LIST OF ABBREVIATIONSABNJ Areas Beyond National Jurisdiction ABMTs Area-based management tools BBNJ Biodiversity B eyond National Jurisdiction CBD Convention on Biological Diversity COP
OVERVIEW ON BBNJ AGREEMENT
Context of BBNJ Agreement 2 XàG6gEgiHi/4392203g0TUìgưx gi 8 1 The background of BBNJ Agreement : =— 2 What is BBNJ Agreement aaa eal 1.2 Negotiation process for BBNJ Agreement seeps woes 1.3 Significance of BBNJ Agreeinef
Territorial waters refer to the regions of water over which a sovereign state exercises jurisdiction This includes various zones such as internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf, as outlined by the United Nations Convention on the Law of the Sea (UNCLOS).
1.1.1 The background of BBNJ Agreement The UNCLOS, which entered into force on 16 November 1994, sets forth the rights and obligations of states regarding the use of the oceans, their resources, and the protection of the marine and coastal environment It lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules goveming all uses of the oceans and their resources It embodies in one instrument traditional rules for the uses of the oceans and at the same time introduces new legal concepts and regimes and addresses new concerns The UNCLOS also provides the framework for further development of specific areas of the law of the sea Although UNCLOS does not refer expressly to marine biodiversity, it is commonly regarded as establishing the legal framework for all activities in the ocean
The conservation and sustainable use of marine biological diversity in Areas Beyond National Jurisdiction (ABNJ) is gaining global attention due to the emerging understanding of its richness and vulnerability, particularly in ecosystems like seamounts, hydrothermal vents, sponges, and cold-water corals As scientific data, though limited, highlights these critical habitats, concerns are rising regarding the escalating anthropogenic pressures from existing and new activities, including fishing, mining, marine pollution, and bioprospecting in the deep sea.
64% of the world’s oceans lie in areas beyond national jurisdiction (ABNJ).
Approximately 95% of Earth's species are found in areas beyond national jurisdiction (ABNJ), where two-thirds of fish stocks are overexploited These regions are rich in marine genetic resources that hold significant economic value for food production, pharmaceuticals, and cosmetics However, marine biodiversity in ABNJ is under severe threat from climate change, rising sea levels, ocean acidification, deep-sea exploitation, environmental pollution, and plastic waste, leading to the decline and potential extinction of numerous marine species.
The Convention on Biological Diversity (CBD), effective since December 29, 1993, aims to conserve biodiversity, promote sustainable use of its components, and ensure fair sharing of benefits from genetic resources It governs activities under the jurisdiction of its parties in areas beyond national jurisdiction (ABNJ) The Nagoya Protocol, effective from October 12, 2014, focuses on access to genetic resources and the equitable sharing of benefits, specifically addressing CBD Article 15 and traditional knowledge related to genetic resources However, these regulations primarily pertain to biodiversity management and conservation within national jurisdictions.
In 1999, the UN General Assembly established the United Nations Open- ended Informal Consultative Process on Oceans and the Law of the Sea
3 Areas Beyond National Aarisdiction, https //innis thegef ory -we-dohopxs/areas-ber accessed 9 January 2024
The United Nations Convention on the Law of the Sea (UNCLOS) has been instrumental in advancing the evaluation of ocean-related issues over the years From 2000 to 2003, discussions centered around critical topics such as fisheries management, marine pollution, marine technology, anti-piracy efforts, and the conservation and management of ocean resources, aligning with the Millennium Development Goals.
2003, responding to the call of the 2002 UN Conference on Sustainable
Development on the development of marine and ocean management measures,*
UNICPOLOS has reached an agreement on the commercial use of marine genetic resources (MGR) in areas beyond national jurisdiction (ABNJ), igniting discussions on whether to apply the principle of "freedom of the seas" or "common heritage of mankind" to these resources The organization highlighted the risks posed to biodiversity in areas beyond national jurisdiction (BBNJ) from emerging ocean exploitation trends, stressing the absence of cohesive global marine environmental protection measures Additionally, the conservation and management of biodiversity in the region, integral to the BBNJ framework, were also addressed during this period.
After over ten years of discussions within the United Nations General Assembly, resolution 72/249, adopted on December 24, 2017, called for an Intergovernmental Conference to develop a legally binding international instrument.
In 2024, the United Nations will hold an Open-ended Informal Consultative Process focused on Oceans and the Law of the Sea This initiative aims to address critical maritime issues and promote sustainable ocean governance For more information, visit the official UN website at https://www.un.org/depts/los/consultative_process/consultative_process.htm, accessed on January 9th.
The 2002 World Summit on Sustainable Development established a comprehensive Plan of Implementation aimed at promoting sustainable practices globally This initiative underscores the importance of oceans and the law of the sea, as highlighted in the United Nations General Assembly's report on the work of its Open-ended Informal Consultative Process The focus is on sustainable development strategies that address environmental challenges and enhance international cooperation.
Consultative Process on Ocean Affaz's and the Lav of the Sea at its Fifth Meeting, UN GAOR, 50"sess, Agenda item 51(a), UN Doc A/S9/122, 1 Rủy 2004
`UNGA, Oceans and the law of the sea, Report on the Work of the United Nations Opened-ended Infonmal
Consultative Process on Ocean Affairs and the Lavy of the Sea at its Fifth Meeting, UN GAOR, 59"'sess, Agenda item 51(a), UN Doc A/59/122, 1 Rủy 2004
UNCLOS on the conservation and sustainable use of BBNJ, with a view to developing the instrument as soon as possible ®
1.1.2 What is BBNJ Agreement The BBNJ Agreement is an implementation agreement of UNCLOS, within the framework of UNCLOS and does not replace the basic principles of UNCLOS. The BBNJ Agreement is built on the principles of the common heritage of mankind and freedoms of the seas.
The BBNJ Agreement focuses on conserving and sustainably using marine biological diversity in areas beyond national jurisdiction, ensuring long-term protection through the effective implementation of UNCLOS provisions It highlights the importance of international cooperation and prioritizes the needs of developing countries, offering significant benefits to Vietnam and similar nations in establishing a fair and equitable maritime legal framework.
The BBNJ Agreement establishes a framework for protecting marine biodiversity in unregulated areas by creating large-scale marine protected zones and regulating marine research Its goals focus on the conservation and sustainable use of marine biological diversity beyond national jurisdictions, promoting a holistic and equitable management of human activities that affect ocean life.
$31; Summary rep:ort, 15-26 August 2022,the Intemational Instinute for Sustainable Developnent (SD),
1ứtps://enb isd ity -diodiversity-be L-nations]-jurisdiction-bbnj-ige 5- accessed 24 February
Nguyen Hong Thao (2023) highlights the importance of Vietnam's signing of the Agreement on the Conservation and Sustainable Use of Biodiversity in Waters Beyond National Jurisdiction This agreement signifies Vietnam's commitment to protecting marine biodiversity and promoting sustainable practices in international waters, aligning with global conservation efforts and enhancing the country's role in environmental stewardship.
The recent report highlights the significance of Vietnam's commitment to the Agreement on the Conservation and Sustainable Use of Biodiversity in Areas Beyond National Jurisdiction This agreement is crucial for safeguarding global ocean health and plays a vital role in enhancing climate resilience, boosting food security, and promoting economic well-being for millions of individuals worldwide.
The ABNJ means the high seas and the Area.
Challenges for BBNJ Agreement ơ—
Oceans play a crucial role in stabilizing the climate by absorbing 90% of excess heat and 25% of carbon dioxide emissions from human activities However, rising greenhouse gas emissions lead to increased CO2 levels in oceans, causing warmer and more acidic waters that hinder the growth of essential marine species, particularly shellfish The International Union for Conservation of Nature (IUCN) reports that 41% of threatened marine species are affected by these changes In response to climate change, the shipping sector has implemented various strategies to reduce CO2 emissions, with the International Maritime Organization (IMO) aiming for a 70% reduction in carbon intensity by 2050 Compliance with carbon emissions regulations is essential for shipping companies to meet these targets, yet the lack of regulations in international waters continues to contribute to biodiversity loss and pollution.
The Global Ocean Commission emphasizes the urgent need for a comprehensive rescue package to restore the health of the global ocean, highlighting the critical decline in marine ecosystems According to the International Coral Reef Society, coral reefs hold immense ecological and economic value, underscoring their importance in maintaining biodiversity and supporting coastal communities This call to action is crucial for reversing the detrimental impacts on ocean health and ensuring sustainable marine resources for future generations.
“ UNEP, Horison Scan of Pressures on Biodiversity Beyond National Jiaisdiction,in 13,16
“ (2023), High Seas Treaty: Challenges and Opportinities, Smay Maritime data sohtion, lutps://stwy aienhhigh- seas-treaty-challenges-and-oppartunitis/ , accessed 9 Jarmary 2024.
Human activities have significantly increased ocean exploitation in recent decades, leading to severe impacts on marine biodiversity Unsustainable fishing practices, illegal fishing, vessel collisions, and pollution have drastically altered the marine environment Additionally, mineral extraction, underground cable installation, biological exploration, and energy production equipment installation raise concerns about their negative effects on marine species in Areas Beyond National Jurisdiction (ABNJ), particularly due to pollution from various sources Since 1980, plastic pollution has surged tenfold, with 300-400 million tons of heavy metals, solvents, and toxic waste from industrial facilities entering the oceans annually This has contributed to over 400 ocean 'dead zones,' covering more than 245,000 km², an area larger than the United Kingdom The Covid-19 pandemic exacerbated the situation, introducing a new wave of plastic waste, including masks, gloves, and sanitizer bottles, which are now found on seabeds and beaches In February 2020, OceansAsia reported a rising number of masks discovered during plastic pollution research, highlighting the urgent need for action.
Masses of masks were found on the Soko Islands, a small cluster off the coast of
` Ding Ngọc Thanh và Nguyễn Huy Yit, Bio tổn da đựng sinh hoc biển Việt Nem fn 31, 16
1s AVENE AONE] vs-and-storiz sipress-release Mates: decline cedented-:
3$ Charlotte Edmond (2020), How face masks, gloves and other coronavirus waste are polating the ocean,
GreenBizz, https :/Anny greenbiz c oma/artic le Anow-face-masks- 's-and-other-coronavaws-waste-are-} oceam ,accessed 11 Jarauary 2024.
The BBNJ Agreement presents challenges for state cooperation and compliance, akin to those found in UNCLOS, particularly regarding the regulation of resources While UNCLOS Part VII focuses on the conservation and management of living resources in the high seas, Part XII mandates states to protect and preserve the marine environment without specifying geographical boundaries However, it fails to address marine resources directly and emphasizes the rights of coastal states to exploit their natural resources.
The BBNJ focuses on the conservation and sustainable use of marine biological materials, specifically living organisms, and does not extend to non-living resources like oil and gas found in the international seabed and water column This limitation highlights a potential conflict between the BBNJ's regulations and states' interests in utilizing non-living resources and other areas not covered by the Agreement, such as fisheries Historical precedents suggest that when conservation goals clash with the economic interests of states, the latter often takes precedence.
A significant challenge in the implementation of the BBNJ Agreement is its regulation of legal issues in previously unregulated areas This lack of prior legal frameworks complicates the understanding and application of the Agreement, resulting in varied interpretations among member countries when addressing arising issues.
Chapter conclusion 8 k3
BBNJ resources are essential for advancing scientific knowledge of marine and ocean exploration, supporting food security and livelihoods, and aiding in climate change mitigation Nevertheless, the unsustainable exploitation of these resources, coupled with increasing natural impacts, poses significant risks of depletion and severe degradation.
The regulation of Biodiversity Beyond National Jurisdiction (BBNJ) from an international legal standpoint is currently limited, with only a few scattered regulations addressing the preservation of marine biological resources, biodiversity, and the marine environment This fragmentation and lack of comprehensive international law have hindered effective management and preservation of biodiversity in Areas Beyond National Jurisdiction (ABNJ) Consequently, there is a pressing need to address these limitations through the negotiation of a new agreement on BBNJ, as initiated by the United Nations General Assembly.
The United Nations General Assembly has been engaged in nearly two decades of discussions to develop an International Legal Instrument on Biodiversity Beyond National Jurisdiction (BBNJ), focusing on key elements such as Marine Genetic Resources (MGR), Area-Based Management Tools (ABMT), Environmental Impact Assessments (EIA), Capacity Building (CB), and Technology Transfer (TT) A broad coalition of countries, including major powers like the US, EU, Japan, and China, as well as G77 nations, African countries, CARICOM, and Pacific Small Island Developing States (PSIDS), actively supports and contributes to the legal framework aimed at ensuring the conservation and sustainable use of BBNJ.
The development of international legal documents on Biodiversity Beyond National Jurisdiction (BBNJ) has revealed both significant consensus and profound divisions among nations, particularly between developing and developed countries On June 19, 2023, the BBNJ Agreement was approved during the 5th session of the Intergovernmental Conference on Marine Biodiversity, with a detailed analysis of the agreement to follow in the next chapter of this thesis.
THE MAIN CONTENT OF BBNJ AGREEMENT
Main themes of BBNJ Agreement - ơ .1 Marine genetic resources (MGRs) MRE L7 2 Area-based management tools (ABNTs)
3” buternational Treaty Negotiations cord the Status of the ‘Principle of the Common Heritage of Mankinxt’ : The
2023 BBNT Treany Text, httos /fjowmals lav harvard sdhvilj/2023/11 /mtemationa treaty -negotiations-and-the-status- of-the -princple-of-the-conmman heritage -of mankind the-2023-blny-treaty-texa/, accessed 27" March 2024
The concept of "freedom of the high seas" is a fundamental principle governing international waters, allowing nations to navigate and utilize these areas without interference This principle is crucial for maritime trade, environmental protection, and the conservation of marine resources Understanding the legal frameworks and treaties that support this freedom is essential for promoting cooperation among countries and ensuring sustainable use of oceanic resources The ongoing discussions and research in this field highlight the importance of balancing national interests with global responsibilities in managing the high seas.
Marine genetic resources (MGRs) are highlighted as a key component of the BBNJ Agreement, emphasizing the importance of fair and equitable benefit sharing These resources have the potential to produce valuable biochemicals for use in cosmetics, pharmaceuticals, and food supplements While the current economic value of MGRs remains uncertain, their profit potential has sparked significant interest in their exploration and exploitation among various stakeholders.
The UN negotiations have sparked debate over whether marine genetic resources should encompass 'fish' and 'fishing activities.' Excluding fish from the BBNJ Agreement could hinder its effectiveness in achieving its goals, as fish are vital to marine biodiversity and ecosystem health, according to experts Nonetheless, the BBNJ Agreement explicitly states that its provisions regarding marine genetic resources do not pertain to 'fish' and 'fishing' in Areas Beyond National Jurisdiction (ABNJ).
There is agreement to develop a multilateral benefit-sharing mechanism for marine genetic resources and digital sequence information, including a global fund
The article emphasizes the stringent notification requirements that must be met before collecting, utilizing, and commercializing genetic resources However, it highlights existing uncertainties regarding the responsibility for payment and the distribution of both monetary and non-monetary benefits.
The definition of marine genetic resources (MGR) is given by Article 1(8)
Marine genetic resources (MGR) encompass any material from marine plants, animals, microbes, or other origins that contain functional units of heredity with actual or potential value The Convention's scope extends beyond MGR to include activities related to digital sequence information (DSI) concerning MGR in areas beyond national jurisdiction, reflecting a broader perspective Additionally, derivatives of living organisms in areas beyond national jurisdiction are included, as biotechnology is defined as any technological application utilizing biological systems, living organisms, or their derivatives to develop or modify products or processes for specific purposes.
The negotiation of marine genetic resources (MGR) has been a challenging aspect of the treaty, particularly highlighted during the 5th session in March 2023 A compromise was achieved that balances marine scientific research freedom with bioprospecting control Under Article 12, any MGR collection activities and associated digital sequence information must follow a notification procedure at each phase—pre-cruise, post-cruise, and utilization Parties are required to notify the Clearing House Mechanism of any MGR collection activities in areas beyond national jurisdiction at least six months prior to collection This notification must detail the nature and objectives of the collection, research purpose, geographical area, collection methods, responsible individuals, sponsoring institutions, and a data management plan that adheres to open and responsible data governance practices.
- Upon notification, the Clearing House Mechanism automatically generates a“BBNJ standardized batch identifier” (Article 12(3));
Once available, additional information will be communicated to the Clearing House Mechanism, including the database designated for storing digital sequence information on microbial genetic resources (MGR), specific geographical details, and any updates to previously reported elements.
Parties are required to ensure that repositories and databases within their jurisdiction prepare a biennial aggregate report on access to marine genetic resources and digital sequence information associated with their BBNJ standardized batch identifier This report must be made accessible to the access and benefit-sharing committee.
Parties must notify the Clearing House Mechanism of any information regarding the utilization or commercialization of MGR and DSI, including patents, publications, and developed products, as soon as it becomes available (Article 12(8)) Additionally, they are encouraged to foster cooperation and conduct activities while respecting the rights and legitimate interests of other States (Article 11) It is essential to consider the traditional knowledge of indigenous peoples and local communities related to MGR in areas beyond national jurisdiction, emphasizing the importance of free, prior, and informed consent or approval (Article 13).
2.2.2 Area-based management tools (ABMTs) Area-based management tools (ABMTs), including marine protected areas (MPAs) are recognized as key tools for conserving and restoring biodiversity They can be used to protect, preserve and maintain certain areas beyond national jurisdiction Marine protected areas offer a degree of long term conservation, and are already established in some areas However, the protection level of biodiversity varies a lot and the protected areas only cover a small proportion of the areas beyond national jurisdiction Area based management tools can be used for short-term and emergency measures and to address a specific sector.
The BBNJ Agreement outlines the framework for Marine Protected Areas (MPAs) and area-based management tools without defining them explicitly, focusing instead on the content of proposals, conservation measures, and monitoring implementation (Article 19(4)) Annex 1 provides indicative criteria for designating these areas Additionally, the Agreement encourages states to engage and collaborate with relevant stakeholders, including civil society, the scientific community, indigenous peoples, and local communities, through an open and transparent consultation process (Article 19(3)).
The Scientific and Technical body will evaluate proposals, with the Conference of the Parties deciding on their adoption through consensus or majority vote Parties are obligated to ensure compliance with Area-Based Management Tools (ABMTs) and their management plans, monitoring implementation either individually or collectively However, an "opt-out" option allows States to ultimately refuse to adhere to the conservation measures established for the protected area.
Article 18 provides that “the establishment of area-based management tools, including marine protected areas, shall not include any areas within national jurisdiction and shall not be relied uponasa basis for asserting or denying any claims to sovereignty, sovereign rights or jurisdiction, including in respect of any disputes relating thereto”, in order to avoid as much as possible conservation measures being misused or exploited to assert or challenge sovereignty.
To establish a tool or protected area under the BBNJ Agreement, a proposal must first be submitted, grounded in the best available science and information This proposal will be made publicly available and sent to the Scientific and Technical Body for review Following this, relevant stakeholders will be consulted The proposal requires consensus for adoption, or a three-quarter majority of representatives present and voting if consensus cannot be reached Once approved, the decision will take effect within 120 days and will be binding.
* The Advent of the 2023 “BBNT” Agreement - A Prelimincay Legal Analysis, hitps inal science Mual-
04370873/docment, accessed 28'* March 2024 for all parties of the Agreement However, ifa part within the 120 days makes an objection to the decision, an opt-out is possible.
The primary frameworks for safeguarding the marine environment in areas beyond national jurisdictions must be balanced with food security and socioeconomic goals, including the preservation of cultural values Key measures involve the establishment of marine protected areas, which lacked a clear implementation mechanism under UNCLOS, despite its overarching obligation to protect the marine environment and promote cooperation in these efforts.
Chapter cortcÌitsioit
In this chapter, the author of the thesis reviews the negotiation process of
Vietnam actively supports the BBNJ Agreement and is focused on its implementation within the country This agreement holds significant importance for Vietnam, prompting a need for legal enhancements to align with its provisions Recommendations for improving Vietnamese law on BBNJ are essential to ensure effective compliance and to harness the benefits of the agreement for sustainable marine biodiversity management.
3.1 The significance of the BBNJ Agreement for Vietnam
Vietnam faces new challenges with the Biodiversity Beyond National Jurisdiction (BBNJ) framework, especially after the 2016 ruling in the Philippines v China case, which underscored the importance of the High Seas and the Heritage Seabed in the East Sea These developments not only benefit the region but also have global implications Consequently, Vietnam's diplomats and negotiators must strive to understand these dynamics and work towards creating a comprehensive legal framework for BBNJ that aligns with the principles of the United Nations Convention on the Law of the Sea (UNCLOS).
The implementation of the BBNJ Agreement will bring advantages to Vietnam, a developing country, such as:
A robust legal framework is essential for the conservation and sustainable use of Biodiversity Beyond National Jurisdiction (BBNJ), ensuring fair and equitable sharing of both monetary and non-monetary benefits derived from marine genetic resources in Areas Beyond National Jurisdiction (ABNJ) Effective utilization of regional management tools, such as Marine Protected Areas, must respect maritime zones and the interests of States In the Spratly Islands, a Marine Protection Zone or Peace Park initiative could be established with the consensus of the involved States and regional organizations.
VIETNAM, BBNJ AND ITS IMPLEMENTATION
The significance of the BBNJ Agreement for Vietnam
Vietnam faces new challenges regarding Biodiversity Beyond National Jurisdiction (BBNJ) as its maritime interests evolve following the 2016 ruling in the Philippines v China case This ruling underscored the potential significance of the High Seas and the Heritage Seabed in the central region of the East Sea, offering advantages that extend globally To navigate these complexities, Vietnam's negotiators across diplomacy, technology, economics, and environmental sectors must strive to understand the implications and work towards creating a comprehensive legal framework for BBNJ that aligns with the principles of the United Nations Convention on the Law of the Sea (UNCLOS).
The implementation of the BBNJ Agreement will bring advantages to Vietnam, a developing country, such as:
Establishing a clear legal framework is essential for the conservation and sustainable use of Biodiversity Beyond National Jurisdiction (BBNJ), ensuring fair and equitable sharing of both monetary and non-monetary benefits derived from marine genetic resources in Areas Beyond National Jurisdiction (ABNJ) Effective use of regional management tools, including Marine Protected Areas, must respect maritime zones and the interests of States In the Spratly Islands region, a Marine Protection Zone or Peace Park initiative could be implemented with the agreement of the relevant States and regional organizations.
Developing countries can enhance their marine gene resource management by receiving support in capacity building and marine technology transfer from developed nations, allowing them access to advanced technologies in this critical field.
(iii) Ensuring that Vietnam's interests are not limited to the East Sea but extend across the oceans and seabed beyond national jurisdiction.
(iv) Providing opportunities to maintain the effectiveness of UNCLOS and the consistency of other documents in accordance with UNCLOS.
(v) Building legal and scientific staff to meet the development of the world and the requirements of the renovation.
(vi) Promoting extensive intemational cooperation to resolve maritime issues ®
The negotiation process of Vietnam for BBNJ Agreement wee để 3.3 The BBNJ Agreement implementation in Vieftaimi 44 3.4 Reconanendations for Vietnam 46 3.5 Cheater conclusioit sibããduae)5uc OO
Vietnam, as a coastal state, has actively engaged in the BBNJ negotiation process from the outset, providing valuable recommendations and contributions Notably, Vietnam was among the first countries to sign the BBNJ agreement when it became available for signing.
The Vietnamese delegation gave substantial proposals and contributions to the draft BBNJ instrument as well as the negotiations on issues that directly relate to
Vietnam's rights and interests at sea *ố
Vietnam's engagement with the BBNJ (Biodiversity Beyond National Jurisdiction) is a relatively new development, as the country has primarily concentrated its efforts in the Bien Dong (East Sea) The ruling by the Arbitral Tribunal, established under UNCLOS Annex VII, concerning the South China Sea, underscores the significance of international maritime law in this context.
Vietnam's signing of the Agreement on the conservation and sustainable use of biodiversity highlights the importance of protecting marine resources, particularly in the context of Areas Beyond National Jurisdiction (ABNJ) in the East Sea This agreement underscores the need for a shift in awareness regarding Vietnam's marine interests, emphasizing that the benefits derived from biodiversity conservation extend beyond regional boundaries and are of global significance.
Vietnamese negotiators are actively working towards establishing a comprehensive legally binding instrument on Biodiversity Beyond National Jurisdiction (BBNJ), ensuring it aligns with the 1982 United Nations Convention on the Law of the Sea (UNCLOS) This effort aims to protect Vietnam's marine interests amid the challenges of globalization and integration.
It not only reflects the spirit of “responsible member in the intemational community” but also proves that the multilateral diplomatic paths of Vietnam in
“proactively building, shaping the common law’, thereby contributing to build and enhance the legal order on the sea, ensuring the sustainable development for countries and future generations *7
3.3 The BBNJ Agreement implementation in Vietnam
According to the 1969 Vienna Convention and 2016 Vietnam Treaties Law, after becoming a member of the BBNJ Agreement, Vietnam has the obligation to implement the Agreement in good faith.
Vietnam emphasizes that the principle of "the common heritage of mankind" serves as the legal basis for a fair and equitable framework for the conservation and sustainable use of biodiversity beyond national jurisdiction (BBNJ) This principle includes access to and the equitable sharing of benefits derived from marine genetic resources (MGRs) The rationale behind this stance is that developed states predominantly exploit marine genetic resources, while the adverse effects of environmental degradation in the High Seas impact all of humanity In line with sustainable development principles, every nation bears the responsibility to protect these shared resources.
The BBNJ Agreement represents a significant advancement in international law, focusing on the conservation and sustainable use of marine biological resources for current and future generations It emphasizes the importance of integrating conservation efforts with management strategies in exclusive economic zones and the high seas, highlighting the interconnectedness of these areas.
Article 61 of Vietnam's 2008 Law on Biodiversity fails to address how Vietnamese legal entities and individuals can access genetic resources in Areas Beyond National Jurisdiction (ABNJ) and their rights to benefit-sharing from these resources, highlighting a gap compared to the BBNJ Agreement.
Vietnam's Law on Science and Technology (2013) lacks definitions for marine technology and its transfer, focusing solely on domestic scientific activities The law's international integration aspect, outlined in Article 71.5, emphasizes the need to seek and transfer advanced foreign technologies to Vietnam As a participant in the BBNJ Agreement, Vietnam should advocate for a comprehensive definition of marine technology and its transfer, treating it as a mandatory obligation supported by a monitoring and enforcement framework Additionally, Vietnam should leverage opportunities to access advanced marine technologies, particularly in managing marine genetic resources.
The agreement presents significant opportunities for Vietnam and other developing nations, enabling them to engage in scientific research and access marine technology transfers It also allows these countries to benefit economically from shared resources and knowledge with nations that possess advanced marine technology and robust financial capabilities, particularly in the exploration of genetic resources in the high seas.
Vietnam is actively engaged in negotiating an instrument focused on biodiversity in areas beyond national jurisdiction This initiative highlights Vietnam's commitment to addressing environmental concerns and promoting sustainable practices on a global scale For more details, refer to the article on Vietnam Law & Legal Forum, accessed on January 11, 2024.
The agreement fosters international cooperation and regional marine collaboration aimed at preserving and sharing marine genetic resources This initiative presents Vietnam with opportunities to enhance partnerships, strengthen mutual interests, and contribute to the proactive protection of its homeland.
Vietnam's proactive involvement in the negotiations and development of the agreement demonstrates its commitment to actively and responsibly addressing international and regional maritime issues.
3.4.1 Reconmendation on policies to improve Vietnamese law on BBNI Reviewing Vietnamese law plays an important role in proactively preparing for the effective implementation of the provisions of the Document on BBNJ In principle, international treaties are not a part of Vietnam's domestic law like some other countries, and Vietnamese law also does not have regulations that require the construction and completion of policies and laws to implement intemational treaties.
The application of domestic legal documents in Vietnam must not obstruct the implementation of international treaties to which the country is a signatory Any amendments, supplements, or new domestic legal documents aimed at enforcing international treaties should align with the treaty's requirements, content, and nature Notably, the BBNJ Agreement is poised to be the first international treaty that thoroughly addresses the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (BBNJ), while ensuring that it does not interfere with existing related frameworks.
* 2023), Viet becomes one of fst nations to sign High Seas Treaty, Vieum Law & Legal Form, s:/Aretamnly) i -705 17 kml , accessed 24 February 2024. © 2015 Law on Proumilgation of Legal Documents (amended im 2020), Art 156(5)
312016 Law on Treaties, Art 6(2) intemational treaties Therefore, according to the 1969 Vienna Convention on the
The BBNJ Agreement is set to have a more significant impact than previous international treaties concerning biodiversity in marine areas Vietnam has successfully developed and finalized its policy and legal framework to ensure comprehensive adherence to international laws aimed at protecting species, genetic resources, and ecosystems.