June 23, 2023

Biodiversity Beyond National Jurisdictions treaty formally adopted by the United Nations

*^{Pictured: a dolphin in the ocean with dappled sunlight on its upper side. Photo: Claudia Beer via Pixabay.}*

A treaty to protect international biodiversity on the high seas was officially adopted by the 193 members of the United Nations earlier this week, on Monday 19 June.

The adoption of the new treaty was formally welcomed by Kitack Lim, the Secretary General of the International Maritime Organization.

“I congratulate all parties on the successful adoption of the new legally binding instrument on marine biodiversity in areas beyond national jurisdiction. This landmark achievement will no doubt reinforce efforts to protect biodiversity in line with the aims of the 2030 Agenda for Sustainable Development and the Kunming-Montreal Global Framework for Biodiversity. IMO has participated throughout the negotiations, given the organization’s mandate and expertise, and will continue to participate, in the implementation of the new instrument. IMO looks forward to further strengthening our cooperation with Member States, the UN family and all other stakeholders,” the Secretary General said.

Often called the “BBNJ”, meaning “biodiversity beyond national jurisdiction”, or the “High Seas Treaty”, the BBNJ made international headlines earlier this year when the text was agreed after decades of negotiations.

The purpose of the BBNJ is to provide a legal framework for designating areas of the High Seas as being protected for the benefit of marine life. According to the International Maritime Organization, the new treaty will address:

the conservation and sustainable use of marine biodiversity beyond national jurisdictions;
marine genetic resources, including questions on benefit-sharing;
area-based management tools, including marine protected areas;
environmental impact assessments; and
capacity-building and the transfer of marine technology

The agreement will apply to all areas beyond national jurisdiction, i.e. the High Seas, which are those parts of the global world-ocean that are more than 200 nautical miles (approximately 370 km) from the shore of any country. According to Geoscience Australia, the world’s oceans cover about 361 million square kilometres, of which 219 million square kilometres (approximately 60%) can be categorised as the High Seas.

Applicability to the ocean shipping industries

Development of area-based management tools, including marine protected areas, could be the area of the BBNJ that most affects the ocean shipping industry.

All human activity, ocean shipping included, inevitably has some impact on the natural world. Among the shipping-related impacts that the industry has and is tackling include such matters as underwater noise, whale strikes and garbage disposal.

One way to control the impacts that shipping may have is to control where ships can and cannot go.

This is already done around the world. There are many safety-based traffic separation schemes – such as in the English Channel and the Strait of Hormuz (the entry / exit to the Persian Gulf) to name but two. And there are a wide range of existing marine parks, particularly sensitive sea areas, and the like. There are a wide range of rules about what ships can go where in Australia’s Great Barrier Reef Marine Park, for instance.

So controlling where vessels can go is not exactly a new concept.

However, apart from International Maritime Organization-designated controls on shipping movement, such as the traffic separation schemes mentioned above, imposition of controls on ships has been down on a patchwork, nation-by-nation basis. So there’s not exactly global unity (or, at least, there hasn’t been, until now).

Meanwhile, the UN Convention on the Law of the Sea implements the centuries old principle of high seas freedoms. Beyond the territorial sea (the first 12 nautical miles out from a country’s coast) the principle of freedom of navigation starts to take centre-stage*. If a group of countries decided to set up a multi-state marine park on the High Seas, then the existence of that marine park would really only bind the vessels of those nations**.

Hence the BBNJ which creates a system for creating new, globally-effective, marine parks in the High Seas.

The new High Seas marine parks: “area-based management tools”

An “Area-based management tool” means a tool, including a marine protected area, for a geographically defined area through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives,” (Article 1, BBNJ draft text of 12 June 2023. Hereafter all references are to articles of this specific version of the BBMJ unless otherwise stated).

The objectives of setting up an area-based management tool (we will call it a “marine park” from now on) is to conserve and to sustainably use areas requiring protection through well-connected networks of marine protected areas. The BBNJ also looks to strengthen co-operation and co-ordination in the use of international marine parks and to generally protect oceanic biodiversity.

New global marine parks cannot be set up within any areas under a country’s jurisdiction (although that country could set up its own marine park), and cannot be relied up to assert or deny any claims to sovereignty.

Proposals for new global marine parks will need to be sent by the park-proponent to the Conference Secretariat (see below for more details), the proponents will need to consult with a wide range of stakeholders including other countries, various bodies, civil society, scientific bodies, the private sector, indigenous peoples and local communities.

Proposals will need to be based on scientific information and will need to take into account traditional knowledge of indigenous peoples. A long list of criteria will need to be addressed such as uniqueness, rarity, special importance of the species found within, vulnerability, sensitivity, economic and social factors, cultural factors, sustainability of reproduction and many more (see Annex 1 of the BBNJ).

The secretariat will publish all proposals and will hold consultations. The Conference of the Parties (i.e. the countries that have signed up to the BBNJ) will make decisions on whether to set up a new global marine park.

Impacts for shipping

At this early stage, it is hard to know what the impacts on shipping will be. Only the most obvious speculation can really be put forward.

Setting up new global marine parks could, of course, determine where ships can and cannot go, thereby adding complexity to international voyage passage planning, lengthening voyage times (potentially), increasing fuel consumption and therefore causing an increase in the cost of fuel, increasing costs generally (e.g. a longer voyage will increase the overall cost of crew wages for that voyage along with an overall bigger total cost for consumables).

Other possible restrictions could be the imposition of, say, speed limits, restrictions on the use of various technologies e.g. possible bans on the discharge of water from open-loop scrubbers for example, limitations on noise, and there could be other issues, such as strict liability for accidental pollution in global marine parks, for instance.

Background

The BBNJ will enter into force 120 after sixty countries ratify the agreement. Each country that subsequently ratifies the Agreement after the first sixty countries will be subject to the BBNJ Treaty 30 days after it ratifies (Article 68).

Secretariat services are currently provided by the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, at the United Nations. A Portugese expert in international public law, Mr Miguel de Serpa Soares, has been appointed as the Secretary General of the International Conference on this matter.

NOTES

*We’re not going to get into a detailed discussion of sovereignty over the Exclusive Economic Zone.

** For a more in-depth discussion, see “High Seas Marine Protected Areas: Impact on Shipping and the IMO” in “Regulation of Risk'” pages 392-417, by N Krabbe, published by Brill.