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Boister, Eve --- "Water-tight? An analysis of the effectiveness of the BBNJ MPA regime in protecting biodiversity in the high seas" [2023] UOtaLawTD 3

Last Updated: 11 April 2024

Water-tight? An Analysis of the Effectiveness of the BBNJ MPA Regime in Protecting Biodiversity in the High Seas.

Eve Boister

A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo.

October 2023

Acknowledgements

Special thanks to Professor Nicola Wheen for your support and helpful advice this year. I am extremely grateful for your guidance and wisdom on this project.

Thank you to my family, for your backing and push to keep going, especially during the hard times.

To my friends and flatmates thank you for the joy you bring to me, getting this done without sporadic intervals of fun would have been a lot tougher.

Finally thanks to Gabriel, Nikita, Meredith and Lydia, going through this together has been a privilege. Sharing this experience with great friends has made for a sunnier journey.

Abbreviations

ABMT Area Based Management Tool

BBNJ 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.

CBD Convention on Biological Diversity

CCAMLR Convention/Commission for the Conservation of Antarctic Marine Living Resources

COP Conference of Parties

EEZ Exclusive Economic Zone

IGC Intergovernmental Conference

ILBI Internationally Legally Binding Instrument

IUU Illegal Unreported and Unregulated fisheries IUCN International Union for Conservation of Nature MEA Multilateral Environmental Agreement

MPA Marine Protected Area

OSPAR Convention/Commission for the Protection of the Marine Environment of the North-East Atlantic

RFMA Regional Fisheries Management Agreement RFMO Regional Fisheries Management Organisation UN United Nations

UNCLOS United Nations Convention on the Law of the Sea

UNFSA United Nations Fish Stocks Agreement

Table of Contents

Introduction: “The Ship has Reached the Shore”

Rena Lee, president of the Intergovernmental Conference (IGC) that negotiated the Biodiversity Beyond National Jurisdiction Treaty (BBNJ)¹ remarked at the historic conclusion of the resumed fifth conference on March the 3^rd, 2023, that “the ship has reached the shore.”² She was referring to the conclusion of five years of conference negotiations, fourteen years of preparation and the achievement of consensus by plenipotentiaries on the text of the BBNJ.³ She was not alone. The United Nations Secretary-General, António Guterres, lauded the BBNJ as “a victory for multilateralism and for global efforts to counter the destructive trends facing ocean health, now and for generations to come.”⁴ The BBNJ’s ambitious general objective, as spelled out in Article 2, is:

to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination.

Its signing marked the culmination of a process that produced the first globally applicable agreement exclusively focused on the conservation and sustainable use of biodiversity beyond national jurisdiction in the high seas.⁵ Under the existing ocean governance regime, only one per cent of the high seas are protected, with a clear focus on regulation of marine pollution.⁶ The oceans are essential to supporting human life. Oceans are the largest carbon sink; they provide almost half the oxygen to the planet and are a significant food source for at least one billion people.⁷ Abundance of biodiversity is essential to ensuring that high seas ecosystems are “productive, resilient, and adaptable,” as that abundance maintains ecosystem functioning.⁸ The BBNJ is designed to implement protections from unsustainable exploitative fisheries and pollution practices in an area that has been regulated in a disjointed manner.⁹ However, while the ship may

¹ 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 (opened for signature 20 September 2023, not yet in force).

² United Nations “‘The Ship has Reached the Shore’, President Announces, as Intergovernmental Conference Concludes Historic New Maritime Biodiversity Treaty” (meetings coverage, 3 March 2023)

³ Robert Blasiak and Nobuyuki Yagi “Shaping an international agreement on marine biodiversity beyond areas of national jurisdiction: Lessons from high seas fisheries” (2016) 71 Mar Policy 210 at 210.

⁴ “UN delegates reach historic agreement on protecting marine biodiversity in international waters” (2 March 2023) UN News <news.un.org>.

⁵ The area of the sea beyond a nations EEZ, 61% of the oceans.

⁶ “High Seas Treaty Must Reflect Critical Role of Fish in Marine Ecosystems” (14 March 2022) Pew

<www.pewtrusts.org>.

⁷ “Why the High Seas Treaty is a breakthrough for the ocean and the planet” (6 March 2023) World Economic Forum

<weforum.org>.

⁸ “Marine Biodiversity” Marine Stewardship Council <msc.org>.

⁹ “Mapping Governance Gaps on the High Seas” (17 August 2016) Pew <pewtrusts.org>.

have reached the shore in reference to the finalisation of the treaty, it remains to be seen whether it will achieve its purpose of balancing the conservation and sustainable use of biodiversity in the high seas. This dissertation inquires into whether it will be able to do so based on an analysis of the substance and institutional nature of one of its key elements and through comparison with existing mechanisms of similar design employed under other treaty regimes.

The element of the BBNJ this inquiry focuses on is the regime for creating and implementing Marine Protected Areas (MPAs). MPAs are Area Based Management Tools (ABMTs) which manage activities within specific areas and contribute to the protection of species. They are defined in different ways across different organisations and regimes and have scalar levels of protection, from no-take to limited protection of particular species.¹⁰ In the BBNJ they are one of the key tools to control, protect and facilitate the sustainable use of high seas biodiversity.¹¹

The focus of this project is to investigate the strength of this MPA regime in maximising biodiversity protection. This will be done through the following steps: (i) identification of the high- seas governance gap; (ii) textual analysis of the BBNJ MPA regime and identification of its weaknesses¹²; and (iii) analysis of the scope and mechanisms for implementation in the BBNJ’s MPA regime in comparison with the weaknesses in other existing agreements which make similar provision for MPAs. The core argument of this dissertation is that the BBNJ will not be successful in the effective conservation and sustainable use of marine biodiversity in the Area Beyond National Jurisdiction (ABNJ), where states have room to pursue their own agendas, in particular those associated with exploitative fisheries activities and other destructive activities. It will be argued that the risk of this occurring is particularly high where the conservation mandate is weak and there are constructive ambiguities.

¹⁰ “A Path to Creating the First Generation of High Seas Protected Areas” (31 March 2020) Pew <pewtrusts.org>. ¹¹ Karen Scott “Area-based Protection Beyond National Jurisdiction: Opportunities and Obstacles” (2019) 4 Asia Pac J L P 158 at 159.

¹² Textual analysis is the normal mode under Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened for signature 23 May 1969, entered into force 27 January 1980) art 31(1) “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Chapter One: Background to the BBNJ and the Biodiversity Protection Gap

A Historical exploitation of the High Seas

Governance of the “high seas”¹³ from the 17^th to 20^th centuries was rooted in the Grotian doctrine of mare liberum, “The Freedom of the Seas.”¹⁴ The core assumption of the doctrine was that the seas were an inexhaustible and “open access” commons.¹⁵ One of the underlying themes of this dissertation is that this assumption has supported unsustainable human exploitation of the resources of the high seas, particularly by those undertaking fisheries operations.¹⁶ Freedom of fishing may continue to support exploitation under the BBNJ because of the compromises made to state sovereignty and autonomy during its negotiation, which means that elements of this freedom have in effect been designed into the treaty.

In the 20^th century it became apparent through dwindling fish stocks that the idea that oceans were an inexhaustible common was invalid and. Had led to over-exploitation of fisheries.¹⁷ This new more restrictive thinking was reflective of the view that the high seas fell within the “common heritage of mankind”, a principle first used at the first United Nations (UN) conference on the law of the sea in 1958 to promote equal access to resources.¹⁸ Although this principle did not exclude exploitation of the high seas, a political impetus thus developed for greater governance over the high seas and restrictions of freedoms in the second half of the 20^th Century.¹⁹ The international community turned to codifying protections holistically.²⁰ The major achievement of this work was the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) in Montego Bay, Jamaica, in1994.²¹

¹³ All parts of the ocean not included in the exclusive economic zone, the territorial sea, or the internal waters of a country, or in the archipelagic waters of an archipelagic country. Beyond the 200nm mark off the coast of a sovereign territory.

¹⁴ Alison Reppy “The Grotian Doctrine of the Freedom of the Seas Reappraised” (1950) 19 Fordham L Rev 243 at 244.

¹⁵ Gary Russ and Dirk Zeller “From Mare Liberum to Mare Reservarum” (2003) 27 Mar Policy 75 at 76.

¹⁶ Stuart Kaye “Implementing high seas biodiversity conservation: global geopolitical considerations” (2004) 28 Mar Policy 221 at 221.

¹⁷ Russ and Zeller, above n 15 at 75.

¹⁸ Dire Tladi “The Common Heritage of Mankind and the Proposed Treaty on Biodiversity in Areas beyond National Jurisdiction: The Choice between Pragmatism and Sustainability” (2015) 25 Yb Intl Env L 113 at 115.

¹⁹ David Freestone “The Limits of Sectoral and Regional Efforts to Designate High Seas Marine Protected Areas” (2018) 112 AJIL Unbound 129 at 130.

²⁰ Sarah Lothian “Marine Conservation and International Law” (Routledge, London, 2022) at 2.

²¹ United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened for signature 10 December 1982, entered into force 16 November 1994).

B UNCLOS and the High Seas Governance Gap

UNCLOS was set up as a “constitution” for the oceans, establishing a regime for governance over the high seas.²² While it established rules governing the uses of the oceans and their resources (with a particular emphasis on equality of access to the resources of the deep sea bed), it did not include a comprehensive enforcement and management regime to protect biodiversity in the high seas, a reflection of conditions at the time it was agreed.²³

Article 87 of UNCLOS preserves the “freedom of the high seas” and specifically “freedom of fishing.” However, this is qualified by conditions laid down in the rest of the Convention.²⁴ Part VII details, the right to fish is preserved subject to the treaty obligations of states and to the provisions of Section 2 of Part VII itself on the “Conservation and Management of the High Seas”.²⁵ This means that UNCLOS allows for the restriction of the activities of states on the high seas, such as fishing, but restrictions may be only be carried out in terms of the existing conservation and management provisions. Unfortunately, in the absence of specific measures and processes for the creation of conservation measures, it has been difficult for states to fully comply with any broad conservation mandates within UNCLOS.²⁶

Looking at the problem of the relationship between general and specific measures in UNCLOS in greater detail, Article 2 of UNCLOS mandates first that states parties must adopt measures for the conservation of living resources on the high seas that apply to their nationals, and second that states parties must cooperate with other states to manage conservation living resources on the high seas and work to determine allowable catches and other conservation measures. Article 2 essentially places (in general terms) the responsibility on states to make agreements for marine conservation. The difficulty is that if the protection of high seas biodiversity is not prioritised by states or conflicts with other interests, for example, fisheries interests, conservation measures may not be created effectively or swiftly, and cooperation may not occur. As a result, the measures in UNCLOS do not necessarily have a great capacity for protection unless states are motivated to respond with strong conservation tools.

²² David Freestone “Marine Biodiversity in Areas Beyond National Jurisdiction” in International Ocean Institute Canada (ed) The Future of Ocean Governance and Capacity Development (Brill, Leiden, 2018) 151 at 151.

²³ Katherine Houghton “Identifying new pathways for ocean governance: The role of legal principles in areas beyond national jurisdiction” (2014) 49 Mar Policy 118 at 118.

²⁴ Art 87(2).

²⁵ Art 116. It is clear from this article that the right belongs to the states, not their nationals who fish.

²⁶ Tulio Scovazzi “The negotiation for a binding instrument on the conservation and sustainable use of marine biological diversity beyond national jurisdiction” (2016) 70 Mar Policy 188 at 190.

Part XII of the UNLCOS focuses on the Protection and Preservation of the Marine Environment, and it too reveals difficulties with transforming general provisions into specific obligations. It provides almost exclusively for the protection of the marine environment from pollution, as this was what was historically blamed for biodiversity loss.²⁷ For example, Article 194(5) details that measures to prevent pollution in the marine environment are in place to “protect and preserve rare or fragile ecosystems.”²⁸ However, it was not possible in 1982 to agree on a specific mechanism to regulate access to marine resources in the high seas. MPAs, for example, are not specifically referred to and nor are states obliged to adopt them in the context of ecosystem management.²⁹ The gap in UNCLOS where there could have been a stricter mandate to protect biodiversity and introduce mechanisms like MPAs and Environmental Impact Assessments (EIAs) for the high seas to do so has become more apparent with increasing awareness of biodiversity loss. The notion of biodiversity and the need to protect it is a recent concept. UNCLOS drafters did not foresee the loss of biodiversity and thus did not employ modern governance principles and conservation tools in its drafting. ³⁰ A noteworthy omission is the capacity to regulate fisheries activities, which present the most significant extractive risks to high seas biodiversity.

Part XII of UNCLOS was an important effort to preserve marine ecology resulting from overuse of the ocean as a global common. However, it is worth emphasising that the inability to transform general obligations into specific measures has been compounded by the generally individualistic focus of states to maintain access to their economic interests on the high seas, which has hindered efforts to protect communal resources like fisheries.³¹

In 1995, parties to UNCLOS created the Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA).³² The UNFSA developed the conservation principles in UNCLOS to include the precautionary approach. The focus of the UNFSA is the protection of fish stocks migrating between the High Seas and Exclusive Economic

²⁷ Robin Craig “Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas” (2005) 20 J Land Use & Envtl L 333 at 344.

²⁸ Robert Beckman “State responsibility and transboundary marine pollution” in S Jayakumar and others (eds)

Transboundary Pollution (Edward Elgar Publishing, Cheltenham, 2015) 137 at 141.

²⁹ Karen Scott “Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas” (2012) 27 The International Journal of Marine and Coastal Law 849 at 853.

³⁰ Simi KK “Marine Biodiversity Management under the UNCLOS: Scope and Challenges in the era of blue Economy Policy” (2023) 5 GLS Law Journal 102 at 106.

³¹ Yoshifuma Tanaka “Reflections of High Seas Marine Protected Areas: A Comparative Analysis of the Mediterranean and North-East Atlantic Models” (2012) 81 Nord J Intl L 295 at 297.

³² Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks 2617 UNTS 3 (opened for signature 4 August 1995, entered into force 11 December 2001).

Zones (EEZs).³³ However, a governance gap in the management of fish stocks in the high seas remained. The UNFSA also increased the number of regimes in the already complicated oceans management complex,³⁴ further contributing to ineffective management of high seas biodiversity.

Perhaps the most important feature of UNCLOS and the UNFSA in protecting biodiversity is that they envisaged the creation of Regional Fisheries Management Agreements (RFMAs) and, in turn, the set-up of Regional Fisheries Management Organisations (RFMOs) to conserve and manage high seas fisheries. UNCLOS and the UNFSA encouraged parties to enter into multi-lateral arrangements to protect and sustain fish stocks.³⁵ The UNFSA particularly supports the implementation of conservations measures through RFMOs.³⁶ However, in practice, RFMOs have largely been ineffective in providing for the sustainability of high seas biodiversity and for the capacity to enforce any measures.³⁷

Today, seventeen RFMOs operate to set catch limits in different regions but 95 percent of high seas marine species are not currently being regularly monitored.³⁸ The only subjects of monitoring are commercially valuable species like tuna and mackerel, which means the system is failing to consider the total impact of human interaction with ecosystems. Ineffective management has caused significant ecosystem consequences further contributing to biodiversity loss.³⁹ In crude terms, there is neither oversight nor control over most high seas fishing activities. This is a consequence of the existing regime for biodiversity protection under UNCLOS being fragmented and inconsistent with protections focused on specific problems.⁴⁰

C Marine Protected Areas in the Existing Regime

As aforementioned, neither UNCLOS nor the UNFSA provides for a comprehensive global regime for the protection of marine biodiversity from threats aside from pollution. Neither treaty makes provision for a scheme for the creation of specific conservation mechanisms. As part of the

³³ Bianca Haas and others “Regional fisheries management organizations and the new biodiversity agreement: Challenge or opportunity?” (2021) 22 Fish Fish 226 at 227.

³⁴ Haas and others, above n 33, at 227.

³⁵ Haas and others, above n 33, at 227.

³⁶ Art 10.

³⁷ Katherine McGlade “Regional Fisheries Management Organizations: An Examination of the International Commission for the Conservation of Atlantic Tuna as an International Fisheries Policy Instrument” (Masters Dissertation, Duke University, 2009) at 5.

³⁸ Guillermo Crespo and others “High-seas fish biodiversity is slipping through the governance net” (2019) 3 Nat Ecol Evol 1237 at 1237.

³⁹ “High Seas Treaty Must Reflect Critical Role of Fish in Marine Ecosystems” (14 March 2022) Pew

<www.pewtrusts.org>.

⁴⁰ Amy Hammond and Peter JS Jones “Protecting the ‘blue heart of the planet’: Strengthening the governance framework for marine protected areas beyond national jurisdiction” (2021) Mar Policy 1 at 2.

BBNJ, the development of a system for ABMTS including MPAs was therefore prioritised their success crucial to the success of the BBNJ as a whole.

There are several existing provisions in UNCLOS that support the creation of MPAs through conservation measures, although none are explicit, and the main focus is the facilitation of protection in the EEZs.⁴¹ The UNFSA, through the application of the precautionary approach⁴² and a reduced requirement for scientific evidence to create conservation measures, also supports their creation, although not explicitly.⁴³ More significantly, at the 1995 meeting of the Conference of Parties (CoP) of the Convention on Biological Diversity⁴⁴ held in Jakarta, the so-called “Jakarta Mandate on Marine and Coastal Biodiversity” was adopted, which obliged Parties to establish a network of MPAs within their jurisdiction. Protection of land and sea was also emphasised in the Kunming Montreal Global Biodiversity Framework developed by the CoP under the Convention on Biological Diversity (CBD), which set out a 30 by 30 goal to protect 30 percent of the oceans and land by 2030.⁴⁵

MPAs have been created on the high seas by regional international organisations like the Commission on the Conservation of Antarctic Living Marine Resources (CCAMLR)⁴⁶, an RFMO created under an RFMA, and OSPAR, a dedicated environmental high seas partnership in the North Atlantic.⁴⁷ OSPAR and CCAMLR are some of the only regimes that have developed a successful scheme to set up MPAs in the ABNJ. Despite the examples set by the existence of these regimes, they have been criticised because of the narrow scope of activities that can be regulated under them, a result of their sectoral focus and limited application.⁴⁸ There have been other difficulties with reaching consensus and inadequate scientific information.⁴⁹ These regimes have also demonstrated the need for conservation objectives to be clear in the adoption and

⁴¹ Robin Craig “Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas” (2005) 20 J Land Use & Envtl L 333 at 338.

⁴² The principle that lack of scientific certainty is not an excuse for inaction - Grant Hewison “The Precautionary Approach to Fisheries Management: An Environmental Perspective” (1996) 11 Int J Mar Coast 301 at 302.

⁴³ Christoph Schwarte and Linda Siegele Marine protected areas on the high seas? (Foundation for International Environmental Law and Development, London, 2008) at 14.

⁴⁴ Convention on Biological Diversity 1760 UNTS 70 (opened for signature 5 June 1992, entered into force 29

December 1993).

⁴⁵ Convention on Biological Diversity “COP15: Nations Adopt Four Goals, 23 Targets for 2030 in Landmark UN Biodiversity Agreement” (press release, 19 December 2022).

⁴⁶ Convention on the Conservation of Antarctic Marine Living Resources 1320 UNTS 48 (opened for signature 1 August 1980, entered into force 7 April 1982).

⁴⁷ Created under the provisions of the Convention for the Protection of the Marine Environment of the North-East Atlantic 2354 UNTS 67 (signed 21 September 1992, entered into force 25 March 1998).

⁴⁸ Freestone, above n 19, at 130.

⁴⁹ Elizabeth M De Santo “Implementation challenges of area-based management tools (ABMTs) for biodiversity beyond national jurisdiction” (2018) 97 Mar Policy 34 at 37.

implementation of MPAs, and that effective tools without stringent objectives may be open to manipulation to suit the interests of parties.⁵⁰ This leaves the current MPA system with significant regulatory and implementation gaps. The absence of a globally consistent MPA creation scheme has been the biggest gap. The BBNJ sought to fill this gap.

D The Negotiation and Preparation of the BBNJ

The development of the BBNJ was the result of a lengthy and sometimes tortuous process.⁵¹ The process began when paragraph 73 of UN General Assembly Resolution 59/24, adopted in 2004, provided the mandate for an 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.⁵² Almost a decade later, under UN Resolution 68/70, adopted in 2013, the General Assembly requested that the Ad Hoc Working Group provide recommendations in 2015 to the General Assembly on the development of an Internationally Legally Binding Instrument (ILBI).⁵³ The Working Group’s recommendations stressed that the development of an ILBI was necessary and mentioned Area-based management and MPAs as key topics for discussion.⁵⁴ Importantly, the Working Group noted that the status quo (for example extractive practice) was not being addressed because of lack of political will to implement existing tools for conservation in the ABNJ. Thus, the Working Group proposed an ILBI be established under UNCLOS that still respected the core values of “freedom of the seas” and the “common heritage of mankind” to get states parties’ support.⁵⁵

In 2014, the General Assembly adopted resolution 69/292 to establish a preparatory committee to develop an Agreement on “conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”⁵⁶ In Resolution 72/249 of 24 December 2017⁵⁷, the General Assembly decided to convene an IGC to consider the recommendations of this preparatory committee. During the debate in the General Assembly, Miguel de Serpa Soares, the Under-

⁵⁰ Danielle Smith and Julia Jabour “MPAs in ABNJ: lessons from two high seas regimes” (2018) 75 J Mar Sci 417 at 433.

⁵¹ Efthymios Papastavridis “The Negotiations for a New Implementing Agreement under The UN Convention on the Law of The Sea Concerning Marine Biodiversity” (2020) 69 ICLQ Quarterly 585 at 589.

⁵² Resolution on Oceans and the law of the sea GA Res 59/24 (2004), art 73.

⁵³ Resolution on Oceans and the law of the sea GA Res 68/70 (2013), preamble.

⁵⁴ Letter from Palitha Kohona and Liesbeth Lijnzaad (Co-Chairs of the Ad Hoc Open-ended Informal Working Group to President of the General Assembly) regarding the recommendations requested in paragraph 214 of resolution 69/245 (13 February 2015).

⁵⁵ Above n 54.

⁵⁶ Resolution on Development of an internationally 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 GA Res 69/292 (2015).

⁵⁷ Resolution on the Internationally 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 GA Res 72/249 (2017).

Secretary-General for Legal Affairs, reminded delegates “that not only was marine biodiversity thought to produce a third of the earth’s oxygen, but the oceans were critical to sustaining the earth’s ecosystems and these were facing major pressures.”⁵⁸ The key concern underpinning the creation of this instrument was that there needed to be multilateral capacity to protect biodiversity on the high seas and it needed to be provided for quickly.

In 2019, during the first of the IGCs convened to create the ILBI (IGC-1), the United States delegation expressed the view that they were open to discussions about factoring ABMTs, including MPAs, into the treaty, but they were concerned that this needed to be done in a meaningful way so as to not undermine existing instruments.⁵⁹ Clarification of how this new ILBI scheme would fit into the Multilateral Environmental Agreement (MEA) landscape became a critical subject of negotiation. The issue of the position of the BBNJ was carried through into the subsequent negotiations and is a key consideration in the construction of the tools for marine conservation contained in the final treaty.⁶⁰ One of the specific issues that arose was whether existing regional organisations would be administering the tools in the BBNJ (the so-called regional option) or whether a central body would be set up that would tweak their mandate (the so-called global option).⁶¹ The aforementioned failings of these regional organisations (RFMOs and the like) for many commentators implied a global model, but the strength and mandate of a central organisation was subject to much debate.⁶²

E Framework for Measuring Effectiveness

Having described the background to the creation of the BBNJ, this dissertation aims to provide an evaluation of the efficacy of the BBNJ’s MPA regime in filling the biodiversity protection gap under the current high seas regime. In order to engage in this inquiry, it is imperative to set out a framework for what an MPA regime requires to be effective at preserving and protecting marine biodiversity. This framework provides a foundation for the analysis of “effectiveness” grounded in gaps in the regime for control of the ABNJ that existed in existing international agreements and structures. There are three categories of gaps under the current regime that form the basis for this

⁵⁸ United Nations “As Intergovernmental Conference on Sustainable Use of Marine Biodiversity Begins, Speakers Stress Binding Treaty Critical in Protecting World’s Oceans” (press release, 16 April 2018).

⁵⁹ United Nations “Delegates Say Marine Biodiversity Must Respect Jurisdiction of Coastal States over Their Continental Shelf, as Intergovernmental Conference Continues” (press release, 5 September 2018).

⁶⁰ Above, n 59.

⁶¹ Dire Tladi “The Proposed Implementing Agreement: Options for Coherence and Consistency in the Establishment of Protected Area Beyond National Jurisdiction” (2015) 30 Int J Mar Coast 654 at 656; Davis S Berry “Unity or Fragmentation in the Deep Blue: Choices in the institutional design for marine biological diversity areas beyond national jurisdiction” (2021) 8 Front Mar Sci 1 at 4.

⁶² Hammond and Jones, above n 40, at 3.

framework. These are weaknesses in regulatory scope, the absence of a substantive framework, and ineffective creation and implementation.

Criticisms directed at regulatory scope have largely stemmed from the incapacity of RFMOs and other MPA regimes to regulate a broad range of activities that pose risks to marine biodiversity. As RFMOs function is to preserve and maintain fisheries, broader conservation values and ecosystem preservation are largely ignored. MPAs created by RFMOs like CCAMLR are therefore restrained by their regulatory remit.⁶³ In order to maximise protection, the scope of application of these regimes needed to be broad enough to cover fisheries and ecosystem conservation. The failure of existing MPA regimes to fully prevent the biggest extractive activity leading to declining fish stocks in the high seas is their most serious weakness.⁶⁴ Thus, in order to be effective, the BBNJ would have to meet this criticism by employing a broad regulatory scope and applicability designed to cover the most activities by the most parties possible.⁶⁵ The goal was to increase competences beyond those employed in the existing regime.

Criticisms of the existing regimes’ substantive frameworks are a response to the lack of a consistent and stringent system of MPAs applicable across the high seas. To improve on the current situation, the BBNJ has to provide a more consistent, more robust system of MPAs, as it will apply across the board.⁶⁶ This goal is inherent in the BBNJ but is also reflected by the central position of the BBNJ within the regulatory regime complex.

The final gap stems from the lack of a coherent system but relates specifically to the creation of MPAs. MPAs have been difficult to make with a broad array of associated challenges, including difficulties with reaching agreement and failure to take into account ecosystem vulnerabilities.⁶⁷

These gaps provide a guide for evaluating the effectiveness of the BBNJ MPA regime.

⁶³ Emma Desrochers “RFMOs – What are they and are they enough to protect high-seas fish stocks?” (17 June 2022) SeaFoodSource <seafoodsource.com>.

⁶⁴ Bianca Haas and others “Regional fisheries management organizations and the new biodiversity agreement: Challenge or opportunity?” (2020) 22 Fish Fish 226 at 227.

⁶⁵ Robin Warner “Conservation and Management of Marine Living Resources beyond National Jurisdiction: Filling the Gaps” in Robert C Beckman and others (eds) High Seas Governance: Gaps and Challenges (Brill Nijhoff, Leiden, 2018) 179 at 187.

⁶⁶ Kristina Gjerde Options for Addressing Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (IUCN, Marine Law and Policy Paper No 2, 2008) at 9.

⁶⁷ Nichola Clark “Institutional arrangements for the new BBNJ agreement: Moving beyond global, regional and hybrid” (2020) 122 Mar Policy 1 at 4.

Before undertaking analysis of the BBNJ MPA regime, though, it should be noted that strong obligations will not always achieve the desired result, particularly where there are states with entrenched fishing interests, as there are in ABNJ. Analysis of the effectiveness of the design of environmental regimes frequently makes reference to the binding strength and precision of their legal obligations (so-called legalisation) and their in-built flexibility as two variables that impact on the effectiveness of these regimes.⁶⁸ It has been shown empirically that strong obligations that are imprecise can prove ineffective and that weak obligations that are precise but more flexible may prove more effective in the long run in particular areas of environmental activity where agreement is difficult to reach. ⁶⁹ The design of the BBNJ should thus be approached by being sensitive to those situations where a hard obligation is not only necessary but also possible, and to those where precision and flexibility may prove more effective.

⁶⁸ Kenneth W Abbott and Duncan Snidal “Hard and Soft Law in International Governance.” (2000) 54 Int Organ 421 at 421.

⁶⁹ Tobias Böhmelt and Ulrich H Pilster “International Environmental Regimes: Legalisation, Flexibility and Effectiveness” (2010) 45 Aust J Political Sci 245 at 246.

Chapter Two: Textual Analysis

A Introduction

The finalised BBNJ treaty was adopted at IGC-5 in New York on 19 June 2023. It acknowledged the need for a “comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”⁷⁰ Essentially, the BBNJ attempts to achieve this goal by: establishing a regime for sharing marine genetic resources; providing for the creation of ABMTs, including MPAs; requiring EIAs for activities occurring on the high seas; and supporting capacity building for developing states.⁷¹ My focus is on its provisions for the creation of MPAs.

Throughout the New York conference, the creation of ABMTs, including MPAs, was viewed as a matter of vital importance to ensuring the fulfilment of the target to designate 30 percent of the oceans as protected by 2030 in the Kunming-Montreal Framework.⁷² This chapter analyses the text of the MPA regime against its criticisms. It explores how the regime is designed to operate and identifies the textual shortcomings impacting upon the “effectiveness” of that regime as a conservation measure. Essentially, the question asked is to what extent the MPA regime in the text of the treaty contributes to maximise biodiversity protection on the high seas.

B Definitions

In the final draft of the BBNJ Article 1 (9) defines a “marine protected area” as:

a marine area that is designated and managed to achieve specific long-term biological diversity conservation objectives and may allow, where appropriate, sustainable use provided it is consistent with conservation objectives.⁷³

This definition is inconsistent with the widely accepted MPA definition set out by the IUCN. The IUCN defines an MPA as:

⁷⁰ Robin Craig “Marine Biodiversity: Challenges, Trends, and a New Treaty” (Legal Studies Paper No. 23-7, USC Law, 2023) at 20.

⁷¹ Science Media Centre “A treaty for the high seas – expert reaction” (press release, 8 March 2023)

⁷² Elizabeth Mendenhall, Rachel Tiller and Elizabeth Nyman “The ship has reached the shore: The final session of the ‘Biodiversity Beyond National Jurisdiction’ negotiations” (2023) 155 Marine Policy 1 at 3.

⁷³ 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 UN Doc A/CONF.232/2019/6 (17 May 2019) Part 1, Article 1(9). The definition in Article 1(1) of ABMTs also refers to both conservation and sustainable use.

a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve long-term conservation of nature with associated ecosystem services and cultural values.⁷⁴

The IUCN definition’s exclusive focus on conservation sits at odds with the BBNJ definition’s inclusion of sustainable use. The accommodation of sustainable use with its echoes of the old doctrine of mare liberum is a significant drawback in the BBNJ. It can, however, be argued that this negative impact is ameliorated in the BBNJ’s definition of “sustainable use” as:

the use of components of biological diversity in a way and at a rate that does not lead to a long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.⁷⁵

Using long-term decline rendering potential utility impossible as a yardstick does serve as a base line limitation for sustainable use, but of a difficult-to-determine and easily disputed kind. Instead of completely restricting human activity in the MPA, the allowance of sustainable use in the BBNJ’s definition leaves MPAs open to be used for other activities, including fisheries, so long as these activities are consistent with conservation objectives. This allowance of sustainable use is, however, not surprising as currently only a minority of MPAs on the high seas under other regimes ban all fishing and are “no-take.”⁷⁶ Moreover, this is in spite of the fact that these other MPAs are designated to conserve specific species and habitats. For example, some of the CCAMLR MPAs do not exclude harvesting as long as it is done sustainably.⁷⁷ This is largely down to the inclusion of rational use as part of CCAMLR’s definition of conservation, something relied on by states with fisheries interests.⁷⁸ The BBNJ’s approach is therefore in step with existing practice under fisheries agreements.⁷⁹ The concession to use, sustainable or not, is bound to impact on the BBNJ’s effectiveness as a conservation mechanism given that no-take MPAs are the most effective in preserving biodiversity. No-take MPAs allow fish stocks and ecosystems to be restored as well as

⁷⁴ Scott, above n 11, at 159.

⁷⁵ Art 1(13).

⁷⁶ OECD “Marine Protected Areas: Economics, Management and Effective Policy Mixes” (OECD, Policy Highlights, 2017) at 6.

⁷⁷ Cassandra M Brooks “The Ross Sea, Antarctica: A highly protected MPA in international waters” (2021) 144 Mar Policy 1 at 5.

⁷⁸ Art 2(2).

⁷⁹ Richard Barnes “Fisheries and ABNJ: Advancing and Enhancing Cooperation” in Tomas Heidar (ed) New Knowledge and Changing Circumstances in the Law of the Sea (Brill, Leiden, 2020) 124 at 126.

become more resilient in contrast to partially protective MPAs where some extractive activities still take place which disrupt ecosystem function.⁸⁰

Consistency with conservation objectives is part of the definition of MPA under the BBNJ. It is clear from the regime under CCAMLR that clarity in regard to what “conservation objectives” are essential to identifying the remit of the MPA.⁸¹ Unfortunately, these conservation objectives are not clear from the BBNJ text, although there is potential for their meaning to be clarified and expanded on by the Scientific and Technical Body established under the BBNJ. This is representive of the constructive ambiguity across the text.

Finally, it is important to note that the draft BBNJ from June 2019 did not qualify the purpose of “sustainable use objectives” with limitation clauses such as “where appropriate” and “provided it is consistent with conservation objectives,” that are included in the final draft.⁸² Thus, the language around “sustainable use” in the final version of the BBNJ does not provide a route to ignore conservation in pursuit of “sustainable use.” This is positive as it allows states parties to balance their fisheries needs but establishes sustainable use as secondary to conservation. It appears to have been the best and perhaps only way to achieve the goal of conservation without completely alienating those states with fisheries interests.

C The BBNJ’s MPA Regime

Part III of the BBNJ governs ABMT measures including MPAs. The Part is delineated into sub- parts setting out the following: the objectives of ABMTS; international cooperation; the proposal process; consultation; the establishment process; the decision-making process; emergency measures; implementation; and monitoring and review. Each of these shall be touched on in turn.

D The Objectives of ABMTs/MPAs

Article 17 sets out the objectives of ABMTs and MPAs. These delineate the aim of the MPA regime but also contribute to guiding the operation and scope of MPAs. There are three main themes across these objectives.⁸³

⁸⁰ Enric Sala and Sylvaine Giakoumi “No-take marine reserves are the most effective protected areas in the ocean” (2018) 75 ICES J Mar Sci 1166 at 1167.

⁸¹ Smith and Jabour, above n 50, at 423.

⁸²Above n 73.

⁸³ Art 17(a) – (e).

The first theme is linked to ecosystem resilience in Article 17(a). The BBNJ includes a goal of creating ecologically representative and connected networks of MPAs. This provision is positive as it contributes to establishing networks of MPAs to comprehensively protect a more representative spectrum of marine biodiversity than is currently protected.⁸⁴ This reflects an ecosystem approach. The objectives do not just focus on conservation as maintenance but rather approach conservation as also including restoration and improvement of the health of the relevant high seas ecosystems. This is a stronger conservation mandate than in existing conservation agreements focused on maintenance.⁸⁵ However, the 2019 draft of the BBNJ was even stronger as it included a goal of rehabilitating ecosystems that has been abandoned.⁸⁶ Thus, even though these objectives are positive, they could have been even more rigorous and effective.

The second theme specifically linked to the objective in Article 17(b) relates to establishing the position of the BBNJ MPAs in the regime complex. The objective is coordination with other international organisations. This sets up the harmonisation of different MPA regimes to avoid the lack of clarity that is accompanied by speculating as to the position of a new treaty in relation to these regimes.

The final theme is preserving food security, socio-economic objectives, and supporting capacity building for developing states in Article 17(d). This keeps these goals associated with protecting biodiversity clear so as to not completely focus on conservation rather than sustainability.

E Area Identification and Proposals

Annex 1 of the BBNJ lists twenty-three criteria for the identification of areas for MPAs. These criteria include uniqueness, rarity, sensitivity, and vulnerability, including to climate change and ocean acidification, and so on.⁸⁷ Importantly, in addition to the list provided in the 2019 draft, the following criteria have been added: existence of conservation and management measures, naturalness, cultural factors, and sustainability of reproduction.⁸⁸ These added factors make it possible to indicate a broader scope for the areas that can be identified for the application of MPAs. They also make it possible to recognise the protection of fisheries where the fish species have slower reproductive cycles. As a result, these additions have made the criteria for

⁸⁴ IUCN Establishing Marine Protected Area Networks: A guide for developing national and regional capacity for building MPA networks (IUCN, Non-technical summary report, 2007) at 2.

⁸⁵ Smith and Jabour, above n 50, at 423.

⁸⁶ Art 14(f).

⁸⁷ Annex 1 criteria (a), (b), and (f).

⁸⁸ Annex 1 criteria (v), (l), (p), and (u).

identification more sensitive to conservation goals. However, they will all need a lot of scientific information to prove the criteria are met. Unless the precautionary approach is genuinely embraced, it will be difficult to create MPAs in areas that have not been well researched.

Article 19 then sets out the requirements for MPA proposals. These necessitate consultation and a basis in the best scientific information available. Specific requirements include a description of the environment, existing uses, existing MPAs, and other scientific information available.⁸⁹ One of the only major changes from the 2019 draft is the inclusion of information about other MPAs in the area.⁹⁰ It reflects the idea that developed during negotiations that MPAs could be considered for creation even if they fell under the remit of other competent organisations. However, the emphasis is still on cooperation and in particular the consultation requirements involve a push to facilitate cross-sectoral governance and regime complementarity.

F Consultation and Assessment of Proposals

The BBNJ does not exist in a regulatory vacuum. It is thus important when proposals are made that the secretariat will facilitate consultations on the relevant MPA proposal.⁹¹ Account must be taken of existing regulatory regimes and other interested parties. Article 21(2)(a)(iii) states the secretariat facilitates consultation with adjacent states as to whether there are existing measures in adjacent areas. It contributes to the aforementioned ecosystem approach by taking into account complementary measures. In addition, the secretariat is able to consult with relevant international organisations as to whether there are existing measures and as to their views on the merits of the proposal.⁹² Again, this is positive as it clarifies the regime complex. This consultation period will also be time-bound so as to quicken the process.⁹³ This is particularly important when these tools are reacting to vulnerabilities that are time-sensitive.

G Establishing MPAs

Under Article 22(1) of the BBNJ, the CoP is obliged to take decisions on the establishment of ABMTs, including MPAs and related measures, on the basis of the final proposal and draft management plan.⁹⁴ In doing so, it must take into account the inputs and scientific contributions that it gets during the consultations that it must carry out and the scientific guidance and

⁸⁹ Art 19(4).

⁹⁰ Art 19(4)(i).

⁹¹ Art 21(2).

⁹² Art 21(2)(b)(iii).

⁹³ Art 21(6).

suggestions of the Scientific and Technical Body. The CoP may also take a decision on measures consistent with those already taken by relevant international organisations (for example RFMOs) in cooperation with those organisations.⁹⁵

The CoP’s power to establish MPAs is, however, limited when dealing with areas in which other international organisations already have a mandate. Where the proposed measures are within the competences of such an organisation the CoP may recommend that states parties or organisations “promote” the establishment of such a measure.⁹⁶ The latter recommendatory power recognises that this regulatory space may already be occupied. While it may appear to place the BBNJ in a superior position to existing organisations like RFMOs with competence over them, in practice the need to respect the regulatory competence of other organisations could limit effectiveness. It could constrain MPAs to respect the regulatory remit of, for example, a RFMA or other agreements where the sole focus is not on the protection and sustainable use of biodiversity. This is compounded by the provision that any decisions made under Article 22 (establishment of ABMTs including MPAs) must not undermine other measures made by these organisations. In practice, if there was relatively light regulation under an existing MPA, a stronger, more protective MPA could not be made applicable under the BBNJ to the same area to “trump” it. The focus of the BBNJ is instead on consultation, cooperation, and coordination.⁹⁷ A notable difference between the finalised BBNJ and the June 2019 draft is the absence of an article specifically relating to international cooperation and coordination.⁹⁸ Given the existing complex of MPAs such as CCAMLR and OSPAR, establishing the place of the BBNJ with these other international agreements is essential to its effectiveness. It is particularly important as it helps to set out how MPAs established under the BBNJ will be delivered in areas where MPAs can be established under another agreement.⁹⁹ However, the obligation not to undermine these other MPAs may mean that the more environmentally protective competences of the BBNJ are underutilised.

Finally, it must be pointed out that the BBNJ also provides that where an MPA in whole or in part falls within national jurisdiction, it ceases to be in force, while if it falls within a newly established ABMT of another international organisation, there has to be a process of cooperation and coordination with that organisation to decide its fate.¹⁰⁰

⁹⁵ Art 22(4).

⁹⁶ Art 22(1)(a) and (b).

⁹⁷ Art 22(2)-(4).

⁹⁸ Above n 73, art 15.

⁹⁹ Above n 73, art 15(2).

H The Decision-Making Process

The CoP must take all decisions on the establishment of MPAs and related measures by consensus.¹⁰¹ If consensus cannot be achieved, two-thirds of the parties present and voting must agree that all efforts to reach consensus have failed, at which point decisions can be taken by a three-quarters majority of those parties present and voting.¹⁰² This three-quarter fallback mechanism is a step away from the requirement for consensus applied under other agreements like CCAMLR. It potentially makes it easier to establish MPAs under the BBNJ. The MPA will become binding on parties 120 days after a decision is reached.¹⁰³ However, objections may be entered within this period and then the MPA will not be binding upon that objecting party.¹⁰⁴ The capacity to object is a flexible development that potentially encourages consensus because the route to opt-out of particular MPAs post-agreement is always available. This potential opt out is enhanced by the fact that the grounds for objection are set at a low threshold. These include: inconsistency with the BBNJ; inconsistency with rights and duties of the parties; the decision is unjustifiably discriminating; and that the party cannot comply with the decision after making all reasonable efforts to do so.¹⁰⁵ The last of these criteria sets a particularly low threshold. It is debateable whether too much flexibility has been introduced. Parties may find it easy to object on the basis that a relevant fishery is important to them for economic, cultural or subsistence reasons. There was a lot of contention around the introduction of this mechanism at IGC-5 with concern that progress would not be made as many states would choose to opt out.¹⁰⁶ The objection, however, is qualified by the objecting party being required to adopt other measures in line with the MPAs that are as consistent as possible and do not undermine the effectiveness of the MPA.¹⁰⁷ If the view is taken that the objection process is necessary to reach consensus, then this is a strong fallback obligation that will still contribute to effectiveness.

I Emergency Measures

New Zealand introduced the idea of the possibility of emergency measures into IGC-5.¹⁰⁸ Article 23 obliges the CoP to adopt measures to be applied “on an emergency basis” to address situations where a “natural phenomenon or human-caused disaster” has or is likely to “cause serious or irreversible harm to marine biological diversity” in the ABNJ and “cannot be managed in a timely

¹⁰¹ Art 23(1).

¹⁰² Art 23(2).

¹⁰³ Art 23(3).

¹⁰⁴ Art 23(4).

¹⁰⁵ Art 23(5).

¹⁰⁶ Mendenhall, Tiller and Nyman, above n 72, at 5.

manner” via usual procedure.¹⁰⁹ What these elements require will be elaborated on by the Scientific and Technical Body. As to the threshold for harm, the conference selected “serious or irreversible harm” over “significant adverse impacts.” This is a higher threshold indicating that Article 23 has been watered-down. It will potentially only cover a reduced number of harm scenarios and is therefore likely to be less effective as a biodiversity conservation measure.

It is also interesting to consider that the provision requires consultation with “relevant international organisations.” There may be scenarios where the BBNJ CoP needs to implement a measure where another relevant international organisation (for example an RFMO) cannot create an MPA in a timely manner.¹¹⁰ The necessity for consultation, however, suggests the likelihood of a slow response-time so this measure may not be as effective as intended. Moreover, the necessity to consult is coupled with the requirement for the measure to be based on the best science, which may also slow down the decision-making process and mean that areas of uncertainty are avoided.¹¹¹ The emergency measures including MPAs terminate after two years at which point they may be replaced by another MPA under the BBNJ or another framework.¹¹²

J Implementation

The terms of this Article 17 on Implementation are largely the same as those in the June 2019 draft.¹¹³ The gist is that parties must ensure activities within their jurisdiction are undertaken consistently with the measures for the ABNJ adopted under the BBNJ.¹¹⁴ They may adopt more stringent measures and encourage other parties to sign up to the BBNJ especially if they are actors with interests in the relevant area.¹¹⁵ However, although state parties to the BBNJ may not be a party to or participant in another relevant framework, they “shall not be discharged from the duty to cooperate ... in the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”¹¹⁶ This suggest that states parties remain through their obligations under the BBNJ under a duty to comply with measures even if they are created by another agreement to which they are not party and it is affirmed by the BBNJ.

¹⁰⁹ Art 23(1) and (2).

¹¹⁰ Art 24(2).

¹¹¹ Art 24(3).

¹¹² Art 24(4).

¹¹³ Draft Art 20.

¹¹⁴ Article 25(1).

These provisions support the implementation of and compliance with the BBNJ’s measures in the ABNJ, but not within a stringent mandate backed by an enforcement mechanism. In the initial draft there was more language relating to the requirements for enforcement of measures by states parties as opposed to simply “ensuring compliance.”¹¹⁷ The finalised text of the BBNJ has backed away from a specific enforcement mandate, which weakens effectiveness. Interestingly, the avoidance of a disproportionate burden on “least developed” states and “small island developing” states has also been added since the initial draft.¹¹⁸Additionally, specific provisions in the initial draft encapsulated the idea that existing organisations and instruments are responsible for the implementation and enforcement of MPAs established by them.¹¹⁹ This has since been removed completely as the implementation mandate has shifted away from these instruments and organisations to the BBNJ.

K Monitoring and Review

As in similar regimes the BBNJ provides in art 26 for a system of gathering information from states parties on the implementation of ABMTs including MPAs, as well as from relevant instruments and frameworks if they choose to provide it, in order for the monitoring and review of this implementation to take place.¹²⁰ One positive feature that will enhance public scrutiny is that the information provided by states parties will be publicly available.¹²¹ Reviews will consist of collective reports made to the CoP, and then decisions will be made as to the future of the MPA.¹²² These provisions are largely the same as in the initial draft, with the addition of the invitation to international organisations to present information on existing measures.

L Conclusion

Overall, there are mechanisms to protect biodiversity in the treaty through the establishment of MPAs, the adoption of emergency measures and through clear, if weak, implementation processes. However, there are some parts of the original draft that have been weakened through the negotiation process and some specific mechanisms like the objection requirements that could have adopted a higher threshold to be more effective in maximising protection. In practice, though, it is the scope of measures like MPAs that will largely determine their effectiveness. This scope will be addressed in the next chapter.

¹¹⁷ Draft Art 20(3).

¹¹⁸ Art 25(3).

¹¹⁹ Draft Art 20(7).

¹²⁰ Art 26(1)-(4).

¹²¹ Art 26(1).

¹²² Art 26(5)-(6).

Chapter 3: Scope

A Introduction

Prior to the adoption of the BBNJ as forementioned, the absence of a comprehensive global regime to regulate the biodiversity of the ABNJ had confined efforts to a regional scale. MPAs in the ABNJ had been created under regional multi-lateral agreements like RFMAs with limited activity scope constraining conservation measures to fisheries protection. It was also noted that these RFAs apply only to the limited parties that are signed up to the relevant agreement, which in the case of CCAMLR is 26 states.¹²³ This limited scope reduces effectiveness as other non- contracting parties may still conduct activities within the relevant area and the focus of the MPA is not on protecting marine biodiversity. Delegates of the Ad Hoc Working Group for the BBNJ raised reservations about these regional agreements. As noted above, in response they favoured a global rather than regional model given the more expansive capacity at the global level to effect protection of marine biodiversity through MPAs throughout the high seas.¹²⁴

The effectiveness of the BBNJ MPA mechanisms must be assessed in the context of their capacity to protect marine biodiversity and particularly to test whether the regime is “watertight.” The key inquiry in determining effectiveness is determination of the scope of the BBNJ. The extent to which biodiversity can be protected and how other underlying interests can manipulate the regime will be determined by the extent of the application, regulation, collaboration, and flexibility of the MPA regime.¹²⁵

B Scope of Application to Activities

Article 3 provides that the BBNJ applies “to areas beyond national jurisdiction.” The BBNJ does not expressly identify the specific activities that will be controlled by BBNJ MPAs. The only related requirements are the conservation objective and the criteria for area identification.

1. Exclusions

The scope of activity can, however, be inferred by looking at the specific exclusions in the BBNJ. Article 4 sets out that the BBNJ does not apply to any “warship, military aircraft or naval auxiliary” and any “other vessels or aircraft owned or operated by a Party and used, for the time being, only on government non-commercial service.” This is qualified by an obligation that these vessels act

¹²³ Blasiak and Yagi, above n 3, at 211.

¹²⁴ Odile Delfour-Samama and Cédric Leboeuf “Review of potential legal frameworks for effective implementation and enforcement of MPAs in the high seas” (2014) 71 J Mar Sci 1031 at 1035.

¹²⁵ De Santo, above n 49, at 41.

consistently with the BBNJ so far as is practicable. Essentially, this means that the BBNJ does not apply to states’ non-commercial vessels. A similar sovereign immunity clause is also contained in UNCLOS and relates to immunity from enforcement in other state’s EEZs. Unfortunately, in practice this immunity under UNLCOS has been used by China to coordinate and escort illegal, unreported, and unregulated (IUU) fisheries operations using warships in the Indonesian EEZ.¹²⁶ It suggests that the similar provision in Article 4 of the BBNJ is open to analogous manipulation. Thus, it is arguable that in practice, the use of a state’s vessels for non-commercial purposes will not necessarily preclude fishing, especially under the guise of “scientific research.” While a similar exclusion in CCAMLR expressly applies to vessels conducting scientific research, a similar exclusion is absent here which also points towards a capacity to utilise the exception for “scientific research”.¹²⁷ States may simply argue that a fisheries vessel has a non-commercial purpose to avoid application of the BBNJ to their exploitative activities. This type of excuse has been used under other agreements, like the International Convention for the Regulation of Whaling, because it allows special permit whaling for scientific research.¹²⁸ States have engaged in the killing of whales ostensibly for “scientific research”, but kept the whales for their meat and on-sold them.¹²⁹ Essentially, this exclusion could allow for the same type of activity in arguably a less rigid way (due to the BBNJ containing no specific provisions about scientific research permits), with a consequent negative impact on the effectiveness of the BBNJ. It must be conceded that the directive to act consistently with the BBNJ will mitigate this potential negative impact, although just how effectively remains to be seen. The specific exclusion from the general obligation is clear but too imprecise to achieve the goal of effective control.

More broadly, the BBNJ contains no specific exclusion or inclusion of parameters for regulation of commercial activities or vessels. The indication in Article 1 that ABMTs manage “one or several activities” suggests that there is a broad capacity to regulate across the board. The express exclusion of application to fisheries and fishing under Part 2, Article 10(2),¹³⁰ tends to affirm the lack of an express exclusion in Part 3.¹³¹ The broad regulatory scope therefore should contribute significantly to effectiveness. In this regard, the BBNJ enjoys an advantage over other agreements like OSPAR, where there is no scope to regulate fishing through MPAs. The BBNJ can be used to develop a

¹²⁶ Joy Mangapaul, Idris Idris and Chloryne Dewi “Sovereign Immunity of Non-commercial Government Vessels and Due Regard: China Coast Guard in the Natunas” (2021) 18 IJIL 229 at 231.

¹²⁷ CCAMLR Measure 91-04 (2011) General framework for the establishment of CCAMLR Marine Protected Areas. ¹²⁸ International Convention for the Regulation of Whaling 161 UNTS 72 (opened for signature 2 December 1946, entered into force 1 December 1946) Whaling Convention, art VIII.

¹²⁹ Phillip J Clapham and others “Whaling as Science” (2003) 53 Bioscience 210 at 120.

¹³⁰ Part II, art 4, exclusion of fisheries from the Marine Genetic Resource regime.

¹³¹ Part III, Area Based Management Tools.

more integrated management approach involving collaboration with relevant RFMOs and other international organisations. The regime created by these existing RFMOs has long been criticised based on its incapacity to cover all human uses of the ocean and in particular fishing and maritime transport, as these are the most harmful exploitative practices on the high seas.¹³² Thus, the potentially broad scope of the application of the BBNJ promises effective regulatory capacity. However, we should be cautious as this potentially wide remit may also be detrimentally limited by the functioning of the CoP, as it will not have capacity to restrict all types of harmful activities in the ABNJ.

2. Freedom of Fishing

The traditional principles of the high seas “freedom of fishing” and “the common heritage of mankind,” also pose a barrier to an extensive regulatory scope for MPAs made under the BBNJ. These principles, which support the freedom of states to exploit the resources of the high seas among other things, while part of customary international law, are also part of UNCLOS which sits above the BBNJ.¹³³ Although it has been suggested by academics that the extensive “freedom of the high seas” principle has been eroded by MPAs, the underlying justifications of that “freedom” are still present in the objections of states to specific plans. It is these national interests associated with the freedom to fish and to take from the high seas that manifest in state practice in different forms of opposition to the creation of MPAs. Many states that participated in the negotiation of the BBNJ feared that MPAs would limit access to potential fisheries to which the traditional high seas freedoms have guaranteed unlimited access.¹³⁴ When it comes to the creation of the MPAs agreed upon prior to the BBNJ, this resistance to multilateral control has led to significant debate about the boundaries and the exclusion or inclusion of potentially valuable fisheries. These underlying principles do not have the power to nullify plans for MPAs under the BBNJ, as even under UNCLOS, “freedom of fishing” is not inviolable. However, experience suggests that the principle of “freedom of fishing” may be exploited as a balancing factor to restrict these plans.¹³⁵ For example, in the negotiation for the Ross Sea MPA under CCAMLR, there was a significant reduction in the size of the MPA because of the potential exploitation of emerging krill fisheries in the area.¹³⁶ There is a real risk in the creation of MPAs that these

¹³² Nele Matz-Lück and Johannes Fuchs “The impact of OSPAR on protected area management beyond national jurisdiction: Effective regional cooperation or a network of paper parks?” (2014) 49 Marine Policy 155 at 155.

¹³³ UNCLOS articles 87(1) (e), 87 (3) and 116 of Part VII.

¹³⁴ Yunfeng Qu and Ruiyang Liu “A Sustainable approach towards Fisheries Management: Incorporating the High- Seas Fisheries Issues into the BBNJ Agreement” (2022) 7 Fishes 1 at 5.

¹³⁵ Yong Wang and Xing Pan “Reasonable restrictions on the freedom of fishing in high seas marine protected areas from an international law perspective: an analysis” (2023) 10 Front Mar Sci 1 at 9.

principles will become mobilised again as a justification for objection to restrictive multilateral control and to prevent the meeting of conservation objectives.¹³⁷ The capacity to restrict “freedom of the fishing” and “freedom of the high seas” as justifications for state decision-making needed to be made stronger in the BBNJ itself as it is only really encouraged by the mandate to prioritise conservation. When attempts are made to reach consensus on measures, objections on this basis will almost certainly be made, which will erode protections and slow down the MPA creation and implementation process.

C Area of Application

There are no specific restrictions on the area that is to be regulated by the BBNJ aside from the fact that it must be outside EEZs on the high seas. However, to achieve integrated ecosystem management there needs to be regulation and protection of the water column and the seabed.¹³⁸ Under UNCLOS, the ABNJ is split into “the high seas”, which refers to the water column, and “the area”, which is the sea floor beyond national jurisdiction.¹³⁹ The International Seabed Authority (ISA) has competence over the seabed. This division in authority has been a significant barrier to inclusive oceans governance.¹⁴⁰ Although the proposed use of the ISA as the organisation that would carry all aspects of the BBNJ, including setting up MPAs, would have solved this problem, it was not to be,¹⁴¹ and express provision for coordination with the ISA was needed as part of the BBNJ’s competences to achieve full protection. Otherwise, harmful seabed activities such as mining may be allowed outside of the remit of an MPA made under the BBNJ. Whilst this is not specifically addressed in the BBNJ, importantly there is a clearing house mechanism in art 51 that contemplates coordination and agreement with other international frameworks like the ISA. As the framework is in place permitting the ISA and the future BBNJ CoP to collaborate, the effectiveness of these provisions in achieving conservation goals will depend largely on how the international organisations coordinate their activities in practice.¹⁴² Success will hinge on the conservation goals being aligned across the BBNJ and ISA.¹⁴³ The delegation of this task of achieving alignment to the CoP has the potential to bear positive fruit through effective

¹³⁷ Scott, above n 29, at 853.

¹³⁸ Samantha Robb, Aline Jaeckel and Catherine Blanchard “How could the BBNJ Agreement affect the International Seabed Authority’s Mining Code?” (13 April 2023) EJIL:Talk! <ejiltalk.org>.

¹³⁹ Fae Sapsford “What Is High Seas Governance” (20 July 2022) Ocean Exploration <oceanexplorer.noaa.gov>.

¹⁴⁰ Sabine Christansen and others “Towards and Ecosystem Approach to Management in Areas Beyond National Jurisdiction: REMPS of Deep Seabed Mining and the Proposed BBNJ Instrument” (2022) 9 Front Mar Sci 1 at 12. ¹⁴¹ Joanna Mossop “Marine bioprospecting” in Don Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015) 825 at 839.

¹⁴² Diane Desierto “Development, Marine Biodiversity, and the Common Heritage of Mankind: The ISA’s Deep Seabed Mining Quandary and Complying with the High Seas BBNJ Convention” (10 July 2023) EIJL: Talk!

<www.ejiltalk.org>.

¹⁴³ Christansen and others, above n 140, at 12.

coordination; but this arrangement may also backfire and lead to poor governance and poor biodiversity outcomes. This may particularly be an issue because the ISA and the regime governing the Area is based on the value of the “common heritage of mind” which values extractive activities, thus conflicting with biodiversity protection.¹⁴⁴

D Application to Parties

Another part of the scope linked to effectiveness is the extent to which MPAs made under the agreement are binding upon different states. The capacity to object is arguably one of the “leakiest” parts of the BBNJ due to the low thresholds to object. ¹⁴⁵ However, arguably, this flexibility is a “necessary evil” in the “freedom of the high seas” context as it would be difficult to reach agreement on measures if this option had not been included. The CCAMLR Convention does not have an objection measure, but as it requires consensus at all times for its decision-making, this is not surprising. OSPAR, on the other hand, requires consensus but can create measures with a three-fourths majority if consensus cannot be reached.¹⁴⁶ This is the same mechanism used in the BBNJ. It can be inferred that the objection measure is in place to balance the consensus fallback option – essentially to speed up the creation process and allow states that did not support the measure to avoid being bound instead of the process of taking measures stagnating while states parties try to reach consensus.

It is also worth recalling, as pointed out above, that states parties that are not party to other relevant legal frameworks or bodies are not discharged from cooperation with the protection of biodiversity on the high seas goal when it is implemented through MPAs created under these other frameworks.¹⁴⁷ Essentially, this means the obligation to cooperate extends beyond just MPAs made under the BBNJ. This extended application is important in expanding the scope and contributing to the potential effectiveness of the BBNJ.

Then to be considered is whether and, if so, how the MPAs created by the CoP will apply to non- parties. In Article 25(5), there is a mandate for states parties to “encourage” non-signatory states that can become party to the BBNJ and/or are operating in the area to adopt measures that support the MPAs. While this might seem relatively innocuous on its face, the political pressure it may facilitate has greater strength than the absence of an encouragement provision. Given the

¹⁴⁴ Desierto, above n 142.

¹⁴⁵ See discussion at page 24.

¹⁴⁶ OSPAR Art 13(1) and (2).

¹⁴⁷ Art 25(5).

sovereign equality of states, this pressure may constitute the only path to engagement by non- signatories with the MPA framework.

An argument can also be made that broad acceptance of MPA provisions by states parties to UNCLOS and the BBNJ will extend compliance with BBNJ MPAs to those parties that are signatories to UNCLOS and not the BBNJ. Essentially, the argument is that through state action there would be an ambulatory incorporation of MPA compliance to the interpretation of provisions under UNCLOS for the conservation of marine environment.¹⁴⁸ This is in line with practice under Article 31(3)(b) and (c) of the Vienna Convention on the Law of Treaties (Vienna Convention) that “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” and “any relevant rules of international law applicable in the relations between the parties” may be taken into account in interpretation of that treaty.¹⁴⁹ It has even been suggested that more extensive global multilateral treaties like the UNFSA and the BBNJ will have more influence in interpretation under the UNCLOS than a regional agreement.¹⁵⁰ There is, however, a counter argument that this kind of interpretive cross pollination cannot contribute to reinterpretation unless there is consensus support, which given some states will not be party to the BBNJ, is unlikely. Thus, for example, some parties object to the idea that UNFSA reinterprets UNCLOS.¹⁵¹ This counter-argument could easily be mobilised given the stretch involved in an argument that compliance with MPAs can be used as a valid interpretation of, for example, Article 117 of UNCLOS, which provides that “[a]ll States have the duty to take, or to cooperate with other States in taking such measures for their respective nationals as may be necessary for the conservation of the living resources of the high sea.” It illustrates the limitations of these environmental agreements and the need to secure consent across the board for sheer effectiveness.

A complete consideration of the application of the MPA provisions to non-parties must also consider an inquiry into whether they may apply through customary international law. Article 38 of the Vienna Convention sets out that nothing in articles 34-37 (which refer to the need for consent for a treaty to become binding on a third party) precludes the treaty from becoming binding as part of customary international law. Thus, for example, the United States considers

¹⁴⁸ Alan Boyle “Further Development of the Law of the Sea Convention: Mechanisms for Change” (2005) 52 ICLQ 563 at 567.

¹⁴⁹ Above, n 12.

¹⁵⁰ Boyle, above n 148, at 569.

¹⁵¹ Boyle, above n 148, at 569.

itself bound by UNCLOS although not a signatory.¹⁵² The ICJ in the North Sea Continental Shelf Cases¹⁵³ discussed what it would take for a provision to become a principle of international law. One of the options is that the BBNJ might develop a new norm of international law in the form of an MPA, which would give rise to a general legal obligation.¹⁵⁴ Such a new norm would have to be based on state practice and the view that this practice was legally obligatory, not because it was a treaty obligation but independent of that obligation. A failure to establish these conditions precluded the equidistance rule that was the subject of discussion of the North Sea Continental Shelf Cases from becoming a principle of customary international law. Although the position is murky as to whether a provision originally found in a treaty can bind all states under customary international law, immediate recognition by a substantial number of states can lead to the development of a customary obligation to the same effect as that treaty provision over time.¹⁵⁵ Thus, in regards to the MPAs created in the BBNJ, further compliance may contribute to effectiveness. But we may have to wait some time for the conditions for a custom to be met, and even then, states can be persistent objectors.

Finally, it is worth pointing out that the principle of the “common heritage of mankind” already has an objective existence applicable to all states in regard to the deep seabed under Articles 136 and 137 of UNCLOS, making it possible to argue that activities undertaken by non-parties that interfere with that common heritage are unlawful. Similar objective regimes can also be argued to exist based on a general community interest in the management of the living resources of the sea and in particular as a result of the UNFSA in terms of Article 8(4) and Article 17.¹⁵⁶ It can thus be argued that the BBNJ and the MPA’s created by its CoP is simply the latest iteration in an objective regime binding non-parties that began with UNCLOS and was continued through the FSA and the RFAs and their MPAs.¹⁵⁷ The problem with this argument is the absence of specific measures in the BBNJ expressly obliging third party states not to interfere with MPAs.

¹⁵² Jonathon I Charney “The United States and the Law of the Sea after UNCLOS III: The Impact of General International Law” (1983) 46 Law Contemp Probl 37 at 38.

¹⁵³ North Sea Continental Shelf (W Ger v Sen, W Ger v Neth) [1969] ICJ Rep 3.

¹⁵⁴ Charney, above n 153, at 39.

¹⁵⁵ Gary L Scott and Craig L Carr “Multilateral Treaties and the Formation of Customary International Law” (1996) 25 Denv J Intl Law & Poly 71 at 80.

¹⁵⁶ Richard Barnes “Objective Regimes Revisited” (2000) 9 AsYil 97 at 118.

¹⁵⁷ Peter Davies and Catherine Redgwell, “The International Regulation of Straddling Fish Stocks” (1996) 67 BYIL 199 at 272.

E Scope for Coordination

One of the main questions when reflecting on the effectiveness of the scope of the BBNJ is how an Agreement like this, which applies throughout the high seas, will facilitate and support collaboration with existing international organisations with mandates over the ABNJ, such as the RFMOs, the ISA, the International Maritime Organisation (IMO), and other multilateral regional agreements like OSPAR. Collaboration and coordination are important, providing for complementarity or potential for overlapping mandates. Thus, considering the scope for this is important. In order for the BBNJ to be effective, there needs to be collaboration with organisations with competences over the high seas.¹⁵⁸ Potential overlaps and conflicts with measures taken under the BBNJ and the mandates of other organisations could create gaps in regulation as a result of disordered management.¹⁵⁹ Thus, an important question in relation to scope is whether the BBNJ supports or undermines existing measures for biodiversity protection. This is further emphasised by the need for information sharing and collaboration to implement effective biodiversity protection tools (in the context of a significant high seas scientific information gap), to ensure effective compliance and monitoring, and to help support resilience to climate-based stressors.¹⁶⁰

In Article 5(2) of the BBNJ it is stated that the agreement shall be:

Interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those frameworks and bodies.

The starting point of relations between the BBNJ and these regimes is sets out in this provision; the goal is not only not to undermine but to promote coherence and coordination. However, this mandate may not be that simple to adhere to as the ABNJ is so “regime complex.”¹⁶¹ There is also an argument to be made that whilst it may be good not to undermine other international organisations, in doing so the BBNJ must be careful not to subordinate itself in the hierarchy of

¹⁵⁸ Arne Langlet and Alice Vadrot “Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex” (2023) 147 Mar Policy 1 at 1.

¹⁵⁹ Yi Tang, Wenjin Chen and Yanxuedan Zhang “International cooperation and coordination in the Global Legislation of High Seas ABMTS including MPAs: Taking OSPAR practice as reference” (2021) 133 Mar Policy 1 at 5.

¹⁶⁰ Arne Langlet and Simon Fellinger “Navigating the marine biodiversity regime complex – How will the BBNJ instrument interact with other organisations?” (17 February 2023) MARIPOLDATA <www.maripoldata.eu>. ¹⁶¹ Langlet and Fellinger, above n 160.

importance of these regimes. This is essential as the other agreements under which MPAs are made have different regulatory scope as forementioned.

Consideration of how these regimes relate to each other leads to another potential problem. Will the fact that there is seemingly no hierarchy to the agreements for the creation of MPAs facilitate forum shopping? States may select the international organisation under which it is easiest to create their proposed MPA in order, for example, to avoid the need for the consent of a particularly difficult party. Overall, the potential for forum shopping has been seen as both a positive and negative consequence of having an existing regime complex. Competition between international organisations can potentially undermine the existing regime but also strengthen resource availability across the board.¹⁶² However, there is a strong argument to be made that given the comprehensiveness of the BBNJ regime and its broad application there is a clear hierarchy in terms of effectiveness in protecting biodiversity, and it is at the top. If an MPA was to be made under a regional agreement, for example, CCAMLR, it would not apply to as many parties and therefore would be less effective as it would bind fewer parties. Thus, states should be encouraged not to forum shop. The emphasis needs to be put instead on cooperation between different international organisations to facilitate information sharing and coordination, in order to reinforce the notion that they are part of a single regime for the control of the ABNJ. Several articles in the BBNJ emphasise coordination and cooperation. For example, when proposals are made, Article 19(2) indicates that parties should collaborate and consult as appropriate with international organisations. Consultation is also possible under Article 21 on proposals to other international organisations. When establishing MPAs, the CoP may take decisions on measures compatible with those adopted by other International Organisations as per Article 22(1)(b) and where measures are within the competence of other bodies, it may make recommendations for other bodies to adopt them under their mandates. Despite a concern that this may result in too much deference to other international organisation that have a less extensive application, there clearly is an emphasis on cooperation and coordination. Lastly, Article 21(4) sets out that the CoP may decide to promote coordination and communication and not undermine other international organisations to develop a mechanism regarding existing MPAs adopted by these international organisations.

Overall, it appears that within the text of the BBNJ, the significant emphasis on coordination and coherence lends itself to collaboration with other international organisations. For maximum effectiveness, this emphasis needs to be maintained to preserve the conservation of biodiversity

¹⁶² Langlet and Vardot, above n 158, at 2.

goal, but in doing so, the CoP should position the BBNJ at the pinnacle of this ABNJ regime pyramid.

F Institutional Scope

The scope of the activities of the various institutions that contribute towards the architecture of the BBNJ is particularly important as it contributes to what will be able to be achieved through the regulatory and review functions of these institutions. As already pointed out, in the negotiations there was a split in support for regional and for globalised governance. Some states supported administration of the treaty through existing RFMOs while others wanted a new international body. Support for globalised governance won out and the existing arrangements have a strong and expansive mandate. This is arguably a positive outcome. Regional organisations like OSPAR have found it difficult to coordinate and reach agreement on the implementation of MPAs with other International Organisations like the ISA.¹⁶³ A regional model where MPAs were governed solely by RFMOs would also have potentially meant that the conservation of biological diversity was put on the back burner in favour of fisheries management. Parties against a regional model argued that it would have had to exclude fisheries from the scope of the BBNJ as it would have undermined RFMOs. This would have been fatal to conservation efforts with fisheries being such a harmful and extractive activity.¹⁶⁴ The BBNJ’s stronger and more expansive mandate and capacity covering many different activities is strengthened by globalised governance through the CoP and the related institutions. This globalised model essentially counteracts potential issues with not having a clear hierarchy of international instruments.

There are three principal structures within the BBNJ:

1. Under Part VI, a CoP is established, which will meet at regular intervals. Article 47(7) allows the CoP to request an advisory opinion form the International Tribunal for the Law of the Sea.

2. Under Article 49, a Scientific and Technical Body is established. Composed of members serving in their expert capacity, nominated by parties.

3. Under Article 50, a secretariat is established.

¹⁶³ Kristine Kraabael “Institutional arrangements in a BBNJ treaty: Implications for Arctic marine science” (2022) 142 Mar Policy 1 at 5.

¹⁶⁴ Clark, above n 67, at 5.

These bodies are designed to work together. Particularly crucial to the CoP taking on a globalised role is its ability to create MPAs throughout the high seas. This process of establishment requires assistance from the Scientific and Technical Body to set out requirements for MPA identification and engage with other international organisations to share information. Clarity from the Scientific and Technical Body will enhance effectiveness as it will streamline identification processes.

G Implementation and Compliance Scope

MPA regimes have been criticised across the board for only existing on “paper.” Without enforcement, regulation of MPAs is often restricted to flag-state enforcement, which comes with issues relating to the flags of convenience phenomenon.¹⁶⁵ For an MPA to be effective, there needs to be consistent monitoring and surveillance as well as legal competence over an area.¹⁶⁶ The scope of the BBNJ to implement and encourage compliance by parties is thus key to effectiveness of the MPA regime. Without compliance there will be no protection.

Alongside the principal institutions, the BBNJ makes provision for the setting up of an Implementation and Compliance Committee to promote compliance in a “transparent, non- adversarial and non-punitive” manner.¹⁶⁷ This provision creates the capacity to consider compliance with MPAs but also illustrates that it is not going to be achieved through strong enforcement measures.

H Reflections on Scope

The BBNJ’s strengths lie in the capacity of the MPAs created by the CoP to regulate a range of activities including fishing and polluting within the ABNJ. There are some notable drawbacks, however, most particularly in relation to balancing freedom of fishing and the capacity of states to choose non-compliance through the objection process. Flexibility, though, was to be expected given the entrenched nature of high seas freedoms and interests, particularly in fisheries that are prioritised by states.

The thorniest part of analysing the scope is trying to comprehend how the BBNJ fits into the “regime complex.” From an effectiveness standpoint, the overriding concern is that the BBNJ should not be undermined by the interests of other international organisations and that it should

¹⁶⁵ Matz-Lück and Fuchs, above n 132, at 156.

¹⁶⁶ Matz-Lück and Fuchs, above n 132, at 171.

¹⁶⁷ Art 55(1).

take its position at the top of the regulatory pyramid. Given the unique mandate and purpose of the BBNJ in preserving biodiversity, establishing it at the top of a hierarchy is essential to not undercut that purpose.

Chapter Four: Creation and Regulation of MPAs

A Introduction

Consideration of the scope of the BBNJ MPA regime does not give a full picture of its “effectiveness.” To also be considered are the mechanisms and features of the treaty that support the creation and regulation of high seas MPA. The capacity of these mechanisms to facilitate the ease and extent of MPA creation will have a direct impact on the BBNJ’s utility as an instrument in preserving marine biodiversity. Thus, it is important to identify the features of the BBNJ that can contribute positively to the creation of MPAs. These features can be identified using the effectiveness framework set out in chapter one. It is useful to focus on the difficulties that other international organisations have encountered in creating MPAs.

Three principal mechanisms essential to the effective establishment of MPAs can be identified. First, there must be the capacity to fully embrace the “precautionary approach” given the research and information gap on the high seas.¹⁶⁸ Then there must be mechanisms to create MPAs that ensure that it does not prove to be so difficult to reach agreement between parties that the mechanisms themselves pose a real hurdle to the creation of MPAs. Finally, the measures to create MPAs have to be flexible enough to contribute to resilience in the context of a changing ocean and global environment.

B The precautionary approach

One of the most significant barriers to the establishment of MPAs has been the inability of international organisations to embrace the precautionary approach. The precautionary approach (sometimes also referred to as the “precautionary principle” in the BBNJ)¹⁶⁹ has been defined in the Rio Declaration as ensuring that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”¹⁷⁰

The precautionary approach has not always been taken in the creation of MPAs by RFMOs. They have relied on the fact that the high seas is an information-poor context to avoid identifying areas

¹⁶⁸ Daniel Wagner and others “The Salas y Gómez and Nazca ridges: A review of importance, opportunities and challenges for protecting a global biodiversity hotspot on the high seas” (2021) 126 Mar Policy 1 at 9.

¹⁶⁹ Art 7(e).

¹⁷⁰ Rio Declaration on Environment and Development in ‘Report of the United Nations Conference on Environment and Development’ UN Doc A/CONF.151/26 (vol I) (12 August 1992) (Rio Declaration) principle 15.

that have not met the formal criteria for designation as MPAs.¹⁷¹ For example, the CCAMLR Commission has struggled to establish MPAs because it has been hampered by a lack of indicative scientific information to designate an area as an MPA.¹⁷² As a result of the emphasis the CCAMLR commission has placed on a science-based approach, insufficient scientific data has meant that proposals for MPAs have not been accepted.¹⁷³ This has had the effect of reducing the scope of MPA mechanisms to exclude poorly documented areas.¹⁷⁴ This restrictive approach is caused by the failure of the Commission to embrace the precautionary approach. Proposals with less information to support implementation of the MPA are subject to a greater scrutiny than others.¹⁷⁵ In practice, it has been hard under CCAMLR particularly to gain support from participating states where there may be vagueness in the information requirements for MPA proposals. Knowledge gaps in MPA proposals are often exploited by states that have alternative agendas for the identified areas.¹⁷⁶ It has been easier to establish MPAs where a clear need to protect biodiversity has been acknowledged based on extensive evidence.

The failure to adopt the precautionary approach is illustrative of a recurring issue that permeates throughout existing high seas MPA regimes - given the option, states will rely on any uncertainty to push their own agendas. It has been a particularly significant problem for the CCAMLR Commission with competing fisheries interests at stake.¹⁷⁷ The failure on the part of the parties to embrace the precautionary approach has been compounded by the failure of the governing organisation to ensure that the precautionary approach is emphasised in practice, particularly in relation to the regulation of fishing.¹⁷⁸ Ironically, CCAMLR has been lauded for its role in shaping the underpinnings of the precautionary approach and in particular regarding the tools created to account for uncertainty in resource assessment.¹⁷⁹

The scientific information gap is a fact of the high seas. It calls for a firm embrace of the precautionary approach, included as part of existing MEAs and the BBNJ. The possibility that

¹⁷¹ B C O’Leary and others “The first network of marine protected areas (MPAs) in the high seas: The process, the challenges and where next” (2012) 36 Mar Policy 598 at 600.

¹⁷² Tang, Chen and Zhang, above n 159, at 7.

¹⁷³ Laurence Cordonnery and Lore Kriwoken “Advocating a Larger Role for Environmental Nongovernment Organizations in Developing a Network for Marine Protected Areas in the Southern Ocean” (2015) 46 Ocean Devt Int Law 188 at 196.

¹⁷⁴ O’Leary and others, above n 171, at 600.

¹⁷⁵ Smith and Jabour, above n 50 at 422.

¹⁷⁶ Smith and Jabour, above n 50 at 422.

¹⁷⁷ Cassandra M Brooks and others “Reaching consensus for conserving the global commons: The case of the Ross Sea, Antarctica” (2019) 13 Conserv Lett 1 at 8.

¹⁷⁸ Graeme Parkes “Precautionary fisheries management: the CCAMLR approach” (2000) 24 Mar Policy 83 at 92.

¹⁷⁹ Parkes, above n 178, at 92.

inaction could have a significant ecosystem cost means that the duty to give effect to the precautionary approach to create an MPA that ensures a more representative ecosystem is extremely strong.¹⁸⁰ However, the existing practice and the clear lack of will by states to embrace the approach is troubling. The precautionary approach was developed as a response to incompatibility of state sovereignty with solutions to global problems.¹⁸¹ It is supposed to be a tool that can be used to restrict self-interest through prioritisation of conservation values. There has been some success with its use in the North Atlantic Current and Evlanov Sea Basin MPA created under OSPAR to protect sea birds. It is spatially extensive and includes a precautionary buffer zone even though there was limited scientific information available about the area.¹⁸² However, the limited remit of OSPAR and the lack of conflict with fisheries interests meant it was easier for states and the OSPAR commission to adopt a precautionary approach and thus it does not provide a good comparator for what might occur under the BBNJ (except perhaps in a similar situation of limited fisheries interests).

To fully embrace the precautionary approach, there needs to be a system to balance scientific uncertainty with the potential for environmental harm that prioritises conservation. The criteria in Annex I of the BBNJ for identification of an MPA area include “uniqueness”, “special importance for the life history stages of species, and “important ecological processes occurring therein.” ¹⁸³ These criteria suggest greater dependence on scientific certainty than precaution in the establishment process, and arguably it will thus be difficult for parties to justify taking the precautionary approach if evidence of these criteria is absent. The Scientific and Technical Body should expand upon how the precautionary approach is to be used, as the current regime in the context is unbalanced in favour of meeting these scientific criteria. To be effective in practice, there will need to be a greater emphasis on precaution in order to protect potentially vulnerable ecosystems.¹⁸⁴

¹⁸⁰ Rebecca Lahl “Challenges to the establishment of CCAMLR Marine Protected Areas (MPA): A stakeholder analysis of interests and positions” (Masters thesis, Humboldt University, Berlin, 2015) at 6.

¹⁸¹ David Freestone “International Fisheries Law since Rio: The Continued Rise of the Precautionary Principle’ in Alan Boyle and David Freestone (eds) International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press, Oxford, 1999) 135 at 137.

¹⁸² Tammy Davies and others “Tracking data and the conservation of the high seas: opportunities and challenges” (2021) 58 J Appl Ecol 2703 at 2706.

¹⁸³ Annex 1.

¹⁸⁴ Tanya Wagenaar “A principled approach for BBNJ: An idea whose time has come” (2022) 31 RECIEL 399 at 405.

C Agreement and the Consensus Issue

Experience in the creation of MPAs indicates that the need to reach consensus to approve proposals is a problematic barrier to the creation of MPAs on the high seas. For example, Article XII(1) of CCAMLR provides that when decisions are made on matters of substance they must be made by consensus. There are a number of negative consequences resulting from this requirement which could be mirrored in the BBNJ.

Consensus based decision-making has meant that the creation of MPAs has become a protracted process. States may not agree on what the MPA should include and the area it should encompass resulting in difficult and drawn-out negotiations. The proposed East Antarctic Representative system of MPAs is an example. Proposed by Australia and France in 2010, after discussion it was reduced by 30 per cent in size and yet it has still not been agreed upon by the parties to CCAMLR.¹⁸⁵

The kinds of solutions needed to reach consensus create a second problem. As a result of rejection by some states, the original protective ambitions of the MPA have been scaled back to make proposals more agreeable.¹⁸⁶ The Ross Sea MPA is a good example. Although first proposed in 2003 it was only agreed upon by the final objector, Russia, in 2017. During this time and particularly during the five-year period from 2012 on, there were significant periods where negotiation resulted only in disagreement. Difficulties included “divided” parties and certain objectors taking “entrenched” or “stagnant” positions.¹⁸⁷ These positions related to fishing, concerns with lack of scientific information, concerns with proposing networks of MPAs that would erode existing freedoms, and so on.¹⁸⁸ With potential restriction of their freedom of action in these areas at stake, parties were willing to take any slight point of dispute or vagueness within the proposal to halt negotiations in order to continue to pursue their own agendas. This is a good example of how the struggle to build consensus is used by states to prevent agreement on an MPA.¹⁸⁹ In order to achieve consensus, the interests of consistent objectors like Japan, Russia and China had to be accommodated. For example, the original Ross Sea proposal was reduced from

2.1 million km² to 1.55 million km² and ended up including a “special research zone” and a “krill

¹⁸⁵ Smith and Jabour, above n 49 at 418.

¹⁸⁶ Inigo Everson “Designation and management of large-scale MPAs drawing on the experiences of CCAMLR” (2015) 18 Fish Fish 145 at 18.

¹⁸⁷ Brooks, above n 177, at 6.

¹⁸⁸ Brooks, above n 177, at 8.

¹⁸⁹ Brooks, above n 177, at 8.

research zone.”¹⁹⁰ These zones are not no-take zones and have been left open to particular fishing activities in the interests of consistent objectors.¹⁹¹ Manipulation and stagnation as a result of the need to reach consensus poses a real risk to effectiveness. In the context of biodiversity protection there is no room to spend more than twelve years attempting to negotiate an MPA absolutely suitable to all parties. Damage caused to ecosystems in the meantime is irreparable.¹⁹² This kind of lengthy process is at odds with effectiveness of any MPA, including those made under the BBNJ. Its impact on effectiveness is only compounded by the fact that due to climate change and the warming of oceans, fish stocks and biodiversity will be shifting, which means by the time an MPA is created the stocks that need protecting may not be within the MPA area. ¹⁹³ It is also noteworthy that where MPAs are created, they may only be protecting the “low-hanging fruit.”¹⁹⁴ In other words, in order to reach consensus, the MPAs that are selected may be areas devoid of fishing activities and other interests. They may not be subject to the extractive activities that pose a risk to marine biodiversity. In many situations, the MPAs will be ineffective as the requirement that they are built on consensus forces the avoidance of their application to those ecosystems most in need.

This issue is reflective of the well-known difficulty of pursuing a goal of environmental protection by relying on international law, a consent-based system. The sovereign equality of states and the requirement of consent have long been criticised for their incompatibility with the assertion of international community interests over individual state interests and effective problem solving with regard to the environment. Krisch wrestles with the example of the international law system dealing with “public goods” (those that are non-excludable and non-rivalrous). He points out that the international law system is critiqued by those grappling particularly with significant problems that require large collective responses like environmental harm as it is neither fast nor facilitative of agreement.¹⁹⁵ Krisch quotes Nordhaus, an influential economist, who puts it starkly: “the requirement for unanimity is a recipe for inaction.”¹⁹⁶ To counter inaction, reliance has been placed on unilateral, multilateral agreements without objecting parties and informal agreements. It is interesting to reflect on whether these are better options than the BBNJ in this context, particularly

¹⁹⁰ Brooks, above n 177, at 2.

¹⁹¹ Brooks, above n 177, at 8.

¹⁹² “How MPAs Safeguard the High Seas” (19 August 2019) Pew <www.pewtrusts.org>.

¹⁹³ Karen Scott “The BBNJ Agreement: Strengthening the Oceans-Climate Nexus?” in James Kraska, Ronan Long and Myron H Nordquist (eds) Peaceful Maritime Engagement in East Asia and the Pacific Region (Leiden, Brill, 2023) 403 at 413.

¹⁹⁴ Smith and Jabour, above n 50, at 419.

¹⁹⁵ Nico Krisch “The Decay of Consent: International Law in an Age of Global Public Goods” (2014) 108 AJIL 1 at 3.

¹⁹⁶ Above n 195, at 5.

as more veto players inevitably make it more difficult to use international law to achieve environmental protection.¹⁹⁷

As noted above, though, the BBNJ does contain an innovative stalemate breaking mechanism not found in CCAMLR but contained in some MEAs: if all efforts to reach consensus fail, a decision may be reached on a three-fourths majority of those parties present after a two-third majority of have decided consensus may not be reached.¹⁹⁸ It provides a potentially flexible response to the problem with international consensus that Krisch identified. This provision is also part of the regime under OSPAR in Article 13(1). However, in practice consensus has always been reached under OSPAR on the creation of MPAs.¹⁹⁹ The fact that it has been generally easier to create MPAs under OSPAR can be attributed to the narrower scope of OSPAR (particularly the exclusion of fisheries) and greater ownership over the agreement by parties given their smaller number.²⁰⁰ It may be that the availability of a fall-back mechanism of majoritarian voting also tended to push states towards consensus. Some commentators have also noted that memorandums of understanding and work with other organisations under OSPAR has meant there is less wiggle room for objections in negotiations.²⁰¹ This may also prove to be the case under the BBNJ given the requirements for consultation. However, the lack of a precedent of use of the majoritarian fallback under OSPAR makes it difficult to predict whether, and if so, how, the mechanism will be used under the BBNJ. If it is applied effectively, it may be useful to make progress where states have divergent interests. On the other hand, it may also alienate some key interested states from becoming or continuing as signatories if their interests are continually trumped by a three-fourths majority. On the whole though, the provision within the BBNJ permitting states to object after decisions to implement MPAs are made, may prove a useful response to the risks inherent in majoritarian decision-making in international law without a complete breakdown.

If consensus fails, is this fallback enough to ensure the effectiveness of the BBNJ when creating MPAs? It may have some effect on the speed and strength of the development of MPAs if disagreement as a barrier is removed. It may also be that the aspirations and purposes of the BBNJ to pursue biodiversity protection will result in a decline over time in objections by states parties to

¹⁹⁷ Above n 195, at 5.

¹⁹⁸ Art 23(2).

¹⁹⁹ Smith and Jabour, above n 50, at 420.

²⁰⁰ Smith and Jabour, above n 50, at 422.

²⁰¹ Tang, Chen and Zhang, above n 159, at 7.

the competency of the BBNJ to create MPAs.²⁰² Thus, there may be less disagreement and failure to reach consensus, particularly given the outlet of the objection mechanism. However, if, in practice, as under OSPAR the conference maintains the need to ensure consensus and states parties with strong fisheries interests do not agree to the creation of an MPA, it may be that the MPA creation process will prove entirely fruitless. It would be difficult to move past this barrier based on evidence of the glacial slowness of the process under CCAMLR. The potential for inertia would likely be even greater under the BBNJ given the potentially hundreds of signatories as opposed to only twenty-seven under CCAMLR. The greater number of parties has been identified as a factor in the sluggish road to consensus under CCAMLR when compared to OSPAR.²⁰³ Even if parties were to agree to MPAs, they may be unsuccessful in providing biodiversity protection in the areas these MPAs regulate if there is need in their creation to appease potentially problematic parties. Considering the dynamics of political pressures and based on the practice in OSPAR, it seems probable to me that consensus will be sought within the CoP, at least at the outset of its operations, and that this will be to the detriment of the protection goal. Only aggressive diplomacy by key states parties in the CoP will lead to it immediately resorting to the majoritarian/objector process if initial efforts to achieve consensus were frustrated. The process for making MPAs may prove to be the soft underbelly of the BBNJ.\

D Emergency Measures

As also explored above, the release of the final BBNJ text saw the inclusion of emergency measures for the creation of MPAs. Under Article 24(1), the CoP may create MPAs or other ABMTs without the lengthy proposal process where a “natural phenomenon” or “human caused disaster” has or will cause “serious or irreversible harm” to marine biological diversity in the ABNJ.²⁰⁴ Creation of an MPA using these emergency measures still requires consultation, scientific underpinning and consideration of the precautionary approach. The MPA remains in place for two years at which point the MPA will be revised by the CoP.

The inclusion of this provision is prudent, particularly to bring the BBNJ processes in line with the precautionary approach.²⁰⁵ However, the main question that contributes to the effectiveness inquiry is: what constitutes “serious or irreversible harm”? The choice of “serious or irreversible harm” as the threshold for an emergency situation was a hotly contested within BBNJ

²⁰² Lynda Goldsworthy “Consensus decision-making in CCAMLR: Achilles’ heel or fundamental to its success?” (2022) 22 Int Environ Agreem 411 at 430.

²⁰³ Smith and Jabour, above n 50, at 422.

²⁰⁴ Art 24(1)

²⁰⁵ De Santo, above n 49, at 37.

negotiations.²⁰⁶ It appears read literally to apply to any potential loss of biodiversity and disruption of the ecosystem. This would be pertinent and valuable to the protection goal, as MPAs could be created through the emergency process in response to overuse of extractive activities. Under the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, the South Pacific Regional Fisheries Management Organisation may take a similar measure. However, it is specifically linked to the limitation of fishing.²⁰⁷ If “serious or irreversible harm” encompasses overfishing, the emergency mechanism could potentially be very useful and increase the speed of MPA creation where fisheries interests are involved and the consensus mechanism slows creation down. Therefore, it could contribute significantly to the effectiveness of the BBNJ. However, guidance on the interpretation of what constitutes “serious or irreversible harm” will only be considered by the Scientific and Technical Body when it is in operation.²⁰⁸

E Flexibility

The final measure within the BBNJ that has an impact on effectiveness is the flexibility provided for in the BBNJ to adapt to the shifting vulnerabilities of biodiversity. This flexibility is becoming increasingly necessary as a result of the changes to the ocean environment caused by climate change. These changes mean that after the MPA has been established over a defined area, the biodiversity that exists within a certain area will change, and the criteria identified in the establishment of the MPA will no longer be applicable. If that proves to be the case, the relevant MPA will not be able to meet its conservation objectives thereby becoming steadily more ineffective and eventually redundant.²⁰⁹ There is thus a need for the MPA framework to be able to react to these changes.

So, what does the BBNJ scheme need to acclimatise? Two key capacities can be identified as necessary to adapt to the changing climate context. The first is the capacity for MPAs to be reviewed regularly in terms of their effectiveness in protecting biodiversity. The second is the capacity for MPAs to be created as climate refugia to respond to changing marine conditions.

²⁰⁶ Mendenhall, Tiller and Nyman, above n 73, at 6.

²⁰⁷ Carole Durussel, Eulogio Oyarzún and Osvaldao Urrutia S “Strengthening the Legal and Institutional Framework of the Southeast Pacific Focus on the bbnj Package Elements” (2017) 32 Int J Mar Coast 635 at 650.

²⁰⁸ Glen Wright, Klaudija Cremers and Julien Rochette “Commentary – A High Seas Treaty on the Horizon: Progress and Prospects for the Intergovernmental Conference” (2023) 37 Ocean Yearb 30 at 33.

²⁰⁹ David Johnson, Maria Ferreira and Ellen Kenchington “Climate change is likely to severely limit the effectiveness of deep-sea ABMTS in the North Atlantic” (2018) 87 Mar Policy 111 at 116.

The capacity for review of the area and the protective capacity of MPAs is spelled out in Article 26 of the BBNJ. It mandates that parties must report back to the CoP and invites international organisations to report on implementation of MPAs as well. The MPAs established under the BBNJ will also be reviewed by the Scientific and Technical Body on effectiveness. Following review, the CoP will then make decisions on the MPAs including on amendment, extension, and revocation. The existence of a review mechanism and the capacity to alter the MPA to adapt to the changing climate related situation is a positive. However, clarity on the timeframe for review would have been useful in order to respond to changing oceanic environments and shifting ecosystems.

The other element of flexibility is the capacity to create MPAs that are climate refugia. Climate refugia are areas that have been identified as resilient to climate change and the effects of ocean acidification.²¹⁰ These refugia are necessary to strengthen ecosystems from the effects of climate change and provide sanctuaries for shifting fish stocks.²¹¹ The definition of MPA in the BBNJ is focused on stringent spatial management, which does not sit well with a changing and unpredictable climate. The idea that MPAs could be made for climate refugia also sits at odds with the indicative requirements for identification of areas in Annex I. These include “representativeness”, “uniqueness”, and “rarity”, which will not necessarily be met in a low-density area that may be suitable as refugia. In saying this, there is another indicative criterion that contributes to the identification of refugia: “vulnerability, including to climate change and ocean acidification.” However, in practice, it may be difficult to justify the protection of a non- ecologically important area on the sole basis that it has potential to become a refugia. The focus would need to be on ecological support rather than where a particular species is located.²¹² The fact that the capacity to designate climate refugia has not really been developed within the BBNJ is reflective of the fact that the oceans-climate nexus has not yet been properly included within the underpinnings of a multilateral environmental treaty. This reflects the lack of will of states to include adaptive climate change responses within these types of agreements.²¹³ Instead, responses are contained within broader mitigation goals. Thus, the BBNJ is not effective in including a specific capacity to create MPAs with climate resilience in mind.

²¹⁰ Scott, above n 193, at 407.

²¹¹ Toni Morelli and others “Climate-change refugia: biodiversity in the slow lane” (2021) 18 Front Ecol Environ 228 at 233.

²¹² Johnson, Ferreira and Kenchington, above n 209, at 120.

²¹³ Scott, above n 193, at 408.

Overall, these mechanisms advance effectiveness as they contribute to the ease of establishment of appropriate MPAs. However, as I have shown, there are significant problems with these elements of the BBNJ regime that are reflected in the existing practice of other MEAs. Given the aforementioned weaknesses in the drafting and potential weaknesses in practice, the success of this new regime will rely on how the precautionary approach is embraced and whether consensus is sought. Existing regional practice indicates that there are likely to be significant issues in reaching agreement and in not allowing the underlying self-interest of states to hold back the mechanisms that support MPA creation.

Conclusion and reflections

On 19 June 2023, at the final agreement by negotiating states to the BBNJ, UN Secretary-General António Guterres said “the ocean is the lifeblood of our planet and today you have pumped new life and hope to give the ocean a fighting chance.”²¹⁴ This dissertation essentially sought to identify whether this statement is true through an assessment of the effectiveness of the MPA regime.

The weaknesses identified were particularly associated with those parts of the BBNJ that give room for states to pursue self-interested agendas that conflict with the protection of biodiversity and those parts where the regime does not have the flexibility to deal with different protection scenarios. These are particularly linked to constructive ambiguities. There is a significant risk that these limitations will contribute to the slow and weak implementation of protections that will be overridden by the desire to retain the “freedom of fishing” principle. Examples include the potential difficulties with reaching consensus leading to erosion of MPA ambition and protection of the “low-hanging fruit.” In essence the risk that MPAs become paper parks are not effective in conservation.

From the discussion of these ambiguities, three conclusions can be drawn in relation to effectiveness and the relative challenges in reaching it.

First, undermining the conservation and protective ambitions of MPAs in favour of achieving consensus is a key problem illustrated by the problems CCAMLR faced in the Ross Sea.²¹⁵ Arguably, this is reflective of a broader problem with many international environmental agreements in that achieving control over state activities is often prioritised above protective ambition. Environmental protection is minimised to reach more agreeable outcomes for plenipotentiaries. The BBNJ thus has to achieve the fine balance between not leaving states to destroy ecosystems through weak protections, allowing the continuance of overfishing, and achieving any control at all. From the analysis it seems that flexibility within the system will facilitate reaching this balance. The consensus fallback measure, emergency measures, and general ambiguities in the text all contribute to this flexibility.

²¹⁴ United Nations Secretary-General “Note to correspondents – press release on historic agreement adopted for conservation and sustainable use of biodiversity in over two-thirds of the ocean” (press release, 19 June 2023).

²¹⁵ Smith and Jabour, above n 50, at 418.

Second, there is a significant challenge relating to where the BBNJ sits or should sit in the high seas regime. The existing regime complex has made the position in relation to the BBNJ and other organisations, like RFMOs, unclear. If the BBNJ is to have an effective binding mandate that counteracts the problems experienced in the other MPA regimes, the nature and scope of its role and its competences need to be clarified.

Finally, more work needs to be done to flesh out a flexible framework that considers guidance in relation to the practicality of MPA designation, monitoring, and so on. This will clarify the position in the regime complex and hopefully draw out a clear role for MPAs that takes into account state action and self-interest.

In conclusion, the BBNJ MPA makes important strides in establishing a global regime facilitating the creation of specific conservation measures to protect and sustainably use high seas biodiversity. However, given the sovereign equality of states and the pressures to reach consensus the measures on their face do not go far enough to bind parties, impose strong blanket bans on the most harmful extractive activities and in turn encourage compliance. This is reflective of the prioritisation of sustainable use values to appease parties and not erode fisheries interest. There will need to be strength in compliance by the parties and the CoP ensuring this in practice so the constructive ambiguities or weak thresholds for non-compliance do not erode the potentially positive environmental protection tools emerging from this agreement.

Bibliography

A Treaties

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 (opened for signature 20 September 2023, not yet in force).

Convention for the Protection of the Marine Environment of the North-East Atlantic (signed 21 September 1992, entered into force 25 March 1998).

Convention on Biological Diversity 1760 UNTS 70 (opened for signature 5 June 1992, entered into force 29 December 1993).

Convention on the Conservation of Antarctic Marine Living Resources 1320 UNTS 48 (opened for signature 1 August 1980, entered into force 7 April 1982).

International Convention for the Regulation of Whaling 161 UNTS 72 (opened for signature 2 December 1946, entered into force 2 December 1946) Whaling Convention.

United Nations agreement for the implementation of the provisions of the United Nations convention on the law of the sea of 10 December 1983 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks 2167 UNTS 88 (opened for signature 4 December 1995, entered into force 11 November 2001)

United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened for signature 10 December 1982, entered into force 16 November 1994).

Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened for signature 23 May 1969, entered into force 27 January 1980).

B United Nations Materials

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 UN Doc A/CONF.232/2019/6 (17 May 2019)

Resolution on Oceans and the law of the sea GA Res 59/24 (2004).

Resolution on Oceans and the law of the sea GA Res 68/70 (2013).

Resolution on Development of an internationally 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 GA Res 69/292 (2015).

Resolution on the Internationally 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 GA Res 72/249 (2017).

Rio Declaration on Environment and Development in ‘Report of the United Nations Conference on Environment and Development’ UN Doc A/CONF.151/26 (vol I) (12 August 1992) (Rio Declaration).

C International decisions

North Sea Continental Shelf (W Ger v Sen, W Ger v Neth) [1969] ICJ Rep 3.

D Other International Measures

CCAMLR Measure 91-04 (2011) General framework for the establishment of CCAMLR Marine Protected Areas.

E Books and chapter in books

Richard Barnes “Fisheries and ABNJ: Advancing and Enhancing Cooperation” in Tomas Heidar (ed) New Knowledge and Changing Circumstances in the Law of the Sea (Brill, Leiden, 2020) 124.

Kemal Baslar The Concept of the Common Heritage of Mankind in International Law (Volume 30, Martinus Nijhoff Publishers, The Hague, 1998).

Robert Beckman “State responsibility and transboundary marine pollution” in S Jayakumar and others (eds) Transboundary Pollution (Edward Elgar Publishing, Cheltenham, 2015) 137.

Daniel Dunn, Guillermo Crespo and Richard Caddell “Area-based Fisheries Management” in Richard Cadell and Erik Molenaar (eds) Strengthening International Fisheries Law in an Era of Changing Oceans (Hart Publishing, Oxford, 2019) 189.

David Freestone “International Fisheries Law since Rio: The Continued Rise of the Precautionary Principle’ in Alan Boyle and David Freestone (eds) International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press, Oxford, 1999) 135.

David Freestone “Marine Biodiversity in Areas Beyond National Jurisdiction” in International Ocean Institute Canada (ed) The Future of Ocean Governance and Capacity Development (Brill, Leiden, 2018) 151.

Sarah Lothian “Marine Conservation and International Law” (Routledge, London, 2022).

Joanna Mossop, “Marine bioprospecting” in Don Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015) 825.

Karen Scott “The BBNJ Agreement: Strengthening the Oceans-Climate Nexus?” in James Kraska, Ronan Long and Myron H Nordquist (eds) Peaceful Maritime Engagement in East Asia and the Pacific Region (Leiden, Brill, 2023) 403.

Karen Scott “Unconventional Law-making in the Law of the Sea and Area-based Conservation Measures” in Natalie Klein (ed) Unconventional Lawmaking in the Law of the Sea: Current Practice and Future Prospects (Oxford University Press, Oxford, 2021) 309.

Robin Warner “Conservation and Management of Marine Living Resources beyond National Jurisdiction: Filling the Gaps” in Robert C Beckman and others (eds) High Seas Governance: Gaps and Challenges (Brill Nijhoff, Leiden, 2018) 179.

F Journal articles

Kenneth W Abbott and Duncan Snidal “Hard and Soft Law in International Governance” (2000) 54 Int Organ 421.

Richard Barnes, “Objective Regimes Revisited” (2000) 9 AsYil 97.

Davis S Berry “Unity or Fragmentation in the Deep Blue: Choices in the institutional design for marine biological diversity areas beyond national jurisdiction” (2021) 8 Front Mar Sci 1.

Robert Blasiak and Nobuyuki Yagi “Shaping an international agreement on marine biodiversity beyond areas of national jurisdiction: Lessons from high seas fisheries” (2016) 71 Mar Policy 210.

Tobias Böhmelt and Ulrich H Pilster “International Environmental Regimes: Legalisation, Flexibility and Effectiveness” (2010) 45 Aust J Political Sci 245.

Alan Boyle “Further Development of the Law of the Sea Convention: Mechanisms for Change” (2005) 52 ICLQ 563.

Cassandra M Brooks and others “Reaching consensus for conserving the global commons: The case of the Ross Sea, Antarctica” (2019) 13 Conserv Lett 1.

Cassandra M Brooks and others “Science-based management in decline in the Southern Ocean” (2016) 354 Science 185.

Cassandra M Brooks “The Ross Sea, Antarctica: A highly protected MPA in international waters” (2021) 144 Mar Policy 1.

Jonathon I Charney “The United States and the Law of the Sea after UNCLOS III: The Impact of General International Law” (1983) 46 Law Contemp Probl 37.

Sabine Christansen and others “Towards and Ecosystem Approach to Management in Areas Beyond National Jurisdiction: REMPS of Deep Seabed Mining and the Proposed BBNJ Instrument” (2022) 9 Front Mar Sci 1.

Phillip J Clapham and others “Whaling as Science” (2003) 53 Bioscience 210.

Nichola Clark “Institutional arrangements for the new BBNJ agreement: Moving beyond global, regional and hybrid” (2020) 122 Mar Policy 1.

Laurence Cordonnery and Lore Kriwoken “Advocating a Larger Role for Environmental Nongovernment Organizations in Developing a Network for Marine Protected Areas in the Southern Ocean” (2015) 46 Ocean Devt Int Law 188.

Robin Craig “Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas” (2005) 20 J Land Use & Envtl L 333.

Guillermo Crespo and others “High-seas fish biodiversity is slipping through the governance net” (2019) 3 Nat Ecol Evol 1237.

Stan Crothers and Lindie Nelson “High Seas Fisheries Governance: A Framework for the Future?” (2006) 21 MRE 341.

Tammy Davies and others “Tracking data and the conservation of the high seas: opportunities and challenges” (2021) 58 J Appl Ecol 2703.

Peter Davies and Catherine Redgwell, “The International Regulation of Straddling Fish Stocks” (1996) 67 BYIL 199.

Odile Delfour-Samama and Cédric Leboeuf “Review of potential legal frameworks for effective implementation and enforcement of MPAs in the high seas” (2014) 71 J Mar Sci 1031.

Elizabeth M De Santo “Implementation challenges of area-based management tools (ABMTs) for biodiversity beyond national jurisdiction” (2018) 97 Mar Policy 34.

Elizabeth M De Santo and others “Protecting biodiversity in areas beyond national jurisdiction: An earth system governance perspective” (2019) 2 Earth Syst Gov 1.

Carole Durussel, Eulogio Oyarzún and Osvaldao Urrutia “Strengthening the Legal and Institutional Frame-work of the Southeast Pacific Focus on the bbnj Package Elements” (2017) 32 Int J Mar Coast 635.

Alex G Oude Elfernik “Coastal States and MPAs in ABNJ: Ensuring Consistency with the LOSC” (2018) 33 Int J Mar Coast 437.

Inigo Everson “Designation and management of large-scale MPAs drawing on the experiences of CCAMLR” (2015) 18 Fish Fish 145.

David Freestone “The Limits of Sectoral and Regional Efforts to Designate High Seas Marine Protected Areas” (2018) 112 AJIL Unbound 129.

Lynda Goldsworthy “Consensus decision-making in CCAMLR: Achilles’ heel or fundamental to its success?” (2022) 22 Int Environ Agreem 411.

Bianca Haas and others “Regional fisheries management organizations and the new biodiversity agreement: Challenge or opportunity?” (2021) 22 Fish Fish 226.

Amy Hammond and Peter JS Jones “Protecting the ‘blue heart of the planet’: Strengthening the governance framework for marine protected areas beyond national jurisdiction” (2021) 127 Mar Policy 1.

Anika Havaldar and Charlotte Verdon “Biodiversity Beyond National Jurisdiction Treaty Negotiations: Current Status & Outstanding Issues” (2023) 27 Insights 1.

Grant Hewison “The Precautionary Approach to Fisheries Management: An Environmental Perspective” (1996) 11 Int J Mar Coast 301.

Katherine Houghton “Identifying new pathways for ocean governance: The role of legal principles in areas beyond national jurisdiction” (2014) 49 Mar Policy 118.

Fran Humphries and Harriet Harden-Davies “Practical policy solutions for the final stage of BBNJ treaty negotiations” (2020) 122 Mar Policy 1.

David Johnson, Maria Ferreira and Ellen Kenchington “Climate change is likely to severely limit the effectiveness of deep-sea ABMTS in the North Atlantic” (2018) 87 Mar Policy 111.

Stuart Kaye “Implementing high seas biodiversity conservation: global geopolitical considerations” (2004) 28 Mar Policy 221.

Kristine Kraabael “Institutional arrangements in a BBNJ treaty: Implications for Arctic marine science” (2022) 142 Mar Policy 1.

Simi KK “Marine Biodiversity Management under the UNCLOS: Scope and Challenges in the era of blue Economy Policy” (2023) 5 GLS Law Journal 102.

Michael Kriegl and others “Marine Protected Areas at the Crossroads of Nature Conservation and Fisheries Management” (2021) 8 Front Mar Sci 1.

Nico Krisch “The Decay of Consent: International Law in an Age of Global Public Goods” (2014) 108 AJIL 1.

Arne Langlet and Alice Vadrot “Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex” (2023) 147 Mar Policy 1.

Joy Mangapaul, Idris Idris and Chloryne Dewi “Sovereign Immunity of Non-commercial Government Vessels and Due Regard: China Coast Guard in the Natunas” (2021) 18 IJIL 229.

Nele Matz-Lück and Johannes Fuchs “The impact of OSPAR on protected area management beyond national jurisdiction: Effective regional cooperation or a network of paper parks?” (2014) 49 Marine Policy 155.

Elizabeth Mendenhall and Kahlil Hassanali “The BBNJ agreement and liability” (2023) 150 Marine Policy 1.

Elizabeth Mendenhall, Rachel Tiller and Elizabeth Nyman “The ship has reached the shore: The final session of the ‘Biodiversity Beyond National Jurisdiction’ negotiations” (2023) 155 Mar Policy 1.

Erik Molenaar “Addressing Regulatory Gaps in High Seas Fisheries” (2005) 20 Int J Mar Coast 533.

Toni Morelli and others “Climate-change refugia: biodiversity in the slow lane” (2021) 18 Front Ecol Environ 228.

B C O’Leary and others “The first network of marine protected areas (MPAs) in the high seas: The process, the challenges and where next” (2012) 36 Mar Policy 598.

Efthymios Papastavridis “The Negotiations for a New Implementing Agreement under The UN Convention on the Law of The Sea Concerning Marine Biodiversity” (2020) 69 ICLQ Quarterly 585.

Graeme Parkes “Precautionary fisheries management: the CCAMLR approach” (2000) 24 Mar Policy 83.

Yunfeng Qu and Ruiyang Liu “A Sustainable approach towards Fisheries Management: Incorporating the High-Seas Fisheries Issues into the BBNJ Agreement” (2022) 7 Fishes 1.

Rosemary Rayfuse “Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts” (2005) 12 AU YrBk Int Law 181.

Alison Reppy “The Grotian Doctrine of the Freedom of the Seas Reappraised” (1950) 19 Fordham L Rev 243.

Gil Rilov and others “A fast-moving target: achieving marine conservation goals under shifting climate policies” (2019) 30 Ecol Appl 1.

Gary Russ and Dirk Zeller “From Mare Liberum to Mare Reservarum” (2003) 27 Mar Policy 75.

Enric Sala and Sylvaine Giakoumi “No-take marine reserves are the most effective protected areas in the ocean” (2018) 75 J Mar Sci 1166.

Karen Scott “Area-based Protection Beyond National Jurisdiction: Opportunities and Obstacles” (2019) 4 Asia Pac J L P 158.

Karen Scott “Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas” (2012) 27 Int J Mar Coast 849.

Gary L Scott and Craig L Carr “Multilateral Treaties and the Formation of Customary International Law” (1996) 25 Denv J Intl Law & Poly 71.

Tullio Scovazzi “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations” (2004) 19 Int J Mar Coast 1.

Tulio Scovazzi “The negotiation for a binding instrument on the conservation and sustainable use of marine biological diversity beyond national jurisdiction” (2016) 70 Mar Policy 188.

Danielle Smith and Julia Jabour “MPAs in ABNJ: lessons from two high seas regimes” (2018) 75 J Mar Sci 417.

Yoshifuma Tanaka “Reflections of High Seas Marine Protected Areas: A Comparative Analysis of the Mediterranean and North-East Atlantic Models” (2012) 81 Nord J Intl L 295.

Yi Tang, Wenjin Chen and Yanxuedan Zhang “International cooperation and coordination in the Global Legislation of High Seas ABMTS including MPAs: Taking OSPAR practice as reference” (2021) 133 Mar Policy 1.

Dire Tladi “The Common Heritage of Mankind and the Proposed Treaty on Biodiversity in Areas beyond National Jurisdiction: The Choice between Pragmatism and Sustainability” (2015) Yb Intl Env L 113.

Dire Tladi “The Proposed Implementing Agreement: Options for Coherence and Consistency in the Establishment of Protected Area Beyond National Jurisdiction” (2015) 30 Int J Mar Coast 654.

Rachel Tiller and others “Shake it Off: Negotiations suspended, but hope simmering, after a lack of consensus at the fifth intergovernmental conference on biodiversity beyond national jurisdiction” (2023) 148 Mar Policy 1.

Tanya Wagenaar “A principled approach for BBNJ: An idea whose time has come” (2022) 31 RECIEL 399.

Daniel Wagner and others “The Salas y Gómez and Nazca ridges: A review of importance, opportunities and challenges for protecting a global biodiversity hotspot on the high seas” (2021) 126 Mar Policy 1.

Chuanliang Wang “The significance of the concept of a maritime community with a shared future in the international law-making process: Taking the BBNJ Agreement as an example” (2023) 149 Mar Policy 1.

Yong Wang and Xing Pan “Reasonable restrictions on the freedom of fishing in high seas marine protected areas from an international law perspective: an analysis” (2023) 10 Front Mar Sci 1.

Glen Wright, Klaudija Cremers and Julien Rochette “Commentary – A High Seas Treaty on the Horizon: Progress and Prospects for the Intergovernmental Conference” (2023) 37 Ocean Yearb 30.

G Papers and Reports

Morgane Bouvet and others Ensuring Effective Implementation of a High Seas Biodiversity Treaty: Lessons Learned and Options for an Implementation and Compliance Committee (STRONG High Seas Project, 2022).

Kristina Gjerde Options for Addressing Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (IUCN, Marine Law and Policy Paper No 2, 2008).

IUCN Commentary on the further 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 (IUCN, August 2022).

IUCN Establishing Marine Protected Area Networks: A guide for developing national and regional capacity for building MPA networks (IUCN, Non-technical summary report, 2007).

OECD Marine Protected Areas: Economics, Management and Effective Policy Mixes (OECD, Policy Highlights, 2017).

Christoph Schwarte and Linda Siegele Marine protected areas on the high seas? (Foundation for International Environmental Law and Development, 2008).

H Internet Materials

Emma Desrochers “RFMOs – What are they and are they enough to protect high-seas fish stocks?” (17 June 2022) SeaFoodSource <seafoodsource.com>.

Diane Desierto “Development, Marine Biodiversity, and the Common Heritage of Mankind: The ISA’s Deep Seabed Mining Quandary and Complying with the High Seas BBNJ Convention” (10 July 2023) EIJL: Talk! <www.ejiltalk.org>.

Arne Langlet and Simon Fellinger “Navigating the marine biodiversity regime complex – How will the BBNJ instrument interact with other organisations?” (17 February 2023) MARIPOLDATA

<www.maripoldata.eu>.

“Marine Biodiversity” Marine Stewardship Council <msc.org>.

Stewart Patrick “The High Seas Treaty Is an Extraordinary Diplomatic Achievement” (8 March 2023) Carnegie Endowment for International Peace <carnegieendowment.org>.

A Path to Creating the First Generation of High Seas Protected Areas” (31 March 2020) Pew

<pewtrusts.org>.

“High Seas Treaty Must Reflect Critical Role of Fish in Marine Ecosystems” (14 March 2022) Pew

<www.pewtrusts.org>.

“How MPAs Safeguard the High Seas” (19 August 2019) Pew <www.pewtrusts.org>. “Mapping Governance Gaps on the High Seas” (17 August 2016) Pew <pewtrusts.org>.

Samantha Robb, Aline Jaeckel and Catherine Blanchard “How could the BBNJ Agreement affect the International Seabed Authority’s Mining Code?” (13 April 2023) EJIL:Talk! <ejiltalk.org>.

Fae Sapsford “What Is High Seas Governance” (20 July 2022) Ocean Exploration

<oceanexplorer.noaa.gov>.

Nimisha Shrivastava and Toshika Soni “Enforcability of UNCLOS in international Maritime Law” (5 August 2019) Centre for Maritime Law National Law University Oshida Blog

<cmlnluo.law.blog>.

“Beyond borders: Why new ‘high seas’ treaty is critical for the world” (19 June 2023) UN News

<news.un.org>.

“UN delegates reach historic agreement on protecting marine biodiversity in international waters” (2 March 2023) UN News <news.un.org>.

“Why the High Seas Treaty is a breakthrough for the ocean and the planet” (6 March 2023) World Economic Forum <weforum.org>.

I Press Releases

Convention on Biological Diversity “COP15: Nations Adopt Four Goals, 23 Targets for 2030 in Landmark UN Biodiversity Agreement” (press release, 19 December 2022).

Science Media Centre “A treaty for the high seas – expert reaction” (press release, 8 March 2023)

United Nations “As Intergovernmental Conference on Sustainable Use of Marine Biodiversity Begins, Speakers Stress Binding Treaty Critical in Protecting World’s Oceans” (press release, 16 April 2018).

United Nations “Delegates Say Marine Biodiversity Must Respect Jurisdiction of Coastal States over Their Continental Shelf, as Intergovernmental Conference Continues” (press release, 5 September 2018)

United Nations “‘The Ship has Reached the Shore’, President Announces, as Intergovernmental Conference Concludes Historic New Maritime Biodiversity Treaty” (meetings coverage, 3 March 2023).

United Nations Secretary-General “Note to correspondents – press release on historic agreement adopted for conservation and sustainable use of biodiversity in over two-thirds of the ocean” (press release, 19 June 2023).

J Unpublished Papers

Robin Craig “Marine Biodiversity: Challenges, Trends, and a New Treaty” (Legal Studies Paper No. 23-7, USC Law, 2023).

Rebecca Lahl “Challenges to the establishment of CCAMLR Marine Protected Areas (MPA): A stakeholder analysis of interests and positions” (Masters thesis, Humboltd University Berlin, 2015).

Katherine McGlade “Regional Fisheries Management Organizations: An Examination of the International Commission for the Conservation of Atlantic Tuna as an International Fisheries Policy Instrument” (Masters Dissertation, Duke University, 2009).

Ellinor Nyzell “Designing International Agreements on Global Governance” (Bachelor Thesis in Peace and Development Studies, Linnaeus University, 2023).

K Letters

Letter from Palitha Kohona and Liesbeth Lijnzaad (Co-Chairs of the Ad Hoc Open-ended Informal Working Group to President of the General Assembly) regarding the recommendations requested in paragraph 214 of resolution 69/245 (13 February 2015).