Written by Anila Premti, Article No. 25 [UNCTAD Transport and Trade Facilitation Newsletter N°80 - Fourth Quarter 2018]
Conservation and sustainable use of the oceans and their resources is one of the 17 SDGs agreed by the international community as part of the 2030 Sustainable Development Agenda.
In this context, negotiations are taking place under the auspices of the United Nations, towards an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity of “areas beyond national jurisdiction” (ABNJ)[1].
This article highlights recent legal developments and key issues from the angle of developing countries’ interests.
Background and existing legal framework
With over 80% of world merchandise trade carried by sea, global trade is critically dependent on maritime transportation. In addition, fisheries, including aquaculture, continue to be an important source of food, employment and revenue in many countries and communities. Also, the use of the marine environment and its resources, including in ABNJ is increasingly expanding. For instance, shipping activity has increased - with maritime transport handling total cargo volumes of 10.7 billion tons in 2017,[2] and so have its environmental impacts, including marine and air pollution, litter and introduction of invasive species.
In addition, other marine activities including high seas fishing, seabed mining, submarine cables, marine scientific research, bioprospecting (the search for genes in organisms living in extreme environments in ABNJ), and the development of commercial products, could all have significant environmental impacts, including on marine ecosystems. Moreover, GHG emissions, climate change and ocean acidification are placing further pressure on marine ecosystems, reducing their resilience and compounding existing impacts.
ABNJ hold unique oceanographic and biological features and play a role in climate regulation. They provide seafood, raw materials, genetic and medicinal resources, which are of increasing commercial interest and hold promise for the development of new drugs to treat infectious diseases that are a major threat to human health globally. From the perspective of developing countries, access and benefit sharing, as well as conservation of marine genetic resources are in this context of particular importance.
UNCLOS distinguishes between two geographical zones in ABNJ, “the Area” and “the high seas”. “The Area” is defined as “The seabed and ocean floor, and subsoil thereof, beyond the limits of national jurisdiction” (Article 1). The Area and its mineral resources are considered the “common heritage of mankind” (Article 136), and activities in the Area must be conducted “for the benefit of mankind, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States” (Article 140). Parties organize and control activities in the Area, including administering its resources, through the International Seabed Authority (ISA), a body established under UNCLOS (Article 156).
“The high seas” encompasses the water column, i.e. “all parts of the sea that are not included in the EEZ, in the territorial sea, or in the internal waters of a State” (Article 86) and are governed by the freedom of the high seas principle. These include the freedoms of: navigation; overflight; laying submarine cables and pipelines; constructing artificial islands and other installations; fishing; and conducting scientific research (Article 87). However, these freedoms are not absolute, since through UNCLOS and other treaty obligations, conditions are placed on States on their exercise, subjecting them to a range of obligations and responsibilities to other States and to the marine environment.
UNCLOS 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; however, it does not expressly refer to marine biodiversity or to exploration and exploitation of resources within the water column in ABNJ. General environmental duties, applicable to both the high seas and the Area include those to: conserve and manage the living resources of the high seas (Articles 116-120); protect and preserve the marine environment (Article 192); prevent, reduce and control pollution of the marine environment (Articles 194-196, 207-212); take the measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life (Article 194); and the duties of States to cooperate with other States both at the regional and global levels (Articles 197, 242-244).
The Convention on Biological Diversity (CBD), 1992 (entry into force 29 December 1993; 196 Parties), in addition to defining biodiversity, provides that its Parties are responsible for ensuring that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction (Article 3), and must cooperate, directly or through competent international organizations, to ensure the conservation and sustainable use of marine biodiversity (Article 5). The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, 2010 (entry into force - 12 October 2014; 107 Parties), applies to genetic resources within the scope of CBD Article 15 (Access to Genetic Resources) and to traditional knowledge associated with genetic resources within the scope of the Convention.
In addition, other international agreements and instruments, apply only to specific issues, and/or geographical areas, making the current legal and regulatory framework for ABNJ generally fragmented. These include for instance, FAO and regional agreements on fishery management; IMO conventions (MARPOL, SOLAS, BWM, London Convention 1972) and other instruments on marine pollution, marine protected areas and related vessel traffic restrictions, vessel tracking, and anthropogenic ocean noise; UNESCO instruments, including the Convention on the Protection of the Underwater Cultural Heritage; instruments for the conservation of specific species such as whales and other marine mammals, migratory and endangered species; as well as instruments in the context of UNEP Regional Seas Programme and other regional seas initiatives.
Although States, when discussing issues related to ABNJ, often refer to important principles contained in or supported by UNCLOS, CBD and related international instruments, no consolidated legal framework is yet in place, applicable specifically to ABNJ. Therefore, an international legal instrument, outlining consistent and transparent provisions the issue, is desirable and would contribute to better decision making and cooperation.
Discussions during IGC-1
The first session of the Intergovernmental Conference (IGC-1) on an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biodiversity of ABNJ, took place at the UN Headquarters in New York, during 4-17 September 2018.
With preliminary discussions on the issue of ABNJ going on for several years, the aim of this IGC is to develop a legal instrument as soon as possible. During IGC-1, discussions were held in dedicated informal working groups, based on elements (of a negotiating package agreed in 2011), for which global rules are mostly needed, namely:
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Marine genetic resources (MGRs), including questions on benefit-sharing
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Environmental impact assessments (EIAs)
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Area-based management tools (ABMTs), including marine protected areas (MPAs)
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Capacity building and marine technology transfer (CB&TT)
IGC-1 made some progress in clarifying the delegations’ positions on the elements of the package. On the issue of MGRs, there is still disagreement between delegates that favour the regime of common heritage of mankind (G77/China, African group), calling for international oversight, equitable benefit-sharing and special consideration for the needs of developing countries, and those favouring high seas freedoms and free access to MGRs with no obligation to share the benefits derived from their exploitation. Other delegations also supported a hybrid approach between these two regimes, albeit without specifying what that might mean. Additional issues discussed included distinguishing fish used as a commodity and as genetic resources, with the new instrument covering only the latter; options on intellectual property rights - including a sui generis system, mandatory disclosure of origin, or leaving the matter to other bodies, such as the WTO and WIPO; as well as options on monitoring the utilization of MGRs.
On ABMTs, including MPAs (to protect MGRs), some progress was made, although there is still a wide range of positions on key elements. Some delegations (G77/China, the African Group) and civil society representatives, suggested a global approach, with the creation of a new global decision-making body to coordinate existing regional institutions, and fill gaps. Others argued that regional bodies are already well placed, and have significant expertise, to create and manage ABMTs, so efforts should focus on enhancing their efforts and coordination among them. Yet other delegates advocated combining the two proposals.
With regard to EIAs - important tools for integrating environmental considerations into decision-making - significant divergence resurfaced on whether the new international instrument should provide for an internationalized decision-making mechanism against which the standards and thresholds set under the instrument will be assessed, or if the decision-making will be conducted at the national level and the new international legal instrument would merely serve as an information-sharing mechanism. There was however convergence on: “protecting ecologically or biologically significant or vulnerable areas and an option requiring EIAs for all activities in them”; and on “an obligation to conduct an EIA for planned activities under States’ jurisdiction and control that can cause pollution or result in adverse changes to the marine environment, avoiding duplication with existing EIA procedures.”
Concerning CB&TT, there was convergence on “an indicative, non-exhaustive, and flexible list of CB&TT types and modalities that can be updated”; “the requirement for needs assessment to address regional characteristics, also on a case-by-case basis”; and “the need for an adequate, predictable, and sustainable funding mechanism.” However, there was disagreement on whether CB&TT provisions should be mandatory or voluntary. The G-77/China noted for instance, that the new legal instrument should define general obligations to promote cooperation for CB&TT, recognizing the importance of marine scientific research and the special cases of LLDCs, SIDS, LDCs, coastal African States, and developing middle-income States.
The way forward
MGRs from ABNJ, are an important priority for developing countries, given the economic value that can be generated from their exploitation, and the potential expansion of economic activities in their coastal and offshore areas, sustainably and in line with the SDGs. However, currently differences exist between developed and developing countries. According to a recent study, actors located or headquartered in 10 developed countries registered 98 per cent of the patents related to genes of marine origin, making possible their economic exploitation, and 165 countries were unrepresented. These findings highlight the importance of inclusive participation by all States in international negotiations and the urgency of clarifying the legal regime around access and benefit sharing of marine genetic resources. Therefore, in addition to aiming at achieving consensus on relevant complex substantive and procedural issues, negotiations for the new legal instrument will need to ensure a wide participation of all States, particularly developing countries.
During IGC-1, discussions on the main issues largely reiterated familiar positions already presented during earlier PrepCom sessions. Work is still needed on finding common solutions, particularly among options based on common heritage vs. high seas, and global vs. regional approaches. It appears that at IGC-2, discussions will proceed based on a new document, which although not yet a zero draft, is expected to contain treaty language and reflect the various options identified on the four elements so far, hoping that the delegations will finally start to identify solutions.
The IGC will meet initially for four sessions, with the second one taking place at the UN Headquarters in New York, from 25 March to 5 April 2019. A third session will also take place in 2019, and the fourth one in the first half of 2020.
[1] Maritime zones under UNCLOS include the “Territorial sea” - extending up to 12 nautical miles from the baseline (Article 3); “Exclusive Economic Zone” – extending from the edge of the territorial sea, to 200 nm from the baseline (Article 57); “Continental shelf” - the natural prolongation of the land territory to the outer edge of the continental margin, or 200 nm from the baseline, whichever is greater (Article 76); and ABNJ – composed of “the Area” (Article 1) and “the high seas” (Article 86).
[2] UNCTAD Review of Maritime Transport, 2018, Chapter 1.
For more information contact:
Anila Premti
Legal Officer ¦ Transport Policy and Legislation Section ¦ Trade Logistics Branch ¦ UNCTAD
anila.premti@un.org
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