The influence of Antarctic governance on marine protected areas in the Biodiversity Beyond National Jurisdiction Agreement negotiations

Areas Beyond National Jurisdiction (ABNJ), encompassing 64% of the ocean's surface and 95% of its volume, present significant governance challenges. The UN Convention on the Law of the Sea (UNCLOS) provides a framework, but existing mechanisms have proven insufficient for conserving high seas biodiversity. The UN General Assembly initiated a process leading to the BBNJ Agreement, aimed at addressing this gap through four focal points: marine genetic resources, area-based management tools (ABMTs) including MPAs, environmental impact assessments, and capacity building. The BBNJ Agreement establishes a Secretariat, Conference of the Parties (COP), and Scientific and Technical Body (STB). MPAs, a type of ABMT focused on long-term biodiversity conservation, are a key component. Several existing high seas MPAs, notably those established by CCAMLR in the Southern Ocean, provide a case study for the BBNJ Agreement. CCAMLR, operating under the Antarctic Treaty System, employs a consensus-based approach and has established MPAs like the South Orkney Islands Southern Shelf MPA and the Ross Sea region MPA, the latter involving extensive negotiations and a time-bound designation. This study explores how CCAMLR's experience has shaped the BBNJ Agreement negotiations.

The literature highlights the failure of existing high seas fisheries management to conserve populations, largely due to the common pool resource dilemma posed by ABNJ. Existing governance regimes are fragmented and often lack the mandate or capacity for effective conservation. The literature review emphasizes the need for a new, more comprehensive international instrument to address the identified gaps in UNCLOS. Studies have focused on the challenges of establishing and managing high seas MPAs, including the effectiveness of consensus-based decision-making and the need to balance conservation objectives with sustainable use. The literature also touches upon the different interpretations of "long-term" in MPA definitions and the implications of time-bound designations. The Antarctic Treaty System and CCAMLR's experience with MPA establishment and management provide a rich context for understanding the challenges of governance in the Southern Ocean.

This mixed-methods study employed data triangulation to analyze the influence of CCAMLR on BBNJ negotiations. Data sources included: 1. **Ethnographic Notes:** Participant observation and note-taking during four of the five IGC meetings (IGC-2 through IGC-5), focusing on CCAMLR Member States' interventions. The lead author's prior engagement in the BBNJ process provided insider status. 2. **ENB Reports:** Analysis of 106 pages of Earth Negotiations Bulletin (ENB) reports, providing independent, unbiased summaries of the IGC meetings. 3. **Additional Documents:** Analysis of 1277 pages of publicly available documents (statements, conference room papers, proposals) from the UN BBNJ website, focusing on direct references to the Antarctic regime. 4. **Semi-structured Interviews:** Ten semi-structured interviews (50% response rate) were conducted with individuals involved in both CCAMLR and BBNJ processes. Interviewees included representatives from governmental agencies and NGOs. Interviews explored the influence of CCAMLR on BBNJ negotiations. Qualitative data analysis involved two coding cycles (open and focused coding), sentiment analysis, and the creation of a codebook (Table 1). The NVivo software was used to assist in analysis (Fig 1). Data on interview transcripts were not made available due to the sensitive nature of the information and Institutional Review Board requirements.

Three main themes emerged from the data: 1. **Influence of CCAMLR:** CCAMLR's influence manifested through precedent-setting (time-bound MPAs, consensus decision-making, CCAMLR's competency as an IFB) and lesson-learning (organizational and governance structures). The time-bound nature of the Ross Sea MPA, a compromise reached in CCAMLR, sparked debate in BBNJ negotiations, with some viewing it positively (allowing for adaptability) and others negatively (potentially hindering long-term conservation benefits). 2. **Exclusivity of CCAMLR:** The relative exclusivity of CCAMLR, with its limited membership and reliance on consensus, presented challenges. Insider knowledge and close relationships among delegations sometimes hindered transparency and broader understanding of CCAMLR's processes and implications for BBNJ. Some interviewees highlighted hidden red lines related to sovereignty claims within the Antarctic region, which affected BBNJ negotiations. 3. **Lesson Learning:** Despite its limitations, CCAMLR's experience offered valuable lessons for the BBNJ Agreement. Interviewees suggested that BBNJ could benefit from examining CCAMLR's organizational structure (Secretariat, Scientific Committee, Compliance Committee), its financial mechanisms, and its process for establishing and managing MPAs (Conservation Measures, CM 91-04). However, challenges faced by CCAMLR, such as difficulty achieving consensus on MPA research and monitoring plans, were also highlighted. The final BBNJ Agreement does not directly reflect several CCAMLR practices, such as its consensus-based decision making. The BBNJ agreement allows for a three-fourths majority decision making in the case of consensus failure.

The findings demonstrate the complex interplay between regional and global ocean governance. While CCAMLR's influence on BBNJ negotiations is evident, the final BBNJ Agreement diverges from certain CCAMLR practices, reflecting the different scales and contexts of these governance bodies. The study reveals the tension between precedent-setting and lesson-learning from existing institutions, and the potential challenges of transferring best practices across diverse governance contexts. The reliance on consensus within CCAMLR, while promoting collaboration, also poses challenges for efficiency and responsiveness. The exclusivity of CCAMLR can create knowledge gaps and potentially hinder broader participation in international ocean governance. Future research should examine the implementation of the BBNJ Agreement and how CCAMLR navigates its relationship with the new global regime, particularly in relation to MPA establishment and management in the Southern Ocean. This research will have implications in terms of understanding the success of international collaboration and collective action in the context of ABNJ governance.

The BBNJ Agreement offers a new framework for establishing high seas MPAs. The study highlights the complex and multifaceted influence of CCAMLR on the BBNJ Agreement negotiations. While CCAMLR provided valuable lessons and precedents, its exclusivity and consensus-based decision-making presented both opportunities and challenges for the BBNJ process. As the BBNJ Agreement moves into effect, collaboration between CCAMLR and the BBNJ COP will be crucial for effective high seas MPA establishment and management. The successful implementation of the BBNJ Agreement will depend on addressing the challenges of achieving consensus, balancing diverse interests, and ensuring transparency and inclusivity in ocean governance.

The limited number of interviewees (10 out of 20 contacted) might limit the generalizability of the findings. The reliance on publicly available documents might overlook nuances and informal discussions that influenced the negotiations. The research primarily focuses on MPA establishment and may not fully capture CCAMLR’s influence on other aspects of the BBNJ Agreement. Furthermore, the study's focus on CCAMLR’s impact may overlook the influence of other regional and global actors.