ESIL Reflection – Rethinking the Conservation of Marine Biodiversity beyond National Jurisdiction – From ‘Not Undermine’ to Ecosystem-Based Governance
Vol 8, Issue 4
Editorial board: Federico Casolari, Patrycja Grzebyk, Ellen Hey, Guy Sinclair and Ramses Wessel (editor-in-chief)
Vito De Lucia
K. G. Jebsen Centre for the Law of the Sea
UiT The Arctic University of Norway
In the previous ESIL Reflection Joanna Mossop argued in favour of a new integrated or functional approach towards marine genetic resources. This Reflection aims to extend that discussion by offering remarks more broadly addressing the conservation of marine biodiversity in areas beyond national jurisdiction. After roughly 15 years of preliminary and preparatory phases, the United Nations General Assembly (UNGA) launched in December 2018 an intergovernmental conference (IGC) aimed at negotiating and adopting a global treaty on marine biodiversity in areas beyond national jurisdiction (the ‘BBNJ treaty’). The resolution scheduled four substantive sessions. The second substantive session of the intergovernmental conference (IGC-2) was recently held at the UN headquarters in New York City, following an organizational meeting in April 2018 and the first substantive session (IGC-1) in September 2018. The negotiations revolve around a package to be addressed “together and as a whole” and cover: marine genetic resources, including the sharing of benefits (addressed in the previous ESIL Reflection); area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessments; and capacity building and the transfer of marine technology. This Reflection will not discuss any of these items specifically, but rather focuses on a broader question, or challenge, that these negotiations face: that is the relationship of the new BBNJ treaty with existing legal instruments and frameworks as well as regional and sectoral bodies and institutions. According to UNGA Resolution 72/249, the new instrument “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”. This question has haunted the negotiations from very early on. To date, there seems to be no easy way to reach an agreement on the meaning of “not undermine”. In this Reflection I argue, however, that the BBNJ process offers an opportunity to bypass the question of “not undermine”, and to rethink biodiversity conservation from an ecosystem perspective, rather than from a jurisdictional perspective. Legal tools or solutions that enable this rethinking, I venture, are more readily available than one might first imagine.
Expectations for IGC-2 were high, as IGC-1 had made measurable progress and had given IGC President Rena Lee a mandate to produce a document that should facilitate IGC-2 to shift focus in that delegations would no longer simply exchange views but would engage in text-based (or at least text-led) negotiations. The document was called ‘Aid to Negotiations’ and included, in accordance with the mandate received at IGC-1, all existing options. As President Lee observed at the opening of IGC-2, the focus would be on “on the mechanisms to be built, the processes to be developed and the roles of the various actors”. Additionally, she would not expect delegates to engage in line-by-line negotiations, but rather focus on discussing concrete options, and allow the process to unfold iteratively. To that end, the discussion in each working group started from the process aspects of each agenda item and left overall objectives and other principled issues last.
At the opening of IGC-2, President Lee urged delegates “to build on the ‘excellent’ start at ICG-1”. The pace of progress at IGC-2, however, has been at best ambiguous. Some delegations expressed outright frustration at what they felt was a pervading sense of déjà vu, especially with regards to key issues such as the question of marine genetic resources. Other delegations, by contrast, expressed a more positive view, as they chose to focus on the progress that seemed to follow from the detailed discussions of the options contained in the ‘Aid to Negotiations’. Such progress was at least in part the result of the clever discussion schedule set up by President Lee. However, on many of the critical issues – such as common heritage, material scope, types and modalities of benefit sharing, institutional arrangements – divergences are still significant. Indeed, in some cases there remain “diametrically opposed positions”.
The question of “not undermine”
One of the questions that remains unresolved is the meaning of a key sentence that delimits the mandate of the IGC vis-à-vis the mandates of existing bodies and institutions. As mentioned already, UNGA Resolution 72/249 sets out that the new instrument “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”. As Scanlon has noted, however, the term “undermine” possesses an “undeniably significant ambiguity”. A detailed discussion is outside the scope of this Reflection. Here it is sufficient to recall how the question originated during the discussions held in the Ad Hoc Open-Ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. There, the question of the relationship between a new BBNJ treaty and existing regional and/or sectoral instruments, bodies and institutions was a key element of the discussion from the very beginning. Indeed, several delegations have been consistently against or “not supportive” of “proposals involving the creation of new institutions”. This lack of support eventually turned into a consistent emphasis on how “the existing legal framework was sufficient to address the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction”, or later on the need to be careful not to infringe “on the regulatory scope of existing agreements or duplicating ongoing efforts”.
During the last phases of the Preparatory Committee (PREPCOM), and at IGC-1, the contrast between those delegations that prefer a regional approach (where the expression “not undermine” acquires a strong meaning in defense of the competence of existing regional and/or sectoral instruments and bodies) and those favouring a global approach (which envisions a strong global body and global rules as the overarching framework within which existing instruments and bodies exercise their mandates) had been tentatively bridged by New Zealand’s proposal for a hybrid approach to institutional arrangements and their relation to other instruments and bodies. However, at IGC-2, the impression was that the two opposing views (the global and the regional) regained prominence, and negotiating positions, while making progress with the details, seemed to become more entrenched on the general, fundamental questions. Indeed, the hybrid approach was no longer on everyone’s mind although some degree of hybridity, in the sense of some form of combined global and regional approach, remains factually on the table in relation to specific elements of the discussions.
An illustration of the concrete implications that the question of not undermining can be gleaned from reviewing the discussion on Item 4.2 of the President’s ‘Aid to Negotiations’, which refers to the relationship between measures to be adopted under the BBNJ treaty and measures adopted under relevant instruments and bodies. More specifically, Option I under Item 4.2 addresses the question of coherence and complementarity between ABMTs and MPAs adopted under the various instruments and bodies competent to adopt such measures in areas beyond national jurisdiction and the BBNJ treaty. For that purpose, one of the elements under discussion was the issue of “recognition”. This part of the document (Option I) offered different textual formulations (Numbers 2 to 5) which specifically address the issue of whether ABMTs, including MPAs, established under relevant instruments, frameworks and bodies should go through a process of (formal) recognition by a global BBNJ mechanism or body.
The key role of recognition was widely acknowledged. Some delegations, for example New Zealand and Canada, suggested a strong role for a global BBNJ body with regards to recognition, with the view of ensuring coherence among measures across competent bodies and globally. Canada however stressed that the process of recognition should be voluntary and that non-recognition would have no effect on the legal status of regional or sectoral measures. Singapore further observed how they understand recognition to indicate the prevalence of measures adopted by relevant existing bodies over a global BBNJ body. Norway, Australia, Japan, Russia and Iceland rejected outright the notion that measures adopted by a relevant instrument, framework, or body would need to go through a process of recognition on the part of a BBNJ body. Singapore reflected a more cautious position, emphasizing that a new treaty would need a carefully drafted and comprehensive provision to explain what recognition entails and to iron out all of its (potentially problematic) implications. By contrast, Argentina, speaking on behalf of like-minded Latin American countries and reflecting a view broadly shared by the G77 and by the African Group, expressed a preference for a mandatory process of recognition by the a BBNJ body of measures adopted under existing instruments and bodies. Argentina however observed that the focus should be on communication and on evaluating the compatibility of measures adopted by relevant instruments and bodies with the goal and standards of the BBNJ treaty. If measures are deemed incompatible, the BBNJ body would open a dialogue process so as to achieve compatibility. Compatibility, as I shall discuss in the next section, is arguably a key idea of the BBNJ treaty.
From “not undermine” to compatibility
The discussion on the relationship between measures adopted under the BBNJ treaty and measures adopted under relevant instruments and bodies was in some ways monopolized by the question of not undermining. However, the relevant section of the ‘Aid to Negotiations’ was structured around a wider set of concepts: coherence, complementarity, cooperation, coordination, and compatibility. Indeed, some of the options contained in this section frame the problem explicitly in terms of coherence and complementarity (Option I) as well as mutual support and due regard (Option III). The general sense during the discussion on this section of the document was that the room agreed on the importance of coordination, cooperation and complementarity between existing instruments and bodies and the new BBNJ body. However, it seemed equally clear that many delegations insisted that any form of cooperation would need to avoid undermining the mandate and competence of existing instruments and bodies. The notion of compatibility, however, may offer some help. Compatibility does not actually focus on the institutional dimension, but on the measures and their effect and mutual relationship with each other. In this sense, compatibility helps focus on an integrated and ecosystem-oriented legal framework that reflects contemporary ecological concepts, such as ocean connectivity, rather than an outdated and fragmented approach to ocean governance. Compatibility has been discussed at IGC-2, albeit the full meaning and implications of the concept were unclear and some delegations subsequently sought clarification. One section of Agenda Item 4.2 was dedicated to the “Relationship between measures under this instrument and those established by adjacent coastal States, including issues of compatibility” (emphasis added). Compatibility is not a novel concept in the context of the Law of the Sea, and it has an important role in the Fish Stocks Agreement (FSA).
This role is linked to the idea that conservation measures in one maritime zone should not undermine those in another maritime zone. The link between not undermining and compatibility of measures thus already exists, with the duty to cooperate across jurisdictional zones serving as a central tenet for achieving compatibility. It must be noted, however, that in the BBNJ treaty negotiations, compatibility has been discussed for the most part from the point of view of coastal States, with the goal of ensuring that measures adopted in areas beyond national jurisdiction (ABNJ) do not undermine measures adopted in areas within national jurisdiction. Nevertheless, it is arguably useful to focus on compatibility also from the perspective of the BBNJ treaty. In this respect, compatibility could serve at least three purposes. Firstly, it would ensure that the activities and decisions of existing bodies and institutions do not undermine, or “run counter”, to the objectives of the BBNJ treaty, as expressed in Option III. The question of who adopts measures then becomes less important than the question of whether a measure is effective and helps meet the relevant objectives of protecting marine biodiversity and ecosystems. Additionally, and perhaps crucially, this would ensure a global coherence also vis-à-vis the Convention on the Law of the Sea (LOSC), which remains the key normative reference for both the BBNJ treaty and for existing instruments and bodies that deal with the protection and preservation of the marine environment. In particular, compatibility could be a key enabling concept with respect to the effective meeting of the objectives set out in of LOSC Part XII, which is dedicated to the protection and preservation of the marine environment. Furthermore, and finally, compatibility is arguably a key concept for articulating an ecosystem-based legal framework for the conservation of marine biodiversity. An all-round, non-parochial idea of compatibility, rather than not undermining, could perhaps offer a more useful focal point for negotiators if the goal is to craft a forward-looking, ecosystem-oriented framework for the conservation of marine biodiversity.
Ecosystem-Based Ocean Governance?
But is compatibility enough? Perhaps not. Opening up the discussion on relations between a variety of instruments, frameworks and bodies operating with a multiplicity of geographical and material scopes may be a missed opportunity if all that comes out of it is a well delineated set of mandates that reflects the pragmatics and politics of a “turf war”. Interventions such as the statement jointly issued by the International Seabed Authority (ISA) and the International Maritime Organization (IMO) at IGC-2, with the goal of asserting their exclusive competence vis-à-vis a BBNJ treaty in matters related to their respective areas of competence, is an example of that. The real opportunity is arguably for rethinking the boundaries of governance through a logic of ecosystems. This would not entail rewriting the principles, rules, rights and obligations of the LOSC, including its formal zoning rules. It would rather entail rendering effective existing ones, such as those contained in Part XII, through their implementation in relation to marine biodiversity across sectors of economic activity (including, importantly, fisheries) and across jurisdictional lines, precisely in the way that an ecosystem-based governance framework would require. In this respect, an important variable is the institutional architecture that will come out of the negotiations, as it will establish the rules and mechanisms for the coordination and interaction among existing relevant bodies, instruments, frameworks and mechanisms, whether regional, global or sectoral. The negotiators’ focus should shift from not undermining the mandates of existing relevant instruments, frameworks and bodies to ensuring the complementarity, coordination and compatibility among their mandates and the measures adopted by each of them regardless of their origin, with a view to achieving the overall objectives of LOSC. This also means moving away from the binary global/regional and instead to think in terms of ecosystems. The Arctic and sub-Arctic regions offer two useful examples in this respect. One shows what it means to think in terms of ecosystems while the other shows one way to organize institutional cooperation that cuts across mandates and focuses on the objectives of ensuring coherence complementarity, coordination and compatibility.
The first example is offered by the work of the Arctic Council, which is an informal yet important forum for Arctic cooperation on matters related to sustainable development and environmental protection. Members are the Arctic States: the five arctic coastal States, including the USA, the Russian Federation, Norway, Canada and the Kingdom of Denmark with respect to Greenland, as well as Iceland, Sweden, and Finland. However, indigenous peoples have permanent participant status, and a number of States have been admitted as observers. The Arctic Council conducts its activities through six working groups. The working group on the Protection of the Arctic Marine Environment (PAME) has identified a set of large marine ecosystems (LMEs) that should form the basis of and the key platform for an effective implementation of an ecosystem-based approach to Arctic environmental protection and biodiversity conservation. Among these, PAME has identified the Central Arctic Ocean (CAO) LME. However, the CAO LME is not a one-to-one match with the high seas portion of the Central Arctic Ocean. It is actually larger, and includes portions of the Exclusive Economic Zones (EEZ) of four Arctic Coastal States, namely Canada, Norway, Denmark/Greenland, and Russia. This entails that an effective programme of conservation of Arctic biodiversity must be able to include within its purview all relevant activities in all ecologically relevant zones, regardless of jurisdictional fragmentation. The institutional tool to achieve this goal of course remains subject to negotiation and probably contestation, and will not be addressed here. What matters is that if one utilizes an ecosystem perspective (the LME), one is confronted with the need to rethink the boundaries and mechanisms of governance in ways that do not align with existing ocean zoning rules.
A second example, which offers an institutional model to address governance gaps from an ecosystem rather than jurisdictional perspective, is the Collective Arrangement (CA) adopted in 2014 by the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) and the North-East Atlantic Fisheries Commission (NEAFC). OSPAR is a regional seas organization whose primary objective is to protect the marine environment of the North East Atlantic from pollution, while NEAFC is a regional fisheries management organization covering the same marine area. As organizations with limited subject matter competence, they realized that their goals could be achieved more effectively through cooperation with other regional and global bodies that have competence in North East Atlantic. OSPAR in particular has signed several Memoranda of Understanding (MOUs) to facilitate cooperation and coordination, including with NEAFC, the International Maritime Organization (IMO) and the International Council for the Exploration of the Sea (ICES). The CA however is a more comprehensive and ambitious cooperation arrangement. Its ultimate aim in fact is to become a collective and multilateral forum composed of all competent instruments, frameworks and bodies addressing the management of human activities in the ABNJ of the North-East Atlantic. In other words, it is a framework aimed at integrating the regional, sectoral and global dimensions in a coherent arrangement for decision-making with the view of fostering coordination, complementarity, compatibility and consistency. Integrating and aligning existing and new bodies and instruments within the same institutional framework, and under the “constitutional” umbrella of the LOSC, would ensure not only cooperation among them, but also the compatibility of measures adopted under the individual regimes. Additionally, if the BBNJ treaty would adopt one such arrangement model, participation to one such arrangement or framework would operationalize the duty to cooperate that States have under the LOSC and would facilitate and strengthen the capacity of individual organizations to achieve their objective. This may also prove to be a very productive way for moving forward discussions on the institutional arrangements, and to effectively and seriously “help deliver” an ecosystem-based governance of the oceans, both within and beyond national jurisdiction.
This article has offered some reflections on ways to imagine ocean governance, taking as a starting point and opportunity the ongoing BBNJ treaty negotiations. One of the key issues under discussion is the relationship between a new BBNJ treaty and existing instruments, frameworks and bodies. Such discussion is dominated by the notion that the new BBNJ treaty should not undermine existing regional and sectoral regimes. What I have suggested is that it is perhaps more useful to think in terms of complementarity and compatibility, rather than trying to delineate geographically and materially the individual and overlapping mandates. This, I suggest, would allow a shift in focus towards an ecosystem-based governance approach. I have offered two examples that may be a useful reference for the BBNJ process, namely the identification of LMEs under the Arctic Council, and the Collective Arrangement under OSPAR and NEAFC. The latter in particular could be a model to replicate across regions with the view of identifying a suitable ecosystem perspective from and through which to determine the actual boundaries of governance, and thus the geographical scope of such arrangements. Questions of course remain. It would be necessary to imagine how to coordinate across ecosystems, given the complex dynamics of connectivity across ocean zones and ecosystems, and the multiple temporal and spatial dynamics characterizing ecological processes. It would be equally important to reflect on whether ecosystems and governance arrangements should necessarily correspond and at what scale(s), or whether governance mechanisms could encompass several LMEs at the decision-making level. Participation – of States and International Organizations, as well as, perhaps, non-state actors – would be another key issue to consider, especially if ecosystem-based governance draws inspiration from the so-called “post-sovereign” frameworks and models.
The crossroads where all these questions meet is precisely where the BBNJ treaty could contribute significant value added. Establishing an effective framework for facilitating such arrangements across relevant ecosystems and/or regions, and supplementing where no instruments or institutions exist is arguably where the BBNJ treaty could make a difference. The goal of maintaining the ecological integrity of the marine environment and of protecting marine biodiversity in ABNJ requires that these questions be raised and addressed head on. Focus should accordingly shift from not undermining to complementarity, compatibility and the articulation and the effective discharge of duties of ecosystem-based, cross-jurisdictional and cross-institutional cooperation. This could also go a long way in articulating an ecosystem-based, rather than jurisdictional-based, ocean governance.
Cite as: Vito De Lucia, ‘Rethinking the Conservation of Marine Biodiversity beyond National Jurisdiction: From “Not Undermine” to Ecosystem-Based Governance’, ESIL Reflections 8:4 (2019).
 Joanna Mossop, ‘Towards a Practical Approach to Regulating Marine Genetic Resources’, ESIL Reflection 8:3 (2019)
 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, https://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm
 Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction https://www.un.org/depts/los/biodiversity/prepcom.htm
 UN Doc. A/RES/72/249.
 Ibid. para 2.
 Mossop, op. cit.
 UN Doc. A/RES/72/249, para 7. This formulation refers to any instruments, treaty regime or organization that may have competence in marine areas beyond national jurisdiction, either at a global and sectoral level (e.g. the International Maritime Organization), or at regional level (e.g. regional seas organizations or regional fisheries management organizations)
 UN Doc. A/CONF.232/2019/1, https://undocs.org/A/CONF.232/2019/1
 Statement by the President of the conference at the closing of the second session, p. 3, https://www.un.org/bbnj/sites/www.un.org.bbnj/files/bbnj_-_igc2_-_presidents_closing_statement_-_advance_unedited_version.pdf
 Earth Negotiation Bulletin (ENB), “BBNJ IGC-2 Highlights: Monday, 25 March 2019”, Vol. 25 Number 186, p. 2
 Ibid., p. 1
 Ibid., p. 2
 United Nations Meetings Coverage and Press Releases, “Delegates Hail Positive Progress on New High Seas Treaty, as Second Session of Intergovernmental Negotiations Concludes”, 5 April 2019, https://www.un.org/press/en/2019/sea2102.doc.htm
 ENB, ICG-2 25 March – 5 April 2019, Vol. 25 Number 195, p. 18
 UN Doc. A/RES/72/249, para 7
 Z. Scanlon, ‘The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction’, 75:1, ICES Journal of Marine Science, 2018, 405, p. 405
 For more in-depth reflections on the notion of “not undermining” see, Vito De Lucia, “Reflecting on the meaning of “not undermining” ahead of IGC-2”, March 21, 2019, online: http://site.uit.no/jclos/files/2019/03/JCLOS-Blog-21.3.2019-Reflecting-on-the-meaning-of-not-undermining-ahead-of-IGC-2-3.pdf. See otherwise Scanlon, op. cit.
 UNGA, Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly”, 30 June 2011, UN Doc. A/66/119, 2011
 UNGA, “Letter dated 8 June 2012 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly”, 13 June 2012, UN Doc. A/67/95, 2012, para 29
Ref: UN Doc. A/RES/69/292
 See Kristine Dalaker Kraabel, “The BBNJ PrepCom and Institutional Arrangements: The Hype about the Hybrid Approach” in Myron H. Nordquist, John Norton Moore and Ronán Long (eds) The Marine Environment and United Nations Sustainable Development Goal 14 Life below Water, Nijhoff | Brill, 2018
 FSA, art. 7(2), but see also art. 16(2), 18(1), 18(3)(h), 20(4), 20(7), 23(3) and 33(2)
 FSA, art. 7(2)
 E.g. art. 192, which sets out the general obligation to protect and preserve the marine environment, and art. 194(5), which sets out special obligations to protect and preserve “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”
 See Declaration on the Establishment of the Arctic Council .Joint Communique of the Governments of The Arctic Countries, Ottawa, Canada, 26 September 1996, https://oaarchive.arctic-council.org/bitstream/handle/11374/85/EDOCS-1752-v2-ACMMCA00_Ottawa_1996_Founding_Declaration.PDF?sequence=5&isAllowed=y
 PAME, ‘Large Marine Ecosystems (LMEs) of the Arctic Area. Revision of the Arctic LME Map’, 15th of May 2013, Second Edition, PAME-led Group of Experts on the Ecosystem Approach to Management, http://www.pame.is/images/03_Projects/EA/LMEs/LME_revised.pdf
 In ways not unlike what Mossop discussed in relation to the need to harmonize legal regimes across maritime zones in relation to marine genetic resources, Mossop, op. cit.
 “Collective arrangement between competent international organisations on cooperation and coordination regarding selected areas in areas beyond national jurisdiction in the North‐East Atlantic”, OSPAR Agreement 2014-09 (hereinafter CA Agreement) https://www.ospar.org/about/international-cooperation/collective-arrangement
 See CA Agreement, Annex II
 Indeed, OSPAR considers the institutional cooperation reflected in the CA as a way to “help deliver an ecosystem approach to the management of all relevant human activities in the marine environment”, https://www.ospar.org/about/international-cooperation/collective-arrangement
 The ecosystem approach that informs the Convention on Biological Diversity may also be relevant. It provides that ecosystems features, boundaries and scales are to be determined by the conservation problem at hand, rather than being ontologically given, see Report of the Workshop on the Ecosystem Approach, Lilongwe, Malawi, 26–28 January 1998, (UNEP/CBD/COP/4/Inf.9, 1998), para 10.
 And it is indeed important to remember how ecosystems can be partitioned at a range of spatial scales, see e.g. S. Grant, A. Constable, B. Raymond, and S. Doust, Bioregionalisation of the Southern Ocean: Report of Experts Workshop, Hobart, September 2006, WWF-Australia and ACE CRC
 See e.g. B. Karkkainen, ‘Post-Sovereign Environmental Governance’, 4:1 Global Environmental Politics 2004, p.72-96
 ’Value added’ was indeed mentioned on several occasions during IGC-2 as a key deliverable of any new BBNJ treaty, personal notes