TILLOY, JA (2025) Implicazioni dell'Acordo BBNJ sulla Navigazione in Alto Mare_Implications of the BBNJ Agreement on High Seas Navigation. [Tesi di dottorato]

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Abstract

The present work discusses the Agreement 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 Jurisdiction (BBNJ Agreement) by approaching it as a universal legal platform with the potential of causing the fragmentation of the international law governing the high seas. The BBNJ Agreement has not entered into force, and therefore it is not possible to predict the definitive impact on navigation on the high seas. However, the current conventional text provides some grounds that suggest that it might be affected by it. Indeed, many features now present in the BBNJ Agreement echo an earlier treaty, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 December 1995 (UNFSA). The main research question is: How may the area-based management measures under the BBNJ Agreement affect the freedom of navigation of commercial vessels in areas beyond national jurisdiction? The work submits the hypothesis that the BBNJ Agreement constitutes a freestanding environmental legal framework with the potential to, first, fragment the international law of the high seas into different legally binding regulatory areas under ‘MPAs’ and ‘ABMTs’ comprised in regions of that vast maritime zone and, subsequently, reconfigure the freedom of navigation in a manner different from that envisaged in the United Nations Convention on the Law of the Sea of 10 December 1982 (LOSC). The hypothesis builds on the finding that the BBNJ Agreement, embedded in contemporary international environmental law, is not dependent on the LOSC and that it has to be understood separately and as representing a shift of paradigm on ocean affairs towards a binding regionalization of the high seas. Subsequently, because of being two different treaty contexts regarding different aims, the work considers that, in conventional terms, the freedom of navigation as understood in the LOSC must not be equated with the freedom of navigation implied in the BBNJ Agreement. Based on a procedural legal mindset, the process for contributions carried out through the procedural rules in Parts III and IV may allow visualizing how the BBNJ Agreement provides positive connotations to legal fragmentation while providing a subsequent mechanism for later harmonization, potentially establishing a parallelism with the LOSC. The work engages in comparing the characteristics of the UNFSA with those of the BBNJ Agreement, finding that the two instruments have relevant similarities as to its legal and institutional dimensions. After preliminary considerations, the thesis is structured in an introduction, five chapters, and a conclusion. The five chapter are: ‘An assessment of the text of the BBNJ Agreement’ (Chapter 1), ‘The cooperation required by the BBNJ Agreement’ (Chapter 2), ‘Lessons learned from the UNFSA’ (Chapter 3), ‘Implementation of the BBNJ Agreement’ (Chapter 4), and ‘Potential challenges for the resolution of legal conflicts after the overlap of the BBNJ Agreement and the LOSC’ (Chapter 5). The thesis concludes by confirming the hypothesis submitted and sheds light on the capacity of the BBNJ Agreement to make environmental goals prevail over the freedom of the high seas, with the potential of affecting and restricting the right of all States to freely navigate in areas beyond national jurisdiction.

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