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General principles and approaches of the instrument

From IUCN Marine Biodiversity Matrix
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From the report of the BBNJ Preparatory Committee, 31/07/17 :

The text would set out the general principles and approaches guiding the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

Possible general principles and approaches could include:

  • Respect for the balance of rights, obligations and interests enshrined in the Convention;
  • Due regard as reflected in relevant provisions of the Convention;
  • Respect for the rights and jurisdiction of coastal States over all areas under their national jurisdiction, including the continental shelf within and beyond 200 nautical miles and the exclusive economic zone;
  • Respect for the sovereignty and territorial integrity of all States;
  • Use of marine biological diversity of areas beyond national jurisdiction for peaceful purposes only;
  • Promotion of both the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction;
  • Sustainable development;
  • International cooperation and coordination, at all levels, including north-south, south-south, and triangular cooperation;
  • Relevant stakeholders engagement;
  • Ecosystem approach;
  • Precautionary approach;
  • Integrated approach;
  • Science-based approach, using the best available scientific information and knowledge, including traditional knowledge;
  • Adaptive management;
  • Building resilience to the effects of climate change;
  • Duty not to transform one type of pollution into another consistent with the Convention;
  • Polluter-pays principle;
  • Public participation;
  • Transparency and availability of information;
  • Special requirements of small islands developing States and least developed countries, including avoiding transferring, directly or indirectly, a disproportionate burden of conservation action onto developing countries;
  • Good faith.

Suggestion 1: General obligation

Include a general obligation, which can be based on Art 192 of UNCLOS and CBD, e.g.: “States have the obligation to protect and preserve the marine environment and conserve marine biodiversity in ABNJ and sustainably use its components. States also have the obligation to share fairly and equitably the benefits arising from utilization of MGR derived from ABNJ.”

References: IUCN Policy Brief IV Governance Principles, UNCLOS Art 192

Suggestion 2: Obligation to prevent significant adverse impacts

Include obligation for States, acting directly and cooperating through competent international organizations, to:

  • Identify processes and activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of marine biodiversity or its components in ABNJ
  • Take all measures necessary to ensure that activities under their jurisdiction or control are conducted so as to not cause significant adverse impacts on marine biodiversity and its components in ABNJ

References: UNCLOS Art 194 (taking all measures necessary to not cause damage to other States or ABNJ) CBD Art 3 (Principle), CBD Art 4, UNGA Res. 61/105, para 83-89 (significant adverse impacts)

Suggestion 3: Relevant UNCLOS principles

Refer to relevant principles drawn from the Convention, such as:

  • Conservation of Highly Migratory Species both within and beyond the states EEZs (Art 64)
  • Management and responsibilities of anadromous and catadromous migratory stocks (Art 66 and 67)
  • Freedom of the High Seas (Art 87)
  • Duty of States to adopt with respect to their nationals measures for conservation of living resources of the high seas (Art 117)
  • Common heritage of mankind with respect to the Area (Art 136)
  • Activities in the Area carried out for benefit of mankind (Art 140)
  • Protection and preservation of the Marine Environment (Art 192)
  • Cooperation on a global/regional basis (Art 197)
  • Assessment of effects of activities (Art 206)
  • Right to and principles for MSR (Arts 238, 240)
  • Technology transfer (Art 266)

References: UNCLOS Art 66 and 67 (Management and responsibilities of anadromous and catadromous migratory stocks), UNCLOS Art 64 (Highly Migratory Species), UNCLOS Art 87 (freedom of high seas), UNCLOS Art 117 (duty over nationals), UNCLOS Art 136 (common heritage of mankind), UNCLOS Art 140 (benefit of mankind), UNCLOS Art 192 (protection of biodiversity), UNCLOS art 197 (cooperation), UNCLOS art 206 (assessment), UNCLOS arts 238, 240 (MSR), UNCLOS art 266 (technology transfer)

Suggestion 4: Other general principles to apply

List relevant principles, which could include:

  • respect for the law of the sea, in particular UNCLOS and its related instruments
  • international cooperation and coordination
  • decisions based on the best scientific and technical information available
  • precautionary approach
  • non regression principle
  • adjacency principle recognizing geographical proximity oceanographic ecological and migratory connectivity
  • ecosystem approach
  • sustainable and equitable use of resources
  • accountability
  • transparency in decision-making processes
  • responsibility of States to ensure that activities within their jurisdiction and control do not cause damage to the environment of other States or of ABNJ
  • recognition of interests of developing States, in particular the least developed States, small island developing States, and developing State coastal communities
  • the duty to take all measures consistent with the Convention and this agreement necessary to achieve the objectives of this agreement
  • common concern of human kind, incorporating the concepts of inter and intra-generational equity, accountability and fair and equitable benefit and burden sharing, and stewardship of the oceans.

References: IUCN Policy Brief IV Governance Principles, SPRFMO Convention Art 3 (list of principles), UNFSA, Art 5 (general principles), UNFSA Art 8 (cooperation), CBD Art 3 (state responsibility), UNFSA, Art 12 (transparency), UN BBNJ Policy Brief Adjacency ,UN A/conf.232/2018/3 BBNJ IGC1 President Aid to Negotiations,UN A/conf.232/2019/5 BBNJ IGC2 President Closing Statement,IPBES Plenary 7 Summary for Policy Makers, UN Sustainable Development Goals

Suggestion 5: Specific obligations relating to biodiversity in ABNJ

Incorporate general list of obligations related to conservation and sustainable use of marine biodiversity in ABNJ. These could include obligations to:

  • adopt measures to ensure long term conservation and sustainable use of marine biological diversity and its components in ABNJ;
  • prevent/minimize pollution
  • prevent/eliminate overfishing
  • prevent, deter and eliminate illegal, unreported and unregulated fishing
  • address illegal taking and trade of species
  • prevent/eliminate overexploitation of marine resources
  • reduce the intensity of direct and indirect drivers of biodiversity loss
  • particularly protect those marine ecosystems which have long recovery times following disturbance;
  • particularly protect endangered and/or declining species and in cooperation with existing Conventions considering Species already listed in MEAs and additional listing of Marine Migratory Species identified as further threatened by activities in ABNJ.
  • particularly protect endangered and/or declining habitats and in cooperation with existing Conventions
  • establish standards, certifications, permits, licenses, quotas, eco-labels preventing/eliminating overexploitation and enhancing environmentally sustainable activities in ABNJ
  • reform or remove harmful existing policies and subsidies to enable the transformative change in the long term to address the indirect drivers of biodiversity loss e.g. via encouraging effective fisheries reform strategies
  • incorporate knowledge of the impacts of other human activities and environmental factors;
  • define traditional use, traditional activities, traditional knowledge, relevant traditional knowledge
  • include the relevant traditional knowledge of indigenous and local communities for the conservation and sustainable management of biodiversity in ABNJ
  • enable integrative governance to ensure policy effectiveness and coherence
  • promote inclusive governance approaches through stakeholder engagement and the inclusion of indigenous peoples and local communities to ensure equity and participation
  • ensure the appropriate environmentally responsible waste management related to activities conducted in ABNJ
  • increase management of existing marine pollution through incentives innovations and funding
  • increase ocean conservation investment
  • collect and share, in a timely manner, complete and accurate data;
  • promote and conduct scientific research and develop appropriate technologies in support of conservation and management of marine biodiversity and its components in ABNJ;
  • implement conservation and management measures through effective monitoring, control and surveillance;
  • ensure compliance with conservation and management measures and provide adequate sanctions for violations

References: UNFSA, Art 5 (general principles), SPRFMO Convention Art 3 (list of principles), IPBES 7 Summary for Policy Makers, UN BBNJ Policy Brief Adjacency,UN A/conf.232/2018/3 BBNJ IGC1 President Aid to Negociations ,UN A/Conf.232/2019/5 BBNJ IGC 2 President closing statement, UN Sustainable Development Goals,Species listed under CITES Appendices I, II, III, CMS,Species listed under CMS Appendices I and II, see other Marine Migratory Species Agreements : e.g. African-Eurasian Waterbirds Agreement (AEWA); Agreement for Conservation of Albatross and Petrels (ACAP); Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and contiguous Atlantic Area; Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas; Wadden Sea Agreement) as well as a number of less formal Memorandums of Understanding (MoU) (e.g. Dugong, Mediterranean Monk Seal, Pacific Islands Cetaceans, Migratory Sharks, West African Aquatic Mammals, Marine Turtles of Atlantic Coast of Africa, Indian Ocean and Southeast Asia Marine Turtles), Convention of European wildlife and natural habitats or Bern Convention,Fauna and Flora species listed under the Bern Convention Annexes I, II, III,InterAmerican Convention for the protection and conservation of Sea Turtles (IAC)

Suggestion 6: Emergency measures

Provide that where there is urgent threat to the marine environment or marine biodiversity in ABNJ, States Parties act immediately, individually and through competent organizations to immediately stop harmful or potentially harmful activities under their jurisdiction or control. Measures taken on an emergency basis should be based on the best scientific evidence available. Such measures are temporary and must be reconsidered for decision at the next meeting of the decision-making body.

References: UNCLOS Art 221 (Measures to avoid pollution arising from maritime casualties), SPRFMO Art 20, para 5(b) (Conservation and Management Measures)

Also see