1. Introduction
This article discusses the relevance and implications of the forthcoming international agreement on the conservation and sustainable use of marine biological diversity beyond national jurisdiction for international shipping (such new agreement hereinafter referred to as the ‘Agreement’ or ‘The High Seas Treaty’(1) The Agreement is also broadly referred to as BBNJ.). The Agreement has been adopted under the auspices of the United Nations and the UN Convention on the Law of the Sea (UNCLOS).(2) Montego Bay, 10 December 1982, in force 16 November 1994, 1833 UNTS 3.
The living resources and biodiversity of the areas beyond national jurisdiction (ABNJ) are threatened by depletion due to overexploitation, pollution, and climate change. Maritime transport remains central for international trade, as over 80% of the total volume of international trade in goods is carried by sea.(3) UNCTAD, Review of Maritime Transport 2022: Navigating Stormy Waters, <Review of Maritime Transport 2022 | UNCTAD>. In addition to traditional shipping activities, high seas areas are also used by fishing vessels, various special purpose vessels, and warships, as well as floating platforms and installations for research, energy production etc. Furthermore, exploitation of marine genetic resources (MGRs) of the ABNJ and bioprospecting will reportedly have intensified by 2025, as the global marine biotechnology industry pursues a broad range of commercial purposes for the pharmaceutical, biofuel, and chemical industries.(4) See, e.g., Marta Abegon-Novella, ‘Negotiating an International Legal Instrument on Biodiversity Beyond National Jurisdiction: A Look Ahead’ (2022) 52 Environmental Policy and Law 21–37; Paul Oldham, Stephen Hall, Colin Barnes, Catherine Oldham, Mark Cutter, Natasha Burns, Leonie Kindness, Valuing the Deep: Marine Genetic Resources in Areas Beyond National Jurisdiction (2014) published online (bookdown.org). Thus, in addition to impact from traditional uses of the high seas for fishing and shipping, the high seas and deep seabed are subject to increasing pressures from novel industrial and economic activities. At the same time, significant gaps remain in the international legal framework applicable to the use and protection of the marine environment and biodiversity of the high seas.
In 2015, the UN General Assembly (UNGA) adopted a Resolution to develop an international legally binding instrument (ILBI) under UNCLOS and to that end to establish a preparatory committee. Following its recommendations, the UNGA decided to convene an intergovernmental conference on the ILBI.(5) UNGA Resolution 72/249 of 24 December 2017, 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, <Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction | (un.org)>. The final text of the Agreement was negotiated on 5 March 2023 and adopted on 19 June 2023, to be ratified by States in due course.(6) The negotiations of the Agreement have concluded with the adoption of the final draft agreement (5 March 2023) and the adoption of the Agreement by the UN on 19 June 2023. The Agreement and the Final Statement by the UN Secretary General are available at <Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction | (un.org)>. The Agreement seeks to ‘address, in a coherent and cooperative manner, biodiversity loss and degradation of ecosystems of the ocean’ and the ‘need for the comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’.(7) Ibid., the Preamble and art 2. Admittedly, shipping is not among those economic activities in the high seas raising the greatest concerns; for example, mining, energy exploitation, waste disposal and commercial fishing were mentioned expressly in the initial report on the need for the ILBI. Shipping may, however, have impacts on marine biodiversity which vary depending on the ecological sensitivity of the area.(8) Working Group on Conservation of Arctic Flora and Fauna (CAFF), AS3: Reducing the effects of shipping on biodiversity (11 October 2018), <AS3: Reducing the effects of shipping on biodiversity - Arctic biodiversity, Conservation of Arctic Flora and Fauna (CAFF)>. As discussed further in this article, the scope of the forthcoming instrument is broad and applies to all activities in the ABNJs, including shipping.
While the Agreement has already been extensively discussed in the legal scholarly literature, there are gaps in the understanding of the specific legal implications of this international legal development for shipping. This article begins with a brief presentation of the existing international legal framework governing shipping on the high seas, including the jurisdiction and responsibilities of flag States, the role of the International Maritime Organisation (IMO) as the ‘competent international organization’ under UNCLOS and its central conventions regulating the environmental safety of ships on the high seas (Section 2). Section 3 presents and discusses selected provisions of the adopted draft Agreement, focusing on the scope of the Agreement and its relationship with the IMO, and on the provisions governing Area-Based Management Tools as defined therein. Section 4 concludes.