LAW OF THE SEA-A NEW TREATY ON MARITIME BIODIVERSITY?

LAW OF THE SEA-A NEW TREATY ON MARITIME BIODIVERSITY? Author Associate prof. PhD. Cristina Elena POPA TACHE[1]-expert MSF

Motto: “Nothing is agreed until everything is agreed”[2].

Abstract:

According to the High Seas Alliance, on 24 December 2017, the UN General Assembly adopted by consensus Resolution 72/249 to convene an intergovernmental conference and undertake formal negotiations for a new legally binding international instrument under the UN Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable development of marine biological diversity in areas beyond national jurisdiction. In this way, humanity’s common heritage stands a good chance of being protected and secured, with the convention being the arm that has the noble role of saving it from danger. When will it be signed? How will it be implemented? Will its noble purpose overcome the blockages of financial interests? These are questions to be answered by future legal doctrine and practice. For this article, I used a research method based on introspection and quantitative analysis of the documents related to the negotiation rounds, with reference to international law.

Keywords: treaty, maritime biodiversity, environment, UNCLOS.

JEL Codes: K33, Q57

Introduction

Reaching a multilateral treaty has always been a difficult task. Often, negotiations depend on how specific steps are organised, but also on the resources of the parties[3]. The same is true for amending multilateral treaties, from revising or creating new rights and obligations to establishing new institutional mechanisms[4].

Over time, we have seen how the law of the sea has been and continues to be a source of inspiration. For example, the legal status of outer space and celestial bodies is still dominated by the rule of freedom of use taken from the law of the sea, as the doctrine has noted, and which confirms use for exclusively peaceful purposes, the principle of cooperation, and the international responsibility of states[5].

According to the High Seas Alliance[6], on 24 December 2017, the UN General Assembly adopted by consensus Resolution 72/249 to convene an intergovernmental conference and undertake formal negotiations for a new legally binding international instrument under the UN Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable development of marine biological diversity in areas beyond national jurisdiction. The European Union is a party to the negotiations for all Member States. The conference opened to draft the first treaty on ocean biological diversity. Resolution 72/249, with 141 government co-sponsors, sends a resounding message of support for the need to protect this neglected half of our planet. The enthusiasm for this initiative is not without its pitfalls.

What’s recent in terms of the high seas is a mediated attempt at codification. On 15 August 2022 an article was published announcing that:” UN member states will gather in New York to conclude a long-awaited treaty that, if agreed, will govern the planet’s last lawless wilderness: the high seas.”

Two hundred nautical miles beyond the territorial waters and jurisdiction of nations, the high seas have been treated “recklessly”, according to environmental groups.

At the time, it said the outcome of the talks – which run until 26 August – would determine the fate of the ocean for generations, and urged world leaders to agree to an ambitious, legally binding treaty to protect marine life and reverse biodiversity loss.

“The high seas symbolise the tragedy of the commons,” said Marco Lambertini director general of WWF International. “Because it belongs to no one, it has been treated with recklessness and impunity. We need a common governance mechanism for our oceans to ensure that nobody’s waters become everybody’s waters – and everybody’s responsibility.”[7]

This attempt comes against the backdrop of the fact that only 1% of the open seas can be said to be protected. The media also brings to the fore that one hundred nations have pledged to protect 30% of the planet’s land and seas by 2030. But without an agreement, these commitments will have no legal basis in the high seas.

2. Status quo or the August 2022 talks

Since 2018, states from around the world have gathered at the UN for three two-week negotiating sessions. The fourth and final session, originally scheduled to take place from 23 March to 2 April 2020, was postponed to August 2021 and rescheduled again to March 2022 due to the COVID-19 virus.

During the negotiations, the High Seas Alliance (HSA) requested: 1) a strong legal framework for the designation, effective management and implementation of a network of protected areas, including marine reserves in areas beyond national jurisdiction (see HSA Recommendations on MPAs and Marine Reserves); 2) specific measures to ensure that environmental impact assessments are consistent, comprehensive, accountable and rigorous (see HSA Recommendations on EIA); 3) institutional arrangements that establish an overarching decision-making body, such as a Conference of the Parties (CoP), a scientific/technical committee, a compliance committee, a secretariat, dispute settlement arrangements, a clearing-house mechanism, and a financial mechanism (see HSA Recommendations for Institutional Arrangements).

These were the second attempt this year to reach agreement on the high seas. At a UN ocean conference in June, UN Secretary General António Guterres declared an “ocean emergency” and suggested that “selfishness” by some governments was hampering efforts to agree a high seas treaty. At the same conference in Lisbon, Rena Lee, chair of the Intergovernmental Conference on BBNJ (Biodiversity Beyond National Jurisdiction), told delegates, “Urge negotiators to come to the fifth session with maximum flexibility to reach the finish line.”

On 26 August 2022, the Intergovernmental Conference to elaborate a new treaty on marine biodiversity suspended its fifth session after delegates, using the latest “updated text of the agreement” circulated that morning as the basis for negotiations, needing more time, broke off their unceasing negotiations to seek a compromise. However, progress in the negotiations over the last period has been significant and the next round is expected.

There were some dissatisfactions with the organisational details of setting up small negotiating groups where participation was almost impossible. However, there is the intention to address these issues, there is a satisfactory level of transparency and inclusiveness so that the prerequisites for a fair and universal treaty are ensured.

The European Union has highlighted the provisions on genetic resources for which it has made proposals for financial benefit-sharing. 

3. Critical perspective on the draft Biodiversity Treaty

In general, with any treaty, the intention of the parties is to establish a particular legal regime appropriate to the subject matter of that treaty. Let us bear in mind that certain characteristics underpin all such instruments: treaties vary in terms of obligations (the extent to which states are bound by rules), precision (the extent to which rules are unambiguous) and delegation (the extent to which third parties have the authority to interpret, apply and formulate rules)[8].

Treaties serve as the primary sources of international law and have codified or established most international legal principles since the early 20th century, hence the growing importance of treaties as a source of international law and as a means of developing peaceful cooperation between nations, regardless of their constitutional and social systems[9]. Given all this, the expectations of international society from the biodiversity treaty are commensurate. This is also the argument that led some negotiating parties to draw attention to the absence of an international regime for the management of marine biodiversity, and the representative of Nepal, on behalf of landlocked developing countries, stressed the importance of a “common heritage of mankind”, a notion that is at the heart of much discourse and debate.  During the negotiations, the representative of Haiti stressed that for Haiti, the question of sharing should not be raised, but only the modalities should be defined. So there are still problems with the definition of terms.

It is clear that the negotiations are in fact at the stage of discussing the most important issue: the establishment of a comprehensive and unequivocal legal regime for the protection of marine biodiversity[10]. 10] This is also underlined by the Indonesian representative’s conclusion that this international regime must be the result of consensus. He recommended following the precedent set by the 1982 United Nations Convention on the Law of the Sea, which was adopted by consensus.  According to the negotiating documents, the same request was made by the Chinese delegate, who called for the adoption by consensus of the four topics included in the draft. It is recalled here that the negotiations address the topics identified in the package agreed in 2011, namely: 1) conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, in particular, jointly and in aggregate, marine areas with marine genetic resources, including benefit-sharing issues; 2) measures such as area-based management tools, including marine protected areas; 3) environmental instruments, environmental impact assessments; and 4) capacity building and transfer of marine technology.

 The representative of Turkey supported the importance of consensus, recalling that this process is open to all Member States, regardless of their status under the Convention.

In essence, as the preamble to the draft treaty shows, the most important issue is how the signatories will act as stewards of the oceans in areas beyond national jurisdiction on behalf of present and future generations.

How will the act of stewardship be carried out? How will it be implemented under this Convention? Article 20 of the updated draft text contains the following provisions:

“Implementation

1. The Parties shall ensure that activities under their jurisdiction or control that take place in areas beyond national jurisdiction are conducted in accordance with decisions adopted under this Part of the Agreement.
2. Nothing in this Agreement shall prevent a Party from taking more stringent measures with respect to its vessels or with respect to activities under its jurisdiction or control, in addition to those adopted under this Part, in accordance with international law.”

The second part of the document, regulates the issue of marine genetic resources, including issues of benefit-sharing, setting out specific objectives:

(a) to promote the fair and equitable sharing of the benefits arising from marine genetic resources in areas beyond national jurisdiction;

(b) to strengthen and develop the capacity of developing States Parties, in particular the least developed among them, landlocked developing States, geographically disadvantaged States, small island developing States, coastal African States and middle-income developing States, to collect in situ, access ex situ, including digital sequence information, and utilize marine genetic resources in areas beyond national jurisdiction;

(c) promote the generation of knowledge and technological innovation, including by promoting and facilitating the development and conduct of marine scientific research in areas beyond national jurisdiction in accordance with the Convention;

(d) promote the development and transfer of marine technology, respecting all legitimate interests, including, inter alia, the rights and obligations of holders, providers and recipients of marine technology.

The provisions of this Part shall not apply to the use of fish and other living resources as commodities, nor to fishing or fishing activities regulated under relevant rules of international law.

These targets were launched against the backdrop of the urgency highlighted by Greenpeace, which recalled that the oceans have lost 70% of sharks in the last 50 years, while over 100 marine species continue to be seriously threatened.  International organisations with a role in this area are calling for an agreement on a text to be reached by the end of 2022[11], especially as the 27th Conference of the Parties to the United Nations Framework Convention on Climate Change (COP27) will also take place this year.

Further, Article 66 of the draft contains the conditions under which a party may withdraw from the treaty, eliminating from the outset any attempt at exemption from liability: ‘withdrawal shall in no way affect the obligation of any party to perform any obligation embodied in this agreement to which it would be subject under international law independent of this agreement’.

In addition to these provisions, we find some deleted for reasons not fully known. This is the case for Article 27 of the draft, where provisions relating to Ecologically or Biologically Significant or Vulnerable Areas have been deleted. Some of these provisions have been included, moved to Art. 41a para. 2. For specialists, these would have been particularly important in the event that interpretation of certain terms was required. This is a signal of the intention to replace the definition of certain terms by the text of the Treaty itself, with the meaning of these terms being established in subsequent evaluations.

The references in the text to the content of Article 41a are important. What does this article contain and how does this content affect the application or effectiveness of the future convention?

Article 41a contains guidelines to be developed by the scientific and technical body created for this purpose.

The Scientific and Technical Body shall develop standards and guidelines for consideration and adoption by the Conference of the Parties relating to: (a) The non-exhaustive criteria for environmental impact assessments set forth in Article 24(2); (b) The assessment of the potential and possible] transboundary impacts of planned activities; (c) The determination of what constitutes confidential or proprietary, or confidential information pursuant to Article 34(7); (d) The required content of environmental impact assessment reports pursuant to Article 35; (e) The nature and severity of impacts that would require an additional environmental impact assessment report; and (f) The conduct of strategic environmental assessments.

The Scientific and Technical Body may also voluntarily develop standards and guidelines (guides or guidelines) for consideration and adoption by the Parties for the following: (a) A non-exhaustive indicative list of activities that normally require, or do or do not require, an environmental impact assessment that is regularly updated through consultation and collaboration with relevant Parties and relevant global, regional, subregional and sectoral, regional and subregional instruments and legal frameworks; (b) Assessment of cumulative impacts in areas beyond national jurisdiction and how these impacts will be taken into account in the environmental impact assessment process for planned or proposed activities; (c) Conducting environmental impact assessments in areas identified by other relevant global, regional, subregional and sectoral legal instruments and frameworks as requiring protection or special attention, in cooperation with these bodies.

4. Meaning of some terms

Biodiversity means, in a broad sense, the existence of a multitude of ecosystems with distinct characteristics across the globe, the maintenance of which guarantees life on Earth itself.

Biodiversity, a concept created in 1985, covers the genetic diversity of species and the diversity of ecosystems, and is seen as the living fabric through which we are both actors and dependent. It covers all natural environments and living organisms (plants, animals, fungi, bacteria, etc.) and all relationships and interactions between living organisms and between these organisms and their living environments. Biodiversity is essential to the functioning of ecosystems, forests, waters, coral reefs, soils and even the atmosphere, ensuring life on Earth. These ecosystems provide us with countless vital services for agriculture and soil regeneration, climate regulation and coastal protection, air and water quality, pollination, medicines extracted from nature, food, medicines and clothing, etc. Under pressure from human activity, natural environments and the species that inhabit them are in unprecedented dramatic decline. “Humans have caused the sixth major extinction crisis by massively accelerating the process of species extinction, the previous one being that of the dinosaurs 65 million years ago.” These findings, along with the five major causes of biodiversity damage are identified and detailed in the latest IPBES (Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services) report published in 2019:

• Destruction, degradation and fragmentation of natural environments linked in particular to increasing urbanisation, tourism development, expansion of agricultural land and development of transport, fishing, mining and logging infrastructure;
• Overexploitation of wild plant, timber or animal species and their products (overfishing and overhunting, deforestation, etc.) for local or international trade that encourages illegal trade in them;
• Water, land and air pollution of industrial or agricultural origin or for domestic use;
• Introduction of invasive alien species;
• Climate change, which, among other causes, is exacerbated by changes in the living conditions of species, forcing them to migrate or adapt their way of life, and some are unable to do so[12].

The draft convention is still subject to debate and negotiation on the meaning of some terms. These definitions have been particularly important in the interpretation of international law.  

Attempts are being made to establish the meaning of terms such as:  “ex situ access, including in the form of digital sequential information[13]”; “activity under the jurisdiction or control of a State[14]”; “area-based management tool[15]”; “areas beyond national jurisdiction” (meaning the high seas and the area); “biotechnology[16]”; “in situ collection[17]”; “cumulative impacts[18]”; “derived”; “environmental impact assessment[19]”; “marine genetic resources”; “marine protected area” (means a geographically defined marine area that is designated and managed to achieve specific long-term conservation of biodiversity and sustainable use); “marine technology” (we reproduce the meaning in the text because of its importance: means information and data, provided in a user-friendly form on marine science and related marine operations and services; manuals, guidelines, criteria, standards, reference materials; sampling and methodology, sampling and sampling equipment; observation facilities and equipment for in situ and laboratory observations, laboratory observations, analyses and experiments; computers and software, including models and modelling techniques; and expertise, knowledge, skills, technical, scientific and legal knowledge and analytical methods related to marine scientific research and observation); “strategic environmental assessment[20]”; “sustainable use” (means using the components of biological diversity in a way and at a rate that does not lead to a long-term decline in biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations); “transfer of marine technology” (means the transfer of tools, equipment, expertise, vessels, processes and methodologies needed to develop and use knowledge to improve the study and understanding of marine nature and resources); or “utilisation of marine genetic resources” (means conducting research into the development of the genetic and/or biochemical composition of marine genetic resources, including through the application of biotechnology).

5. Specific debates

Other issues discussed in the latest negotiations included questions on benefits management, the approach to monetary benefits, clarification of the modalities and roles of the relevant institutional arrangements, the issue of “commercialisation” in paragraphs 4 and 5 and how this would relate to Article 11, and last but not least the expectation of further analysis of the definitions of relevant terms.

On area-based management tools, including marine protected areas, discussions noted that these powers will not be exercised in a vacuum, and that the right assurances or safeguards need to be built into the text to ensure the transparency, coordination and cooperation necessary for a mutually supportive relationship between the agreement and the relevant international frameworks and bodies, rather than a conflictual one that could degrade the effectiveness of all involved, with an emphasis on paragraphs addressing how decisions of the Conference of the Parties will take into account national, sovereign jurisdictions.

The ocean plays a critical role in protecting the world from the climate crisis by absorbing carbon dioxide as well as 90% of the heat caused by warming. But sea levels, ocean warming, acidification and greenhouse gas concentrations all reached record levels last year (2021), according to the World Meteorological Organisation’s Global Climate Report, hampering the ocean’s ability to absorb carbon.

According to these sources, on 19.08.2022, the High Seas Alliance, a coalition of 50 environmental organisations, launched a “treaty tracker” to identify and mobilise states they say are acting slowly during negotiations. The alliance rates each state’s negotiating positions as “high”, “low” or “business as usual”.

The scale and ambition of this effort stems from the efforts of hundreds of thousands of people who have signed petitions urging all 193 nations to develop a strong treaty to protect the ocean. At least 49 countries, including the UK and the 27 EU countries, have committed to an ambitious outcome to the talks.

Among the key hurdles to reaching agreement is how the treaty, which will establish a new international body, will interact with other organisations. When the negotiations were first agreed by the UN general assembly, it was clear that the treaty should not undermine existing organisations. Liz Karan, project director of the open seas conservation programme at the Pew Charitable Trusts and an observer at the talks, wants to see the new body given powers to establish and monitor marine protected areas and a role in deciding whether an environmental impact assessment for planned activities on the high seas is sufficiently comprehensive before the work is carried out.

6. How is the future of the International Area of Submarine Spaces (Territories) projected?

The international area, or as it is more simply called: the zone, consists of the seabed and ocean floor and subsoil beyond the limits of national jurisdiction.

Among the general principles of activities in the ‘Area’ are: 1) the Area and its resources are inalienable and are the common heritage of mankind, and activities in the Area shall be carried out for the benefit of all mankind; 2) no State may claim sovereignty or sovereign rights over any part of the Area or its resources; 3) the use of the area shall be for exclusively peaceful purposes and shall remain open to peaceful use by all States without discrimination; and 4) States Parties to UNCLOS shall ensure that entrepreneurs possessing their nationality or nationality, or controlled by them, shall strictly observe the rules of the Convention concerning the exploitation of the resources of the area[21].

Today, in addition to the problems posed by delimitation, exploration and exploitation, the possibility of living underwater is also being discussed. We all remember the great explorer Jacques-Yves Cousteau. His nephew Fabien Cousteau has a new vision of how people can live and work in the ocean. He imagines that staying underwater for the long term could be made possible by building underwater habitats that look like homes, as opposed to sealed, submarine-like bubbles, which can raise new and specific issues of international law. According to recent press reports (March 2022), the project, called Proteus, would be a marine analogue of the International Space Station and would primarily house aquanauts, the equivalent of an astronaut in the ocean. Proteus Ocean Group, a private company that will operate and manage Proteus, recently signed an engineering, procurement and construction (EPC) contract with a firm that has experience creating hyperbaric and pressure vessels in the ocean environment. Much of what Proteus does in terms of the technology it explores is similar to space technology. Therefore, the rules of international law could be applied by assimilation or by the intervention of new regulatory treaties[22].This remains a research topic for future international law specialists.

As an institutional structure for the exploitation of the area’s resources, we note: The International Submarine Territories Authority (with an administrative role), the Enterprise (the operational entity for the management and exploitation of the area) and the Chamber for the Settlement of Disputes concerning Submarine Territories (with a dispute settlement role, part of the structure of the International Tribunal for the Law of the Sea)[23].

With regard to the Arctic and Antarctic, the following is noted: 1) The Arctic is the part of the frozen Northern Ocean that forms the ice cap around the North Pole (UNCLOS recognises the right of states bordering ice-covered areas to take, for distances of up to 200 miles, measures to protect and control pollution); and 2) Antarctica is the ice-covered continent around the South Pole, not subject to the sovereignty of any state, whose regime is governed by the 1959 Washington Antarctic Treaty (cooperation, peaceful use, denuclearisation and demilitarisation and prohibition of dumping of radioactive waste)[24].           

7. Conclusions

Heralded as the “Constitution of the Sea”, the Convention on the Law of the Sea entered into force in 1994, and as of June 2016, 168 Parties have acceded to the Convention. In addition, the Convention covers governance of the sea and related disputes.

What we are seeing today in the negotiations for a new biodiversity treaty is in fact what was intended from the outset: states have worked to achieve a “package” of mutually supportive agreements, rather than a single treaty with limited scope. They have sought to create a “comprehensive regime” dealing with all matters relating to the law of the sea. The LOSC was the embodiment of this desire and was to “establish true universality in the effort to achieve a ‘just and equitable international economic order’. governing ocean space.”[25]

The United Nations Convention on the Law of the Sea signed in Montego Bay in 1982 continues to codify and regulate concepts such as: the delimitation of marine spaces between neighbouring states, the rights of riparian states over the exclusive economic zone, the exploitation of the international zone of submarine territories, the fight against pollution, scientific research , and the creation of two new international bodies: the International Seabed Authority and the International Tribunal for the Law of the Sea.

New conventions relating to the marine environment were adopted in the 2000s, including one on anti-fouling systems (AFS 2001), another on ballast water management to prevent the invasion of alien species (BWM 2004) and another on ship recycling (Hong Kong International). In the 2000s, States also focused on maritime security with the entry into force in July 2004 of a comprehensive new security regime for international transport, including the International Ship and Port Facility Security (ISPS) Code, which became mandatory under the amendments to SOLAS adopted in 2002.

In 2005, the IMO adopted amendments to the Convention for the Suppression of Unlawful Acts (US) against the Safety of Maritime Navigation, 1988 and its related Protocol (the 2005 US Protocols), which, among other things, introduce the right for a State Party seeking to board a ship flying the flag of another State Party when the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship is, has been or is about to be involved in the commission of an offence under the Convention.

The focus on implementation continues, with the technical cooperation programme being a key component of the IMO’s work. The IMO Member State Audit Scheme, which became mandatory under a number of key IMO instruments on 1 January 2016, will increasingly play a key role in supporting effective implementation, providing an audited Member State with a comprehensive and objective assessment of how it is effectively administering and managing. implements those mandatory IMO instruments that are covered by the Scheme[26].

These efforts are to be joined by the new Convention on the Conservation and Sustainable Development of Marine Biological Diversity in Areas beyond National Jurisdiction. In this way, humanity’s common heritage stands a good chance of being protected and secured, with the Convention as the arm that has the noble role of saving it from danger. When will it be signed? How will it be implemented? Will its noble purpose overcome the blockages of financial interests? These are questions to be answered by future legal doctrine and practice.

Bibliography:

1.    Buga, Irina, “Modification of Treaties by Subsequent Practice”, Oxford, 2018, introductory chapter.

2. R. Miga Beșteliu, “Public International Law. Curs universitar”, Ed. C.H. Beck, 2015, p. 233.

3.    The Guardian of 15.08.2022, article entitled: “UN member states meet in New York to hammer out high seas treaty” and details here: https://press.un.org/en/oceans-and-law-sea , accessed 19.08.2022.

4.    Simmons, Beth , “Treaty Compliance and Violation”, in Annual Review of Political Science. 13 (1): 2010, pp. 273-296; and Abbott, Kenneth W.; Keohane, Robert O.; Moravcsik, Andrew; Slaughter, Anne-Marie; Snidal, Duncan, “The Concept of Legalization”, in International Organization. 54 (3), 2000, pp. 401-419.

5.    IPBES Report – Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, published in 2019 can be found here: https://ipbes.net/sites/default/files/downloads/spm_unedited_advance_for_posting_htn.pdf, accessed 20.09.2022.

R. Miga Beșteliu, op. cit. p. 227.

7.    Cristina Popa Tache, “Public International Law. Curs universitar”, Ed. C.H. Beck 2022.

8.    R. Miga Beșteliu, op. cit. p. 228.

9.    LOSC, Parts XI and XV; Koh, Tommy, A Constitution for the Oceans, Remarks of the President of the Third United Nations Conference on the Law of the Sea at the Conference at Montego Bay (December 1982),

10.  Bernardo Zuleta, “Introduction,” in The Law of the Sea, New York: The United Nations, 1983, pp. xix-xxvii.

11. https://www.imo.org/en/About/Pages/Default.aspx, accessed 18.08.2022.
12. https://www.popsci.com/technology/fabien-cousteau-proteus-underwater-international-space-station/, accessed 19.08.2022

[1] Cristina Elena Popa (Tache) – associate scientific researcher at the Institute of Legal Research of the Romanian Academy, cristinapopatache@gmail.com.

[2] The statement: “Nothing is agreed until everything is agreed” can be found in various international documents and in different treaties. It is also sometimes referred to as “principle”, “mantra”, “golden rule” or “legal principle”. In the Geneva Agreements it has been called the “standard principle”.

[3] With regard to the Biodiversity Treaty, which will be discussed as a draft in this article, I give the example of the representative of Samoa, who, speaking movingly on behalf of Pacific small island developing states, explained the vital importance of the negotiation process for his delegation.  The Pacific islands had come in good faith from far and wide, spending $260,000 to bring 24 people.  He explained how this represented a significant investment, arguing that these funds were not spent on roads, medicine or schools back home, but on travel to come “here”.

[4] See for details Buga, Irina, “Modification of Treaties by Subsequent Practice”, Oxford, 2018, introductory chapter.

[5] R. Miga Beșteliu, “Public International Law. Curs universitar”, Ed. C.H. Beck, 2015, p. 233.

[6] Since its founding in 2011, the High Seas Alliance (HSA), with its more than 40 non-governmental members and the International Union for Conservation of Nature, has worked to protect the 50% of the planet that is the high seas. As a region of the global ocean that lies beyond national jurisdiction, the high seas include some of the most biologically important, least protected and most threatened ecosystems in the world.

[7] See The Guardian of 15.08.2022, article entitled: “UN member states meet in New York to hammer out high seas treaty” and details here: https://press.un.org/en/oceans-and-law-sea , accessed 19.08.2022.

[8] See Simmons, Beth , “Treaty Compliance and Violation”, in Annual Review of Political Science. 13 (1): 2010, pp. 273-296; and Abbott, Kenneth W.; Keohane, Robert O.; Moravcsik, Andrew; Slaughter, Anne-Marie; Snidal, Duncan, “The Concept of Legalization”, in International Organization. 54 (3), 2000, pp. 401-419.

[9] Vienna Convention on the Law of Treaties signed in Vienna on 23 May 1969.

[10] This desire is included in the preamble to the draft treaty itself, as follows: “Emphasizing the need for the comprehensive global regime to better address the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction”.

[11] The call is also made by the International Union for Conservation of Nature and Natural Resources, the High Seas Alliance and the Deep Sea Conservation Coalition. 

[12] The IPBES – Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services report, published in 2019 can be found here: https://ipbes.net/sites/default/files/downloads/spm_unedited_advance_for_posting_htn.pdf, accessed 20.09.2022.

[13] Which can mean access to samples, data and information, including digital sequence information.

[14] Means an activity over which a State has effective control or exercises jurisdiction.

[15] A term on which there is still debate.  May mean an instrument, including a marine protected instrument, for a geographically defined area whereby one or more sectors or activities are managed to achieve specific conservation and sustainable use objectives in accordance with this Agreement, or shall mean an instrument, including a marine protected instrument, for a geographically defined area whereby one or more sectors or activities are managed to achieve, in accordance with this Agreement: (a) In the case of marine protected areas, conservation objectives; (b) In the case of other area-based management instruments, conservation and sustainable use objectives.

[16] Means any technological application that uses biology, biological systems, living organisms or derivatives thereof to make or modify products or processes for a specific use.

[17] With regard to marine genetic resources, it means the collection or sampling of marine genetic resources in areas beyond national jurisdiction.

[18] Means the incremental effects of a proposed activity under the jurisdiction and control of a Party, when added to the effects of past, present and reasonably foreseeable activities, or from the recurrence of similar activities, including climate change, ocean acidification and possible transboundary impacts, whether or not the Party exercises jurisdiction or control over such other activities; or could mean impacts on the same ecosystems resulting from different activities, including past, present or reasonably foreseeable past, present or reasonably foreseeable past, or from the recurrence over time of similar activities, including climate change, climate change, ocean acidification and related impacts.

[19] Means a process of assessing the potential environmental impacts, including cumulative impacts, of an activity with an effect on areas within or beyond national jurisdiction, taking into account, inter alia, interrelated social and economic, cultural and human health impacts, both beneficial, and negative impacts, or could mean a process of identifying, predicting and assessing the potential effects that an activity may have on the marine environment in the short, medium and long term, to take the necessary measures, including mitigation, to address the consequences of such an activity before it commences.

[20] It means a higher level assessment of assessment process that can be used in three main ways: (a) to prepare a development or resource use strategy for a defined area of land and/or ocean; (b) to examine potential environmental effects that may arise from or may impact the environmental plan, implementation of government policies, plans and programs; and ( c) to evaluate different classes or types of development projects so as to produce an overall picture of environmental management policy or design guidelines for classes or types of development. development. It may also mean the evaluation of likely environmental effects, including health effects, which includes determining the scope of an environmental report and preparing it, conducting public participation and consultation studies, and considering the environmental report and the results of public participation and consultation in a plan or program.

[21] R. Miga Beșteliu, op. cit. p. 227.

[22] The article was published in Popular Science in March 2022. See: https://www.popsci.com/technology/fabien-cousteau-proteus-underwater-international-space-station/, accessed 19.08.2022.  The article reports that the first unit will be installed off Curaçao, an island north of Venezuela, in a protected marine area about 60 feet deep. The team is seeking additional locations in Europe and the US for future stations – their goal is to create a network of them. They have already completed 3D mapping of the seabed around the general area where Proteus will be located.

[23] See Cristina Popa Tache, “Public International Law. University course”, Ed. C.H. Beck 2022.

[24] R. Miga Beșteliu, op. cit. p. 228.

[25] See:  LOSC, Parts XI and XV; Koh, Tommy, A Constitution for the Oceans, Remarks of the President of the Third United Nations Conference on the Law of the Sea at the Conference at Montego Bay (December 1982), and Bernardo Zuleta, “Introduction,” in The Law of the Sea, New York: The United Nations, 1983, pp. xix-xxvii. 

[26] The source of these details is the organisation itself, details of which can be found here: https://www.imo.org/en/About/Pages/Default.aspx, accessed 18.08.2022.