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Biodiversity Beyond National Jurisdiction: Regimes and Their Interaction

  • Margaret A. Young (a1) and Andrew Friedman (a2)
Extract

International efforts to better conserve the marine biological diversity of areas beyond national jurisdiction (BBNJ) through a new international legally binding instrument1 are developing in a context of established norms and institutions. Existing regimes already address specific marine sectors (such as shipping), regions (such as fishing in the South East Atlantic), species (such as whales), and even underlying customary international law and territorial concepts (including the boundaries of the “high seas”2). States have agreed that they will not “undermine” these existing frameworks.3 We seek to contextualize this commitment within the fragmentation of international law and the interaction between regimes.4 We argue that international law-making should not be overly restricted by deference to existing competencies and mandates, which are fluid and asymmetrically supported. An inclusive and adaptive approach to existing and future institutions is vital in the ongoing quest for integrated and effective oceans governance.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 See G.A. Res. 72/249 (Dec. 24, 2017).

2 See UN Convention on the Law of the Sea Part VII, Dec. 10, 1982, 1883 UNTS 397 [hereinafter UNCLOS].

3 G.A. Res. 72/249 para. 7 (Dec. 24, 2017); G.A. Res 69/292 para. 3 (July 6, 2015).

4 See, e.g., Margaret A. Young, Introduction: The Productive Friction Between Regimes, in Regime Interaction in International Law: Facing Fragmentation 1, 11 (Margaret A. Young ed., 2012).

5 G.A. Res. 72/249 para. 2 (Dec. 24, 2017).

6 Report of the Preparatory Committee Established by General Assembly Res. 69/292 para. 38(IV), UN Doc. A/AC.287/2017/PC.4/2 (July 31, 2017).

9 Julien Rochette et al., Regional Oceans Governance Mechanisms: A Review, 60 Marine Pol'y 9 (2015).

10 “Regimes” here are taken as “sets of norms, decision-making procedures and organisations coalescing around functional issue-areas and dominated by particular modes of behaviour, assumptions and biases.” See Young, supra note 4, at 11.

11 On the politics of regime definition, see Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Modern L. Rev. 1, 27 (2007).

13 Margaret A. Young, Trading Fish, Saving Fish: The Interaction Between Regimes in International Law 134–38 (2011). A similar flexibility can be observed in proposals for disciplines on fisheries subsidies. See Margaret A. Young, The “Law of the Sea” Obligations Underpinning Fisheries Subsidies Disciplines, (ICTSD Research Paper, Nov. 14, 2017).

14 Young, supra note 13, at 267–87.

15 This chart generally excludes submissions made on behalf of regional groups (e.g., the Caribbean Community and the African Group) that listed no coordinating state on the submission. With the exception of the European Union, which is listed, these regional groups do not participate directly in the relevant organizations.

16 The 28 member states of the European Union are members of the IMO, but membership is not open to intergovernmental organizations such as the Union itself, which instead has observer status.

18 UNCLOS, supra note 2, art. 192; see also South China Sea Arbitration (Phil. v. China), P.C.A. Case No 2013-19, Award, para. 944 (July 12, 2016).

19 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Case No. 21, Advisory Opinion of Apr. 2, 2015, para.129, ITLOS Rep. 2013, 212. Note also the duties of consultation now recognized to be part of a decision to establish a marine protected area. See Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), P.C.A. Case No 2011-03, Award (Mar. 18, 2015).

23 Young, supra note 13, at 123–24.

24 UN Framework Convention on Climate Change, Report of the Conference of the Parties on Its Sixteenth Session – Addendum – Part Two: Action Taken by the Conference of the Parties at Its Sixteenth Session, UN Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011), Decision 1/CP.16, para. 70.

27 The (twice-resumed) Review Conference for the Fish Stocks Agreement has been reconvened on an ad hoc basis and produced a series of reports offering nonbinding recommendations for states to further implement their obligations under this agreement. See, e.g., Report of the resumed Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Prepared by the President of the Conference, UN Doc. A/CONF.210/2016/5 (Aug. 1, 2016).

28 David D. Caron, Confronting Complexity, Valuing Elegance, 106 ASIL Proc. 21, 25 (2012).

29 Young, supra note 13, at 289–92.

30 Id. at 283–84.

32 G.A. Res 69/292 para. 3 (July 6, 2015); G.A. Res. 72/249 para. 7 (Dec. 24, 2017).

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