By Bastiaan Ewoud Klerk, PhD Research Fellow at the Arctic University of Norway (UiT)
The finalization of the text of the Agreement for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (BBNJ Agreement) was met with optimism by governments, international organizations, the media, and environmental NGOs. It has been linked to the ‘30 by 30’ pledge to protect 30 per cent of the planet’s lands and inland waters, as well as of marine and coastal areas by 2030 under the recently adopted 2022-2030 Kunming-Montreal Global Biodiversity Framework (GBF). It should equip States with the legal tools necessary to designate marine protected areas in areas beyond national jurisdiction, an area also known as the high seas that covers nearly half the surface of the Earth and two-thirds of the Ocean. This area provides habitat and migratory routes for whales, sharks, sea turtles, and seabirds; plays a key role in regulating the Earth’s climate and storing carbon dioxide (CO2); and harbours rich ecosystems, such as deep-water corals and hydrothermal vents. Yet, marine protected areas presently comprise only 1.5 per cent of this vast area of ocean space. Thus, although the ‘30 by 30’ goal was not a rationale for the negotiation of the BBNJ Agreement, a process that predates even the GBF’s predecessor, the instruments could work synergistically towards expanding the global network of marine protected areas in the open ocean. The question is whether and to what extent the BBNJ Agreement will actually facilitate the designation of marine protected areas on the high seas. Are the ‘high seas freedoms’, which long underpinned the legal regime governing areas beyond national jurisdiction now truly a relic of the past? To answer this question, the BBNJ Agreement, and in particular part III on ‘measures such as area-based management tools, including marine protected areas’ warrants closer analysis.
PART III OF THE BBNJ AGREEMENT
At the outset, and without delving into the intricacies of the terminological nuances of the BBNJ Agreement, it is useful to briefly clarify the term ‘area-based management tool’, which essentially denotes the management of human activities in an area of ocean space with a view to achieve certain sustainable use and conservation objectives. Marine protected areas, then, are a type of area-based management tool where activities are often managed more holistically, with a stronger emphasis on conservation.
Part III of the BBNJ Agreement has among its main objectives to “conserve and sustainably use areas requiring protection, including through the establishment of a comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas” (art. 14(a) advanced, unedited draft). To this end, articles 17-19bis outline a detailed process for the identification of sites, submitting proposals, consultation and assessment of proposals and decision-making by the Conference of the Parties (COP). Various positive elements therein merit mention, including the incorporation of modern environmental principles such as the precautionary and ecosystem approach (art. 17(3)); safeguarding transparency by making proposals publicly available (art. 17(bis)); the facilitation of participation of broad range of stakeholders, including civil society and indigenous peoples and local communities (art. 18(1)); and the incorporation of scientific inputs throughout, with a prominent role accorded to the ‘Scientific and Technical Body’ (e.g. art. 17bis).
However, there is an implicit contradiction in the treaty text, which, in order to be fully understood, requires brief consideration of the institutional nuances that underpin the Agreement as a whole. Throughout the negotiating process, among the most controversial issues were those relating to the institutional structure that the BBNJ Agreement would embody, and how its institutions would be embedded within the wider institutional constellation governing areas beyond national jurisdiction. These discussion were long held in the form of ‘global approach vs. regional approach’, semantic containers denoting, on the one hand, a model wherein COP is granted extensive powers to oversee the implementation of the BBNJ Agreement, thus creating a hierarchical relationship with existing instruments, frameworks and bodies (henceforth: IFBs), and on the other hand, an institutional approach that places the burden of carrying forward the work of the Agreement on existing IFBs (Dalaker, 2018).
We can now try to answer the question which approach prevailed in the end. At first glance, part III appears to embody a global approach, given the COPs competence to directly establish area-based management tools, including marine protected areas, as well as ‘compatible’ conservation measures (art. 19(1)(b)). In reality, however, the institutional model that was opted for is heavily decentralized; a mere ‘global’ system in disguise. This is due to the fact that the main activities taking place in areas beyond national jurisdiction, i.e., fisheries, shipping and seabed mining (the latter not yet taking place on a commercial scale) remain outside of the normative ambit of the process for designating area-based management tools as outlined in Part III. This is a result of the sectoral nature of the UN Convention on the Law of the Sea (UNCLOS), through which sub-regimes are created for each of these activities, each equipped with their own institutional machinery: the International Maritime Organization for shipping; the International Seabed Authority for seabed mining; and regional fisheries management organizations. In areas beyond national jurisdiction, these institutions and regimes are, in a sense, autonomous, as they are not subject to the jurisdiction of States. The BBNJ Agreement largely upholds this regime, as it reinforces the high seas freedoms (art. 5(b)) and protects the mandates of these organizations, which are not to be undermined (art. 4(2)). In this context, it is important to highlight that the BBNJ COP, although endowed with various coordinating tasks, is not hierarchically superior to these organizations. Therefore, for an area-based management tool to address shipping, fishing or seabed mining, the COP is dependent on the willingness of the aforementioned organizations to cooperate.
The contradiction lies in the fact that, although the Agreement sets out a detailed process for designating area-based management tools, upon closer analysis it becomes evident that this process is, in a way, hollow, as the main activities taking place on the high seas are beyond the scope of these area-based management tools. It is, of course, very well possible that the organizations responsible for these activities will transpire to be very cooperative and engage actively in the consultations processes convened through the BBNJ Agreement (art. 18). States are, after all, required to ‘endeavour to promote, as appropriate’ the objectives of the Agreement through IFBs (art. 6(2)). However, this obligation is qualified and lacks specificity, and thus the effectiveness of the process for designating area-based management tools ultimately hinges upon the willingness of these organizations to cooperate, which is potentially problematic.
An illustrative analogy in this regard is the North-East Atlantic region, where, through the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), a network of marine protected areas was established in areas beyond national jurisdiction. Due to the jurisdictional framework of UNCLOS discussed above, these protected areas do not regulate shipping, fishing and mining, and OSPAR is thus required to pursue cooperation with the International Maritime Organization (IMO), the International Seabed Authority (ISA) and the relevant fisheries organization, the North-Atlantic Fisheries Commission (NEAFC). OSPAR sought to do so through the ‘Collective Arrangement’, a multilateral platform that enables OSPAR to collaborate with all relevant entities responsible for managing human activities in the North-East Atlantic. However, NEAFC is currently the only organization formally participating in the Collective Arrangement. Despite the improved coordination between NEAFC’s area closures and OSPAR’s marine protected areas in areas beyond national jurisdiction, significant limitations remain as these protected areas do not regulate shipping and mining activities. Despite repeated invitations from both NEAFC and OSPAR, the IMO and ISA have yet to attend or participate in the Collective Arrangement (Klerk, 2022).
A second issue that arises in this context is the siloed operation of the aforementioned sectoral organizations as a consequence of UNCLOS’ sectoral approach. As a result, the institutional scheme in areas beyond national jurisdiction is highly fragmented, an issue that is widely recognized and needs to be addressed by the BBNJ Agreement in some way. It seeks to do so by requiring Parties to apply and construe its provisions in a manner that promotes coherence and coordination with IFBs (art. 4(2)) and by requiring them to cooperate for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, including through IFBs (art. 6). In relation to area-based management tools and marine protected areas, specifically, the Agreement seeks to foster coordination and coherence by allowing IFBs to submit their views on proposals and by providing for the establishment of a consultation mechanism through which cooperation and coordination can be promoted (art. 19(3)). Paradoxically, whereas these provisions thus seek to combat fragmentation and promote coherence, other provisions pull in the opposite direction by reinforcing the mandates of sectoral organizations. For instance, in taking decisions on the establishment of area-based management tools, the COP ‘shall respect the competences of and, not undermine [IFBs]’ (art. 19(2)). The phrase ‘not to undermine’ is a recurring notion in Part III, and is emblematic of its ambivalent institutional structure, which, on the one hand, strives for coherence, but at the same time reinstates the freedoms of the high seas and protects the mandates of existing IFBs.
The finalization of the BBNJ text marks the culmination of a nearly two-decade long process, and is a significant triumph in international diplomacy, especially given the turbulent international context in which it was negotiated. The text elicited a response of hope and optimism, which is not entirely unjustified. Much work remains to be done, however, as many of its elements remain to be further elaborated by the COP. This contribution sought to point out some of the contradictions present in Part III of the Agreement, but it should be kept in mind that the exact relationship between IFBs and the BBNJ’s institutions remains fraught with ambiguity, and will take further shape as the process unfolds further over the coming years.