Protecting marine biological diversity in the South China Sea

Link for article at The Jakarta Post: https://www.thejakartapost.com/opinion/2023/11/21/protecting-marine-biological-diversity-in-the-south-china-sea.html

"[W]hen we see the Earth from space, we truly appreciate that we live on a blue planet. [...] Sadly, we have taken the ocean for granted, and today we face what I would call an Ocean Emergency."

This statement, by the United Nations Secretary-General during the UN Ocean Conference Youth and Innovation Forum in Lisbon on June 26, 2022, sent an alarm about three worsening dimensions in today’s Anthropocene era: the oceans, climate and biodiversity.

The remarks relate to an Agreement under the UN Convention on the Law of the Sea (UNCLOS) on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement), which was recently adopted after nearly two decades of negotiations. Having been open for signature since Sept. 20, it is the first international legally binding instrument to protect marine biodiversity of areas beyond national jurisdiction (ABNJ).

From the international environmental law perspective, the agreement provides more recent principles and innovative concepts to meet the challenges of "ocean-climate-biodiversity". It offers a facilitative and catalytic approach that focuses on ensuring the present and long-term conservation and sustainable use of the marine biodiversity of ABNJ.

Contentious issues marked the negotiations before the agreement was adopted (Efthymios Papastavridis, 2020). This is not surprising, considering how the Agreement presents itself as a 'package deal', consolidating the two worlds: developed and developing, the Global North and South.

There are four elements to the 'package': (1) marine genetic resources (MGRs), including the fair and equitable sharing of benefits, (2) measures such as area-based management tools (ABMTs), including marine protected areas (MPAs), (3) environmental impact assessments (EIAs) and (4) capacity-building and the transfer of marine technology (CB&TT).

The BBNJ Agreement has yet to establish 'a robust and effective implementation mechanism' (Papastavridis, 2020), leaving a pile of demanding assignments to the Conference of the Parties (CoP). This means the CoP plays a detrimental role in the effectiveness of the BBNJ Agreement implementation.

In this context, it remains unclear whether the BBNJ Agreement can be effectively enforced in disputed waters, such as the South China Sea (SCS). The multifaceted disputes in the region have made it the most complicated and disputed of all territorial maritime regions in the world (Keyuan Zou, 2015).

This leads to one basic question: Is there even any ABNJ in the SCS? If so, where is it? Conveniently connecting the Indian and Pacific Oceans through its international straits, the SCS is a semi-enclosed sea, surrounded by eight littoral states: Brunei Darussalam, Malaysia, Indonesia, the Philippines, Singapore, Thailand, Vietnam and China.

From the latest draft of the International Hydrographic Organization, the SCS covers a vast area of waters stretching from Teng-lou Chiao along China’s coast in the north to Natuna Island of Indonesia in the south and from Amianan Island of the Philippines in the east to Mui Bai Bung of Vietnam in the west (the common limit with the Gulf of Thailand).

By the Permanent Court of Arbitration Award 2016, China’s 'nine-dash line' (or now ten-dash-line) claims to historic rights or other sovereign rights or jurisdiction in the maritime areas of the SCS are contrary to UNCLOS.

As a result, this makes ABNJ in the SCS extremely wide.

Unfortunately, China has never accepted the Award and has continued to do exploration and exploitation activities in the disputed SCS waters.

On the first element, MGRs may have been the most contested issue during the negotiations of BBNJ Agreement and were mostly discussed behind closed doors. MGRs are very strategic, having a larger potential for significant discoveries and valuable innovations in the pharmaceutical, food and renewable sectors.

The BBNJ Agreement stipulates that activities related to MGRs "are in the interests of all States and for the benefit of all humanity, [...] taking into particular consideration the interests and needs of developing States".

However, although the Agreement aims to maintain the integrity of ocean ecosystems and conserve the inherent value of biodiversity of ABNJ, fishing, fish and other biological resources as a commodity are excluded from MGRs. This exclusion relates to the "not undermining" provision in the BBNJ Agreement, stating that its interpretation and application do not undermine UNCLOS or other relevant legal instruments.

Such a provision may trigger more problems in the SCS. In the context of marine biodiversity, the SCS is Asia’s largest marine ecosystem and one of the top five most productive fishing zones in the world (Rashid Sumaila, 2019). It is sometimes called the second "Persian Gulf" because of its enormous oil and gas reserves (Zou, 2015). Sadly, the SCS is severely underprotected, with large areas of its high seas mostly unregulated. To date, there has been no single Regional Fisheries Management Organization (RFMO) that governs the region.

This is exacerbated by the fact that Brunei, China, Malaysia and Singapore have yet to ratify the UN Fish Stocks Agreement, exempting the SCS from strategic governance. Therefore, if extraction activities, including unregulated fishing, are intensified in the SCS, the implementation of the BBNJ Agreement will be adversely affected.

Regarding the second elements which is about ABMTs, the adoption of the BBNJ Agreement is regarded as having commenced a new era for ocean governance. It is inextricably linked with the 30x30 target, which aims to conserve 30 percent of the earth’s land and sea, set by the recently adopted Kunming-Montreal Global Biodiversity Framework under the Convention on Biological Diversity, particularly on establishing MPAs and other effective area-based conservation measures.

On the other hand, China’s massive interest in fisheries and mineral resources activities and pending maritime delimitations by some littoral states in the SCS are causing geopolitical tensions to escalate. Therefore, a discussion of establishing MPAs in the center of the SCS could be very challenging.

The establishment of MPAs in the SCS is also compromised, considering the negotiations for the Code of Conduct (CoC) of ASEAN-China in the SCS. In their most recent meeting in September of this year, the participating states reaffirmed the need to exercise self-restraint in the conduct of activities that would complicate or escalate disputes. Calling only for self-restraint in the SCS shows a lack of seriousness that lends to an apathetic spirit in the matters of conservation and the sustainable use of the BBNJ Agreement. This may foil efforts to establish MPAs in the SCS.?

The interpretation and application of the BBNJ Agreement will most likely be dominated by national interests, which can be intensely conflicting if there is a dispute over maritime boundaries. In the SCS region, cooperation among ASEAN member states and China through the CoC framework can be seen as dubious when it comes to the enforcement of the BBNJ Agreement.

In conclusion, until further agreements are made through the CoP, it is unlikely that MPAs within the SCS can be established at all. Even then, the CoP is obliged to adopt every decision by consensus, making it longer for any contentious issue to be settled.

But if we are to address the "ocean emergency", then it is time to execute the emergency protocol to save our oceans. As the old wisdom goes, "desperate times call for desperate measures".

?***

The writer is program director for maritime security and access to justice at the Indonesia Ocean Justice Initiative (IOJI). The views expressed are her own.