Reflecting on the Role of the Arctic Council vis-à-vis a Future International Legally Binding Instrument on Biodiversity in Areas Beyond National Jurisdiction

• Author: Vito De Lucia, Philip Peter Nickels
• Position: Norwegian Centre for the Law of the Sea
• Pages: 13-38

© 2020 Vito De Lucia & Philipp Peter Nickels. This is an Open Access article distributed under the terms of the Cre-

ative Commons Attribution-NonCommercial 4.0 International License (https://creativecommons.org/licenses/by-nc/4.0/),

allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors

are given credit, that the work is not used for commercial purposes, and that in the event of reuse or distribution, the terms

of this license are made clear.

Citation: Vito De Lucia & Philipp Peter Nickels. “Reecting on the Role of the Arctic Council vis-à-vis a Future International

Legally Binding Instrument on Biodiversity in Areas Beyond National Jurisdiction” Arctic Review on Law and Politics,

Vol. 11, 2020, pp. 189–214. http://dx.doi.org/10.23865/arctic.v11.2554

Arctic Review on Law and Politics

Vol. 11, 2020, pp. 189–214

189

*Correspondence to: Vito De Lucia, email: vito.delucia@uit.no

Peer-reviewed article

Reecting on the Role of the Arctic

Council vis-à-vis a Future International

Legally Binding Instrument on

Biodiversity in Areas Beyond National

Jurisdiction

Vito De Lucia* and Philipp Peter Nickels

Norwegian Centre for the Law of the Sea, UiT The Arctic University of Norway

Abstract

Negotiations are ongoing to develop an international legally binding instrument (ILBI) under the

United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustain-

able use of marine biological diversity in areas beyond national jurisdiction (BBNJ). If adopted,

the ILBI will likely apply to parts of the Arctic Ocean where the Arctic Council has played an

important role for ocean governance. This begs the question of what role the Arctic Council will

play vis-à-vis a future ILBI, which is envisioned to “not undermine existing relevant legal instru-

ments and frameworks and relevant global, regional and sectoral bodies” (UN General Assembly

Resolution 72/249). Against this backdrop, this article reects on the future relationship between

the Arctic Council and the ILBI. In so doing, the article initially discusses possible meanings of

the notion of not undermining and, more broadly, how the ILBI will likely determine its insti-

tutional relationship with relevant bodies for BBNJ. Based on that, the article provides a short

overview of the role of the Arctic Council in Arctic Ocean governance and explores whether the

Arctic Council would qualify as a relevant regional body that shall not be undermined by the

future ILBI.

Keywords: Arctic Council, biodiversity, areas beyond national jurisdiction, Law of the

Sea, BBNJ

Responsible Editor: Øyvind Ravna, Faculty of Law, UiT The Arctic University of

Norway, Tromsø, Norway

Received: August 2020; Accepted: October 2020; Published: December 2020

Vito De Lucia & Philipp Peter Nickels

190

1 Introduction

The question of the conservation and sustainable use of marine biodiversity in areas

beyond national jurisdiction (BBNJ) has been under discussion for over 15 years. The

existence of relevant legal gaps for the governance of areas beyond national jurisdic-

tion (ABNJ),1 and the related urgent need to develop norms and mechanisms aimed

at protecting such vulnerable marine ecosystems was already recognised within the

UN institutional setting during the 2003 meeting of the UN Open-ended Informal

Consultative Process on Oceans and the Law of the Sea (UNICPOLOS).2

This was followed by the decision of the United Nations General Assembly

(UNGA) in 2004 to establish an Ad Hoc Open-ended Informal Working Group to

study issues relating to the conservation and sustainable use of BBNJ.3 This deci-

sion initiated what is now commonly referred to as the BBNJ process, which went

through a preliminary4 and a preparatory5 phase before the UNGA launched a for-

mal intergovernmental conference (IGC) on 24 December 2017.6 The IGC has a

mandate to address, “together and as a whole,” four substantive topics: (i) marine

genetic resources (MGRs), including questions concerning the sharing of benets;

(ii) measures such as area-based management tools (ABMTs), including marine

protected areas (MPAs); (iii) environmental impact assessments (EIAs); and (iv)

capacity-building and the transfer of marine technology.7

The aim of the IGC is to develop an “international legally binding instrument

under the United Nations Convention on the Law of the Sea on the conservation

and sustainable use of marine biological diversity of areas beyond national juris-

diction” (ILBI).8 While the BBNJ negotiations represent an impor tant opportunity

“to promote a dynamic, inclusive, and adaptive approach to oceans governance,”9 it

was also stressed that “a major concern in negotiating the ILBI is the avoidance of

the potential for fragmentation of the law and decision-making procedures.”10 And

indeed, one key problem is how to integrate the future ILBI within an already crowded

global and regional normative landscape, where many instruments, frameworks and

bodies operate with complementary, overlapping and sometimes competing man-

dates. In this respect, UNGA, in setting out the mandate of the IGC, reafrmed that

“the work and results” of the IGC “should be fully consistent” with the provisions of

the United Nations Convention on the Law of the Sea (UNCLOS).11 Additionally,

and this is the central focus of this article, UNGA recognised that “this process and

its result should not undermine existing relevant legal instruments and frameworks

and relevant global, regional and sectoral bodies.”12

The notion of not undermining, which appeared, in that particular formulation,

rather late in the BBNJ process,13 and the problem of its interpretation is in many

ways an important point of disagreement between countries that support a global

approach to BBNJ governance, and those which, by contrast, favour a regional

model. Despite the introduction of a third alternative – referred to as the hybrid

approach14 – that should bridge these divergent points of view into a compromise