The sustainable and equitable management of the marine environment beyond national jurisdiction
The sustainable management of our oceans represents a crucial challenge of our time. This importance has been recognized by the international community through the United Nations’ Sustainable Development Goals, which firmly express the determination to “[c]onserve and sustainably use the oceans, seas and marine resources for sustainable development” (Goal 14).
One current focus in this respect is the development of a governance regime for marine areas beyond national jurisdiction (ABNJ), which comprise the high seas and the international seabed area. The high seas, which cover about 64% of the world’s oceans, have in the past been subject to very limited regulation, with freedom of the high seas as one of the key governing principles. However, intensified use of ABNJ (e.g. fisheries and shipping) and consequential strains on the environment and food security have led to a growing concern that there is an urgent need for the elaboration of its regulatory regime.
To work towards this goal, the international community is currently developing an international legally binding instrument (ILBI) on the conservation and sustainable use of marine biological diversity in ABNJ. This shows the will of the international community to suggest alternative institutional and normative frameworks for sustainability governance, to be better equipped to tackle new challenges.
The institutional architecture for the governance regime for ABNJ is one of the controversial and critical issues during the current discussions on this regime at the United Nations (also referred to as BBNJ process). Designing an effective institutional framework for ABNJ, which ensures a balance between conservation-oriented outcomes for the management of the oceans and equality of opportunities for its sustainable use, will be key to the success of this regime. Issues that play a role in this respect are how to ensure the participation of developing states, in particular small island developing states, and of the broader global community, for example, through involving non-governmental organizations and other stakeholders, such as communities having traditional knowledge. Indeed, issues of sustainable development are entrenched in the BBNJ process, which discusses questions of benefit-sharing, capacity building and transfer of technology.
An assessment of the options for the ILBI’s institutional architecture requires the perspectives and approaches of different disciplines. The present project focuses on the options for institutional design from the perspective of legal feasibility, governance and regime interplay, and fairness (e.g. in terms of participation, decision-making and burden and benefit sharing). It is particularly interesting to investigate what balance between equity-centered considerations on the one hand and geopolitical interest-based considerations on the other hand the BBNJ process strikes/could strike, and also how this balance may be evaluated from legal and non-legal (e.g. philosophical and governance) perspectives. It is similarly interesting to assess the balance that the BBNJ process achieves/could achieve between sustainability-related considerations, which could also be cast as ‘intergenerational equity’, and geopolitical interest-based considerations.
In June 2019, the project held a workshop entitled 'Institutional Design at the crossroads of Law, Governance and Fairness: What Institutional Architecture for an Instrument on Marine Biological Diversity beyond National Jurisdiction?'.
The workshop had the twofold aim of: a) stimulating academic debate on the issues identified above; and b) contributing to the development of ideas that may feed into the current negotiations on the governance regime for ABNJ. To this end the workshop looked at approaches to institutional design from respectively a governance, legal and philosophical perspective. In addition, the discussions at the workshop took into account the state of play of the current negotiations on the governance regime for ABNJ on the issue of institutional design. The workshop gathered academics from the three disciplines, as well as public officials, negotiators in the BBNJ negotiations, and representatives from non-governmental organisations.
BBNJ Simulation with LLM students
In November 2018, as part of the International Environmental Law course of the LLM in Public International law, students were involved in a roleplaying game entitled “Negotiating the new ILBI”. Each student represented a particular State or non-State actor and, based on the discussions conducted during the PrepCom and the first meeting of the IGC, they elaborated a position, putting forward the interests and legal arguments of the entity represented, that could contribute to negotiations. This educational activity, which will be repeated in subsequent years, comes as a spin-off of the project.
Talk on BBNJ
In December 2018, we hosted Tom Diederen, Legal Officer of the Netherlands Ministry of Foreign Affairs, who gave a presentation on (practical) insights into the BBNJ-negotiations. Both students from the LLM in Public International Law and staff members attended the event and participated in the discussion.