EcoPerspectives Blog
The Potential Contribution of the BBNJ Agreement to Strengthen Environmental Protection in the Development of Marine Renewable Energy Technologies in Areas Beyond National Jurisdiction
By Dr. Carlos Soria-Rodriguez, Marie Skodowska-Curie Postdoctoral Fellow, University of Jaén, Spain & Associate Fellow, Vrije Universiteit Brussel, Belgium
April 5, 2023
Nearly two-thirds of the global ocean and almost half of the planet are marine areas beyond national jurisdiction (ABNJ). These maritime spaces, which are comprised by the Area and the high seas, present an extraordinary potential for the development of the marine renewable energy (MRE) industry not only for economic reasons but also to provide energy security and as a tool to mitigate the effects of climate change. However, the deployment of MRE technologies can also have impacts on the environment in ABNJ which require to be considered and regulated in advance in order to guarantee that they are developed in a sustainable way. The objective of this post is to highlight the potential of the Biodiversity Beyond National Jurisdiction (BBNJ) agreement to strengthen the framework for the protection of the environment in the development of MRE technologies in ABNJ.
The importance of ABNJ and the need to protect them
ABNJ are essential for life and the development of human activities. These spaces are key for the regulation of the global climate and temperature, host multiple habitats for many species as well as provide essential resources and economic and non-economic services, including food through fishing and the transports of goods through navigation, among others. However, the exponential growth and unsustainable development of human activities are putting at risk the marine ecosystems and its functions. Pollution from different sources as well the rising greenhouse gas emission levels are some of the main drivers of the degradation of marine ABNJ. It is therefore essential to strengthen the efforts for the protection and conservation of these maritime spaces.
The governance of ABNJ and the BBNJ negotiations
ABNJ and the activities that are managed in these spaces, including the protection of the environment, are mainly, but not exclusively, regulated under the framework provided by the United Nations Convention on the Law of the Sea (UNCLOS). In order to strengthen the governance of ABNJ and the protection of the biodiversity in these spaces, the United Nations General Assembly adopted in December 2017 a resolution to begin negotiations on an international legally binding instrument for the conservation and sustainable use of marine biodiversity in ABNJ under UNCLOS. The BBNJ negotiations started in April 2018 and the new instrument was agreed on 4 March 2023. The BBNJ treaty addresses four main topics, namely marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impacts assessments (EIAs), and capacity-building and the transfer of marine technology.
The potential impact of the BBNJ agreement for the protection of the environment in the development of MRE technologies in ABNJ
The BBNJ agreement, and specifically the regulation on area-based management tools and the EIA under this instrument, can potentially strengthen the framework for the protection of the environment in the development of MRE technologies in ABNJ. On one hand, the regulation of area-based management tools and the development of a system for designation of marine protected areas in ABNJ can contribute to provide more specific regulation on how to coordinate activities in these spaces as well as identify vulnerable and ecologically sensitive areas which require protection and where activities that can pose threats are prohibited or limited. This could help to prevent the placement of MRE technologies on vulnerable sites. On the other hand, the regulation of the EIA under the BBNJ agreement can contribute to strengthen the existing EIA obligations under UNCLOS Articles 204-206 and establish essential elements such as the content of the obligation to conduct the EIA, the consideration of activities for which the EIA is required as well the stages to be considered during the process or the impacts to evaluate, among other elements. This can strengthen the protection against the environmental impacts associated with the deployment of MRE technologies. That being said, the development of MRE projects is not specifically considered as an activity subject to the EIA under the BBNJ agreement, which maybe should be reconsidered.
Acknowledgement: this work has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skodowska-Curie grant agreement No 892077.
Note: the content of this work is partially based on the research conducted for two publications available in open access: 1) Soria-Rodríguez, C., (2022) Marine renewable energy technologies in the high seas: challenges and opportunities to strengthen international environmental and renewable energy governance’, Cambridge International Law Journal, Vol. 11, Issue 2 p. 202-219; 2) Soria-Rodríguez, C., (2023) La evaluación del impacto ambiental en el esperado acuerdo para la gobernanza de la biodiversidad marina fuera de la jurisdicción nacional y su previsible aplicación a las tecnologías para la obtención de energía renovable marina’, Anuario Colombiano de Derecho Internacional 16, p. 1-30.