Biodiversity beyond national jurisdiction (BBNJ) Blog Ecosystem approach Law of the Sea Convention (UNCLOS) Marine Protected Areas Rights of Nature

Introduction to the outcomes of the 2023 NCLOS Conference on “Ocean Commons”

By: Konstantinos Deligiannis-Virvos (UiT, Norwegian Centre for the Law of the Sea)

Matter commented on: NCLOS Conference on Ocean Commons, 1-3 November 2023, Tromsø, Norway.


The term “commons” usually brings into mind the problem of the tragedy of the commons: a concept in environmental science and economics that describes a situation in which individuals belonging to a group, acting out of self-interest, deplete shared resources, leading to the detriment of the entire group (Hardin, 1968). Within the law of the sea, the term “ocean commons” generally refers to marine areas beyond national jurisdiction, where no State holds sovereignty, sovereign rights, or exclusive jurisdiction. This designation aligns with the United Nations Convention for the Law of the Sea (UNCLOS), which distinguishes between maritime zones under national jurisdiction and areas beyond national jurisdiction.

Biodiversity beyond national jurisdiction (BBNJ)

CITES and the BBNJ Treaty: Some Reflections

By: Mazyar Ahmad

PDF: CITES and BBNJ Treaty_NCLOS Blog_final.pdf

Matter commented on: Interaction between CITES and BBNJ Treaty

1. Introduction

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) nineteenth Conference of Parties (CoP19) was held in Panama between 10-24 November 2022. Under agenda item ‘introduction from the sea,’ CoP19 directed the CITES secretariat to monitor the then-ongoing discussions on 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 biological diversity of areas beyond national jurisdiction (BBNJ). CoP19’s decision to direct its secretariat to monitor the discussions at the ongoing BBNJ negotiations was the reiteration of its earlier decision 17.181 taken at CoP17 at Johannesburg in 2016. Considering the interest CITES member States had shown toward the then-ongoing BBNJ negotiations, this blog post seeks to explore how the two regimes relate to each other, and if they overlap. As shown below, the two regimes do overlap, which might lead to a potential problem. This blog post begins by providing a brief overview of the CITES and the newly finalized BBNJ Treaty underscoring their scope of application. Section 3 examines the relevant provisions of the two instruments closely to highlight the overlap mentioned above. Section 4 delves into the regime interaction provision of both regimes to determine how this overlap may be resolved, followed by a discussion of the potential problem which may be caused due to the overlap, in section 5. Finally, section 6 concludes by asserting that cooperation between the two regimes may be the possible way out.

Biodiversity beyond national jurisdiction (BBNJ) Ecosystem approach

Operationalizing the Ecosystem Approach in the BBNJ Treaty

By: Vito De Lucia

PDF: Vito de Lucia_181022_NCLOS Blog.pdf

Matter commented on: 5th Session of the Intergovernmental Conference towards a new treaty on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, Further Refreshed Draft Text, A/CONF.232/2022/CRP.13/Add.1

1         Introduction: IGC5 and the “Further Refreshed Draft Text”

After the long COVID hiatus and the digital intersessional discussions, the BBNJ negotiations re-started in earnest in 2022 with two sessions of the intergovernmental conference (IGC): the fourth and last of the sessions stipulated in the UNGA resolution (A/RES/72/249) that launched the IGC was held in March 2022; and an additional fifth session, inevitable given the state of the negotiations at the end of IGC4 was held in August 2022 (IGC5). While IGC5 was not conclusive, much progress was made on many of the key issues, and a series of revisions of the negotiating text were produced by the Presidency during IGC5 (so called “refreshed” texts), in order to streamline the negotiations. At the end of an intense negotiating session, and amidst renewed commitments to finalize the BBNJ treaty, IGC5 was suspended without a consensus on a text, but with the view of resuming the same fifth session as soon as possible in 2023 (rather than providing for a sixth session of the IGC). This clearly gives the sense of optimism about concluding the negotiations at the resumed session of IGC5, despite disappointment of the parts of many delegations, which gave rise to emotional closing statements, especially on the part of Pacific and Small Island State delegations, for the missed opportunity to close the deal in August, as reported by the Earth Negotiations Bulletin (ENB, p. 10). However, this new pause gives room for some last-minute reflections.

In this blog post, I shall take the opportunity to articulate some concrete suggestions for a meaningful integration of the ecosystem approach (EA) in the BBNJ treaty, by linking its role as one of the overarching principles with the role that strategic environmental assessments (SEAs) may play in its operationalization. The analysis proceeds on the basis of the provisions and formulations contained in the latest draft circulated during IGC5, the further refreshed draft text (A/CONF.232/2022/CRP.13/Add.1). It is important to note, however, that the further refreshed draft text does not necessarily represent consensus, as adamantly expressed by China (ENB, p.9) at IGC5, which stressed that “in the drafting of this document, all views should have been treated equally and the document should have reflected all issues” (ENB, p.9), emphasizing at the same time how the BBNJ negotiations is a state-led process. It is also unclear at this point whether this further refreshed draft text will be the basis for further negotiations at the resumed session of IGC5.

Biodiversity beyond national jurisdiction (BBNJ) Marine Protected Areas

Recognizing Recognition: An Indispensable Element in a Global Regime for High Seas Marine Protected Areas

By: Bastiaan Ewoud Klerk

Matter commented on: Recognition of regional and sectoral marine protected areas (MPAs) under the international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ)

PDF Version: Bastiaan E Klerk_270722_NCLOS_blog post.pdf

1         Introduction

In the midst of global biodiversity and climate crises, global policymakers are resuming negotiations for a new implementing agreement under United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (BBNJ) in August 2022 (UN General Assembly Resolution 76/564). Following the fourth session of the intergovernmental conference (IGC-) in March, which by some has been remarked the “most productive of the entire process” (IISD, IGC-4 summary, at p. 20), expectations for the fifth session of the IGC- (IGC-5) are high. Given the unprecedented decline of global biodiversity, with a recorded average 68% decrease in monitored populations of mammals, birds, amphibians, reptiles and fish between 1970 and 2016, (WWF Living Planet Report, 2020) there is an obvious and urgent need for a treaty that allows for better protection of high seas biodiversity. The high seas, covering approximately half the Earth and comprising nearly 95% of the ocean’s total volume, are an indispensable link in global efforts to halt biodiversity loss (Parliaments for Global Action, 2020). They harbour diverse and abundant life and are essential to many species who migrate through and over them – whales, seals, tuna sharks, albatross, and many more. Yet, at present, only 1,2% of the high seas are covered by marine protected areas (MPAs) (Protected Planet Report, 2020).

Biodiversity beyond national jurisdiction (BBNJ) Marine Protected Areas

Can the BBNJ Treaty Support Dynamic Management for Arctic MPAs?

By: Andrea M. Fisher

Matter commented on: BBNJ Treaty and dynamic management of MPAs

PDF Version: Fisher_BlogPost_26052022-_Final.pdf

1. Introduction

The ongoing negotiations for a global treaty on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ) in part seek to fill the legal and governance gap for the establishment of marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ). The likely outcome — an Internationally Legally Binding Instrument (ILBI) — will facilitate the designation of new MPAs in ABNJ. Since negotiations are ongoing, a platform remains for discussing how the MPA mechanism of the ILBI can support advances in science and technology and potentially better respond to evolving risks to BBNJ.

This blog post, based on the author’s master’s thesis (Fisher, ‘‘Technical and Legal Implications for Dynamic Legalities…,’ 2021’’ and hereafter, ‘Fisher, LL.M. Thesis, 2021’), highlights one novel approach to area-based management called Dynamic Ocean Management (DOM). With DOM, spatial and temporal regulatory measures can constantly be updated to reflect changes to the marine environment in near real-time (see, e.g., Welch et al., 2019). For MPAs, it can lead to ongoing shifts of protected area boundaries or management regulations based on new ocean conditions (e.g., the presence of a vulnerable species). The approach could prove especially effective for conservation of BBNJ in marine environments facing rapid change and uncertainty, such as the Central Arctic Ocean (hereafter, Central Arctic Ocean is used to describe the ABNJ of the Central Arctic Ocean).

Scholars have discussed DOM’s promising potential for BBNJ conservation (see, Crespo et al., 2020 and Maxwell et al., 2020), inspiring a more specific question addressed in this post: how can the BBNJ Treaty accommodate DOM decision-making for Arctic MPAs? The decision-making focus is due to a notable juxtaposition: DOM’s ongoing, near real-time decision-making process and international law’s consent-based procedures that value stability and certainty. The Arctic focus emerges due to the potential usefulness of a DOM approach for a rapidly changing Central Arctic Ocean and simultaneously grounds the discussion in specific BBNJ relevant entities and context. Before exploring how the ILBI could support a DOM approach to Arctic MPAs, a brief overview of DOM and its potential for Central Arctic Ocean MPAs is provided.

Biodiversity beyond national jurisdiction (BBNJ)

What Role for Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas?

By: Mana Tugend

PDF version: Mana Tugend_260421_NCLOS Blog

Matter commented on: the Role of Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas

1 Introduction

The rapidly evolving ocean technologies and environmental changes induced by anthropogenic climate change have led to unprecedented pressures on the ocean, leading inter alia to ocean acidification, loss of biodiversity and pollution of air, water and soil. The need for better governance of human activities in the ocean space has been widely recognized for years as the world drastically evolved since the establishment of the current international legal framework for ocean governance, the 1982 United Nations Convention on Law of the Sea (UNCLOS). A process towards the establishment of an international legally binding instrument (ILBI) under UNCLOS on the conservation and sustainable use of marine biodiversity located in areas beyond national jurisdiction (BBNJ) is currently ongoing. At the moment and until the BBNJ agreement is finalized, more than 40% of the Earth’s surface receives limited effective legal protection for its natural environment and functional ecosystems (Brodie Rudolph et al. 2020). The BBNJ negotiations represent a historical opportunity to build a just and sustainable legal framework for ocean commons relying on an ecosystem-based approach for the benefit of both ecosystems and the people depending on these for survival. Indigenous peoples especially rely on a rich biodiversity and a healthy environment to maintain their traditional lifestyles. They developed and hold a vast amount of knowledge called traditional knowledge (TK), an integrated part of an Indigenous people’s identity that is transmitted across generations. This blog post wishes to address the question of the use of TK for the conservation of marine biodiversity in areas beyond national jurisdiction (ABNJ), a question currently addressed at the negotiations for the establishment of a BBNJ instrument. The scope of the discussion especially focuses on the incorporation of Indigenous peoples and TK holders with respect to conservation mechanisms in Arctic ABNJ – the high seas and the deep seabed located beyond the limits of coastal states’ jurisdiction (Ardron et al. 2013). This blog post primarily focuses on the relevance of TK with respect to the establishment of area-based management tools (ABMTs), including marine protected areas (MPAs), in Arctic ABNJ.

Biodiversity beyond national jurisdiction (BBNJ)

Virtual progress towards a new global treaty on marine biodiversity in areas beyond national jurisdiction

By: Christian Prip

Pdf:NCLOS Blog Prip New Treaty

Matter commented on: Virtual inter-sessional work of the Intergovernmental Conference on an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).

I. Introduction

Like many other international processes involving travelling and meeting activity, the COVID-19 pandemic has also affected the process to elaborate an implementing Agreement under the Law of the Sea Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).  The process has been the subject of a number of previous blog posts (including here and  here). A fourth and last scheduled substantive session of the intergovernmental conference (IGC) aimed at negotiating the Agreement was supposed to have taken place in March 2020 in the UN Headquarters but has been postponed to a date yet to be defined by the UN General Assembly.

Biodiversity beyond national jurisdiction (BBNJ)

Lessons to be learned from OSPAR’s network of marine protected areas in areas beyond national jurisdiction, in light of the BBNJ negotiations

By: Bas Klerk

PDF versionNCLOS Blog_Bas Klerk

Matter commented on: BBNJ negotiations; lessons to be learned from OSPAR’s MPA regime in ABNJ.

I          Introduction

The first steps toward the adoption of an international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ) were taken over fifteen years ago, with the establishment of the BBNJ Working Group by the UNGA. Today, the process is in its final phase as three out of four scheduled intergovernmental conferences (IGCs) have been completed, and the contours of the ILBI are becoming increasingly visible. However, the wait for ‘the once and future treaty’ (Tiller and others, 2019) will inevitably be a bit longer due to the ongoing pandemic, as IGC-4 has been postponed and not yet rescheduled. To keep the momentum going, President Lee decided to hold intersessional work. On area-based management tools (ABMTs) including MPAs, this will be done, rather innovatively, through the use of an online forum. This new form of negotiation will hopefully allow the delegations to cover enough ground so that the process can be concluded at IGC4 as planned.

Biodiversity beyond national jurisdiction (BBNJ)

Squaring the Oceanic Circle? On Regional Approaches to the Conservation of Marine Biodiversity in Areas beyond National Jurisdiction

By Vito De Lucia

Pdf version:Vito De Lucia Regional Governance BBNJ

Matter commented on: regional approaches to marine biodiversity conservation in ABNJ


The ongoing COVID-19 pandemic has determined the cancellation or postponement of a great many international meetings, including the suspension of all physical activities at the UN Headquarters in New York City. On 23 March, the UN building should have hosted the fourth – and last scheduled – substantive session of the intergovernmental conference (IGC) aimed at adopting a new treaty on marine biodiversity in areas beyond national jurisdiction (BBNJ). This session was formally postponed to a date yet to be defined by UN General Assembly Resolution 74/543 on 9 March 2020 (provisionally available as A/74/L.41). DOALOS however has kept busy behind the scenes and has recently released a very useful document (the Compilation) where it has compiled all the textual proposals countries (and observers) have been submitted following the invitation from the President of the IGC amb. Rena Lee that accompanied the release of the revised draft text in November 2019. A country-by-country compilation already existed, but the added value of this new document prepared by DOALOS is that it compiles all textual submissions on an article-by-article basis, greatly facilitating review and analysis. This pause in the negotiations, while it risks reducing the momentum of the negotiations, creates also a particularly propitious opportunity for reflections and commentaries on some of the central questions at stake. This post wishes to address the question of “international cooperation”, a question currently addressed by draft article 6 of the revised draft text. The key point of this discussion is the distribution of roles and competences to adopt conservation measures between the future BBNJ treaty and relevant global, sectoral and regional instruments, frameworks and bodies.

Global v. Regional Approach to the BBNJ Treaty

Throughout the negotiations, there have been two main ways to think about this question. There is a global approach, which considers as the natural outcome of the BBNJ process a global framework and the creation of a global BBNJ body with a strong mandate and with direct competence to adopt conservation measures, especially with respect to one of the four topics under negotiations,  area-based management tools (ABMTs), including importantly marine protected areas (MPAs). The groups of G77/China, of the Pacific Small Island Developing States (PSIDS), of the Alliance of Small Island States (AOSIS) and of the Core Latin American Group (CLAM), as well as most of the NGO participating as observers to the BBNJ negotiations have usually supported this global approach, in full or in part. By contrast, another group of countries such as Norway, Iceland, Russia, the Republic of Korea, Japan, China, the United States (countries with strong fisheries interests, strong institutions in their region, and an active Arctic interest) have historically favored a regional approach. The regional approach wants to avoid that the BBNJ treaty undermines regional and sectoral instruments and bodies that already operate and are competent to adopt measures within their respective mandates. During the PREPCOM phase, a third, middle-of-the-road approach was proposed by New Zealand, known as the hybrid approach. This approach gained immediately traction and still gathers much support, as there is certainly a need to approach the question of the distribution of competence in a diversified manner according to the topic of the Treaty, and even within the same topic. At the same time it is also evident to many delegations, as well as observers, that the effective governance of marine areas beyond national jurisdiction requires a strong participation of regional instruments and bodies, albeit within an overarching framework that should provide a “common goal or purpose”, as well as common principles that can be shared between the relevant bodies that will have direct competence to adopt conservation measures.

The New Proposal from Iceland

In this context, one particular textual proposal, submitted by Iceland as a comment on article 6 of the revised draft text, which addresses “international cooperation” (Compilation, p. 52), stands out. The proposal articulates in detail an interesting and constructive vision of regional implementation, by bringing significantly further, in the view of the present writer, existing “regional” submissions (such as Norway’s, whose earlier proposal Iceland explicitly builds upon), and builds an important bridge towards a framework of conservation that would integrate global common rules and principles and regional implementation. Iceland has consistently preferred a regional approach, whereby the BBNJ global framework would only put in place the necessary rules to facilitate coordination and cooperation among sectoral and regional instruments and bodies, but with decision-making remaining with the latter. This proposal reiterates Iceland’s strong preference for a regional approach (a preference underpinned by an equally strong reluctance towards the BBNJ negotiations, the need for a new agreement and the vision of a global management of marine biodiversity). However, this proposal takes a significant leap forward. The core of the proposal hinges on the idea of a “consultation process” that “should include all relevant bodies and international organizations that have a mandate to adopt conservation and management areas in the relevant region”, including relevant intergovernmental organizations such as the International Maritime Organization and the International Seabed Authority. (Compilation, p. 53, letter b). It also, interestingly, indicates that the consultation process shall be “formalized” in one of two ways: through the constitution of a formal international body, or more loosely through one of the participating bodies taking up the role of administrative coordinator (Compilation, p. 53, letter c).

The proposal also refers to cases where “no regional body with a mandate to establish conservation and management measures to protect biodiversity” exists, and suggests, reproducing the earlier Norwegian proposal, that in such situations relevant States “shall cooperate to establish such a body” (Compilation, p. 53, letter e). Here the expression “relevant States” includes both coastal States and States otherwise operating in the region. The central point, clearly, is to ensure a regional framework for implementation, whether regional bodies already exist or not in the particular region.

A Multiplication of Collective Arrangements?

The proposal by Iceland has arguably many merits. It appears to balance the need for an overall set of common rules and principles with the realities of regional and sectoral fragmentation. It also takes a pragmatic approach with respect to how to solve the question of the interaction (rectius: coordination and cooperation) between the BBNJ treaty and other relevant sectoral and regional instruments and bodies, a question so far mostly discussed in terms of ensuring that the BBNJ treaty will not undermine relevant instruments and bodies, in ways however yet to be firmly agreed upon. The key leap, however, is the proposal that such consultation processes “shall be formalized”, in one of the two ways illustrated. It is important that not all relevant details are addressed explicitly in the proposal (for example the issue of recognition), and the devils is, as always, in the details (for example of the formalization process; of tis institutional and normative outcome; of the relation between the BBNJ treaty and these new international organizations etc.). Nevertheless, the proposal deserves careful consideration.

Reading the proposal, however, it is difficult not to think immediately of 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) for the governance of the North East Atlantic. I have discussed the potential role of the CA as a suitable model for the overall architecture of the future BBNJ treaty elsewhere (for example here and here), and the question before us now is whether Iceland envisions a multiplication of CAs to serve as a regionalized institutional framework that shall see to the implementation of the global rules and principles adopted under the BBNJ treaty, and perhaps also why it has not utilized the same language. Iceland is in fact a member of both OSPAR and NEAFC, so it will have had the CA in mind when considering a model suitable to articulate a regional approach to BBNJ governance that might function and that, importantly, might elicit broader consensus, in light of the obligation to formalize the process set out in the proposal. However, it must be noted that for the time being, the CA has failed to become fully operational as no organization other than NEAFC and OSPAR, which already cooperate through a Memorandum of Understanding, has entered into the CA, reducing its practical relevance.

The goal of the CA is very similar to the aim of the proposed consultation process, as the CA aims to become a collective and multilateral forum composed of all competent instruments, frameworks and bodies addressing the management of human activities in the marine areas beyond national jurisdiction of the North-East Atlantic (CA Agreement, Annex II). 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 to “help deliver” an ecosystem-based governance of the oceans, as OSPAR underlines in relation to the CA. The relevant normative framework that the CA internalizes as the basis of the cooperation, importantly, already open for the operationalization of a future BBNJ treaty, through the non-exhaustive list of “relevant binding and non-binding international instruments” contained in article 4(d) of the CA.

This envisioned structure and the vision of the CA is thus clearly similar to the consultation process proposed by Iceland. There are, however, also some difference. First, Iceland does not envision the consultation process to encompass fisheries bodies, as evident by the suggested article 6 bis, which would state, in the form suggested by Iceland, that the BBNJ treaty “does not apply to conservation and management of fish stocks” (Compilation, p. 57). Secondly, the CA operates as a forum for cooperation and coordination. Within a BBNJ context however, there would be specific common goals and principles that such CAs would need to relate to in some manner. Additionally, there would be a multiplication of CAs (or consultation processes) resulting from a specific set of rules and obligations – those proposed by Iceland for example – which are addressed at State parties to the BBNJ treaty, but that articulate a global vision that would be the common foundation for all regional arrangements to implement.

One question that can be asked is whether a global BBNJ body should be participating to these regional consultation processes, perhaps not as a decision-maker, but with an oversight or safeguard function. This might be a functional benefit at least in relation to one of the problems that any regional approach raises. Not all regions have in fact sufficient institutional capacity or the resources to structure it, and that may impair significantly their ability to carry out effective regional cooperation and their ability to implement the BBNJ treaty – hybridity, and a diversity of approaches for different regions may thus be necessary, and envisioning a role for a BBNJ body as participating institution in regional arrangements, or as the operating body there where none exist, might offer a suitable, adaptive workaround.

Another question is how to ensure that all the relevant instruments and bodies participate to the regional arrangements, a relevant issue especially for the global bodies such as the IMO and the ISA, which, besides their general resistance against the potential encroachment of the BBNJ treaty in their areas of competence, have also shown little interest, so far at least, with respect to the North East Atlantic CA.

A further point  to raise is arguably that any regional implementation cannot be thought without thinking about an ecosystem-based model of ocean governance – and indeed this is the purpose of the CA. If one thinks in terms of ecosystems, or ecoregions, however, not only the inclusion of fisheries management becomes paramount, but the inclusion of coastal States in one such consultation process or arrangement becomes potentially central. It would be a missed opportunity in fact if coastal States are not included as potentially relevant actors in a decision-making framework that, if seriously aiming at ecosystem-based governance, will have to inevitably encompass both areas beyond and within national jurisdiction. This interconnection, and the corresponding need for an active participation of coastal States in decision-making, has been already singled out under the rubric of adjacency during the BBNJ negotiations. In the context of a regional, ecosystem-based governance model, it would be simply a question of taking the next logical step, in order to adopt the perspective of ecosystems and ocean connectivity, and move past the ill-suited jurisdictional zoning enshrined in UNCLOS. One possible way to articulate this expanded governance arrangement, is through what I have called elsewhere Regional Ecosystem Organizations (REOs). The idea is only been expressed in preliminary terms, but an REO should have a “full mandate to implement an ecosystem-based conservation framework across all relevant jurisdictional zones” (p. 9). Importantly, an REO, while formalized in terms of its legal basis, would need to “be conceived as a fluid governance arrangement […] able to adapt its participatory base and its decision-making geometry to relevant oceanic and ecosystem circumstances,” (ibid.), which would mean also being able to accommodate the participation of coastal States as and when relevant for achieving effective ecosystem-based conservation. Further details would need to be considered and carefully articulated, including some “(con)federalist” aspects that will ensure willingness to participate by protecting minority views and localized implementation through mechanisms such as concurrent majority.


The pause in the BBNJ negotiations imposed by the ongoing COVID-19 pandemics, creates a propitious opportunity for reflections and commentaries on some of the central questions at stake. This post addressed the question of “international cooperation”, and of the distribution of roles and competences to adopt conservation measures between the future BBNJ treaty and relevant global, sectoral and regional instruments, frameworks and bodies. Iceland has in this respect submitted a very interesting proposal for a balanced framework for the governance of marine biodiversity in areas beyond national jurisdiction that shall ensure that a) the new BBNJ treaty sets global standards, rules and principles; b) the BBNJ agreement will find effective implementation at a regional level, through a consultation process; c) the focus of the negotiators shift from the question of not undermining to mechanisms for coordination and cooperation. It seems evident that Iceland had in mind the Collective Arrangement that is already in place in the North East Atlantic as a legal mechanism to foster cooperation among all relevant sectoral and regional instruments and bodies for the implementation of an ecosystem-based conservation. In that respect the Icelandic proposal seem to suggest a multiplication of Collective Arrangements, an idea that has been discussed in some recent publications by the present writer both as a general model for the institutional architecture of the BBNJ treaty, and for the Arctic region more specifically.

The Icelandic proposal has many merits, though it is unclear whether it will gather significant support on the part of all those delegations that have consistently supported a strong role for regional instruments and bodies, such as Norway, the Russian Federation, the United States, Japan, the Republic of Korea, in light of the suggested obligation to formalize the envisioned consultation process. By contrast, this same obligation is likely to elicit the support of those observer NGOs, such as WWF, that have long stressed the importance of an enhanced regional cooperation regime for the implementation of the BBNJ global standards, although with a strong oversight role for global BBNJ institutions. The next step perhaps would be to imagine Regional Ecosystem Organizations that, while formalized in terms of their legal basis, would be able to be adaptive in terms of governance geometry and participation to decision-making. This would be one way to re-imagine international law in the Anthropocene as a law that “becomes-with” the radically complex ecological circumstances within which it operates. The Icelandic proposal offers an excellent opportunity in this respect, in this pause of the negotiations, to shift significantly perspective and raise the bar of what can be accomplished.


This post may be cited as: Vito De Lucia, “Squaring the Oceanic Circle? On Regional Approaches to the Conservation of Marine Biodiversity in Areas beyond National Jurisdiction” (May 9, 2020), on-line:Vito De Lucia Regional Governance BBNJ

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Biodiversity beyond national jurisdiction (BBNJ)

Dispute Settlement in the New Treaty on Marine Biodiversity in Areas beyond National Jurisdiction

Dispute Settlement in the New Treaty on Marine Biodiversity in Areas beyond National Jurisdiction

By: Joanna Mossop*

PDF Version:J Mossop Dispute Settlement in the BBNJ Treaty NCLOS

Matter commented on: Dispute settlement provisions in BBNJ


In December 2017, the United Nations General Assembly authorised the commencement of negotiations for a new treaty on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ Treaty). The new treaty is to be the third implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS). At the time of writing, three sessions of the intergovernmental conference have been held and two draft texts issued by the President of the Conference, Ambassador Rena Lee (see here and here). The purpose of this comment is to reflect on the future of the dispute settlement provisions in the new Agreement. I will focus on the provisions that appeared in the first draft text and were unchanged in the second draft text. These provisions essentially provided for the application of Part XV of UNCLOS mutatis mutandis (with the necessary changes) to disputes about the interpretation and application of the BBNJ Treaty.