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Legal and Institutional Framework

The United Nations Convention on the Law of the Sea (UNCLOS) together with a wide-range of international and regional instruments, lays down the principles, rules, regulations, and norms for governing the uses of the ocean. Different legal regimes apply in ABNJ, namely the freedom of the high seas in the high seas and the common heritage of mankind in relation to the Area and its resources.

Video: What is the Law of the Sea

Considerable efforts have been made to advance conservation and sustainable use of BBNJ and that States have been active in addressing issues such as Illegal, Unreported and Unregulated (IUU) fishing, marine pollution as well as promoting scientific cooperation. Nonetheless, legal and implementation gaps remain that hamper efficient and effective management of ecosystems and resources in ABNJ. In particular, there is limited adoption of legally binding management measures outside those adopted in relation to fisheries, and little coordination between competent organisations. 

A number of agreements, conventions, international organisations and regulatory bodies are in place for the management of human activities in ABNJ. These include fishing, shipping, and the laying of submarine cables and pipelines, with new activities potentially on the horizon, such as the exploitation of deep seabed mineral resources. 

Main Organisations and Legal Agreements for the Conservation and Sustainable Use of BBNJ (Source: IASS, 2018) 

The asterisk denotes that some RFMO/As and RSPs do not have a mandate for ABNJ. The dotted lines towards the RFMO/As and RSPs denotes that some of them are established by the FAO/UN Environment, while other are independent. Soft law agreements included in this figure are: IOC-UNESCO, ‘IOC Criteria and Guidelines on Transfer of Marine Technology (CGTMT)’ (2003) (‘IOC Guidelines’); United Nations Food and Agriculture Organization, ‘International Plan of Action for the Management of Fishing Capacity’ (1999) (‘IPOA-Capacity’); United Nations Food and Agriculture Organization, ‘International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries’ (1999) (‘IPOA-Seabirds’); United Nations Food and Agriculture Organization, ‘International Plan of Action for the Conservation and Management of Sharks’ (1999) (‘IPOA-Sharks’); United Nations Food and Agriculture Organization, ‘International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing’ (2001) (‘IPOA-IUU’). The BBNJ agreement is currently being negotiated under the UN and the Mining Code is being developed under the ISA. 

Video: Legal status of the sea-bed and subsoil within and beyond national jurisdiction

When looking at the legal and institutional framework in the Abidjan Convention Region it is noted that: 

  • Member States within the region are diverse in terms of culture, language and available capacity; 
  • There exists varied and uneven participation in regional and global agreements, making it difficult to fully address BBNJ issues without an adequate legal basis or an institutional basis; 
  • Organisations within the region have varying and non-comprehensive or limited mandates to address issues related to BBNJ; 
  • There is limited cross-sectoral cooperation within the region, with individual organisations adopting their own principles, resolutions and recommendations for addressing BBNJ challenges. 
REPORT: Opportunities and Challenges to improve the Legal and Institutional Framework

States could also consider that the negotiation of a new BBNJ instrument is an opportunity to bring coherence to a fragmented governance regime, provide additional support for improved cross-sectoral cooperation and allow for the establishment or strengthening of regional integration mechanisms. The negotiation of a new agreement, therefore offers a mode by which to support and achieve many of the above mentioned options for strengthening regional ocean governance. 

Some preliminary ideas for options to strengthen the role of regional ocean governance for ABNJ are offered, including: 

  • Advancing cross-sectoral cooperation and coordination between organisations to ensure the implementation of the ecosystem based approach to manage marine resources and ensure conservation and sustainable use of BBNJ. Various options such as joint programmes, Memoranda of Understanding, and participation in events and could be a first step in building cooperation; 
  • Coastal States in the Southeast Atlantic could choose to implement a common approach or policy for the region on conservation priorities by championing flag State responsibility to impose regulations regarding areas or activities that are not currently covered by a competent management authority; impose stricter standards than required by a competent management authority; and provide regulation where the relevant Regional Fisheries Management Organisation (RFMO) or sectoral management body has not adopted measures; 
  • Challenges to cross-sectoral cooperation can be eased if more States in the region become parties to the key international and regional agreements, including a future BBNJ agreement. Indeed, such participation may be seen as a priority, as this would provide a shared basis for common action; 
  • Coastal States could form coalitions to promote mutual interest in specific BBNJ-related issues within existing processes and in the negotiations for a new treaty; 
  • States could promote conservation and sustainable use of BBNJ by voicing their views and proposing management actions at global and regional fora. States could, for example, make efforts to advance ecosystem based management within RFMOs by advocating that they put a greater emphasis on assessment of non-target species and management of bycatch; 
  • The expansion of efforts to coordinate on BBNJ issues by empowering regional seas programmes to consider ABNJ could support a coordinated, regional approach to conservation and sustainable management; 
  • A robust scientific basis and developed capacity for taking action could also be supported to ensure the establishment of conservation and management measures and ensure the complementarity of sectoral measures. 

Table alongside: List of Global and Regional Organisations with a Mandate in the Southeast Atlantic. Links to stakeholders are available here.