD, which is based on an assumption that biodiversity-rich provider countries will regulate access to genetic resources by making access for the user subject to prior informed consent,Footnote 50 and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which revolves around a system of facilitated access.Footnote 51 On the other hand, the more developed States favour free access to in situ MGRs, in line with LOSC provisions on MSR on the high seas, and they insist that benefit sharing should be restricted to non-monetary, including through CB & TT.Footnote 52 As reported by the Facilitator on MGRs after IGC-3, ‘there was general support for the sharing of non-monetary benefits. However, further discussions will be required on the sharing of monetary benefits and on benefit-sharing modalities.’Footnote 53 This divergence of views is reflected in the Revised Draft Text.Footnote 54
2. Area-Based Management Tools
The term Area Based Management Tools (ABMTs) covers a potentially wide range of issues including MPAs and sectoral area restrictions.Footnote 55 Notwithstanding the significance of ABMTs in protecting BBNJ,Footnote 56 there is no central guidance, eg under LOSC, on their use, but rather a series of fragmented and sectoral approaches.Footnote 57 During both the PrepCom and the three IGC sessions, the main issue, vis-à-vis ABMTs, has been whether to give primary authority over designating ABMTs to regional and sectoral bodies or whether to bestow such authority upon the institutions of the new agreement. Addressing this fundamental issue, implicit in which is the aforementioned dichotomy between freedom of the seas and CHM, is of tremendous importance for the future regulation of ABMTs under the new agreement.
Per the Revised Draft Text, proposals for ABMTs are to be submitted, individually or collectively, by States parties to the Secretariat, based on indicative criteria on the identification of areas.Footnote 58 The proposals should include, inter alia, the spatial or geographical identification of the area, a description of the specific conservation and sustainable use objectives, and relevant measures that are to be applied to the area.Footnote 59 There should be a consultation periodFootnote 60 and the decision-making would rest with the Conference of the Parties (COP), which would either decide on ABMTs complementary to, and/or independently of, the relevant regional instruments or bodies, or recommend the latter to adopt such measures.Footnote 61
3. Environmental Impact Assessments (EIAs)
Concerns about the need for the conservation of biodiversity in ABNJ are reflected in calls not only for the expansion of MPAs in ABNJ, but also for a more systematic process for the assessment of human impacts on the open oceans.Footnote 62 Proposals for such assessments are not limited to new activities; there have also been calls for the strategic assessment of existing activities, some of which have increased, and are continuing to increase rapidly. The tools developed at national and regional levels for such assessments are EIAs and strategic environmental assessments (SEA), together known as environmental assessments (EA).Footnote 63
Pursuant to Article 204 LOSC, an EIA has as its goal “… to observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment.” In the context of ABNJ, the debate has been whether an EIA would be required any time an activity takes place in the ABNJ in general, or just when activities have a high risk for environmental harm. Delegations have struggled to define this threshold during the negotiations, and there is no obvious consensus.Footnote 64 That said, at present, ie prior to IGC-4, delegations seem to agree on the principal matter that there is an obligation to conduct an EIA for planned activities under States’ jurisdiction and control which can potentially cause pollution or result in adverse changes to the marine environment, whilst avoiding duplication with existing EIA procedures under relevant instruments, frameworks and bodies.Footnote 65 Further, delegations seem to agree with respect to the type of impacts that should be taken into account in the conduct of EIAs, ie both the cumulative impacts and transboundary impacts.Footnote 66 In addition, delegations agree on the need to have provisions in the agreement related to: screening; scoping; evaluation and assessment; transparent and inclusive public notification and consultation, including with the adjacent coastal States; publication of EIA reports; and the establishment of procedures for mitigation, prevention and management of potential adverse effects.Footnote 67
However, as was reaffirmed in IGC-3, divergence exists in relation to: the threshold and criteria for an EIA and the degree of ‘internationalisation’ of the process; the relationship with EIAs under other bodies; and on decision-making, ie whether bodies established under the agreement should play any role in deciding whether an activity should be allowed to go forward following an EIA.Footnote 68 This divergence of views on decision-making reflects the fundamental dichotomy between mare liberum, ie the default freedom of the individual State to ultimately decide on its activities on the high seas, and the CHM, which dictates that the relevant decisions should only be made through a collective entity, as for example, the International Seabed Authority in the Area.Footnote 69
4. Capacity-Building and Technology of Transfer (CB & TT).
The last items in the list of issues to be addressed by the new agreement—but by no means the least important—are those concerning CB & TT. Part XIV of LOSC already obliges States to cooperate on matters concerning CB & TT either directly or through international organisations.Footnote 70 In particular, Article 268 LOSC captures the key issues covered by this concept which are relevant to the new agreement, including the promotion of the acquisition, evaluation and dissemination of marine technological knowledge and facilitation of the access to such information and data, and the development of the necessary technological infrastructure to facilitate the transfer of marine technology.Footnote 71
That said, if Article 268 functioned well, there would be no need for this issue to be included in the 2011 ‘package deal’. Indeed, what is required is to find ways to give the obligations under Article 268 teeth in order to achieve conservation and sustainable use of marine resources in ABNJ. To achieve this, the new instrument should both develop and strengthen the capacity of the States that have a need for help, particularly developing States, to request such help. This would allow them to fulfil their rights and obligations under the new agreement. However, the discussion during the negotiations so far have not focused on this specifically, but instead on whether the capacity-building measures should be mandatory or voluntary for States to participate in.Footnote 72 As evinced by the bracketed language under draft Article 44(2), this is still under negotiation: ‘[c]apacity-building and the transfer of marine technology [shall] [may] be provided on a [mandatory and voluntary] [voluntary] [bilateral, regional, subregional and multilateral] basis’.Footnote 73
Although CB & TT is a separate package, it nevertheless appears to be more of a cross-cutting issue, ie an issue cutting across all packages, and for many delegates was one of the most important elements of all the packages. In fact, during the discussions, CB & TT spilled over into debates about access and benefit sharing related to MGRs and was also connected with the implementation of requirements related to marine conservation and impact assessments. This is reflected in the discussions over a clearing-house mechanism being one of the institutional mechanisms of the new agreement. Such mechanism would constitute an open-access web-based platform serving as a centralised hub to enable States Parties to have access to, and disseminate, information with respect to, inter alia, activities in relation to MGRs, EIA Reports, and other relevant technological information.Footnote 74
IV. CROSS-CUTTING ISSUES
A. Scope of Application
Draft Article 3 (1) of the Revised Draft Text states that the agreement applies to areas beyond national jurisdiction, ie the high seas and the Area,Footnote 75 which seems to reflect the views of the overwhelming majority of delegations.Footnote 76 Echoing the relevant International Maritime Organisation (IMO) conventions,Footnote 77 draft Article 3(2) excludes from the scope of the agreement warships, naval auxiliaries and other State vessels. Such exclusion is subject to the caveat that ‘each State Party shall ensure, by the adoption of appropriate measures not impairing the operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this Agreement’. Such caveat is woolly and lacks teeth and, as such, draft Article 3(2) is particularly favourable for the major naval powers. In its current form, the provision risks undermining the implementation of ABMTs, such as MPAs in ABNJ, including when States conduct naval exercises therein or even in cases of armed conflict at sea.Footnote 78
B. Relationship with LOSC and Other Relevant Legal Instruments and Bodies
Draft Article 4, entitled ‘Relationship between this Agreement and the Convention and other existing relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’, concerns a matter of paramount importance for the new agreement. While the relationship of the new implementing agreement with the LOSC itself has not caused any tension,Footnote 79 the relationship with other relevant treaties and bodies, like Regional Fisheries Management Organizations (RFMOs),Footnote 80 has aroused great controversy. Draft Article 4(3) provides that ‘[t]his Agreement shall be interpreted and applied in a manner that [respects the competences of and] does not undermine [existing] relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’.Footnote 81
This ‘not-undermining’ clause, which has been dictated by the founding UNGA resolution,Footnote 82 might prove to be the Achilles heel of the new agreement, since the need to establish specific mechanisms and measures to facilitate the conservation and sustainable use of marine biodiversity in ABNJ, especially in relation to ABMTs and EIAs, is considered by some delegations to be in conflict with the ‘not undermining’ clause mandated by Resolution 72/249.Footnote 83 A tension between being comprehensive and not undermining existing instruments, frameworks and bodies has been evident during both PrepCom and IGC negotiations to date. It is also reflected in the textual proposals to the Revised Draft Text.Footnote 84 Practically, ‘not-undermining’ entails that all existing regional bodies and all relevant instruments that have any relevance to BBNJ would continue to manage the use of biodiversity in parallel with the new instrument. As such, the new instrument would, most likely, be deprived of any supremacy or of any significant coordinating role to the extent that existing bodes and/or instruments were involved.
At the heart of this clause in legal terms lies the principle pacta tertiis nec nocent nec prosunt. Such principle provides that treaties—and, by extension, obligations under them, like on the conservation of BBNJ—bind only their parties and not third party States or international organisations without their consent.Footnote 85 In the BBNJ context, this means that, in principle, neither the new agreement nor any future decisions taken by its apparatus, eg on the management measures of a high seas MPA, can bind third party States or other global or regional organisations such as the IMO or RFMOs respectively. That said, various mechanisms could be employed in order to address any ostensible norm-conflicts or fragmentation of standards. For example, the new agreement could include a conflict-clause,Footnote 86 or general principles, such as those of, inter alia, systemic integration and lex specialis might be applied.Footnote 87
In any case, the crux of the matter lies in how the new agreement will envisage itself: either as being an overarching arrangement or as merely complementary to the respective regional bodies’ mechanisms. Even though, in principle, the new agreement cannot trump other regional instruments and bodies, it may act as a gap-filler and, as the Fish Stocks Agreement did, make obligatory for its State parties to participate, when available and as appropriate, in the relevant regional or subregional bodies or adhere to their conservation measures.Footnote 88
Indeed, as Kristina Gjerde et al. observe
rather than seeking to exclude particular sectors or otherwise viewing the new instrument through a negative lens, the focus could be on how the new BBNJ can enable, facilitate, and even strengthen existing global, regional, and sectoral bodies and instruments in fulfilling their responsibilities under UNCLOS to protect and preserve the marine environment.Footnote 89
This view is reflected in the textual proposals submitted by the International Union for Conservation of Nature (IUCN) to the Revised Draft Text, which suggest that draft Article 4(3) should provide that: ‘This Agreement shall be interpreted and applied in a manner that promotes coherence and cooperation and does not undermine relevant legal instruments and frameworks and relevant global, regional subregional and sectoral bodies.’Footnote 90
C. The Need for Cooperation and Coordination
Inexorably linked with the ‘not-undermining’ clause is the question of how State parties and the future BBNJ institutions will interact with other instruments and bodies. Draft Article 6(1) introduces a general obligation that ‘States Parties shall cooperate under this Agreement for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including through strengthening and enhancing cooperation with and among relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and members thereof in the achievement of the objective of this Agreement.’ This duty of cooperation and coordination is reiterated in varying formulations with respect to ABMTs,Footnote 91 EIAs,Footnote 92 and CB & TT.Footnote 93
In turn, the issue of cooperation inevitably depends on how the new agreement will be governed and the extent of the decision-making powers, if any, that the future BBNJ institutions will enjoy. Broadly speaking, there have been three models of BBNJ governance that delegations have envisaged: the regional, the hybrid and the global.Footnote 94
On the one end of the spectrum, under an extreme ‘regional model’, the new agreement would be carried out exclusively by existing sectoral and/or regional or subregional institutions. For example, whenever AMBTs, such as the establishment of an MPA, would be required, only the relevant competent framework or body (eg the IMO or the relevant RFMO) would decide whether to establish an MPA and what measures to adopt therein. State parties to the new agreement would only make recommendations to the respective framework/body.Footnote 95 Unsurprisingly, this model is mostly advocated by States that prefer less global or institutional regulation on the high seas (freedom of the high seas).Footnote 96 However, if this were the final outcome of the negotiations, the current status of a fragmented and piecemeal approach to sustainable use of marine biodiversity and the concomitant governance gap would inevitably persist.Footnote 97
On the other end of the spectrum, under the ‘global model’, it is envisioned that the decision-making body would be empowered to take decisions that are both specific and binding upon its parties, including on establishing high seas MPAs and approving EIAs, regardless of the existence of relevant regional instruments and bodies. Under this scheme, promoted mainly by developing States,Footnote 98 the new decision-making body, the COP, would also be competent to establish a network of MPAs, recognising the existing MPAs under regional bodies, and thus making the applicable conservation measures in such existing MPAs, as well as any new measures mandated in the new network, binding upon all the parties to the new agreement.Footnote 99
The centre ground is occupied by the hybrid approach, which is the most likely to be finally adopted. The hybrid approach offers a model of institutional arrangements that would advance ocean governance more than the status quo regional approach, but would fall short of the centralised global-level decision-making powers envisioned under the global approach, at least for certain issues such as MPAs. Under this model, the COP would have a complementary role in filling the regulatory gaps wherever and whenever the regional instruments or bodies would either be lacking or unwilling to take the necessary measures to meet the objectives of the new agreement. Whilst this model is the one which has seemed to gain momentum prior to IGC-4,Footnote 100 there are still many issues to be settled, particularly concerning MPAs.
For example, with respect to international cooperation concerning ABMTs, draft Article 15 sets out that ‘States Parties shall promote coherence and complementarity in the establishment of area-based management tools, including marine protected areas, through: (i) Adopting … measures to complement measures designated under relevant legal instruments and frameworks and relevant global, regional, subregional or sectoral bodies’.Footnote 101 However, when there are no relevant measures in place, the current draft of the new agreement contains two alternatives, which mark the different approaches (global and regional respectively) in this regard: ‘[(ii) Establishing area-based management tools, including marine protected areas … where there is no relevant legal instrument or …. body.] [2. Alt. to para. 1. (b) (ii) Where there is no relevant legal instrument or …. body … States Parties shall cooperate to establish such an instrument, framework or body and shall participate in its work to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.]’.Footnote 102
The issue of the relationship with other relevant instruments and bodies remains one of the most controversial issues to be resolved in the remaining IGC Session(s) and will directly reflect and impact upon the global nature and effectiveness of the new agreement.
Regardless of whether the new agreement adopts the hybrid approach set out above or not, the question of the modalities for cooperation and coordination remains unresolved. The Draft Revised Text contains scattered references to cooperation/coordination,Footnote 103 but lacks a general provision specifying the relevant modalities. On the contrary, it delegates this task to the COP.Footnote 104 However, the objective of sustainable use and conservation of BBNJ would be best served by the final text providing for specific institutional mechanisms which would enhance the implementation of the duty to cooperate by, for example, allocating responsibilities and ensuring international supervision.Footnote 105 As Gjerde et al. rightly underscore,
one of the lessons of relevance to the BBNJ agreement negotiators is that at least some of UNFSA's [Fish Stocks Agreement's] shortcomings may be attributed to its lack of a global level institutional mechanism with sufficient supervisory powers to ‘prevent disparate practices in different subregions or regions’ from emerging … The new agreement can enhance implementation by providing a venue for ‘interregime learning and cooperation’.Footnote 106
In this vein, the EU wisely proposes in the latest version of textual suggestions (19 February 2020) a new draft Article 15(3) which would provide that:
Under this Agreement, the Conference of States Parties shall make arrangements for consultation establish a coordination and collaboration mechanism to enhance cooperation with and among relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies with regard to area-based management tools, including marine protected areas, as well as coordination among associated management measures on conservation and [management] [sustainable use] measures adopted under such instruments and frameworks and by such bodies.Footnote 107
Indeed, in the fisheries context, there is evidence of some, albeit fragmented, examples of RFMO coordination: for example, since 2007 the five tuna RFMOs have worked together through the ‘Kobe Process’ to ensure a harmonised approach to scientific research and the acquisition of data, the adoption of management, control and enforcement measures.Footnote 108 Of further note is the development of the Regional Fishery Body Secretariats’ Network, which acts as an information exchange for all active RFMOs and which has met biennially since 1999.Footnote 109 In addition, there have been synergies between RFMOs and Regional Seas Conventions,Footnote 110 such as the Memorandum of Understanding (MOU) between the North-East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission adopted in September 2008, establishing processes for sharing of information, joint discussions and adopting common approaches to the application of precautionary approaches and ABMTs.Footnote 111 Notwithstanding these initiatives, it is regrettable that there is no central mechanism on a global level to facilitate synergies and coordinated actions among the numerous regional frameworks and bodies, either inter- or intra-sectoral.Footnote 112 It has been contended, correctly in the author's view, that ‘ultimately only multi-sectoral, integrated, cooperative management can ensure the conservation and long-term sustainable use of marine biodiversity in ABNJ. This requires cooperation both intra and inter-sectorally as well as between the sectoral and the conservation agreements’.Footnote 113 The new agreement presents a golden opportunity to fill the gap and put in place a mechanism for global, overarching, coordination and cooperation of States’ conservation and management efforts.
D. Principles
Another significant issue concerning the new agreement is its ‘General Principles’, enumerated in draft Article 5 of the Revised Draft Text. Immediately noticeable is the explicit reference to the CHM principle, albeit bracketed, which had not been included in the previous draft discussed at IGC-3.Footnote 114 Unsurprisingly, this had prompted strong criticism. For example, Algeria, speaking on behalf of the African Group, lamented that ‘adopting a new BBNJ instrument without this principle would be like giving life to a treaty of this importance without a soul, or like putting a ship in the water without a navigational instrument’.Footnote 115 The inclusion of the CHM principle in the Revised Draft Text has been met with mixed feelings by the delegations, as evinced by their textual proposals submitted in February 2020.Footnote 116 It remains to be seen, however, whether the inclusion of this principle—if indeed it remains in the final text—would be accompanied by its logical consequences, such as mandatory sharing of MGR monetary benefits. Indeed, as the current Revised Draft Text stands, ie without such logical consequences, it is difficult to argue that the centre of gravity of the new agreement has shifted towards CHM and away from mare liberum.
Another notable addition, adopted with a clear mandate from IGC-3 (and therefore unbracketed), is the ecosystem approach.Footnote 117 As de Lucia observes, ‘this is in general good news, as the ecosystem approach, for all its complexities, remains arguably an important framing for the future BBNJ treaty’.Footnote 118 Indeed, it would be a lamentable omission not to have the ecosystem approach explicitly mentioned in the third UNCLOS Implementing Agreement, in circumstances where it was included in the second implementing agreement in 1995, ie the Fish Stocks Agreement.Footnote 119 The ecosystem approach may have a number of practical consequences including, inter alia, on ABMTs, including MPAs. In particular, the ecosystem approach may reinforce the principle of compatibility, ie the need for those conservation and management measures adopted within areas of national jurisdiction to be compatible with those adopted outside such areas. For example, under Article 7 of the 1995 Fish Stocks Agreement, the conservation and management measures established for the high seas and those adopted for areas under national jurisdiction should be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety.
In the present context, driven by considerations of oceanographic, as well as ecological, connectivity, the principle of compatibility has been interwoven with the ‘principle of adjacency’, ie determining the role of adjacent coastal States in the managing of ecosystems in ABNJ. A number of delegations, including the Pacific Small Island Developing States, argued that the ‘principle of adjacency’ was needed to address the interests of adjacent coastal States and that ‘activities in ABNJ should not impact activities within national jurisdiction’.Footnote 120 In particular, it is envisaged that adjacent coastal States will have a prominent role in designating MPAs as well as in conducting EIAs or collecting MGRs in ABNJ close to areas of national jurisdiction.Footnote 121
Notably, the LOSC does not include the concept of adjacency. That being said, the 1958 Geneva Convention on Fishing did refer to the ‘special interests’ of adjacent coastal States and the need for consultation between the adjacent States and other State parties for the maintenance of marine living resources;Footnote 122 unilateral conservation measures were only envisaged in exceptional circumstances.Footnote 123
The principle relied upon by the LOSC to balance the interests of coastal States and high seas users is that of ‘due regard’. Such principle could address the concerns that coastal States have in relation to the issues under discussion vis-à-vis the new agreement. As Oude Elferink rightly notes, ‘under the LOSC the concept of “due regard” provides the general benchmark for addressing the relationship between coastal States and States carrying out activities in ABNJ. It is submitted that this also requires including this concept in the ILBI as the benchmark for dealing with the relationship between coastal States and other States.’Footnote 124
Echoing this call for consistency with the terminology of LOSC, the zero-draftFootnote 125 as well as the Revised Draft Text both used the principle of ‘due regard’ to reflect the need to take into account the interests of adjacent coastal States and address their respective concerns. Hence, for example, under Draft Article 15(4) (ABMTs), ‘[m]easures adopted in accordance with this Part shall not undermine the effectiveness of measures adopted by coastal States in adjacent areas within national jurisdiction and shall have due regard for the rights, duties and legitimate interests of all States, as reflected in relevant provisions of the Convention. Consultations shall be undertaken to this end, in accordance with the provisions of this Part.’Footnote 126
The need to have ‘due regard’ to adjacent coastal States was reiterated on many occasions during IGC-3, both in relation to issues such as ABMTs and more generally.Footnote 127 Inevitably, the need to have ‘due regard’ will be further discussed in the next session(s) in order for the final provisions to be streamlined and made consistent with the conceptual framework of LOSC.Footnote 128 However, what this ‘due regard’ duty would mean in practice is a different question entirely. In light of the relevant case law,Footnote 129 it would most likely denote a duty of consultation for States Parties, considering the interests of both the international community as a whole and the adjacent coastal States concerned.
E. Implementation
Strikingly, to date very limited attention has been given to the question of the implementation of the new agreement. It is telling that under the Revised Draft Text, there is only one Article devoted to ‘implementation [and compliance]’, setting out that ‘States Parties shall take the necessary legislative, administrative or policy measures, as appropriate, to ensure the implementation of this Agreement.’Footnote 130 Draft Article 53(2) provides, albeit in language not yet agreed, that ‘[[e]ach State Party shall monitor the implementation of its obligations under this Agreement and shall, at intervals and in a format to be determined by the Conference of the Parties, report to the Conference on measures that it has taken to implement this Agreement]’,Footnote 131 while draft Article 53(3) states, again in language not agreed, that: ‘[[t]he Conference of the Parties shall consider and adopt cooperative procedures and institutional mechanisms to promote compliance with the provisions of this Agreement and to address cases of non-compliance]’.Footnote 132 If draft Articles (2)–(3) are not ultimately included in the agreed text, the sole reference to a general obligation of States Parties to ensure the implementation of the agreement, bereft of any further compliance and enforcement mechanisms, will, regrettably, be entirely insufficient.
Similarly, the provision on the implementation of ABMTs seems equally weak. Draft Article 20(1) provides that ‘States Parties shall ensure that activities under their jurisdiction or control … are conducted consistently with the decisions adopted under this Part’,Footnote 133 and that ‘[n]othing in this Agreement shall prevent a State Party from adopting more stringent measures with respect to its vessels or with regard to activities under its jurisdiction or control’.Footnote 134 However, the rest of draft Article 20, in particular, the reference to the obligation of the States Parties to ‘[ensure compliance by vessels flying their flags and enforcement of the measures adopted in conformity with this Part [by their nationals]]’Footnote 135 is not yet agreed and remains bracketed. It also telling that amongst the States making textual proposals and comments on the Revised Draft Text, only Pakistan highlighted the need to establish a common system of monitoring, compliance and enforcement of ABMTs.Footnote 136
It follows from the foregoing that the implementation of the new agreement, specifically the implementation of ABMTs, such as MPAs on the high seas, will depend exclusively upon whether flag States exercising their freedoms of the high seas (for example, navigation, fishing, laying submarine cables and pipelines etc.)Footnote 137 in the relevant MPAs, are parties to the new agreement or to the relevant regional instrument or body (provided the adoption of the new MPAs remains within the remit of such instruments or bodies). Indeed, due to the principle of exclusive flag State jurisdiction on the high seas,Footnote 138 the implementation of the MPAs, but also of the new agreement more broadly, rests exclusively with the flag State parties to the new agreement.
However, due to the absence of any other mechanism for ensuring compliance and enforcement in the new agreement, it is uncertain how its effective implementation would be secured. A number of mechanisms might be considered. First, provisions, similar to Article 21 of the Fish Stocks Agreement, which provides for the inspection of vessels flying the flag of a State party by another State party on the high seas, regardless of whether the inspected vessel's flag State is member of the relevant RFMO.Footnote 139 Second, enhancement of port-State controlFootnote 140 or control of nationals,Footnote 141 which are both mechanisms prevalent with respect to fisheries. Third, compliance committees, similar to those established by the Meeting of the Parties of the Aarhus and Espoo Conventions.Footnote 142 Fourth, other surveillance and monitoring measures, for example the use of modern technologies, such Vessel Monitoring Systems, satellite tracking, drones etc.Footnote 143 Although not an exhaustive list, such examples give a flavour of the enforcement and compliance mechanisms which could be adopted.
Such enforcement and compliance measures might subsequently be adopted by the COP pursuant to the draft Article 53(3), a prospect which received a lukewarm reception from States such China and the USA at IGC-3.Footnote 144 The adoption of such measures would nonetheless be instrumental to the effective implementation of the new agreement and consequently to the conservation of marine biodiversity in ABNJ.
V. CONCLUDING THOUGHTS
The current state of negotiations does not offer real degree of certainty as to how effective the new agreement will be. It is now almost certain that, at the end of the negotiating road, whether that be at the closure of ICG-4, IGC-5 or even IGC-6, a new Implementing Agreement of UNCLOS on BBNJ will be reached. However, it is better to be realistic about what a BBNJ treaty can, and what it cannot, accomplish within the framework of the agreed upon packages. Despite increasing public concern and scholarly attention to the protection of marine biodiversity, it remains uncertain whether States will come up with a treaty that effectively and comprehensively protects BBNJ. National interests (including those of adjacent coastal States), the ‘non-undermining’ clause, the reluctance of developed States to share economic benefits on an equal footing, (in particular benefits arising from MGRs) and of the disinclination of regional bodies to compromise their powers, paint a bleak picture and pessimistically suggest that the glass is half-empty. The old, yet ever-present, battle between mare liberum and CHM still haunts any treaty effort pertaining to governance of the oceans.
Moreover, to date there has been a notable lack of any discussion on a robust and effective institutional coordination of the competent international and regional bodies, or on an equally robust and effective implementation mechanism for the new agreement.
In sum, there is serious risk that the final document, when adopted, will be a significantly watered-down agreement. It might not be a ‘paper treaty’ (by analogy to ‘paper MPAs’, ie MPAs that are ineffective), but it will likely fail to fulfil the initial aspirations of the international community as to the conservation and sustainable use of biodiversity beyond national jurisdiction.
