The Protection of Marine
Biodiversity in Areas Beyond National Jurisdiction Through the Principle of Common
Concern of Humankind
Candidate number: 7012
Submission deadline: 1 December 2020 Number of words: 17997
i Table of contents
ACKNOWLEDGEMENTS...1
1 INTRODUCTION ...1
1.1 Methodology ...2
2 EXISTING BIODIVERSITY LAW (A HISTORY)...3
2.1 Origins ...3
2.1.1 CBD ...4
2.2 The protection of marine biodiversity ...7
2.2.1 UNCLOS ...8
2.2.2 The BBNJ (Biodiversity Beyond National Jurisdiction) Discussions and the proposal for a legally binding document under UNCLOS for areas beyond national jurisdiction ... 10
3 AREAS BEYOND NATIONAL JURISDICTION ... 13
3.1 The sea zones ... 14
3.1.1 The high seas ... 16
3.2 The Area... 18
4 MARINE BIODIVERSITY AS COMMON CONCERN OF HUMANKIND ... 20
4.1 Defining Common Concern of Humankind ... 20
4.1.1 The 3 Aspects of CCH (spatial, temporal, and social) and their relationship with sustainable development and other principles of International Environmental Law ... 21
4.2 Common Concern of Humankind vs Common Heritage of Humankind ... 27
4.2.1 Characteristics of CHH and differences with CCH ... 27
4.2.2 Application of CHH to the seabed ... 29
4.3 The protection of marine biodiversity as an obligation erga omnes and ius cogens... 31
5 MAKING THE PROTECTION OF MARINE BIODIVERSITY THROUGH CCH EFFECTIVE ... 35
6 CONCLUSION ... 39
BIBLIOGRAPHY... 41
1 Acknowledgements
I would like to thank Professor Christina Voigt for agreeing to be my supervisor, for her help- ful comments and assistance to improve the present thesis and her words of encouragement during the process. I would also like to thank Professor and Director of the Master’s Program in Public International Law, Cecilia M. Baillet, for her support and concern, not only academ- ical but also emotional, for us her students during the duration of the Master’s.
To the University of Oslo as a whole for providing me with an incredible personal and educa- tional experience, and to my family for it would not have been possible without their support.
1 Introduction
Biodiversity is essential for humanity’s survival. As Philippe Sands and Jacqueline Peels put it, “biodiversity contributes to the maintenance of the biosphere in a condition that supports human and other life”.1 Therefore, to protect live sustaining processes, we need to protect biodiversity. And what is biodiversity? Biodiversity means “the variability among living or- ganisms from all sources […] and the ecological complexes of which they are part (including) diversity within species, between species and of ecosystems”.2
Its conservation is considered a common concern of humankind as affirmed in the Preamble of the 1992 Convention on Biological Diversity (CBD). It is also a source of biological re- sources like food, industrial and pharmaceutical applications that States exploit within their borders according to the principle of permanent sovereignty over natural resources, which is considered customary law by some tribunals.3 From this general notion of biodiversity, I want to shift the focus to marine biodiversity. The ocean is the home of millions of species, which
“are an essential component of climate regulation”.4 Marine biodiversity is key to the ocean ecosystem, to climate change adaptation and to climate regulation with “the uptake and redis- tribution of natural and anthropogenic carbon dioxide (CO2) and heat”.5 But marine biodiver- sity, as any kind of biological diversity, it is a non-renewable source, once it is lost, it is lost for good. National legislation is put forward to protect marine biodiversity from exploitation and irreparable damage to the environment and ecosystems inside their nations, as the legal scope of the CBD is (in the case of components of biodiversity) within the limits of its nation- al jurisdiction.6 But what happens with those areas beyond national jurisdiction (ABNJ), spe-
1 SANDS, S. & PEEL, J. Principles of International Environmental Law, Cambridge University Press, 4th Edi- tion, 2019, p. 385
2 CBD, Art. 2
3 E.g. Texaco Overseas Petroleom Co. And California Asiatic Oil Co. v. Libya 53 ILR 389 (1977), para 87
4 OCEAN & CLIMATE PLATFORM. The decline of marine biodiversity; Life in the Ocean: the day after to- morrow. Available in: https://ocean-climate.org/?page_id=2133&lang=en
5 IPCC 2019 Special Report on the Ocean and Cryosphere in a Changing Climate, p. 15
6 CBD, Art. 4(a)
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cifically the high seas and the Area? These areas do not belong to anyone specifically but to everyone generally, and the international community fails to protect resources outside of na- tional jurisdiction as there is a principle of general freedom to act in these areas beyond na- tional jurisdiction.
But the conservation of marine biodiversity is considered a common concern of humankind, and this principle of Environmental Law must mean something for its protection.
How can marine biodiversity be protected then (especially on those areas beyond national jurisdiction) based on the principle of common concern of humankind? I intend to analyse the legal content and function of this principle in more depth to find possible uses and applica- tions to the protection of marine biodiversity in these areas. Member States of the UN are now negotiating the first-ever high-seas conservation treaty, but until it is finished, approved, en- ters into force, and shows results, other ways to protect marine biodiversity in international waters must be considered.
I will start by showing a history of the protection of biodiversity (and then, more concretely, marine biodiversity) through the years and the advances that have been made to solve the concern for the absence of a legally binding document that rules those areas beyond national jurisdiction.
Following to the next point, I will explain in detail those areas beyond national jurisdiction (the high seas and the so-called Area), for which I believe is necessary to explain the concept of the sea zones.
After that, I will dive right into the main point of this thesis, the principle of common concern of humankind, and its applications to marine biodiversity. I will analyse the principle, its characteristics and status. It will be compared with the principle of common heritage of hu- mankind and it will also be explained how CCH interacts with other principles of Environ- mental Law. I will finish the section on CCH with the possibility of this principle being an obligation erga omnes and the consequences of that status.
The last point before the conclusion will be my take on how plausible and feasible is that the principle of Common Concern of Humankind can be a real and effective legal base to protect marine biodiversity in the areas beyond national jurisdiction.
I will finish with the conclusion and findings of the thesis.
1.1 Methodology
The research question analysed in this master’s thesis has been answered using qualitative data coming from different international cases, legal instruments (including treaties, resolu- tions and declarations) and the works of several distinguished authors and notable journals available thanks to the sources made accessible by the University of Oslo, online and physi- cal. The secondary research followed in this thesis has been filtered, organized, identified and interpreted in order to uncover a new topic and problem that, as environmental law advances,
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gains more and more relevance, achieving the work presented below as a culmination to my master’s studies.
2 Existing Biodiversity law (a history)
2.1 Origins
The conservation of biodiversity would be considered part of the global commons.7 By
‘commons’ I am referring “to those areas, resources, or problems involving the community as a whole or where there is no specific state sovereignty”.8 In the absence of regulation, “com- mon resources are over-exploited”,9 conceptualizing the idea of the tragedy of the commons and showing the tensions between sharing and preserving the common resources. For this reason, the conservation and protection of biodiversity has been subject of intense internation- al negotiations and regulations until the 1992 Convention on Biological Diversity.
Modern international biodiversity conservation comes from various sources and “until the 1980s, international instruments tended to address wildlife or wild fauna and flora”.10 To pro- tect biological diversity, “emphasis needs to be placed not simply on protecting particular species,11 but on protecting the broader ecosystems in which they live”.12 The 1971 Ramsar Convention on the protection of wetlands of international significance was the first to do it.
Later, in 1972 the Stockholm Declaration called for nature conservation stating that “man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors”.13 The Stockholm Declaration emphasizes also the safety of flora and fauna in the interest of present and future generations.14
In 1982, it was proclaimed the World Charter for Nature —not legally binding, but neverthe- less made under the United Nations— as a code of conduct for the protection and preservation of nature. In its General Principles it affirmed that “the genetic viability on the Earth shall not
7 In this way: RANGANATHAN, S. “Global Commons”. In European Journal of International Law, Vol. 27, Num. 3, 2016, p. 693
8 MURILLO CHÁVARRO, J. “Common Concern of Humankind and its implications in International Environ- mental Law”. In DE FEYTER, K. Globalization and Common Responsibilities of States. Routledge, 2017, p.
337
9 n. 7
10 n. 1, p. 384
11 For example, the 1973 Convention on International Trade in Endangered Species (or CITES) was designed to protect endangered species of flora and fauna regulating or prohibiting their trade.
12 BODANSKY, D.M. "International Law and the Protection of Biological Diversity," In Vanderbilt Journal of Transnational Law, vol. 28, no. 4, 1995, p. 629
13 1972 Stockholm Declaration, Principle 4
14 1972 Stockholm Declaration, Principle 2
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be compromised; the population levels of all life forms, wild and domesticated, must be at least sufficient for their survival, and to this end necessary habitats shall be safeguarded”.15 And a little mention to the maritime areas when it says that “all areas of the Earth, both land and sea, shall be subject to these principles of conservation[…]”.16
Another non-binding instrument that came before the CBD was Agenda 21, “conceived as a plan of action for the international community designed to integrate environment and devel- opment concerns”.17 Chapter 15 of Agenda 21 focus on the conservation of biodiversity. The chapter highlights that “our planet's essential goods and services depend on the variety and variability of genes, species, populations and ecosystems and that the current decline in biodi- versity is largely the result of human activity and represents a serious threat to human devel- opment”.18 It focused in how beneficial biodiversity is for us and described it as an instrument more than recognizing that biodiversity has an intrinsic value itself.
Sands and Peel wrote that “most of the early conservation agreements tended to focus princi- pally, if not exclusively, on direct drivers, particularly unsustainable exploitation and habitat loss, focusing on maintaining viable population of species and the habitat (with) in situ and ex situ conservation measures for wild flora and fauna”.19 Later, with the Convention on Biolog- ical Diversity it would take “a more holistic approach, addressing direct and indirect causes of biodiversity loss”20 and trying to integrate biodiversity considerations into other policy areas.
For its importance in the protection of biodiversity as a framework convention and the first multilateral treaty to address all aspects of biodiversity, the following section addresses the CBD.
2.1.1 CBD
Adopted in 1992, the Convention on Biological Diversity entered into force in 1993. Con- ceived as a mean to put order in the various agreements referred to the protection of wildlife, but ending as a framework convention that builds upon those agreements (which maintain their autonomy), it went beyond this goal, addressing issues that “range from the ecosystem protection to the exploitation of genetic resources, from conservation to justice, from com- merce to scientific knowledge, from the allocation of rights, to the imposition of responsibili-
15 1982 World Charter for Nature, Principle 2
16 1982 World Charter for Nature, Principle 3
17 n. 1, p. 43
18 Agenda 21, Chapter 15
19 n. 1, p. 386
20 Ibid., p. 387
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ties”;21 reflecting those considerations in other policy areas mentioned supra, comprising a wider range of issues that the previous instruments and becoming “a forum for a multifaced policy dialogue involving States and other stakeholders”.22
The Convention has three objectives: the conservation biological, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.23 As previously said, the Preamble declares the conservation of biodiversity a common concern of humankind, but also that “States have sovereign rights over their own biological resources, that they are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner […]”.24
Article 3 establishes a general duty to ensure that activities under their control do not damage the environment in other States or ABNJ. Even when it declares that “States have, in accord- ance with the Charter of the United Nations and the principles of international law, the sover- eign right to exploit their own resources […]”.25
The jurisdictional scope of the CBD is declared in Article 4. Its provisions apply to compo- nents of biological diversity within the limits of national jurisdiction of the Parties. It also applies to processes and activities carried out under the control of Parties both within and be- yond their national jurisdictions.26
Article 5 talks about cooperation, expressing that all contracting parties must work together for the conservation and sustainable use of biological diversity (also in ABNJ),27 for which they need to develop national strategies, plans or programmes (national biodiversity strategies and action plans or NBSAPs) or adapt existing ones.28
As it shows, “the CBD already provides some measure of protection for the environment and biodiversity in ABNJ, and some expectation of international cooperation to ensure these pro- tections, because of the global importance of biodiversity to humankind”.29
Although the CBD differentiates itself from other biodiversity agreements because it “does not incorporate any global list of species or habitats that are to be subject to particular measures of protection or important for conservation and sustainable use”,30 the contracting
21 LE PRESTRE, PG. (ed.). Governing global biodiversity: The evolution and implementation of the convention on biological diversity. Routledge, 2002, p. 22
22 n. 20
23 CBD, Art. 1
24 CBD, Preamble
25 CBD, Art. 3
26 CBD, Art. 4(a) & (b)
27 CBD, Art. 5
28 CBD, Art. 6
29 BOWLING, C; PIERSON, E; RATTÉ, S. “The common concern of humankind: a potential framework for a new international legally binding instrument on the conservation and sustainable use of marine biological diversity in the high seas”. White Paper, 2016, p. 9
30 n. 1, p. 390
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parties are obliged, as far as possible and appropriate, to identify components of biodiversity important for its conservation and sustainable use; to monitor the components paying particu- lar attention to those requiring urgent conservation measures and those which offer the great- est potential for sustainable use; to identify processes and categories which have or are likely to have significant adverse impacts on the conservation and sustainable use of biodiversity and monitor those effects31 (relating to the use of Environmental Impact Assessments or EIA).32
Article 8 addresses in situ conservation by obliging the Contracting Parties (as far as possible and appropriate) to establish protected areas where special measures need to be taken to con- serve biological diversity, develop guidelines for selecting and managing those areas, regulate or manage biological resources important for the conservation and sustainable use of biologi- cal diversity inside and outside the protected areas, and promote the protection of ecosystems, habitats and the maintenance of viable populations.33 Protected areas are important for the conservation and sustainable use of biodiversity, but as Sands and Peel point out they are de- pendent of political views of the government (they can be inadequately managed or under- funded), are not big enough to be effective, or conflicts may surge with those communities who want to take advantage competitively of the areas.34
Ex situ conservation is specified in Article 9, and each party must take measures to conserve components of biological diversity complementary to in situ conservation.35
The convention also requires notification, exchange of information and consultation on activi- ties likely to have significant adverse effects on the biodiversity of other States and areas be- yond national jurisdiction.36 It also included controversial rules on access to genetic resources, transfer of technology and benefit sharing in Articles 15 to 19, which “were perceived by some countries to threaten the stability of existing intellectual and property rights”37 protected by other international agreements, to which the Convention declares that its “provisions shall not affect the rights and obligations of any Contracting Party deriving from any existing inter- national agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity”.38
31 CBD, Art. 7
32 An obligation declared in Art. 14 of CBD for Contracting Parties that must (as far as possible and appropriate) conduct EIA when projects are likely to have significant adverse effects on biological diversity to try to avoid or minimize such effects.
33 CBD, Art. 8
34 n. 1, p. 391
35 CBD, Art. 9
36 CBD, Art. 14(c)
37 n. 1, p. 394
38 CBD, Art. 22(1)
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The numerous ‘as far as possible and as appropriate’ that are added in the obligations of the convention are noticeable. They might show that it takes into consideration the conditions ad capabilities of each party, but at the same time demonstrates the soft character of said obliga- tions and that they leave a significant amount of discretion to each party with respect to the actions that they have to take to protect biodiversity.
Finally, the Conference of the Parties (CoP) keeps under review the application of the Con- vention,39 and can formulate and adopt protocols to the CBD.40
Moving to the focus of marine biodiversity, little is said in CBD about it. As a subtype of bio- diversity, the scope of the CBD also applies to the marine areas in which the State has juris- diction, but nothing too specific is said. Article 22 declares that the Contracting Parties shall implement the CBD with respect to the marine environment consistently with the rights and obligations of States under UNCLOS,41 but nothing else. I turn now to the regulation of ma- rine biodiversity.
2.2 The protection of marine biodiversity
The Conference of the Parties of the CBD “has been devoted to developing and implementing specific and wide-ranging work programmes under the Convention on (inter alia) marine and coastal biodiversity”.42
The Conference in its tenth meeting declared decision X/2 on its Strategic Plan for Biodiversi- ty for the 2011-2020 (the Aichi targets). Aichi target 11 —which did not impose any com- mitments on the parties but urged them to develop national and regional targets— is the one that relates more marine biodiversity, declaring that “by 2020, at least 17% of terrestrial and inland water areas and 10% of coastal and marine areas, especially areas of particular im- portance for biodiversity and ecosystem services, are conserved through effectively and equi- tably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscape and seascape”43. This target led to recent gains like a massive increase in marine protection from 2.5 to 7.6% since 2010.44 Still below the 17% goal but being “the most successful of the 20 Aichi Targets”.45 In setting the targets post-2020, specially in the one that would replace Aichi Target 11, Sills argue that a bold conservation target is needed, one that focuses on bio-
39 CBD, Art. 23(4)
40 Two Protocols to the Convention have been adopted by the Conference of the Parties so far, the 2000 Cartage- na Protocol on Biosafety, and the 2010 Nagoya Protocol.
41 CBD, Art. 22(2)
42 n. 1, p. 405
43 Decision X/2, Aichi Target 11
44 WOODLEY, S., et al. “A bold successor to Aichi Target 11”. In Science, vol. 365, num. 6454, 2019, p. 649
45 Ibid.
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diversity importance, respects benefits to people and considers carbon values to help with the Paris Agreement Goals.46
Now I will address the protection of marine biodiversity that can be found in UNCLOS.
2.2.1 UNCLOS
The conservation of marine living resources in UNCLOS is recognized as ‘desirable’ in the Preamble. In the high seas is treated in Part VII, Section II of UNCLOS. It is said that “all States have the duty to take, or to cooperate with other States in taking, […] measures for their respective nationals for the conservation of the living resources of the high seas”47 and the cooperation between States for the conservation of marine biodiversity in this area is also promoted.48
Also, the main environmental provisions of UNCLOS that are centred in the protection and preservation of the marine environment are found in Part XII of the Treaty. In the South Chi- na Sea Arbitration, the Tribunal —an arbitral tribunal administered by the Permanent Court of Arbitration or PCA constituted under Annex VII to the 1982 UNCLOS— observed that the duty to protect and preserve the marine environment found in Article 192 UNCLOS, though written in general terms, includes a “positive obligation to take active measures to protect and preserve the marine environment, including an obligation to maintain and improve its present condition (though the Tribunal does not elaborate on what this entails)”.49 This, according to James Harrison, “opens the door to interpreting UNCLOS in a manner to require the positive rehabilitation or restoration of degraded marine ecosystems”.50 The Tribunal affirmed that Article 192, read in connection with Article 194(5),51 imposed an obligation on the Contract- ing Parties “not only in relation to activities directly taken by the States and their organs, but also in relation to ensuring that activities within their jurisdiction and control do not harm the marine environment”.52 The Tribunal interpreted this obligation as requiring “due diligence in the sense of a flag State not only adopting appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control”.53 It is inter- esting that referred to this Article 192, the Tribunal mentions that the content of this obliga-
46 Ibid.
47 UNCLOS, Art. 117
48 UNCLOS, Art. 118
49 South China Sea Arbitration Award of 12 July 2016, para. 941
50 HARRISON, J. “The Protection of Species, Ecosystems and Biodiversity Under UNCLOS in Light of the South China Sea Arbitration: An Emergent Duty of Marine Ecosystem Restoration?” Edinburgh School of Law Research Paper, num. 2019/20, 2019, p. 4
51 UNCLOS, Art. 194(5): [States shall take measures] to preserve and protect rare or fragile ecosystems as well as the habitat of depleted, threatened, or endangered species and other forms of marine life.
52 n. 49, para. 944
53 Ibid.
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tion is also informed by “reference to specific obligations set out in other international agree- ments (mentioning expressly in the ruling the corpus of international law relating to the envi- ronment), as envisaged in Article 237 of the Convention”.54 The importance of this lies, as pointed by Harrison in that indicates “an awareness amongst the drafters of UNCLOS that Part XII of the Convention co-exists with a broad range of additional instruments dealing with the protection of the marine environment, which indirectly supports a broad process of sys- tematic interpretation, in which other legal rules are used to inform the content of the Conven- tion”.55 A vision also supported by the Vienna Convention on the Law of Treaties (VCLT) Article 31(3)(c) on the principle of systemic integration. What is more, all the State Parties to UNCLOS are parties to the CBD which means that the CBD “meets the meaning of a relevant rule applicable between the parties for the purposes of Article 31(3)(c) of the VCLT and thus it is an appropriate source to take into account in interpreting UNCLOS in a systematic man- ner”.56
UNCLOS also implies a duty to restore degraded marine ecosystems, like when it says that States are required to “take measures designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield”,57 or when it says that States shall take into consideration “the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations above levels at which their reproduction may become seriously threatened”.58 In words of Harrison, the requirement in Article 194(5) to take measures to protect the habitats of depleted, threatened or endan- gered species “is clearly designed to improve the conservation status of the relevant species, even if the text of this provision does not expressly use the terminology of rehabilitation or restoration”.59
Having the CBD which imposes an obligation on States to “as far as possible and appropriate rehabilitate and restore degraded ecosystems and promote the recovery of threatened spe- cies”,60 and having said supra that the CBD is binding on all parties to UNCLOS, the CBD can be used to affirm that “Article 192 of UNCLOS can be interpreted to include an obliga- tion of ecosystem rehabilitation and restoration”.61 The problem would be giving normative content to said obligation and what would be required of States to comply with said duty, if it
54 Ibid., para. 942
55 n. 50, p. 6
56 n. 50, p. 7
57 UNCLOS, Art. 119(1)(a)
58 UNCLOS, Art. 119(1)(b)
59 n. 50, p. 11
60 CBD, Article 8(f)
61 n. 59
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is a duty of result or due diligence. It is for questions like these is that we need a normative international legally binding instrument is necessary to effectively protect biodiversity in ABNJ and why the BBNJ discussions (explained below) are relevant.
With respect also to marine biodiversity protection in UNCLOS, the International Tribunal for the Law of the Sea in its 2015 Advisory Opinion62 affirmed that Article 192 UNCLOS is one of the Convention’s provisions concerning general obligations which are to be met by the flag State in all maritime areas regulated by the Convention. So, a State Party to the Convention is under an obligation to ensure compliance by vessels flying its flag with the relevant conserva- tion measures concerning living resources enacted by the coastal State. Thus, Article 192 of the Convention imposes on all States Parties an obligation to protect and preserve the marine environment. This obligation, says ITLOS, is a fundamental principle and the Tribunal recalls that living resources and marine life and their conservation are an integral element in the pro- tection and preservation of the marine environment. ITLOS back its argument referring to the Southern Bluefin Tuna Cases, where the Tribunal observed that “the conservation of the liv- ing resources of the sea is an element in the protection and preservation of the marine envi- ronment”.63
There is a question with respect to UNCLOS’ provisions having the status of customary law and them being compulsory to those States which are not part of the Treaty. Tulio Treves said that “at present it can be said that there is a presumption that the provisions of the Convention correspond to customary law. It is, however, rebuttable, as case-by-case basis evidence can be submitted to argue that a specific provision has a merely treaty character.”64
2.2.2 The BBNJ (Biodiversity Beyond National Jurisdiction) Discussions and the proposal for a legally binding document under UNCLOS for areas beyond national jurisdiction
As explained previously, the CBD operates inside the jurisdiction of each State Party for the components of biological diversity (though it mentions in general terms cooperation as far as possible and appropriate in ABNJ and other matters of mutual interest in Article 5 or a duty to ensure that activities within their jurisdiction and control do not cause damage to the envi- ronment in Article 3, but not all the Contracting States have the institutional capacity to en- force them, and this Articles do not profound more in their words), and in UNCLOS, marine
62 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 4, paras. 111, 120, 216 & p. 63, 68
63 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, para. 70
64 TREVES, T., “UNCLOS at Thirty: Open Challenges,” In Ocean Yearbook num. 27, 2013, p. 51
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biodiversity is not given much attention, much less when it comes to marine biodiversity be- yond national jurisdiction issues. These issues include the question of the status of genetic resources65 beyond national jurisdiction, what would be their legal regime with respect to ac- cess to those genetic resources and the sharing of benefits coming from them, and the conser- vation and sustainable use of marine biodiversity in these areas.
The UN Open-ended Informal Consultative Process on Oceans and Law of the Sea (UNICPOLOS)66 discussed in its Fifth session “New Sustainable Uses of the Oceans, Includ- ing the Conservation and Management of the Biological Diversity of the Seabed in ABNJ”.67 In the Eighth meeting of UNICPOLOS, the CoP urged parties to increase “collaborative activ- ities to protect ecosystems in marine areas beyond the limits of national jurisdiction, in the context of international law”.68
From the Fifth meeting of UNICPOLOS, it was established an ad hoc working group on Ma- rine Biodiversity Beyond National Jurisdiction.69 Beginning in 2006, the working group “was an informal meeting regarded as a kind of study group to encourage productive and open dis- cussions on marine biodiversity”,70 and in the Forth meeting of the working group in 2011
“numerous delegates were ready to engage in a discussion on the concepts and processes re- quired for effective conservation and sustainable use of marine biodiversity BNJ […] and the possible development of a multilateral agreement under UNCLOS”.71
The Preparatory Committee for the UN Conference on Sustainable Development (UNCSD or Rio+20) of 2012, was reunited in its Second session in 2011. There, it was considered that
“the complexity, fragmentation and incompleteness of the high seas regime as a governance gap was one of the problems to be addressed at Rio+20 […] which seemed to send a strong message to the ongoing working group”.72
65 From TSURU, Y. “13. Institutional Interplay between Marine Biodiversity beyond National Jurisdiction―A New Agreement?” In ESPÓSITO, C. et al. Ocean Law and Policy: Twenty Years of Development Under the UNCLOS Regime. Brill Nijhoff, 2017, p. 346: “by ‘genetic resources’ means genetic material of actual or potential value. And ‘genetic material’ means any material of plant, animal, microbial or other origin con- taining functional units of heredity. Stated differently, every living resource is also a genetic resource”.
66 UNGA Resolution 54/33, A/RES/54/33: Established UNICPOLOS in 1999 to facilitate the annual review by the General Assembly of developments in ocean affairs and the law of the sea by considering the report of the Secretary-General on oceans and the law of the sea and by suggesting particular issues to be considered by it, with an emphasis on identifying areas where coordination and cooperation at the intergovernmental and inter-agency levels should be enhanced.
67 UNGA Report A/59/122 on the work of the UNICPOLOS at its 5th meeting (7–11 June 2004)
68 UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, para. 11
69 UNGA Resolution 59/24, A/RES/59/24
70 n. 65, p. 351
71 Ibid., p. 352
72 Ibid., p. 353
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The outcome document of Rio+20 ‘The Future We Want’ (adopted by consensus) stated: “We recognize the importance of the conservation and sustainable use of marine biodiversity be- yond areas of national jurisdiction […] Building on the work of the ad hoc working group and before the end of the 69th session of the General Assembly we commit to address, on an ur- gent basis, the issue of the conservation and sustainable use of marine biological diversity of ABNJ, including by taking a decision on the development of an international instrument un- der UNCLOS”.73
In the 9th and last meeting of the ad hoc working group on 23 January 2015, the group decid- ed to recommend the UN General Assembly for its 69th session to “develop an international legally binding instrument (ILBI) under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, opening the door to a new implementation agreement74 for UNCLOS”.75 A preparatory committee was established by the UN General Assembly in this session with the purpose of making recommendations on the elements of the draft text for the mentioned legally binding instrument.76 The resolution says that “negotiations to develop the new ILBI should address four elements: […] marine genetic resources, including questions on the sharing of benefits, measures such as area based man- agement tools, including marine protected areas, environmental impact assessments and ca- pacity-building and the transfer of marine technology”.77 The Preparatory Committee meet- ings held in 2016 “identified additional issues for consideration, including definitions, scope, relationship of the instrument to other instruments, institutional arrangements, compliance, responsibility and liability…”78 This proposition for an ILBI in ABNJ has some reasons be- hind it like “that the current legal and institutional regime for the high seas based primarily on flag state jurisdiction is inadequate to address the significant stresses on marine biological diversity beyond national jurisdiction […] (or that) there is no international rule-making struc- ture for the high seas that can hold individual states accountable, so a more integrated and cross-sectoral governance structure is needed”.79
73 UNGA Resolution 66/288, A/RES/66/288, para. 162
74 There are two previous UNCLOS implementation agreements: the agreement relating to the Implementation of Part XI of the UNCLOS, adopted on 28 July 1994, and the 1995 Fish Stock Agreement.
75 UNGA A/69/780, para. 1(e)
76 UNGA Resolution 69/292, A/Res/69/292
77 Ibid. para. 2
78 WARNER, R. “Conservation and Management of Marine Living Resources beyond National Jurisdiction:
Filling the Gaps”. In CHURCHILL, R. & ELFERINK, A.O. (Eds.). Publications on Ocean Development: A Series of Studies on the International, Legal, Institutional, and Policy Aspects of Ocean Development. Brill | Nijhoff, vol. 86, 2018, p. 180
79 Ibid., p. 183
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What could be the potential for this treaty of conservation of marine biodiversity in ABNJ if it is ever finished? Warner considers that “at a minimum, the ILBI could contain international law principles and standards on conservation and sustainable use of marine biological diversi- ty including marine living resources in ABNJ, which are generally applicable to all States Parties”.80 In this case, the problem is that there are already principles for the conservation and sustainable use of biodiversity, so in this sense this minimum potential would not add anything new to the protection of biodiversity and would not be really useful. But if the treaty went further, it could be used to “make the responsible parties liable for environmental harm on the high seas and could also provide an important focal point for global, regional and sec- toral organisations with responsibilities for conservation and sustainable use of marine biolog- ical diversity in ABNJ through establishing a CoP”.81 It could also help to share and collect scientific information on marine biodiversity in this areas. The Area-based management measures, as another element that is considered for this international instrument, “may en- hance the recovery of fish stocks, ecosystem resilience and improve monitoring of changes”,82 and the role of Environmental Impact Assessments may “enhance cooperation and collabora- tion to make relevant information available to relevant global and regional organisations”.83 However, as said, all of this cannot happen without an agreement of the State Parties to take conservation and management measures in the high seas. Resources and political will from the States is necessary to achieve a document with a real outcome that goes further from what already exits to strength the protection of marine biodiversity in these ABNJ.
In the meanwhile, as it cannot be certain that this ILBI will be achieved and we are not certain either of the contents that they will be able to agree on, other ways to protect biodiversity must be investigated. That is where the principle of common concern of humankind enters in scene. But before that, it is necessary to explain the existent regime in the ABNJ.
3 Areas Beyond National Jurisdiction
In this point it will be explained the two areas beyond national jurisdiction in which the thesis focuses: the high seas and the Area, maritime areas that “represent almost the half of the Earth’s surface.”84 This two ABNJ are characterized by a residual quality meaning that the
80 Ibid., p. 191
81 Ibid., p. 192
82 Ibid., p. 193
83 Ibid.
84 RICARD, P. “Sovereignty and Challenges of the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction: How to Reconcile the Individual Interests of States at Sea and the ‘Common Interest of Mankind’?” In 2019 ESIL Annual Conference, Athens, 2019, p. 3
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“final geographical boundaries depend on the completion of the delimitation process of other maritime areas, the EEZ and the continental shelf”.85
3.1 The sea zones
What are the sea zones (or maritime areas) and how are they governed?
“The global ocean covers 71% of the Earth surface and contains about 97% of the Earth’s water”.86 The ocean is divided in three sea zones that can be found in UNCLOS, with differ- ent levels of sovereignty. These three zones are the territorial sea, the exclusive economic zone (EEZ) and the high seas.
Both the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone (GCTS) and UNCLOS assume that every coastal state has a territorial sea.87 States have sovereignty over the territorial sea always “subject to the provisions of the conventions and other rules of inter- national law”.88 The coastal state has all the rights and duties integral to their sovereignty (in- cluded security and health purposes, customs, fiscal regulation, etc.), meaning complete legis- lative and enforcement jurisdiction. The coastal State has “the right to prescribe, regulate, and control practically all activities […] and to exclusively exploit the natural resources of the territorial sea”.89 Foreign vessels also have privileges, essentially the right of innocent pas- sage, found in customary law and codified in UNCLOS,90 restricting in this sense the State sovereignty in the territorial sea. However, the coastal State “may exclude foreign vessels from navigation and trade along the coast (cabotage)”.91 As Article 3 of UNCLOS declares, the territorial sea extends 12 nautical miles (nm) from the baseline.92 This regime also extends vertically, to the airspace over the territorial sea and its bed and subsoil.93
Next there is the Exclusive Economic Zone, detailed in Articles 55-75 of UNCLOS. The EEZ
“covers exploitation and management of non-living as well as living resources […] up to 200
85 Ibid. p. 5
86 n. 5
87 GCTS, Art. 21; UNCLOS, Art. 2
88 CRAWFORD, J. “The territorial sea and other maritime zones”. In Brownlie's Principles of Public Interna- tional Law. 9th Edition, Oxford Scholarly Authorities on International Law, 2019, p. 242
89 WOLF, S. “Territorial Sea”. In Max Planck Encyclopedia of Public International Law, 2013, para. 21
90 UNCLOS, Art. 17-26: passage means navigation through the territorial sea for the purpose of traversing the sea without entering internal waters or proceeding to or from internal waters; and it is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal State.
91 n. 88, p. 251
92 The baseline is usually is normally the coastal low-water line stated in UNCLOS, Art. 5, this line defined “as marked on large scale charts officially recognised by coastal States.”
93 UNCLOS, Art. 2(2)
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nautical miles”94 meaning that the EEZ extends no further than 200nm from the baselines of the territorial sea.95 UNCLOS declares these sovereign rights of the coastal state in the EEZ for the economic exploitation and exploration of the zone and jurisdiction96 in this zone re- garding “the establishment and use of artificial islands, installations and structures; marine scientific research; the protection and preservation of the marine environment (especially im- portant regarding this thesis”97 and other rights and duties provided in the Convention.
The EEZ is part of customary international law, as was confirmed by the International Court of Justice.98 When claimed, “an EEZ coexists with the regime of the continental shelf which governs rights with respect to the seabed and the subsoil”.99 With the word claimed, it refers to the fact that the zone is “optional and dependent of actual claim”.100 In this sense, few states maintain Exclusive Fishery Zones (EFZ) instead of or in addition to the EEZ.101 EFZ are recognized as custom in international law too.102 But the EEZ is more than a fishery zone (thus being the 200nm fishery zones redundant by the existence of EEZs). On the EEZ the coastal State has also a responsibility of managing the living resources having to “ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is not endangered by over-exploitation”103, ensuring certain level of pro- tection to the marine biodiversity in the zone.
Before explaining the final maritime area, it is necessary to briefly mention a bit more about the continental shelf of a coastal State because it also collides with the Area as it will be seen
94 UNCLOS, Art. 56(1)(a)
95 UNCLOS, Art. 57
96 According to C. Ryngaert in The Concept of Jurisdiction in International Law, Sovereign Rights represent the rights that a coastal state enjoys based on its sovereignty over all kinds of resources in its EEZ and continen- tal shelf, while Jurisdiction allows States to give effect to the sovereign independence which they are en- dowed with in a global system of formally equal States, through stating what the law is relating to persons or activities in which they have a legal interest (the right of coastal states in making decisions, regulations and supervising their enforcement). Sovereign rights derive from sovereignty, while jurisdiction derives from sovereignty rights.
97 UNCLOS, Art 56(1)(b)(i), (ii) and (iii)
98 Continental Shelf (Tunisia/Libya), Judgement, ICJ Reports 1982, p. 18, paras. 38, 47–9, 74; Gulf of Maine, Judgement, ICJ Reports 1984, p. 246, para. 294; Continental Shelf (Libya/Malta), Judgement, ICJ Reports 1985, p. 13, paras. 32–4.
99 n. 88, p. 263
100 Ibid.
101 By 2016, only 14 states retained fishing zones of up to 200nm, including the US, Japan and some EU mem- bers. CRAWFORD, n. 88, p. 262
102 In the Fisheries Jurisdiction cases the International Court declared “preferential rights of fishing in adjacent waters in favour of the coastal state in a situation of special dependence on its coastal fisheries, this prefer- ence operating in regard to other states concerned in the exploitation of the same fisheries” (ICJ Reports 1974 p. 3, paras. 23-31). The status of custom was also declared in the Jan Mayen case (Jan Mayen, ICJ Reports 1993 p. 38, paras. 59, 61–2).
103 UNCLOS, Art. 61
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in point 3.2. According to UNCLOS (which prevails over the 1958 Convention on the Conti- nental Shelf104) it “comprises the seabed and subsoil of the submarine areas that extend be- yond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200nm from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance”.105 This amounts to “more than 30% of the total seabed areas of the world to have been attributed to coastal States, including considerable parts of the sea floor situated beyond the continental margins”.106
With respect to the attribution of resources, the coastal State has the exclusive sovereign rights to explore and exploit its natural resources (living and non-living).107
The legal concept of the EEZ has similarities with the continental shelf, and the ICJ declared that “the concept of the continental shelf and the EEZ are linked together in modern law”.108 Both attribute certain limited rights to coastal States beyond the reach of the territorial sea, but their regimes are distinct, and UNCLOS clarifies that coastal States’ rights over the continen- tal shelf exist without “occupation or any express proclamation”109 while the EEZ’s rights require to be claimed by the coastal State.
The following sea zone is the one in which we are interested in this thesis: the high seas.
3.1.1 The high seas
As put by Dinah Shelton, “the high seas are one of the common areas, outside of national boundaries, not reducible to national or private appropriation”.110 This is the same that saying that the high seas are geographically and legally speaking, an area beyond national jurisdic- tion, “beyond the sovereignty (or sovereign rights) of States”.111 The definition of the high seas can be found in UNCLOS as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”.112
104 UNCLOS, Art. 311(1)
105 UNCLOS, Art. 76(1)
106 STOLL, P.T. “Continental Shelf”. In Max Planck Encyclopedia of Public International Law, 2008, para. 14
107 UNCLOS, Art. 77
108 Continental Shelf (Libya/Malta), n. 98, para. 33
109 UNCLOS, Art. 77(3)
110 SHELTON, D. “Common Concern of Humanity”. In Environmental Policy and Law, vol. 39, num. 2, 2009, p. 34; and UNCLOS, Art. 89
111 n. 84, p. 4
112 UNCLOS, Art. 86
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The high seas represent almost two-thirds of the planet’s ocean and 45% of the Earth’s sur- face,113 proving the importance of finding legal basis to protect its marine biodiversity.
The High Seas are characterized by a principle called freedom of the high seas, a doctrine proposed by Hugo Grotius in the 17th Century in his work Mare Liberum, which declares that the high seas in time of peace are open to all nations and may not be subjected to national sovereignty.114 The 1958 Convention on the High Seas said that this principle comprised for coastal and non-coastal States, inter alia, freedom of navigation; freedom of fishing; freedom to lay submarine cables and pipelines; and freedom to fly over the high seas.115
However, it must be remarked that it is a “conditional freedom”116 rather than an absolute one. As David Freestone explained, UNCLOS (concretely Arts. 192 and 194(5)) “introduced […] an unqualified obligation on all states to protect and preserve the marine environment as well as the active obligations to protect and preserve rare or fragile species and ecosystems in all parts of the marine environment (fully applicable to the high seas), as well as the habitat of depleted, threatened or endangered species and other forms of marine life”.117 This way, the freedom of the high seas is conditioned by the conservation of the biodiversity that can be found there. Articles 116-119 UNCLOS endorse this position further, by establishing condi- tions for States to fish in the high seas;118 obliging to cooperate with other States to conserve the living resources of the high seas;119 and actively obliging States to take measures to main- tain and restore populations of harvested species at Minimum Sustainable Yield (MSY) levels based on the ‘best scientific evidence available’.120
However, it cannot be overlooked that these provisions seemed general and vague, having a minimal interference with the exercise of the principle of freedom of the high seas. For this reason, posterior agreements under UNCLOS like the 1995 UN Fish Stock Agreement (UN- FSA) tried to implement the advances discussed in 1992 Agenda 21121 of UN Conference on Environment and Development (UNCED), the Rio Earth Summit. UNFSA inter alia “com- mits its parties to the sustainable use of (straddling fish and highly migratory fish) stocks, endorses an ecosystem approach and a precautionary approach to the conservation of these
113 WRIGHT G. et al., “Protect the neglected half of our blue planet”. In Nature, vol. 554, num. 7691, 2018
114 High Seas, Encyclopædia Britannica, 2017, available at: https://www.britannica.com/topic/high-seas
115 1958 Convention on the High Seas, Art. 2
116 FREESTONE, D. (Ed.). “Principles Applicable to Modern Ocean Governance”. In Conserving Biodiversity in Areas Beyond National Jurisdiction, Leiden; Boston, 2019, p. 51
117 Ibid.
118 UNCLOS, Art. 116
119 UNCLOS, Art. 117
120 UNCLOS, Art. 119
121 Agenda 21, specially in Chapter 17, paras. 17(44-69), focused on new approaches to ocean management and changes in the high seas’ regime for straddling fish stocks and highly migratory fish stocks.
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stocks […] and requires parties to protect biodiversity in the marine environment”,122 commit- ting the parties to a sustainable use of these stocks. A general duty of States, which was rec- ognized and derives from Article 3 of the CBD123 is the concept of ‘responsible high seas ac- tivity’, “a need to reaffirm and reinforce a positive duty of States to ensure that their nation- als—whether natural or legal persons or vessels flying their flag—act in conformity with ap- plicable conservation and management measures”.124
This shows a development, as well as an intent of the international community in recognizing the importance of the modern challenges that it faces in sea governance by including new principles, like the precautionary principle or the concept of sustainable development, as a good foundation to confront said challenges and be more responsible with the activities car- ried out in the high seas.
The principle of freedom of the high seas finds an adversary in other principles, including the principles of common concern and common heritage of humankind. This conclusion that the freedom of the high seas is a limited one serves as a point in this thesis to use the principle of Common Concern of Humankind to protect marine biodiversity in this Area.
3.2 The Area
The next ABNJ important for this thesis is the Area, defined in UNCLOS as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”.125 This space is under the supervision and control of the International Seabed Authority (ISA).126
There are differences in the regime of the two ABNJ. While the high seas have the regime of the freedom of the high seas for the water column, the Area is governed by the principle of common heritage of humankind (tackled in Section 4 of this thesis). As the high seas, the Ar- ea cannot be claimed, appropriated by any State and they cannot exercise any sovereign rights over any part or resources in it.127
The Area can only be used for peaceful uses, as it was declared in the 1971 Seabed Arms Control Treaty.128 Even if this treaty came before UNCLOS, it forbids State Parties to “im- plant or place on the seabed or ocean floor or in the subsoil thereof, beyond 12nm (the territo- rial sea), any nuclear weapons or any other types of weapons of mass destruction or struc- tures, launching installations, or any other facilities specifically designed for storing, testing,
122 n. 116, p. 52
123 CBD, Art. 3: States have […] the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
124 n. 116, p. 54
125 UNCLOS, Art. 1
126 UNCLOS, Art. 137(2)
127 UNCLOS, Art. 137(1)
128 1971 Seabed Arms Control Treaty, Art. 1
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or using such weapons”.129 Therefore, the Area, being outside the 12nm, as the high seas, can be used only for the mentioned peaceful purposes.
As previously said, the International Seabed Authority is the competent organ for this ABNJ.
“Apart from its decision-making functions in the field of deep seabed mining operations, the ISA is empowered to issue secondary law, i.e. to establish rules, regulations, and procedures in respect of individual subject-matters”.130
There is, however, some sort of sovereign problem with respect to the possibility of the coastal State to extend their continental self, and therefore, reducing the international part of the sea bed.131 The existence of the Area has not avoided coastal States from “excessive con- tinental shelf claims due to the open character of the respective provision in UNCLOS”.132 Being the continental shelf the main criteria for the extension of the Area, “there is a geo- graphical and vertical overlap between the high seas regime and the sovereign rights of the coastal State on its continental shelf for the exploration and exploitation of sedentary and mineral resources”.133
It is difficult to establish unequivocally the geographical scope of the Area, and for being the extended continental shelf and the ABNJ closely connected, “activities on the extended conti- nental shelf will undoubtedly have an impact on the environment”134 and the marine biodiver- sity of these areas.
As it can be appreciated, marine biodiversity is also important in the Area. It is one of the most species-rich habitats on the planet, mentioning that “life activity with an extraordinary level of endemism is especially high near seamounts135 and hydrothermal vents”.136
129 Ibid., Art. I
130 GRAF VITZTHUM, W. “International Seabed Area”. In Max Planck Encyclopedia of Public International, 2008, para. 20
131 UNCLOS, Art. 76
132 n. 130, para. 25
133 n. 84, p. 5
134 Ibid., p. 6
135 Seamounts and hydrothermal vents: according to the US Department of Commerce National Oceanic and Atmospheric Administration (NOAA), seamounts are undersea mountains formed by volcanic activity rec- ognized by scientists to be biological hotspots that support a dazzling array of marine life thanks to their steep slopes that carry nutrients upwards from the depths of the oceans providing food for creatures. (From the same source) Underwater volcanoes at spreading ridges and convergent plate boundaries produce hot springs known as hydrothermal vents, which are surrounded by biological communities dependent upon chemical processes that result from the interaction of seawater and hot magma.
136 n. 129, para. 12
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4 Marine Biodiversity as Common Concern of Humankind As said before, the conservation of biodiversity was considered a common concern of human- kind in the Preamble of the CBD. The concept of ‘common concern’ was introduced for the first time in 1988, in the UNGA Resolution 43/53, where it recognized that “climate change is a common concern of mankind, since climate is an essential condition that sustains life on Earth”.137 This concept is higher than that of ‘common interest’ found in legal documents like the Preamble of the 1959 Antarctic Treaty, the Preamble of the 1946 International Convention for the Regulation of Whaling, or the protection of the Seabed from military installations.138 Common concern “indicate a certain higher status instead of the weaker interest (implying) that international governance regarding those concerns is not only necessary or desired but rather essential for the survival of humankind”.139
Murillo Chávarro explained that the concept “emerged on the conventions on Climate change and Biodiversity as a reaction to the implications of the common heritage concept (which) was rejected in both conventions by the countries that negotiated them, […] who ended up opting for the more ambiguous concept of common concern […] as is based upon equitable sharing of burdens in the protection of the environment rather than benefits of exploitation from the common resources”.140
In this point, the characteristics and potential uses of the principle of CCH will be analysed with the goal of protection of marine biodiversity in ABNJ.
4.1 Defining Common Concern of Humankind
The term ‘common concern of humankind’ provides a way to approach global problems.
They “invite a broader perspective that transcends the conception of an international commu- nity narrowly conceived of states pursuing their respective self-interests. The standard for assessing states’ actions is not their self-interest or even collectively agreed goals, but rather the protection and safeguarding of the interests of humanity and the planet as a whole”.141 At the very least, Dinah Shelton explains that CCH “expresses the need for international coop- eration through strong global institutions to face a shared problem”.142
As put by Friedrich Soltau, the main characteristic of the principle of CCH include: “the in- terests concerned extend beyond those of individual states and touch on values or ethics of
137 UNGA Resolution 43/53, A/RES/43/53
138 BIERMANN, F. “Common Concern of Humankind: The Emergence of a New Concept of International Envi- ronmental Law”. In Archiv des Völkerrechts, vol. 34, num. 4, 1996, p. 431
139 Ibid., p. 432
140 n. 8, p. 342
141 SOLTAU, F. “Common concern of humankind”. In The Oxford Handbook of International Climate Change Law, 2016, vol. 14, num. 2, 2016, p. 206
142 SHELTON, D. n. 110, p. 86