7.1 Introduction

The idea that, in addition to mitigation and adaptation action, we might also need to look at actively restoring some of the damage that has already been done is a relatively novel notion in the context of the marine environment.Footnote ¹ It is prompted by a growing awareness of the unprecedented scale of cumulative human impacts on the oceans.Footnote ² The Intergovernmental Panel on Climate Change (IPCC) Special Report on Oceans and the Cryosphere identifies marine habitat restoration as a means of enhancing ecosystem-based adaptation to changing conditions.Footnote ³ The UN General Assembly recently declared 2021–2030 the ‘UN Decade on Ecosystem Restoration’ in order to address climate change, enhance water and food security, and protect biodiversity.Footnote ⁴ Restoration also plays a role under various multilateral environmental agreements, including the Convention on Biological Diversity (CBD).Footnote ⁵ Often, restoration is mentioned in the same breath as the need to build ecosystem resilience. For example, the draft negotiating text of the 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 (ABNJ) includes references to ‘restoration of ecosystem integrity’ as a general principle or approach,Footnote ⁶ to ‘rehabilitating and restoring biodiversity and ecosystems’ as an objective of area-based management tools,Footnote ⁷ as well as to a potential trust fund to finance ‘rehabilitation and ecological restoration’ of marine biodiversity in ABNJ.Footnote ⁸

Does this suggest that we may be seeing a surge in restoration activities in the marine environment over the coming decades? It should be emphasised that restoring marine ecosystems and ecosystem services remains a highly complicated task, and a subject of ongoing scientific research.Footnote ⁹ Most restoration efforts are furthermore extremely expensive, and feasibility is often questionable. However, this does not seem to deter the most avid proponents. Interestingly, private actors are leading recent developments. A noteworthy example is The Ocean Cleanup (TOC): a private actor taking to the high seas with a new technology to systematically clean up plastic pollution. While the objective of both proponents and opponents of such technological ‘solutions’ is ultimately the same – protection of the marine environment – the underlying conceptions of ‘risk’ or ‘harm’ to the marine environment seem to diverge. When seeking guidance from the rule of law on how to assess or balance these different approaches, challenges may arise in issue-areas where the law in turn relies on extra-legal knowledge, such as scientific data, to give content to legal standards.

This chapter will explore this interaction by taking emerging state practice in relation to TOC as a case-study. It will briefly position the notion of restoration within the context of the law of the sea more broadly before zooming in on the example of TOC to illustrate how state practice deals with interpretative questions under UNCLOS in the absence of dedicated legislation. The focus will be on several key outstanding questions regarding the standard of due diligence required from States exercising jurisdiction over such restoration activities, and the difficulties involved in balancing the risks inherent in technological interventions in the absence of knowledge of both the environmental benefits and potential risks. Finally, some conclusions will be drawn as to what guidance, if any, is provided by existing rules and principles of (environmental) law in this context.

7.2 Restoration Activities under UNCLOS

The term ‘restoration’ means slightly different things in different contexts.Footnote ¹⁰ A general distinction is often drawn between restoration in the sense of positive measures to improve the degraded condition of the environment affected by past activities and ‘remediation’ or ‘re-instalment’ action to repair damage for which there is legal liability.Footnote ¹¹ Yet, in the Costa Rica/Nicaragua compensation case the International Court of Justice (ICJ) used the term ‘restoration’ in its finding that when natural recovery cannot return an environment to the state it was in before the damage occurred, then ‘active restoration measures’ may be required in order to return the environment to its prior condition, in so far as that is possible.Footnote ¹² To avoid confusion, and leaving aside questions of liability and compensation for environmental damage attributable to a particular actor, restoration activities of the kind discussed here do not depend on questions of legal attribution or a causal link.Footnote ¹³ The focus is on restoration activities that consist of deliberate intervention aiming to (partly) restore damage or degradation of the marine environment for the purpose of improving the condition of the environment per se.

That the common objective of enhanced marine environmental protection is inherently linked to strengthening the rule of law is evidenced by the very existence of Part XII of UNCLOS, which provides a central framework for protection of the marine environment.Footnote ¹⁴ It has been observed that one of the most significant contributions of UNCLOS to strengthening the rule of law lies in the process rather than the substance of many of its provisions.Footnote ¹⁵ Again, Part XII is a case in point. By setting out a general obligation to protect the marine environment, which has been interpreted and applied as an obligation of ‘due diligence’,Footnote ¹⁶ it enables an ever-evolving balance of interests to be struck, as well as incorporation of more detailed environmental (procedural) duties and standards that respond to developments in law and in fact. This obligation of due diligence to protect and preserve the marine environment does not impose an explicit duty to proactively restore parts of the marine environment that are damaged or degraded in the absence of legal liability for such damage.Footnote ¹⁷ However, the general obligation has been interpreted to include both protection from future damage and ‘preservation in the sense of maintaining or improving its present condition’.Footnote ¹⁸ While this does not quite amount to an obligation of result to restore or improve the condition of the marine environment in order to comply with the general obligation of due diligence, restoration activities are in principle clearly consistent with the object and purpose of Part XII.

Various kinds of restoration activities are already taking place in the marine environment, primarily on a local scale in areas within national jurisdiction, for example, revegetation of seagrass meadows or coral farming for the purposes of re-planting and restoring natural reefs.Footnote ¹⁹ These are relatively small-scale and non-invasive activities that, when successful, can reap multi-user benefits by increasing species abundance, thereby supporting local livelihoods. Proactive restoration measures are also being explored on the regional level. In the Baltic Sea, a serious environmental threat is posed by eutrophication and the resultant oxygen depletion caused by excessive nutrient runoff from land.Footnote ²⁰ As a result, large parts of the seabed can no longer sustain any plant or animal life.Footnote ²¹ Among the measures proposed to address this issue is sea-based engineering that purposefully targets the pollution that is already out there; either by dredging phosphorus-rich sediments, or by chemically treating those sediments.Footnote ²² These proposals have proven controversial; both due to concerns about the environmental risks involved in the technologies themselves, as well as concerns about the implications of sea-based measures for the overall governance approach to eutrophication in the region.Footnote ²³ Furthermore, while the Baltic Sea is one of the most densely regulated seas on the planet, the absence of a specific legal framework for the proposed engineering techniques and the resultant questions of legal qualification under the various layers of law, make it a significantly more complex activity from a regulatory point of view, compared to the non-invasive small-scale restoration projects under a single jurisdiction mentioned above.Footnote ²⁴ Yet another type of applicable law questions is raised by restoration activities that take place entirely in areas beyond national jurisdiction. The latter will be the focus of the remainder of this chapter, for which TOC serves as an example.

7.3 The Ocean Cleanup: A Novel Use of the High Seas

TOC is a private entity with a unique agenda: a Dutch non-profit organisation on a mission to rid the oceans of plastic. In October 2018, TOC towed the first cleanup system (System 001) into the Great Pacific Garbage Patch (GPGP) for an operational trial. The GPGP is an oceanic gyre situated on the high seas off the coast of North America where ocean currents naturally accumulate plastic debris and other matter, and it is the largest plastic accumulation zone on the planet according to research conducted by TOC.Footnote ²⁵ System 001 consisted of a 600-metre-long U-shaped passively floating boom with a three-metre underwater curtain to retain plastics within the system.Footnote ²⁶ The latest iteration of the system (System 002) uses a similar contraption, but with a closed retention net, while the system will now be actively towed by two vessels.Footnote ²⁷ TOC’s ambition is to eventually scale up to a fleet of such devices, to be operated in all five subtropical gyres where currents concentrate ocean-borne plastic waste.Footnote ²⁸

As TOC is a legal entity incorporated under Dutch law, the Dutch Government not only has an obligation of due diligence under UNCLOS and general international law to ensure that activities under its jurisdiction and control do not cause harm to other States or the marine environment,Footnote ²⁹ but it has also expressed a willingness to actively ‘facilitate and support’ TOC’s activities.Footnote ³⁰ However, owing to the unique nature of the activity, it is not self-evident which international legal frameworks are directly applicable, nor is dedicated domestic legislation in place. In order to ensure that TOC’s activities are at least conducted in accordance with general international law on maritime safety, protection of the marine environment and other legitimate uses of the high seas, the Dutch government entered into an agreement with TOC on 8 June 2018 (the Agreement).Footnote ³¹ In this Agreement the parties chose to draw ‘by analogy’ on the provisions of Part XIII of UNCLOS on marine scientific research (MSR).Footnote ³² The next sections will consider how the Agreement interprets and applies UNCLOS to TOC’s activities, and what legal questions remain outstanding.

7.4 Balancing Unknown Risks

A key function of the rule of law in general is to constrain the arbitrary use of power,Footnote ⁶⁷ and for a broad legal framework like UNCLOS that governs a spatially shared realm this means that a multitude of different interests need to be accommodated and balanced.Footnote ⁶⁸ Whereas many UNCLOS provisions – especially in an exploitation context – typically balance particular sovereign rights and interests, on the one hand, with (common) environmental interests on the other, restoration activities such as TOC involve balancing one environmental concern (the impacts of plastic debris on the marine environment) against another environmental concern (impacts of the cleanup system itself on the neuston and biodiversity). The objective is the same: protecting and conserving the marine environment, but the two types of ‘harm’ or ‘risk’ involved are weighed differently, depending on one’s position. This involves a novel type of balancing exercise for which existing legal principles do not necessarily provide any concrete benchmarks or guidance.

What technology-driven ‘solutions’ to environmental problems such as TOC or engineering measures to combat eutrophication have in common is that the regulator is confronted with complex ‘risk/risk trade-offs’.Footnote ⁶⁹ These ‘trade-offs’ occur when an intervention to reduce the target risk (knowingly or inadvertently) creates another new risk.Footnote ⁷⁰ Complexity arises where scientific uncertainty remains as to both the potential benefits of the technology addressing the target risk and the potential risks involved in deploying the technology.Footnote ⁷¹ Owing to this uncertainty, environmental standards and principles can work both ways in providing guidance on how a balance should be struck. For example, the need to apply the precautionary approach is not controversial in cases where uncertainty persists, but its precise implications are undetermined. The precautionary principle can be used as a regulatory principle in the sense that it prompts regulatory action in the absence of concrete evidence or scientific certainty surrounding a technology, but – based on that same precautionary principle – the technology may still either be authorised or prohibited.Footnote ⁷² That said, even when a permissive approach is taken, the principle requires at the very least a thorough risk assessment before deployment, as well as continuous monitoring.

The general obligation to protect the marine environment under Part XII, and principles such as the no-harm principle or even the ecosystem approach can also work both ways, either to provide support for TOC’s continuous cleanup efforts, or as an argument not to do so – depending on how the (short- and long-term) impacts of the activity on the ecosystem versus its benefits are understood and weighed. Application of the environmental rules and principles mentioned above presupposes at least some knowledge of a technology, its consequences, risks and possible alternatives. When this is not available, the rules and principles are effectively ‘drained of their substantive content’.Footnote ⁷³ Tools and principles such as ‘best available technology’, ‘best available science’ or ‘best practices’ that are commonly used to give content to, for example, the precautionary approach and general due diligence, are of little help when no comparison can be made because there is no relevant ‘science’ or ‘practice’ available in the first place.

The current lack of knowledge and baseline data concerning the neuston is also precisely what makes a proper risk and impact assessment for TOC so difficult at this stage.Footnote ⁷⁴ This is arguably as much a challenge as it is an opportunity, as novel types of activities such as TOC may also prompt the study and acquisition of data in relation to little-known ecosystems and thereby inform the governance of (future) activities in areas beyond national jurisdiction. That said, given the current uncertainty and knowledge gaps that remain, a restoration activity such as TOC with uncertain benefits, feasibility and (potentially) significant risks may well meet some resistance based on environmental rules and principles, despite their best intentions.Footnote ⁷⁵ Particular weight should be attached to the precautionary principle, at least in the form of prioritising knowledge-enhancement before any significant scale-up of the activity takes place.

An adaptive approach would furthermore be warranted, through which newly acquired knowledge is continuously integrated into the management of the activity.Footnote ⁷⁶ If the Netherlands is to be considered to have taken ‘all necessary measures’ required as part of its general obligation of due diligence, it would thus be advisable to at the very least spell out dedicated EIA and continuous monitoring requirements before TOC’s activities move into the next phase. Any arguments and future decisions on how the various risks involved are to be balanced can only be developed (and challenged) on the basis of such extra-legal knowledge and data.

7.5 Conclusions

TOC is a new actor and user of the high seas for restoration purposes. Whether it ushers in a time of private actor-led cleanup efforts and technological interventions in the marine environment only time will tell. TOC’s objective to restore the marine environment is in line with the object and purpose of the Convention, as well as with general international policy on plastic pollution,Footnote ⁷⁷ yet its means could prove controversial. While the analogous application of Part XIII under the 2018 Agreement may provide a suitable model to establish core responsibilities and liabilities and to ensure that TOC’s activities are conducted in line with relevant international law, several important legal questions remain outstanding, notably concerning the standard of due diligence required from the Netherlands – the content of which depends on the availability and assessment of extra-legal knowledge that is currently lacking.

Perhaps the biggest challenge for the rule of law in governing restoration activities such as TOC lies in dealing with uncertainty and knowledge gaps regarding both the benefits and risks involved in employing a new technology in a complex environment, and how to approach environmental risk/risk trade-offs when perceptions of these risks diverge. In such instances, general rules and principles such as the precautionary approach do not provide concrete directions. This chapter has sought to uncover a particular challenge for the rule of law in terms of its relationship with scientific knowledge, or the absence thereof, in times defined by cumulative pressures on marine ecosystems, significant measures of uncertainty and diverging perceptions of ‘risk’.

8.1 Introduction

Sea-based measures represent a new way of dealing with eutrophication in the Baltic Sea. In brief, they refer to different technological innovations that could be implemented at sea to target pollution that has already been released, in contrast to reducing discharges from the original source on land. These measures are not directly subject to any specific regulation. It is therefore interesting to study what rules apply for such activities but also to explore more generally how marine environmental law operates in the absence of specific rules, and how environmental principles manage to fill those gaps. The topic thus serves as a case study on how the rule of law functions in the absence of specific legal rules and how environmental principles may serve to fill such gaps. Moreover, sea-based measures raise interesting issues linked to the balancing of interests, as the arguments both against and in favour of the measures are based on environmental protection, and as their environmental impact is uncertain. Eutrophication is the main environmental problem in the Baltic Sea. This is the result of excessive inputs of nutrients, mainly phosphorus and nitrogen, from a variety of sources, including industry, agriculture and wastewater. These nutrients stimulate growth of aquatic plant life. Yet, overgrowth of plants and algae blocks sunlight and, in the degradation phase, consumes oxygen from the sea, thereby contributing to a state of hypoxia. This lack of oxygen at the bottom of the sea, in turn, initiates a chemical process whereby phosphorus (from historical excess inputs) tied to the seabed sediments is released, thereby causing another source of nutrients in the sea.Footnote ¹

Over recent decades a broad range of initiatives have been taken to mitigate eutrophication in the Baltic Sea. As many steps have already been taken to reduce nutrient input into the sea through land-based measures, attention is increasingly turning to new forms of reduction measures, including sea-based measures to target phosphorus leakage from the seabed. The sea-based measures that are currently envisaged for the Baltic Sea can be broadly grouped into three main categories: (1) those focusing on removal of the phosphorus-rich parts of sediments (through dredging or ‘skimming’), (2) those influencing the chemical composition of sediments through treating the seabed with chemicals and (3) those seeking to improve oxygen levels in the seabed through different forms of oxygenation (notably by pumping oxygen-rich surface water down to the bottom). For reasons of convenience the three categories are generally referred to as ‘dredging’, ‘chemical treatment’ and ‘oxygenation’.

All sea-based measures include some environmental risks, albeit that the nature and magnitude of the risk varies between techniques.Footnote ² For all three main groups of techniques, the longer-term risks and effects on the marine ecosystem are significantly under-studied, in particular with respect to larger-scale and off-shore operations. Establishing the polluting impact of sea-based measures is therefore coupled with serious challenges from a scientific perspective, which also affects their legal status, for example, as to whether the measures themselves qualify as ‘pollution’. At the same time, the whole idea behind sea-based measures is to function as a potentially important cure for the eutrophication problem of the Baltic Sea.

Based on this concrete example, this chapter explores how environmental law (Section 8.2) and environmental principles (Section 8.3) apply to and operate in the absence of specific regulation of a given activity, and where a high degree of uncertainty exists about the effects of the activity. The chapter ends with some concluding thoughts on the format of potential future regulation of marine geoengineering measures in the Baltic Sea (Section 8.4).

8.2 Rules Applicable to Sea-Based or Geoengineering Measures?

8.3 Environmental Law Principles

8.4 Concluding Observations

No specific laws apply to any of the sea-based measures. Further, the more generic laws that exist do not generally provide much guidance in the matter, except where the measures fall within the scope of the dumping regime. The relevant rights and obligations depend on the environmental effects, both positive and negative. Since sea-based measures present potential risks, while at the same time being potential problem-solvers in relation to eutrophication, weighing their effect is not obvious and leaves much depending on scientific results, which are currently not available.

The same dilemma persists when analysing sea-based measures in the light of various environmental law principles. These principles are generally designed to balance environmental risks against the need for exploitation, by steering away from the most apparent environmental risks. In this case, where the alternative is not exploitation, where geographical flexibility is limited and the measures to be assessed are actually aiming to solve the very same environmental problems that its opponents are criticizing it for contributing to, clearly much of the balancing will have to centre on scientific knowledge and certainty. The key issue to be balanced is weighing the risk of further escalating eutrophication with all its consequences, and to continue only with land-based measures, against the risks that sea-based measures may have on the ecosystem – due to their novelty and the fact that they have not been sufficiently tested in relation to risks. However, the fact that other methods are available to combat eutrophication, namely land-based measures, that do not involve corresponding environmental risks, that directly aim at stopping the discharges at source and that are proven to work, affects this balance. The availability of land-based measures as an alternative also affects the role of principles such as BAT or BEP. Sea-based measures may definitely represent the most novel techniques in the field, but is it the best available technology? The fact that other measures are available, involving lower risks, will also put the risk assessment in another light since the necessity for the measures is likely to be reduced.

In short, the legality of any kind of sea-based measures, in any sea area, depends on the risks they present – in the short- and long-term – balanced against their long-term benefits. In that light, one particular category of measures cannot be legally preferred over another without having regard to their performance and environmental impact. If a particular measure improves the marine environment without much risk, it is legally easy to justify, while, conversely, a measure with uncertain benefits and large risks meets resistance in a variety of applicable legal rules and principles across many levels.

Lack of scientific certainty about the risks and effects of sea-based measures significantly complicates assessment in this regard, in connection to the precautionary principle. Yet that uncertainty should not be used to dismiss sea-based measures altogether. Rather, it calls for further research into the matter, guided by the precautionary principle.

As sea-based measures are receiving increased focus in the Baltic Sea context, it is important to acknowledge the number of uncertainties involved without giving up potential useful tools to fight eutrophication in the future. At this stage, we conclude that it is both important and appropriate to focus on developing a new framework or guidelines, inspired by the Assessment Framework developed under the London dumping regime, to coordinate policies among the Baltic Sea States, thereby helping permit authorities in their tasks. With the recent adoption of the HELCOM Guidelines, this process appears to be well under way.

9.1 Introduction

The United Nations Environment Programme has stated that water scarcity is fast becoming one of the most prominent challenges of the twenty-first century. Population growth and economic development coupled with climate change are reducing the per capita availability of freshwater around the world, which will likely lead to increasing droughts and famines.Footnote ¹ The intensification of problems means that as States search for innovative solutions, the oceans and seas are increasingly being looked at to address water scarcity, for instance with the proliferation of large-scale water desalination.Footnote ² It is in this context that there have been recent proposals to tow icebergs from Antarctica to alleviate the water shortages of cities in South Africa and the United Arab Emirates. These plans claim to be cheaper and allegedly more environmentally friendly alternatives to water desalination.Footnote ³ This chapter seeks to examine whether international law is able to adequately regulate – that is balancing exploitation and preservation – support and limit such operations. Such questions remain underexplored in the literature.Footnote ⁴

The use of icebergs for freshwater is not a novel idea. Arctic inhabitants, for instance the Greenlandic Inuit, have traditionally relied on icebergs for their freshwater needs, and icebergs continue to be used in Greenland, albeit on a relatively small scale.Footnote ⁵ Additionally, icebergs are used in producing luxury goods such as exotic bottled water or liquor in Canada, Norway and Denmark.Footnote ⁶ However, these are relatively small-scale demands on icebergs that would not merit questions on how to balance exploitation of icebergs with preservation of marine resources and environment. What prompted the writing of this chapter was the prospect of this ‘cold rush’ expanding, with proposals to use icebergs on industrial levels to supply freshwater for entire cities. This also is not an entirely new plan. As early as 1973 it was estimated that use of a mere 10 per cent of the icebergs calving off annually could supply freshwater to more than 500 million people annually.Footnote ⁷ Icebergs represent a substantial reserve of freshwater. In fact, some estimates indicate that the 16,000 icebergs formed annually roughly represent the same amount of freshwater as the annual water flow of all rivers on Earth.Footnote ⁸

As around 70 per cent of all freshwater in the world is locked in the polar regions as ice,Footnote ⁹ the obvious locations from where icebergs could be towed are Antarctica and the Arctic regions. This means that the Antarctic Treaty System (ATS) and the UN Convention on the Law of the Sea (UNCLOS) are of relevance. Putting aside questions of technical feasibility,Footnote ¹⁰ this chapter engages with the rules and principles of the law of the sea that would regulate such activities. The aim is to examine how the current law of the sea may need to evolve to respond to a possible new demand on the oceans. As will be demonstrated, the legality of the use of icebergs for freshwater can be somewhat blurry. In fact, there has already been a dispute arising from this legal ambiguity when Denmark disputed the right of Canada to utilise icebergs found in Canadian waters, as they originated from Greenland’s ice sheet.Footnote ¹¹ Therefore, the discussions in this chapter are relevant for the debate on sustaining a fit-for-purpose rule of law for oceans for decades to come.

Section 9.2 lays out the current legal framework within which the proposed operations would take place. The section highlights the shortcomings of the regulatory capacities of international law to balance the exploitation and preservation of marine resources in the context of the proposed operations. Section 9.3 deals with the question of how international law could be adapted to deal with this possible new pressure on the natural resources of the oceans. Specifically, the section considers whether the ongoing negotiations on biodiversity beyond national jurisdiction (BBNJ) could be a suitable avenue for addressing gaps in the current legal framework.

9.2 Regulating the Use of Icebergs within the Current Framework of International Law

This part briefly lays out the general status of different types of ice under international law to contextualise the question how international law views icebergs. It then moves onto the more concrete legal questions that may arise if/when the proposed activities occur.

9.3 Filling an Iceberg-Sized Gap in International Law

This section analyses how to fill gaps in the ATS and UNCLOS, starting with the ATS. Filling a regulatory gap in the ATS may be carried out through Antarctic Consultative Meetings and their ability to issue binding recommendations. There has already been one such recommendation of relevance. Recommendation XV-21 is focused on ‘Exploitation of Icebergs’.Footnote ³⁹ The preamble to the Recommendation acknowledges that technology may make utilisation of icebergs possible at some point in the future.Footnote ⁴⁰ Concerns about uncontrolled exploitation of Antarctic icebergs that could adversely affect the Antarctic environment were envisaged at the Consultative Meeting.Footnote ⁴¹ However, the Recommendation merely maintains that it would not be desirable for the exploitation of ice to occur without prior examination by the Contracting Parties to the Antarctic Treaty.Footnote ⁴² Therefore, despite the fact that the Recommendation is binding generally and entered into force in 2004, the language does not render operations for towing icebergs to use for freshwater illegal under the Antarctic System, or introduce much of a regulatory framework for that matter. At this stage there does not seem to be any follow-up action regarding this issue in subsequent Consultative Meetings. However, the road to address the inadequacies of the ATS regulatory capacities seems clear.

Filling the regulatory gap in UNCLOS regarding the use of icebergs can be achieved in two ways. First, there is the possibility of subsequent practice and interpretation of UNCLOS provisions to better regulate the use of icebergs. However, as discussed, many of the relevant UNCLOS provisions are quite broad and vague.Footnote ⁴³ Therefore, one must be aware of the limitations of stretching the meaning of broad provisions to regulate highly specific operations. One could argue that such subsequent interpretation may even be tantamount to all but modifying the treaty, which is arguably not wholly consistent with the law of treaties.Footnote ⁴⁴ If, on the other hand, no action is taken, then the practice of the few countries capable of using icebergs may lead to the emergence of customary rules regarding the issue. However, this is not desirable for two reasons. First, there are fairness and equity issues in allowing a few States to overwhelmingly use a resource and influence the development of international law regulating a resource that may be found beyond the national jurisdiction of any country.Footnote ⁴⁵ Furthermore, this approach would run into the problem of a lack of careful deliberation to regulate the optimal use of icebergs.

Therefore, the second avenue, that is, negotiations in the context of a new international legally binding instrument, would be preferable. As it happens, the negotiations on BBNJ are currently ongoing to address gaps in UNCLOS.Footnote ⁴⁶ Although the issue of the use of icebergs is not directly related to biodiversity, there are indirect connections regarding protection of the marine environment in areas beyond national jurisdiction (ABNJ), where many of the icebergs ripe for the taking are located (i.e., the high seas adjacent to the Antarctic Treaty Area and the Arctic). Therefore, the rest of the section discusses how the BBNJ negotiations could address some of the gaps in answering the questions of who can take the icebergs, from where, limits on the quantity of icebergs and the existence of standards to be met in carrying out a towing operation. This analysis is possible in light of the BBNJ negotiations and the current draft text.Footnote ⁴⁷

The first issue relates to the question of whether the use of icebergs should be according to the principle of freedom of the high seas or the concept of the common heritage of mankind, where there is benefit sharing for the use of common resources. In this regard, the BBNJ negotiations do not have a directly relevant contribution. However, the same question regarding benefit sharing is also relevant regarding marine genetic resources (MGR). The position of the developing nations is that the provisions of UNCLOS must not be seen as limiting benefit sharing only to seabed minerals, as the only reason MGRs were not included was ignorance regarding their value.Footnote ⁴⁸ This issue is hotly contested. The current revised draft, at the time of writing this chapter, clearly shows that there is no agreement on whether benefit sharing is encouraged or mandated.Footnote ⁴⁹ However, the principle of the common heritage of mankind, which underpins benefit sharing, has re-entered, albeit bracketed, the most recent draft.Footnote ⁵⁰ If the arguments of the developing States carry the day, it would have positive consequences in terms of arguing for benefit sharing in the context of using icebergs. First, it gives weight to the benefit sharing camp in the debate against the principle of freedom of the high seas. Furthermore, the argument goes that exclusion of and silence on a common resource due to ignorance regarding its value should not mean that benefit sharing for that resource could not be required.

The second issue relates to from where icebergs would be taken and the possible limits to the quantity of icebergs to be used. The areas from where icebergs would be taken may have fragile and vulnerable environments. Icebergs located outside the Antarctic Treaty Area and in the Arctic, and outside national jurisdictions, fall directly under the BBNJ negotiations. Part III of the BBNJ Draft Text in particular provides for area-based management tools in ABNJ, where there is no relevant legal instrument or framework.Footnote ⁵¹ Apart from provision of an area-based management tool for ABNJ, there is an added benefit by way of proposals to have buffer zones outside protected areas (relevant in the context of icebergs outside the Antarctic Treaty Area) so that direct and indirect pressures on protected areas can be mitigated more effectively and prevent environmental harm.Footnote ⁵² This proposal would add to the protections for the fragile Antarctic environment. In this way, there are protections against dangerous activities that occur just outside the Antarctic Area. However, towing icebergs cannot be classified as a risky or dangerous activity unless a rigorous EIA is conducted.

This brings us to the third and final issue, the requirement of conducting EIAs. The challenge of the current rules is that the EIA requirement is vague both in terms of the threshold for mandating it and its content.Footnote ⁵³ The current Draft Text shows some promising signs on this front, although there are many crucial points of contention. In terms of the threshold for conducting EIAs, along with the typical requirement of the risk of substantial or significant harm there is a proposal to lower the threshold to minor or transitory harm. In this debate, a very interesting proposal is to mandate a preliminary or simple EIA when the risk is minor or transitory, and mandate a full EIA when there is a risk of significant harm.Footnote ⁵⁴ Even more relevant in terms of taking icebergs from the fragile environments of the Arctic and Antarctic is the proposal to lower the threshold for mandating EIAs in those areas.Footnote ⁵⁵ In this context, it would be useful if future BBNJ drafts refer to the Madrid Protocol, which only requires minor or even transitory effects.Footnote ⁵⁶

Beyond the threshold, it has been pointed out that in the past activities that were not clearly identified would fall through the cracks of the fragmented regime as they were not predicted by pre-existing instruments.Footnote ⁵⁷ Therefore, the academic suggestion has been that the new agreement should contemplate how to deal with unidentified activities yet to develop.Footnote ⁵⁸ The Draft Text is contemplating an indicative list of activities that would require an EIA.Footnote ⁵⁹ This list has not been drawn up at the time of writing this chapter. Therefore, there is an opportunity here to explicitly name use of icebergs as an activity requiring EIAs, to avoid questions of whether using icebergs as unidentified and unexpected activities do require EIAs or not. Lastly, it is noteworthy that the Draft Text also offers detailed suggestions in terms of the requirements for the content of the EIA. Namely, describing measures to avoid impacts, explaining uncertainties and gaps in knowledge, identifying sources of information, explicitly indicating predictive methods and underlying assumptions and the environmental record of the proponents of an activity.Footnote ⁶⁰ These detailed suggestions certainly attempt to address problems with the current international rules, which are too vague and offer little assistance regarding the content of EIAs in ABNJ.Footnote ⁶¹ It remains to be seen how the final Agreement text mandates specific content.

9.4 Conclusion

This chapter has been one manifestation of the debates on the need for adequate legal frameworks to ensure that continuing and new demands on the oceans and the marine environment are checked by an adequate rule of law. It has discussed multiple angles to determine the legality of proposed plans to utilise icebergs as an alternative source of freshwater. The conclusions of this analysis are that, first, UNCLOS does not prohibit the use of icebergs for freshwater resources. Ice can be seen as yet another form of non-living resources that may be found in maritime zones under the national jurisdiction of States. The only limitations are that States cannot utilise ice that they find in the maritime zones of other States, and the obligations under Part XII of UNCLOS to protect the marine environment. Second, the chapter discussed the issue of the legality of using ice found in Antarctica. None of the instruments within the ATS indicate a prohibition against the use of icebergs found in Antarctica. The only limitation is one of EIA to ensure that the proposed operation does not harm the fragile Antarctic environment.

Although the ATS represents more stringent environmental standards, it also presents a vague and unclear general structure to deal with the question of utilisation of icebergs as it was not a foreseen demand on the Antarctic environment. Therefore, the chapter argued that there is a gap in the regulatory capacities of international law, which could become problematic for the rule of law if/when the use of icebergs for freshwater were to proliferate, leading to an imbalance between the need for exploitation of this potential new resource with preservation of the marine Antarctic environments. Thus, the chapter also discussed some of the ways in which international law could be adapted to fill the identified gaps, to ensure it is fit for purpose and that the rules that would regulate new demands are equitable. In particular, it has been shown that although the BBNJ negotiations may not at first sight seem relevant for filling this gap, there is interesting potential in the negotiations to flesh out many important rules and principles that are needed to adequately regulate the use of icebergs for freshwater when icebergs are taken from ABNJ.

10.1 Introduction

The United Nations Convention on the Law of the Sea (UNCLOS or Convention)Footnote ¹ is an international treaty among an excessive number of subjects of international law. These 168 subjects have committed themselves to adhere to international law established in the (almost) comprehensive system codified in the 320 articles and nine annexes.Footnote ² The Convention strives to provide answers on ‘all issues relating to the law of the sea’.Footnote ³ Hence, it is more than an ordinary convention – it is ‘an international state of mind and a commitment to the rule of law’.Footnote ⁴ Accordingly, one may argue, the Convention reproduces a commitment ‘to uphold legal order and stability, to provide equality of application of the law, … and to settle disputes before an independent legal body’.Footnote ⁵

More than two-thirds of the Earth is covered by seas and oceansFootnote ⁶ with about 90 per cent of the living biomass.Footnote ⁷ This living biomass, in particular fish, is of importance as a source of food (e.g., as a protein source) and raw materials.Footnote ⁸ As set out in the preamble of the UNCLOS, one of the Convention’s objectives intends the ‘equitable and efficient utilization’ of the seas and oceans and ‘conservation of their living resources’.Footnote ⁹ Nonetheless, stocks fished at a ‘biologically unsustainable level’ increased from 10 per cent in 1974 to almost 35 per cent in 2017.Footnote ¹⁰ Thus, from a bird’s eye view, it seems that the Convention’s impact is rather lean in respect of living resources.Footnote ¹¹

One way to counter such developments is the application of the precautionary principle/approach. Whilst the principle/approach is no stranger to, for example, the 1995 United Nations (UN) Fish Stocks Agreement,Footnote ¹² the 1982 UNCLOS does not demand application of the precautionary principle/approach expressis verbis. Concluded after the UN Conference on the Human Environment (1972), but long before the UN Conference on Environment and Development (1992), the specific requirements of the precautionary principle/approach were not subject to a general scientific debate during the negotiations for the UNCLOS.Footnote ¹³

More than 20 years ago, in the Southern Bluefin Tuna cases (SBT cases), the International Tribunal for the Law of the Sea (ITLOS) laid the cornerstone with respect to the precautionary principle/approach.Footnote ¹⁴ In the SBT cases between the States of Australia, New Zealand and Japan, both the ITLOS and an ad hoc arbitral tribunal (SBT Tribunal) (constituted in accordance with Annex VII of the UNCLOS) were confronted with Australia’s and New Zealand’s claims regarding the ‘precautionary principle’.Footnote ¹⁵ Due to both tribunals’ lack of jurisdiction with respect to the merits, they were unable to discuss the management of Southern Bluefin Tuna in detail. However, the ITLOS, whilst prescribing provisional measures, hinted broadly at the requirement of the precautionary application under the UNCLOS. It prescribed that the parties should act with ‘prudence and caution’, which may be seen as ‘equivalent to [act] by applying a precautionary approach’.Footnote ¹⁶

This chapter therefore undertakes an expedition through the UNCLOS, analysing its relationship with the precautionary principle/approach and addressing the two decades after the SBT cases and respective developments. This journey seeks to answer one question only:

Does the UNCLOS demand application of the precautionary principle/approach with respect to management of living resources vel non?

In answering this question, this chapter will briefly turn to the general notions of the precautionary principle/approach and management of living resources (2). Building on this, the most relevant provisions of the Convention and the corresponding jurisprudence are analysed (3).

10.2 Precautionary Principle/Approach, Management of Living Resources

10.3 The Precautionary Principle in Regard to the Management of Living Resources ‘within’ the UNCLOS

10.4 Final Remarks

This section returns to the original question of whether the UNCLOS requires application of the precautionary principle: recalling that the precautionary principle was only visible on the horizon during the negotiations.Footnote ⁹³ It therefore appears the Convention originally did not require application. However, it seems that the principle now informs the normative content of the UNCLOS, and, thus, some may argue that the Convention does require its application after all.Footnote ⁹⁴ If so, following the latter view, then such requirement may be considered indirect through the obligation to protect and preserve the marine environment (see Section 10.3.2). As Part XII covers all maritime zones,Footnote ⁹⁵ a good argument may be made that direct approaches must be interpreted considering the obligations set out in Part XII.Footnote ⁹⁶ Therefore, it may well be argued that the UNCLOS requires application of the precautionary principle.

However, one must keep in mind, that (too much) ‘coercion kills all noble, voluntary devotion’.Footnote ⁹⁷ Many States have subjected themselves to the UNCLOS and the so called package deal.Footnote ⁹⁸ This package is limited to an extensive but general framework.Footnote ⁹⁹ Excessive pulling on the cords that hold the package together can lead to unforeseeable consequences.

11.1 Introduction

The oceans conjure powerful emotions: awe, fear, bewilderment and even love. Their immensity, resilience, aesthetic and brute force have inspired many in the arts and science. Oceans have also played a crucial role in feeding parts of humanity and on facilitating transportation. Overall, humanity has an intimate and complex relationship with the vast expanses of saltwater that give our planet its nickname of the ‘blue planet’. Sadly, humanity’s relationship with marine life has been detrimental to the latter and has led to a period of mass extinction.Footnote ¹ The causes of this tragedy are multiple and include overfishing, habitat destruction, pollution, acidification and climate change.Footnote ² Overfishing remains the main cause of marine life decline with approximately 31.4 per cent of fish stocks overfished or depleted, and 58.1 per cent fully fished.Footnote ³ Estimates have found that around 90 per cent of large marine animals, 65 per cent of wetland and seagrass habitats, 85 per cent of oyster reefs and 20 per cent of mangrove forests have disappeared.Footnote ⁴ The situation is so dire that some studies have predicted that harvested species of marine fish could disappear by 2048.Footnote ⁵

Nonetheless, our relationship with the oceans and marine life is not a lawless one, as this book aptly demonstrates. It is structured by interconnected layers of rules that in turn are structured by the United Nations Convention on the Law of the SeaFootnote ⁶ (UNCLOS).Footnote ⁷ While conservation and associated norms have increased significantly in number and form over recent decades, their effectiveness at protecting marine biodiversity is in serious doubt.Footnote ⁸ Multiple regime flaws have been identified, including weak and/or vague obligations, limited and/or ineffective enforcement and compliance measures, and political unwillingness to implement or ratify existing obligations.Footnote ⁹ While these issues should not be ignored and underline important lacunae in the current marine biodiversity protection regime, they offer a limited perspective. In other words, they explore the symptoms (e.g., weak enforcement) rather than the causes of regime failure. Any serious reflections on the role and rule of law in the design of solutions to ocean and coastal problems must dive deeper and look at the structures that mould law to avoid adopting new rules that produce the same results.

This chapter analyses the inability of the law of the sea to slow down or halt marine biodiversity decline from a critical perspective, that of green legal theory (GLT). Its aim is to briefly demonstrate the entanglement of the UNCLOS marine conservation framework with economic growth and to begin reflecting on how to move past the limitations of this framework to build better rules for the protection of marine life. The chapter begins with a summary of GLT and its applicability to the law of the sea context. Then, it analyses the current law of the sea regime regarding conservation of marine life through a GLT lens. The chapter ends by looking forward and thinking through means of reimagining the regime, focusing on the future UNCLOS implementing agreement on biodiversity beyond national jurisdiction (BBNJ Agreement).

11.2 A Green Legal Theory Framework for the Law of the Sea

GLT builds on and inscribes itself in the ‘green theory’ movement, which stems from the application of broader scholarship on deep ecology and environmental philosophy to particular fields.Footnote ¹⁰ The reflections on human and societal relationship with ‘nature’ brought on by green theory have triggered various legal queries,Footnote ¹¹ particularly examination of the role of law ‘in both creating systemic unsustainability, and in impeding or facilitating its resolution. From this vantage point, environmental law must be assessed self-reflectively, both as a field of intellectual endeavour and as a vehicle for practical action, with particular attention to its often implicit theoretical underpinnings’.Footnote ¹²

GLT uses the concept of ‘constitutive processes’ as its central tool to study environmental law. Through this concept, it ‘seeks to re-orient the attention now directed to downstream “legal laws” to develop a new understanding of the upstream constitutive “dynamics” of material and cultural production that today lie largely undisturbed behind the environmental law paradigm’.Footnote ¹³ Constitutive processes do not simply inform law; they constrain law and other institutions; they act as a form of meta-normative framework for law and other aspects of society.Footnote ¹⁴

Economic growth, and its parent philosophy, liberalism, is the main constitutive process studied by GLT. One of the central roles of the State within liberalism is to facilitate the exercise of economic freedoms, usually through the ‘market’. The resulting economic growth can be used to generate revenues, which are in turn used to fund programmes that soften the harsher element of capitalist modes of production.Footnote ¹⁵ Economic growth thus acts as a meta-goal of the State, on which the rest of society is structured; it becomes a constitutive process. Challenging economic growth becomes challenging the liberal politico-juridical system itself.Footnote ¹⁶ Environmental law, within this system, is thus prevented from addressing the underlying causes of environmental degradation: economic development. It acts, instead, as a way to mitigate the worst impacts of economic activities in order to render them more acceptable – to legitimise them – without going as far as seriously limiting growth. GLT calls this concept the law of mitigated production.Footnote ¹⁷

GLT is a particularly apt framework of analysis for the marine biodiversity protection regime given the historical link between economic activities, use of the seas by the European powers and the international rules they have instituted for ocean governance.Footnote ¹⁸ It can help us better understand the place economic growth occupies, the role it plays, within the regime – even in provisions traditionally viewed as focused on conservation – and highlight how law can legitimate and facilitate the demands of economic growth.Footnote ¹⁹ While GLT was developed in a national context, it is an inherently flexible approach that resists legal boundaries, especially given the dominance of liberalism within the international legal system.Footnote ²⁰ Moreover, international law is not only structured by liberalism but also serves as a vehicle for the propagation and imposition of liberalism throughout the globe through its imperialist, colonialist and globalising roots and effects.Footnote ²¹

Such a critical perspective of the regime is necessary because it highlights the limits or the issues with a rule-of-law approach to marine biodiversity decline. GLT demonstrates that a thin understanding of the rule of law (i.e., ensuring States follow the law) is problematic given the role law plays in environmental degradation, and that a thick understanding (i.e., a substantive understanding based on criteria such as democracy and human rights) is insufficient if it does not challenge the constitutive processes that are preventing law from addressing ecological degradation.Footnote ²²

However, GLT goes further than critiquing and attempts to envision law – environmental law specifically – as a potential transformative tool. The ultimate, and perhaps utopic, goal of GLT is to re-form (re-create or re-constitute) the system entirely to purge it of its destructive or harmful elements and thus ensure good relations with the environment and within society. Before exploring what re-formation could look like for marine biodiversity, the next section identifies some of the key structural issues within the current legal regime for marine life conservation. This step is crucial in determining why the regime is failing and, consequently, how to proceed with its re-formation (i.e., how to avoid past mistakes).

11.3 Economic Growth and UNCLOS’ Framework for Marine Biodiversity Protection

UNCLOS and its implementing agreement, the United Nations Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Migratory Fish Stocks (UNFSA),Footnote ²³ form the current global conservation regime for ‘marine living resources’.Footnote ²⁴ UNCLOS codified States’ jurisdiction over their coastal fisheries through the new Exclusive Economic Zone (EEZ) (up to 200 nautical miles (nm) except for the 12nm territorial sea).Footnote ²⁵ Specifically, coastal States possess sovereign rights over natural resources, including ‘marine living resources’, in their EEZ.Footnote ²⁶ The rest of the oceans are part of the high seas where States retain their freedom to fish, subject to applicable rules of international law.Footnote ²⁷ The rights of States over living resources in their EEZ were counter-balanced by the establishment of conservation duties.Footnote ²⁸ The general duties require States to set total allowable catches for stocks and set conservation measures, taking into account best available science, to ensure that such stocks are not endangered by overexploitation.Footnote ²⁹ Conservation measures must also maintain or restore stocks at levels that can produce the maximum sustainable yield (MSY) taking into account international standards, stocks’ interdependence and the impact on associated species.Footnote ³⁰

Despite these obligations, commercial exploitation did not slow down.Footnote ³¹ Instead, the regime, pushed by the imperative of economic growth, led to an increase in the total amount of commercial exploitation.Footnote ³² The EEZ regime contains two internal indicia of its commercial nature. First, MSY is specifically allowed to be based, in part, on economic needs.Footnote ³³ Second, the goal of the regime is the ‘optimum utilization of the living resources’, in other words to provide maximum economic outcomes.Footnote ³⁴ These legal technologies result in immediate economic imperative taking precedence over any other considerations and exemplify the commercial nature of EEZ fisheries obligations.Footnote ³⁵ The language of conservation in the regime acts as the law of mitigated production, that is, conservation measures (e.g., time and place of fishing or specifying the types of nets to use) are peripheral to the real concern (exploitation), which goes unanswered. Measures that could significantly reduce exploitation – such as reducing fishing fleets, prohibiting the harvesting of certain species, creating quotas based on food security and sovereignty and ecosystem health, favouring small-scale and subsistence fisheries, reducing and potentially limiting commercial exploitation altogether – are simply not on the table as they would have unacceptable economic consequences within the economic growth paradigm.

The EEZ regime is also anchored in the Eurocentric and imperialist conception of sovereignty,Footnote ³⁶ which is reproduced in the concept of sovereign right over natural resources. M’Gonigle and Takeda specifically highlight sovereignty as an important structuring framework for environmental issues.Footnote ³⁷ Their proposition is strengthened by Porras, Natarajan and Khoday, who have demonstrated how sovereignty is defined by and founded on States’ ability to exploit their territories’ resources.Footnote ³⁸ The EEZ regime transposes this logic of exploitation in the oceans by creating an imperative to exploit ‘marine living resources’ to assert States’ (quasi)sovereignty in the EEZ as exemplified by the objective of optimum utilisation and the obligation to give to other States the ability to exploit the ‘surplus’ of resources when the coastal State is incapable of exploiting it.Footnote ³⁹ The latter operates, in a sense, as a demonstration that sovereign rights are absolute (to the extent allowed by international law) only when coastal States are able to fully exploit their ‘marine living resources’. In line with the narrative of economic growth, however, States have generally fully or ‘optimally’ exploited their stocks.Footnote ⁴⁰

In the high seas, freedom of fishing continues to be a significant obstacle to the preservation of marine life by providing legal justification for fairly unrestricted commercial fisheries.Footnote ⁴¹ The high seas’ conservation duty – which must be fulfilled in cooperation with relevant States and/or regional fisheries management organisations (RFMOs)Footnote ⁴² – is based on the concept of MSY and thus suffers from the same issues described previously.Footnote ⁴³ The duty to cooperate, being a duty of conduct rather than result,Footnote ⁴⁴ is of little assistance in countering the economic growth narrative that permeates the law of the sea and the competitive nature of capitalism, especially since the duty assumes good faith.Footnote ⁴⁵ Furthermore, conservation measures that result from cooperation are not automatically better than unilateral ones and are still subject to the logic of economic growth.

UNFSA implements the UNCLOS general conservation obligations regarding straddling and migratory stocks.Footnote ⁴⁶ UNFSA emphasises the need to coordinate conservation measures between EEZs and the high seas, and makes participation in RFMOs mandatory for State parties.Footnote ⁴⁷ It also establishes a list of conservation obligations including adopting measures based on the precautionary and ecosystem approaches.Footnote ⁴⁸ Despite these advances, UNFSA has not been successful at stemming the decline of marine biodiversity.Footnote ⁴⁹ The agreement’s ineffectiveness is due in part to the fact that, while its language is more centred on biodiversity protection, it is very much still a resource management and exploitation agreement. UNFSA shares the same lacunae as UNCLOS concerning cooperation, and the need for conservation measures to ‘promote the objective of [stocks’] optimum utilization’ and be designed around the concept of MSY.Footnote ⁵⁰ The approaches of the agreement, however, add new variables.

The precautionary approach – ‘[t]he absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures’Footnote ⁵¹ – has some potential as a legal technology regulating the uncertainties of human–environment interactions.Footnote ⁵² Its operationalisation in UNFSA is, however, limited. The agreement transforms the approach in a management tool centred on obtaining data on fish stocks, enhancing monitoring and setting reference points for stocks’ health.Footnote ⁵³ As with MSY, precautionary measures need to take into account ‘existing and predicted … socio-economic conditions’,Footnote ⁵⁴ which in a context dominated by economic growth tends to favour short-term economic benefits. This language is part of neo-liberalism’s modernisation of ecology; that is, an approach centred on techno-scientific and economic management in line with the primacy of economic growth.Footnote ⁵⁵ Risk is managed by avoiding delaying conservation measures rather than prescribing necessary actions to prevent the risk from manifesting in the first place. Prevention means that in many respects fishing licences, for example, should simply not be issued unless the risk can be justified by concrete needs beyond purely economic considerations (e.g., to allow coastal population access to local food sources). However, such preventative measures are usually not ‘cost-effective’ as they require rejecting activities that generate profits and run counter to the optimum utilisation of the resource.Footnote ⁵⁶

The ecosystem approach – ‘a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use’Footnote ⁵⁷ – is in a similar boat. An ecocentric or similar conceptualisation of the approach holds a lot of potential in terms of shifting how we conceptualise conservation.Footnote ⁵⁸ Nonetheless, UNFSA’s use of the ecosystem approach is not spelled out; rather it is implied from several of its principles. It is thus undefined, which leaves considerable room for interpretation, especially considering the inherently ambiguous nature of the approach.Footnote ⁵⁹ Soft law instruments offer a more precise picture; one where ecosystem considerations are subordinated to human interests, especially economic considerations.Footnote ⁶⁰ The ecosystem approach is even considered by the Food and Agriculture Organisation as compatible with typical fisheries management practices, which are based on the (economic) production framework responsible for depletion of stocks.Footnote ⁶¹ The approach is thus relegated to a management tool of ecological modernisation aimed at ‘tackling the negative externalities of industrial modernity, preserve the resource base necessary to sustain global production and consumption patterns, and thus legitimate contemporary ecological regimes of accumulation’.Footnote ⁶² In the end, the UNSFA is a sophisticated law of mitigated production: it paints a picture of conservation and sustainable management, adding legitimacy to the regime, without fundamentally addressing the issue of economic exploitation of marine life, the root cause of the problem. It remains firmly situated with the constitutive process of economic growth.

Overall, the UNCLOS conservation regime is simply incapable of meaningfully dealing with the fundamental causes of fisheries decline.Footnote ⁶³ In other words, the law of the sea’s first aim is to create a regime permitting and even encouraging the exploitation of marine life, with a subsidiary aim of attempting to ensure the ‘sustainability’ of the former. Therefore, calls for States to simply ‘obey’ the law or even for substantive reforms without challenging the economic growth paradigm, have a high risk of simply reproducing the flaws identified by GLT. If we are to use ocean law as a mean to engender or participate in the re-formation of constitutive processes beyond economic growth and towards ecological sustainability, we need to think strategically about how we push or advocate for the ‘rule of law’, as doing so uncritically could hinder paradigmatic shifts and potentially result in further marine biodiversity decline.

11.4 Forging a New Future for Marine Biodiversity Protection: Strategic Revolution and the Law

Offering a diagnosis is often easier than suggesting effective remedies. One thing is clear: legal reforms – adopting more conservation rules within the current system – are insufficient to initiate the type of deep cultural and structural changes needed to address wicked problems such as marine biodiversity decline.Footnote ⁶⁴ The typical option for massive radical change is revolution. However, revolution seems unlikely, at least in the short term, as ‘the structural transformation of the capitalist growth economy and the consumer culture … regard[ed] as indispensable if large-scale catastrophe and social collapse are to be averted, is nowhere in sight’.Footnote ⁶⁵ This binary of absolute – reform or revolution – is not only false but counterproductive. As Knox suggests, instead of focusing on this binary, we should focus on strategy and tactics: ‘in a long-term, structural, and strategic sense, we wish to overthrow the existing order. But in a short-term, conjunctural, tactical sense it is necessary to work within it. The task, then, is to figure out how these interrelate’.Footnote ⁶⁶ De Lucia goes in the same direction, suggesting that such an approach

This thinking fits perfectly within the GLT pragmatic approach to the re-formation of law.Footnote ⁶⁸ This approach, which can be named strategic revolution, does not abandon (international) environmental law, but instead contextualises it, provides it with a better understanding of the hegemonic structures in which it operates, and thus allows the strategic use of law, in addition to other social actions, to instigate deeper changes and challenge existing constitutive processes.Footnote ⁶⁹ There is no precise method or way of undertaking strategic revolution in law. Rather, such actions are simply guided by their aim of re-formation and by a need for flexibility, as some actions may become inefficacious and would need to be replaced. Typically, however, a constellation of actions is needed, as only rarely will one change to the law be able on its own to push back against existing constitutive processes.

Measures that could qualify as strategic revolution within the law of the sea have already begun to be explored by a burgeoning scholarship.Footnote ⁷⁰ The proposed or existing legal measures have a common element, one that makes them re-formative: they all seek to displace economic growth as a constitutive process. For example, Indigenous law offers a completely different paradigm based on deep kinship, spiritual and cultural connections to the environment that behave, in a way, as their own constitutive process. Allowing Indigenous peoples to govern the marine spaces that are part of their territory and adapting non-Indigenous law along the same lines – e.g., based on notions of Earth Jurisprudence – could offer an emerging counter-process to economic growth.Footnote ⁷¹ The current negotiation for a BBNJ Agreement offers a potential avenue to introduce such elements of strategic revolution in the marine biodiversity protection regime.

The current draft of the BBNJ Agreement (18 November 2019 version) creates three mechanisms: (1) area-based protection and management measures (ABPMM) with a focus on marine protected areas (MPA); (2) environmental impact assessments (EIA); and (3) sustainable use of genetic resources.Footnote ⁷² The EIA provisions act as a detailed implementation of the UNCLOS EIA obligations.Footnote ⁷³ These types of provisions are useful in providing information on marine activities and their impact on the marine environment. Beyond that, they are a perfect example of ecological modernisation, focusing on mitigating potential impacts, technocratic input and managing economic activities to make them ‘greener’ without questioning the activities themselves.Footnote ⁷⁴ EIA focuses on procedure more than substance and, ultimately, the agreement does not provide a clear limit on activities; in other words, it does not impose a firm answer as to what projects are environmentally unacceptable and thus which projects should be rejected.Footnote ⁷⁵ The marine genetic resources provisions offer even less of a potential for strategic revolution.Footnote ⁷⁶ The provisions conceptualise marine biodiversity as a source of genetic resources that produces economic benefits and can be appropriated in the form of intellectual property, rather than intrinsically valued, accessible to all and for the benefit of all.Footnote ⁷⁷ This approach fits squarely in the commercialisation of marine life and the narrative of economic growth.

The provisions on ABPMM offer more re-formative potential.Footnote ⁷⁸ The BBNJ Agreement would create a mechanism to establish ABPMM in areas beyond national jurisdiction. State parties will be able to propose ABPMM to be adopted by the conference of parties (COP). ABPMM are to be identified based on, inter alia, the ecosystem approach, and best available science and, potentially, Indigenous peoples’ traditional knowledge. Once an ABPMM is adopted, State parties must conform to it, but are allowed to adopt more stringent measures. Notwithstanding the issue of participation, which could make or break the agreement, there are some areas of concern with the proposed ABPMM. First, the agreement does not define the ecosystem approach, which is problematic as the approach is susceptible to being captured by the narrative of economic growth.Footnote ⁷⁹ There is also potentially problematic language in the objective provisions regarding ‘sustainable use’ and ‘socioeconomic objectives’.Footnote ⁸⁰ While the use of marine biodiversity is not per se problematic (rather it is the hegemonic conceptualisation of use as economic exploitation that is problematic), this language is often interpreted or conceptualised through the lens of economic growth and serves to legitimise exploitation through the language of sustainability. Second, the Agreement is currently framed as not prejudicing the rights and obligations under UNCLOS and has to be implemented so as not to undermine other global or regional agreements (e.g., UNFSA and RFMOs).Footnote ⁸¹ This is concerning given the GLT critique of the UNCLOS conservation regime. If the Agreement cannot address the main cause of marine biodiversity decline – overexploitation, which is not adequately addressed by the current regime – its ability to instigate positive change within the regime is in question.

Nonetheless, the potential of ABPMM, especially MPA, should not be dismissed; State parties will ultimately determine their normative content and have a certain degree of leeway to use these measures strategically. Their strength lies in their ability to create a legal ‘bubble’ or ‘space’ where ‘normal’ rules do not apply. In these spaces, different rules based on considerations other than economic growth can be implemented with the flexibility needed due to the complexity and interconnected nature of marine ecosystems. Sensitive or vulnerable ecosystems can obtain robust protection through MPAs, where the prime objective is ecological integrity. MPAs can then be interconnected through networks of other MPAs and other, less stringent, ABPMM. These other ABPMM could better accommodate human needs without the pressures of economic growth and within the limits of ecosystems. These spaces could eventually demonstrate that better cohabitation with the marine environment is possible. The BBNJ Agreement could eventually serve as a central institution that ensures a form of global marine spatial planning for marine biodiversity, in tandem with other relevant institutions, to ensure maximum efficacy and coordination with national measures.Footnote ⁸² Hopefully, the eventual success of the regime could push States to re-form fisheries conservation along the same lines.

States can begin this work by ‘testing’ measures within their jurisdiction and using their success to push for change at the international level through various channels, including BBNJ Agreement measures. These could include fleet reduction, blocking the fisheries trade from overexploiting States, establishing a moratorium on certain commercial fisheries while reducing others, evaluating population needs for ‘living resources’, establishing networks of ABPMM within their EEZ, and the like. Some measures may start as unilateral measures that go against the established legal order.Footnote ⁸³ This is why strict adherence to the (thin) rule of law is counterproductive to strategic revolution and ultimately the safeguard of marine biodiversity. To put it differently, the law may have to be ‘broken’ (to a certain extent) to be ‘rebuilt’. This is likely a necessary step given the incompatibility of the liberal paradigm of contemporary international law with effective ecological protection. Unilateral and multilateral measures through the BBNJ Agreement could, step by step, create a new paradigm for the law of the sea, a new rule of law for the oceans detached from the demands of economic growth. Ultimately, whether the BBNJ Agreement can be an instrument of strategic revolution will depend both on the final text and its subsequent implementation by State parties individually and through the COP.

11.5 Conclusion

Marine life, treated as a commodity or a ‘living resource’, is currently subject to the rule of economic growth through the law of the sea. Conservation obligations are simply mobilised to increase the legitimacy of the regime by mitigating negative effects (symptoms) without challenging our destructive relationship with marine life (the disease). Overall, as highlighted by GLT, economic growth is omnipresent within the UNCLOS ‘marine living resources’ regime, and its influence should not be underestimated by anyone who cares about the state of marine biodiversity and the biosphere more generally. The move towards a law of the sea capable of reversing marine biodiversity decline is not easy or straightforward. Simply demanding respect for the law or insisting on an uncritical rule of law will lead to more of the same. To strategically mobilise the rule of law, we will need concerted and constant efforts to shift the liberal paradigm of law through various actions challenging the constitutive process of economic growth; this will require strategic legal revolution. The BBNJ Agreement may offer a starting point, but global pressure on States to prioritise marine biodiversity over economic growth will be needed. In the words of Angela Davis: ‘[y]ou have to act as if it were possible to radically transform the world. And you have to do it all the time’.Footnote ⁸⁴ That goes for our socio-political and legal actions concerning the oceans.

12.1 Introduction

Climate change is altering the ocean through warming, acidification, deoxygenation and other stressors. Taking the troubling state of global fish stocksFootnote ¹ and the decline in global biodiversity levelsFootnote ² into account, this paints an alarming picture.Footnote ³ A pervasive yet overlooked issue is the impact of climate change on the distribution of fish stocks and other marine species (marine living resources or MLRs), which causes governance issues and threatens the rule of law for the oceans. For example, when fish move across static jurisdictional and management boundaries, they may become unregulated and risk being overexploited.Footnote ⁴ Shifting fish stocks threaten the certainty, predictability and stability of the international fisheries legal framework. They also undermine conservation and management measures (CMMs) by coastal States and regional fisheries management organisations or arrangements (RFMO/As), impeding sustainable exploitation and conservation of global fish stocks.Footnote ⁵

To address these challenges, the legal framework applicable to fisheries and marine biodiversity must be flexible and adaptive in response to redistribution of fish stocks across scales, or risk undermining the rule of law. Since this framework does not directly account for species shifts, it has been argued to constitute a ‘governance gap’ requiring urgent attention.Footnote ⁶

This chapter assesses whether and to what extent the international legal framework adequately places an obligation on States to adapt to the complexities caused by MLRs shifting their location, in order to ensure legal certainty, stability and predictability and maintain the rule of law. First, it outlines the main issues caused by fisheries redistribution (Section 12.2). Second, it assesses whether the key principles and obligations within the international legal framework are fit for purpose to address these issues (Section 12.3). A systemic interpretation of relevant provisions from the United Nations Convention on the Law of the Sea (UNCLOS),Footnote ⁷ the Fish Stocks Agreement (UNFSA),Footnote ⁸ the Convention on Biological Diversity (CBD),Footnote ⁹ the Convention on Migratory Species (CMS),Footnote ¹⁰ as well as the international climate law regime,Footnote ¹¹ indicate a general obligation on States, either individually or through RFMO/As to adapt management and conservation of MLRs to the effects of climate change. Section 12.4 explores potential solutions that might strengthen adaptive responses to fisheries redistribution within this framework, thereby helping to maintain the rule of law.

12.2 Fisheries Redistribution under Climate Change

This section provides a brief overview of the ever-growing body of scientific literature on marine species redistribution under climate change, followed by the jurisdictional and managerial challenges this causes, which constitute the so-called governance gap that the international legal framework must address to maintain the rule of law in response to environmental change.

12.3 The International Legal Framework: Fit for Purpose?

Several international legal instruments constitute the framework governing States’ rights and obligations with respect to the use of oceans and their resources, including fisheries and protection of the marine environment. Regional agreements and their commissions, including RFMO/As, play a similar role in regional seas or in areas beyond national jurisdiction (ABNJ), providing finer detail for cooperative management needs specific to a certain region. However, the fact that ‘the current legal framework for the international regulation of fisheries does not directly account for fluctuating or changing distributions’Footnote ³⁷ has been argued to constitute a gap in the law and governance regime applicable to MLRs, risking conflict and overexploitation of species and undermining the rule of the law for the oceans.

Working with the legal instruments already at hand in response to such pressing issues is vital, considering the urgent need to adapt. In assessing whether the international legal framework is fit for purpose, this section outlines its relevant features that could facilitate effective adaptation to marine species redistribution. The framework is presented as key obligations and principles within several multilateral instruments. This is done to stress the importance of systemic and evolutive interpretation of the international legal framework to address new challenges to the marine environment, maximise efficiency of existing fragmented legal rules and address and avoid governance gaps, thereby strengthening the rule of law.

12.4 Adaptive Responses to Fisheries Redistribution: Strengthening Solutions

Having attested to the adequacy of the international legal framework to facilitate adaptation to fisheries shifting distribution under climate change, this section briefly outlines two potential solutions that reflect the urgency of the need to adapt, and could help further strengthen the rule of law in this area.

The first involves exploiting the potential of the precautionary principle and EAF in implementing the obligations outlined earlier. The precautionary principle in combination with the obligation to cooperate could help in pushing States to agree pre-emptively to ensuring bi- or multi-lateral fisheries agreements for a stock that may become transboundary. This could prevent conflicts arising when a fish stock shifts primarily into the jurisdiction of one State, which might be inclined to exploit that stock unilaterally.Footnote ¹⁰⁷ Considering the EAF, which is widely accepted and called for in various international instruments,Footnote ¹⁰⁸ aims to apply a holistic approach and account for ecosystem structure and function, and considers transboundary species and ecosystems,Footnote ¹⁰⁹ is an important feature in addressing the problem of climate driven shifts. However, since depletion of some and arrival of new species due to climate change creates novel ecosystems, this complicates application of the EAF. In order to address this, guidelines on the application and implementation of the EAF should be revisited in light of climate change.Footnote ¹¹⁰

The second taps into the role of the Food and Agriculture Organization of the United Nations (FAO) and its role in developing the international legal framework for fisheries and the marine environment. The FAO has developed a plethora of scientific and technical documents on the impacts of climate change and fisheries,Footnote ¹¹¹ as well as on the EAF,Footnote ¹¹² and also provides technical assistance to RFMO/As. The FAO Committee on Fisheries (COFI) recommended its members to strengthen efforts to assess change in distribution of fish species in response to climate change.Footnote ¹¹³ The FAO has adopted many legally binding and non-legally binding instruments that aid various fisheries and marine environmental obligations. COFI has requested development of guidelines that focus on climate change impacts on fisheries in recent years.Footnote ¹¹⁴ These could perhaps aid in developing the EAF vis-à-vis climate change, facilitate cooperative management both bilaterally and within an RFMO/A context, and as such would be incredibly valuable in assisting States in implementing their obligations to adapt fisheries management in response to climate change.

To conclude, the international legal framework can facilitate adaptation to marine species redistribution under climate change, and can be described as adequate at best, and not a barrier at worst. There is a greater need for States and legal researchers to engage with the jurisdictional and managerial problems created by the redistribution of fisheries and other marine species. In terms of state practice, a regional approach and cooperation through appropriate regional bodies such as RFMO/As and FAO is vital for effective adaptive management. Further, these regional bodies must enable adaptive management through inter-institutional cooperation, and engagement with research. In terms of research, the need is for greater multi- or cross-disciplinary research exploring the role of dynamic management of marine biodiversity while ensuring the law applicable to it is still robust enough to provide safeguards for marine species conservation facing climate impacts.

13.1 Introduction

Recent technological advances have provided scientists with more opportunities to explore the richness of marine life.Footnote ¹ One particular element of marine biodiversity that has sparked interest within scientific circles is the utilisation of marine genetic resources (MGRs).Footnote ² While international law and literature lack a universal definition of MGRs, there is growing interest among States in MGRs, which can be depicted by the ongoing negotiations on an international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) under the auspices of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).Footnote ³ It is pivotal to examine the implications of divergences in meanings of MGRs, as a universal definition of that term might also be of potential importance to several existing regimes.Footnote ⁴

Understanding the elements of the definition of MGRs and its scope is a way forward to better protecting marine biodiversity, as managing MGRs without full comprehension of their nature is challenging. A compass in the form of a working definition of MGRs will help navigate the sea of uncertainties and strengthen the rule of law. At its most basic level, the rule of law means that no one is above the law; in other words, all individuals are subject to the law.Footnote ⁵ In the international arena, the rule of law supports the argument that parties to multilateral environmental treaty regimes need to act in a manner that renders application of their legal provisions equally among them. In order to achieve that, some key values of the rule of law should be taken into consideration while drafting texts of treaty regimes. It is evident from the literature that rule of law values include, but are not limited to, predictability, clarity, certainty, coherence and stability.Footnote ⁶ In the context of this chapter, the rule of law is understood as ensuring legal clarity and legal certainty in environmental regimes regulating to MGRs. Definitions that provide legal clarity and legal certainty and are interpreted in ‘good faith in accordance with the ordinary meaning’ in line with the 1969 Vienna Convention on the Law of Treaties (VCLT) ensure that parties within treaty regimes can predict their obligations and rights according to the provisions embedded in the text of those regimes.Footnote ⁷ Providing a clear, working definition of MGRs will help with a universal understanding of MGRs across existing and future MGR-related regimes and relationships between rules included in those regimes.

The chapter is divided into five sections and begins with a brief review of the role of the definition of genetic resources in defining MGRs, before moving on to a review of the material scope (i.e., the nature of MGRs) of the definition of MGRs. The following section discusses the geographical scope (i.e., areas in which MGRs are found) of the definition of MGRs. The last section provides a working definition of the term ‘MGRs’ and the future outlook.

13.2 Starting Point: Genetic Resources

Neither law nor literature provides a definition of the term ‘MGRs’. What might appear surprising to some is that the UNCLOS, which has often been referred to as ‘a constitution for the oceans’ does not define MGRs. However, a consensus exists among scholars that Article 2 of the Convention on Biological Diversity (CBD), which defines genetic resources, should be a starting point in defining what constitutes MGRs.Footnote ⁸ States’ delegations in the ongoing BBNJ negotiations also agree that the definition of MGRs in the future treaty should be built on Article 2 of the CBD.Footnote ⁹

Under the CBD, genetic resources are defined as ‘genetic material of actual or potential value’, in which ‘genetic material’ contains ‘any material of plant, animal, microbial or other origin containing functional units of heredity’.Footnote ¹⁰ The term ‘genetic resources’ was not commonly used as a legal concept prior to adoption of the CBD.Footnote ¹¹ However, after its inclusion in the operative text of that regime, the term has been invoked in a few international treaties, debates, negotiations and documents.Footnote ¹²

It should be stressed that the CBD is one of the most widely ratified treaties in international law (i.e., as of 2022, the CBD has 196 members and 168 signatories). The work of its Committee of Parties and subsidiary bodies has contributed significantly to the understanding of marine biodiversity.Footnote ¹³ However, the definition of genetic resources included in Article 2 of the CBD raises some concerns about its legal clarity and legal certainty as the elements of that definition are not explained in the text of the CBD.Footnote ¹⁴ Thus various actors might act in different ways in response to an ambiguous law, which hinders the normative effect of the law. For example, there may be confusion regarding the access and benefit sharing (ABS) provisions embedded in the CBD. Users (e.g., industry researchers including agriculture, cosmetic and pharmaceutical industries, or research institutes) and providers (i.e., States with sovereign rights over natural resources under their jurisdiction) of natural resources might have different interpretations of elements of the definition of genetic resources, which are not clearly elaborated.

The drafting history of the CBD does not provide further clarification of the definition of genetic resources provided by Article 2 of the CBD.Footnote ¹⁵ Against this backdrop, it is necessary to untangle elements of definitions included in Article 2 of the CBD. While some terms used in the definition of genetic resources in Article 2 of the CBD are self-explanatory, that is, plant (e.g., floating and rooted plants), animal (e.g., mammals, birds, fish, reptiles, amphibians), microbial (e.g., bacteria, yeasts) or other origin (e.g., fungi), other terms need further elaboration.Footnote ¹⁶ Three separate elements that should be analysed are; ‘functional units of heredity’, ‘of actual or potential value’ and ‘material’.Footnote ¹⁷ Examining these building blocks of the definition of genetic resources is worthwhile, as they have significant implications on defining MGRs. All three terms are discussed in the next section under the material scope of the definition of MGRs.

13.3 Material Scope

13.4 Geographical Scope

Defining the term ‘marine’ and establishing the limits of the area covered by that term is a prerequisite for drafting a working definition of MGRs. The word ‘marine’ has common definitions. The Cambridge Dictionary defines the word marine as ‘related to the sea or sea transport’,Footnote ⁵⁵ whereas the Léxico Dictionary defines it as ‘relating to or found in the sea’.Footnote ⁵⁶ Both definitions are similar in that they point towards the correlation between the word marine and sea.

While the UNCLOS does not define the term ‘marine’, protection and preservation of the marine environment are one of the main aims of that regime.Footnote ⁵⁷ As a legal treaty that has codified pre-existing customary international law on the law of the sea, the UNCLOS had been drafted to regulate seas and oceans.Footnote ⁵⁸ Thus, in the context of the UNCLOS, the word ‘marine’ extends to oceans as well. The term ‘marine’ can be found in the substantive texts of the Antarctic treaty and the Convention on the Conservation of Antarctic Marine Living Resources,Footnote ⁵⁹ where it also should be interpreted as referring to the oceans. In addition, the word ‘marine’ refers to the seas within the texts of many regional sea conventions.Footnote ⁶⁰ Thus, contingent on the geographical scope of the legal instrument the word ‘marine’ might denote seas and/or oceans. Combining this conclusion with the definition of the word ‘marine’ provided by the Léxico Dictionary (i.e., ‘relating to or found in the sea’) offers the following working definition ‘found in or originating from sea or ocean’.

However, a few potential issues arise with the proposed definition. First, the status of anadromous species (e.g., salmon), catadromous species (e.g., eel) and certain species of marine birds might be difficult to determine under the scope of the proposed working definition of the term ‘marine’.Footnote ⁶¹ Given that those species do not spend their whole life in the seas and oceans, the question arises of whether they should be regarded as MGRs. Another issue to consider is the status of living organisms found on, in or under the subsoil of the seas or ocean; should those be regarded as MGRs?

Although these issues are legal (i.e., separate legal regimes, marine zones) from the scientific point of view, all these species could most likely be categorised as MGRs, as they are found in marine environments. While these issues constitute potential for further research, they are beyond the scope of this chapter. It appears that it is not possible at this time to determine the precise limits of the term ‘marine’ for the working legal definition of MGRs. Thus, the broad definition of ‘marine’ is adopted, namely ‘found in or originating from sea or ocean’.

13.5 Conclusion and Outlook

The chapter arrives at the following definition of MGRs;

As conservation and sustainable use of MGRs without fully understanding or agreeing on their nature is challenging, providing a working definition of MGRs is a crucial step forward in strengthening the rule of law and its role in protecting marine biodiversity. While the proposed definition resolves some questions surrounding the scope of MGRs, it still leaves certain issues to be addressed through future research. For example, precision is needed in delineating the boundaries of seas and oceans and uncertainties surrounding the status of anadromous, catadromous and sedentary species.

The proposed definition relies on the text of Article 2 of the CBD but adjusts it to reflect current scientific reality and to address issues with utilisation of the definition of genetic resources under the CBD. The amendments to the definition of genetic resources provided by Article 2 of the CBD should not cause negative fragmentation of law in the form of duplication or conflicts between environmental standards. On the contrary, the proposed definition of MGRs still follows the key elements of the definition of genetic resources included in Article 2 of the CBD; it also fits with the approach taken in other regimes regulating genetic resources. It is clearly visible that other regimes follow the definition of genetic resources provided by Article 2 of the CBD.

Looking ahead, an apparent way to ensure conservation and sustainable use of MGRs is to adopt a clear definition of MGRs in the future BBNJ treaty. The working definition provided by this chapter should be used. The future BBNJ treaty has the potential of setting an example for existing and future MGR-related treaties regarding making sure that the important terms are defined, adhering to legal clarity and legal certainty. Political disagreements in negotiations leading to adoption of a future BBNJ treaty should not result in loss of legal clarity and legal certainty in the text of that treaty.

It is also pivotal that further research is conducted to keep the definition of MGRs up to date with scientific developments. A balance must be maintained to keep the definition dynamic whilst ensuring it has legal clarity, legal certainty, and thus enforceability. One potential solution to achieve that is to facilitate interdisciplinary dialogue between the various actors within MGR-related regimes, which can lead to informed decisions on proposed legal definitions.Footnote ⁶² This fits with the broader argument that participation by various actors in decision-making processes can improve the quality of decisions.Footnote ⁶³