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Protecting marine biological diversity in the South China Sea
It remains unclear whether the biodiversity beyond national jurisdiction agreement can be effectively enforced in disputed waters, such as the South China Sea.
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Here comes the sun: An aerial view shows Baruk Bay during sunrise over Natuna island, Riau Islands province, near the South China Sea on Sept. 24, 2023. (AFP/Bay Ismoyo)
“[W]hen we see the Earth from space, we truly appreciate that we live on a blue planet. [...] Sadly, we have taken the ocean for granted, and today we face what I would call an Ocean Emergency.”
This statement, by the United Nations secretary-general during the UN Ocean Conference Youth and Innovation Forum in Lisbon on June 26, 2022, sent an alarm about three worsening dimensions in today’s Anthropocene era: the oceans, climate and biodiversity.
The remarks relate to an Agreement under the UN Convention on the Law of the Sea (UNCLOS) on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement), which was recently adopted after nearly two decades of negotiations. Having been open for signature since Sept. 20, it is the first international legally binding instrument to protect marine biodiversity of areas beyond national jurisdiction (ABNJ).
From the international environmental law perspective, the agreement provides more recent principles and innovative concepts to meet the challenges of “ocean-climate-biodiversity”. It offers a facilitative and catalytic approach that focuses on ensuring the present and long-term conservation and sustainable use of the marine biodiversity of ABNJ.
Contentious issues marked the negotiations before the agreement was adopted (Efthymios Papastavridis, 2020). This is not surprising, considering how the agreement presents itself as a “package deal”, consolidating the two worlds: developed and developing, the Global North and South.
There are four elements to the package: (1) marine genetic resources (MGRs), including the fair and equitable sharing of benefits, (2) measures such as area-based management tools (ABMTs), including marine protected areas (MPAs), (3) environmental impact assessments (EIAs) and (4) capacity-building and the transfer of marine technology (CB&TT).
The BBNJ Agreement has yet to establish “a robust and effective implementation mechanism” (Papastavridis, 2020), leaving a pile of demanding assignments to the Conference of the Parties (CoP). This means the CoP plays a detrimental role in the effectiveness of the BBNJ agreement implementation.
