A NEW ILBI FOR PROPER ARCTIC MARINE RESOURCE GOVERNANCE UNDER THE BBNJ UMBRELLA: APPRAISING THE MODUS OF CONSERVATION AND SUSTAINABLE DEVELOPMENT

Ms Sabrina Hasan

Arctic Ocean (AO) being enriched with marine resources and due to its rapid changes, opening the door for human activities, it has attracted the concern of the protection of the Arctic marine biodiversity through the effective implementation of legally binding instruments which will be influential to the enforcement of scientific cooperation between Arctic and Non-Arctic States. Moreover, diplomatic issues along with laws and regulations regarding Arctic Ocean governance have raised the concern to come up with an effective legal regime for the conservation and sustainable development of Arctic marine biodiversity. Though there are some applicable legal instruments in existence, the rapid changes in the AO and increased human activities have called for a stronger one. Now the question is whether that regime shall be within national or regional framework and how the upcoming so called BBNJ can be an influential and effective instrument to promote the conservation and sustainable development of Arctic marine biodiversity which are beyond national jurisdiction. Therefore, the paper highlights the existing issues in relation to Arctic marine biodiversity and an analysis of these concerns regarding that how the conservation and sustainable development of Arctic marine biodiversity can be promoted under the BBNJ.


Biography:

The author is a PhD Candidate under the South China Sea Institute of Xiamen University; She has received LLM in Maritime Law from BSMR Maritime University, Bangladesh; MSS specialized with Victimology and Restorative Justice and PGDIR from University of Dhaka; LLB from the University of London, UK. Currently, She is engaged as Editorial Team Member, South Asian Journal of Law and Policy; Contributing Writer, Our Time; Project Consultant, Justice Watch Foundation. Formerly, She served Bangladesh Institute of Law and International Affairs as a Research Assistant (Law).

The relevance of the concept of “beyond national jurisdiction” in polar marine areas under contemporary international law

Ms Ilaria Tani1

1University of Milan-Bicocca, , Italy

In the Arctic, a considerable portion of the water column lies “beyond national jurisdiction”. More limited, in terms of extension, are destined to be the spaces falling under the regime of the Area, due to the fact that, although the overall situation still needs to be comprehensively assessed by the Commission on the Limits of the Continental Shelf, portions of the Arctic seabed and subsoil today “beyond national jurisdiction” will – sooner or later – fall under the regime of the outer continental shelf. The position of the Arctic States, though unique, does not put into question the law of the sea, nor the rights of the non-Arctic States and the International Seabed Authority. Moreover, at present, there are no overlaps with the matters regulated by the Arctic Council (search and rescue; oil pollution preparedness; scientific cooperation) and those negotiated by the BBNJ Intergovernmental Conference.

In the Antarctic, marine areas included in the claims of seven States are nevertheless considered by non-claiming States as falling “beyond national jurisdiction”. The position tacitly taken by the Antarctic System’s States, which actually manage activities under the System’s rules, i.e. as if no sovereignty, jurisdiction, freedom or common heritage of mankind applied, evidently does put into question the law of the sea (for instance, by regulating mining). Moreover, the BBNJ Intergovernmental Conference does address matters considered by the Antarctic System (environmental impact assessments; genetic resources; marine protected areas).

This essay aims at analyzing the localized maritime regime that, in the Antarctic marine areas, moved away from the law of the sea codified in the UNCLOS, in parallel with considerations on the different approach of the Arctic coastal States. In both scenarios, the concept of “beyond national jurisdiction” within the developments of the work of the BBNJ Intergovernmental Conference may provide an opportunity for thoughts and comparisons.


Biography:

Lawyer (Milan Bar Association); Adjunct Professor in International Law of the Sea and Marine Environment Protection in the international master degree in Marine Sciences, offered by the University of Milan-Bicocca (Milan, Italy); former Associate Legal Officer of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations Secretariat (New York, United States); occasionally member of the Italian delegation in negotiations relating to the law of the sea in Brussels and New York.

What impact will the BBNJ discussions have on CCAMLR particularly relating to the establishment of MPAs in the Southern Ocean?

Ms Danielle Smith1

1Faculty of Law, Institute for Marine and Antarctic Studies (IMAS), University of Tasmania, ,

The system of governance in place for Antarctica and the Southern Ocean is unique. Several claimant States have made territorial claims however; other states in the international system have not recognised these claims. In 1959, the Antarctic Treaty was negotiated by 12 states to provide a framework for the continent to be used for peaceful purposes, namely scientific research. The Treaty effectively suspended the legal effects of the claims. For some, the Southern ocean is considered a global commons. The marine resources are regulated by the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR) and implemented by an international Commission. Currently, negotiations for an internationally legally binding instrument under the UN Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction are underway. One element of the proposed instrument relates to measures such as area-based management tools, including marine protected areas (MPAs). To date, two high seas MPAs have been established under the CAMLR Convention. This paper discusses what impact the new UNCLOS instrument may have on the complex governing system of Antarctica, particularly relating to the establishment of MPAs in the Southern Ocean.


Biography:

Danielle Smith (BSc(Hon), MSc, C.WEM, C.Sci, C.Env) is undertaking a PhD research project with the Faculty of Law and Institute for Marine and Antarctic Studies at the University of Tasmania. Her research looks at the factors contributing to the effectiveness of legal regimes in establishing and implementing marine protected areas in areas beyond national jurisdiction, in particular in the Southern Ocean under the CCAMLR Convention and in the North-East Atlantic region under the OSPAR Convention. Danielle’s interest in the topic stems from her thirteen years of experience working as a marine environmental consultant both within Australia and internationally.

The Access and Benefit-sharing of Marine Genetic Resources in Antarctica: Lessons from the BBNJ Negotiation

Mr Sen Wang, Ms Jiayi Wang

1Zhejiang University, Hangzhou, China

 

The ongoing negotiation of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (‘BBNJ’) is the most significant international law-making process with the purpose to develop an international legally binding instrument under the 1982 United Nations Convention on the Law of the Sea (‘UNLCOS’). The Antarctic Treaty System (‘ATS’), however, has been deeply and seriously influenced by these new instrumental arrangements made by the BBNJ negotiation. In order to harmonically and properly manage marine genetic resources (MGRs) under the ATS for common interests of humankind, the current successful experiences that the BBNJ negotiation gained must be reviewed and examined very carefully. This paper roughly summarizes existing problems relating to MGRs in Antarctica, and then goes on legal analyses in detail of the access and benefit sharing of MGRs. Accordingly, the environmental protection shall be highly valued and well preserved in access to MGRs. In the period of benefit sharing, on the other hand, equitable sharing of resources, sharing of information on the scientific research and intellectual property rights in relation to MGRs ought to be further clarified under the ATS especially with regard to the future adoption of the BBNJ agreement.


Biography:

Mr. Wang Sen is currently a PhD student of Guanghua Law School of Zhejiang University, China, mainly focusing on the Public International Law, the Law of the Sea and the Antarctic Law. So far he had published several academic articles on the Law of the Sea, the principle of uti possidetis juris, and historic rights, and two other English papers are still in press. The Antarctic Law is the topic of his PhD thesis, especially on the marine protected areas, and other related issues about Antarctica.

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