The Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction
Otto Spijkers, Professor, China Institute of Boundary and Ocean Studies, Research Institute of Environmental Law, and founding staff member of the International Water Law Academy, Wuhan University, China
This post argues that, in our efforts to conserve marine biological diversity in areas beyond national jurisdiction (BBNJ) and promote its sustainable use, we should acknowledge an obligation of global solidarity with nature. First, the meaning and place of global solidarity in international law is explained, followed by a short description of the drafting process of the new BBNJ agreement. Finally, this post ends with a call for inclusion of a reference to global solidarity with nature in this new BBNJ agreement.
Global Solidarity
What is global solidarity and what is its place in the language of international law? One finds that the term is most often invoked by the United Nations (UN) General Assembly to underline all States’ common responsibility to protect those most vulnerable among us. Think of the Geneva Declaration for Rural Women, adopted at the Summit on the economic advancement of rural women, held in Geneva in 1992, which contained a pledge for global solidarity with rural women. Or in 2000, the UN General Assembly called for “solidarity with people living in poverty”. Also in 2002, the UN General Assembly adopted a declaration aptly titled “a world fit for children”. This political declaration called on all States to “join in a global movement that will help to build a world fit for children”, by embracing the principle to “leave no child behind”, and to “care for every child”. Most recently, in a resolution of September 2020 on the global fight against COVID-19, the General Assembly called upon “the international community, regional and international organizations and relevant stakeholders to give high priority to people, particularly the elderly, women and girls, displaced persons and refugees and persons with disabilities, and areas that are most vulnerable, particularly developing and least developed countries”.
Thus, we see many calls to pay particular attention to the most vulnerable people in our world, and/or to the world’s areas that are most vulnerable. We should leave no one and no place behind. This is a crucial aspect of what we refer to as “global solidarity”. There does not exist a general obligation of global solidarity. Instead, as has hopefully become clear from the above examples, it manifests itself in various ways in various international legal contexts.
BBNJ Negotiations
Before discussing the actual and/or potential relevance of a global solidarity duty in the context of the BBNJ, let me first introduce the BBNJ process. The world is currently reaching the final stages of decade long negotiations leading, hopefully, to a new agreement under the United Nations Convention on the Law of the Sea (LOSC) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). This new treaty is needed because the current regime that seeks to protect marine biological diversity is highly fragmented. Some marine protected areas (MPA) do exist – think of the Ross Sea MPA in Antarctica of 2017 - but most of the areas beyond national jurisdiction are not protected in this way. Second, some migratory marine species are protected by a special treaty regime – such as whales - but others are not. Third, the few general obligations applicable to maritime areas beyond national jurisdiction that do exist are vague - think of Article 192 of the LOSC which simply proclaims that “States have the obligation to protect and preserve the marine environment”. Fourth, some marine activities in these areas seem entirely unregulated, such as the use of marine genetic resources in the high seas.
Therefore, there is an urgent need to address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction in a holistic way. It is critical to agree on a total package of rules and regulations relating to marine genetic resources, the establishment and management of marine protected areas, environmental impact assessments, as well as capacity-building and the transfer of marine technology. This provides the perfect opportunity to reflect on the relevance of general principles and concepts, including global solidarity.
On 18 November 2019, Rena Lee, President of the Intergovernmental Conference (IGC) on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction, published a Revised draft text, to be discussed at the fourth – and supposedly also the final - meeting of the IGC. Due to the COVID-19 pandemic, this final IGC has been postponed to “the first available date in 2022”.
Relevance of Global Solidarity in The Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction
Let us now look at this Revised draft text and see what it already says and could potentially say about global solidarity.
Article 2 of the Revised draft text states the treaty’s general objective. It states that “the objective of this Agreement is to ensure the [long-term] conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction [and] further international cooperation and coordination.”
Article 6 elaborates on the theme of international cooperation. It calls upon States to “strengthen[…] and enhance[e] cooperation with and among relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and members thereof in the achievement of the objective of this Agreement”. It also requires of all States to “promote international cooperation in marine scientific research and in the development and transfer of marine technology”, and to “cooperate to establish new global, regional and sectoral bodies”.
Part VI of the Revised draft text is on the theme of Institutional Arrangements. Article 48 is about the Conference of the Parties. It says that “the Conference of the Parties shall […] promote cooperation and coordination with and among relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies”.
These examples demonstrate that the Revised draft text of November 2019 has a lot to say about “international cooperation”, but it does not mention “solidarity”. This is unfortunate because global solidarity and international cooperation are not synonymous. Solidarity is about showing “support for the members of a group”, in particular the most vulnerable within the group whereas cooperation refers to “the act of working together”. As explained in the first section of this post, global solidarity encourages the world to pay particular attention to the most vulnerable people or to the areas in the world that are most vulnerable. This aspect is now missing in the text.
Thinking outside the box for a moment, we might consider an expression of solidarity with nature itself as we apply global solidarity to the protection of marine biodiversity. Alternatively, we could focus our attention on areas that are most vulnerable to the activities concerned. Article 27 of the draft treaty text refers to “areas identified as ecologically or biologically significant or vulnerable”, which require “protection” or “special attention”. Even though the term solidarity is not used explicitly to describe our relationship with these areas, the text does come quite close.
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