By Raas Nabeel, Research Associate at the Research Society of International Law (RSIL), Pakistan. He holds an LL.M in International Law from the University of Cambridge, and a BA-LL.B (Hons). from the Lahore University of Management Sciences (LUMS). Along with environmental law, Mr. Nabeel conducts research on conflict law, global governance, human rights and public international law.

The new Draft Convention on the protection of marine biodiversity in areas beyond national jurisdiction (‘BBNJ Draft Convention’) is a landmark achievement by the global community. It provides a legal framework to marine life beyond the territorial limits of any State, creating responsibilities on all States to protect the high seas as well as its inhabitant biodiversity. It is worth analysing the provisions of this Draft Convention and what significance this may have for the Global South.

Theoretical Underpinning

The new BBNJ Draft Convention explicitly invokes the ‘principle of the common heritage of mankind’ under Article 5(b). Before this, the United Nations Convention on the Law of the Sea, 1982 (‘UNCLOS’) propagated for the ‘freedom of the high seas’, which prevented States from claiming territorial sovereignty over the high seas. However, they could claim sovereign rights over any discoveries made in the high seas, without any obligations to share the benefits of any research and exploration activities.[1] Under the BBNJ Draft Convention, the high seas are governed by a new regime which would facilitate international cooperation on the following four areas:

  1. Capacity building and technology transfer;
  2. Area-based management techniques;
  3. Environmental impact assessments; and
  4. Fair and equitable benefit-sharing of marine genetic resources.

Capacity building and technology transfer

Article 43 of the Draft Convention obliges States to cooperate to ensure capacity-building and the ‘development and transfer of marine science and marine technology.’[2] Each Party is responsible for what they can afford to provide for capacity building and technology transfer ‘within their capabilities’, thereby creating this obligation primarily for developed States.[3] This may include the sharing of knowledge and research, infrastructure, management resource capabilities and the development of ‘technical, scientific and research and development technology’, among others.[4] While the modalities are to be established by the COP, a financial mechanism is established under Part VII of this Convention as the dedicated mechanism for capacity building and technology transfer.

The Global North and Global South disagreed on whether this should be monetary or non-monetary, and whether this should be obligatory on Global North States or whether they should be voluntary contributions. At the end of negotiations, it was determined that it is incumbent upon more capable States to provide financial and technical assistance to developing States ‘to reduce the scientific and technological gap between developed and developing states.’[5] Thus, contributions to the capacity building and technology transfer financial mechanism include infrastructure, technical expertise and data. This ensures actual, significant investment in marine technology resources in the Global South, rather than Global North States simply providing financial support which may not be directly invested in marine technology.

Notably, the use of the word ‘shall’ throughout Part V of the Draft Convention indicates that capacity building and technology transfer is a mandatory obligation on developed States to assist developing States Parties. The status of these obligations will be monitored and reviewed periodically by a dedicated capacity-building and transfer of marine technology committee in the COP.[6] Thus, the Draft Convention balances the capabilities of developed States with the need for international cooperation in assisting developing States to implement the provisions of this Convention.

Environmental impact assessments

The Draft Convention obliges Parties to assess the potential impacts of their activities on the marine environment in the high seas before they are authorised.[7] The guidelines for conducting environmental impact assessments will be determined by the COP, while the Convention provides basic procedural guidelines for conducting them in Article 30. First, a State Party wishing to undertake activities in the high seas must undertake a screening of the activity if it is foreseen to have more than ‘minor or transitory’ effects on the marine environment.[8] Then, if it is foreseen to cause ‘substantial pollution of or significant and harmful changes to the marine environment’[9], an environmental impact assessment must be conducted according to the process in Article 30.

During negotiations, there were disagreements on who would be responsible for choosing whether to conduct an environmental impact assessments or not, and the requirements for such processes. The current Convention establishes a Scientific and Technical body which will ‘consider and evaluate’[10] the environmental impact assessments reports, ensuring they conform to the standards determined by the Convention as well as further modalities adopted by the COP. The Body must evaluate the reports in line with traditional knowledge as well, highlighting the importance of the contribution of Indigenous Peoples that this Convention emphasizes to amplify the participation of the Global South.

The regulation and oversight of environmental impact assessments is an important step to protect the interests of the Global South, particularly where proposed activities are taking place in waters adjacent to the territorial waters of Global South countries. Furthermore, the Convention mandates the sharing of environmental impact assessments reports through the clearing-house mechanism. This will allow for greater transparency and accountability as the reports conducted by States will be available for other States Parties to criticise and comment on and will allow other States to access guidance on how to conduct environmental impact assessments for their own proposed activities.

Fair and equitable benefit sharing

Part II of the Convention pertains to the governance of marine genetic resources, including the fair and equitable sharing of benefits. Article 9 guarantees that all Parties can participate in activities with respect to marine genetic resources in areas beyond national jurisdiction, with due regards to the ‘rights and legitimate interests of coastal states’. The Convention places heavy emphasis on international cooperation between States wishing to carry out exploration activities in areas beyond national jurisdiction. Such activities must be notified to the clearing-house mechanism.

The basic principle of ‘fair and equitable’ benefits-sharing aims to reduce the gap between developed States, who have access to the technology to digitally sequence marine genetic resources and capitalise on this information, and developing States who are unable to do so. Thus, obligations upon States carrying out activities include access to samples and digital sequence information, transfer of marine technology, capacity building through financial investment and partnership schemes, and technical and scientific cooperation.[11] A financial benefit-sharing mechanism is also established under Article 52 of the Convention, with the modalities of this mechanism to be defined by the COP.

Historically, the Global North has been more technologically capable of profiting off of the discoveries made in the high seas, especially if certain discoveries were found to be crucial for modern science. Subsequent ownership of digital sequencing data and intellectual property rights would disproportionately disadvantage Global South countries in the absence of a cooperative mechanism. Thus, the current obligations for international cooperation prevents this widening of the development gap, and allows Global South States access to digital information, intellectual property rights and other benefits from discoveries in the high seas that can be used for the benefit of the global community, in line with the ‘common heritage of mankind’ approach associated with the high seas.

Area-based management tools

Area-based management tools are designated zones of conservation of the marine environment and biodiversity, including marine protected areas. These will be approved by the Conference of Parties (COP) under Article 19 on the basis of proposals.[12] The COP will determine the rules governing marine protected areas, as well as monitor and review the implementation of these rules. Proposals must be formulated by consultation with relevant stakeholders, including indigenous peoples and local communities.[13]

The disagreement about area-based management tools pertained to whether existing institutional bodies, such as regional fisheries management organisations, would be responsible for demarcating them. This complete delegation to existing bodies was challenged by Global South members, claiming that there would be no accountability for these area-based management tools. Thus, the Global South urged for a new global-level institutional mechanism with sufficient supervisory powers to prevent ‘disparate practices’ in different regions from emerging, as was exhibited by the decentralised supervisory system in the UN Fish Stocks Agreement.[14] 

Furthermore, the assignment of responsibilities for the oversight and monitoring of area-based management tools prevents States from merely ‘designating’ marine protected areas without accountability for their enforcement. The obligation to establish area-based management tools requires States to oversee conservation and ecological protection of the marine biodiversity present in relevant designated areas. Such progress would also then be reported back to the BBNJ Draft Convention’s oversight mechanism to ensure that States Parties are fulfilling their obligations under the Draft Convention.

Altogether, the concentration of powers in a single authority, namely the approval of the demarcation of marine protected areas, as well as maintaining oversight of its enforcement, indicates the success of the Global South’s position at the negotiations.

Conclusion

Ultimately, the BBNJ Draft Convention indicates a successful attempt by the Global South to protect its interests against the Global North’s potential exploitative power in the high seas, which the latter has exercised over the past few decades. The prioritisation of the ‘common heritage of mankind’ over the ‘freedom of the high seas’ is visible across the four main contentious areas of the Draft Convention, highlighting the success of the Global South’s position in prioritising environmental protection, equitable benefit sharing, and international cooperation in the high seas.

[1] UNCLOS, art 87(f)

[2] United Nations General Assembly, ‘Draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (New York, 3 March 2023) Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, resumed fifth session, (“BBNJ Draft Convention”) art 43

[3] Ibid, art 44

[4] Ibid, art 46

[5] E de Santo et al, ‘Stuck in the middle with you (and not much time left): the third intergovernmental conference on biodiversity beyond national jurisdiction’ (2020) 170 Marine Policy 1, 7

[6] BBNJ Draft Convention, art 47bis

[7] Ibid, art 22

[8] Ibid, art 24

[9] Ibid, art 24(b)

[10] Ibid, art 35

[11] BBNJ Draft Convention, art 11

[12] Ibid, art 19

[13] Ibid

[14] KM Gjerde et al., ‘Building a Platform for the Future: the Relationship of the Expected New Agreement for Marine Biodiversity in Areas beyond National Jurisdiction and the UN Convention on the Law of the Sea’, (2019) 33 Ocean Yearbook 3, 35