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

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 .

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.

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.