Considering the concept of the ecological civilization for conservation and sustainable use of marine biodiversity under the umbrella of the Biodiversity Beyond National Jurisdiction instrument

Introduction

The past decade has seen increasing focus being placed on the conservation of marine resources, consistent with increasing emphasis on the protection of the global environment in general. This is reflected an extent in changes to the global marine environmental governance system, as manifested by the adoption of the Aichi Targets (6, 10, and 11) ¹ under the Convention on Biological Diversity (CBD) ² and Goal 14 of the UN Sustainable Development Goals (UNSDGs). ³ However, the targets and goals have had variable success. As the increasing levels of human activity in the maritime areas, including such as shipping, fishing and tourism are affecting the conservation and sustainable use of marine biodiversity, new policies and changes to marine environmental governance system are required to address the conservation and sustainable use of marine biodiversity more effectively. While various international legal instruments addressing marine environmental governance exist, the most important of which is the United Nations Convention on Law of the Sea (UNCLOS) ⁴ , known as “the constitution for the oceans,” ⁵ the effects of rapid climate change and the increasing pressure of human activities in the maritime zones call for stronger approaches to be applied specifically for the conservation and sustainable use of marine biodiversity. In response to such needs, the International Governmental Conferences on Biodiversity Beyond National Jurisdiction (BBNJ) was initiated in 2018. ⁶ The prospective BBNJ treaty aims to include four key elements: marine genetic resources (MGRs), including the sharing of benefits; area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessment (EIA); and capacity building and the transfer of marine technology. ⁷ At this juncture, there seems to be a significant opportunity to influence the law and policy mechanisms for the protection of the marine environment and the conservation of marine biological diversity. Although some principles and approaches have already been considered for the adoption under the proposed treaty, at present, only the “ecosystem approach” has gained wide support from the parties to the negotiations, while others, such as the principle of non-regression, the polluter pays principle, the principle of the common heritage of mankind, principle of equity, precautionary principle/approach, integrated approach, is still under consideration. ⁸

As the principles and approaches are still being considered, this article suggests that the Chinese concept of ecological civilization (EC) has the potential to influence the formulation of the principles and approaches as well as for achieving the targets and goals set for conservation and sustainable use of marine biodiversity. The concept of EC aims to safeguard the environmental rights and interests of people collectively with the vision for building a shared future for humankind, as espoused by President Xi Jinping of China. ⁹ Having the potential to serve the agenda of conservation and sustainable use of biodiversity, the concept of EC has already been set as the overarching theme for the forthcoming 15th Conference of Parties (COP 15) of the CBD being titled “Ecological Civilization: Building a shared future for all life on Earth.” ¹⁰

At its broadest, the concept of EC can be seen as a vehicle for harmonizing human activities and the natural environment, making this planet an eco-friendlier place. More specifically, as human activities continue to increase climate change and its effects, environmental pollution and biodiversity loss, it is essential to adopt policies that would govern the human activities to be done within an ecological framework; the concept of EC might serve to fill the gap to adopt such policies. However, for the concept of EC to be made applicable within the marine environmental governance system, and to contribute to the formulation of the BBNJ treaty, it needs to be adequately defined. In exploring how the concept of EC can achieve adequate marine environmental governance for the conservation and sustainable use of marine biodiversity, the article first highlights the existing issues concerning marine environmental governance. It then suggests how the concept of EC can guide as a norm to formulate the principles and approaches as well as to set goals and targets under the BBNJ treaty.

Problems and threats to the marine environmental governance and biodiversity:

As is well known, the past few decades have brought increasing global focus to environmental protection and conservation of its resources for sustainable development. A key focus has been on ocean governance due to ongoing and prospective challenges arising out of activities such as shipping, tourism, illegal, unreported and unregulated fishing, ocean acidification, exploitation of deep seabed resources, black carbon emission, land-based activities causing transboundary pollution and so on. An increasing level of human activities within different maritime zones is causing problems regarding global marine environmental governance in the form of damage to coastal wetlands, mangroves, coral reefs, seagrass beds, tidal marshes and tidal flats, marine biodiversity loss, climate change and overall marine environmental pollution.

Meanwhile, climate change and global warming are also contributing as multiplying factors to the other environmental challenges. ¹¹ Covering >70% of the earth's surface, the world's marine areas must be governed adequately, but the existing governance system lacks the capacity to deal with the challenges. While in earlier times, countries were more focused on economic development, their approaches lacked hardcore concern regarding global environmental protection and ocean conservation. Despite the existing international law and regulations concerning the protection of the marine environment and its resources, States are falling apart to do so inter alia due to lack of cooperation, implementation of existing laws, tools or measures to monitor marine activities, proper governance, and management of MPAs. ¹² Meanwhile, targets and goals set out under the CBD and UNSDGs have reached the deadline to meet those by the year 2020 and are also in the process of adopting the next target to be achieved by 2030 and 2050 consecutively. According to the UN Report, Global Biodiversity Outlook 5, none of the Aichi targets has been achieved, however, some of the targets such as Target 11 has been achieved partially. ¹³ Reports also suggest that without taking effective measures for the conservation of biodiversity and sustainable use of its components, the 2030 SDGs cannot be achieved ¹⁴ and suggestions have been put forwarded to protect at least 30% of marine areas. ¹⁵ Thus, assessment of the earlier certain goals and targets shows that the approaches should be more effective. The issues regarding global ocean governance are now becoming more crucial when countries are striving for a “Blue Economy.” ¹⁶ Global ocean governance is also becoming more complex due to sea-level rise, which is creating new shipping routes such as those through the Arctic. ¹⁷ Further, China's “Belt and Road Initiative (BRI)” project which is often described as a 21st-century silk road, made up of a “belt” of overland corridors and a maritime “road” of shipping lanes having the prospect of being implemented in the near future is the world's largest infrastructure development project. ¹⁸ The project includes the development and construction of a vast network of railroads and shipping lanes aiming to link Europe and East Africa with Asia. The prospect of more commercial activities under the BRI project within the maritime areas also raises concern to the global marine environmental governance for the protection of marine biodiversity as the project is a real threat to the marine environment and its resources. On that note, the consideration of a concept propelling the goals and targets for the conservation and sustainable use of marine biodiversity within the existing as well as prospective regulatory instruments becomes a sine qua non. Hence, the question arises whether the concept of EC can assist the existing goals and targets along with the prospective BBNJ agreement to ensure the protection of the marine environment and its resources, especially those found in areas beyond national jurisdiction.

Existing international regimes to protect the marine environment and biodiversity

At present, the global ocean governance framework related to the governance and protection of the marine environment and biodiversity mainly comprises the provisions of UNCLOS. Two implementing agreements, on deep seabed mining ¹⁹ and straddling and highly migratory fish stocks ²⁰ come under UNCLOS. The third instrument, on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ), is currently under negotiation. Under UNCLOS, Part XII deals with “Protection and Preservation of the Marine Environment” and requires states to take all measures necessary to prevent, reduce, and control pollution of the marine environment from any source. These measures aim to minimize to the fullest possible extent, the release of toxic, harmful or noxious substances. Further, Part XII includes detailed provisions on land-based sources of pollution, pollution from vessels, seabed activities, dumping, and pollution from or through the atmosphere. Besides, the United Nations Environment Assembly (UNEA) has adopted several resolutions that relate to marine pollution. ²¹ The International Maritime Organization (IMO) regulations and the International Convention for the Prevention of Pollution from Ships also provide stipulations for marine pollution from the shipping industry. ²² However, these lack any single provision directly dedicated to the conservation and sustainable use of marine biodiversity.

In addition to the above, the CBD is a comprehensive agreement covering the use and conservation of biodiversity. However, the 1992 document lacked specific articles on marine and coastal biodiversity. Nevertheless, the importance of marine and coastal biodiversity was recognized and included during the second conference of the parties of the CBD. At the fourth conference of the parties of CBD, the 12 Malawi principles ²³ for the ecosystem approach to the management of land, water and living resources were presented. The term is generally used synonymously with ecosystem management, but a distinction remains. Ecosystem-based management is defined as an “integrated approach that incorporates the entire ecosystem, including humans, into resource management decisions, and is guided by an adaptive management approach.” ²⁴ The approach is generally described as “a strategy for integrated land, water and living resources management” ²⁵ and depends on four interrelated elements: integration, integrity, information, and iteration. ²⁶ Since the mid-1990s, the ecosystem approach has been embraced as a prime paradigm for action under the CBD in a number of areas and contexts, including ocean governance. ²⁷ Furthermore, Goal 14 of the UNSDGs, ²⁸ offers a valuable beginning; however, the legislative basis for comprehensive strategies for marine sustainable use is not provided by the existing regulations on the maritime environment or even by a consolidated set of agreements concerning the use of the ocean in one way or another. ²⁹ Therefore, while the negotiations and considerations are taking place in respect of the adoption of future treaties, goals, and targets, it is time to consider the concepts or guiding principles that would be influential as well as effective such as the concept of EC which has been considered as guiding principle to shift the development planning, industrial structure, production mode and lifestyle of people by the Chinese government for establishing harmony between people and nature. ³⁰

The concept of EC and its application to protect the marine environment and biodiversity

Generally, the phrase “ecological civilization” denotes the promotion of harmony between nature and humans. ³¹ However, this definition is too broad and difficult to analyze in terms of interpretation and enforcement of law and policy. Thus, it is important to have a clear understanding of the concept of EC for any definite policymaking. Being committed to a sustainable development path and due to such commitment, the concept of EC was incorporated under the Constitution of the People's Republic of China in 2018. ³² To achieve the target of sustainable development, the concept of EC seeks to complement three core dimensions of the concept of sustainable development which are the environmental, the economic, and the social dimensions with Chinese characteristics. ³³ There are two additional major elements to the core dimension of sustainable development which are politics and culture as explained in official Party and the People's Republic of China State Council guidance, making the approach under the concept of EC a more complex one than the usual triangle under sustainable development. ³⁴ The notion of sustainable development tacitly deviates economy from the nature that needs to be managed to avoid too much damage to the environment so that nature can continue to be exploited. ³⁵ This perception of nature as something separate from human beings is taken as the fundamental problem underlying environmental destruction under the concept of EC ³⁶ , as the concept sees the evolution of harmonious coexistence between humans and nature. ³⁷ Furthermore, the inclusion of science and technology components within the EC has made it different from its traditional philosophical endeavor to a socio-technical imaginary with pollical backing. ³⁸ According to Dr Arthur J Hanson, EC is a more comprehensive expression of sustainable development and differs from sustainable development in emphasizing political and cultural factors, as well as on defining new relationships between people and nature that would permit living well, and within the eco-environmental bounds of planet Earth. ³⁹ Moreover, as stated by Dr Berthold Kuhn, the concept of EC considers nature as a part of life rather than something which can be exploited without restraint and serves as a reference framework to develop visions of modern ecological socialism. ⁴⁰ EC underlines the functionality of commodifying projects which are environmentally friendly, further, emphasizes the symbiosis of sustainable development and environmental conservation as a counterpoint to liberal environmentalism ⁴¹ that has been seen as the norm for global environmental governance, extending the political scope for the incorporation of environmental protection under the global policy. In the longer term, the norm has also contributed to the fragmentation of institutions and authority, and the subordination of environmental goals to economic principles. ⁴² Having established international environmental protection on the promotion and maintenance of a liberal economic order, a liberal approach could be characterized by market-based mechanisms, e.g. emissions-trading and sustainable finance; and a series of incentives and programs implemented by government and non-government actors at different levels, rather than extensive law-making and regulations coupled with centralized control. ⁴³ The liberty to keep capitalism intact under liberalism could be considered as the cause behind the current environmental destruction as the existing environmental policies were mostly framed based on the norms of liberal environmentalism.

The EC approach emphasizes the prevention of any occurrence of ecological impairment, effective control after such an occurrence, compensation for damages, accountability of liable parties, ascertainment of ownership, use of control over natural resources, the redline of ecological preservation, subsidies and rewards for conserving ecology, and eco-environmental management. ⁴⁴ An example of a major policy shift towards EC can be seen within the Yangtze River Economic Belt through the effort to impose extensive redlining restrictions in sensitive Yangtze River areas, and to stop further construction of large dams. ⁴⁵ Therefore, the application of EC would require certain reforms in the national legislations and governance structures concerning the environment and its resources as well as the examination of the aspects of international environmental law to ensure the holistic integration of measures and competent legal frameworks. ⁴⁶ In respect to this, the interpretation of the concept requires employing a uniform approach for having a broadly accepted definition. Besides this difficulty as a tough implication, the initiative of China to build an EC has been questioned whether the EC is leading China toward an exit from “liberal environmentalism” to “authoritarian environmentalism.” ⁴⁷ Academics have also argued against the acceptance of the concept calling the concept of EC as authoritarian environmentalism as Dr Kevin Lo has argued that the ambitious environmental goals for EC in China are achieved by sacrificing the interest of extractive communities and the environmental governance system in China has become more authoritarian. ⁴⁸ He further argued that these constitute environmental injustice through environmental policies which impose burdens on disadvantaged individuals and communities. ⁴⁹ This authoritarian expression of EC may face difficulty in receiving global acceptance particularly from the developing States where the people put the economic interest in front as a detriment to the environment, ⁵⁰ however, the concept leaves room for many initiatives and collaborative efforts from different sections of society, and global or regional cooperation can shape the concept to a uniformed manner.

Having shown a longstanding concern towards the protection of the marine environment, China adopted its policies to put the environment as a conventional concern into the country's political, economic and social policy framework. ⁵¹ To employ the concept of EC for the protection of the marine environment and its resources, the Chinese government has taken some bold, concrete actions, including strengthening the seasonal closings of nearly all domestic fisheries each year, protecting habitat and establishing marine reserves, imposing stricter standards for discharging pollutants into the sea, shutting down illegal maricultural operations and establishing a total acreage limit for mariculture. ⁵² A further example of building marine EC can also be seen from Shandong province, China, where the province has actively promoted the three basic systems of marine function zoning, approval of sea area authority and paid use of sea areas. ⁵³ Enabling marine management to enter into a legal, scientific and standardized track, the province has initially established a network of marine environmental monitoring and disaster prevention. ⁵⁴ However, despite such initiatives, questions remain as to whether these actions are sufficient to achieve the targets and goals set to prevent biodiversity loss, due to political limitations. ⁵⁵ The marine ecological policies implemented in Shandong Province has been categorized into meta-policies, basic policies and specific policies, however, there is insufficient consultation and decision-making cooperation among policymakers indicating that the policymaking is dominated by the single decision-making mode, and the joint decision-making is very rare. ⁵⁶ Adding to that, among other points, the study found that “the degree of relevance of marine technological innovation policy points related to marine social support policies is not high, and the support for marine environmental protection technology innovation is not strong.” ⁵⁷ Another study on the construction of China's marine EC has shown that the marine environment of China has improved a lot, however, the improvement varies as some of the regions: Shandong, Guangdong, Liaoning and Hainan had better performances. ⁵⁸

In 1992, China established the China Council for International Cooperation on Environment and Development to advise China's State Council on a wide range of environmental and development matters. It has addressed ocean policy in a 2010 study on sustainable development of China's ocean and coasts as well as in a current initiative, a policy study on global ocean governance and EC. ⁵⁹ The Special Policy Study on Global Ocean Governance and EC, 2019 identifies the existing international and domestic laws applicable in China to ocean governance and marine environmental protection, including marine resources and biodiversity, and opines that the laws and policies lack an integrated ecosystem view. ⁶⁰ The report further identifies certain gaps in the laws concerning the protection of ecosystems and resources, lack of detailed implementation rules and the need for a cross-sector implementation mechanism. ⁶¹ Therefore, the report conveys that to meet the goals of conservation and sustainable use of marine resources along with filling out the gaps, ecological integrity is required to be implemented through the laws and policies of China. Further suggestions were put forward under the Special Policy Study on Global Ocean Governance and EC to take additional actions to promote EC, such as strengthened legal protections for living marine resources, expanded monitoring and improved compliance mechanisms, as well as more critical habitat restored and protected. Additionally, domestic EC in China depends upon stronger regional and global governance to ensure living marine resources are managed sustainably at scale, hence, regional and global cooperation needs to be extended and implemented effectively. ⁶²

Concerning the governance of the global marine ecological environment, Professor Weibin Zhang has emphasized establishing a global marine ecological environment protection concept led by the maritime community with a shared future and construction of a coordinated mechanism. ⁶³ Furthermore, there are countries, especially developing ones where the national legislations lack the capacity to address and implement the SDGs ⁶⁴ and require comprehensive law reform concerning many environmental issues including conservation of marine biological diversity to comply with international laws, goals and targets. Such countries are also part of BRI and to make the agendas of the project effective, the national legislation of each country requires to follow each other keeping the EC onset and building a green community for a shared future. ⁶⁵ According to Professor Yongbo Quan, the global marine environment governance rules are under reconstruction, ⁶⁶ hence, EC can be applied as a guiding norm for such reconstructions. Additionally, global cooperation, mutual agreements and assistance in applying EC could make the countries that are in a disadvantaged situation to be able to reform environmental policies to address the implementation of SDGs. In response to achieving SDGs and other targets, China and Europe have extended their cooperation through the 22nd bilateral Summit which took place virtually on 22 June 2020 and a meeting was followed up through video conferencing on 14 September 2020. ⁶⁷ Having laid out the foundations which include Europe's Green Deal and China's “Ecological Civilization” as agendas, this cooperation could lead the world towards a more sustainable path. Hence, the changes within the existing measures and mechanisms being social, legal or political in nature can be brought through the acceptance of the concept of EC for achieving the global targets and goals. Moreover, the current issues surrounding climate change, environmental pollution and biodiversity loss urge for a stronger governance system for sustainable development and EC can be the guiding principle to restore the degraded environment and its resources.

Implications of EC for sustainable ocean governance and conservation of the BBNJ

In order to promote sustainable global ocean governance, the implementation of effective goals, targets and management systems are essential. The adoption of an EC policy by China emphasizes the importance of conserving the environment and its resources. However, the initiatives which have already been taken lack the application of the concept within sectors such as ocean conservation and governance. Most attention has been placed on the conservation of the terrestrial environment, and its natural resources where the idea of EC has prompted reforms in policy-making, legislation, and judicial practices. ⁶⁸ Closer application of the concept of EC to global marine environmental governance and conservation of marine resources would encourage harmonization of human activity and marine ecosystems within a system of global cooperation, promoting more balance between conservation and sustainable use and considering both economic and environmental interests where the latter would prevail over any conflicts. Further, the concept would require the incorporation of green finance, blue economy and low carbon emission agendas and an integrated approach within the policy framework related to marine environmental governance, which considers both precautionary measures and scientific data for making decisions on any proposed activities affecting the marine environment.

While talking about the application of EC in the areas beyond national jurisdiction (ABNJ), another question arises concerning the governance of the areas such as who is going to be responsible to act as an authority to monitor and control the activities in the ABNJ and implement the measures preventing biodiversity loss. As in the ABNJ, there is no single State possessing the sovereignty or sovereign right rather certain freedoms to enjoy. So far, the ABNJ is concerned, it includes the areas of High Seas and the Area. ⁶⁹ According to Article 87 of the UNCLOS, all States are entitled to enjoy the freedom of navigation, overflight, laying submarine cables and pipelines, construction of artificial islands and other installations, fishing and scientific research. Furthermore, as per Article 117, all States have the duty to adopt or take measures in cooperation with other States for the conservation of living resources of the high seas. Article 118 provides the duty of States to cooperate in the conservation and management of living resources of the high seas, while Article 119 provides further guidance in determining the allowable catch and establishing other conservation measures. Therefore, where the States have the freedoms of the high seas, they have the duties to protect the resources of the high seas as well as no freedom should be considered absolute. However, the gaps within the existing measures and the exercise of the freedoms in the high seas make the implementation of existing measures more challenging due to lack of cooperation among States, uniformed measures and technical assistants, as well as they, strive for economic growth compromising the nature and its resources.

Besides high seas, another part of ABNJ is the area that includes the seabed and subsoil beyond national jurisdictions and the resources therein. The Area and its resources are the common heritage of mankind (Article 136) and no state has sovereignty nor sovereign rights over the area and its resources and may only be exploited in good faith complying with the rules and regulations of the responsible authority (International Seabed Authority) (Article 137). However, UNCLOS only recognizes all solid, liquid, or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules as resources of the area (Article 133). The exploitation of such resources may cause harm to biodiversity and the ocean ecosystem; thus, the authority needs to look into the technologies used in such activities and ensure to employ the standards for which might create difficulties for certain States. In that case, the significance of the transfer of technology and scientific knowledge needs to be accessible. Hence, the ISA needs to consider the equitable sharing of any financial gains in the ongoing process of adopting internationally recognized rules for the exploitation of the resources of the seabed. Thus, the application of EC can be influential to build a shared future and harmonize the relationship between humans and the sea, frame the prospective measures through global cooperation, fill the existing gaps through the amendments or modification of the existing laws and regulations, make the relevant authorities more responsible and accountable through multi-level governance.

The negotiation of the BBNJ agreement arose out of concern regarding the regulatory gaps within the existing agreements or regulatory frameworks, due to the lack of regional and global collective efforts to manage the conservation and exploitation of marine biodiversity in ABNJ. Among the issues to be dealt with under the future agreement, MGR has been considered to be the most complex, along with MPAs and EIA. ⁷⁰ Increasing scientific and commercial attention on MGR and the probability of deprivation of developing countries from gaining any benefits due to their lack of technological capacity, developing countries have demanded an international regime to avail them the opportunity of benefit sharing and transfer of technology for the past ten years or so. Furthermore, UNCLOS is silent as to the regulation of MGR found in ABNJ, which leaves the field unregulated. As ABMTs, including MPAs, are among the main elements of the BBNJ ⁷¹ agenda to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, the ecosystem approach has been suggested by the parties to the negotiations to be one of the determining indicators for the application of ABMTs, including MPA, as per Article 16 (1) of the revised draft. ⁷² The MPA has been an internationally recognized and agreed way to prevent biodiversity loss under the CBD and was adopted as part of SDG 14 by the Member States of the United Nations. ⁷³ Under the CBD, Aichi Target 11 states that

… by the year of 2020, … 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes. ⁷⁴

With the deadline at its end, the suggestions for the post-2020 framework are scattered, and there has been debate about what areas of the world's oceans and seas shall be protected. Similarly, UNSDG 14.5 prescribes that “by the year of 2020, conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information.” ⁷⁵ In evaluating the progress of implementation of the goals, researchers suggest that irrespective of any subject, a target needs to be specific, measurable, achievable, realistic and time-bound (SMART) and linked to monitoring as an indicator to determine the level of progress. ⁷⁶ Applying the SMART test on SDG 14.5, while the target includes the time-bound element of 10% of MPAs by the year 2020, it lacks the specification level by which this is to be met. There is also an absence of globally accepted common scientific standards under the International Law, making the evaluation of the progress of SDG 14.5 complicated. ⁷⁷ On the other hand, in its’ Ecologically and Biologically Significant Area (EBSA) process, the CBD systematically identifies, records, and implements a well-documented and supported scientific evaluation process for ocean areas of ecological importance both within and outside national jurisdiction. ⁷⁸ Although SDG 14.5 has adopted the 10% measure from CBD Aichi Target 11 concerning the establishment of MPAs, it did not reproduce all components of that Aichi Target. Between the two frameworks, due to the binding nature of the CBD and having near-global adoption by States, the Aichi Target possesses more of a normative character. ⁷⁹ Furthermore, while both SDG 14 and the Aichi Targets apply to the ABNJ, the implementing impact of SDG 14.5 in ABNJ is not effective, as there is a lack of comprehensive scientific standards under international law. Similarly, the Aichi targets also have limited applicability in the ABNJ, ⁸⁰ as in ABNJ, the CBD applies to processes and activities carried out under the jurisdiction or control of its parties. ⁸¹ The first network of high seas MPA which was created under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) ⁸² in 2010 has undergone a very slow process of implementation since then. ⁸³

Hence, due to the existence of such gaps and ineffective existing frameworks to prevent biodiversity loss in ABNJ, the need for a legally binding instrument has escalated. However, the issues concerning environmental governance under international law and regulatory gaps, as identified in the earlier sections, are preventing the development of MPAs within ABNJ, and even throughout the BBNJ negotiations, the issues are not clarified yet as appears from the draft text. To “effectively” design, implement, manage, monitor, and enforce an MPA with mandates over multi-sector activities/impacts within its bounds, ⁸⁴ therefore, an effective norm to formulate the comprehensive regulatory framework with convincing goals and targets for sustaining the ecological balance is required. It is argued that the EC can be influential in serving that necessity. The absence of a clear and uniform definition of MPA or any clear legal basis to employ it, have caused the dilemma to set guiding principles, scientific criteria for designating ABMTs including MPAs and governance of MPAs. Such dilemmas are extended within the framework of the prospective BBNJ treaty and making the adoption of the instrument based on consensus difficult. The issues concerning the designation and governance of MPAs can be settled through lessons learned from China as the country has been working on the establishment of MPAs for nearly four decades ⁸⁵ . Among the various concerns regarding the MPAs, the institutional arrangements and decision-making process have been the significant ones and demonstrating the need for a unified jurisdiction mechanism, China's experience prescribes to have balanced system between fully protected and multiple-use MPAs and between top-down and bottom-up approaches. ⁸⁶ As EC focuses on human needs and economic activities, the concept may also provide firmer guidance for the control of harmful activities. Furthermore, the issues regarding the establishment of MPAs include the dilemma as to the determination of areas that should be subjected to MPA. While undertaking such a task applying the concept of EC the areas where it is necessary to establish an MPA not only based on the scientific evidence but also the vulnerable amount of human activities within that area should be taken into consideration in which way EC can contribute to resolving the issues concerning MPAs. Besides, the EIA can also be framed by applying the EC. The purpose of EIA should not only be conducted to determine whether the prospective activities may cause substantial pollution or harm to the marine biodiversity rather it should also determine whether the activities are eco-friendly and would serve not only a sustainable economy but also a sustainable green/blue economy.

Meanwhile, the insights and prospects of the concept of EC have been extended to COP15 of the CBD, the theme of which, as noted above, emphasizes EC. ⁸⁷ The outcome of COP15 and ongoing lessons from MPAs under the CBD are likely to be helpful for the formulation of the BBNJ treaty. Concerning future targets on protected areas, MPAs require more discussions, which should take into consideration the CBD's approach of EBSAs, and other scientific evidence, to assess the proportion of the ocean that should be protected from an ecological and conservation point of view. As the environment, economy and governance are interlinked under the rubric of sustainable development ⁸⁸ and the concept of EC aims to ensure that sustainable development takes into consideration all the factors, and aims to integrate the monitoring and assessment of ecological and environmental indicators with management practices, promotion of EC can be considered as a norm to set the targets for BBNJ.

The BBNJ instrument being still under negotiation, several approaches were put forward to formulate it. The ecosystem approach is an increasingly central concept for addressing the conservation and sustainable use of biological diversity. ⁸⁹ The ecosystem approach is one of the suggested guiding principles and/or approaches for a future international legally binding instrument (ILBI) on marine biodiversity in areas beyond national jurisdiction (BBNJ). ⁹⁰ From the revised draft text, it seems that the ecosystem approach is an agreed and mostly acceptable one to be incorporated, as per the current Article 5. ⁹¹ The most concrete and interesting suggestion for the inclusion of the ecosystem approach comes from the submission of the World Wide Fund (WWF) for Nature. WWF suggested that the ecosystem approach should be one of the general guiding principles/approaches of the future ILBI, and also be included in the general objectives of the ILBI, something which was taken up by the preparatory committee Chair in its February 2017 Non-Paper. ⁹² The institutional design of the treaty also needs to consider the interests of all parties and all sides to avoid favoring one over the other so that the proper implementation of the treaty can be effective. ⁹³ Since the consideration of the ecosystem approach is already there, having a developed understanding of the concept of EC, the concept can assist in shaping and formulation of the future BBNJ treaty for marine biodiversity and global marine environmental governance. Moreover, the treaty should strive to maintain common interests, as During the first negotiations on the BBNJ instrument, having emphasized four principles, the Deputy Director-General of the Department of Treaty and Law of the Chinese Ministry of Foreign Affairs, Ma Xinmin, who headed the Chinese delegation, expressed that “we are a community of shared future and share common interests regarding the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.” ⁹⁴ Considering the norms of the concept of EC, it can be stated that the existing issues concerning marine environmental governance and conservation of marine biodiversity for sustainable development require considering the application of EC through global cooperation for a sustainable shared future.

Conclusion

EC is a developing concept, which aims to safeguard the environmental rights and interests of people collectively with the vision of building a shared future for life on Earth, as embodied in the theme of forthcoming COP 15 of the CBD. With the development of the concept and more detailed interpretation, it is argued that EC can be influential in achieving the targets and goals for global marine environmental governance under different international regimes, by promoting the harmonization of the needs of the natural environment and the Earth's people to make this planet an eco-friendly place. As human activities are causing rapid climate change, environmental pollution and biodiversity loss, it is increasingly essential to adopt policies that would govern human activities within an ecological framework. The concept of EC can be seen as more comprehensive compared with sustainable development in this respect. It may assist in filling the gaps within the existing frameworks through the adoption of the concept within future policies and regulatory frameworks, including the establishment and management of MPAs under the BBNJ treaty. The adoption of the concept could lead to increasing the accountability of people by giving explicit priority to environmental conservation and sustainable use. Further, the concept would serve as a norm for global environmental governance, replacing the idea of liberal environmentalism, which leaves the door flexible for economic goals and exploitation of natural resources without the enforcement of an extensive legal framework and governance. However, the concept of EC is also required to be refined, as the concept is still rather abstract. Adoption of policies and setting theoretical targets are not enough for adequate marine environmental governance. Thus, understanding the difficulty in managing issues within national jurisdiction or beyond the national jurisdiction of maritime zones is required. Moreover, stricter and stronger monitoring and management systems are essential, for which regional or global cooperation is required, and such essentials can be brought through the application of EC. There must also be a proper balance between “conservation” and “sustainable use” concerning global marine environmental governance and the concept of harmonization could be effective for maintaining the balance. Finally, EC would also influence the targets and goals regarding conservation and sustainable use of biodiversity by encouraging stakeholders to play their roles effectively. Thus, for the global marine environmental governance and conservation and sustainable use of marine biodiversity, the harmonious coexistence between humans and nature must be promoted, to achieve the goals of EC in the marine environment.