Marine biodiversity is critical to the health of our world. However, much of this biodiversity lives outside the borders of any single country, in areas known as the high seas. Recognizing the importance of international collaboration in protecting these essential ecosystems, the United Nations Convention on the Law of the Sea (UNCLOS) has made substantial efforts toward the protection and sustainable use of marine biological diversity outside state authority. In this blog, we will look at the importance of UNCLOS in protecting marine biodiversity across borders.

After nearly two decades of negotiations, United Nations Member States on a text for 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 in areas beyond national jurisdiction, known as the 'high seas.

UNCLOS and Marine Biodiversity

The United Nations Convention on the Law of the Sea (UNCLOS), enacted in 1982, is commonly referred to as the "constitution for the oceans." It creates the legal basis for all activities in the world's seas, such as navigation, resource extraction, and environmental preservation. Part XIV of UNCLOS focuses on the conservation and sustainable use of marine biodiversity beyond national authority.

One of the core foundations of UNCLOS is the concept of the common legacy of mankind, which states that deep sea resources, including marine biodiversity, are a shared inheritance of all people. This idea guides attempts to protect and manage marine biodiversity in places beyond national authority.

Challenges to Marine Diversity

Overfishing, habitat degradation, pollution, and the effects of climate change all pose significant risks to marine biodiversity. These concerns are amplified in locations beyond national jurisdiction, where governance and enforcement systems are either lax or nonexistent. Without proper protection, sensitive marine ecosystems including deep-sea corals, seamounts, and hydrothermal vents face permanent harm.

UNCLOS provides an important foundation for tackling these concerns by recognizing all governments' rights and obligations in the conservation and sustainable use of maritime biodiversity outside national authority. UNCLOS has made a substantial contribution to marine conservation by promoting international collaboration. Under UNCLOS, governments are required to collaborate in the conservation and management of living resources on the high seas. This includes the formation of regional and global cooperation institutions, such as regional fisheries management organizations (RFMOs) and the United Nations General Assembly.

One of UNCLOS' most significant contributions to marine conservation is its awareness of the necessity for area-based management instruments, such as marine protected areas (MPAs), in areas outside national control. While the UNCLOS does not establish explicit mechanisms for the construction of MPAs, it does offer a legal framework for nations to negotiate and implement such measures through regional and global accords.

The approval of UNCLOS' new agreement on the conservation and sustainable use of marine biodiversity beyond state jurisdiction is a significant step forward in international efforts to conserve the high seas. This agreement, based on UNCLOS principles and rules, establishes a framework for the conservation and sustainable use of marine biodiversity in areas outside national control.

Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (General Assembly resolution 72/249)

In its resolution 72/249 of 24 December 2017, the General Assembly decided to convene an Intergovernmental Conference under the auspices of the United Nations to consider the recommendations of the Preparatory Committee established by resolution 69/292 of 19 June 2015 on the elements and to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biological resources.

In accordance with Resolution 72/249, the Conference convened a three-day organizational conference in New York from April 16 to 18, 2018, to consider organizational topics, including the procedure for preparing the instrument's zero draft.

The first session took place from September 4 to 17, 2018, the second from March 25 to April 5, 2019, and the third from August 19 to 30, 2019. The fourth session, which was postponed by decisions 74/543 and 75/570 because of the COVID-19 pandemic, was held from March 7 to 18, 2022. In accordance with General Assembly decision 76/564 (accessible as A/76/L.46), the Conference will have its fifth session from August 15 to 26, 2022.

On the final day of that session, the Conference resolved to postpone the fifth session and resume it later to be determined. According to resolution 77/248 of the General Assembly, the resumed fifth session of the Intergovernmental Conference met from February 20 to March 3, 2023.

At the conclusion of that meeting, the Conference decided to reconvene later to finalize the agreement. In this regard, the General Assembly, in decision 77/556 of 18 April 2023 (currently available as document A/77/L.62), requested that the Secretary-General convene a further resumed fifth session of the conference on 19 and 20 June 2023, tentatively, or on a date to be determined in consultation with the President of the Conference.

As a result, the fifth session was rescheduled for June 19 and 20, 2023, at the United Nations Headquarters in New York. On June 19, 2023, the Conference accepted, by consensus, the Agreement under the UN Convention on the Law of the Sea on the conservation and sustainable exploitation of marine biological diversity in regions not under national authority (A/CONF.232/2023/4). The conference concluded on June 20, 2023.

Agreement under the United Nation Convention on the Law of Sea on the Conservation and Sustainable use of Marine Biological Diversity of Areas Beyond National Jurisdiction

The Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, convened under the auspices of the United Nations, adopted the UN Convention on the Law of the Sea Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement) on June 19, 2023. The BBNJ Agreement becomes the third implementing agreement for the United Nations Convention on the Law of the Sea.

The BBNJ Agreement addresses four major issues under the overall objective of the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction for the present and the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination:

• Strategies for managing marine genetic resources include equitable benefit sharing,
• Area-based management,
• Environmental impact assessments, and
• Capacity-building and technology transfer.

The Agreement also establishes a funding mechanism and sets up institutional arrangements, including a Conference of the Parties and various subsidiary bodies, a Clearing-House Mechanism, and a secretariat.

The BBNJ Agreement is open for signature by all States and regional economic integration organizations from 20 September 2023 to 20 September 2025, and will enter into force 120 days after the date of deposit of the sixtieth instrument of ratification, approval, acceptance, or accession.

On August 1, 2023, the General Assembly adopted resolution 77/321, which approved the assumption by the Secretary-General of the United Nations of the functions assigned to him under the Agreement, including the depository functions and the performance of secretariat functions through the Division for Ocean Affairs and the Law of the Sea of the Office of Legal Affairs of the United Nations (DOALOS) until the secretariat to be established under the Agreement.

On March 4, 2023, delegates at an inter-governmental conference at the United Nations headquarters in New York agreed on the text of a 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 in areas beyond national jurisdiction (the "BBNJ Agreement" or "Treaty"). The BBNJ Agreement is the third implementing agreement under UNCLOS, and it represents the culmination of nearly two decades of preparation.

The BBNJ Agreement aims to "ensure the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, for the present and in the long term" through "effective implementation" of UNCLOS and "further international cooperation and coordination." Parties to the Treaty may be States or regional economic integration organizations.

The BBNJ Agreement defines precise systems and processes for activities in the High Seas, as well as the seabed, ocean floor, and subsoil (the "Area"). The Treaty's provisions address four major topics: (i) marine genetic resources, including the fair and equitable sharing of benefits; (ii) area-based management tools, such as marine protected areas; (iii) environmental impact assessments; and (iv) capacity-building and the transfer of marine technology.

The BBNJ Agreement also contains several "general principles and approaches" governing activities in the High Seas and the Area, including the polluter-pays concept, the precautionary principle/approach, an ecosystem approach, and an integrated approach to ocean management. Parties are obligated to collaborate to fulfil the Treaty's objectives, including "by increasing and developing cooperation with and promoting Cooperation among appropriate legal instruments and frameworks, as well as important global, regional, subregional, and sectoral organizations."

To make the BBNJ Agreement operational, several institutions were established, including: (i) a Conference of the Parties (the "COP"); (ii) a Scientific and Technical Body; (iii) a Secretariat; (iv) an Implementation and Compliance Committee; and (v) a Clearing-House Mechanism, which serves as a centralised platform for Parties to access, provide, and disseminate information about their activities. In the event of a "natural phenomenon or human-caused disaster," the COP "shall make decisions to adopt measures" on a "emergency basis, if necessary."

The dispute resolution provisions of Part XV of UNCLOS apply to the BBNJ Agreement unless a Party agrees to a different approach. However, if a dispute is "technical in nature," the Parties may refer it to "an ad hoc expert panel."

The BBNJ Agreement will take effect 120 days following the sixtieth document of ratification, approval, acceptance, or accession.

Current Situation of Agreement.
The Agreement was adopted in New York on June 19, 2023, at the resumption of the fifth session of the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The Agreement will be open for signatures in New York on September 20, 2023, and will stay so until September 20, 2025. Article 68(1) states that "This Agreement shall enter into force 120 days after the date of deposit of the sixtieth instrument of ratification, approval, acceptance, or accession". There are 3 parties and 88 signatories to the agreement.

Key Provisions of New UNCLOS Agreement.
The new UNCLOS agreement on marine biodiversity includes several essential elements aimed at improving conservation and sustainable usage in areas outside state jurisdiction:

• The agreement calls for the creation of marine protected areas and other area-based management mechanisms to safeguard marine biodiversity.
• Environmental effect assessments: States must perform environmental impact assessments for activities that may have a major negative impact on marine biodiversity in areas outside national authority.
• Capacity development and technology transfer: The agreement acknowledges the significance of capacity building and technology transfer in assisting developing countries in their efforts to protect and sustainably exploit marine biodiversity.
• Marine genetic resources: The agreement sets a framework for the fair and equitable distribution of benefits resulting from the use of marine genetic resources in areas outside national authority.

Conclusion
The new UNCLOS agreement on the conservation and sustainable use of marine biodiversity outside state jurisdiction marks a significant advancement in international efforts to conserve the high seas. UNCLOS contributes significantly to the protection of marine biodiversity across borders by providing a comprehensive legal framework for cooperation and conservation. However, the success of these initiatives will ultimately depend on states' commitment to implementing and enforcing the agreement's provisions, as well as continued collaboration among governments, scientists, and civil society organizations. Only by working together can we ensure that our seas remain healthy and resilient for future generations.

References:

• https://www.un.org/Depts/los/bbnj.htm
• https://www.imo.org/en/OurWork/Legal/Pages/UnitedNationsConventionOnTheLawOfTheSea.aspx
• https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en
• https://www.fiettalaw.com/pil_news/new-unclos-agreement-on-the-conservation-and-sustainable-use-of-marine-biological-diversity-of-areas-beyond-national-jurisdiction/

Written By: Tushar Malviya, BBA.LLB (Hons),2nd Year, Lovely Professional University, Punjab.