Responsibility to the international community for marine biodiversity beyond national jurisdiction
Cymie R Payne Associate Professor, Rutgers University, New Brunswick, NJ, USA
Chair, Ocean Law Specialist Group, World Commission on Environmental Law, International Union for Conservation of Nature, Gland, Switzerland

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International law still struggles with an understanding of an ‘international community’ that has legally cognisable interests distinguishable from those of individual sovereign States. This international community is imagined variously as the collectivity of sovereign States, an abstract concept of all human beings, an international body, or a non-governmental organisation tasked with representing humanity (or even the planet). The further these concepts move from traditional State sovereignty, the more fanciful they may seem to international relations realists, yet the participation of corporations, communities, public interest organisations and individuals in treaty-making, international litigation, and other fora of international law tells a different story: international law is not always a ‘States only’ activity. The international community is conceived as having interests, possibly as having rights, and perhaps as having duties. For such rights and duties to be realised, there must be State or non-State entities that can act on behalf of the international community (let us call these ‘avatars’). Here, roles that the international community’s avatar might assume in a treaty regime for conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ) are examined, which allows us to move from academic speculation to concrete scenario analysis. The starting premise is that BBNJ obligations will be owed to the international community as a whole: erga omnes obligations. They will not be bilateral, nor will they solely address narrow national interests.

Abstract

International law still struggles with an understanding of an ‘international community’ that has legally cognisable interests distinguishable from those of individual sovereign States. This international community is imagined variously as the collectivity of sovereign States, an abstract concept of all human beings, an international body, or a non-governmental organisation tasked with representing humanity (or even the planet). The further these concepts move from traditional State sovereignty, the more fanciful they may seem to international relations realists, yet the participation of corporations, communities, public interest organisations and individuals in treaty-making, international litigation, and other fora of international law tells a different story: international law is not always a ‘States only’ activity. The international community is conceived as having interests, possibly as having rights, and perhaps as having duties. For such rights and duties to be realised, there must be State or non-State entities that can act on behalf of the international community (let us call these ‘avatars’). Here, roles that the international community’s avatar might assume in a treaty regime for conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ) are examined, which allows us to move from academic speculation to concrete scenario analysis. The starting premise is that BBNJ obligations will be owed to the international community as a whole: erga omnes obligations. They will not be bilateral, nor will they solely address narrow national interests.

1 INTRODUCTION

International law still struggles with an understanding of an ‘international community’ that has legally cognisable interests distinguishable from those of individual sovereign States.1 This international community is imagined variously as the collectivity of sovereign States, an abstract concept of all human beings or an even more abstract ‘humanity’ (probably including future generations), an international body or a non-governmental organisation (NGO) tasked with representing humanity, or representing the planet itself, not just its human occupants.2 The international community is conceived as having interests, possibly as having rights and perhaps as having duties. Or, instead of duties, it may be more accurate to say that there are some problems that call for collective action on behalf of a global community that is transnational (humanity) and transtemporal (present and future generations). For such rights and duties to be realised, there must be State or non-State entities that can act on behalf of the international community (let us call this collective actor or agent an ‘avatar’).

The need for collective action in support of the interests of the international community are highlighted by a new ocean treaty. The agreement is intended to be a legally binding instrument for conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ), under the United Nations (UN) Convention on the Law of the Sea (UNCLOS),3 but that will also be open to States that are not parties to UNCLOS.4 Note that UNCLOS mentions the ‘international community’ but only in Article 59, which directs that conflicts over rights or jurisdiction in the exclusive economic zone (EEZ), where States have limited jurisdictional and access rights, should take into account the importance of the interests involved to the parties and to the international community as a whole. It is also worth noting that UNCLOS provides limited institutional opportunities for collective action to address transboundary problems: the standing bodies are the International Tribunal for the Law of the Sea (ITLOS) and the International Seabed Authority (ISA). Neither has the authority or mandate to convene States Parties to pursue multigenerational, transboundary policies on issues such as biodiversity. Discerning the international community that might be owed obligations under the BBNJ agreement will allow us to move from academic speculation to analysis based on the textual proposals that States and non-State actors have made.

The BBNJ agreement is an apt subject to analyse responsibility to the international community. BBNJ obligations are not bilaterally owed by one State to another in the sense that States must act collectively,5 nor do they solely address narrow national interests. Recognition that BBNJ obligations are owed to the international community as a whole, as erga omnes obligations, is compelled by the agreement’s intended scope and purpose. The jurisdictional scope of the BBNJ agreement is marine areas beyond national jurisdiction (ABNJ).6 Its purpose is to provide conservation and sustainable use of the ocean commons. While the seabed that lies beyond national jurisdiction is explicitly defined as ‘the common heritage of mankind’ by UNCLOS, which also established a management regime for sharing benefits from mining it,7 the negotiation of this agreement has struggled to find a principle that balances the traditional freedom to access resources on the high seas with the modern need to manage them for the long-term benefit of humans and the ecosystems themselves. In embarking on this negotiation, States committed themselves to overcoming the conservation challenge of this open-access resource.

The fact that biodiversity has been referred to as ‘a common concern of humankind’ also invokes the international community.8 The principle of common concern expresses the idea of an international community of shared interests that needs collective action to address global problems. Duncan French suggested that the concept of common concern is needed precisely because ‘the very structure of the international legal order is found to be wanting and consequently alternatives, however inchoate, must be considered’.9 He has suggested that ‘it justifies legal action by reference to a general consensus that States share a common responsibility to act at the global level’.10 He points to treaty bodies, such as conferences of the parties (COPs) and their activities as institutions, that function as substitutes for global governance.11 Perhaps it is worth observing that a State will act according to its own calculus, whether or not logical, consensual and necessary norms are weighed as heavily as its formal legal commitments and rules. Common concern may carry more conviction as a principle to encourage cooperation than as a regulatory rule constraining activities.

Common interest is the related concept that has been used by the International Court of Justice (ICJ) in its explanations of what is at stake for parties to a treaty that are not themselves injured, which entitles them to litigate before the court.12 The concept has been invoked across diverse fields of international law, including sustainable development, peace and security, and human rights.13 This diversity in use leaves common interest as an appealingly flexible notion without much leverage.

Traditionally, and erroneously, international law was structured as though humanity’s interests could be adequately represented by sovereign States. We have observed that States are unreliable custodians of nature when they can free-ride, when their direct interests are not engaged; or, worse, when their powerful constituents stand to benefit.14 Often States act like individuals, unwilling to spend treasure or political capital to comply or to compel compliance with treaty obligations and customary international law, even with rules that are as generally acknowledged as the obligation to prevent transboundary harm. (This is the biggest obstacle to success for the climate change treaty regime.) During the course of the BBNJ negotiation, States have acted out of their national interest, for example by strongly supporting the negotiation process but protecting a domestic fishing industry by opposing inclusion of fisheries management in the agreement. But States have also acted altruistically, for example by proposing strong environmental impact assessment measures.

Elinor Ostrom posed the problem in general form as: ‘how a group of principals who are in an interdependent situation can organise and govern themselves to obtain continuing joint benefits when all face temptations to free-ride, shirk, or otherwise act opportunistically’.15 Ostrom’s legacy is the recognition that collective action to sustainably manage a commons without an external enforcer is possible; but successful ‘commoning’ and participatory government have been observed generally at a local or community scale.16 Klaus Bosselmann characterises commoning as aspiring to include: ‘fair access, equitably shared benefit, responsibility for preserving the resource for future generations and democratic, participatory and transparent decision-making’.17 We will find these principles reflected to varying degrees in the BBNJ agreement text.

Non-State entities, representing various interests and epistemic communities, are now considered important actors in global governance, contributing information, perspective and ‘their relative freedom to champion certain developments, which States may lack the freedom to do’.18

First, I provide background to the marine biodiversity treaty negotiation and the treaty’s institutions and obligations (Section 2). Second, I propose options for the role the international community might play in the context of the agreement (Section 3). Third, I discuss briefly the development of the concept of the ‘international community’ in international law (Section 4). I then examine some of the arguments for and against States and non-State actors as avatars to represent the interests of the international community in the BBNJ agreement (Section 5).

My conclusion will be that marine biodiversity beyond national jurisdiction will benefit if the shift in opening international law to more actors capable of representing the international community is accelerated in the treaty terms (Section 6). But I recognise that the negotiation context can be both the site of innovation and tradition. Respecting that, I will speak both to lex lata (what the law is) and to lex ferenda (what the law should be).

2 MOTIVATION, SCOPE AND APPROACH

2.1 Motivation for an international legally binding instrument

The ocean is rich in life and essential Earth systems. It is over 70 per cent of Earth’s surface and it provides an estimated 95 per cent of the biosphere;19 two-thirds of the world ocean is in areas beyond national jurisdiction. It is one connected body of water with complex canyons, abysses and plains, sloping up to shallower zones near the continents. The open ocean is connected vertically, from the air above, down through the water column’s twilight zone, and into the subseafloor sediments. There are creatures that comprise the neuston, living at the interface where air meets water.20 The high seas are connected across the oceans, to coasts (fisheries) and rivers (salmon and eels). Leatherback turtles visit 32 countries, the great white shark and the Pacific bluefin tuna roam across the seas, and many birds either migrate across the ocean or spend most of their life cycle on the high seas. Ocean life forms are also connected to deep time: many deep-sea creatures grow slowly and live long; blue whales can live to be 90 years old, and some life forms are believed to be hundreds of years old. To ensure ocean biodiversity conservation and sustainable use is in the interest of all humans and requires cooperation between users of the ocean.

As the Second World Ocean Assessment describes, direct and indirect effects of human activities are causing increased water temperatures, acidification, deoxygenation, altered net primary production, and more frequent marine heatwaves, El Niño and La Niña events; fishing impacts are damaging ecosystems; and seabed mining could begin in 2023 in ecosystems as yet unexplored. The impacts of these activities include a projected decrease in the biomass of marine animal communities and fisheries catch potential, a shift in species composition, extinctions of slow-growing species, many kinds of pollution including by noise, and the potential collapse of marine ecosystems (before we are even able to identify them).21 This science is not controversial or particularly contested (as compared to climate change science), but it is not well known to the general public or even to most policymakers. Treaties that manage activities to prevent, reduce or remediate environmental damage in ABNJ cover limited industrial sectors and provide protection for limited species in a fragmented geographic patchwork.

Recognising the existential threat of declining ocean health, sharply increased human activity in the high seas, and gaps in governance, States and civil society took a ‘long and winding road’ to a new treaty, first with an Ad Hoc Working Group, eventually with two years of Preparatory Committee meetings, and finally with an intergovernmental conference, or IGC.22 The UN General Assembly acknowledged that it was

[c]onscious that the problems of ocean space are closely interrelated and need to be considered as a whole through an integrated, interdisciplinary and intersectoral approach, and reaffirming the need to improve cooperation and coordination at the national, regional and global levels, in accordance with the Convention, to support and supplement the efforts of each State in promoting the implementation and observance of the Convention, and the integrated management and sustainable development of the oceans and seas … .23

The General Assembly intended the BBNJ agreement to provide a ‘comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’,24 ‘desiring to act as stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations’.25 The resolution authorising the negotiation also recognised a need to manage access and benefit sharing of valuable natural resources taking the form of marine genetic codes. The new agreement would have to deal with coordination and regulation of activities, allocation of costs, and benefits.

2.2 Scope of the BBNJ agreement

The agreement’s scope is marine areas beyond national jurisdiction, where areas within national jurisdiction are defined by UNCLOS.26 Vertically, that includes the seabed, water column, and air space above, and comprises about 64 per cent of the ocean surface. The general understanding in the context of the negotiation appears to be that the treaty would apply to the water column beyond the EEZ, which at its greatest extent lies 200 nautical miles from any coastal State’s baseline, the seabed to the same extent excluding where any State has an ‘extended continental shelf’, and the air space above to the extent necessary to the treaty’s function, for example in the case of migratory seabirds that traverse the ocean.27 In these zones, State jurisdiction is generally exercised by the State that has registered a vessel and is referred to as the flag State;28 the assumption is that humans on the high seas will be closely associated with a vessel. The BBNJ agreement is also casually (though slightly inaccurately) referred to as the ‘high seas biodiversity treaty’.

2.3 UN General Assembly approach to conservation and sustainable use

The negotiating mandate identified four means to protect the interests of the international community in marine biodiversity and to achieve the goals of both conservation and sustainable use, which appear modest in the light of the multiple stressors acting on the planet’s largest, least-explored open-access commons.

Two BBNJ elements will address serious threats to ocean life, including climate change and fishing practices. Their harmful effects will be addressed in the BBNJ agreement by reducing other sources of damage in areas designated for area-based management tools, including marine protected areas, that will enhance ocean health and build ecological resilience to stressors.29 The BBNJ agreement will also require environmental impact assessments (EIAs) that will identify which proposed activities might have significant adverse impacts on the environment, including those that contribute to climate change.30 State negotiators differ on whether the EIA process should include a veto by the COP on activities that are shown to have a significant adverse impact. The alternative would be to limit the EIA process to producing information and leaving regulatory measures to national law or to international agreements such as the UN Framework Convention on Climate Change (UNFCCC), the International Convention for the Prevention of Pollution from Ships (MARPOL), the Convention on International Trade in Endangered Species (CITES) or the Convention on Biological Diversity (CBD).

A third component of the BBNJ ‘package deal’ reflects interest in use of marine biodiversity: access to and sharing the benefits of the rich genetic complexity of marine ecosystems.31 Although scientists have interests in the knowledge value of marine ecosystems,32 the focus in the BBNJ context has been on the commercial value of marine genetic resources (MGR).33 Ocean life forms have adapted to extremes of temperature, limited access to solar radiation, high pressure and other variables in their habitats, producing chemicals and structures that can process heavy metals from dark zone thermal vents, prevent the animal from freezing to death beneath Antarctic ice, and otherwise sustain life. These adaptations can be useful for humans in the form of pharmaceuticals and other products that can be synthesised when their genetic code is deciphered.34 Transnational biotechnology corporations have already begun to collect, analyse and patent MGR; one study found that by 2017, 12,998 genetic sequences had been patented, from 862 marine species; and that nearly half of those patents had been registered by a single German company.35 UNCLOS does not refer to MGR, since they were not yet recognised as valuable resources when it was negotiated. Currently, industry treats MGR as subject to the law of capture, meaning that MGR were capable of appropriation as private property via intellectual property rights when taken from the wild; in UNCLOS terms, they are subject to the ‘freedom of the seas’. During the ‘package deal’ negotiation, there was a transition from characterising MGR as part of the common heritage of humankind to a focus on benefit sharing.36 During the treaty negotiation, some States supported an open-access principle, while others referred to MGR and ocean biodiversity as common heritage and yet others framed the issue in terms of UNCLOS’s guarantee of freedom to conduct marine scientific research.37

The interest of the international community as a whole in MGR seems self-evident: that of maximising knowledge while ensuring that collection sites are not damaged and that equity is assured. There remain extreme differences in positions (which have dragged down progress of the negotiation overall) that stem from different understandings of how knowledge is produced, whether privatisation creates incentive structures that drive innovation and the allocation of monetary benefits and divergent national interests. Alice Vadrot’s study of the BBNJ negotiation, focusing on the common heritage of humankind principle, describes this as a conflict between the Global South and the Global North.38 The common heritage principle was originally introduced by Ambassador Arvid Pardo of Malta in a 1967 speech at the UN General Assembly, saying ‘the seabed and the ocean floor are a common heritage of mankind and should be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole’.39 Borgese said that the common heritage had three characteristics: the right to use but not to own; management of all uses; and sharing of benefits.40 By 1982, at the end of the Third Conference on the Law of the Sea, it had devolved into a narrower tool for financial equity between developing and industrialised States with regard to the exploitation of seabed minerals in the ocean commons. Dire Tladi argued that it is important to retain the broader meaning of the common heritage principle that some have attributed to it, including a strong principle of intergenerational equity that implies conservation and sustainable development.41 As Vadrot explains, this move from characterising the common heritage as encompassing both conservation for future generations and sharing benefits to focusing on monetary and non-monetary benefits was re-enacted during the BBNJ meetings, with the common heritage principle used by some developing States as a ‘tool and negotiation technique to challenge deeply rooted inequalities in the current world order’.42

The fourth element of the BBNJ ‘package’ deals with the cross-cutting issue of capacity-building and transfer of marine technology (CB/TT), to assist developing States to implement the BBNJ agreement, on the one hand, and to support their participation in marine scientific and technological activities, on the other. In the interests of brevity, this element is not addressed in this article.

3 NEGOTIATING THE BBNJ AGREEMENT: OBLIGATIONS TO THE INTERNATIONAL COMMUNITY AND REPRESENTATION OF COMMUNITY INTERESTS

The BBNJ text was still being negotiated as this article was written. Formal discussion in the Preparatory Committee (2016–2017) and the IGC (2018–2019, with a hiatus from March 2020 until March 2022 due to the global COVID-19 pandemic) produced a draft text and a revised draft text reflecting significant areas of agreement, while leaving several critical issues open for further discussion and much of the text in brackets, indicating either divergent views or limited discussion. From 2020 to 2021, Track 1.5 discussions continued virtually through the High Seas Dialogues and sessions hosted by the President of the IGC and the UN Division of Ocean Affairs and Law of the Sea, where State delegates and non-State observers were able to informally discuss specific issues under the Chatham House Rule (participants are free to use the information received, but neither the identity nor the affiliation of the speakers, nor that of any other participant, may be revealed), but did not negotiate the text. The President provided a summary of the intersessional discussions conducted under her aegis; so did the High Seas Dialogue.43 The Fourth Intergovernmental Conference (IGC4) was held from 7 to 18 March 2022; a fifth and presumably final session is expected to be held in August 2022.44 The following remarks are based on the revised draft text provided by the President in 2019, with judgements on the degree of consensus based on the author’s participation in the Track 1.5 discussion and IGC4, and the President’s summary of intersessional discussions.

Several broad interests can credibly be called interests of the international community in BBNJ: healthy ocean ecosystems supporting diverse and robust populations of living constituents, maximising knowledge of MGR and, more generally, marine biodiversity, while obtaining such resources and other benefits as can be gained without causing harm. Equitable access to and sharing benefits of MGR ensures the entire international community’s interests are served; this could particularly be the case if a discovery had global value for use, such as a medical treatment. These interests are well aligned with the stated goals in the preamble of the BBNJ draft revised text:

Recalling the relevant provisions of the United Nations Convention on the Law of the Sea, including the obligation to protect and preserve the marine environment,

Stressing the need to respect the balance of rights, obligations and interests set out in the Convention,

Stressing the need for the comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,

Desiring to act as stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations,

Respecting the sovereignty, territorial integrity and political independence of all States,

Desiring to promote sustainable development,

Aspiring to achieve universal participation.

Particularly telling is the self-characterisation of the States writing this treaty as ‘stewards’, and the beneficiaries as ‘present and future generations’. The BBNJ agreement, as reflected in the draft revised text, includes legal obligations that are directly binding on States Parties, other obligations that are indirect and that require States Parties to adopt measures in their national legal systems, and obligations that they assume through the COP.

If we are sceptical that States will often fail to prioritise the existential, long-term interests of the international community over short-term or national interests, we will want to see whether the treaty bodies are transparent and accessible, and how they distribute decision-making and policy-shaping authority. To further understand which actors can make a claim on States’ responsibility on behalf of the international community, we will need to identify the international obligations in the BBNJ agreement that can entail international responsibility. If access to information, policy-setting and decision-making are entirely controlled by States, then direct participation by other representatives of the international community can be excluded at the will of the States.

3.1 Treaty bodies: decisions, policies, information

The BBNJ agreement draft text follows a familiar pattern for multilateral environmental agreements. States and international organisations ‘constituted by States’ – such as the European Union (EU) – may become parties.45 The decision-making and policy-setting body for the BBNJ agreement comprises States Parties, the secretariat serves them, and the information in the clearing-house mechanism is by and for States Parties. Individuals and other non-State entities have a limited role as experts and sources of data or technology transfer opportunities.

The draft text does not provide for observer participation in BBNJ treaty bodies; the word ‘observer’ does not appear. Engagement with international organisations is limited to the still-bracketed possibility that a treaty body might ‘consult and/or coordinate with relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies with a mandate to regulate activities [with impacts] in areas beyond national jurisdiction or to protect the marine environment’.46 The only formal non-State role in the BBNJ draft text is limited to information exchange.47

The draft text designates four treaty bodies, with the possibility of additional committees.48 A COP will be responsible for implementation of the agreement, including promoting cooperation and coordination with other relevant legal instruments and bodies; this is the decision-making and policy-setting body.49 International entities like the EU (which negotiates on behalf of its Member States) may join as parties. The COP will be supported by a secretariat which, in addition to administrative tasks, might (the text is still bracketed) ‘facilitate coordination with the secretariats of other relevant international bodies’.50

An expert Scientific and Technical Body (STB) will advise the COP and a list of additional responsibilities may be assigned to it, including monitoring the utilisation of MGR covered by the agreement, setting standards for area-based management tools (ABMTs) and assessing proposals for new ABMTs, evaluating EIAs, and assessing the effectiveness of capacity-building and marine technology transfer.51 No procedure for appointing members of the STB is provided, and there has been divergence in views of whether they should be experts acting in their personal capacity or representatives of States Parties. In the intersessional discussions, these two views were expressed:

A group of States emphasised that decisions of the scientific and technical body must be based on scientific information and relevant traditional knowledge of indigenous peoples and local communities. A delegation took the view that decision-making in the scientific and technical body should be reserved for States parties.52

International environmental law-making is different from international law-making in general because its practitioners have to deal with the great scientific uncertainty about the reality, cause and extent of the problem. Management of ocean ecosystems that can adapt to changing conditions due to climate change, human interventions and other phenomena calls for powerful information tools and many kinds of expertise. One of the challenges for the BBNJ negotiators is to design a scientific advisory body to ensure that best science is available and that it is used. It can be argued that political decision-making is more democratic, including consideration of socio-economic and national interests, and therefore more representative of the interests of the international community. However, the definition of international community interests that has been built in this paper focuses on the long-term, existential issues of ecological health and, in those terms, science-based decision-making should be preferred.

A clearing-house mechanism will provide an ‘open-access web-based platform’ for ‘States Parties to have access to [, collect] [, evaluate] [, make public] and disseminate information’.53 The mechanism is expected to be the main source of public information and consultation with respect to all four components of the agreement. Although the text refers to an ‘open-access’ platform, it does not specify that the public can add information or consult it.

Compliance, which is central to the concept of State responsibility, may be facilitative or implemented through formal dispute settlement. The possibility of establishing an implementation and compliance committee through a COP decision remains in brackets in the draft text;54 if designed along the lines of the Paris Agreement Article 15 committee, it would be ‘expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive’.55 It could, as has been suggested, include fact-finding panels, with experts serving in their personal capacity (and not as State representatives). Addressing dispute settlement, draft Article 54 follows standard practice of State-based ‘negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’ potentially backed up by Article 55, providing a compulsory dispute settlement procedure entailing a binding decision as provided for in UNCLOS, with these provisions still in brackets.56

Liesbeth Lijnzaad, an ITLOS Judge, has raised a number of questions about how these provisions would actually work, given the kinds of obligations in the agreement; ‘norms with respect to the protection of the global commons’.57 She suggests that there is a need for both approaches to compliance, but that the relationship between them needs to be understood, especially if compliance measures precede enforcement via dispute settlement. It is conceivable, for example, that a State Party that failed to conduct EIAs and that authorises activities that have a significant harmful effect on the environment could be haled before the compliance body and have its obligations clarified or be provided with assistance to fulfil them. If the problem continued, having the option of mandatory binding dispute settlement could be effective, but it raises the question of which State can bring the complaint. It is likely that different kinds of issues would be the subject of compliance measures and formal dispute settlement, with the compliance body providing capacity-building and courts making findings of fact and providing authoritative interpretation of international law, UNCLOS and the BBNJ agreement, as well as addressing issues that might arise at the intersection of law of the sea, international environmental law and intellectual property law.

The BBNJ agreement is not likely to have an administrative body; nothing of the sort is contemplated, and throughout the Preparatory Committee, States made clear that they wanted the treaty institutions to be minimal. It would be a good idea: national law dealing with environmental matters is primarily administrative and the argument can be made that the same is true in international law.58 The nature of the subject requires it. Environmental law manages human activities that disrupt natural systems to the extent that harm results: killing too many fish, releasing more pollutants than the environment can assimilate, and so on. Damage can rarely be repaired, so effective governance has to prevent harm from occurring: this preventive quality is characteristic of environmental law. Understanding the problems and the management tools generally requires specialised knowledge, so governance is best done by trained experts: this is a second distinguishing aspect of environmental law, leading to the use of administrative bodies. Unfortunately, the slow development of global administrative law means that new treaties like the BBNJ agreement are not being designed with administrative principles in mind. Principles that are generally considered essential include transparency, participation, review and accountability by the administrative officers to whom implementation of governance measures is delegated. Because States delegate authority to the organisation and its employees, accountability and oversight are especially important to avoid not only self-interested behaviour, but also pathologies that include agency capture by industry, narrow focus on agency mandate to the exclusion of other values, and misinterpretation of authority. A useful comparison can be made to the ISA, with its strengths and weaknesses.

3.2 Environmental impact assessment obligations

The basic requirements for EIA have achieved consensus in the negotiation. Articles 204 to 206 of UNCLOS require EIA, so this section of the BBNJ agreement provides processes, thresholds and other guidelines to implement the obligation, chiefly through national legislation.59 The remaining areas of divergence are important but few: whether activities within national jurisdiction are covered,60 the sensitivity of the threshold of harm requiring an EIA,61 and whether the State hosting the activity or the COP has the final decision on projects that the EIA demonstrates will cause significant environmental harm.62 The logistical problem of how EIA requirements under other legal instruments mesh with this requirement also remains to be agreed.63

When a project that might have an impact on the environment that exceeds the threshold (more than ‘minor and transitory’ or more than ‘significant’ harm) is planned, an EIA must be prepared describing the project’s location, scope, timeframe, and specific activities; and the best information that can be obtained about how the activities would affect the environment is presented and analysed.64 That should include cumulative impacts; for example, if there is another activity that is also affecting the same environment, their impacts should be studied together as well as changing background conditions (such as climate change).65 Consistent with UNCLOS, the State will be responsible for monitoring the effects of the activities if they do proceed;66 and it may have reporting and review obligations as well.67

States are in general agreement that the public notification and consultation process is important,68 and it is particularly key to realising the rights of the international community. This is the means by which its representatives and defenders are made aware of potential threats and it can be a valuable means of influencing how and whether activities take place. All this information will be shared with ‘stakeholders’ through the BBNJ online clearing house. ‘Early notification’ of planned activities and an opportunity to comment before a decision about whether to proceed with the activity are required, as well as publication of the results of the EIA.69 An inclusive list of stakeholders is still in brackets, ‘potentially affected States, where those can be identified, [in particular adjacent coastal States] [, indigenous peoples and local communities with relevant traditional knowledge in adjacent coastal States,] relevant global, regional, subregional and sectoral bodies, non-governmental organisations, the general public, academia [, scientific experts] [, affected parties,] [adjacent communities and organisations that have special expertise or jurisdiction] [, interested and relevant stakeholders] [, and those with existing interests in an area]’.70 The consultation process requires the EIA to explain how comments from stakeholders were addressed in the design of the proposed activity.71 Contested at IGC4 was whether the EIA reports should be reviewed by the BBNJ agreement’s STB.72

Compliance measures that have been proposed are of special interest, as they engage other States, the scientific community and other ‘global, regional, subregional and sectoral bodies’.73 After an activity has been approved, it would be monitored, and the results reported to the STB. The STB could request outside review by experts and the other relevant entities could also both review and critique the reports.74 The publicity of problems would itself provide pressure for compliance. Further measures are also proposed, including a requirement that either the State or the STB halt the activity if it proves to have unforeseen adverse impacts, and creation of a ‘non-adversarial consultation process’ to resolve issues.75

A State might engage its international responsibility to the international community under these provisions without incurring onerous judicial sanctions. If it failed to provide national implementation, including enforcement, of the procedures for EIA, monitoring and reporting provided in the agreement, a State would be in breach of its BBNJ obligations to conduct EIA. It is salutary to look at the ICJ judgement in the joined Certain Activities/Construction of a Road cases, which reminded us that ‘it is every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’; that preparing an EIA is a necessary step in that observation of due diligence, ‘before embarking on an activity having the potential adversely to affect the environment of another State’; that if the EIA confirms a risk of significant transboundary harm, it is necessary ‘to notify and consult in good faith with the potentially affected State … to determine the appropriate measures to prevent or mitigate that risk’.76 In that case, the Court found that Costa Rica did not comply with its obligation to conduct an EIA, but as there was no evidence of significant harm caused by the road building project at issue, no reparation was warranted.77 This suggests that in order to win a sanction that might incentivise future compliance, the burden of proof to show that significant harm actually occurred falls on the claimant State or other entity. It is well known that this is a very difficult position, even in terrestrial incidents where the environment has been damaged. While the Court’s position is understandable, a ‘no harm, no foul’ rule encourages non-compliance and suggests that State responsibility is a weak custodian of the international community’s rights to informed decision-making in support of conservation and sustainable use of marine biological diversity.

3.3 Area-based management tools obligations

Since ABMTs are the key strategy for protecting marine biodiversity in the agreement, Part III is where some of the most concrete substantive obligations should be found. The objectives include, in brackets, some that are more descriptive (‘establish a system of ecologically representative marine protected areas that are connected’) and others that reflect the existential concerns that we identified previously as motives for the treaty negotiation:

[(e) Rehabilitate and restore biodiversity and ecosystems, including with a view to enhancing their productivity and health and building resilience to stressors, including those related to climate change, ocean acidification and marine pollution;]

[(f) Support food security and other socioeconomic objectives, including the protection of cultural values;]

[(g) Create scientific reference areas for baseline research;]

[(h) Safeguard aesthetic, natural or wilderness values;]78

Satisfied that these are objectives aligned with the interests of the international community, the next question is whether there are legal obligations associated with them. The remainder of the Part sets out the procedures for designation and implementation if States wish to designate ABMTs, including consultation obligations, but it does not require that any ABMTs must be established, nor that they must achieve the objectives.

Only States can make a proposal for an ABMT and the COP decides whether to adopt the proposal.79 States are responsible for ensuring that the ABMT is respected by those under their jurisdiction and control and must report on implementation to the COP.80 ‘All relevant stakeholders’ are to be consulted, under specific procedures outlined in Article 18, after a preliminary review by the STB. The information submitted by ‘[i]ndigenous peoples and local communities with relevant traditional knowledge, the scientific community, civil society and other relevant stakeholders’ will be made publicly available and the proponent is expected to either revise the proposal or continue the consultation process.81 Under one alternative, the COP must take the results of the consultation and scientific advice into account in making its decision.82

To summarise, this section of the draft text, like the EIA section, provides a mandatory process for establishing ABMTs, but it does not establish legally binding obligations to do so. This is reminiscent of a number of other international agreements that provide for ABMTs but have not implemented many or any.83

3.4 Marine genetic resource access and benefit-sharing obligations

On the eve of the fourth IGC, in March 2022, the negotiation text committed to no binding legal obligations with respect to MGR. The entire text was in brackets and the many different approaches to almost every aspect of this topic are represented in the summary of informal intersessional discussions.84 While some progress was made at IGC4, the essential elements remain in brackets, to be resolved at the Fifth Intergovernmental Conference. The interests of the international community that are expressed in the draft revised text emphasise utilisation of MGR and where the text refers to ‘generation of knowledge’ it is associated with technological innovation. Within this focus on use, the text offers that utilisation is ‘for the benefit of mankind as a whole’.85 In keeping with the history of the negotiation, the draft revised text represents obligations to the international community through the lens of equity, particularly towards ‘developing States, in particular the least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States and developing middle-income countries’.86

The pure pursuit of knowledge of interest to the scientific community is not explicitly addressed here,87 nor is the scientific community’s concern with protection of the locations where genetic material is collected.88 To this extent, we might say that the IGC does not reflect all the interests of the international community, especially if it is constituted to include future generations, which might find that MGR collecting sanctioned by the BBNJ agreement has despoiled delicate ecosystems. In the Track 1.5 discussions, scientific and technical cooperation and coordination, as well as capacity-building and transfer of marine technology, were discussed as a form of non-monetary benefit-sharing.

To ensure that the utilisation benefits of MGR are shared equitably, the draft revised negotiation text sets out a list of obligations that States must implement through their national legislative, administrative or policy measures. These may include providing information about and access to collecting expeditions, genetic material actually collected, digital sequence information89 deciphered from the material collected in ABNJ, as directed by the COP.90 A general obligation to share monetary and non-monetary benefits with other States Parties is stated, along with a number of specific modalities on the timing, use of the clearing-house mechanism, and use of monetary benefits.91 Depending on which of these provisions is agreed in the final text, a State could be in breach of these obligations if it failed to put in place the necessary national measures and allowed those under its jurisdiction and control to collect and use MGR from ABNJ without providing the required access to samples and information; if it did not consult with coastal States; if it did not regulate its intellectual property rights regime to support benefit-sharing and traceability of MGR; if it did not make regular reports to the COP and clearing-house mechanism; or if it did not provide financial payments as may be required.

The MGR obligations, as expressed in the draft revised text, are intended to directly benefit the particular States by ensuring that MGR are tracked from their collection in ABNJ to their final monetisation as products. They do not partake of the nature of obligations to the international community intended to prevent ‘harmful or dangerous conduct that threatens the natural basis of the life of all States and all human beings’,92 as the EIA and ABMT obligations do, and they do not raise the same concern that no individual State would be sufficiently motivated to enforce the obligations or have an individualised harm sufficient for access to an international court. The alternative texts do, however, address the question of what the international community is, by asking whether some or all will benefit.

3.5 Other obligations

The due diligence obligations of States Parties are spelled out in Article 53 of the draft revised text: they are required to ‘take the necessary legislative, administrative or policy measures, as appropriate, to ensure the implementation of this Agreement’. As explained in an advisory opinion of the Seabed Disputes Chamber (SDC) of ITLOS on seabed mining, this is an obligation of conduct that requires the State to adopt laws and regulations and to take necessary administrative measures to secure compliance.93 It may become more severe depending on the State of scientific and technological knowledge, and on the riskiness of the activities to which it applies.94

The draft revised text, Article 52, not yet agreed, addresses financial modalities. It offers alternatives of voluntary or mandatory financial contributions to support implementation of the agreement, capacity-building, and technology transfer. States Parties are to ensure that funding and technical assistance from international organisations are directed to developing States preferentially (Article 52(3)). Mandatory contributions could be required from States Parties, payments either as a condition of access to or from utilisation of marine genetic resources, payments associated with review of environmental impact assessments, cost recovery, fees, penalties, and ‘other avenues for mandatory payments’.

4 EMERGENCE OF THE INTERNATIONAL COMMUNITY

According to James Crawford:

One of the most important modern ideas about international obligations is that at least some obligations are universal in scope, and cannot be reduced to bundles of bilateral interstate relations. Such obligations are said to be owed to the ‘international community as a whole.’ Yet there appears to be no such thing.95

We understand well enough what the community is in lay terms, however complex it may be. Crawford’s point is that there is little or no place to realise universal obligations owed to the international community within the rules, processes and institutions of international law. Universal obligations, the international community to which they are owed, and an avatar capable of representing the international community are the essential elements required.

Although in recent years the international community has been referenced frequently,96 international law institutions such as courts continue chiefly to recognise the legal personality of sovereign States and to be structured in terms of States’ relationships to each other.97 To some extent, this is a result of institutional rigidity. For example, although the ICJ has referred to the ‘international community’ in over 40 opinions and orders, its 1945 Statute provides: ‘Only States may be parties in cases before the Court’.98 If the international community cannot represent itself in court, there is a lacuna in the law; perhaps a State can be the avatar representing the international community, but non-State entities cannot avail themselves of the ICJ.

International courts have also in the past required that a State’s own legal interest must have been injured and thus rejected the possibility for ‘any member of a community to take legal action in vindication of a public interest’.99 Bruno Simma, exploring the community interest, suggested that it could be described as ‘a consensus according to which respect for certain fundamental values is not to be left to the free disposition of States individually or inter se but is recognised and sanctioned by international law as a matter of concern to all States’.100 The ICJ has made a definite move from bilateral, reciprocal obligations to recognise multilateral obligations of this sort. In its provisional measures order in The Gambia’s application against Myanmar, the ICJ explicitly recognised that Article IX of the Genocide Convention allows any State Party to submit a dispute related to the interpretation, application or fulfilment of the Convention to the ICJ, whether or not it has a special injury.101 The underlying meaning of this change from traditional rules is explained in the Court’s quotation from its 1951 advisory opinion on the Genocide Convention, which is especially pertinent to the circumstances of the BBNJ agreement:

In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.102

The ICJ’s Whaling in the Antarctic case suggests that in a similar context (environmental protection in the high seas) there may not be a problem. There, jurisdiction was based on the parties’ declarations recognising the Court’s compulsory jurisdiction and the Court raised no question of whether Australia or New Zealand, as intervenor, had a special interest or shared the common interest of achieving the purpose of the Whaling Convention.103

Customary rules of State responsibility also take account of the common interest. International responsibility of a State is entailed ‘when conduct … is attributable to the State under international law and constitutes a breach of an international obligation of the State’.104 Article 33 of the Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility) states: ‘The obligations of the responsible State … may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach’. The commentary of the International Law Commission, however, notes that the Articles on State Responsibility ‘do not deal with the possibility of the invocation of responsibility by persons or entities other than States’.105

There is a distinction to be made between environmental obligations and jus cogens obligations like the prohibition of genocide, although both may now be considered obligations owed erga omnes.106 Peremptory norms derive from human values and depend on human actions; the consequences of non-compliance remain within the realm of human experience. Obligations to conserve vital Earth systems, like biodiversity, are different. Failure to observe protective measures for the environment has consequences that are dictated by forces outside of human control. The environmental harm that ensues can result in the destruction of our species, as well as other forms of life. Simma observed, in discussing threats like ozone depletion and global warming, ‘what is to be prevented is not mere transboundary harm caused on the territory of one State to the detriment of a certain neighbouring State, but rather harmful or dangerous conduct that threatens the natural basis of the life of all States and all human beings’.107 This reality is the result of quantum increases in human population, technology, and consumption. Today’s closely networked global population itself gives rise to the sense of an international community that shares communications, goods and services, and that is capable of cooperation, but whose interests may also diverge.108

The participation of organisations and corporations in treaty-making, international litigation, and other fora of international law reflect this new story: international law is no longer a ‘States only’ activity. The participation of non-State entities throughout the intergovernmental conference for the BBNJ is an indication of this trend. During the meetings of the intergovernmental conference, intergovernmental organisations and NGOs that include both public interest and industrial sectors have contributed legal and scientific information, made policy proposals, urged interests, and borne witness on behalf of civil society.

Further exceptions to traditional rules can be seen in foreign investment treaties that allow private-sector entities to arbitrate against host States;109 the SDC of ITLOS, by the terms of UNCLOS, is open to mining contractors and to the administrative body, the ISA;110 and in its advisory opinion on seabed mining, the SDC suggested that the ISA can act on behalf of mankind, and that States may be able to act where an obligation is owed to the international community.111

It can be argued that ‘international law’ is an outdated, overly rigid frame within which to ask ‘what is the international community?’ and that, instead, we should look to the bottom-up, parallel law-making of relevant communities, known as ‘transnational law’.112 This view would see the common interest of humanity expressed in the activities of many different non-State actors operating in their own spheres. For example, public interest organisations conduct monitoring of high-seas fishing and provide consumer information about sustainability of seafood; and corporations state that they will not purchase minerals from the seabed. Robust efforts to manage human activities in the high seas through consumer and corporate initiatives, subnational laws and other rule making by other epistemic communities are necessary.

Transnational law-making is, objectively, a reality. But it is not a replacement for top-down, inter-State law-making, as shown by too-little-too-late climate change governance. Further, in ABNJ, States have a more significant role because the density of stakeholders is dramatically reduced; there are fewer observers to report pollution and destruction; the connections between consumers and the ocean source of products is more attenuated; and the ocean depths are not well known.

This collective – the international community for marine biodiversity – needs an avatar or a champion to assert its interests as legal rights.

5 ADVANCING COMMUNITY INTERESTS AND REALISING COMMUNITY RIGHTS: WHO CAN ACT FOR THE INTERNATIONAL COMMUNITY UNDER A BBNJ AGREEMENT?

We have seen that there is a well-established norm recognising an international community with interests and, arguably, rights and duties transcending those of sovereign States. Legal personality – that is, the ability to hold rights and duties – is necessary for advancing community interests and realising community rights when diplomacy and public opinion are insufficient. In the BBNJ context, the international community avatar might: (i) recommend ABMTs in the COP or STB;113 (ii) seek interpretation and enforcement of a treaty provision, such as the applicability of the obligation to conduct an EIA, in an international court or tribunal;114 (iii) enforce duties under the agreement in the implementation and compliance committee;115 or (iv) provide oversight of the secretariat.

The review of obligations under consideration in the draft text found that very limited binding legal obligations on States are proposed. The consequence for representation of community interests is that litigation is less likely to be a useful accountability tool. In that context, State and non-State entities have different capacities to advance community interests and to realise community rights.

5.1 Requirements of legal representation

In formal terms, such a champion would need to be representative, accountable, and have sufficient legal personality to act effectively on behalf of the international community. The champion should recognise that it has (or be constituted so that it has) a fiduciary duty, such as a trustee has to a beneficiary of a trust.

The nature of the sovereign State is that it focuses interests, channels power externally to defend and advance the interests of its citizens, and exercises power internally to impose order. It is representative of its population, although the interests that it represents may be narrow and short-term. These features endow States with claims to legitimacy and, more to the point, the ability to act internationally. The very reasons that sovereign States are the effective international actors that built the international law system – power and national representation – are the reasons that they can be poor avatars of the long-term collective interests of the international community.

Let us examine the fitness to act as champions of, in turn, States Parties to the BBNJ Agreement; sovereign States that are not parties; and different types of non-State organisations: international organisations and NGOs.

5.2 A State Party to the BBNJ agreement

A State Party to the BBNJ agreement has the greatest legal capacity to represent the international community because the obligations entailing responsibility owed to it by other States Parties fit the model of State responsibility. In international courts, parties will have standing to bring disputes about interpretation and application of the agreement, assuming that the BBNJ agreement provides for mandatory binding third-party dispute settlement (for all BBNJ States Parties) or that those provisions in UNCLOS apply (for BBNJ States Parties that are also parties to UNCLOS).116

To be sure that an international court will accept applications from any State Party and that a special injury to the complaining State is not required, the BBNJ agreement should include language akin to the Genocide Convention:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.117

There is one more concern: treaty obligations (for example, to comply with designated marine protected areas (MPAs)) need to be expressed as enforceable rights, not just as processes.

States Parties can also act through the treaty, and perhaps the COP itself could be an effective avatar.118 A BBNJ State Party might uphold community interests by proposing and advocating for the establishment of MPAs through its participation in other relevant treaty bodies. It could ensure that its positions in other relevant instruments, frameworks and bodies are consistent with its BBNJ commitments and it could encourage other States Parties to do the same. It could support the application of international standards for EIAs. It could raise concerns with the compliance body. If the agreement includes the ability to seek an advisory opinion from ITLOS, the ICJ, or other international courts, it is most likely to be the COP that will act to formulate and make the request.

States Parties are in the strongest position to defend community interests, but the fundamental problem remains: a State party’s interests will not always align with those of the international community.

5.3 States beyond the BBNJ parties

A sovereign State that is concerned about marine biodiversity but has not become a party to the BBNJ agreement will be a weaker community avatar than the States Parties. An international court would not recognise a non-party’s standing to enforce the agreement.119 Its representatives may be allowed to attend meetings of the treaty bodies as observers, where it could attempt to influence the States Parties’ decisions about treaty implementation in favour of community interests. However, the views of a State that chooses not to join a treaty are not likely to weigh heavily with States Parties.

An example of the limits of non-State-Party observer status is furnished by the ISA. Under the rules of procedure adopted by the Authority, non-parties may participate as observers at the Assembly and Council meetings, with limitations.120 Naturally, they do not have the right to vote. Non-Party States can participate in the Assembly’s deliberations and those of its subsidiary organs; with respect to the Council, observer participation is ‘upon the invitation of’ the Council, and it is limited to ‘questions affecting them or within the scope of their activities’.121 It is up to the States Parties to the agreement whether or not to take account of non-party observer States’ views.122

5.4 An international organisation

International organisations (IOs) can reflect their members’ positions, they can have their own institutional agendas and they can represent a broader stakeholder community, but it is their ability to provide a platform for collective action that makes them appealing as potential representatives of the international community. They have legal personality, derived from the authority delegated to them by States in their constituent instruments and the decisions and resolutions of their governing bodies.123 They can be composed of States or other international organisations, and are established by treaty. Examples include the ISA, the International Oceanographic Commission (IOC), Regional Fisheries Management Organisations (RFMOs) and the International Union for Conservation of Nature (IUCN). The EU is a regional IO that has unusually broad authority to act for its Member States, including the ability to join treaties such as UNCLOS.

There are several ways that the BBNJ COP, which is itself an IO, can represent community interests. It can potentially convene and encourage cooperation between ‘existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’.124 Including authorisation in the BBNJ agreement for its COP to request advisory opinions would extend the COP’s ability to represent the international community’s interests. For example, two IOs, the ISA and the regional Sub-Regional Fisheries Commission (SRFC) Conference of Ministers, are authorised by treaty to request advisory opinions from ITLOS.125

Shifting perspective, an IO such as the IOC would need to be authorised by the treaty text in order to represent the international community in BBNJ activities that are currently reserved to States Parties, like proposing ABMTs, consulting on EIAs, or using compliance mechanisms. It would be possible to extend access through the terms of the BBNJ agreement. Such an organisation could also be enabled to propose and participate in advisory opinions, contentious cases, and submit amicus briefs. It is rare that an IO can become a full treaty party, but the EU stands as the primary example.126

We might look for or create a hybrid organisation that has a mandate that is aligned with the international community’s interests. That is, an explicit fiduciary duty to the international community would be granted through its constitutive document. It would be thus committed to being representative and transparent. That would overcome the institutional limitations on how effectively the IO represents community interests. Otherwise, an international organisation’s mandate may be at odds with the international community’s interests. It is responsible to its Member States and has no fiduciary duty to the international community other than the duties imposed by its constitution and customary international law. Such an international organisation can incur international responsibility for conduct that is a breach of its obligations,127 although these rules are not as fully developed as the responsibility of States.

5.5 A non-State entity

Non-State actors include NGOs of many types, a diversity that suggests both that they might encompass the international community and that the differences between them may be too vast to speak of as shared interests. The nine NGO ‘constituencies’ in the UNFCCC regime are illustrative: business and industry (BINGO), environmental (ENGO), local government and municipal authorities (LGMA), Indigenous peoples organisations (IPO), research and independent (RINGO), trade union (TUNGO), farmers (Farmers), women and gender (WGC), and youth (YOUNGO).

NGOs have more limited international legal personality than States or IOs. They do not necessarily depend on States for their existence. Like IOs, their ability to represent interests and to participate in BBNJ treaty bodies has to be enabled through the text or through decisions of the COP. When they are admitted as observers, they can be influential through the information and pressure that they bring to bear. They represent the voters, the citizens, and the industrial sectors that constitute the populations of the States Parties, which has led to much greater openness to their participation in other treaty-body activities.

As noted in the previous sections, NGOs are given specific opportunities to consult on BBNJ agreement activities, but they are not guaranteed a seat at the table and they do not have a decision-making role. As discussed above, treaties have bestowed standing on non-State actors in some international courts and tribunals, for some purposes, and the BBNJ agreement could certainly do the same, modelled on UNCLOS rules for the ISA use of the SDC.128

Note, however, that NGOs may have similar problems as States of a mandate that is not aligned with the international community’s interests, and that therefore at times they will not be representative.

6 CONCLUSION

The international community for the BBNJ agreement is defined according to the obligations that the agreement seeks to impose that are universal in scope, that cannot be reduced to bundles of bilateral inter-State relations: conservation and sustainable use of marine biological diversity. States Parties can be uncontroversial representatives of that community in international law terms, but cannot always be always relied upon to do so. Therefore, the international community will be best served by enabling organisations with mandates aligned with the international community’s interests in BBNJ to more fully participate in treaty mechanisms and institutions, including adjudicatory bodies.

One conclusion from this examination of the BBNJ agreement draft text is that trust and cooperation are essential to honouring the universal obligations of biodiversity conservation and sustainable use of marine biological diversity. This is a difficult moment to propose those two virtues as necessary to relations between States. While negotiators were meeting at the United Nations, a Security Council member invaded its neighbouring State in a brutal demonstration of State military power. It is realistic to acknowledge, even in more peaceful times, that economic, military and political power are a factor. Trust and cooperation are able to perform their essential roles in international relations, even when stakes are high, if the stakeholders sufficiently value a common interest and understand that the other participants are necessary to achieving it.

Steps that would strengthen the ability of States Parties and non-State actors to support responsibility to the international community include: (i) enabling organisations with mandates aligned with the international community’s interests in BBNJ to more fully participate in treaty mechanisms and institutions, including adjudicatory bodies; (ii) including language confirming that any State Party to the BBNJ agreement can submit a dispute over the interpretation, application or fulfilment of the agreement; and (iii) empowering the BBNJ treaty bodies to convene and encourage cooperation between existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.

Representation of common interests and enforcement of obligations owed to the international community will likely remain a State-centred model, with participation by non-State actors at State discretion. The draft BBNJ text provides no guarantee of access to information, institutions, or processes by non-State entities. All decision-making is in the COP, comprising States Parties. It is through robust implementation of consultation and transparency measures that non-State actors can provide views, information, expertise and witnesses on behalf of the international community as a whole. It is still true that

in this area of the law … consent remains the governing principle, though limited and modified in manifold ways, ‘tamed’, as it were. Strictly legally speaking, even where community interest in the universal reach of a treaty is particularly strong, obligations upon third parties cannot be derived from the treaty as such but from recognition – in its many possible varieties – of the treaty régime, or from the assumption that a treaty merely gives expression to unwritten principles binding all States alike, albeit on the basis of a different law-making process.129

States could say ‘it is far away: out of sight, out of mind’, ‘we have more urgent problems’, or even ‘we should take what we can before others do’. Or, they could take the position that they could cooperate in the interests of young people alive today and future generations; they could plan activities across all sectors, including fishing, mining and shipping, to consider their cumulative effects on a sensitive ecosystem; they could take a precautionary approach by restraining exploitation and pollution until we know what is there and we could develop technologies that would allow the most valuable uses while respecting ocean life.

Although the BBNJ negotiation has been characterised by striking openness to non-State entities as listeners, at crucial moments, their role was sharply defined as observers whose privileges were subject to State choice. Inclusion was evident in allowing observers to be present at all negotiating sessions, including informal informals (which in other diplomatic meetings are often States-only); allowing interventions in plenary and working group sessions; finding a means, using QR codes, to provide access to conference room documents; including observers in intersessional meetings; and providing a video link to the conference room for observers to view the fourth IGC (IGC4) discussions. The line was drawn before full consultation: observers were not included in the Bureau or selected as working group facilitators; observer interventions always followed exhaustive discussion by States; most observers were not allowed in the conference room during IGC4;130 and observers were not able to make interventions via video link during IGC4. These are reminders that the power to control the modalities of international law remains with States.

Environmental problems like this require concerted action in the community interest and at least the major contributors to the problem, present and future, need to be parties to the regime. For the BBNJ negotiation, there is wide participation in the discussions, including the major maritime States: the United States, China, South Korea, the EU and Japan. However, not all major fishing nations are at the table, even though fishing is one of the most damaging ocean activities: for example, Taiwan’s fleet is second only to China, with 12 per cent of the world’s high-seas fishing catch, yet it does not have a seat at the United Nations and therefore could not participate in the negotiation if it wished to.

The eventual ability to arrive at an agreement with enough parties to make it functional will depend on whether States see cooperation on these issues as sufficiently beneficial to their national interests. This is a period when the United States, and other States, have been moving away from multilateralism and towards bilateralism or even isolationism. Some States reject the rule of law altogether.

Yet, at the planetary level, countries have worked together through an international treaty, the Montreal Protocol, to act on scientific information and stop the use of industrial chemicals that were destroying the protective stratospheric ozone layer that filters dangerous, cancer-causing ultraviolet light. In the marine environment, the Central Arctic Ocean agreement was adopted,131 as were UN General Assembly resolutions on bottom trawling and drift-net fishing. We have done this before. We are capable of recognising that we are an international community and accepting our responsibility.

  • 1

    Crawford James , '‘The Current Political Discourse Concerning International Law’ ' (2018 ) 81 Modern Law Review : 1, 4.

    (‘there are incontestably global, communal or collective interests. Among these, I would list a minimum of environmental stewardship … and the prevention as far as possible of wars of destruction and weapons of mass destruction’); Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 preamble.

  • 2

    Stone Christopher , '‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ ' (1972 ) 45 Southern California Law Review : 450, 456 -457.

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    Pain Nicola & Pepper Rachel , '‘Can Personhood Protect the Environment? Affording Legal Rights to Nature’ ' (2021 ) 45 Fordham International Law Journal : 315, 343 -348.

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    Benedek Wolfgang, Feyter Koen De & Kettemann Matthias C et al. , '‘Introduction’ ', in Wolfgang Benedek, Koen De Feyter & Matthias C Kettemann (eds), The Common Interest in International Law , (Intersentia , Cambridge 2014 ) 1.

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    Harden-Davies Harriet, Humphries Fran & Maloney Michelle et al. , '‘Rights of Nature: Perspectives for Global Ocean Stewardship’ ' (2020 ) 122 Marine Policy : 104059.

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  • 3

    For a useful discussion of the change in terminology from ‘implementing agreement to UNCLOS’ to ‘an internationally legally binding instrument under UNCLOS’, see

    Lijnzaad Liesbeth , '‘Dispute Settlement for Marine Biodiversity Beyond National Jurisdiction: Not an Afterthought’ ', in Hélène Ruiz Fabri, Erik Franckx & Marco Benatar (eds), A Bridge Over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea , (Brill Nijhoff , Leiden 2020 ) 150.

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  • 4

    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 of Areas Beyond National Jurisdiction UNGA Res 72/249 (24 December 2017) UN Doc A/RES/72/249.

  • 5

    Simma Bruno , '‘From Bilateralism to Community Interest in International Law’ ' (1994 ) 250 Recueil des Cours de l’Académie de Droit International : 217, 229 -275.

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    and 304 (‘the [bilateral] principle is that it is up to each State to protect its own rights’); Lijnzaad (n 3) 160 (suggesting that it is not easy to imagine bilateral BBNJ disputes).

  • 6

    UNGA Res 72/249 (n 4).

  • 7

    United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 1 (UNCLOS) preamble, arts 135 and 136; Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 UNGA Res 48/263 (17 August 1994) UN Doc A/RES/48/263, 1 (‘Reaffirming that the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the “Area”), as well as the resources of the Area, are the common heritage of mankind’). While art 1 of UNCLOS states that the seabed and ocean floor and subsoil beyond the limits of national jurisdiction is the Area, and Article 136 states that the Area is the common heritage of mankind, nothing states that other marine areas beyond national jurisdiction are or are not common heritage of mankind.

  • 8

    Convention on Biological Diversity (adopted 6 May 1992, entered into force 29 December 1993) 1760 UNTS 7 preamble.

  • 9

    French Duncan , '‘Common Concern, Common Heritage and Other Global(-ising) Concepts: Rhetorical Devices, Legal Principles or a Fundamental Challenge?’ ', in Michael Bowman, Peter Davies & Edward Goodwin (eds), Research Handbook on Biodiversity and Law , (Edward Elgar Publishing , Cheltenham 2016 ) 334, 334 -335.

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  • 10

    Ibid.

  • 11

    Ibid 351–352.

  • 12

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Order of 23 January 2020) [2020] ICJ Rep 3 (Crime of Genocide) [39]–[42]. See also Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits) [2012] ICJ Rep 422 [68]–[69].

  • 13

    Benedek et al (n 2) 6. See also

    World Commission on Environment and Development , Our Common Future , (OUP, Oxford 1987 ).

    ch 2, s II, and references to the common interest in relation to rights to use the geosynchronous orbit band of space (‘Another way of managing this resource and capturing its rental value for the common interest would be for an international body to own and license the slots to bidders at an auction. Such an alternative would be analogous to the Seabed Authority in the Law of the Sea Convention’).

  • 14

    Benvenisti Eyal , '‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ ' (2013 ) 107 American Journal of International Law : 295, 303 -305 .

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  • 15

    Ostrom Elinor , Governing the Commons: The Evolution of Institutions for Collective Action , (CUP , Cambridge 1990 ) 29.

  • 16

    Ibid.

  • 17

    Bosselmann Klaus , Earth Governance: Trusteeship of the Commons , (Edward Elgar Publishing , Cheltenham 2015 ) 58.

  • 18

    Kirk Elizabeth A , '‘The Role of Non-State Actors in Treaty Regimes for the Protection of Marine Biodiversity’ ', in Michael Bowman, Peter Davies & Edward Goodwin (eds), Research Handbook on Biodiversity and Law , (Edward Elgar Publishing , Cheltenham 2016 ) 95, 97.

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  • 19

    The Second World Ocean Assessment: World Ocean Assessment II, vol 1 (United Nations, New York 2021) 5 <www.un.org/regularprocess/sites/www.un.org.regularprocess/files/2011859-e-woa-ii-vol-i.pdf> accessed 10 March 2022.

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  • 20

    Helm Rebecca R , '‘The Mysterious Ecosystem at the Ocean’s Surface’ ' (2021 ) 19 PLOS Biology : e3001046.

  • 21

    McCauley Douglas J, Pinsky Malin L & Palumbi Stephen R et al. , '‘Marine Defaunation: Animal Loss in the Global Ocean’ ' (2015 ) 347 Science : 1255641 -1.

  • 22

    Glen Wright, Julien Rochette (IDDRI), Kristina Gjerde (IUCN) et al, ‘The Long and Winding Road: Negotiating a Treaty for the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction’ (2018) 8 IDDRI Study <https://www.actu-environnement.com/media/pdf/news-31928-iddri-haute-mer.pdf> 4045.

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  • 23

    Oceans and the Law of the Sea UNGA Res 65/37 (7 December 2010) UN Doc A/RES/65/37 preamble.

  • 24

    UNGA Res 72/249 (n 4) para 2.

  • 25

    UNGA ‘Revised Draft Text of an Agreement Under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction’ (18 November 2019) UN Doc A/CONF.232/2020/3 (BBNJ Revised Draft) preamble.

  • 26

    Ibid art 3(1).

  • 27

    The inclusion of air space – and ocean/air surface – has not been on the agenda in the meetings, but this was the view elicited when the author posed the question in private conversation with delegates. It is not necessary for the purposes of this article to delve into the complex rules that UNCLOS defines for ocean zones.

  • 28

    UNCLOS (n 7) arts 91–94.

  • 29

    BBNJ Revised Draft (n 25) art 5(h), part III, arts 14–21, 14(e).

  • 30

    Ibid arts 21bis–41.

  • 31

    Van Dover Cindy L , '‘Depths of Ignorance’ ' (1993 ) 14 Discover : 37.

    Arico Salvatore & Salpin Charlotte , Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects , (UNU-IAS , Yokohama 2005 ) 9.

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  • 32

    Godet Laurent, Zelnio Kevin A & Van Dover Cindy L , '‘Scientists as Stakeholders in Conservation of Hydrothermal Vents’ ' (2011 ) 25 Conservation Biology : 214, 220.

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  • 33

    Jaeckel Aline , '‘Benefitting from the Common Heritage of Humankind: From Expectation to Reality’ ' (2020 ) 35 International Journal of Marine and Coastal Law : 660, 665.

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  • 34

    Anjum Komal, Abbas Syed Qamar & Shah Sayed Asmat Ali et al. , '‘Marine Sponges as Drug Treasure’ ' (2016 ) 24 (4 ) Biomolecules and Therapeutics : 347.

  • 35

    Blasiak Robert, Jouffray Jean-Baptiste & Wabnitz Colette C C et al. , '‘Corporate Control and Global Governance of Marine Genetic Resources’ ' (2018 ) 4 Science Advances : 2.

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    Pardo Arvid , '‘Thirteenth Statement to the Committee on the Peaceful Uses of the Seabed and the Ocean Floor’ ', in Arvid Pardo & Elisabeth Mann Borgese (eds), The Common Heritage: Selected Papers on Oceans and World Order 1967–1974 , (Malta University Press , Msida 1975 ) 223.

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  • 36

    Tladi Dire , '‘The Common Heritage of Mankind and the Proposed Treaty on Biodiversity in Areas Beyond National Jurisdiction: The Choice Between Pragmatism and Sustainability’ ' (2015 ) 25 Yearbook of International Environmental Law : 113.

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    This article includes a very useful discussion of whether ‘mankind’ refers to States or all people, and concludes that, in either case, the role of States is to represent all humankind.

  • 37

    Vadrot Alice B M, Langlet Arne & Wysocki Ina Tessnow-von , '‘Who Owns Marine Biodiversity? Contesting the World Order Through the “Common Heritage of Humankind” Principle’ ' (2022 ) 31 Environmental Politics : 226.

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  • 38

    UNCLOS (n 7) refers to ‘mankind’ but modern usage prefers ‘humankind’.

  • 39

    Pardo and Borgese (n 35) 41.

  • 40

    Borgese Elisabeth Mann , '‘Introduction’ ', in Arvid Pardo & Elisabeth Mann Borgese (eds), The Common Heritage: Selected Papers on Oceans and World Order 1967–1974 , (Malta University Press, Msida 1975 ).

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    x and xi.

  • 41

    Tladi (n 36) 127–131.

  • 42

    Vadrot et al (n 37) 242.

  • 43

    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 of Areas Beyond National Jurisdiction, ‘Reports on the Four Thematic Issues of the BBNJ Conference and Cross-Cutting Issues: Note by the President’ (September 2020–March 2021) <www.highseasalliance.org/treatytracker/wp-content/uploads/2021/09/BBNJ_IntersessionalReports-1.pdf> accessed on 10 March 2022 (President’s Summary of Intersessional Work);

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    ‘Informal Intersessional BBNJ High Seas Treaty Dialogues: IGC4 Non-Paper’ (High Seas Treaty Dialogues, March 2022) <https://highseasdialogues.org/wp-content/uploads/2022/03/march-2022-igc4_bbnj-informal-intersessional-high-seas-treaty-dialogues-non-paper.pdf> accessed 12 April 2022.

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  • 44

    Draft Report 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 of Areas Beyond National Jurisdiction (16 March 2022) UN Doc A/CONF.232/2022/L.3.

  • 45

    BBNJ Revised Draft (n 25) arts 1(12), 58 and 67; UNCLOS (n 7) art 305 and annex IX, art 1.

  • 46

    BBNJ Revised Draft (n 25) art 23(2).

  • 47

    Ibid arts 34 and 51.

  • 48

    Ibid part VI, arts 48–51; President’s Summary of Intersessional Work (n 43) 25 (‘Delegations expressed support for the establishment of a conference of the parties (COP), a scientific and technical body, a clearing-house mechanism and a secretariat. Several delegations supported the establishment of a fully-fledged secretariat’).

  • 49

    BBNJ Revised Draft (n 25) part VI, art 48.

  • 50

    Ibid art 50.

  • 51

    Ibid art 49.

  • 52

    President’s Summary of Intersessional Work (n 43) 26.

  • 53

    BBNJ Revised Draft (n 25) art 51.

  • 54

    Ibid art 53(3). Other multilateral environmental agreements with implementation and compliance bodies include: the Minamata Convention on Mercury (adopted 10 October 2013, entered into force 16 August 2017) [2018] UKTS 9; and the Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3.

  • 55

    United Nations Framework Convention on Climate Change, ‘Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement on the Third Part of its First Session, Held in Katowice from 2 to 15 December 2018: Addendum: Part Two: Action Taken by the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement’ (19 March 2019) UN Doc FCCC/PA/CMA/2018/3/Add.2, Decision 1/CP.21 para 102 and 103 (adopted in Decision 20/CMA.1 Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement).

  • 56

    In the Southern Bluefin Tuna arbitration, it was the lack of a compulsory dispute settlement procedure entailing a binding decision under art 16 of the Convention for the Conservation of Southern Bluefin Tuna (adopted 10 May 1993, entered into force 20 May 1994) 1819 UNTS 359 that deprived the complaining parties of a forum, when the Tribunal constituted under Annex VII of UNCLOS (n 7) found that the provisions of that agreement governed: Southern Bluefin Tuna (New Zealand–Japan, Australia–Japan) (Award on Jurisdiction and Admissibility) (4 August 2000) (2000) 23 RIAA 1. The Tribunal’s decision has been criticised as ‘one of the more unusual exercises in creative treaty interpretation by an international tribunal’ but it serves as a warning to be very careful in drafting the BBNJ agreement:

    Boyle Alan , '‘The Southern Bluefin Tuna Arbitration’ ' (2001 ) 50 International and Comparative Law Quarterly : 447, 448.

  • 57

    Lijnzaad (n 3) 164.

  • 58

    See eg

    Camacho Alejandro & Glicksman Robert , '‘Designing Regulation Across Organizations: Assessing the Functions and Dimensions of Governance’ ' (2021 ) 15 Regulation and Governance : S102.

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  • 59

    BBNJ Revised Draft (n 25) art 22.

  • 60

    Ibid art 22(3).

  • 61

    Ibid art 24.

  • 62

    Ibid art 38 (alternatives include decision by the host State, decision by the COP, or prohibition of the activity by the terms of the BBNJ agreement);

    Hassanali Khalil , '‘Internationalization of EIA in a New Marine Biodiversity Agreement Under the Law of the Sea Convention: A Proposal for a Tiered Approach to Review and Decision-Making’ ' (2021 ) 87 Environmental Impact Assessment Review : 106554.

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  • 63

    BBNJ Revised Draft (n 25) art 23 (alternatives include consultation and coordination with other bodies; reference to global minimum standards; and waiving the BBNJ requirement where EIA is required by existing obligations).

  • 64

    Ibid arts 30–32 and 35.

  • 65

    Ibid art 25; President’s Summary of Intersessional Work (n 43) 18.

  • 66

    BBNJ Revised Draft (n 25) art 39.

  • 67

    Ibid arts 40 and 41.

  • 68

    President’s Summary of Intersessional Work (n 43) 14.

  • 69

    BBNJ Revised Draft (n 25) arts 34 and 36.

  • 70

    Ibid.

  • 71

    Ibid art 34(4).

  • 72

    Ibid art 37.

  • 73

    Ibid art 40.

  • 74

    Ibid.

  • 75

    Ibid art 41.

  • 76

    Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) (Judgment) (2015) ICJ Rep 665 [104].

  • 77

    Ibid [162], [173] and [227]. See also South China Sea Arbitration (Republic of Philippines v People’s Republic of China) (Award) PCA Case No 2013-19 (12 July 2016) 170 ILR 1 [947]–[948], [987]–[991] and [1203(B)(13)] (China breached art 206 of UNCLOS because it did not communicate its EIA, if in fact it prepared one; no remedy provided other than ‘satisfaction’ in the Tribunal’s finding).

  • 78

    BBNJ Revised Draft (n 25) art 14.

  • 79

    Ibid arts 17 and 19.

  • 80

    Ibid arts 20 and 21.

  • 81

    Ibid art 18.

  • 82

    Ibid art 19 alt 1.

  • 83

    Wright Glen, Gjerde Kristina M & Johnson David E et al. , '‘Marine Spatial Planning in Areas Beyond National Jurisdiction’ ' (2021 ) 132 Marine Policy : 1.

  • 84

    President’s Summary of Intersessional Work (n 43).

  • 85

    BBNJ Revised Draft (n 25) art 9(4) (which should probably be in art 7, Objectives).

  • 86

    Ibid arts 7(b), 9(4) and 11.

  • 87

    The requirement that access to digital sequence information must be provided is considered critical to prevent fragmentation of databases, and therefore it may be considered to be as relevant to pure knowledge as to utilisation; ‘[t]he value rests with the collection of information, not individual sequences’:

    International Union for Conservation of Nature, ‘The 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 of Areas Beyond National Jurisdiction: IUCN Comments’ (20 February 2020) <www.iucn.org/sites/dev/files/content/documents/iucn_comments_on_revised_bbnj_draft_text_february_2020.pdf> accessed 10 March 2022.

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  • 88

    Godet et al (n 32).

  • 89

    Digital sequence information is a term used for genetic information and other related types of information: see Convention on Biological Diversity, ‘Report of the Ad Hoc Technical Expert Group on Digital Sequence Information on Genetic Resources’ (20 February 2018) CBD/DSI/AHTEG/2018/1/4 annex, para 5.

  • 90

    BBNJ Revised Draft (n 25) art 10.

  • 91

    Ibid arts 10(2) and 11.

  • 92

    Simma (n 5) 239.

  • 93

    Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) ITLOS Case No 17 [2011] ITLOS Reports 10 (Activities in the Area) [115] and [119].

  • 94

    Ibid [117].

  • 95

    Crawford James R , '‘Responsibility to the International Community as a Whole’ ' (2001 ) 8 Indiana Journal of Global Legal Studies : 303, 307.

  • 96

    A search of ‘international community’ in the Google Books Ngram Viewer shows the phrase used since the early 1800s, but not much until the early 1900s, with a steady increase in use accelerating rapidly in the mid 1980s, peaking around 2004.

  • 97

    Shelton Dinah & Kiss Alexandre , Guide to International Environmental Law , (Martinus Nijhoff , Leiden 2007 ) 5.

    Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [1951] ICJ Rep 15 (Genocide Convention Advisory Opinion) 23.

  • 98

    Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) USTS No 993 art 34.1.

  • 99

    South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 47 [88].

  • 100

    Simma (n 5) 233.

  • 101

    Crime of Genocide (n 12) [39]–[42]. See also Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits) [2012] ICJ Rep 422 [68]–[69] (‘The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim’).

  • 102

    Crime of Genocide (n 12) [41]–[42] quoting Genocide Convention Advisory Opinion (n 97) 23.

  • 103

    Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Merits) [2014] ICJ Rep 224. Cf Lijnzaad (n 3) 160 (contentious cases ‘would be disputes in which both sides would have a specific entitlement … for which they seek protection’). See Southern Bluefin Tuna (n 56) [33] (Australia and New Zealand argued on behalf of their national interests that Japan was ‘pursuing a course of unilateral action in its exclusive interest contrary to their rights as coastal States while enjoying the benefits of restraint by Australia and New Zealand, with discriminatory effect upon nationals of the Applicants’).

  • 104

    Responsibility of States for Internationally Wrongful Acts UNGA Res 56/83, Annex (12 December 2001) 56th Session (2001) UN Doc A/RES/56/83 (ASR) arts 1, 2 and 12.

  • 105

    ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ (2001) II(2) Yearbook of the International Law Commission 31, 95 (art 33 comment 4).

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  • 106

    Obligations to other States Parties to a treaty (erga omnes partes) will be discussed below.

  • 107

    Simma (n 5) 233.

  • 108

    Ibid 240.

  • 109

    Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (18 March 1965) 575 UNTS 159.

  • 110

    UNCLOS (n 7) art 187, annex VI (Statute of the International Tribunal for the Law of the Sea) art 20 (‘entities other than States Parties … in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case’).

  • 111

    Activities in the Area (n 93) [180].

  • 112

    Levit Janet K , '‘Bottom-up International Lawmaking: Reflections on the New Haven School of International Law’ ' (2007 ) 32 Yale Journal of International Law : 393.

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  • 113

    BBNJ Revised Draft (n 25) art 17(1) (‘Proposals in relation to the establishment of area-based management tools, including marine protected areas, under this Part shall be submitted by States Parties, individually or collectively, to the secretariat’). As at January 2022, Article 17(2) was bracketed, meaning that the President of the negotiation did not consider that there was general agreement on including it: ‘[2. States Parties may collaborate with relevant stakeholders in the development of proposals.]’.

  • 114

    Ibid art 22. An example of a State bringing a bilateral dispute in such a situation is Whaling in the Antarctic (n 103).

  • 115

    An option proposed in the BBNJ Revised Draft (n 25) art 48(4)(d)(iii) (in brackets).

  • 116

    Ibid arts 54 and 55; UNCLOS (n 7) part XV.

  • 117

    Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) art IX.

  • 118

    Lijnzaad (n 3) 173.

  • 119

    Simma (n 5) 230 citing Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 [181] (‘only the party to whom an international obligation is due can bring a claim in respect of its breach’).

  • 120

    ISA Rules of Procedure of the Assembly of the International Seabed Authority (7 July 1994) ISBA/A/6, Rule 82; ISA Rules of Procedure of the Council of the International Seabed Authority (3 December 1996) ISBA/C/12, Rule 75.

  • 121

    Ibid.

  • 122

    See eg

    Willaert Klaas , '‘Deep Sea Mining and the United States: Unbound Powerhouse or Odd Man Out?’ ' (2021 ) 124 Marine Policy : 104339, 9.

    fn 121 (‘in 2019, the comments and suggestions of the Council members were integrated in the draft text of the exploitation regulations, while the proposals and observations of non-Council members and observers were only compiled in a separate document that was not put on the agenda for the ISA Council meetings’).

  • 123

    Sands Philippe & Klein Pierre , Bowett’s Law of International Institutions , (Sweet & Maxwell , London 2001 ) 16 -17.

    Responsibility of International Organizations UNGA Res 66/100, Annex (9 December 2011) UN Doc A/RES/66/100 (ARIO) art 2.

  • 124

    BBNJ Revised Draft (n 25) para 3.

  • 125

    UNCLOS (n 7) art 191; Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources Within the Maritime Areas Under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission (adopted 8 June 2012, entered into force 16 September 2012) art 33.

  • 126

    BBNJ Revised Draft (n 25) art 1(12)(b)(ii).

  • 127

    ARIO (n 123) art 4. The ITLOS Advisory Opinion on illegal, unreported and regulated fishing found that an IO could be held liable for a Member State’s non-compliance in an area where the IO has competence, but applies to the special case of IOs such as the EU, defined in UNCLOS and with specific competences designated by their Member States: Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion, 2 April 2015) ITLOS Reports 2015, [157] and [168].

  • 128

    Lijnzaad (n 3).

  • 129

    Simma (n 5) 376.

  • 130

    This was due to COVID-19 restrictions required by the UN Secretariat.

  • 131

    Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (adopted 3 October 2018, entered into force 25 June 2021).