The Ship Has Reached the Shore: The New BBNJ Draft Convention and its Significance for the Global South

By Raas Nabeel, Research Associate at the Research Society of International Law (RSIL), Pakistan. He is an LL.M of International Law graduate from the University of Cambridge, a Hons BA-LL.B above)Lahorehe Lahore University of Management Sciences (LUMS). In addition to environmental law, Nabeel is a professor of research only in global international, global, human rights and international public law.

The brand-new Draft Convention on protecting marine biodiversity in zones that are not under the jurisdiction of a nation (‘BBNJ Draft Convention’) is a significant achievement by the international community. It establishes a legal framework for marine life that extends beyond any state’s territorial boundaries, imposing obligations for all states to safeguard the high oceans and the biodiversity of its inhabitants. It is essential to study the specifics contained in the Draft Convention and its significance to those in the Global South.

Theoretical Underpinning

The latest BBNJ Draft Convention refers explicitly to the ‘principle of the common heritage of all humanity in Article 5(b). Prior to this it was the United Nations Convention on the Law of the Sea, 1982 (‘UNCLOS’) propagated for freedom of the high seas’ that prevented States from asserting territorial sovereignty over the seas above. But, they could claim sovereign rights over discovery made by the oceans without obligation to benefit from any exploration or research activities. [1] In the BBNJ Draft Convention, the high seas are controlled by a new law that would allow international cooperation in the following four areas:

Capacity building and transfer of technology;

Area-based management techniques;

Environmental impact assessment Assessments of ecological impact

A fair and equitable share of the benefits from ocean genetic resources.

Capacity construction and transfer of technology

In Article 43, the Draft Convention obliges States to cooperate in ensuring capacity-building and the development as well as the transfer of knowledge and technology.'[2Each Party is accountable for the resources they can afford to offer for capacity development and transfer of technology within their capabilities, thus making this a requirement primarily for advanced States.[3This could include collaboration in knowledge, infrastructure, and research capacities for managing resources in advancing “technical and scientific, research and development technology and research and development technology,’ among others.[4Although the conference of the Parties will determine the specifics, a financial mechanism is set up in Part VII of the Convention as the specific mechanism for capacity development and technology transfer.

It was agreed that the Global North and Global South differed over whether this should be non-monetary or monetary, whether the contributions should be a requirement for the Global North States, or whether they should be voluntary contributions. After the discussions, it was decided that it was the responsibility of more capable States to offer technical and financial aid to the developing States to narrow the gap in technology and science between developing and developed states.’ [55. Therefore, the contributions to the capacity-building and technology transfer financial mechanism should include technological expertise, infrastructure, and information. This guarantees substantial investments in marine technology within the Global South, rather than the Global North States providing financial aid that may not directly invest in marine technology.

It is worth noting that the use of “shall” throughout Section V in the Draft Convention indicates that capacity building and technology transfer is required for developed countries to support the developing states’ parties. The progress of the obligations is to be reviewed and monitored regularly by a special capacity-building and transfer committee for marine technologies at the next COP. [6] This means that this Draft Convention balances the capabilities of developed countries in conjunction with the necessity of international cooperation to assist developing countries to comply with the requirements of the Convention.

Assessments of the environmental impact

This Draft Convention obliges Parties to examine their operations’ potential effects on high seas marine ecosystems before being authorized. [7] The COP will set the guidelines for conducting environmental impact studies, and the Convention offers the basic procedures for carrying them out under Article 30. First, the State Party wishing to undertake activities on the high seas should perform a screening of their actions if they are believed to have more than minor or temporary’ impacts in the ocean. [8] If it is expected to cause “substantial pollution or significant, harmful changes on the ocean’s environment’ [9], An environmental impact assessment has to be conducted following the procedures that are described in Article 30.

During negotiations, there were differences between who was responsible for deciding whether to conduct an environmental impact assessment or not, as well as the criteria for conducting such assessments. The present Convention is a creation of a Scientific and Technical body that will “consider and evaluate” [1010 the reports on environmental impact assessments making sure they comply with the guidelines set out by the Convention and other procedures accepted in the COP. The Body must assess the reports in accordance with tradition-based knowledge by highlighting the contributions from Indigenous Peoples that this Convention is a strong call to increase inclusion of Global South.

The supervision and regulation for environmental impact assessment is a crucial step in protecting the interest of those in the Global South, especially in the case where proposed activities are being conducted within the waters that border those of the territories of Global South states. Additionally, the Convention stipulates sharing environmental impact assessment reports via the clearinghouse mechanism. This will increase accountability and transparency as reports prepared by States will be accessible to other States Parties to critique and provide feedback on. It will also enable other States to obtain instructions on how to carry out environmental assessments in their own actions.


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