Lord Robert Yewdall Jennings ( ) Former President of the International Court of Justice

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1 The BBNJ PrepCom and Cross-Cutting Issues: The Hype about the Hybrid Approach Kristine Dalaker Kraabel PhD Research Fellow K.G. JEBSEN CENTRE FOR THE LAW OF THE SEA (JCLOS) Lord Robert Yewdall Jennings ( ) Former President of the International Court of Justice 1

2 Lord Jennings on the Marine Environment [I]t should not be forgotten that Part XII of the Convention on the Protection and Preservation of the Marine Environment, was a major contribution tothemaking of shaping of this aspect of thelaw. This is a problem which is much larger than the law of the sea itself. Since such an immense proportion of marine pollution is from land-based sources, the old juridical idea that the land dominates the sea has acquired a new and sinister connotation. It is perhaps worth adding, however, that this again is a problem which calls for management techniques and the evolution of new kinds of international organization... Lord Jennings on the Marine Environment (continued) It must be said that this there is some lack of balance in the Convention asa whole, in providing at such elaborate length for dispute settlement, and yet so sparsely for international management, though the latter is probably more important and more urgent. There seem, however, tobe reasons for hoping that this imbalance will be adjusted through the follow-up actions to the Rio Summit, especially those concerning straddling and highly migratory fish stocks, small island developing States, coastal zone management, and land-based sources of marine pollution. Sir Robert Y. Jennings, Foreword in Myron H. Nordquist and John Norton Moore (eds), 1994 Rhodes Papers: Entry into Force of the Law of the Sea Convention (Martinus Nijhoff Publishers, 1995) at xvi. 2

3 Roadmap of Analysis: Need for the BBNJ PrepCom What are we trying to protect? What is marine biodiversity in ABNJ? Where are ABNJ? Why does marine biodiversity in ABNJ need to be protected? What is its value and importance? What are the threats to marine biodiversity in ABNJ? What is the state of the existing ocean governance framework? What is Marine Biodiversity in ABNJ? Vast marine areas, rich in biodiversity and resources, which contain some of the world s most unique species and habitats. The JulieBook ( 3

4 Where are ABNJ? Dark Blue Nearly 50% of Earth s Surface File:World location map.svg ABNJ under UNCLOS: Comprise the Area and the High Seas Water Column Common Heritage of Mankind vs. Freedom of the High Seas Riccardo Pravettoni, UNEP/GRID-Arendal 4

5 Why Does Marine Biodiversity in ABNJ Need to be Protected? ABNJ provides vast resources and services: Seafood and raw materials Genetic and medicinal resources Air purification Climate regulation Habitat services What Are the Threats to Marine Biodiversity in ABNJ? Pollution Overfishing and Intensified Aquaculture Shipping and Expansion of Global Maritime Trade Deep Seabed Mining Climate Change, including Ocean Warming and Ocean Acidification Emerging Uses bioprospecting geo-engineering energy development climate change mitigation efforts (includes seabed sequestration of carbon monoxide, ocean fertilisation, among others) 5

6 Diagram of International Ocean Governance Showing Sectoral Approach and Plethora of Organisations Source: Global Ocean Commission Report 2014 What are the Issues with the Existing Ocean Governance Framework? Absence of a comprehensive set of overarching governance principles Fragmented institutional framework Absence of a global framework to establish MPAs in ABNJ Lack of legal clarity regarding the status of MGRs in ABNJ Lack of global rules for EIAs and SEAs in ABNJ Limited CBTT Uneven and often ineffective governance of high seas fisheries Flag State responsibility 6

7 The Package Deal: Nothing is agreed until everything is agreed In 2011, the BBNJ Working Group recommended that a process be initiated to consider together and as a whole four key elements, which have come to be known as the package deal : Marine genetic resources (MGRs); Including questions on sharing of benefits, measures such as area-based management tools (ABMTs), including marine protected areas (MPAs); Environmental impact assessments (EIAs); and Capacity building and the transfer of marine technology (CBTT). The Mandate of the PrepCom The General Assembly established the PrepCom, prior to convening an intergovernmental conference, for the purpose of recommending substantive elements for the development of an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. The process set out in paragraph 1 of UNGA Res 69/292 should not undermine existing relevant instruments and frameworks and relevant global, regional and sectoral bodies. 7

8 PrepCom 1 and PrepCom2: Overall View of the Options for Institutional Arrangements By the close of PrepCom2, discussions converged around two different approaches: Global Approach: establishment of a new global executive body, either through the establishment of a new body or through the expansion of the mandate of an existing organisation, such as the ISA, through which Parties could take decisions, undertake coordination efforts, and perform reviews and assessment of implementation and compliance. Regional and Sectoral Approach: suggest that such a global body would undermine other instruments and frameworks, favoring instead a regional and sectoral approach where specific management approaches would be dictated on topics already regulated by competent bodies. Overall, however, the question remained on how existing ocean governance gaps could be addressed without undermining existing relevant instruments and frameworks and relevant global, regional and sectoral bodies. PrepCom3 and the Hybrid Approach According to the recent Chair s Overview of PrepCom 3, the regional and/or sectoral approach envisages that general policy guidance to promote cooperation and coordination could be provided under the new instrument at the global level, while recognising the full authority, without oversight from a global mechanism, of regional and sectoral organizations in decisionmaking, monitoring and review. This approach considers that regional and sectoral bodies represent the most efficient mechanisms to regulate activities in ABNJ, as they have the knowledge and expertise necessary for the adoption of measures. 8

9 PrepCom3 and the Hybrid Approach (continued) New Zealand s suggested hybrid approach Global Body: making high level decisions including the identification of priority areas for establishment of ABMTs or MPAs; articulating when or how activities in ABNJ trigger the need for an EIA; establishing processes for cooperation and coordination with existing bodies; administering a global information repository; and undertaking a regular review of implementation of the Agreement. Regional and Sectoral Bodies: responsible for implementing the Agreement at the regional level through decisions and recommendations of relevant regional and sectoral bodies (utilizing existing mandates and well-established processes, where possible); sharing information and analysis; and reporting on implementation of the Agreement. States: responsible for implementation, as well as ensuring compliance and enforcement of their flag vessels, nationals and entities under their jurisdiction, with respect to the Agreement. States would also be responsible for reporting on implementation of the Agreement. PrepCom3 and the Hybrid Approach (continued) Institutional mechanisms: Include a COP, to meet regularly and review progress, develop guidance, make recommendations, and take decisions at the global level. Such mechanisms would be necessary to support the hybrid approach. Create Incentives: Incentivize existing organisations to enhance performance by: expanding mandates, incorporating new principles into governance framework, developing processes for implementing relevant parts of the Agreement, or developing of MOUs with other organisations to ensure better coordination. 9

10 Thank you / Tusen takk / Terima kasih kristine.d.kraabel@uit.no 10