Negotiating an International Legal Instrument on Biodiversity Beyond National Jurisdiction: A Look Ahead

Abstract

The negotiation of the future Agreement governing the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction is in its final stage. Essentially a treaty for the protection of general interests, the Agreement can generate several benefits for the governance of the oceans. However, in the first three sessions of the intergovernmental conference, deep discrepancies have emerged with respect to the core issues of the package agreed in 2011. This article identifies various formulas and strategies that have been considered in the negotiations and incorporated in the Revised draft text as possible regulatory options with the potential to bring positions closer and facilitate the agreement: avoiding explicit reference to the legal status of marine genetic resources; the incorporation of differential and contextual norms; the introduction of due diligence obligations; the incorporation of internal soft law; and the reduction of the scope of the treaty. These options may help to provide flexibility and differentiation in the regulation but, as essentially pragmatic measures, they tend to sacrifice the ambition of the final Agreement. On the other hand, if States assume their real role and responsibility in the process –that of interpreters of general interest and custodians of marine biodiversity –they would be in a better position to find novel and more ambitious solutions for bringing this crucial Agreement to fruition. This article advocates a return to basics and the placing of the marine environment at the centre of the regulations.