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Australia at the bbnj Negotiations and Its Potential Role in the Concluding Stages

In: Asia-Pacific Journal of Ocean Law and Policy
Author:
Sarah Louise Lothian Australian National Centre for Ocean Resources and Security, University of Wollongong, Wollongong, Australia, lothians@uow.edu.au

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Abstract

This article examines the role of Australia in the negotiations towards an International Legally Binding Instrument (ilbi) for the conservation and sustainable use of biodiversity beyond national jurisdiction (bbnj). As Australia was among the more influential players at the Third United Nations Conference on the Law of the Sea (unclos iii) and was instrumental in finding practical and effective compromise solutions, this article argues that Australia is ideally placed to take on a similar leadership role in the bbnj negotiations, particularly now that the process has reached its tail-end. This article revisits Australia’s significant contribution in the early phases of bbnj discussions and then traces Australia’s involvement and engagement with ilbi negotiations to date. This article also undertakes a historical analysis of Australia’s participation at unclos iii to outline the critical roles it played and to draw out certain lessons from that experience that may be relevant in the bbnj context.

1 Introduction

One of Australia’s most significant contributions to multilateral international relations was its role at the Third United Nations Conference on the Law of the Sea (unclos iii),1 which culminated in the adoption of the 1982 Law of the Sea Convention (losc).2 Upon its adoption, the Convention was hailed as a “Constitution for the Oceans.”3 With its widespread acceptance and application in State practice, the losc is one of the greatest accomplishments in international law.4

While the losc undoubtedly remains the pre-eminent source for the contemporary law of the sea, gaps and limitations have emerged in its framework, particularly when it comes to the protection of marine biodiversity beyond national jurisdiction (bbnj). Since the adoption of the losc, anthropogenic activities in areas beyond national jurisdiction (abnj)5 have expanded exponentially and a growing demand for ocean space and resources has resulted in an exceedingly “crowded ocean.”6 Consequently, bbnj is being confronted by a range of pressures and is now rapidly in decline,7 being lost at a rate that jeopardises the long-term resilience and sustainability of marine ecosystems.8 As this could hold potentially devastating effects, the international community has recognised the urgent need for a new comprehensive legal framework to protect bbnj.

On 19 June 2015, the United Nations General Assembly (unga) decided to develop an International Legally Binding Instrument (ilbi) under the losc for the conservation and sustainable use of bbnj.9 The development of an ilbi could signify the beginning of a new chapter in the modern international law of the sea and will necessarily entail a careful balancing of rights, obligations, and duties. As Australia was among the more influential players at unclos iii and was instrumental in finding practical and effective compromise solutions, this article argues that Australia is ideally placed to take on a similar leadership role in the bbnj negotiations, particularly now that the process has reached its tail-end, with the fourth (and possibly) final Intergovernmental Conference scheduled to take place at the earliest available date in 2022.10

This article begins with an examination of the significant contribution Australia made in the early phases of bbnj discussions before tracing Australia’s involvement and engagement with ilbi negotiations to date. This article then undertakes a historical analysis of Australia’s participation at unclos iii to outline the critical role it played and to draw out certain lessons from that experience that may be relevant in the bbnj context. This historical analysis will provide insight into Australia’s negotiating strategies, tactics, and techniques to ascertain whether these could be deployed to similar effect in the present-day negotiations. Overall, this article reflects on whether an Australian approach to multilateral diplomacy could serve as a strong basis for moving the bbnj negotiation process forward.

2 A Driving Force: Australia’s role in early bbnj discussions

Since the turn of the 21st century, the international community has become increasingly concerned with the challenges facing bbnj and the severe limitations and gaps in the current international law framework. For decades, Australia has been actively calling on the international community to explore conservation tools, including high seas marine protected areas (mpa s), to achieve effective protection of bbnj and ecosystem processes.11 In 1999, Australia’s Federal Minister for the Environment and Heritage, Senator Robert Hill echoed this sentiment at the 7th session of the UN’s Commission on Sustainable Development (csd7):

We recognise that there is currently no international mechanism to allow the declaration of mpa s outside national jurisdictions…Australia considers that such measures will become essential if we are to achieve sustainable multiple use management of the resources of the high seas, their ecosystems and their natural productivity. Otherwise, we could lose a great deal: both in terms of biodiversity and the industries which depend on it.12

Significantly, during the preparatory meetings of csd7, Australia also called for a debate on the need for improved oceans governance and encouraged the unga to take an active role in this process.13 The stance taken by Australia was consistent with its Oceans Policy which had been launched a year earlier in 1998.14 In this policy, the Australian government had committed to a pro-active international agenda and was to “provide leadership regionally and internationally” in oceans management.15

As bbnj issues were quickly becoming one of the most pressing matters on the law of the sea agenda, it was evident that Australia would need to take on a leading role in the “relatively uncharted waters of high seas conservation,” if it was to maintain its strong international reputation for oceans management.16 Following csd7, Australia jointly convened the 2001 Rolling in the Deep: Vilm Workshop that helped pave the way for future international discussions on bbnj.

2.1 Rolling in the Deep: Vilm Workshop

The Vilm Workshop was convened by Dr Anthony Koslow, a deep-sea scientist with Australia’s csiro and Dr Hjalmar Thiel of the University of Hamburg.17 The expert workshop focused on the management of risks to bbnj and explored ways conservation tools could be adapted to protect vulnerable marine ecosystems and species.18 At this workshop, scientists were able to reveal for the first time, startling video and photographic evidence of the impact of bottom-fishing activities, including the damage caused to biodiversity at cold-water coral reefs and colonies atop seamounts off Australia.19 Attention was also drawn to various inadequacies in the current law framework, including coverage gaps (with some regions and resources of abnj not covered by any regulatory framework), weak implementation of and compliance with existing arrangements and a lack of cooperation between relevant institutions and bodies. Notably, one of the options explored at the Vilm Workshop was the possibility of establishing a new international agreement to cover all problems relating to seamount ecosystems, and more broadly bbnj.20

The Vilm Workshop captured widespread attention and inspired many of its participants to join the effort to protect bbnj. This message was carried into the 2002 World Summit on Sustainable Development,21 where once again Australia was able to offer leadership when it came to ocean management issues.

2.2 2002 World Summit on Sustainable Development (wssd)

At wssd, Australia acted “as an effective middle-power” by offering global leadership and practical solutions.22 Australia was seen as “a coalition builder,”23 working closely with developed and developing countries to address oceans management issues in a way that would achieve real results.24 Australia’s influence even extended to the wording adopted in the final report. The Summit adopted language, proposed by Australia, explicitly mentioning bbnj for the first time25 and calling on the international community to “maintain the productivity and biodiversity of important and vulnerable marine” areas including in abnj.26 The wssd also committed to develop and facilitate the use of diverse conservation “approaches and tools, including the establishment of mpa s,”27 something Australia had long been calling for. In 2002, the unga welcomed the wssd commitments and called upon States and relevant international organisations to urgently consider ways of improving the management of risks to bbnj within the losc framework.28

2.3 2003 Governance of High Seas Biodiversity Conservation Workshop

Following hard on the heels of the wssd, the Australian government organised the first major international workshop on the Governance of High Seas Biodiversity Conservation, which was held in Cairns from 16 to 19 June 2003. Over 150 participants from 36 countries attended to discuss the main threats to bbnj and the gaps and weaknesses in the existing international law framework.29 The workshop was referred to as a ‘World Summit on Sustainable Development type 2” initiative hosted by Australia and drawing legal, scientific and policy experts from around the world.30 Once again, Australia was at the forefront of bbnj discussions.

The objective of the workshop was to accelerate international cooperative action to improve abnj conservation based on principles of integrated and ecosystem-based oceans management, the precautionary approach and intergenerational equity.31 The workshop identified a range of short, medium and long-term actions. Notably, the need to develop an “agreement(s) to implement the environmental and conservation obligations” of the losc to ensure the protection of bbnj was mentioned for the first time as a medium to long-term action plan.32 Overall, the workshop was considered a huge success as it provided a sound foundation for moving forward and provided a catalyst for collective action to better protect bbnj.33

2.4 UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (unicpolos)

Although bbnj issues had been raised within various fora, the process to develop the ilbi emerged from the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (unicpolos).34 In 2003, unicpolos suggested the unga invite relevant international bodies to urgently consider how to better address, on a scientific and precautionary basis, the threats and risks to bbnj.35 The recommendations from the 2004 unicpolos meeting finally prompted the unga to take action.36 On 17 November 2004, the unga established an Ad Hoc-Open Ended Informal Working Group to study issues relating to the conservation and sustainable use of bbnj. Whilst this event marks the official birth of the bbnj negotiation process, one should not discount the significant contribution Australia made in preliminary bbnj discussions, particularly its participation at the csd7, the wssd and the two international workshops it convened. Clearly, Australia was a driving force in these early stages and there is no doubt that bbnj issues would not have received the attention they deserve had it not been for the leadership Australia provided in multilateral environmental law discussions during the early years of the 21st century.

3 A Strong Proponent: Australia and ilbi negotiations

Under the auspices of the unga, Australia has continued to play an active and constructive role in the bbnj negotiation process37 and was one of the first States to express support for the development of an ilbi.

3.1 Ad Hoc Open-ended Informal Working Group (bbnj Working Group)

During the first meeting of the bbnj Working Group in 2006, the European Union (EU) proposed a new implementation agreement to the losc for the protection of bbnj.38 The EU proposal was met with strong opposition from the United States (US), Japan, the Republic of Korea, Norway and Iceland.39 This group argued that a new global instrument could interfere with existing regional and sectoral arrangements in abnj and that better implementation of existing instruments would suffice to address bbnj issues.40 Australia, on the other hand, was one of the first States to throw its weight behind the EU proposal. Even though Australia was also wary of undermining existing organisations,41 it recognised that the cost of not taking action was too high.42 The Australian delegation lamented the inadequate implementation of protective measures for bbnj (e.g. the limited application of the ecosystem approach) and called for better cooperation and coordination among bodies and agencies responsible for ocean-related issues.43 Australia was particularly concerned with the prevailing sectoral approach in abnj. While several international organisations have area-based management tools (abmt s) at their disposal, generally these sector-specific measures are spatially and/or temporally limited and do not focus on cumulative impacts.44 With no global mechanism to ensure sectoral tools are comprehensively and consistently applied in abnj,45 Australia called for cross-sectoral coordination concerning abmt s and “expressed willingness to consider new arrangements or regulatory approaches that could address implementation gaps.”46

A significant breakthrough was made at the fourth meeting of the Working Group in 2010 when delegations agreed for all future bbnj discussions to be structured around a package deal of four thematic topics, taken together and as a whole, consisting of:

  1. (1)Marine Genetic Resources (mgr s) including questions on the sharing of benefits;
  2. (2)Measures such as abmt s, including mpa s;
  3. (3)Environmental Impact Assessments (eia s); and
  4. (4)Capacity-building and the Transfer of Marine Technology (cbtt).

Despite the formulation of the package deal, Working Group discussions became increasingly polarised with several States still reluctant to open negotiations for a new instrument.47

From 2013 to 2015, the Working Group continued to engage in substantive debates on the scope, parameters and feasibility of an ilbi.48 By this point, Australia was fully committed to the development of a new agreement and was going to great lengths to assure unconvinced governments that an ilbi could “enhance coordination and cooperation without stepping on any other process’s toes.”49 Australia opined that an ilbi was feasible because it would:

continue and not disrupt the work of unclos; address gaps including fragmented oceans governance and lack of coordination of sectoral approaches; fill the legal gap related to mgr s; and be based on suitable, modest, non-duplicative governance arrangements to generate efficiencies and address present and emerging threats to bbnj.50

After intense discussions, a consensus was reached at the final meeting of the bbnj Working Group in 2015 when delegations took the historical step of recommending to the unga that a decision should be made to develop an ilbi.51 The recommendations of the Working Group were approved in unga resolution 69/292 which also established a Preparatory Committee to make substantive recommendations on the elements of a draft text.52

3.2 Preparatory Committee (PrepCom)

The PrepCom met on four occasions between 2016 and 2017 and from the outset Australia expressed optimism that the process could “arrive at positive and balanced consensus recommendations” for the unga.53 The PrepCom Chair encouraged States to make concrete and detailed proposals and invited delegations to submit their views in writing. Australia’s written submission of December 2016 sheds light on its position on the four thematic issues of the bbnj package deal. As Australia’s position on these key issues has remained largely unchanged, it is worth pausing here to broadly reflect on their views concerning each package deal element.

Turning to the first element of the package deal, Australia continues to support a “pragmatic approach” to the development of an access and benefit-sharing (abs) regime for mgr s.54 Discussions concerning access have been very divisive in the bbnj process. The main point of contention has been whether access should be regulated and conditions imposed on commercial and non-commercial research.55 Australia has indicated that it would prefer to see an abs model that does not restrict access to mgr s and one that adopts a “light approach” to benefit-sharing to support conservation objectives.56 As only a limited number of States have the technical and financial wherewithal to access and utilise mgr s derived from abnj,57 Australia has also emphasised that “fairness and equity need to be the underpinnings of a benefit-sharing structure.”58 In terms of tracing mgr use, Australia has expressed support for the establishment of some form of depository of information on mgr activities, such as a clearing-house mechanism.59

In respect to abmt s, Australia is particularly keen to see the establishment of a system of ecologically representative and well-connected high seas mpa s.60 Australia endorses a science-based approach to the development of abmt s and wishes to see key biodiversity values protected and managed, including ecosystem processes, habitats and marine areas essential for the survival, function, or recovery of particular fish stocks or rare or endangered marine species.61 Australia also supports a multi-use approach to area-based management, one that balances bbnj protection with the sustainable exploitation of oceanic resources.62 The Australian delegation has underscored the importance of using Strategic Environmental Assessments in identifying places and circumstances for applying abmt s in abnj.63

For eia s under an ilbi, Australia supports a defined threshold approach (based on a certain level of harm) to trigger the assessment process.64 While some delegations support the incorporation of a list of activities that would automatically require eia, Australia argues that the development of such a list will be burdensome and difficult to keep up-to-date in the long term.65 Australia has also highlighted that a list-approach fails to take into account the fact that the same activity can have distinct impacts in different marine areas, depending on the nature of the receiving environment.66 Australia also wishes to see a mandatory list of information for inclusion in eia reports and for the assessment process to rest primarily with flag States.67 This approach is consistent with Article 206 of the losc which requires States Parties to assess activities under their jurisdiction or control that may cause substantial pollution or significant and harmful changes to the marine environment.68

Regarding the last element of the package deal, Australia recognises that cbtt should be needs-driven and responsive to the capacity-limitations of developing States. Australia has drawn particular attention to the special circumstances of their neighbouring Small Island Developing States.69 Consistent with Sustainable Development Goal 14, Australia supports the use of a clearing-house mechanism to collect and disseminate information on cbtt programmes, projects and opportunities at international, regional and local levels to assist developing countries to engage and participate in the conservation and sustainable use of the oceans.70 On the thorny question of whether technology transfer should be mandatory or voluntary in nature, Australia favours a technology transfer regime based on mutually agreed terms and one that is respectful of existing intellectual property rights.71

While the lodgement of written submissions by States helped to clarify a few areas of convergence, the outcome report of PrepCom revealed a high level of disagreement amongst delegations concerning each element of the package deal. Despite this, the PrepCom Report still recommended for the unga to take a decision on the convening of an Intergovernmental Conference, with a view to developing an ilbi as soon as possible.

3.3 Intergovernmental Conference (igc)

On 24 December 2017, the unga decided to convene an igc to consider PrepCom recommendations.72 In opening the igc process, the President, Rena Lee, emphasised that the bbnj process presented a unique opportunity to “make a difference on how we manage the oceans.”73 This message clearly resonated with Australia. At igc 1, Australia encouraged delegations to strive towards the development of a zero draft negotiating text.74 The Australian delegation continued to favour an ambitious and universal instrument, one that built upon the losc and would “breathe new life” into the collective obligation of environmental protection.75

In preparation for igc 3, the President presented a Draft Negotiating Text on 17 May 2019, which enabled delegations to envision the final shape of an ilbi.76 This text was subsequently revised to take into account igc 3 discussions. The Revised Draft Negotiating Text was released on 18 November 2019 in preparation for the fourth (and possibly final) igc which was scheduled to begin on 23 March 2020.77 However, due to the covid-19 pandemic, igc 4 was postponed and will now take place at the earliest available date in 2022.78

After nine years of discussions by the Working Group, four sessions of a PrepCom and three meetings of an igc, bbnj negotiations have come to a critical juncture. Delegations continue to disagree on a raft of issues, and it remains unclear what effect the covid-19 pandemic will have on the bbnj negotiation process moving forward. As Australia has been such a strong proponent of an ilbi and has played an important role in facilitating bbnj discussions, it seems an appropriate time to consider Australia’s potential role in the concluding stages of the bbnj process. One way to assess Australia’s potential impact is to revisit the role and influence it was able to exercise at unclos iii.

4 An Influential Player: Australia at unclos iii

unclos iii took place from 1973 to 1982 and remains one of the largest, longest, and most complex multilateral negotiations in diplomatic history.79 As an island continent, whose economy, environment, and social fabric are inextricably linked to the oceans and its resources, Australia had a number of interests at stake at unclos iii. The most succinct expression of Australia’s objectives is contained in a statement made to the Tenth Session of the Conference on 17 March 1981 by the leader of the Australian delegation, Ambassador Keith Brennan.80 According to Brennan’s statement Australia wished to see:

  1. (1)The widespread demand of coastal States for wide resource jurisdiction in offshore waters clearly recognised;
  2. (2)The extent of sovereign rights of coastal States over the resources of the continental shelf expressed in unambiguous terms;
  3. (3)A clear and agreed formulation of the rules governing the protection of the marine environment, particularly in offshore waters;
  4. (4)A clear and agreed formulation of the concept of archipelagic waters, so that a long held aspiration of the archipelagic States, many of whom are Australia’s closest neighbours, can be realised;81
  5. (5)The uncertainties regarding the breadth of the territorial sea removed forever;
  6. (6)A clear and agreed formulation of the rules governing the right of innocent passage through the territorial sea, and rights of passage through and overflight of archipelagos, straits used for international navigation and the exclusive economic zones of States;
  7. (7)A clear and agreed formulation of the rules governing the conduct of marine scientific research in the exclusive economic zone and on the continental shelf.

With these objectives in mind, the Australian delegation was “instructed to make a constructive contribution towards a lasting Law of the Sea Convention, and at the same time to adopt a generally flexible approach in seeking a package containing the essential elements of Australia’s interests.”82

Australia was one of the most influential players at unclos iii and its policies played a key role in shaping the losc.83 Bergin has argued that one major reason behind Australia’s success at unclos iii was its adoption of four key roles, namely (i) Group Player; (ii) Initiator; (iii) Mediator; and (iv) Package Deal Custodian.84 As Bergin suggested that these roles could be useful or relevant for Australia’s participation in future UN law-making conferences,85 the bbnj negotiation process provides the perfect model.

Taking Bergin’s assessment of Australia’s key roles at unclos iii as a starting point, the following will look at the strategies, techniques and tactics of Australia under each role to draw out certain lessons that may be relevant in the bbnj context. An assessment can then be made on the extent to which Australia has already adopted these roles in the bbnj negotiation process and what impact this may have on its concluding stages.

4.1 A Group Player

Several factors made unclos iii “an enormously difficult negotiating forum.”86 Over 150 States participated in the process which involved a large and complex agenda of issues. A similar set of circumstances face bbnj negotiators. Over 250 participants attended the first meeting of the bbnj Working Group, representing governments, UN agencies, industries and ngo s, and the level of engagement by delegations has remained relatively consistent since.87 Another complicating factor for unclos iii participants was the adoption of an innovative “consensus technique that was, and still is, a unique contribution to global decision-making.”88 Before any substantive matter could be put to a vote, a determination had to be made by a two-thirds majority, that all efforts at reaching agreement had been exhausted.89 Like unclos iii, bbnj negotiators have also continually worked towards consensual outcomes.90

Taking into account the complicated factors at play during unclos iii, Australia quickly realised that the only way to establish influence was to join with other delegations in groups.91 Australia became an active participant and member of the coastal State group (which sought to extend coastal State jurisdiction), the Margineers group (critical to Australia’s continental margin claim), the Oceania group (which sought to advance the interests and archipelagic aspirations of neighbouring Pacific Island and South Asian States), the settlement disputes group and land-based producers group.92 At various times, Australia also participated in the Evenson group (which sought to find compromise solutions on all major issues), the West European and Other group and other informal consultative groups.

Joining and participating in a wide array of different interest groups was a deliberate tactic on Australia’s part. Prior to unclos iii, Australia had generally aligned itself with its traditional maritime allies, the US and UK.93 However, Australia’s position changed dramatically at unclos iii. At the Conference, Australia’s role was largely played out in groups which were often opposed to the positions taken by its friendly Western allies because Australia realised that in order to achieve its objectives “it would be necessary for the delegation to have the widest choice of negotiating partners” and to choose those partners strategically based on particular issues.94

In the bbnj negotiations, where a consensus-approach has also been adopted, it will be equally critical for Australia to work with other States as negotiating partners to address bbnj issues on an international scale. Australia’s influence during the closing stages of the bbnj negotiations could therefore stem from its ability to build coalitions and form key alliances. In a protracted process like the bbnj negotiations “only the most powerful states can stand alone and still hope to forward their interests. For the rest, participation in groups is almost synonymous with the struggle to achieve influence.”95

Throughout the bbnj process, different interest groups and coalitions have formed. Druel et al identify three major blocs, the EU and other conservation-minded States such as Australia and New Zealand; the G77/China and Mexico bloc; and the US.96 Druel et al argue that States, such as Canada, Japan, Russia, Iceland, Norway, South Korea and Singapore fall somewhere in between these three main blocs as a “grey area.”97 These groups, however, are not set in stone. For example, during the last meeting of the bbnj Working Group, the EU noted areas of commonality with the G77/China’s bloc non-paper and expressed confidence that their “two texts could be merged to represent the views of a larger group of like-minded States.”98 While Australia’s overall alignment during bbnj negotiations has been with developed countries,99 its support for friendly maritime allies is not absolute and on some occasions Australia’s views have conflicted with traditional western thinking. For example, Australia has resisted getting embroiled in the debate concerning the legal status of mgr s in the Area which involves a clash between the freedom of the seas and common heritage of mankind principles. Instead of supporting their traditional maritime allies, who are the strongest proponents of a freedom of the seas approach, Australia has adopted a middle-ground position and desires to see a pragmatic solution to this issue. Australia has also indicated their support for several proposals put forward by developing States, including the G77/China bloc’s proposal “to strengthen North-South and South-South relations, along with triangular cooperation and collaboration with regional, subregional and sectoral bodies.”100

At unclos iii, Australia was also able to use its membership of different groups to support and promote the interests of its friends and neighbours.101 For example, through the Oceania Group, Australia was able to provide practical assistance to neighbouring countries who did not have the financial or technical resources to properly monitor the various committees at the conference.102 This included secretarial assistance, reporting on key developments and advice on tactics.103 Bergin suggested that the Oceania Group actually proved to be the “most useful regional grouping for Australia” at unclos iii as it enabled the delegation “to assess not only the views of the region on Law of the Sea issues but also served to provide a window into G77 views.”104 As the G77 was (and remains) the largest intergovernmental organisation of developing countries in the UN, Australia developed a reputation at unclos iii as “a reliable interpreter of the views of developing States”105 and derived much of its insight into G77 thinking from its membership of the Oceania Group. Arguably, Australia could use its partnerships and influence in the Indo-Pacific region to similar effect in the bbnj negotiations.

Whilst unclos iii was largely structured around groups that were thematically or interest organised, the groups at the bbnj negotiations have been more regionally constructed. For example, the Pacific Small Island Developing States (psids), the Caribbean Community, the Alliance of Small Island States and the Core of Latin American Countries have been vocal in lobbying and pursuing regional interests across the package deal of issues. As Australia is currently facing the most complex and challenging geostrategic environment since the Second World War,106 it has been very focused on realising a secure, open and prosperous Indo-Pacific and has been strengthening and diversifying partnerships in this region.107 In support of its regional friends and neighbours, Australia has already started to highlight the capacity needs of Small Island Developing States in the bbnj process and the need to better disseminate existing cbtt efforts through training programmes and workshops.108 For example, as Australia has greater research capabilities, it could also play an active role in facilitating “scientific knowledge in abnj by developing equal research power and transfer technology” for its regional partners.109

Australia (together with New Zealand and Norway) has also made a joint proposal with the Pacific Small Island Developing States to include a special provision in the preamble of the ilbi recognising the UN Declaration on the Rights of Indigenous Peoples and affirming that nothing in the new instrument “shall be construed as diminishing or extinguishing the existing rights of Indigenous Peoples and local communities.”110 This joint proposal aims to “safeguard the existing rights of Indigenous Peoples and local communities in the context of seeking, transmitting and using their relevant traditional knowledge in connection with the conservation and sustainable use” of bbnj111 and is another example of Australia’s continuing display of support for the interests of its regional friends and neighbours in the on-going negotiation process.

4.2 An Initiator

While Australia was an active group player at unclos iii, it was also not shy in putting forward independent proposals. Australia made major statements on several topics at the Conference which helped to sharpen negotiations on key issues.112 For example, Australia was one of the first States to propose the parallel system for a deep-seabed mining regime under the losc.113 Australia was also not intimidated to stand alone on certain issues and often found itself at odds with both coastal States and maritime powers. An example being its opposition to the power of arrest in the exclusive economic zone.114

Over many decades, Australia has built an enviable reputation through its active involvement in international environmental issues, and it arrived at the bbnj process full of “ideas and contributions to put forward, including those shaped by its domestic and regional experiences.”115 Proposals put forward by Australia “are paid significant attention, its views are well respected and its support for the proposals of other parties is highly valued.”116

At various times throughout the bbnj process, Australia has advanced recommendations and initiatives, not only to keep negotiations on track but at times to defuse controversial issues. For example, during PrepCom, Australia (together with China /G77) called for a definition of the term “marine genetic resources” and “in doing so created an opening for other countries to give careful attention to definitional clarity” on this issue.117 Another critical issue in the bbnj negotiations has been how to articulate the relationship between the ilbi and its parent treaty, the losc. As Australia has an enduring commitment to the losc and its two Implementing Agreements, Australia has continually stressed that the integrity of the Convention must be preserved. Australia has called for the ilbi to ‘be interpreted and applied in the context of and in a manner consistent with the losc.’118 During PrepCom, Australia suggested including a provision in the ilbi consistent with Article 4 of 1995 United Nations Fish Stocks Agreement,119 which provides that ‘Nothing in this Agreement should prejudice the rights, jurisdiction and duties of States under the [losc] Convention.’120 Significantly, Article 4(1) of the Revised Draft Negotiating Text now contains such a provision.

4.3 A Mediator

One of the other main techniques deployed by Australia during unclos iii was a consistent effort to put “forward proposals that would lead to a generally accepted compromise.”121 As a middle-power Australia is well-suited to this role. Middle-powers have the “tendency to pursue multilateral solutions to international problems, the tendency to embrace compromise positions in international disputes, and the tendency to embrace notions of ‘good international citizenship’ to guide diplomacy.”122

During unclos iii, Australia embraced the role of conciliator and mediator, and this was particularly evident in the debate concerning the development of a deep-seabed mining regime. Prior to the losc, the deep seabed was open and accessible to all and free for anyone to use and exploit and there was no obligation on developed States to share the benefits derived from the mineral resources of the Area. As the main benefits of deep-seabed mining would accrue to developed States who were best placed to muster the necessary investment and technology, developing States would largely miss out. Australia recognised that in respect to the deep seabed:

if you don’t have some sort of a law then obviously the very developed places with their technology, are finally, as their resources run out, going to be able to plunder the whole of the seabed. That means the rich are going to get richer, the poor are going to get poorer. This is the driving force.123

Australia understood that the successful negotiation of a deep-seabed mining regime would “be one of the keys to the achievement of a viable and widely supported Convention”124 and supported the development of a seabed regime that would benefit the developing world. The policy adopted by Australia was basically to “steer a middle course” between the interests of developing States and the aggressive demands of developed, mainly western capitalist States.125

Australia has taken a similar approach in the bbnj negotiations in respect to the debate concerning the legal status of mgr s. The main point of contention has been the regime applicable to mgr s in the Area. Access to mgr s in abnj is open and there is currently no formal-benefit-sharing mechanism in place. A powerful bloc of States, including, the US, Japan and Russia, argue that the freedom of the seas principle, as set out in Part vii of the losc, is applicable to mgr s in abnj.126 In opposition to this, the G77 and China coalition127 maintain that mgr s in the Area should not be subject to a free access regime, and instead advocate for the application of the common heritage of mankind principle to these oceanic resources.128

Australia has taken a middle ground position on this issue. Instead of getting bogged down in a long-standing debate between antithetically opposed principles, Australia has prioritised the need “to find constructive and consensus-based ways to move forward”129 and does not believe that the two fundamental principles of high seas freedoms and common heritage “need to be in tension.”130 Instead, Australia has called for “innovation and ingenuity in dealing with mgr s, given that neither the high seas nor common heritage regimes are adapted to non-consumptive uses of resources.”131

Australia has also elected to take an intermediary position on the institutional arrangements for an abmt regime under an ilbi. A number of delegations have called for a global centralised decision-making body, in the form of a new or existing organisation, to be tasked with identifying, designating, managing and enforcing abmt s.132 However, some delegates have warned that a global model risks undermining existing bodies and frameworks, which in turn, would fall foul of unga resolutions 69/292 and 72/249 which explicitly stipulate that an ilbi should not undermine existing legal instruments, frameworks and bodies. The other option is to maintain the prevailing regional and sectoral approach. Some States argue that existing bodies are the most efficient means for regulating abmt s due to their prior knowledge and experience.133 However, it remains doubtful whether regional and sectoral bodies have the ability “to perform a wider biodiversity or ecosystem-stewardship role.”134

In contrast, Australia is a “self-proclaimed supporter of a ‘hybrid model’” which would lie somewhere in the middle of these two more extreme positions.135 As proposed by Australia, under a hybrid approach, an ilbi could set out internationally agreed standards and obligations at the global level, which could then be implemented by States at the regional and sectoral levels. Given its significant interest in regional forms of ocean governance, Australia has been particularly concerned by the prospect of an ilbi interfering with or undermining the mandates of regional bodies, particularly regional fisheries management organisations.136 Throughout the bbnj process, Australia has continued to promote abmt establishment and monitoring at a regional level and has called for greater coordination and coherence amongst existing bodies, based on global principles and best-practice standards.137 Australia’s recommendation for an ilbi to set out a process that promotes coherence between mpa s, abmt s and other pre-existing frameworks is now reflected in Article 15 of the Revised Draft Negotiating Text which requires States Parties to promote coherence and complementarity in the establishment of abmt s through relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies, without prejudice to their respective mandates.138 Australia takes the view that a hybrid model offers a pragmatic solution, one that balances international guidance and oversight, whilst utilising and respecting the mandates of existing sectoral and regional bodies.139 As the “hybrid approach looks to be the likely practical outcome that States will eventually reach on this issue,”140 Australia could play a vital role in establishing best practice international standards and principles to support and catalyse effective action at a regional and sectoral level.141 More significantly, for the purposes of this article, it appears that Australia is once again taking on its “unclos iii role of playing the part of a bridge builder,”142 by endeavouring to find solutions and compromises to bridge the gap between polarised positions.

4.4 A Package Deal Custodian

Another factor the bbnj negotiations have in common with unclos iii is the adoption of a package deal of issues. The package deal concept is an effective negotiating technique as it works on the premise that “nothing is agreed until everything is agreed.”143 Believing that the problems of ocean space are closely interrelated, participating States at unclos iii agreed to treat “the conference’s informal negotiating texts as a provisional package of indivisible constituent compromises.”144 The same reasoning has been applied in the bbnj context.

Right from the beginning of the unclos iii process, Australia realised that to achieve a comprehensive and widely accepted losc, it would be necessary for States to accept certain articles and provisions that did not meet their interests. This sentiment was echoed in the following statement by Mr H.C. Mott of the Australian delegation and Rapporteur of the First Committee of unclos iii:

I venture with diffidence, to suggest that for this work we need above all goodwill, patience, respect for the views of others, a willingness to co-operate in seeking for solutions and, finally, a disposition to compromise when the nature of those solutions becomes clear. If one thing is true it will surely be that, when we do get to the end of our road, it will be through an enlightened process of bargaining, involving not I believe the surrender of the many interests that are represented here but their reconciliation.145

Australia acknowledged that the development of the losc would necessarily entail a careful balancing of rights, obligations, and duties, and that trade-offs would need to be made to preserve the integrity of the package deal.146 In the same way, the success of an ilbi will “crucially depend on buy-in by all States.”147 Thus, Australia has the opportunity to once again take on the role of custodian of the package deal. As the polarisation of States on mgr issues is particularly acute and has the potential to derail the development of an ilbi, Australia’s traditional role as a bridge-builder could take on an even greater significance in the bbnj context and prevent the collapse of the package deal in the concluding stages of negotiations.

5 Conclusion

Australia has always paid special attention to law of the sea issues, both those of direct relevance to the country, and those having a broader international significance.148 The bbnj negotiation process is no exception. For decades, Australia has expressed concerns about the dire challenges facing the world’s oceans and its rich and diverse biodiversity and has championed and led best practice ocean management in national waters and in abnj. Australia played a leading role in first bringing bbnj issues to the attention of the international community and was a driving force behind the launch of the unga process working towards the development of an ilbi.149

To date, Australia’s diplomacy during the bbnj negotiations bears all the hallmarks of their approach at unclos iii. Throughout the bbnj process Australia has demonstrated that it is a group player and has shown a willingness to work with other States as negotiating partners to address bbnj issues on an international scale, regardless of whether those States are traditional allies. Similarly, Australia has embraced its traditional role of conciliator and mediator by focusing on finding practical and effective compromise solutions and has demonstrated a strong commitment to defend the integrity of the bbnj package-deal in order to achieve a comprehensive, strong and effective ilbi. The fact that Australia has fallen back so comfortably into the roles it executed so skilfully at unclos iii bodes well and could serve as a strong basis for moving the bbnj negotiation process forward in its concluding stages.

1

A. Bergin, Australia and the Third United Nations Conference on the Law of the Sea, PhD Thesis (Australian National University, 1990) 2.

2

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 unts 397 (entered into force 16 November 1994) (losc).

3

T.B. Koh, A Constitution for the Oceans, Statements made on 6 and 11 December 1982 at the Final Session of unclos iii at Montego Bay reprinted in M. Nordquist, United Nations Convention on the Law of the Sea, 1982: A Commentary Vol. 1, Ixv-467 (Martinus Nijhoff, Dordrecht, 1985) 11.

4

M. Hayes, The Law of the Sea: The role of Irish Delegation at the Third UN conference, 1–293 (Royal Irish Academy, Dublin, 2011) 9.

5

abnj comprise the high seas (losc, art 86) and the Area (losc, art 1(1)).

6

A. Merrie, et al, An ocean of surprises – Trends in human use, unexpected dynamics and governance challenges in areas beyond national jurisdiction, 27(1) Global Environmental Change 19–31 (2014).

7

E. Barlow, Unprecedented Marine Biodiversity Shifts Necessitate Innovation: The Case for Dynamic Ocean Management in the UN High-Seas Conservation Agreement, 27(2) Hastings Environmental Law Journal 121–144 (2021).

8

F. Rabitz, The Global Governance of Genetic Resources: Institutional Change, Structural Constraints i-186 (Routledge, London, 2017) 132.

9

Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, ga Res 69/292, UN Doc a/res/69/292 (6 July 2015, adopted 19 June 2015).

10

Oceans and the Law of the Sea, Singapore: draft decision, UN Doc A/75/L.96 (9 June 2021).

11

K. Gjerde, Participant Report of the Expert Workshop on Managing Risks to Biodiversity and the Environment on the High Seas, including Tools such as Marine Protected Areas: Scientific Requirements and Legal Aspects 16(3) International Journal of Marine and Coastal Law 515–528 (2001) 516.

12

D. Osborn, ‘Challenges to Conserving Marine Biodiversity on the High Seas Through the Use of Marine Protected Areas – An Australian Perspectives’, in H. Thiel and J.A. Koslow (Eds.), Managing Risks to Biodiversity and the Environment on the High Sea, including tools such as Marine Protected Area – Scientific Requirements and Legal Aspects, Proceedings of the Expert Workshop held at the International Academy for Nature Conservation 27 February – 4 March 2001 (Bonn, BfN-Skripten, 2001) 105.

13

Ibid.

14

Australia’s Oceans Policy, Vol. 2, Commonwealth of Australia, 1998.

15

Ibid., Vol.1 at 40.

16

Osborn, supra note 12.

17

Thiel and Koslow, supra note 12.

18

Gjerde, supra note 11, at 517.

19

K. Gjerde, ‘Perspectives on a Developing Regime for Marine Biodiversity Conservation and Sustainable Use beyond National Jurisdiction’, in H.N. Scheiber, N. Oral and M. Kwon (Eds.), Ocean Law Debates: The 50-Year Legacy and Emerging Issues for the Years Ahead, 354–380 (Brill, Leiden, 2018) 359.

20

Ibid., 364–365.

21

wssd was held from 26 August to 4 September 2002 in Johannesburg, South Africa.

22

S. Lightfoot, A Good International Citizen? Australia at the World Summit on Sustainable Development, 60(3) Australian Journal of International Affairs 457–471 (2006) 468.

23

G. Smith, D. Cox and S. Burchill, Australia in the World: An Introduction to Australian Foreign Policy, (Oxford University Press, Melbourne, 1997) 194.

24

Lightfoot, supra note 22, at 462.

25

Gjerde, supra note 19, at 365.

26

United Nations, Report of the World Summit on Sustainable Development, Resolution 2, Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002 (United Nations, New York, 2002) UN Doc. A/Conf.199/20 at 26, para. 32(a).

27

Ibid, para. 32(c)

28

Oceans and the Law of the Sea, UN Doc. a/res/57/141 (12 December 2002).

29

See AUSTRALIAN NATIONAL OCEANS OFFICE, ‘MEETING RECORD’ OF THE WORKSHOP ON THE GOVERNANCE OF HIGH SEAS BIODIVERSITY CONSERVATION CAIRNS, AUSTRALIA, 16–19 JUNE 2003, available at https://www.awe.gov.au/sites/default/files/documents/highseas-meeting-record.pdf.

30

Ibid.

31

Ibid.; Gjerde, supra note 19, at 366–367.

32

See AUSTRALIAN NATIONAL OCEANS OFFICE, SUMMARY RECORD OF DISCUSSION AND SUGGESTIONS FOR A WAY FORWARD IN WORKSHOP ON THE GOVERNANCE OF HIGH SEAS BIODIVERSITY CONSERVATION CAIRNS, AUSTRALIA JUNE 16–19 2003 available at https://www.environment.gov.au/resource/workshop-governance-high-seas-biodiversity-conservation.

33

Australian National Oceans Office, ‘Meeting Record’, supra note 29.

34

R. Warner, ‘Conserving Marine Biodiversity in Areas Beyond Natonal Jurisdiction: Co-Evolution and Interation with the Law of the Sea’ in D. Rothwell, et al (Eds.), The Oxford Handbook of the Law of the Sea, 752–776 (Oxford University Press, 2015) 765.

35

Earth Negotiations Bulletin, Summary of the Fourth Meeting of the Open-ended Informal Consultative Process on Oceans and the Law of the Sea: 2–6 June 2003 (9 June 2003) 7.

36

Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its fifth meeting, UN Doc. A/59/122.

37

K. Zischka, et al, Marine Biodiversity Beyond National Jurisdiction: Australia’s Continuing Role (Ultimo, Australian Committee for iucn, 2018).

38

Earth Negotiations Bulletin, Summary of the First Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 13–17 February 2006 (20 February 2006) 3.

39

Ibid.

40

T. Scovazzi, ‘The Rights to Genetic Resources beyond National Jurisdiction: Challenges for the Ongoing Negotiations at the United Nations’ in C. Banet (Ed.) The Law of the Seabed: Access, Uses and Protection of Seabed Resources 213–237 (Brill Nijhoff, Leiden, 2020) 5.

41

G. Wright, et al, ‘The Long and Winding Road: Negotiating a Treaty for the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction’ (Study No 08/18, Institute for Sustainable Development and International Relations, August 2018) 51.

42

Osborn, supra note 12.

43

Earth Negotiations Bulletin, Marine Biodiversity Working Group Highlights: Wednesday 15 February 2006 (16 February 2006) 2.

44

R. Tiller, et al, The Once and Future Treaty: Towards a new regime for biodiversity in areas beyond national jurisdiction, 99 Marine Policy 239–242 (2019) 240.

45

E. Druel, et al, ‘Paper vi – Options and Approaches for Establishing and Managing Marine Protected Areas in abnj’ in iucn, An International Instrument on Conservation and Sustainable Use of Biodiversity in Marine Areas Beyond National Jurisdiction Exploring Different Elements to Consider’ (iucn, 2003) 39.

46

Earth Negotiations Bulletin, Summary of the Second Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 28 April – 2 May 2008 (5 May 2008) 6, 8.

47

E. Druel, et al, ‘A Long & Winding Road - International Discussions on the Governance of Marine Biodiversity in Areas Beyond National Jurisdiction’ (Study No. 7/2013, iddri, September 2013) 10.

48

Earth Negotiations Bulletin, Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction 4–17 September 2018 (20 September 2018).

49

Earth Negotiations Bulletin, Summary of the Ninth Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 20–23 January 2015 (26 January 2015) 10.

50

Earth Negotiations Bulletin, Summary of the Eighth Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 16–19 June 2014 (23 June 2014) 5.

51

Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction to the sixty-ninth session of the General Assembly (23 January 2015).

52

Development of an international legally binding instrument under unclos on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, ga Res 69/292, UN Doc a/res/69/292 (6 July 2015, adopted 19 June 2015).

53

See AUSTRALIAN MISSION TO THE UN, PREPARATORY COMMITTEE ESTABLISHED BY GENERAL ASSEMBLY RESOLUTION 69/292 – GENERAL STATEMENT OF THE DELEGATION OF AUSTRALIA, available at https://unny.mission.gov.au/files/unny/BBNJ_Australian%20opening%20statement%20final.pdf.

54

Summary of the Eighth Meeting of the Working Group, supra note 50, 4.

55

E. Morgera, ‘Fair and equitable benefit-sharing in a new treaty on marine biodiversity: A principled approach towards partnership building?’ (Working Paper No. 16, Benelex, 2018) 4.

56

Earth Negotiations Bulletin, PrepCom 1 Highlights: Thursday, 31 March 2016 (1 April 2016) 1.

57

S. Arnaud-Haond, J. Arrieta and C. Duarte, Marine Biodiversity and Gene Patents, 331 Science 1521–1522 (2011) 1521.

58

Earth Negotiations Bulletin, PrepCom 1 Highlights: Friday, 1 April 2016 (4 April 2016) 1.

59

See WRITTEN SUBMISSION OF AUSTRALIA TO PREPCOM (6 DECEMBER 2016), available at https://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/Australia.pdf.

60

Earth Negotiations Bulletin, bbnj igc 2 Highlights: Friday, 29 March 2019 (1 April 2019) 1.

61

Australia’s written submission, supra, note 59.

62

Ibid.

63

Earth Negotiations Bulletin, PrepCom 2 Highlights: Monday 29 August 2016 (30 August 2016) 2.

64

Chair’s non-paper on elements of a draft text of an international legally-binding instrument under unclos on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, (28 February 2017).

65

Australia’s written submission, supra, note 59.

66

Earth Negotiations Bulletin, PrepCom 1 Highlights: Monday, 4 April 2016 (5 April 2016) 2.

67

Earth Negotiations Bulletin, bbnj igc-1 Highlights: Tuesday, 11 September 2018 (12 September 2018) 2.

68

Australia’s written submission, supra, note 59.

69

Earth Negotiations Bulletin, bbnj igc 1 Highlights: Thursday 6 September 2018 (7 September 2018) 1.

70

Australia’s written submission, supra, note 59.

71

bbnj igc-1 Highlights, supra, note 67 at 2.

72

International legally binding instrument under unclos on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, ga Res 72/249, UN Doc a/res/72/249 (19 January 2018, adopted on 24 December 2017) para. 1.

73

C. Blanchard, C. Durussel, B. Boteler, Socio-ecological resilience and the law: Exploring the adaptive capacity of the bbnj Agreement, 108 Marine Policy e103612: 1–10 (2019) 3.

74

Earth Negotiations Bulletin, bbnj igc-1 Highlights: Tuesday 4 September 2018 (5 September 2018) 1.

75

Ibid.; Blanchard, Durussel and Boteler, supra, note 73 at 3.

76

Earth Negotiations Bulletin, Summary of the Third Session of the Intergovernmental Conference on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 19–30 August 2019 (2 September 2019) 21.

77

Revised draft text of an agreement under unclos on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction UN Doc a/conf.232/2020/3 (18 November 2019).

78

International legally binding instrument under unclos on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (gaor, 74th sess., Suppl. no. 49, Vol.ii) UN Doc a/dec/74/543 (11 March 2020).

79

Bergin, supra note 1 at 2.

80

Australian Yearbook of International Law 10: 1981–1983, 398–399.

81

Australia’s neighbours (Philippines, Indonesia, Fiji, png) adhered to the archipelagic principle and Australia wished to maintain close political relations with these States – see, Australian Foreign Affairs Record, Vol. 45 No. 7 (July 1974) at 464.

82

Ibid.

83

See, E. Miles, The Structure and Effect of the Decision Process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea, 31(2) International Organization 159–234 (1977) 230.

84

Bergin, supra note 1 at 171.

85

Ibid., at 210.

86

A. Bergin, Australia and unclos iii, 29(3) The Australian Journal of Politics and History 427–439 (1983) 430.

87

Summary of the First Working Group, supra note 38, at 1.

88

G. Goettsche-Wanli, The United Nations Convention on the Law of the Sea: Multilateral Diplomacy at Work available at https://www.un.org/en/chronicle/article/united-nations-convention-law-sea-multilateral-diplomacy-work.

89

See Tommy T. Koh and S. Jayakumar, ‘The Negotiating Process of The Third United Nations Conference on The Law of The Sea’, in Nordquist, supra note 3, at 29–134.

90

Statement by the President of the Conference at the closing of the organizational meeting, UN Doc. a/conf.232/2018/2 (19 April 2018) 2.

91

Bergin, supra note 86, at 430.

92

Ibid., at 427–439.

93

Bergin, supra note 1, at 18.

94

Ibid., at 174; S. Kaye, Australia and the negotiation of the law of the sea, 7(4) Australian Journal of Maritime & Ocean Affairs 256–266 (2015) 261.

95

Ibid., at 35 referring to B. Buzan, United we stand…Informal negotiating groups at unclos iii, 4(3) Marine Policy 183–204 (1980) at 183.

96

Druel, et al, supra note 47, at 31.

97

Ibid.

98

Summary of the Ninth Meeting of the Working Group, supra note 49, at 5.

99

S. Gunasekara and M. Karim, Australia’s interaction with Asian countries in the negotiation for an international agreement for the marine biodiversity of areas beyond national jurisdiction, International Environmental Agreements: Politics, Law and Economics 1–17 (2021)12.

100

Ibid., 7.

101

Bergin, supra note 1, 177.

102

Ibid.

103

Ibid.

104

Ibid., at 179.

105

Ibid., at 176.

106

See AUSTRALIAN GOVERNMENT, DEPARTMENT OF DEFENCE, 2020 DEFENCE STRATEGIC UPDATE, available at https://www.defence.gov.au/about/publications/2020-defence-strategic-update.

108

Earth Negotiations Bulletin, Summary of the First Session of the Preparatory Committee on Marine Biodiversity of Areas Beyond National Jurisdiction: 28 March – 8 April 2016 (11 April 2016) 15.

109

Gunasekara and Karim, supra note 99, at 12.

110

Textual proposals submitted by delegations for consideration at the fourth session of the Intergovernmental conference, in response to the invitation by the President of the Conference in her Note of 18 November 2019 UN Doc. a/conf/232/2020/3 at 2.

111

Ibid.

112

Kaye, supra note 94, at 259.

113

Bergin, supra note 1, at 172.

114

Ibid., at 173.

115

Australian Mission to the UN, supra note 53.

116

S. Kaye, M. Johnson and R. Baird, ‘Law’ in M. Haward and T. Griffiths (Eds.), Australia and the Antarctic Treaty System 50 years of influence, 97–117 (unsw Press, Sydney, 2011) 102.

117

Gunasekara and Karim, supra note 99, at 8.

118

Earth Negotiations Bulletin, Prepcom 4 Highlights: Friday 14 July 2017 (17 July 2017) 1.

119

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 December 1995, (1995) 34 ilm 1542 (entered into force 11 December 2001).

120

Australia’s written submission, supra, note 59.

121

Bergin, supra note 1, 95.

122

A. Cooper, R. Higgott and K. Nossal, Relocating middle powers: Australia and Canada in a changing world order (ubc Press, Vancouver, 1993) 175.

123

Australian Foreign Affairs Record, Vol 45 No 7 (July 1974) at 466.

124

Australian Foreign Affairs Record, Vol 46 No 8 (August 1975) at 451.

125

Bergin, supra note 1, 181.

126

Summary of igc 3, supra note 76, at 20.

127

The G77 is the largest intergovernmental organisation of developing countries in the UN – see, The Group of 77 available at http://www.g77.org/doc/.

128

See, e.g., ‘State of Palestine on behalf of G77 + China Opening Statement at the Third Intergovernmental Conference’ (19 August 2019) available at http://highseasalliance.org/treatytracker/statements/state-of-palestine-on-behalf-of-g77-china-19-august-opening-statement/>.

129

Earth Negotiations Bulletin, Marine Biodiversity Working Group Highlights: Wednesday, 1 June 2011 (2 June 2011) 2.

130

Earth Negotiations Bulletin, Summary of Seventh Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 1–4 April 2014 (7 April 2014) 5.

131

Summary of the Eighth Meeting of the Working Group, supra note 50, at 3.

132

Chair’s Streamlined non-paper on elements of a draft text of an international legally-binding instrument under unclos, (2007) 21.

133

A. Vithanage, A Deep Dive into the High Seas: Harmonizing Regional Frameworks for Marine Protected Areas with the unclos Convention on the Conservation and Sustainable Use of Marine Biological Diversity in Areas beyond National Jurisdiction, 28(1) Yearbook of International Environmental Law 63–84 (2017) 73.

134

D. Freestone, ‘Introduction The UN Process to Develop an International Legally Binding Instrument under the 1982 Law of the Sea Convention: Issues and Challenges’ in Conserving Biodiversity in Areas Beyond National Jurisdiction, 3–46 (Brill Nijhoff, Leiden, 2019) 32.

135

E. Beringen, N. Liu and M. Lim, Australia and the pursuit of “not undermining” regional bodies at the biodiversity beyond national jurisdiction negotiations, 136 Marine Policy 104929 1-7 (2022) 1.

136

Ibid.

137

bbnj igc-1 Highlights: Tuesday, 11 September 2018, supra, note 67.

138

This provision is contained in bracketed text, indicating it has not yet been agreed upon by all States.

139

Vithanage, supra, note 133, 81.

140

Ibid., at 2.

141

Australian Mission to the UN, supra note 53.

142

A. Bergin, The Politics of PrepCom, 11(4) Marine Policy 299–312 (1987) 305.

143

G.M. Danilenko, Law-Making in the International Community (Martinus Nijhoff Publishers, 1993).

144

H. Caminos and M. Molitor, Progressive Development of International Law and the Package Deal, 79 American Journal of International Law, 871–890 (1985) 873.

145

Extract from statement by H.C. Mott, of the Australian Delegation, Rapporteaur of the First Committee of unclos iii on relinquishing office on 26 March 1975 in Australian Foreign Affairs Record, Vol. 46 No. 4 (April 1975) 207.

146

Bergin, supra note 1, 172–173.

147

R. Blasiak, et al, Negotiating the Use of Biodiversity in Marine Areas beyond National Jurisdiction, 3(224) Frontiers in Marine Science 1–10 (2016) 6.

148

H. Burmester, ‘Australia and the Law of the Sea’ in J. Crawford and D. Rothwell, The Law of the Sea in the Asian Pacific Region, 51–64 (Martinus Nijhoff, Dordrecht, 1994) 51.

149

Zischka, et al, supra note 37.

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