A New Hope for the Deep-Sea?

About the author

Maria Pena Ermida, Ph.D. Candidate at Universidade Católica Portuguesa and Researcher at the Católica Research Centre for the Future of Law.

A new hope for the Deep Sea? A short reflection on the impact of the BBNJ in the ISA framework regarding the management of the Area.

The U.N. Convention on the Law of the Sea (LOSC) is undoubtedly the starting point for anyone studying ocean governance. Looking at how this governance structure was built, one can immediately identify an underlying “divide and conquer” approach, which created distinct maritime zones within and beyond national jurisdiction. Simultaneously, it established the legal detachment of the water column and the deep seabed. This fragmented approach led to opposing frameworks being applied to different areas, resulting in the legal disunion of a unified medium. In the case of the Area, not only is it the only maritime zone subject to the principle of Common Heritage of Mankind,[1] but it is also governed by an international body created explicitly by the LOSC to manage activities in the Area; the International Seabed Authority (ISA),[2] an organization meant to be a global administrative entity that allows States to interact with the Area and its resources, having prescriptive and enforcement jurisdiction regarding activities in the Area.[3]

In addition, the LOSC system has also invited States to adopt domestic legal frameworks to be applied in their maritime domestic spheres and ABNJ. In the case of activities in the Area, Article 209(2) of the LOSC places an obligation on States to adopt domestic “laws and regulations to prevent, reduce and control pollution of the marine environment from activities in the Area” with the requirements that such laws and regulations cannot be “less effective than the international rules, regulations and procedures” to be adopted by the ISA.[4] Considering such a scenario, there is a possibility of multiple legal instruments with different standards of care being adopted by States for the Area, causing further fragmentation of the legal framework under analysis.[5]

Despite this, the LOSC must be read alongside its “children” the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 on part XI (Agreement on Part XI), the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation And Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement), which will soon, hopefully, be joined by the 2023 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 (BBNJ Agreement). While the Fish Stocks Agreement already revealed a need and will to tackle some of the environmental protection and resource management issues that came from the zonal approach adopted by the LOSC drafters, it still subscribed to a sectoral approach to ocean governance.[6]The BBNJ, however, could be a game changer in ocean governance. Unlike its “older siblings”, this Agreement attempts to move away from the sectoral approach. The drafters of the BBNJ Agreement were clear in this desire from the outset, defining ABNJ as “the high seas and the Area”[7]. Moreover, according to its preamble, the whole Agreement was designed to reflect its drafters’ desire to become the “stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations by protecting, caring for and ensuring responsible use of the marine environment, maintaining the integrity of ocean ecosystems and conserving the inherent value of biological diversity of areas beyond national jurisdiction”.[8] Nevertheless, this bears the question: How will this regulatory framework interact with existing agreements and institutions, namely the ISA?

Let us take Area-based Management Tools (ABMT) as our main example.[9] ABMT aim at managing human activities, establishing areas for biodiversity and ecosystem conservation as well as sustainable use of resources.[10] This is to be done through a framework based on cooperation and coordination, as the BBNJ attempts to strike a balance between the objectives of the Agreement and the interests of all individual Parties and established international bodies.[11] In a clear attempt to do this, the BBNJ drafters included mechanisms such as the full participation of relevant stakeholders in the design ABMT, working on their development, review, and monitoring.[12] This comprises, of course, the ISA. For instance, the proposals submitted for establishing ABMT must consider several factors, such as activities already occurring in those areas.[13] This is reinforced by the involvement of a Scientific and Technical Body, [14]which must consider “advice emanating from relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies, as well as from other scientists and experts, as may be required”.[15] In a clear attempt to strike a balance however, the COP limits itself by establishing in Article 22.1, that when taking decisions concerning ABMTs, it “shall respect the competences of, and not undermine, relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies.” At the same time however, the COP reserves to itself the right to make recommendations to other international bodies to “promote the adoption of relevant measures (…) in accordance with their respective mandates.”[16] Moreover, the Agreement established mechanisms to ensure publicity and public consultation upon submitting the proposal of the ABMT.[17] In such cases, the BBNJ secretariat will be responsible for facilitating the consultation of relevant stakeholders regarding, for instance, existing measures adopted regarding the area under consideration or aspects of the current plan that fall under the exclusive competence of said body.[18] In the case of the ISA and deep-sea mining, there are occasions when the ISA could be compelled to intervene, namely in cases where, for example, a proposed ABMT is to be established near already approved deep-seabed minerals exploration of exploitation sites.

However, the most significant contribution of the BBNJ Agreement to the management of activities in the Area could simply be its existence, serving as an argument against the adoption of measures by the ISA that do not envisage biodiversity conservation or environmental protection, as its Parties seek to ensure the coherence between the objectives of the BBNJ Agreement and the decisions adopted in other international bodies.[19] One could argue that its effectiveness is already showing some results despite the Agreement not having yet entered into force. Although the ISA’s twenty-eighth Session of July 2023 produced minimal advancements in the adoption of the Mining Code Exploitation Regulations, there was ongoing pressure from several States, such as France, Switzerland, Bangladesh, or Costa Rica, along with many observers, to adopt rules that are in line with those adopted for the BBNJ agreement.[20]Nevertheless, in the words of the Secretary-General of the ISA, call for a clear delimitation of where the role of the ISA and the institutes and mechanisms created by the BBNJ start and end, arguing that the ISA is the specialised framework concerning the management of the deep-sea and that, in the road for the enforcement of the LOSC “the mandates of the institutions created for its implementation shall be strengthened and not duplicated.”[21]

Even so, while some would argue that both bodies hold very distinct mandates, with the ISA being responsible for the seabed, it is undeniable that such a technicality is frugal when faced with reality: a sectoral approach to the management of our oceans, in particular global resources, does not encompass the complexities of such an ecosystem. Unless this is done, Humanity will likely fall into the fate identified by Garrett Hardin’s 1968 “Tragedy of the Commons”: “Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. (…) Freedom in a commons brings ruin to all.” [22]

[1] LOSC, Articles 136 and 137. For a full account of this principle see R. WOLFRUM, “The Principle of the Common Heritage of Mankind”, Heidelberg Journal of International Law. 1983, Vol 43, pp. 313-337.

[2] T. SCOVAZZI, “Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority”. The International Journal of Marine and Coastal Law. 2004 vol.19, nº 4, pp. 383–409.

[3] LOSC, Articles 153-157.

[4] LOSC, Article 209.

[5] E. A. KIRK and N. POPATTANACHAI, “Marine Plastics: Fragmentation, Effectiveness and Legitimacy in International Lawmaking”. Review of European, Comparative and International Environmental Law. 2018, 27, nº 3, pp.222-233. p.225.

[6] Fish Stocks Agreement, Article 2.

[7] BBNJ Agreement, Article 1 (2).

[8] BBNJ Agreement, Preamble.

[9] BBNJ Agreement, Article 1(1).

[10] BBNJ Agreement, article 17 (a), (b) and (c).

[11] BBNJ Agreement, article 17 (d), (e).

[12] BBNJ Agreement, Article 19 (2) and (3).