The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction

Abstract United Nations General Assembly resolution 69/292 provides that in developing an internationally legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, the process should “not undermine” relevant existing legal instruments and frameworks and relevant global, regional, and sectoral bodies. An analysis of the varied interpretations of this ambiguous expression and its surrounding language raises questions about the role envisaged for such existing architecture. This article considers the practice of regional fisheries management organizations as an illustration of the possibilities and potential for improved practices generated from within existing architecture. It reviews measures taken to protect biodiversity and innovative applications of international law that have improved the ability of RFMOs to take such environmental measures. It seeks to highlight the importance of avoiding too narrow an interpretation of the notion of “not undermining”, and of recognizing the potential in existing architecture when designing an improved regime for the protection of biodiversity beyond national jurisdiction.