third objective of the CBD is intrinsically linked with the issue of MGRs, which is
one of the elements of the 2011 package. Yet, since the CBD is widely ratified
59 and,
as portrayed above, covers a broad range of activities, through the Convention text
and other related instruments, one could ask whether there really is a need for an
ILBI, and whether the CBD is not already enough for ensuring biodiversity conservation. Why adopt yet another instrument dealing with the same issues, and potentially contributing to treaty fragmentation?
60
One important reason lies in the debate surrounding the CBD’s scope of application to ABNJ. Article 4 of the CBD states that the Convention does cover the
components of biodiversity, i.e. the biological resources, in areas within national
jurisdiction (paragraph a). In ABNJ, the Convention applies only to processes and
activities carried out (paragraph b). It is most likely because of (marine) genetic
resources that components of biodiversity in ABNJ were not directly included in the
text of the article, as the access to and use of these resources is subject to the
everlasting debate on whether the freedom of the high seas or the common heritage
of humankind principle should apply.
61
In fact, it is the practical impact of this distinction between the two paragraphs of
Article 4 that triggers the debate. One interpretation argues that there is no real
distinction in the scope of application of the CBD; indeed “these distinctions are in
some way arbitrary since the components of biological diversity are necessarily
affected by human processes and activities.”
62 Consequently, since processes and
activities in ABNJ are covered under the CBD, their potential impacts on components of biodiversity in these areas are also covered. Another interpretation is
supported by the different language used by the drafters in the two paragraphs,
which reinforces a distinction in their meaning. According to such interpretation,
while all obligations of the CBD are applicable in areas within national jurisdiction,
only the obligations covering activities and processes are applicable in ABNJ. These
obligations do refer to the responsibility not to cause environmental damage, to
cooperate, and to identify activities which have or are likely to have significant
adverse impacts on biodiversity.
63 However, these obligations remain broadly
phrased and lack specificity. Further, in practice, while the role of the CBD in
providing scientific and technical assistance and advice with respect to MPAs in
ABNJ has been clearly expressed by the conference of the parties,
64 the CBD
remains an instrument of support only, as the UNGA retains the main role in
addressing issue relating to conservation and sustainable use of BBNJ.
65 This debate
59 196 parties have ratified as of 13 December 2018.
60 Caddell (2016).
61 Millicay (2018), pp. 172–173.
62 Glowka et al. (1994), p. 27.
63 CBD (1992), Arts 3, 5, 7(c) and 8(l). See also Robinson and Kurukulasuriya (2006), pp. 226–227.
64 CBD COP Dec X/29 (2010), para 24; CBD COP Dec XI/17 (2012), preamble; Gjerde and
Rulska-Domino (2012), pp. 360–361; Wright et al. (2018), p. 23.
65 COP 13 XIII/12 (2016), preamble; COP 12 XII/22 (2014), preamble.
362
C. Blanchard et al.
one of the elements of the 2011 package. Yet, since the CBD is widely ratified
59 and,
as portrayed above, covers a broad range of activities, through the Convention text
and other related instruments, one could ask whether there really is a need for an
ILBI, and whether the CBD is not already enough for ensuring biodiversity conservation. Why adopt yet another instrument dealing with the same issues, and potentially contributing to treaty fragmentation?
60
One important reason lies in the debate surrounding the CBD’s scope of application to ABNJ. Article 4 of the CBD states that the Convention does cover the
components of biodiversity, i.e. the biological resources, in areas within national
jurisdiction (paragraph a). In ABNJ, the Convention applies only to processes and
activities carried out (paragraph b). It is most likely because of (marine) genetic
resources that components of biodiversity in ABNJ were not directly included in the
text of the article, as the access to and use of these resources is subject to the
everlasting debate on whether the freedom of the high seas or the common heritage
of humankind principle should apply.
61
In fact, it is the practical impact of this distinction between the two paragraphs of
Article 4 that triggers the debate. One interpretation argues that there is no real
distinction in the scope of application of the CBD; indeed “these distinctions are in
some way arbitrary since the components of biological diversity are necessarily
affected by human processes and activities.”
62 Consequently, since processes and
activities in ABNJ are covered under the CBD, their potential impacts on components of biodiversity in these areas are also covered. Another interpretation is
supported by the different language used by the drafters in the two paragraphs,
which reinforces a distinction in their meaning. According to such interpretation,
while all obligations of the CBD are applicable in areas within national jurisdiction,
only the obligations covering activities and processes are applicable in ABNJ. These
obligations do refer to the responsibility not to cause environmental damage, to
cooperate, and to identify activities which have or are likely to have significant
adverse impacts on biodiversity.
63 However, these obligations remain broadly
phrased and lack specificity. Further, in practice, while the role of the CBD in
providing scientific and technical assistance and advice with respect to MPAs in
ABNJ has been clearly expressed by the conference of the parties,
64 the CBD
remains an instrument of support only, as the UNGA retains the main role in
addressing issue relating to conservation and sustainable use of BBNJ.
65 This debate
59 196 parties have ratified as of 13 December 2018.
60 Caddell (2016).
61 Millicay (2018), pp. 172–173.
62 Glowka et al. (1994), p. 27.
63 CBD (1992), Arts 3, 5, 7(c) and 8(l). See also Robinson and Kurukulasuriya (2006), pp. 226–227.
64 CBD COP Dec X/29 (2010), para 24; CBD COP Dec XI/17 (2012), preamble; Gjerde and
Rulska-Domino (2012), pp. 360–361; Wright et al. (2018), p. 23.
65 COP 13 XIII/12 (2016), preamble; COP 12 XII/22 (2014), preamble.
362
C. Blanchard et al.