16 March 2023

(Opinion) BBNJ: Why does it matter to Indonesia?

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Author: Gabriella Gianova and Andreas Aditya Salim

“The ship has reached the shore,” president of the conference, Rena Lee, announced at the United Nations headquarters in New York, the United States, on March 5. This marked a historic consensus among parties to the Law of the Sea Convention for the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) after years of negotiation.

The BBNJ agreement was designed for the protection and sustainable use of marine biodiversity in areas of the ocean that fall under the jurisdiction of no country (high seas) and the seabed and subsoil of the ocean that lies beyond states’ jurisdiction (the area). These areas together are called Areas Beyond National Jurisdiction (ABNJ).

Currently, the ABNJ are largely unprotected and facing multiple threats such as climate change, pollution, biodiversity loss and other threats posed by human activities at sea. The BBNJ agreement is expected to guard the marine environment in the midst of human ambitions to explore and exploit the ocean.

This agreement arguably is the most comprehensive multilateral treaty that incorporates environmental principles, namely a polluter-pays principle, precautionary principle, ecosystem approach, ecosystem resilience, nontransfer of damage or hazard and integrated approach to ocean management.

There are four essential components of the BBNJ agreement. The first is the sustainable use of Marine Genetic Resources (MGRs) and fair and equitable sharing of benefits from such utilization. MGR means any material of marine plant, animal, microbial or other origin containing functional units of heredity of actual or potential value.

The discussions under this part concern the collection of the MGR at sea, the conduct prior to collection, how the benefits can be shared fairly and equitably between developed and developing states and the monitoring and transparency mechanism.

Second, Area-based Management Tools (ABMTs). ABMT means a tool, including a marine protected area, for a geographically defined area through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives in accordance with the BBNJ agreement.

As suggested by its definition, the main purpose of an ABMT is to protect, preserve, restore and maintain biodiversity and ecosystems, including with a view to enhancing their productivity and health, and strengthening resilience to stressors, including those related to climate change, ocean acidification and marine pollution. The BBNJ agreement requires its members to propose, individually or collectively, the establishment of an ABMT. Therefore, state parties are highly expected to be active in this particular issue.

Third, an environmental impact assessment (EIA). An EIA means the process to identify and evaluate the potential environmental impacts of an activity to inform decision-making. Since the ocean is highly connected physically and biologically, damage in a particular area could cause damage to other areas.

Thus, the BBNJ agreement requires the party exercising control of the activity to assess, through four steps, namely screening and scoping, impact assessment and evaluation and the prevention, mitigation and management of potential adverse effects, to decide whether the proposed activity is safe for the marine environment. The EIA should be publicly available and consulted.

Fourth, capacity-building and transfer of marine technology (CBTMT). Well-resourced and needs-based CBTMT is fundamental to ensure the high participation of developing states, landlocked developing countries, geographically disadvantaged states, small island developing states, coastal African states, archipelagic states and developing middle-income countries in the implementation of the BBNJ agreement.

In this regard, the agreement governs that CBTMT should be a country-driven, transparent, effective and iterative process that is participatory, cross-cutting and gender-responsive.

It is therefore important for Indonesia to ratify the BBNJ agreement for several reasons.

First, benefit-sharing. This agreement provides numerous opportunities for Indonesia to participate in the implementation of this agreement through several mechanisms, namely international cooperation, the sharing of monetary and non-monetary benefits and its clearing-house mechanism. A clearing-house mechanism is one of the main operatives of the BBNJ agreement that serves as a centralized database concerning MGR, EIA, ABMT and CBTMT for member states as well as facilitating international cooperation among member states. It is extremely important for the Indonesian government to be proactive in the utilization of these mechanisms.

Second, the protection of the marine environment. ABNJs are adjacent to Indonesia’s jurisdiction (Indian Ocean in the West and Pacific Ocean in the Northeast). Environmental damage in the ABNJs is hazardous to the marine environment within Indonesia’s jurisdiction.

For the purpose of protecting its marine environment, Indonesia should be active during the establishment process of an ABMT as well as in the development of the EIA, particularly when the proposed activity is adjacent to Indonesia’s jurisdiction. The Indonesian government should, starting now, prepare so that meaningful participation in the aforementioned activities is attainable.

Third, the capacity-building and transfer of marine technology. Utilization and management of MGR is costly and heavy on the scientific and technological side. However, since the BBNJ agreement pays considerable attention to developing states, including Indonesia, such challenges shall not bar Indonesia from participating in the implementation of the BBNJ agreement. Here, again, the most important thing is for the government to be proactive in the implementation of the CBTMT.

Lastly, dispute settlement mechanisms. Utilization of natural resources is a field prone to conflicts and Indonesia is no exception.

In this regard, the BBNJ agreement governs compliance and dispute-settlement mechanisms for its members. Whenever and wherever noncompliance occurs in the implementation of the BBNJ agreement, Indonesia should fight for the cessation of such noncompliance and when conflict is unavoidable, the dispute settlement mechanism within the BBNJ agreement shall be utilized.

To sum up, the BBNJ agreement means opportunities for Indonesia: To reap benefit and to protect the marine environment. Indonesia shall ratify this agreement if it wishes to seize these opportunities.

Pending the entry into force of the BBNJ agreement, the government should prepare itself for the implementation phase by formulating and harmonizing relevant policies as well as allocating sufficient resources. Indonesia must act on the momentum built over the session and “bring the ship into the harbor”. *** The writers are researchers at the Indonesia Ocean Justice Initiative. Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.

This article was published in thejakartapost. com with the title “BBNJ: Why does it matter to Indonesia?”.


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