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THE NEGOTIATIONS FOR A NEW IMPLEMENTING AGREEMENT UNDER THE UN CONVENTION ON THE LAW OF THE SEA CONCERNING MARINE BIODIVERSITY

Published online by Cambridge University Press:  03 July 2020

Efthymios Papastavridis
Efthymios Papastavridis*
Affiliation:
Researcher, Faculty of Law, and Oxford Martin Fellow, University of Oxford, UK and Fellow, Athens Public International Law Center, [email protected].
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Abstract

This article discusses the current negotiations for an Implementing Agreement under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. It discusses, in particular, the issue of the relationship of the new agreement with existing and future relevant regional instruments and bodies and the need for cooperation and coordination amongst them, the guiding principles of the new agreement, and the question of implementation and enforcement of the new agreement. These issues and the choices that delegations will make respectively highlight the controversy on the underpinning tenet of the agreement, ie between the ‘freedom of the high seas’ and the common heritage of mankind. The article concludes with a pessimistic prognosis that, in general, the agreement will fall short of the expectations that many States and international community have had at the early days of the negotiation.

Keywords

public international lawmarine biodiversityLaw of the Sea ConventionImplementing Agreementmarine protected areasmarine genetic resourcesenvironmental impact assessments
Type
Articles
Information
International & Comparative Law Quarterly , Volume 69 , Issue 3 , July 2020 , pp. 585 - 610
Copyright
Copyright © The Author(s) 2020. Published by Cambridge University Press for the British Institute of International and Comparative Law

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Footnotes

I am grateful to Professor Catherine Redgwell, Dr Ilias Plakokefalos, Dr Andreas Scordamaglia-Tousis, Ms Stephanie Xintara and Mr David Baker for comments on earlier versions of this article. Needless to say, the responsibility for any error or omission lies exclusively with the author. The research leading to this article has received funding from the Oxford Martin School Programme for Sustainable Oceans, Oxford Martin School, University of Oxford and The Prince Albert II of Monaco Foundation.

References

1 See further information at <https://www.un.org/bbnj/>.

2 On 24 December 2017, the UN General Assembly (UNGA) decided by Resolution 72/249 ‘to convene an Intergovernmental Conference, under the auspices of the United Nations, to consider the recommendations of the Preparatory Committee on the elements and to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, with a view to developing the instrument as soon as possible’; see UN A/RES/72/249 <http://undocs.org/en/a/res/72/249>.

3 For an excellent overview of the negotiations up until the end of 2018 see Freestone, D, ‘The UN Process to Develop an International Legally Binding Instrument under the 1982 Law of the Sea Convention: Issues and Challenges’ in Freestone, D (ed), Conserving Biodiversity in Areas beyond National Jurisdiction (Brill 2019) 16–20CrossRefGoogle Scholar. See also on the history of the negotiations Gjerde, KM, ‘Perspectives on a Developing Regime for Marine Biodiversity Conservation and Sustainable Use beyond National Jurisdiction’ in Scheiber, HN, Oral, N and Kwon, M-S (eds), Ocean Law Debates: The 50-Year Legacy and Emerging Issues for the Years Ahead (Brill 2018) 354Google Scholar.

4 See General Assembly Decision to Postpone the fourth session of the Conference (provisionally available as A/74/L.41) (11 March 2020) <https://undocs.org/en/a/74/l.41>.

5 The President of the Conference, Ms Rena Lee, very often characterises the common effort of the delegates during the BBNJ negotiations as ‘all paddling the same canoe’.

6 See 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 (27 November 2019); <https://www.un.org/bbnj/sites/www.un.org.bbnj/files/revised_draft_text_a.conf_.232.2020.11_advance_unedited_version.pdf> (Revised Draft Text).

7 Bioprospecting is not defined in the LOSC and it is difficult to locate a universally agreed definition of the activity. According to de la Fayette, it can be defined as ‘the scientific investigation of living organisms for commercially valuable genetic and biochemical resources’; see de La Fayette, LA, ‘A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction’ (2009) 24 International Journal of Marine and Coastal Law 221, 228CrossRefGoogle Scholar. See also Mossop, J, ‘Marine Bioprospecting’ in Rothwell, D, Elferink, A Oude, Scott, K and Stephens, T (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 825Google Scholar.

8 See inter alia Article 136 of the UN Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 3 (LOSC), according to which this area and its resources are the common heritage of mankind. See also the UN General Assembly Resolution 2749 (XXV) of 17 December 1970 in which the UNGA solemnly declared, inter alia, that the area of the ‘sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction … as well as the resources of the area, are the common heritage of mankind’. See also JE Noyes, ‘The Common Heritage of Mankind: Past, Present, and Future’ (2012) 40 Denver Journal of International Law and Policy 447.

9 On the classical controversy between mare liberum and mare clausum see inter alia W Grewe, The Epochs of International Law (transl. and rev. M. Byers) (De Gruyter 2000) 264; R Anand, ‘Freedom of the Sea: Past, Present and Future’ in W Abendroth and R Gutiérrez Girardot (eds), Essays in Honour of Wolfgang Abendroth (Verlag 1982) 215; and E Papastavridis, The Right of Visit on the High Seas in a Theoretical Perspective: Mare Liberum v. Mare Clausum Revisited’ (2011) 24 LJIL 45.

10 See D Leary, M Vierros, G Hamon, S Arico and C Monagle, ‘Marine Genetic Resources: A Review of Scientific and Commercial Interest’ (2009) 33 Marine Policy 183, 185–6.

11 See inter alia J Mossop, The Continental Shelf Beyond 200 Nautical Miles: Rights and Responsibilities (Oxford University Press 2016) 21–33; L Glowka, ‘The Deepest of Ironies: Genetic Resources, Marine Scientific Research and the Area’ (1996) 12 Ocean Yearbook 154, 154; T Scovazzi, ‘Special Report: Biodiversity in the Deep Seabed’ (1997) 7 Yearbook of International Environmental Law 481, 481; I Kirchner-Freis and A Kirchner, ‘Genetic Resources of the Sea’ in D Attard, M Fitzmaurice and N Martínez Gutiérrez (eds), The IMLI Manual on International Maritime Law: Volume I: The Law of the Sea (Oxford University Press 2014) 377.

12 See eg Mossop (n 7) 828.

13 See GM Danilenko, ‘The Concept of the ‘Common Heritage of Mankind’ (1988) 13 Annals of Air and Space Law 247, 249.

14 See eg the statement on behalf of the Group of 77 and China at the opening of the Third Session of the IGC (New York, 19 August 2019), underscoring that the goal the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction ‘can only be achieved when guided by the bedrock principle of the Common Heritage of Mankind’, <http://statements.unmeetings.org/media2/21996878/palestine-obo-g77-and-china.pdf>.

15 See Freestone (n 3) 17.

16 See eg Japan, Korea, Iceland, Russia, US in the course of the fourth session of the Preparatory Committee (PrepCom) of the IGC on BBNJ (10–21 July 2017); see ‘Summary of the Fourth Session of the Preparatory Committee on Marine Biodiversity beyond Areas of National Jurisdiction’ (24 July 2017) 25(141) Earth Negotiations Bulletin at <https://enb.iisd.org/download/pdf/enb25141e.pdf> 9.

17 These include the World Intellectual Property Organization and the World Trade Organization's TRIPS Agreement [General Agreement on Tariffs and Trade Multilateral Negotiation (The Uruguay Round): Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (15 December 1993) 33 ILM 81; 15 April 1994, 1867 UNTS 3]. See also B-I Kim and S Lee, ‘Existing Legal Framework Relevant to Marine Genetic Resources’ in JM Van Dyke, SP Broder, S Lee and J-H Paik (eds), Governing Ocean Resources: New Challenges and Emerging Regimes: A Tribute to Judge Choon-Ho Park (Martinus Nijhoff 2013) 503, 503–6.

18 See for the relevant analogy V Becker-Weinberg, ‘Preliminary Thoughts on Marine Spatial Planning in Areas beyond National Jurisdiction’ in Freestone (n 3) 85, 87–9.

19 See UNGA Res 66/119, para 1(b).

20 See LOSC arts 204–206 on EIAs, LOSC art 194(5) on MPAs and LOSC Part XIV on CB & TT. See generally on the protection of the marine environment under LOSC: R Churchill, ‘The LOSC Regime for the Protection of the Marine Environment – Fit for the Twenty-First Century? in R Rayfuse (ed), Research Handbook on International Marine Environmental Law (Elgar 2017) 3.

21 See E Mendehall, E de Santo, E Nyman and R Tiller, ‘A Soft Treaty Hard to Reach: The Second Intergovernmental Conference for Biodiversity Beyond National Jurisdiction (2019) 108 Marine Policy 1, 4.

22 See inter alia United Nations Conference on Sustainable Development in Rio de Janeiro in June 2012 (‘Rio + 20’) Outcome Document ‘The Future We Want’, annexed to UNGA Res 66/288 of 11 September 2012, para 162; ‘Our Ocean, Our Future: Call for Action’, Resolution adopted by the General Assembly on 6 July 2017 (A/RES/71/132).

23 See inter alia Mossop (n 7) 837. For the possibility of existing regimes addressing BBNJ see JA Ardron, R Rayfuse, K Gjerde and R Warner, ‘The Sustainable Use and Conservation of Biodiversity in ABNJ: What Can Be Achieved Using Existing International Agreements?’ (2014) 49 Marine Policy 98.

24 Second Meeting of the Conference of the Parties to the Convention on Biological Diversity (COP 2) (6–17 November 1995); Decision II/10 para 12 <https://www.cbd.int/decision/cop/?id=7083>.

25 See ‘Oceans and the Law of the Sea’, UNGA Res 59/24 (17 November 2004) UN Doc A/RES/59/24, para 73.

26 ‘Oceans and the Law of the Sea’, UNGA Res 66/231 (24 December 2011) UN Doc A/RES/66/231, Annex – ‘Recommendations 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’, para (a).

27 ibid.

28 ‘Development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, UNGA Res 69/292 (6 July 2015) UN Doc A/RES/69/292, para 1(a). See also R Long and M Chaves, ‘Anatomy of a New International Instrument for Marine Biodiversity beyond National Jurisdiction. First Impressions of the Preparatory Process’ (2015) 6 Environmental Liability 213.

29 See (n 2). For an overview of the negotiations up to the start of the IGC, see C Payne, ‘Biodiversity in High Seas Areas: An Integrated Legal Approach’ 21(9) ASIL Insights (1 September 2017) <https://www.asil.org/insights/volume/21/issue/9/biodiversity-high-seas-areas-integrated-legal-approach>.

30 See inter alia A Boyle and C Chinkin, ‘UNCLOS III and the Process of International Law-Making’ in TM Ndiaye and R Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Brill 2007) 371, 377–9; and B Buzan, ‘Negotiating by Consensus: Developments in Technique at the UN Conference on the Law of the Sea’ (1981) 75 AJIL 324, 334–5.

31 UNGA Res 72/249 (2017) para 17.

32 ibid, para 19.

33 See P Ricard, ‘Marine Biodiversity beyond National Jurisdiction: The Launch of an Intergovernmental Conference for the Adoption of a Legally Binding Instrument under the UNCLOS’ (2018–19) 4 Maritime Safety and Security Law Journal 84, 89.

34 For a summary of this session, see the website of the DOALOS specially dedicated to the Intergovernmental Conference <www.un.org/bbnj/>, and the report made by the International Institute for Sustainable Development reporting service: IISD Reporting service, ‘Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4–17 September 2018’ (20 September 2018) 25(179) Earth Negotiations Bulletin <http://enb.iisd.org/oceans/bbnj/igc1/>.

35 President's Aid to Discussions of 25 June 2018 <http://undocs.org/en/A/CONF.232/2018/3>.

36 As was informally lamented, it reminded of a ‘PrepCom 5’ rather than a real negotiating session. See more in 25(179) Earth Negotiations Bulletin (20 September 2018) at <http://enb.iisd.org/download/pdf/enb25179e.pdf>15.

37 See Freestone (n 3) 20. See also R Tiller, E de Santo, E Mendenhall and E Nyman, ‘The Once and Future Treaty: Towards a New Regime for Biodiversity in Areas Beyond National Jurisdiction’ (2019) 99 Marine Policy 239.

38 UN Doc A/CONF.232/2019/1 <https://undocs.org/A/CONF.232/2019/1>. As the document acknowledged, ‘the present document attempts to translate ideas and proposals generated during the discussions thus far into treaty text where possible. While not every individual idea or proposal is expressed specifically in the document, the options presented are an attempt to reflect the general thrust of those ideas and proposals.’ para 5.

39 See ‘ICG-2 25 March –5 April 2019’ 25(195) Earth Negotiations Bulletin at <https://enb.iisd.org/download/pdf/enb25195e.pdf> 18. See also V de Lucia, ‘Rethinking the Conservation of Marine Biodiversity beyond National Jurisdiction: From ‘‘Not Undermine’’ to Ecosystem-Based Governance’ (4 July 2019) 8(4) ESIL Reflections 3.

40 See 25(195) Earth Negotiations Bulletin (8 April 2019) at <https://enb.iisd.org/download/pdf/enb25195e.pdf> 1.

41 UNGA, 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.232/2019.6 (17 May 2019); available at: <https://undocs.org/a/conf.232/2019/6> (‘zero-draft’).

42 For the summary of the negotiations see 25(218) Earth Negotiations Bulletin (2 September 2019) at <https://enb.iisd.org/download/pdf/enb25218e.pdf> (Third Session: Summary and Analysis). See also the Statement by the President of the Conference at the Closing of the Session, A/CONF.232/2019/10* <https://undocs.org/a/conf.232/2019/10>.

43 See Earth Negotiations Bulletin, ibid, 22.

44 See inter alia T Vanagt et al., ‘Mare Geneticum: Towards an Implementing Agreement for Marine Genetic Resources in International Waters’ in Freestone (n 3) 267, 278.

45 See eg the most recent textual proposals on Draft Article 8 ([Scope of] Application [of MGRs]) submitted by the EU and the United States; see Textual proposals submitted by delegations by 20 February 2020, for consideration at the fourth session of the 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 (the Conference), in response to the invitation by the President of the Conference in her Note of 18 November 2019 (A/CONF.232/2020/3), 4 and 198 respectively <https://www.un.org/bbnj/sites/www.un.org.bbnj/files/textual_proposals_compilation_-_28_feb_2020.pdf>.

46 See eg the relevant textual proposals submitted by Indonesia, ibid, 66 and the Philippines, ibid, 163.

47 See Draft Article 8 of the Revised Draft Text (n 6).

48 See Oral Reports of the Facilitators of the Informal Working Groups to the Plenary on 30 August 2019, Annexed to the Statement of the President of the conference at the closing of the third session; A/CONF.232/2019/10; 5; <https://undocs.org/a/conf.232/2019/10>.

49 See inter alia the statements of States in IGC-2 reflected in 25(187) Earth Negotiations Bulletin (27 March 2019) at <https://enb.iisd.org/download/pdf/enb25187e.pdf> 21.

50 See 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted 29 October 2010, entered into force 12 October 2014.

51 See the International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, 3 November 2001, in force 29 June 2004, 2400 UNTS 303). See also on this treaty and its relevance with the BBNJ negotiations Vanagt et al. (n 44) 252–4.

52 See inter alia Tiller et al. (n 37) 241. For an account of the arguments per and contra the view that the regime of the high seas applies to MGRs see NY Morris-Sharma, ‘Marine Genetic Resources in Areas beyond National Jurisdiction: Issues with, in and outside of UNCLOS’ (2017) 20 Max Planck Yearbook of United Nations Law 71, 77–81.

53 See Oral Reports of the Facilitators of the Informal Working Groups (n 41) 6.

54 See Draft Article 11 of the Revised Draft Text (n 6). See also textual proposals per monetary benefit-sharing by Indonesia (n 45) 6, Pakistan, ibid, 159, and the Philippines, ibid, 164. For proposals contra monetary benefit sharing see eg Israel, ibid, 105.

55 See inter alia H Thiel, ‘Approaches to the Establishment of Protected Areas on the High Seas’ in A Kirchner (ed), International Marine Environmental Law (Kluwer 2003) 169; and E Molenaar, ‘Marine Biodiversity in Areas beyond National Jurisdiction’ (2007) 22 International Journal of Marine and Coastal Law 89.

56 According to the United Nations Sustainable Development Goal 14.5: ‘By 2020, conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information’ <https://www.un.org/sustainabledevelopment/oceans/>.

57 See further D Freestone, The UN Process to Develop an International Legally Binding Instrument under the 1982 Law of the Sea Convention: Issues and Challenges’ in Freestone (n 3) 9–16.

58 The list of these criteria is included in the Annex of the Revised Draft Text (n 5).

59 ibid, Draft Article 17. See the relevant textual proposals by the EU, which distinguishes between proposals in relation to ABMTs and those in relation to MPAs (n 45) 19–20.

60 ibid, Draft Article 18. See also the relevant textual proposals by Indonesia, adding the need to consult archipelagic States, ibid, 78 and by Monaco, calling for more public participation in this procedure, ibid, 147-8.

61 See ibid, Draft Article 19. See also the textual proposals of Monaco in favour of the COP having such exclusive decision-making authority, ibid, 149 and the US emphasising the recommendatory nature of the COP in this regard, ibid, 213–14.

62 See, inter alia, A Oude Elferink, ‘Environmental Impact Assessment in Areas beyond National Jurisdiction’ (2012) 27 International Journal of Marine and Coastal Law 449; and D Ma, G Suan and F Qinhua, ‘Current Legal Regime for Environmental Impact Assessment in Areas beyond National Jurisdiction and Its Future Approaches’ (2016) 56 Marine Policy 23.

63 For mainstreaming these assessments in the law of the sea, see J Harrison, Saving Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (Oxford University Press 2017) 212–38. See also L Kong, ‘Environmental Impact Assessment under the United Nations Convention on the Law of the Sea’ (2011) 10 ChineseJIL 651. On EIAs in general see N Craik, The International Law of Environmental Impact Assessment (Cambridge University Press 2011).

64 See Oral Reports of the Facilitators of the Informal Working Groups to the Plenary on 30 August 2019 (n 48) 14.

65 ibid 14.

66 ibid 14. See also Earth Negotiations Bulletin ‘Third Session: Summary and Analysis’ (n 42) 11.

67 See Draft Articles 30–36 of the Revised Draft Text (n 6).

68 See Oral Reports (n 48) 12–14 and Earth Negotiations Bulletin, ‘Third Session: Summary and Analysis’ (n 42) 1.

69 Powers are granted to the International Seabed Authority (ISA) through which the resources of the Area are administered; see LOSC, Part XV, Section 4.

70 See in general BA Boczek, The Transfer of Marine Technology to Developing Nations in International Law (Law of the Sea Institute 1982); AW González, ‘Cutting the Gordian Knot?: Towards a Practical and Realistic Scheme for the Transfer of Marine Technology’ in MH Nordquist, T Heidar and N Moore (eds), Law, Science and Ocean Management (Martinus Nijhoff 2007) 345.

71 See art 268 LOSC. For a commentary of this provision see K Bartenstein, ‘Article 268’ in A Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck/Hart 2017) 1778.

72 On the progress of the negotiations at the IGC-3 on CB & TT see Oral Reports (n 48) 17–19 and Earth Negotiations Bulletin, ‘Third Session: Summary and Analysis’ (n 42) 1–2.

73 Draft Article 44(2) of the Revised Draft Text (n 6).

74 See Draft Article 51 of the Revised Draft Text (n 6).

75 ‘‘‘Area’’ means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’; art 1(1)(a) LOSC.

76 A notable exception has been Turkey calling for the application of the new agreement beyond 200 n.m. regardless of whether a coastal State has declared an EEZ; see 25(209) Earth Negotiating Bulletin (20 August 2019) at <https://enb.iisd.org/download/pdf/enb25209e.pdf> 2.

77 See eg Chapter V, Regulation 1 of the International Convention for the Safety of Life at Sea, adopted 1 November 1974, entered into force 25 May 1980 (1184 UNTS No. 278).

78 See the non-binding terminology used by the 1994 San Remo Manual on the Law Applicable to Armed Conflict at Sea in this regard: ‘[t]he parties to the conflict are encouraged to agree that no hostile actions will be conducted in marine areas containing: (a) rare or fragile ecosystems; or (b) the habitat of depleted, threatened or endangered species or other forms of marine life’; see International Institute of International Humanitarian Law, San Remo Manual on International Law Applicable at Armed Conflicts at Sea, para 11.

79 Draft Article 4(1) reiterates the corresponding provision of the 1995 Fish Stocks Agreement, that is ‘Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention.’ See Article 4 of the Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 4 August 1995, in force 11 December 2011) (1995) 34(6) ILM 1542–1580 (‘Fish Stocks Agreement’).

80 See on this R Barnes, ‘The Proposed LOSC Implementation Agreement on Areas beyond National Jurisdiction and Its Impact on International Fisheries Law’ (2016) 31 International Journal of Marine Coastal Law 1; and D Tladi, ‘The Proposed Implementing Agreement: Options for Coherence and Consistency in the Establishment of Protected Areas beyond National Jurisdiction’ (2015) 30 International Journal of Marine and Coastal Law 654.

81 See Article 4(3) Revised Draft Text (n 5). According to the President of the IGC, ‘square brackets is used to indicate the following: (a) there are two or more alternative options within a provision; and (b) support has been expressed for a “no text” option, either within a provision or in relation to a provision as a whole’, para 7 of the Introductory Note to the Revised Draft Text.

82 See UNGA Res 72/249, para 7 (n 2).

83 For example, during IGC-3, States like Republic Korea, the US, Iceland, invoked the ‘not-undermining’ principle with respect to the ABMTs, EIAs and intellectual property rights concerning MGRs. See Earth Negotiations Bulletin (n 42) 8, 11, 20.

84 cf South Africa proposing to delete art 4 (n 45) 187 with US wishing to enhance the not undermining clause, ibid, 194. See also comments by Monaco which underlines that the new agreement shall not undermine the effectiveness of regional bodies, ibid, 141.

85 See Article 34 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), 1155 UNTS 331, which is taken as codifying the pre-existing customary law: ‘A treaty does not create either obligations or rights for a third State without its consent’.

86 cf inter alia art 103 of the UN Charter, art 311 LOSC and art 22 of the Convention on Biological Diversity (1760 UNTS 79).

87 See International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission UN Doc A/CN.4/L.682 (13 April 2006), as corrected UN Doc A/CN.4/L.682/Corr.1 (11 August 2006). See also E Roucounas, ‘Engagements paralle`les et contradictoires’ (1987-VI) 206 Recueil des Cours 9.

88 cf art 8(3) of the Fish Stocks Agreement (n 78): ‘[w]here a subregional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement’.

89 K Gjerde, N Clark and H Harden-Davies, ‘Building a Platform for the Future: The Relationship of the Expected New Agreement for Marine Biodiversity in Areas beyond National Jurisdiction and the UN Convention on the Law of the Sea’ (2019) 33 Ocean Yearbook 3, 39. See also Z Scanlon, ‘The Art of “Not Undermining”: Possibilities within Existing Architecture to Improve Environmental Protection in Areas beyond National Jurisdiction’ (2018) 75 ICES Journal of Marine Science 405.

90 IUCN, Comments submitted on the Revised Draft Text (20 February 2020) (n 45) 245 (emphasis added).

91 Draft Article 15 of the Revised Draft Text (n 6).

92 ibid, Draft Article 23(2).

93 ibid, Draft Article 43(3).

94 See inter alia K Gjerde et al. (n 89) 37–8.

95 See Draft Article 19(2) Alt. 2(c) of the Revised Draft Text (n 6).

96 For example, in the recent textual proposals (20 February 2020), Iceland reiterated that it ‘has from the outset advocated a BBNJ Agreement based on a regional approach, where the agreement mandates cooperation and coordination among regional and sectoral bodies and where decision making would remain with these existing types of bodies’ (n 45) 62. See also the similar approach by the US, ibid, 207–8.

97 See inter alia UNGA, ‘Summary of the First Global Integrated Marine Assessment’, UN Doc A/70/112 (22 July 2015), para 40. See also The Pew Charitable Trusts, ‘Towards a Global Solution for High Seas Conservation’ Fact Sheet (March 2017) <http://www.pewtrusts.org/-/media/assets/2017/03/highseas_towards_a_global_solution_for_high_seas_conservation.pdf>; and Becker-Weinberg (n 18) 100.

98 See for example, the positions of Algeria on behalf of the African States, Mauritius, Argentina, Pakistan, Senegal and South Africa during the third session of PrepCom (5 April 2017); 25(127) Earth Negotiations Bulletin (6 April 2017) at <https://enb.iisd.org/download/pdf/enb25127e.pdf>.

99 See Article 4(2) Option 1(2) Option 2, of the 2018 President's Aid to Negotiations (n 30). See also Monaco's proposals to the Revised Draft Text (n 45) 148–9.

100 See eg.textual proposals to the Revised Draft Text in support of this hybrid approach by the EU (n 45) 18, 22–3 and South Africa, ibid, 189.

101 Draft Article 15(1) of the Revised Draft Text (n 6) (emphasis added).

102 Draft Article 15(1) ibid. Bracketed language reflects divergence of views.

103 See eg Draft Article 23 on EIAs para 2 [Alt. 1. The Scientific and Technical Body shall consult and/or coordinate with relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies with a mandate to regulate activities [with impacts] in areas beyond national jurisdiction or to protect the marine environment. [Procedures for consultation and/or coordination shall include the establishment of an ad hoc interagency working group or the participation of representatives of the scientific and technical bodies of those organizations in meetings of the Scientific and Technical Body].]’ (n 6) (emphasis added).

104 See Draft Article 48 (4)(c) of the Revised Draft Text (n 6).

105 See generally Y Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Ashgate 2008) 24.

106 Gjerde et al. (n 89) 35. See also on this point MA Young and A Friedman, ‘Biodiversity beyond National jurisdiction: Regimes and Their Interaction’ (2018) 112 AJIL Unbound 123, 128.

107 EU textual proposals on the ABMT/MPA part for IGC4 (19 February 2020) (n 45) 18.

108 See R Rayfuse, ‘Regional Fisheries Management Organizations’ in Rothwell et al. (n 7) 439, 443. The Reports of the meetings of the Kobe Process are available at <http://www.tuna-org.org>.

109 See further information at <http://www.fao.org/fishery/rsn/en>.

110 For Regional Seas Conventions and the UNEP Regional Seas Programme see inter alia at <https://www.unenvironment.org/explore-topics/oceans-seas/what-we-do/working-regional-seas>. See also R Bille, L Chabason, P Drankier, EJ Molenaar and J Rochette, Regional Oceans Governance: Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together (UNEP Regional Seas Programme 2016).

111 See Becker-Weinberg (n 15) 120 and further references therein.

112 See R Warner ‘Strengthening Governance Frameworks for Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction: Southern Hemisphere Perspectives’ (2017) 32 International Journal of Marine and Coastal Law 607. See also Ardron et al. (n 23).

113 Ardron et al. (n 23) 106.

114 See art 5 of the zero-draft (n 41).

115 See Permanent Mission of Algeria, Statement on behalf of the African Union (New York, 19 August 2019 at <http://statements.unmeetings.org/media2/21996848/algeria-obo-african-group.pdf>.

116 States that have submitted proposals in favour of the CHM principle include Nicaragua (n 45) 158 and South Africa, ibid, 187, while against its inclusion stand the EU 3, Monaco 142 and the US 195 ibid.

117 Draft Article 5(f) of the Revised Draft Agreement (n 5). On the ecosystem approach see further D Freestone, ‘The Conservation of Marine Ecosystems under International Law’ in M Bowman and C Redgwell (eds), International Law and the Conservation of Biological Diversity (Kluwer 1996) 99 and R Churchill (n 20) 11–12.

118 See relevant comments by V de Lucia, ‘A Very Quick Look at the Revised Draft Text of the New Agreement on Marine Biodiversity in Areas beyond National Jurisdiction’ EJIL:Talk! (23 January 2020) at <https://www.ejiltalk.org/a-very-quick-look-at-the-revised-draft-text-of-the-new-agreement-on-marine-biodiversity-in-areas-beyond-national-jurisdiction/#more-17849>.

119 Article 5(c) and (d) of the Fish Stocks Agreement (n 79). See on the ecosystem approach in the Fish Stocks Agreement P Davies and C Redgwell, ‘The International Legal Regulation of Straddling Fish Stocks’ (1996) 67 BYBIL 199, 260–1.

120 See PSIDS Submission to the Second Meeting of the Preparatory Committee for the 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 (BBNJ PrepCom) (August 2016) at <http://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/PSIDS_second.pdf> 3.

121 See inter alia Draft Articles 15(4) on cooperation in AMBTs, 17(4)(c) and (i) on ABMT's proposals, 18(2)(a) on assessment of proposals; Draft Articles 26 and 34 on EIAs; Draft Article 12(4)(c) on MGRs.

122 See Article 6 of Convention on Fishing and Conservation of the Living Resources of the High Seas (Done at Geneva on 29 April 1958. Entered into force on 20 March 1966) 559 UNTS, at 285.

123 ibid, Article 7.

124 A Oude Elferink, ‘Coastal States and MPAs in ABNJ: Ensuring Consistency with the LOSC’ in Freestone (ed) (n 3) 56, 69.

125 See inter alia Draft arts 15(5) on ABMTs and 9(4) on MGRs (n 41).

126 See Draft Article 15(4) Revised Draft Text (n 6) (emphasis added).

127 See inter alia Earth Negotiations Bulletin, Summary and Analysis (n 42) 10, 13.

128 For example, the EU in its textual proposals with respect to the consultation on and assessment of the proposals for ABMTs (Draft Article 18) expanded the notion of ‘adjacency’ to include ‘any States with a continental shelf subjacent or maritime area adjacent to any proposed marine protected area and States that carry out human activities, including economic activities, in the area shall be invited …’,(n 45) 21.

129 See inter alia Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Rep 1974, at 3, para 78; PCA, Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), Case No. 2011-03, Award of 18 March 2015, para 719, and South China Sea Arbitration (Philippines v. China), PCA Case No. 2013-19, Award of 12 July 2016A, para 744.

130 See Draft Article 53(1) Revised Draft Text (n 6).

131 Draft Article 53(2), ibid.

132 Draft Article 53(3), ibid.

133 Draft Article 20(1), ibid. In its textual proposals to the Revised Draft Text, US suggests deleting this provision (n 45) 214.

134 Draft Article 20(2), ibid (emphasis added).

135 Draft Article 20(3), ibid.

136 See Pakistan's Stance/Proposal on the Discussion of ABMTs and MPAs in ABNJ (n 45) 160.

137 See Article 87 LOSC and inter alia D Guilfoyle, ‘The High Seas’ in Rothwell (n 7) 203, 206–8.

138 On the exclusive jurisdiction principle see inter alia RR Churchill and AV Lowe, The Law of the Sea (3rd edn Manchester University Press 1999) 208; DP O'Connell, The International Law of the Sea Vol II (IA Shearer (ed)) (Clarendon Press 1984) 796; and the recent judgment of the International Tribunal of the Law of the Sea in The M/V Norstar case (Panama v. Italy) Case No. 25, Judgment of 10 April 2019, paras 222–224 at <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Judgment/C25_Judgment_10.04.pdf>.

139 See Article 21 Fish Stocks Agreement (n 79). See also Papastavridis, E, Interception of Vessels on the High Seas (Hart 2013) 201–2Google Scholar.

140 See inter alia Article 23 Fish Stocks Agreement, ibid, and FAO, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Rome, 22 November 2009, in force 5 June 2016).

141 See inter alia Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regs (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regs (EC) No 1093/94 and (EC) No 1447/1999. L 286/1 Official Journal of the EU (29 October 2008) Article 39; and D Erceg, ‘Deterring IUU Fishing through State Control Over Nationals’ (2006) 30 Marine Policy 173–9.

142 See Aarhus Convention on Access to Information, Public Participation in Decision Making in Environmental Matters Signed 25 June 1998, entered into force 30 October 2001. Pursuant to Article 15 of the Convention, Decision I/7 of the Meeting of the Parties in Italy in 2002 established a compliance mechanism for the Convention; see commentary in Jendroska, J, ‘Aarhus Convention Compliance Committee: Origin, Status and Activities’ (2011) 8 Journal for European Environmental & Planning Law 301Google Scholar. Similarly, an Implementation Committee was established by the Second Meeting of the Parties (decision II/4, February 2001) of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991, in force 10 September 1997) 1989 UNTS 310. Generally, on compliance committees in environmental treaties see Treves, T, Τanzi, Α, Pineschi, L, Pitea, C, Ragni, C, Jacur, FR (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (Asser Press 2009)CrossRefGoogle Scholar.

143 See inter alia Kuruc, M, ‘Monitoring, Control and Surveillance Tools to Detect IUU Fishing and Related Activities’ in Vidas, D (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff 2010) 101Google Scholar; and Gullet, W and Shi, Y, ‘Cooperative Maritime Surveillance and Enforcement’ in Warner, R and Kaye, S (eds), Routledge Handbook of Maritime Regulation and Enforcement (Routledge 2016) 378Google Scholar.

144 See the statements of China and the USA in Earth Negotiations Bulletin, Third Session: Summary and Analysis (n 32) 19. Also, the USA proposed deleting this provision in the textual proposals to the Revised Draft Text (n 45) 233.