17/05/2017

1

‘Realising biodiversity governance in marine areas beyond national jurisdiction: challenges and prospects’

Professor Robin WarnerAustralian National Centre for Ocean Resources and Security

Presentation Outline

• Rationale and objectives of BBNJ Instrument (ILBI)

• Challenges

• Overarching Governance

• Elements of the Package

• Cross-cutting Issues

• Prospects

17/05/2017

2

Rationale for BBNJ Instrument

The aspirational framework of Part XII of the LOSC reflects the need for an integrated system of ocean governance in which States individually through both global and regional organizations cooperate to craft the international rules, standards, and recommended practices and procedures needed to protect and preserve the marine environment both within and beyond national jurisdiction.

Rationale for BBNJ Instrument

• In practice this cooperation is still a work in progress and there are many governance, regulatory and implementation gaps in the international legal and institutional framework to protect and preserve the marine environment.

• These gaps are especially evident in the fragmentary system of ocean governance applicable to ABNJ

17/05/2017

3

Rationale for BBNJ Instrument

• Since the LOSC was adopted in 1982, a rich vein of international environmental law principles and environmental management approaches have developed which complement the principles enunciated in Part XII

• Article 237 LOSC highlights the complementary relationship between the LOSC and other conventions on protection and preservation of the marine environment, anticipating and encouraging an on-going reconciliation between the LOSC and these other instruments

Rationale for BBNJ Instrument

• The BBNJ process and the future international legally binding instrument (ILBI) represent a historic opportunity to lay the foundations for a more integrated and cross sectoral system of oceans governance in ABNJ which takes into account both conservation and sustainable use

• Given the growing threats and pressures on the marine environment of ABNJ and its biodiversity, the realisation of this objective is critical to ensuring the long term survival of marine biodiversity in ABNJ

17/05/2017

4

Potential Objectives of ILBI

ILBI should enhance while not undermining existing instruments and institutions

• Standard setting instrument• Encourage and facilitate compliance with best practice

biodiversity conservation and sustainable use in ABNJ• Provide capacity building assistance to achieve best practice

standards which are tailored to the needs of particular regions and sectors

• Provide global legitimacy for regional and sectoral biodiversity conservation and sustainable use initiatives in ABNJ

Overarching Governance Challenges

Achieving more integrated and cross sectoral conservation and sustainable use of marine biodiversity in ABNJ

• Forging links between global regional and sectoral organizations with ABNJ responsibilities

• Providing default regulatory regime for non regulated activities in ABNJ eg new marine geo-engineering activities

17/05/2017

5

Challenges – Marine Genetic Resources

Marine Genetic Resources

• Defining scope of MGR regulatory regime – monetary and/ or non-monetary benefits, in situ and/or ex situ/in silico resources, IP rights or not, access and/or benefit sharing, water column and/or seabed MGRs

• Legal regime applicable to MGRs – CHM, freedom of high seas, common concern of humankind

Challenges – Marine Genetic Resources

• Access and benefit sharing modalities – nature of benefits at different stages in process, who might be required to share benefits, who might the beneficiaries be and how would the benefits be used

• Issues related to monitoring the utilization of MGRs from ABNJ including their traceability

• Institutions required – information repository, benefit sharing mechanism

17/05/2017

6

Challenges – Area Based Management Tools

• Definition and subcategories of ABMTs – MPAs, MSP

• Elements of MPA designation – allocation of roles to global, and regional bodies

• Relationships with existing regional and sectoral measures

• Mechanisms for consultation, coordination, cooperation

• Inclusion of stakeholders, transparency

Challenges – Area Based Management Tools

• Institutional mechanisms – COP, Scientific Committee

• Procedural and decision making processes

• Scientific input

• Rights of adjacent and proximate coastal states including over their extended continental shelfs

17/05/2017

7

Challenges – Environmental Impact Assessment

• Guidance on operationalizing Art 206 of LOSC

• Threshold and criteria for activities requiring EIA

• Procedural steps in the EIA process

• Transboundary EIA –how to address transboundary impacts and which ones will be regulated by the ILBI

• Strategic Environmental Assessment

Challenges – Environmental Impact Assessment

• Global or regional oversight of EIA

• Relationships with existing EIA regulations in different sectors

• Mechanisms for monitoring and review, compliance and liability

• Institutional requirements including central repository for EIAs – form and function

17/05/2017

8

Challenges – Capacity Building and Transfer of Marine Technology

• General or specific focus – will the ILBI specify the types and modalities of capacity building and transfer of marine technology

• How will the ILBI address the needs of particular groups of States – PSIDS, African states, Caricom

• Terms and conditions for transferring marine technology

• Handling of IP rights

Challenges – Capacity Building and Transfer of Marine Technology

• Funding mechanism

• Clearing house mechanism

• Coordination and cooperation

• Whether capacity building and transfer of marine technology should be in a dedicated section of the ILBI or mainstreamed across various sections of the instrument

17/05/2017

9

Challenges – Cross Cutting Issues

• Selecting guiding international law principles/approaches to include in the ILBI and how they might be applied to the elements in the package deal

• Relationship with existing instruments

• Establishing a cost effective and fit for purpose institutional structure

Challenges – Cross Cutting Issues

• Developing review, compliance and enforcement mechanisms

• Responsibility and liability provisions

• Dispute settlement provisions

• Final provisions – ratification and accession, entry into force

• These provisions will depend on the substantive elements of the ILBI and will become clearer in the intergovernmental conference phase

17/05/2017

10

Prospects for the ILBI

• Issues have been studied comprehensively over a long period

• Positive political will and momentum exists among a majority of States

• IGOs, NGOs and scientific community are playing a very supportive role and providing ongoing analysis of key issues

• Potential ILBI resonates with a variety of contemporary global issues – SDGs, climate change, food and environmental security

Prospects for the ILBI

• ILBI will draw together the two trajectories of law of the sea and international environmental law

• ILBI has the potential to further implement multiple parts and sections of LOSC

• ILBI will further develop international law relating to global commons areas

• ILBI has the potential to enhance integrated and cross sectoral oceans governance

• ILBI will engage multiple stakeholders

• ILBI has immense potential to benefit humankind and the natural environment