Negotiating an International Legal Instrument on Biodiversity Beyond National Jurisdiction: A Look Ahead

Abstract

The negotiation of the future Agreement governing the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction is in its final stage. Essentially a treaty for the protection of general interests, the Agreement can generate several benefits for the governance of the oceans. However, in the first three sessions of the intergovernmental conference, deep discrepancies have emerged with respect to the core issues of the package agreed in 2011. This article identifies various formulas and strategies that have been considered in the negotiations and incorporated in the Revised draft text as possible regulatory options with the potential to bring positions closer and facilitate the agreement: avoiding explicit reference to the legal status of marine genetic resources; the incorporation of differential and contextual norms; the introduction of due diligence obligations; the incorporation of internal soft law; and the reduction of the scope of the treaty. These options may help to provide flexibility and differentiation in the regulation but, as essentially pragmatic measures, they tend to sacrifice the ambition of the final Agreement. On the other hand, if States assume their real role and responsibility in the process –that of interpreters of general interest and custodians of marine biodiversity –they would be in a better position to find novel and more ambitious solutions for bringing this crucial Agreement to fruition. This article advocates a return to basics and the placing of the marine environment at the centre of the regulations.

Keywords

Marine biological diversity marine genetic resources areas beyond national jurisdiction law of the sea public interests

1 Introduction

Marine areas beyond national jurisdiction (ABNJs) make up 40% of the surface of the planet, 62% of the surface of the oceans and nearly 95% of their volume. 1 . The high seas and the international seabed area (the Area) provide important resources (such as seafood, raw materials, genetic and medicinal resources) and services (climate regulation, carbon sequestration, air purification and habitat services, as well as cultural and supporting services). 2 . Indeed, the high-seas ecosystems are responsible for almost half of the total biological productivity of the global ocean. 3 Today, scientific, and technological knowledge have opened up the possibility of accessing and exploiting some of the resources of these remote areas. Therefore, there is an increasing interest in marine genetic resources (MGRs) from these ABNJs, and in recent years bioprospecting activities have intensified- by 2025, the global market for marine biotechnology is projected to reach $6.4 billion, spanning a broad range of commercial purposes for the pharmaceutical, biofuel, and chemical industries-. 4 As a result of these new activities such as seabed mining and bioprospecting together with traditional ones such as shipping and fishing, overexploitation of the oceans and intensive use of their components as well as the harmful effects of human activity (pollution, destruction of habitats) have increased. The effect has been the aggravation and acceleration of marine biological diversity loss in these ABNJs.

The current legal and institutional frameworks for addressing this global threat are fragmented, incomplete, and inadequate. They are fragmented for the following reasons: because there are two different governing principles applicable to those areas, the freedom of the seas regarding the high seas and the Common Heritage of Humankind (CHH) in relation to the Area and its mineral resources; because norms and rules protecting the biodiversity of ABNJs are contained in a non-systematic corpus of global and regional instruments –among them, the United Nations Convention on the Law of the Sea (UNCLOS), which in its Part XII regulates the protection and preservation of the marine environment, and its 1995 Fish Stocks Agreement; because the UN Convention on Biological Diversity (CBD), which, although in general not applicable to ABNJs, establishes in its article 3 that States Parties are responsible for ensuring that activities conducted within their jurisdiction do not cause damage to the environment of other States or of ABNJs; and also multiple sectoral and regional instruments such as the UNEP Regional Seas Programme, 5 some provisions contained in the Antarctic Treaty System (ATS), which represents an example of a regional regime for biodiversity beyond national jurisdiction (BBNJ),. 6 the 1995 Code of Conduct for Responsible Fisheries or the 1998 International Guidelines for the Management of Deep-sea Fisheries in the High Seas adopted by the Food and Agriculture Organisation of the United Nations (FAO); and because, from an institutional perspective, multiple global and sectoral organisations exercise their mandates and competences over those same ABNJs –specifically, the International Maritime Organisation (IMO) in relation to shipping, the International Seabed Authority (ISA) regarding mining activities in the Area, or the FAO and multiple Regional Fisheries Management Organisations (RFMOs) in relation to fishing –leading, in some cases, to overlapping mandates, unnecessary duplication of effort, and inefficiency.

The existing frameworks are incomplete because, despite the existence of these numerous instruments, not all the issues or all the areas are covered. In part, this is because they were adopted in a different historical context when biological resources in these areas were mostly inaccessible and of no great interest. In summary, these frameworks are inadequate because they have to preserve BBNJ effectively. On the other hand, the uncertainty derived from these frameworks has generated a phenomenon of concentration of rights and unequal distribution that confirms the maxim ‘first come first served’. Illustrating this, in 2018 a scientific study showed how there are patents associated with12,998 sequences extracted form 862 marine species, 84% of which belonged to private corporations (and 47% to a single firm, BASF), 12% to universities and their commercialisation partners and only 4% to public institutions; and that from a geographical perspective, 10 countries have registered 98% of all patents and 165 countries do not yet have a single registered patent associated with a marine species. 7

In 1995, the Conference of the Parties in the CBD, concerned about the inadequacy of these legal and institutional frameworks, called for a more thorough exploration of these issues. 8 Since then, a global public interest has emerged in establishing a fair and equitable international legal regime that guarantees the conservation and sustainable use of BBNJ. In its creation, the United Nations General Assembly (UNGA) has played a central role. In 2004, it set up an Ad Hoc Open-ended Informal Working Group (BBNJ Working Group) 9 which studied various possibilities for addressing this challenge for almost a decade, from 2006 to 2015. Having considered its recommendations, 10 on 24 December 2017, the UNGA decided to take a step forward to strengthen the governance framework 11 . and convened an intergovernmental conference (IGC) to up the text of an international legally binding instrument on the conservation and sustainable use of BBNJ (the BBNJ Agreement, or the Agreement) 12 which is expected to address four core elements included in the ‘Package Deal’ set out in 2011: 13 marine genetic resources, including questions on the sharing of benefits; measures such as area-based management tools, including marine protected areas; environmental impact assessments; and capacity-building and the transfer of marine technology.

So far, three sessions of the IGC have been held between September 2018 and August 2019 and the provisional results of the negotiations have been incorporated in a Revised draft text that includes different regulatory options. 14 The fourth and a priori final session of the IGC was scheduled for April 2020 but was postponed twice due to the COVID-19 pandemic. 15 Despite the ‘friendly atmosphere’ 16 . at the end of the first session, throughout the BBNJ process the tensions that converge in this field between the need to protect the general interest and the defence of individual interests have been plain. 17 From a public interest perspective, the UNGA’s decision to draft a new instrument paves the way for the adoption of an Agreement that can provide legitimacy, coherence, and dynamism for the global governance of BBNJ. However, individualism and national interests have emerged in the negotiation, causing discrepancies about all the main substantive issues of the regulation that are still to be decided as States try to safeguard their expectations in these spaces.

This paper defends that the future BBNJ Agreement has the potential to make a very positive impact, not only on the governance of BBNJ but on the governance of the oceans in general. Therefore, it is essential to find avenues for bringing the Agreement to fruition. On the one hand, it is possible to identify formulas and strategies in the negotiations and in the Revised draft text that might facilitate the adoption of a treaty involving the highest possible participation. But, on the other hand, this paper claims that States have the responsibility not to abandon the ambition and the transformative power of the future treaty and to keep working to find more creative avenues for achieving the Agreement. The paper is structured as follows: Section 2 briefly conceptualises the future BBNJ Agreement as a treaty for the protection of general interests that can generate several benefits for the governance of BBNJ; Section 3 focuses on the emergence of individual interests of States in the negotiation of the treaty, highlighting some of the existing disagreements on core substantive issues; Section 4 identifies some formulas and strategies that have been considered in the negotiations and incorporated in the Revised draft text as possible regulatory options with the potential to contribute to bringing positions closer and facilitating the agreement; Section 5, however, reflects on the limited and pragmatic nature of these formulas and proposes a change in perspective in negotiators’ role to find alternative and more ambitious avenues for achieving the Agreement; finally, some concluding remarks are provided in Section 6.

2 A Brief Overview of the Future Agreement

The future BBNJ Agreement is formally conceived as the third implementing agreement under the UNCLOS, after the 1994 Agreement on Part XI and the 1995 Fish Stock Agreement. From a substantive perspective, this Agreement can be considered a treaty for the protection of general interests 18 or, in other words, a treaty ‘whose purpose is to regulate and protect general interests of the international community by creating public interest norms that generate collective obligations with a universal vocation’. 19 . This category of treaties has three main features: their objective is to protect the general interests of the whole international community; they create public interest norms that generate collective obligations (particularly obligations erga omnes partes); and they have universal appeal, as a result of both the aspiration for universal participation in the treaty and for the public interest norms to be applicable to everybody. The future BBNJ Agreement meets these three criteria. Firstly, the conservation and sustainable use of BBNJ can now be considered as a general interest of the international community (a global public interest) and a global priority, as reflected in SDG 14 of the 2030 Agenda for Sustainable Development. 20 Secondly, the treaty incorporates several public interest norms establishing collective obligations that protect common values to all the States Parties to the treaty, not being subjected to any reciprocity. Thus, some collective obligations provisionally included in the Revised draft text could be the obligation to act guided by certain general principles and approaches, such as the principle of precaution (art. 5 of the Revised draft text); to cooperate to conserve and sustainably use the marine biodiversity of ABNJs (art. 6); to conduct environmental impact assessments (art. 22); and to cooperate in capacity-building and transfer of marine technology (art. 43). Thirdly, the future Agreement has a strong universal appeal, which is the result of not only being open to all international subjects with competences in this field –States, territories that enjoy full internal autonomy recognised as such by the United Nations, and competent intergovernmental organisations (preamble and art. 58) –but also containing strategies that seek to broaden the personal scope of its obligations. These strategies are the provisional inclusion of provisions regulating the relations of the Parties to the Agreement with respect to third parties (it is the case of art. 20.5, art. 56); the incorporation of provisions that indirectly affect the relation between its States Parties and third parties, through the relevant legal instruments, frameworks, and bodies in which both participate (arts. 5, 15 and 20); the inclusion of provisions that try to protect its core against other incompatible obligations assumed by the States Parties (arts. 45.2 and 67.2); and the will to link different types of actors (art. 11.5).

Since the future Agreement meets the characteristics of a treaty of this kind and incorporates some of their strategies, its entry into force can generate certain benefits for the governance of the BBNJ and of the oceans in general. Firstly, the Agreement can give legitimacy to the global norms to be adopted. It does so because the Agreement is being negotiated in a law-making process that is wide open and inclusive. 21 Moreover, it provides legitimacy as the proceedings relate to an agreed package deal, in a way that, a priori, takes into consideration the concerns and preferences of all parties involved ensuring that there will be no agreement if a decision is not reached on all of them.

The future Agreement may also enhance the coherence of the governance of ABNJs, as the effect of some of the already mentioned universalisation strategies incorporated in the Agreement, which should not be able only to expand the effects of the treaty, but also to contribute to mitigating or resolving future conflicts between regimes. 22 This would be especially interesting since the future Agreement will eventually coexist with other existing global and regional regimes, like the regime of the Area or the ATS. 23 In addition, the coherence of the regime may also be boosted by the capacity of some of the norms included in the Agreement eventually to generate international customary law (the obligation to cooperate to conserve and sustainably use the BBNJ, for instance, could have the capacity to generate universal norms that harmonise the conduct of the States in those areas, however, it will depend very particularly on subsequent practice by third States not participating in the Agreement).

Finally, a third benefit of the Agreement may be its dynamism and capacity to adapt to change. The Agreement can contribute in this respect, as this kind of treaty tends to have the power to create or operate within general international regimes characterised by containing –alongside primary rules regulating the Parties’ conduct –secondary rules on their identification, creation and application, as well as, in some cases, on liability for non-compliance or damages. In this respect, the Agreement not only would incorporate primary rules such as the obligation to cooperate or to share benefits, but it would also contain secondary rules attributing powers to develop the provisions of the Agreement to the bodies created by it that will allow the regulation to evolve. 24

3 Individual State Interests and Divergences in the Negotiation

Preserving and regulating the sustainable use of marine biodiversity in ABNJs constitutes a global public interest with a community dimension. It means that all States, as well as other international actors, have the same interest in protecting and guaranteeing the sustainable use of the marine biological diversity of these common areas. At the same time, however, States have expectations about the future legal regime under negotiation, how they will be allowed to behave in those areas, and what resources and profits they will be able to gain therefrom and at what cost. Therefore, they are negotiating the Agreement with a dual role: as ‘interpreters of the demands of the international community’ 25 and as individual States with particular interests. These are the result of the different contexts, capacities and resources of each State, and differ depending on whether the States are developing, industrialised, coastal or landlocked, whether or not they have a fishing industry, and whether or not they possess the economic resources and technical capacities to access and exploit the marine genetic resources of these ABNJs. The different positions of States are evidenced through the groups and coalitions participating in the process which, according to their positions and statements during the negotiations, have even been generally classified as favouring, facilitating or opposing the Agreement. 26

This diversity becomes evident when negotiating both the general principles and the specific provisions of the future Agreement, which is why there are still serious divergences on some core substantive issues of the package agreed in 2011. In a non-exhaustive way, some of the main divergences are identified below. 27 .

3.1 Marine genetic resources, including questions on the sharing of benefits

The regulation of MGRs and the question of benefit sharing are the core issues of the future BBNJ Agreement and the chapter of the negotiation where the most ‘red lines’ are concentrated. 28 . Firstly, regarding MGRs’ legal status, the States’ positions are strongly polarised, ranging from those that advocate considering MGRs as the CHH –in a similar way to mineral resources in the Area (mainly, developing States that intend to reverse the status quo) 29 . –to those that claim that MGRs are subject to the principle of the freedom of the high seas (mainly, certain industrialised States favoured by the uncertainty of the status quo). 30 Secondly, concerning access to MGRs, at present there are fundamental discrepancies when determining the types of access that the Agreement should regulate (developed States defend a regulation only of access in situ, while developing States support a broad Agreement including access ex situ and in silico) and the ways to which the access is provided (free access, prior notification or licensing system). 31 Thirdly, the sharing of benefits is also controversial and there is still no decision on the benefits that will be distributed (i.e., only non-monetary benefits related to the dissemination of knowledge and results, as defended by the developed States and recognised, for example, in the ATS, 32 or monetary benefits as well, as was established in the UNCLOS regarding the Area, 33 which is the main claim of the developing States) and how. 34 Finally, there are wide discrepancies about the possibility of addressing intellectual property rights. Since both industrialised States and private corporations already have patents that represent for them a lucrative source of benefits, the exclusion of intellectual property rights from the scope of the future Agreement constitutes a red line in the negotiation. 35

3.2 Measures such as area-based management tools, including marine protected areas

Divergences have also emerged concerning measures such as area-based management tools, an expression that includes a variety of approaches for conserving biodiversity which are regulated by other relevant legal instruments, frameworks, and global, regional and sector bodies. Effectively, in several marine areas beyond national jurisdiction a plurality of marine protected areas (MPAs) are recognised today under the auspices of different regional and sectoral organisations –in particular, ‘areas of special environmental interest’ designated by the ISA, ‘particularly sensitive marine areas’ and ‘special zones’ created by the IMO, ‘specific zones’ articulated by RFMOs, or sanctuaries delimited by the International Whaling Commission. Precisely because numerous States that are negotiating the future BBNJ Agreement also participate in these instruments and structures, beyond the consensus in understanding these mechanisms as a useful and essential tool to support ecosystem approaches at national, regional and global levels, 36 there is substantial disagreement about how to articulate new MPAs without undermining the existing tools –particularly as the future Agreement is likely to create extra obligations in addition to those already imposed by the other instruments. 37 Thus, discrepancies are becoming evident when deciding on the design and management model of these tools: 38 just as there are proposals for the new marine protected areas in ABNJs to be managed at the regional level, there are also calls for the creation of a centralised management system under the responsibility of a global body. 39

3.3 Environmental impact assessments

The obligation to conduct environmental impact assessments (EIAs) is already contained in art. 204 of the UNCLOS which stipulates that ‘States shall, consistent with the rights of other States, endeavour, as far as practicable, directly or through the competent international organisations, to observe, measure, evaluate and analyse, by recognised scientific methods, the risks or effects of pollution of the marine environment’. However, the Convention does not establish either the procedure or the standards for conducting these evaluations and, in practice, the existing structures and mechanisms are fragmented and underdeveloped compared to those applicable to marine areas within national jurisdiction. 40 . Once again, there is a consensus in recognising that EIAs should be conducted in these areas but, beyond that, disagreements are evident on several points. The first disagreement is in relation to the activities to be evaluated, i.e., whether only those originating in ABNJs should be evaluated (the ‘outside-in’ approach) or also activities that take place in marine areas within national jurisdiction that may have an impact on ABNJs (the ‘inside-out’ approach) –which is unacceptable to coastal States. 41 Secondly, there are also discrepancies about whether the EIAs should be conducted based on the type of activity or on the expected impact, and whether the Agreement should include a list of activities to be evaluated or a list of exempted activities. 42 Thirdly, differences have also emerged regarding the procedure for conducting EIAs and the competences that the bodies created under the Agreement will have for controlling them. 43

3.4 Capacity-building and the transfer of marine technology

Regarding capacity-building and the transfer of marine technology, there is a widespread recognition that not all States have the same scientific, technical, and technological capacities for using and exploiting the biodiversity of the ABNJs, 44 . and about the suitability of including, as a general objective to be pursued by the Agreement, the need to strengthen capacity-building and technology transfer. 45 . However, profound discrepancies are becoming evident, firstly, when it comes to deciding on the voluntary or compulsory nature of the mechanisms to be created to implement this capacity-building and technology transfer, 46 and, secondly, on how to identify the necessities and priorities in this field. Here, some text proposals explicitly stipulate the transfer of technology and capacity ‘to developing States’, while some delegations ask for the inclusion of pertinent criteria to identify which States in particular should be the recipients. 47

3.5 Some cross-cutting issues

Finally, many important differences already exist with respect to certain cross-cutting issues. The first is the scope of the treaty. While there is no agreement as yet on the ‘outside-in’ or ‘inside-out’ approach that the regulation should adopt, at a more elementary level it has not yet been decided whether the future Agreement will cover fish. 48 On this point, fishing States are belligerent and their inclusion in a broad sense constitutes a red line in the negotiations. 49 They argue that their exclusion would be consistent with the mandate of the UNGA not to undermine existing legal instruments or frameworks. 50 Secondly, with respect to the institutional model of the Agreement: some proposals have advocated the establishment of a centralised governance model that would attribute implementation and control competences to a global body, either newly created or already existing, but with an expanded mandate; other proposals have defended a decentralised governance model that grants competences to regional or sectoral bodies, or even a ‘hybrid’ one which will extend these competences also to domestic institutions. 51 At the present stage of the negotiations, it seems highly probable that the institutional model of the future Agreement will be made up of a Conference of the Parties (COP), a Scientific and Technical Body, and a Secretariat. 52 However, the competences each one of them will have are still to be defined, as is the relationship they will maintain with other international organisations or already operational bodies that exercise competences over the same marine areas. Thirdly, the decision regarding the dispute settlement system 53 is also pending, as is the financing mechanism of the regime –here, the interest of developing States in providing broad funding is opposed to the much more limited proposals put forward by industrialised States. 54

4 Some Formulas and Strategies Incorporated in the BBNJ Revised Draft Text

According to its Resolution of 24 December 2017 and recognising the urgency to fight the global challenge of marine biological diversity loss in ABNJ, the UNGA decided to convene the IGC ‘with the view to developing the instrument as soon as possible’. 55 At the same time, the IGC President, Ms. Rena Lee, highlighted the importance of ‘bring[ing] on board as many people as possible, which means seeking to achieve a high rate of ratification of the new instrument’. 56 . However, the negotiations do not seem to be moving towards an agreement. The multiple discrepancies between the delegations illustrate how, on the one hand, the actors seeking to reverse the status quo are proposing wide-ranging regulating formulas (MGRs as CHH; regulation of all types of access to MGRs; treatment of intellectual property rights; sharing of monetary and non-monetary benefits, etc.); while, on the other hand, those who ‘have incentives to exploit and exacerbate the current uncertainty’ 57 have a preference for a narrow regulation and for reducing States’ commitments to the minimum (MGRs subjected to the freedom of the seas; regulation only of access in situ, sharing only non-monetary benefits; exclusion of intellectual property rights, etc.).

In this scenario, finding avenues to overcome the divergences that are hindering the path to this necessary treaty is crucial, particularly when the IGC ‘shall exhaust every effort in good faith to reach agreement on substantive matters by consensus’. 58 Thus, this section aims to identify some formulas and strategies that have been considered in the negotiations, and eventually incorporated in the Revised draft text as possible regulatory options, that could have the potential to facilitate the Agreement: avoiding to explicitly mention the legal status of MGRs; the incorporation of differential and contextual norms; the introduction of due diligence obligations; the incorporation of internal soft law; and the reduction of the scope of the treaty.

4.1 Avoiding explicit reference to the legal status of MGRs

The aspect that is generating the most controversy in the BBNJ negotiations is, without doubt, that of the legal status of MGRs. As has been pointed out, ‘as long as the North and South continue their ideological battles over the common heritage of mankind, then concluding negotiations on more important aspects of the package deal will be further delayed’. 59

The concept of CHH, which is actually incorporated in the Revised draft text as a potential governing principle, 60 ‘presupposes a third kind of regime that is different from both the traditional regimes of sovereignty, applicable in territorial seas, and of freedom, applicable on the high seas’. 61 In short, the CHH is ‘a principle that sets out that certain global common resources should be owned collectively by mankind, and the benefits arising from their utilisation should be shared’. 62 See also: Baslar, K. (1998). The Concept of the Common Heritage of Mankind in International Law. Netherlands: Kluwer Law. Thus, it could imply the prohibition of claim or exercise of sovereignty or sovereign rights, as well as the prohibition of recognising any national appropriation; the use of resources exclusively for peaceful purposes; the equitable sharing of resources; the need to carry out activities for the benefit of humankind as a whole, irrespective of their geographical location, with particular consideration for the interests and needs of developing countries; and the subjection of activities of exploration and exploitation to an international regime. 63

The recognition of MGRs as the CHH seems to be, for developing States, a sine qua non requirement to accept the regulation. But at the same time, industrialised States reject it out of hand. Since this issue is generating profound controversy, the main strategy of the IGC President has been to try to negotiate its substantive elements but with no explicit reference to the CHH. 64 This can be seen as a pragmatic position, focusing more on consequences than on principles. 65 The idea is that such an omission may facilitate further progress in the negotiation and perhaps obtain certain concessions on the part of both industrialised and developing States. Moreover, not mentioning the CHH would avoid the identification between the regime under negotiation and the regime of the Area and its resources. 66

Given that the failure to mention the legal status of MGRs is considered unacceptable by several delegations, 67 and since the omission strategy has not proven effective to date, an alternative that has been suggested is to change the framework by declaring the conservation and sustainable use of marine biodiversity of ABNJs as a Common Concern of Humankind (CCH) instead. 68 This possibility could be part of the ‘practical’ or ‘possibly hybrid’ solution that Iceland referred to during the Preparatory Commission, Iceland, Iceland’s written submission to the Preparatory Committee established by the General Assembly Resolution 69/292: development of 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 beyond national jurisdiction (2016), 1, http://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/Iceland.pdf.Along these lines, the International Union for Conservation of Nature proposes the following text for the preamble of the Agreement:

‘Aware that the conservation of marine biodiversity is a common concern and the shared responsibility of all States and that States have the obligation to protect and preserve the marine environment in ABNJ and to assist other States to do the same’. 69

The CCH approach was identified as one requiring further discussion by the Preparatory Committee established by General Assembly resolution 69/292. 70 Its legal implications would certainly not be equivalent as those of the CHH. 71 However, as has been pointed out, it may succeed in providing a global framework for approaching the conservation and sustainable use of BBNJ by emphasising certain principles of interest to States, such as intergenerational equity, international solidarity, shared decision-making and accountability, and benefit- and burden-sharing through financial cooperation. 72 One potential positive impact of mentioning the CCH may also be that it links the regime under negotiation with others also facing global problems, such as the ‘conservation of biological diversity’, 73 ‘change in the Earth’s climate and its adverse effects’ 74 or ‘the atmospheric pollution and atmospheric degradation’, 75 , Preamble, para. 3, ILC, Report on the work of the seventy-second session (2021), (A/76/10), Chapter IV, Protection of the Atmosphere. in so far as the concept of CCH ‘is particularly suited to environmental problems, which do not respect national boundaries’. 76 Although this would offer a powerful way forward in the negotiations, huge efforts will be required to convince certain delegations to accept it, as some of them have identified the use of alternative concepts as a ‘red line’. 77

4.2 Differential and contextual norms

A second strategy that might facilitate the agreement has been to pay special attention to the existing differences between States by designing and incorporating different types of norms. This is a strategy that has recently been used, for example, in the Paris Agreement on Climate Change 2015. 78 Thus, the future Agreement includes in some of its wording different types of norms that can be classified, in line with the categorisation developed by Daniel B. Magraw, as absolute, differential, and contextual norms. 79 According to Magraw, an absolute norm is a norm that provides identical treatment to all countries. In the BBNJ Agreement, this would be the case, for example, of the norm potentially included in art. 13.5, which requires States Parties to ‘submit reports to the Conference of the Parties about their utilisation of marine genetic resources in ABNJ’. 80 In norms of this kind, no differential treatment is applied. In contrast, the norm that requires States Parties to ‘provide, facilitate, promote or secure’ (still to be defined) ‘access to and the transfer of marine technology, and capacity-building for developing States Parties’ (art. 44.1) could be considered a differential norm 81 or, according to this author, a norm that provides different standards for one set of States and others. In general, in the Agreement, this type of norm is aimed at developed States, for the benefit of developing States. They could be used to acknowledge the existence of different capabilities or geographic characteristics in order to provide some compensation in the regulation. As a result, a certain dose of equity and compensation would be reflected in the treaty, as generally required by multilateral environmental treaties and by the principle of ‘common but differentiated responsibilities’. In this kind of norm, ‘disputes may arise regarding whether or not a country qualifies as ‘developing” 82 This has been fairly evident in the BBNJ negotiations since, in return, many delegations have expressed their interest in maintaining a certain margin of interpretation. For example, the European Union and its Member States propose maintaining the objective of building the capacity of developing States in art. 7, but defining them not as ‘least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States and developing middle-income countries’, but rather as ‘developing States that might need and request technical assistance’. 83

Finally, according to Daniel B. Magraw, a contextual norm is a norm that provides identical treatment to all States affected by the norm but the application of which requires or permits the consideration of some characteristics that might differ from country to country. One such case may be the norm that requires States Parties ‘[as far as practicable] to assess the potential effects of planned activities under their jurisdiction or control’ (art. 22.1); or similarly, the one that requires States Parties to take the necessary measures, ‘as appropriate’, to ensure the objectives of the Agreement (among others, arts. 10, 11, 13 or 53.1). This type of norm ‘typically involves balancing multiple interests and characteristics’ 84 and its indeterminacy can be advantageous for several reasons. 85 Firstly, because it is easier to reach agreement on a contextual norm than on a more precise one. Secondly, because they serve to recognise that a certain situation is a legitimate concern of all or part of the international community and can lead to the subsequent formulation and acceptance of more precise norms. Thirdly, because their indeterminacy may lead to flexibility in interpreting and applying the norm.

4.3 Due diligence obligations

Closely related to the above, the introduction of due diligence obligations in the text could also serve to facilitate agreement between the negotiators. Due diligence obligations are contained within norms ‘that prescribe or express the expectation of a certain standard of conduct, rather than of result. It is generally a standard of reasonableness (and appropriateness) responding both to the complexity of the challenge at hand and the large and shifting diversity of states’ national circumstances’. 86

Due diligence obligations can be explicitly or implicitly incorporated 87 and, from a material perspective, they can be divided into two types: obligations of a procedural type and obligations relating to the States’ institutional capacity. 88 The former include obligations to notify or report certain events and to warn other States, obligations to consult or cooperate with other States or actors, as well as obligations to conduct environmental impact assessments. Examples of the latter include obligations to take legislative or administrative measures. Some of the proposed wording in the Revised draft text contains both kinds of due diligence obligations. Article 22.1, for example, incorporates a procedural due diligence obligation when it establishes that ‘States Parties shall [, as far as practicable,] assess the potential effects of planned activities under their jurisdiction or control [on the marine environment] [in accordance with their obligations under articles 204 to 206 of the Convention]’. However, article 10.3 incorporates a due diligence obligation relating to States’ institutional capacity when it stipulates that ‘States Parties shall take the necessary legislative, administrative or policy measures, as appropriate, to ensure that ex situ access to marine genetic resources within the scope of this Part is free and open [. . . ]’.

Due diligence, as a ‘requirement to behave diligently’, 89 can constitute a ‘bridge principle between law and other spaces of normativity’, facilitating ‘dealing with uncertainty in the face of a plurality of actors which are diverse’. 90 Thus, due diligence enables us to consider ‘varied situatedness and capacities of actors’, thereby allowing ‘the grading of legal obligations and concomitant legal responsibility based on distinct degrees of risk proximity’. 91 As long as ‘some of the antagonist interests can remain hidden and unreconciled’, the normative openness of the due diligence standard has the potential to facilitate treaty negotiations. 92

4.4 Internal soft law

The incorporation of internal soft law in the treaty –that is, soft law provisions contained within a legally binding instrument 93 –is a fourth strategy contained in the Revised draft text. The BBNJ Agreement includes proposals of this kind of provision, for example, when it establishes that the States Parties that have collected, accessed or used marine genetic resources of the ABNJs ‘may share’ (as an alternative to ‘shall share’) the benefits arising therefrom (art. 11.1); or when it establishes that the environmental impact assessment reports ‘may include’ certain information (art. 35.2). Other examples of softness are incorporated in provisions that require States Parties to ‘encourage’ certain behaviours, such as adopting measures supporting the conservation and management objectives of the measures adopted and area-based management tools (art. 20.5) or becoming Parties and adopting laws and regulations consistent with the Agreement (art. 56) regarding non-parties to the Agreement.

Some delegations seem to have identified the potential impact of the inclusion of soft law in the BBNJ Agreement. For instance, in its commentaries to article 5, the Core Latin American Group proposes differentiating between ‘the principles under a normative status (...) and approaches of an informative character as implementation guides’. 94 These ‘soft’ obligations, in general, provide flexibility by including exhortations, requirements or even recommendations to act in a certain way. The aim of incorporating them would be to condition the behaviour of the actors according to the Agreement’s objectives. However, they do not entail real obligations, nor does their breach generate liability.

4.5 Reducing the scope of the treaty

Finally, a fifth formula that can be identified in BBNJ negotiations is that of reducing the scope of the treaty by leaving certain elements out of the regulation. At a time when the negotiations seem far from reaching an agreement, this may be a way to facilitate reaching a consensus over a narrower treaty. Here, there would be two possibilities: either leaving some elements simply unregulated, or explicitly agreeing their regulation in a future agreement or decision. Both options could serve to unblock discussions over elements whose resolution does not prevent States from addressing the rest of provisions. The option of leaving certain issues unregulated has already been suggested in the case of the debate over the legal status of MGRs. As some delegations highlight, its determination is not a precondition for addressing other issues, such as benefit-sharing. 95 It has also been suggested with respect to the treatment of intellectual property rights (art. 12). 96 This decision has, however, an important limitation and an inherent problem. The limitation is the decision of the UNGA to address the negotiation of the instrument as an agreed package of elements that must be addressed together and as a whole. Although there was certain opposition to including some of the elements in the package, 97 once established, there will be no new instrument without reaching an agreement on all of them. As a consequence, it is not possible to leave a whole section out of the Agreement. The inherent problem of this strategy is that not answering certain issues, in practice, could be equivalent to taking sides for the position favourable to the status quo, something attractive to some States, but not to others, and definitely not in the public interest.

Therefore, a second option would be to agree explicitly that certain controversial issues will be regulated later outside the treaty, either through a complementary agreement or a future decision by the competent body established by the Agreement itself. The former option would imply the use of a frequent technique in multilateral environmental treaties, the convention-protocol model, 98 consisting of dividing the regulation into a framework agreement with the general principles, and successive protocols with the technical aspects. In practice, however, this would involve adding a supplementary technical agreement to the implementing Agreement under negotiation, which seems a rather complex formula that should only be considered as a last resort. The latter option, regulating certain issues through a future decision of the competent body, has already been proposed by the European Union and its Member States in the case of the criteria for identifying areas requiring protection according to art. 16. In their opinion, the criteria ‘may be developed as necessary by the Scientific and Technical Body for consideration by the Conference of the Parties’:

‘The EU and its Member States are not opposed to keeping flexibility regarding the criteria and making sure the process is time-proof. However, whether the criteria are in the body of the text or in an annex, changing (amending/revising/ . . . ) them would require a modification of the treaty, which, for many States would be a very heavy procedure. We are suggesting this ‘development’ to take place outside the treaty, as a lighter procedure, hence our proposal for ‘guidance”. 99

This strategy is likely to be adopted for certain technical aspects. Unfortunately, most of the controversy concerns the core principles and approaches of the regime and not only the technical aspects. Only if a certain consensus is reached on the key principles could the detail of the regulation be left for a complementary agreement or decision of a technical nature.

5 Beyond Pragmatism: The Responsibility to Explore Alternative Avenues

The above formulas and strategies can contribute to bringing negotiators’ positions closer together, since they recognise their different situations and introduce flexibility in the obligations created by the regulation. However, some of these strategies also involve some risks: the incorporation of many due diligence obligations in the treaty can lead to the strictness of the regime being diluted by excessively increasing State discretion; 100 an abuse of internal soft law dispositions has the risk of obtaining a shallow and ineffective treaty, which is why several delegations have expressed their preference for keeping hard obligations; 101 and reducing the scope of the treaty also entails the risk of losing the momentum of the negotiation, postponing part of the regulation for a future instrument that may never come. Above all, what all these formulas have in common is that they are short range and essentially pragmatic. Their main objective is to facilitate the Agreement through the accommodation of the different States’ interests at stake, but to a large extent all these formulas tend to sacrifice both the hardiness and the ambition of the regulation, especially if the future treaty eventually incorporates several of them.

Faced with this scenario, this paper defends that, since the conservation and sustainable use of BBNJ is a global public interest and States are here ‘the interpreters of the demands of the international community’, 102 they have the responsibility to find novel solutions for the purpose of reaching an agreement that do not imply reducing its ambition and its effectiveness. As has been shown, the negotiations of the BBNJ Agreement have become a quid pro quo exercise, an arena in which States try to ensure their expectations about marine biodiversity of ABNJ, focusing their efforts, essentially, on access and benefit sharing. This is the reason why they are trying to replicate formulas that fit in areas within national jurisdiction, where there is a ‘provider’, but not in ABNJ, where the provider is the ocean. 103 Achieving an ambitious regulation, on the other hand, will only be possible if States reassume their true role in the process –that of interpreters of general interest –and, regarding BBNJ, not that of owners, but custodians. Then, differences between States would diminish in relevance, to the extent that all are in ‘the same boat’. 104

This change of perspective could happen, on the one hand, by going back to basics. As some scholars have claimed, there is a transformational opportunity to reconceptualize the ocean as a ‘global commons’. 105 This could provide an alternative to legal concepts like the CHH which, in practice, block negotiations. In contrast, the idea of global commons ‘finds resonance with moral and political concepts that capture a spirit of connectivity and shared benefit as well as the imperative of collective action’. 106 An ocean truly conceived as a global commons –not as a state-governed public good or a private good 107 –would return to the States the role that corresponds to them, that of the guarantors of the public interest, and would dilute their individual demands based on expectations on the use of this shared ocean.

On the other hand, changing States’ role also requires us to place the environment at the very centre of the future regulation. That would be possible by recognizing the intrinsic value of the oceans, and of BBNJ in particular. In this regard, some recent proposals have examined the possibility of designing the governance of BBNJ from a ‘Rights of Nature perspective’. 108 Rights of Nature have been essentially recognised in many laws at domestic level but have also been discussed regionally and globally. 109 The core premise is that nature has inherent rights to exist, evolve, and fulfil ecological functions 110 and that humanity has an obligation to protect it. 111 Thus, introducing this perspective into BBNJ negotiations would imply a new ‘relationship between humans and the global ocean by treating BBNJ as a rights-bearing entity, rather just as a resource to be exploited’, 112 and it could promote a reinterpretation of the rights and responsibilities of the different actors involved 113 A non-anthropocentric understanding of BBNJ could, among other things, encourage progressive interpretations of existing principles and the development of new principles; underpin strict standards for EIAs; encourage the adoption of ambitious management measures; provide a new framework for MGRs; and foster stronger participation of non-State actors in conservation and sustainable use. 114

This change of perspective could transform the current zero-sum negotiation into a negotiation in which the achievements add up for all. In this new spirit, finding formulas for improving marine research capabilities would be much easier as it is a shared interest, not only of States, but of international organisations, industry, and NGOs as well. As the UN Secretary General highlighted:

‘Increasing scientific knowledge, developing research capacity and transferring marine technology will be essential to transforming humankind’s relationship with the ocean, recovering better from the COVID-19 pandemic and achieving the Sustainable Development Goals’. 115

Although everything indicates that the final text of the BBNJ Agreement will include the obligation of States Parties to promote international cooperation in marine scientific research, 116 States as custodian-negotiators would likely redouble their efforts to include provisions for building the necessary international and equitable structures to develop it. There are already interesting proposals for exploring the possibility of establishing, for example, a shared international research fleet, an international mobile deep-sea station, or a global research institute. 117

Likewise, mechanisms for implementing marine global governance negotiated from a general interest perspective would probably pay more attention to reinforcing mechanisms about monitoring, control and surveillance in the future Agreement. Scholars have highlighted the need to include strong provisions in this regard. 118 A pro-active attitude from negotiators as custodians of BBNJ could promote and strengthen collaborative governance with other universal and regional legal regimes, like the regime of the Area or the ATS. The membership of some States in previous institutional frameworks, then, may cease to be perceived in competitive terms and may foster true cooperation between them in order to fully protect BBNJ. 119

6 Conclusion

The increasing environmental degradation of the oceans and the dramatic loss of biodiversity, especially in ABNJ, have highlighted the inadequacy of current legal and institutional frameworks. The oceans, their ecosystems, and also the benefits they provide for humanity are facing threats today ‘from a wide range of anthropogenic pressures, including climate change, unsustainable fishing, invasive species, pollution and hazardous substances (including plastics), anthropogenic noise, coastal development and oil and gas extraction’. 120 Given the intrinsic value of the marine environment, and since a ‘well-functioning natural system and a habitable climate are the foundations of people’s good quality of life’, 121 the international community must make every effort to protect the oceans.

We are now leaving a sort of ‘foundational period’ of special attention to the marine environment that offers a unique context to achieve this. Firstly, there is the global commitment to achieve SDG 14: ‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’, set out in the 2030 Agenda for Sustainable Development. Secondly, two important regulations affecting the marine environment are under negotiation: on the one hand, the Regulations on exploitation on mineral resources in the Area; and, on the other hand, the future BBNJ Agreement, which is expected to protect biodiversity located in the 62% of the surface of the oceans. Moreover, the period 2021–2030 is covered both by the United Nations Decade of Ocean Science for Sustainable Development 122 and the United Nations Decade on Ecosystem Restoration. 123

The COVID-19 pandemic has slowed down or even stopped some of these processes and it is very likely that some of the goals that were set may not be achieved within the established deadlines. However, this period of forced reflection can also be seen as an opportunity to reverse certain undesirable dynamics, such as the negotiation of the BBNJ Agreement from the perspective of individual interests and expectations (mainly, over the benefits derived from the exploitation of MGRs). Thus, the COVID-19 pandemic may have provided some extra time to change course and avoid a minimum agreement that would probably not have satisfied anyone, and would not have met its primary goal of stopping marine biodiversity loss.

Even though this paper has identified certain strategies and formulas in the Revised draft text that might facilitate the Agreement, it also warns of the costs and risks that some of them entail. The international community can take advantage of this involuntary standby situation to explore alternative ways forward to reach the crucial BBNJ Agreement but maintaining, at the same time, the ambition of a treaty that could constitute ‘a major regulatory framework in earth system governance and could add more complexity and robustness to existing global ocean governance’. 124 Thus, this paper has highlighted the responsibility of States to find novel solutions to reach the Agreement that do not imply reducing its ambition and effectiveness. To fulfil this responsibility, States will have to reassume their real role in the process –that of interpreters of general interest –and, regarding BBNJ, that of custodians. Reconceptualising the oceans as a global commons and recognising their intrinsic value may be the way to achieve this.

These efforts are not incompatible with the adoption of some of the pragmatic formulas or strategies included in the Revised draft text which aims above all to accommodate the different States’ positions: as the President of the IGC pointed out, the objective of the BBNJ intergovernmental conference is to ‘build a fair, balanced and effective instrument’ and ‘a fair outcome is one where the various interests and concerns are taken into account’. 125 Certainly, overcoming the multiple disagreements between the delegations needs some flexibility and it will likely require introducing a certain degree of pragmatism and openness in the regulation. But the States’ assumption of their responsibility also implies focusing the negotiation on what is essential, which is to conserve BBNJs. If they are not conserved, in the future there will be nothing to use or share.

As some delegations have pointed out, the objective of concluding a treaty with universal participation should not be sacrificed because of haste. 126 Nor should objective of achieving a treaty that is ambitious and effective.

Footnotes

Acknowledgments

This work is part of the Research Project ‘Biodiversity, climate and global public health: Interactions and challenges for international law -BIOCLIHEALTH-’ (Ref. PID2020-117379GB-I00) funded by the MCIN.

Food and Agriculture Organisation of the United Nations, Common Oceans-ABNJ. Global sustainable fisheries management and biodiversity conservation in areas beyond national jurisdiction (2017),

Wright, G., Rochette, J., Gjerde, K., Seeger, I. (2018). The long and winding road: negotiating a treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. IDDRI, Studies 08, 1-82, 14,

Ibid.

Blasiak, R. et al. (2018). Corporate control and global governance of marine genetic resources. Science Advances, 1-7, 1, DOI:10.1126/sciadv.aar5237

In particular, the 1976 Convention for the Protection of the Mediterranean Sea Against Pollution (Barcelona Convention) and the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).

Nickels, P. P. (2020). Revisiting Bioprospecting in the Southern Ocean in the Context of the BBNJ Negotiations. Ocean Development and International Law 51 (3), 193-216, 194, DOI:

Blasiak, R. et al. (2018), note 4.

Report of the Second Meeting of the Conference of the Parties to the Convention on Biological Diversity, Decision 11/10: Conservation and Sustainable Use of Marine and Coastal Biological Diversity, 30 November 1995, para. 12.

UNGA Resolution of 17 November 2004 (A/RES/59/24), para. 73.

See: UNGA Resolutions of 24 December 2011 (A/RES/66/231), preamble, para. 2; 27 July 2012 (A/RES/66/288), para. 162; 11 December 2012 (A/RES/67/78), para. 181; 9 December 2013 (A/RES/68/70), para. 198; and 19 June 2015 (A/RES/69/292).

Harden-Davies, H. et al. (2020). Rights of Nature: perspectives for Global Ocean Stewardship. Marine Policy 122, 1-11, 1, DOI:

UNGA Resolution of 24 December 2017 (A/RES/72/249), para. 1.

Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, (A/66/119), 30 June 2011.

Revised draft text of an 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, (A/CONF.232/2020/3), 18 November 2019.

See: UNGA, Draft Decision Submitted by the President of the General Assembly 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. 74th Session, agenda item 74(a), 9 March 2020 (A/ 74/L.41); UNGA Resolution of 31 December 2020 (A/RES/75/239), para. 258; and UNGA Resolution of 9 June 2021 (A/RES/75/570).

Tiller, R., De Santo, E., Mendenhall, E. and Nyman, E. (2019). The once and future treaty: Towards a new regime for biodiversity in areas beyond national jurisdiction. Marine Policy 99, 239-242, 241. DOI:

See: Vázquez Gómez E. M. (2020). El equilibrio entre los derechos y deberes de los Estados ribereños y los de otros Estados interesados respecto de los recursos marinos vivos. In J.M. Sobrino Heredia, G. A. Oanta (Coords.) La construcción jurídica de un espacio marítimo común europeo. Barcelona: Bosch, 301-330, 320-328.

Abegón Novella, M. (2020). Hacia una regulación sobre la conservación y el uso sostenible de la diversidad biológica marina de las zonas situadas fuera de la jurisdicción nacional: el futuro acuerdo como un tratado de protección de intereses generales. Revista Catalana de Dret Ambiental 11 (2), 1-50. DOI: https://doi.org/10.17345/rcda2919.

Rodrigo, Á. J, and Abegón, M. (2017). El concepto y efectos de los tratados de protección de intereses generales de la Comunidad internacional. (2017). Revista Española de Derecho Internacional 69 (1) 167-193, 170. DOI:

UNGA Resolution of 25 September 2015 (A/RES/70/1) ‘Transforming our world: the 2030 Agenda for Sustainable Development’.

According to the mandate of the UNGA contained in its Resolution of 24 December 2017 (A/RES/72/249), para. 8 and 9.

In this respect, it is particularly relevant the provisional conflict clause contained in art. 4, para. 3 of the Revised draft text, as well as the interpretative clause of art. 4, para. 1.

About the risks of overlapping between the future BBNJ Agreement and the current ATS, see: Oude Elferink, A. G. (2019). Exploring the Future of the Institutional Landscape of the Oceans Beyond National Jurisdiction. Review of European, Comparative and International Environmental Law 28 (3), 236–243, DOI: . On the possibilities of normative and institutional integration of both regimes, see: Nickels, Ph. P. (2020), note 6, 202-207.

Revised draft text, arts. 48, 49 and 50.

Rodríguez Carrión, A. J. (1987). Un supuesto de superación del contractualismo en Derecho Internacional: los tratados colectivos. In VV.AA. Política y Sociedad. Estudios en Homenaje a Francisco Murillo Ferrol. Madrid: CIS/CEC, 325-346, 330.

Wright, G., Rochette, J., Gjerde, K., Seeger, I. (2018), note 2, 47-54.

See: Humphries, F. and Harden-Davies, H. (2020) Practical policy solutions for the final stage of BBNJ treaty negotiations. Ma rine Policy 122, 1-7. DOI:

See: Leary, D. (2019). Agreeing to disagree on what we have or have not agreed on: The current state of play of the BBNJ negotiations on the status of marine genetic resources in areas beyond national jurisdiction. Marine Policy 99, 21-29. DOI:

For instance, Algeria, on behalf of the African Group, has even claimed that ‘adopting a new instrument without this principle [the common heritage of humankind] would be like giving life to a treaty of this importance without a soul’, United Nations, Delegates Begin Text-Based Deliberations for First-Ever Treaty on Managing Marine Biodiversity beyond National Jurisdiction Areas, at Start of Conference Session (19 August 2019),

On this point, the European Union’s delegate affirmed that ‘While he agreed with the Group of 77 that access to marine genetic resources should be open, [. . . ] [that] did not mean such access should be unregulated. Elaborate provisions on how access would be addressed in the instrument are not needed, as general rules will apply in default’, United Nations, Principles, Objectives of Benefit-Sharing among Issues Discussed in Conference to Draft Marine Biological Diversity Treaty (12 September 2018)., .

Revised draft text, art. 10. For example, the European Union and its Member States, as well as the United States, have proposed a restricted Access, Textual proposals submitted by delegations by 20 February 2020 (A/CONF.232/2020/3), 75 and 79; Indonesia, on the contrary, advocates for a more ambitious regulation, 76.

Antarctic Treaty, art. III (1) (c).

UNCLOS, art. 140.2.

Revised draft text, art. 11. See: Statement by the President of the Conference at the Closing of the First Session, A/CONF.232/2018/7 (20 September 2018), 23; and Kantai, T. et al. (2019). Summary of the Third Session of the Intergovernmental Conference (IGC) on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 19–30 August 2019. Earth Negotiations Bulletin 25 (218), 1–24, 8, . According to the European Union and its Member States, only non-monetary benefits should be distributed, Textual proposals submitted by delegations by 20 February 2020, in response to the invitation by the President of the Conference in her Note of 18 November 2019 (A/CONF.232/2020/3): Article-by-article compilation, 89; and for the Republic of Korea, the sharing should on a voluntary basis, 94

Revised draft text, art. 12. See, for example, Israel observations, Textual proposals submitted by delegations by 20 February 2020, 102.

Report of 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 and Co-Chairs’ summary of discussions, 13 June 2012, (A/67/95), 6, para. 20. See also: Ardron, J. A., Rayfuse, R., Gjerde, K. M., Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: what can be achieved using existing international agreements?. Marine Policy 49, 98-108, 103, DOI: 10.1016/j.marpol.2014.02.011.

About the implications and possibilities of the mandate of the UNGA to ‘not undermine’ relevant existing legal instruments and frameworks and relevant global, regional, and sectoral bodies, see: Scanlon, Z. (2017). The Art of ‘Not Undermining’: Possibilities Within Existing Architecture to Improve Environmental Protections in Areas Beyond National Jurisdiction. ICES Journal of Marine Science 75 (1), 405–416, ; and Friedman, A. (2019). Beyond ‘not undermining’: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction. ICES Journal of Marine Science 76 (2), 452-456. DOI: https://doi.org/10.1093/icesjms/fsy192. Some considerations about the ambiguity of the term also in: Mendenhall, E., De Santo, E., Nyman. E, and Tiller, R. (2019). A soft treaty, hard to reach: The second inter-governmental conference for biodiversity beyond national jurisdiction. Marine Policy 108, 1-8, 2. DOI: 10.1016/j.marpol.2019.103664

Revised draft text, esp. art. 15.

See: Chair’s overview of the third session of the Preparatory Committee. Preparatory Committee established by General Assembly resolution 69/292: Development of 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, 12,

Warner, R. (2018). Oceans in transition: incorporating climate-change impacts into environmental impact assessment for marine areas beyond national jurisdiction. Ecology Law Quarterly 45, 31-51, 39, DOI:

Revised draft text, art. 22. See the European Union allegations as an example of the first position, Textual proposals submitted by delegations by 20 February 2020, 219; and Senegal’s observations as representatives of the second one, 221.

Revised draft text, art. 29.

See, especially, Revised draft text, art. 38.

See, for example: United Nations, Adopting Two Texts on Oceans, Seas, General Assembly Also Tackles Sustainable Management, Conservation of Marine Life beyond National Jurisdiction (5 December 2017),

See: Vierros, M.K., and Harden-Davies, H. (2020). Capacity Building and Technology transfer for improving governance of marine areas both beyond and within national jurisdiction. Marine Policy 122, DOI:

Revised draft text, art. 44.

In this sense, see the observations made by European Union and its Member States, Textual proposals submitted by delegations by 20 February 2020, 306.

Revised draft text, art. 8.

Iceland, for example, proposed the inclusion a new art. 6bis in order to ‘clarify that the BBNJ Agreement is not intended to deal with regular fisheries management or undermine the existing international legal framework for fisheries’, Textual proposals submitted by delegations by 20 February 2020, 57. In the same sense, the European Union and its member States, 64. In the opposite view, for instance, Indonesia, Ibid.

UNGA Resolution of 24 December 2017 (A/RES/72/249), para. 6, 7 and 10.

Chair’s overview of the third session of the Preparatory Committee, note 39.

Revised draft text, arts. 48 to 50.

See: Shi, Y. (2020). Settlement of Disputes in a BBNJ agreement: Options and analysis. Marine Policy 122, DOI: https://doi.org/10.1016/j.marpol.2020.104156; and Jiménez Pineda, E. (2021). The Dispute Settlement System of the Future Third UNCLOS Implementation Agreement on Biodiversity beyond National Jurisdiction (BBNJ): a Preliminary Analysis. Paix et Sécurité Internationales 9, 1-18, .

Revised draft text, art. 52. Proposals goes from the transparent and voluntary funding defended, for example, by the United States, Textual proposals submitted by delegations by 20 February 2020, 367, to the funding model based on voluntary and mandatory contributions proposed by Indonesia, Íbid., 363.

UNGA Resolution of 24 December 2017 (A/RES/72/249), para. 7. Emphasis added.

Lee, R. (2021). The Journey to realisation. In Nordquist, M. H., and Long, R. (eds). Marine Biodiversity of Areas beyond National Jurisdiction. Leiden: Brill/Nijhoff, 3-6, 5. See also O’Brien, E., and Gowan, R. (2012) What Makes International Agreements Work: Defining Factors for Success. New York: Center of International Cooperation, New York University, 1-38,

De Santo, E. M. et al. (2019). Protecting biodiversity in areas beyond national jurisdiction: An earth System governance perspective. Earth System Governance 2, 1-7, 2, DOI: .

Resolution of 24 December 2017 (A/RES/72/249), para. 17.

Leary, D. (2019), note 28, 24. In the same sense, Mendenhall, E. (2019), note 37, 3.

Revised draft text, art. 5.

Scovazzi, T. (2007). The Concept of Common Heritage of Mankind and the Genetic Resources of the Seabed beyond the Limits of National Jurisdiction. Agenda internacional 25, 11-24, 11, .

De Lucia, V. (2020). The Question of the Common Heritage of Mankind and the Negotiations towards a Global Treaty on Marine Biodiversity in Areas beyond National Jurisdiction: No End in Sight? McGill Journal of Sustainable Development Law 16 (2), 140-157, 143, .

See: arts. 137 UNCLOS and the subsequent articles, regarding the Area and its resources, as adapted in the 1994 Part XI Agreement; as well as art. 11 of the Agreement governing the activities of States on the Moon and other Celestial Bodies (1979). Regarding the BBNJ instrument, see: The Group of 77 and China, Development of 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-Group of 77 and China’s Written submission 1, para. 1: .

De Lucia, V. (2020), note 62, 155.

Tladi, D. (2015), The Common Heritage of Mankind and the Proposed Treaty on Biodiversity in Areas Beyond National Jurisdiction: The Choice between Pragmatism and Sustainability. Yearbook of International Environmental Law 25 (1), 2015, 113-132, DOI: .

See: Rovere, M. (2018-2019). The Common Heritage applied to the resources of the seabed. Lessons learnt from the exploration of deep-sea minerals and comparison to marine genetic resources. Marine Safety and Security Law Journal 5, 78-98, .

See, for example: South Africa’s comments on art. 5, Textual proposals submitted by delegations by 20 February 2020, 48.

See: UN biodiversity, Prep Com Files, Bowling, Ch., Pierson, E. and Ratté, S. (2016). The Common Concern of Humankind: A Potential Framework for a New International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity in the High Seas, 1-15, .

Textual proposals submitted by delegations by 20 February 2020, 5.

Chair’s overview of the second session of the Preparatory Committee, 13.

See: Cardesa-Salzmann, A. (2015). Desarrollo sostenible, preocupación común de la humanidad y bienes públicos globales. In Bouza, N., García, C., and Rodrigo, Á. J (Dirs.). La gobernanza del interés público global. XXV Jornadas de la Asociación Española de Profesores de Derecho internacional y Relaciones Internacionales. Barcelona: Tecnos, 374-381, 377.

Bowling, Ch., Pierson, E. and Ratté, S. (2016), note 68, 1.

CBD, Preamble, para. 3.

United Nations Framework Convention on Climate Change, Preamble, para. 1.

Text of the draft guidelines on the protection of the atmosphere

Bowling, Ch., Pierson, E. and Ratté, S. (2016), note 68, 3.

South Africa expressed regarding the CHH that it ‘does not support other versions of text to replace this or additional text to qualify it’, Textual proposals submitted by delegations by 20 February 2020, 48.

See: Rodrigo, Á.J. (2018). El Acuerdo de París sobre el Cambio Climático: un nuevo tipo de tratado de protección de intereses generales. In Borràs Pentinat, S. and Milenka Villavicencio Calzadilla, P. (eds), El Acuerdo de París sobre el cambio climático: ¿un acuerdo histórico o una oportunidad perdida?: análisis jurídico y perspectivas futuras. Madrid: Thompson Reuters Aranzadi, 69-98.

Barstow Magraw, D. (1990). Existing Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms. Colorado Journal of International Environmental Law and Policy 1, 69-99, 73-76, https://heinonline.org/HOL/LandingPage?handle=hein.journals/colenvlp1&div=5&id=&page= .

Other obligations of this kind can be identified in arts. 16.1, 18.1, 21.1 and 26.1 of the Revised draft text.

Some other differential norms can be identified in arts. 11.4 (d), 11.4 (f) of the Revised draft text.

Barstow Magraw, D. (1990), note 79, 73.

Textual proposals submitted by delegations by 20 February 2020, 59 (emphasis added). In the same way, the International Union for Conservation of Nature’s comments, 63.

Barstow Magraw, D. (1990), note 79, 74.

Ibid.

Voigt, Ch. (2021) Due diligence: Crossing the divide between National Sovereignty and International Cooperation, abstract submitted to the 10^th Annual Cambridge International Law Conference.

Ibid. See also: ILC Study Group on Due Diligence in International Law, ‘Draft Study Group First Report’ in International Law Association Report of the Seventy-Sixth Conference (Washington DC 2014) (International Law Association, London 2016) 947.

Peters, A., Rieger, H., Kreuzer, L. (2020). Due diligence: the risky risk management tool in international law. Cambridge International Law Journal 9 (2), 121-136, 124. DOI: .

Ibid., 122.

Ibid., 123.

Ibid., 126.

See: Chinkin, Ch. (2000). Normative Development in International Legal System. In D. Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, Oxford University Press, 24; and D’Aspremont, J. (2008). Softness in International Law: A Self-Serving Quest for New Legal Materials. European Journal of International Law 19, 1075-1093, esp. 1081 and following. DOI: 10.1093/ejil/chn057

Textual proposals submitted by delegations by 20 February 2020, 45 (emphasis added).

For example: European Union and Member States, Development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of various areas national jurisdiction (BBNJ process)- written submission of the EU and its Member States. Marine genetic resources, including questions on the sharing of benefits (22 February 2017) para. 1, http://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/EU_Written_Submission_on_Marine_Genetic_Resources.pdf . Along the same lines, Norway, Preparatory Committee established by General Assembly Resolution 69/292: development of an international legally binding instruments 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. Comments by Norway, 6, .

See, for example, the proposals to delete art. 12 made by Israel, Republic of Korea or the United States of America, Textual proposals submitted by delegations by 20 February 2020, 102-104.

It has been pointed out, for instance, that little meaningful evidence supported commercial interest in MGR of ABNJ in order to justify their inclusion on the package deal: Leary, D. (2018-2019). Marine Genetic Resources in Areas beyond National Jurisdiction: Do We Need to Regulate Them in a New Agreement?. Maritime Security and Safety Law Journal 5, 22-47, ; Leary D. (2019), note 28, 21.

Barrett, S. (2005), Environment and Statecraft: The Strategy of Environmental Treaty-Making. Oxford: Oxford Scholarship Online, 147. DOI:10.1093/0199286094.001.0001.

Textual proposals submitted by delegations by 20 February 2020, 145 (emphasis added).

Peters, A., Rieger, H., Kreuzer, L. (2020), note 88, 134.

See, for example, the comments to art. 11 made by Indonesia: Textual proposals submitted by delegations by 20 February 2020, 90.

Rodríguez Carrión, A. J. (1987), note 25, 330.

Harden-Davies, H. et al. (2020), note 11, 7.

Ibid.

Claudet, J., Amon D. J, and Blasiak, R. (2021). Transformational opportunities for an equitable ocean commons. Proceedings of the National Academy of Sciences 118 (42), 1-5. DOI: https://doi.org/10.1073/pnas.2117033118 . See also: Brodie Rudolph, T. et al. (2020). A transition to sustainable ocean governance. Nature Communications 11, 1-14, https://www-nature-com-s.web.bisu.edu.cn/articles/s41467-020-17410-2.pdf; and Werle, D., et al. (2019). Looking Ahead: Ocean Governance Challenges in the TwentyFirst Century. In P. R. Boudreau et al. (eds). The Future of Ocean Governance and Capacity Development. Leiden: Brill Nijhoff, 533–542. DOI: https://doi.org/10.1163/9789004380271_094 . Thinking ‘beyond existing legal and institutional frameworks’ is a shared claim by the scientific community, Tessnow-Von Wysocki, I., Vadrot, A.B.M. (2020). The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review. Frontiers in Marine Science 7, 1-26, 20, DOI: .

Claudet, J., Amon D. J, and Blasiak, R. (2021), note 105, 3.

Brodie Rudolph, T. et al. (2020), note 105, 1.

Harden-Davies, H. et al. (2020), note 11. See also: Corrigan, D.P. and Oksanen, M. (eds.) (2021). Rights of Nature. A Re-examination. London: Routledge; and Kersten, J. (2017). Can Nature have rights?. RCC Perspectives 6, 9-14, .

UNGA Resolution of 21 December 2009 (A/RES/64/194).

Harden-Davies, H. et al. (2020), note 11, 3.

Ibid., 5.

Ibid., 6.

Ibid.

Report of the UN Secretary-General ‘Oceans and the Law of the sea’ of 30 August 2021 (A/76/311), para. 60.

Revised draft text, art. 6, para. 2.

Claudet, J., Amon D. J, and Blasiak, R. (2021), note 105, 3.

Cremers, K., Wright, G. And Rochette, J. (2020). Strengthening Monitoring, Control and Surveillance in Areas Beyond National Jurisdiction. STRONG High Seas Project, 1-43, 38, .

Some interpretative possibilities in this respect are proposed in: Scanlon, Z. (2017), note 37.

Report of the UN Secretary-General (2021), note 115, para. 3.

Report ‘Scientific Outcome of the IPBES-IPCC co-sponsored workshop on biodiversity and climate change’, 2021, 1-232, 4, .

UNGA Resolution of 5 December 2017 (A/RES/72/73).

UNGA Resolution of 1 March 2019 (A/RES/73/284).

De Santo E. M., et al. (2019). Protecting biodiversity in areas beyond national jurisdiction: An earth System governance perspective. Earth System Governance 2, 1-7, 2, DOI: .

Lee, R. (2021), note 56, 5 (emphasis added).

De Lucia, V. (2020), note 64, 155. A certain time extension has been requested, for instance, by Nicaragua: Textual proposals submitted by delegations by 20 February 2020, 403.