This article, authored by Withers' Lauren Bursey, was originally published on April 17, 2020 on the International Bar Association website.
On 10 December 1982, the Third United Nations Conference on the Law of the Sea adopted the United Nations Convention on the Law of the Sea (UNCLOS). This was a monumental achievement which codified the rights and responsibilities of nations with respect to their use of the world’s oceans. Now, more than 30 years on, states are negotiating a new treaty under the UNCLOS framework to protect biodiversity in the high seas. Withers Worldwide is assisting our pro bono client, the High Seas Alliance, in its advocacy with states and other stakeholders for the development of this new treaty. In this article, I share some reflections on the ongoing treaty negotiations at the United Nations in New York from the perspective of a junior member of our pro bono team.
From UNCLOS to the BBNJ Treaty
Covering dozens of subjects and issues, UNCLOS is widely considered ‘the constitution of the ocean’. However, while UNCLOS codified a foundational framework for governance of the seas, it did not go far enough to prioritise conservation or sustainable use of marine resources in areas beyond national jurisdiction, often referred to as the high seas. The high seas, for the purposes of the new treaty, includes the water column above the seabed, which is not exactly equivalent to merely the area beyond national jurisdiction. For example, UNCLOS did not establish any legally binding mechanisms for establishing marine protected areas outside states’ territorial seas, for undertaking environmental impact assessments for activities in or affecting the high seas, for benefit-sharing of marine genetic resources located beyond national jurisdiction, or for capacity building and technology transfer in relation to these remotest areas of the oceans. Now, a new treaty aims to fill this gap, at a time when overfishing, climate change, deep-seabed mining, shipping and other human activities continue to have a negative impact on the high seas’ biodiversity.
After over a decade of discussions and negotiations at the United Nations, including United Nations General Assembly (UNGA) Resolution 69/292 that laid the groundwork for the preparatory committee, on 24 December 2017, the UNGA adopted Resolution 72/249 that launched the development of a new legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (the 'BBNJ Treaty'). An intergovernmental conference of states (the IGC) has met three times since September 2018, to negotiate this treaty in the hopes of creating a new, binding framework to govern the high seas. The fourth and final session of the ICG was scheduled to take place at the UN Headquarters in New York from 23 March to 3 April 2020, but was postponed due to Covid-19.
Withersworldwide’s pro bono work with the High Seas Alliance
Led by partner Emma Lindsay in New York and spanning our New York, London and Milan offices, the Withers pro bono team became involved in the BBNJ Treaty process as pro bono legal advisors to the High Seas Alliance (the HSA) in early 2019, in advance of the third IGC session in August of that year. The HSA is an association of approximately 40 non-governmental organisations and the International Union for Conservation of Nature which has been working to ensure that the BBNJ Treaty results in robust and effective conservation measures that address gaps in current ocean governance. Withers is assisting the HSA in its advocacy with states and other stakeholders for the development of the BBNJ Treaty and advises on issues of public international law and domestic legal frameworks relevant to the ongoing treaty negotiations.
My Withers colleague Jovana Crncevic and I attended the third session of the IGC in August 2019 to provide on-the-ground assistance to the HSA at the UN. The third session of the IGC was different from the previous two sessions in that it was the first at which draft text of the BBNJ Treaty was presented and negotiated by states, thereby helping to focus the substance of discussion on particular formulations and their legal effect. A central tension at the third session of the IGC existed between those states that viewed the BBNJ Treaty as an opportunity for a monumental new agreement to govern the high seas, with a governance structure that will supersede any authority that currently exists, and those states that advocated for maintaining the status quo, especially where there are already existing regional or sectoral bodies which may have the same or similar functions as those proposed for the BBNJ Treaty.
Three personal observations on the UN treaty negotiation process
As a junior associate on the Withers team, this pro bono project has been my first opportunity to engage with an international advocacy group and to be privy to the state-to-state negotiations of an international agreement. I came away from the third session of the IGC with three personal observations.
First, governments – and, indeed, the civil society organisations that engage with them – are not monolithic and their interests can pull in different directions. Second, the international community really is just that: a group of actors for whom many years of working together have bred familiarity and understanding, if not always agreement. And third, how valuable civil society can be to help share expertise and build capacity for the participating state delegations.
On one of my days attending the IGC, I sat in on an informal meeting among the HSA and negotiators from two states. The negotiators explained some of the challenges that they faced in representing their states, since different interests can come to the fore depending on who is representing the state at the negotiating table. For example, a coastal state may have a representative from its Ministry of Fisheries in the room one day, who might emphasise the need to ensure that commercial fishing is allowed to continue at current levels and not be curtailed by BBNJ Treaty provisions promoting environmental conservation. Another day, the same state may be represented by an official from the Ministry of the Environment, who might emphasise conservation-related concerns. I returned to the plenary sessions with a growing awareness of the impact that different negotiators with different interests can have in approaching the same issues while representing the same country. This dichotomy showed that governments are not always uniform in their approach; state policy is not necessarily the same across multiple agencies. This reality not only poses challenges for that state when negotiating, but also for other states and advocacy groups who try to marshal their resources to the best use in a limited time and, therefore, often attempt to categorise states as either for or against their positions.
In a 1999 speech on the meaning of ‘international community’, the then UN Secretary General Kofi Annan, explained that in the broadest sense, ‘there is a shared vision of a better world for all people, as set out, for example in the United Nations Charter …[t]ogether, we are stronger.’ The third session of the IGC was a perfect example of that common vision, nurtured within the framework of international law. On an individual level, several of the IGC delegates knew each other and had worked together over the span of many years on both the BBNJ Treaty and other earlier environmental agreements. While friendship and acquaintance obviously make the long days of negotiating, caucusing and deliberating more enjoyable, they also highlight potential consistency across the international environmental legal regime. The drafting of the BBNJ Treaty has been heavily based on prior international agreements, in the drafting of which many of the delegates at the IGC previously participated. Where there is such continuity of delegates, there is a greater chance that the agreements in a particular field of international law will work in sync, but also that the agreements will be very similar, which in turn risks inhibiting innovation and impeding new ideas.
Finally, the HSA’s work in connection with the third session of the IGC demonstrated how the activities of civil society in this diplomatic space can help build capacity and provide an opportunity for states’ delegates to develop their views with the benefit of specialised knowledge. During the IGC, the HSA was a powerful force in mobilising expertise for delegates, playing an important role in advising delegates on relevant scientific and legal concepts as they relate to the high seas. Along with other civil society organisations in attendance at the IGC, the HSA organised sessions with scientists, celebrities and activists to share information with states’ delegates about the state of our oceans and the need to protect biodiversity, drafted fact sheets and briefing materials, hosted gatherings among states’ delegates and academics, and contributed tirelessly to the negotiating discussions.
As Withers’ pro bono work with the HSA on the BBNJ Treaty continues, my knowledge and understanding of the realities of creating international law and the role of civil society in that process also will continue to grow. I remain passionate about providing legal services pro bono for such an important cause, while also benefiting from applying the skills learned in this pro bono representation to my work as an associate for other Withers clients.