A Study On The Precautionary Principle In The BBNJ Agreement

Currently one of the most important negotiations to adopt an internationally binding instrument in the field of the law of the sea is the negotiation on conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction(BBNJ),which has attracted global attention from the international community.The current negotiation process has entered the stage of intergovernmental negotiations.The adoption of the current instrument as the third implementing Agreement in compliance with the 1982 UN Convention on Law of the Sea would have a significant effect on the BBNJ.Despite the challenges concerning the application of the precautionary principle,it has been considered as an effective risk management tool to prevent irreversible consequences which may arise due to insufficient cognition.Although it has been enshrined in several national legislation and international treaties,its definition and scope of application are still controversial in practice.In the previous three phases of the negotiation process,due to differences in the level of national development and different national positions,there were huge debates on whether and how the precautionary principle should be incorporated in the BBNJ Agreement.This article studies the relevant legal issues concerning the application of the precautionary principle under the BBNJ Agreement from the theoretical and practical levels,combining the current status and future trends of domestic and foreign legal implementation and judicial practice,and the draft text of the BBNJ Agreement,closely following the BBNJ Agreement negotiation process,and provide relevant suggestions for ongoing BBNJ international negotiations.In addition to the preface and conclusion,the paper is divided into four chapters.Chapter 1 includes an overview of the precautionary principle,its constituent elements,the problems in applying the precautionary method,and discusses the development of the precautionary principle,which originated from domestic law,developed in international law,consideration of precautionary principle as a rule of customary international law is debatable,however,recent developments are emerging concerning the principle to be considered as a rule of customary international law.This chapter would provide a reference for how to apply the precautionary principle under the BBNJ Agreement.Chapter 2 analyzes the legal basis of the precautionary principle in BBNJ Agreements,introduces the legislative process of BBNJ Agreements,discusses the status and role of legal principles in BBNJ Agreements,and identifies the legal practice of the precautionary principle in international organizations and judicial cases.Chapter 3 combines the different positions of countries and international organizations to analyze the specific clauses involving the precautionary principle in the negotiation of the BBNJ Agreement.The fourth chapter combines the analysis of three aspects which include perspective of improving the implementation of the precautionary principle,clarifying the scope and application of the precautionary principle in BBNJ Agreement,and achieving the balance between conservation and sustainable use as the guiding ideology,as discussed in the above chapters.Finally,the chapter considering the three aspects provides countermeasures and suggestions on the application of the precautionary principle in BBNJ Agreement.