Biodiversity Beyond National Jurisdiction (BBNJ)
1st Session of the Preparatory Committee Established by the UN General Assembly Resolution 69/292 “Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction”
28 March - 8 April 2016 | UN headquarters, New York
The first session of the Preparatory Committee on the elements of a draft text of an international legally binding instrument under the UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) convened from 28 March – 8 April 2016 at UN Headquarters in New York.
Meeting in plenary and informal working group settings, the Committee considered: the scope of an international legally binding instrument and its relationship with other instruments; guiding approaches and principles; marine genetic resources, including questions on benefit-sharing; area-based management tools, including marine protected areas; environmental impact assessments; and capacity building and marine technology transfer.
Delegates engaged in frank discussions, outlining their detailed positions on the various elements related to the 2011 “package.” On the final day, they agreed to a procedural roadmap outlining the structure of PrepCom 2, and on having a Chair’s summary of the meeting and an indicative list of issues circulated during the intersessional period, to facilitate preparations for PrepCom 2. Several participants praised the pace and depth of the discussions, and the constructive spirit that marked the beginning of a formal process expected to lead to the adoption of a new UNCLOS implementing agreement on deep-sea biodiversity.
The Summary of this meeting is now available in PDF format
at http://www.iisd.ca/download/pdf/enb25106e.pdf and in HTML format at
A BRIEF ANALYSIS OF THE MEETING
“UNPACKING THE PACKAGE”… DEFRAGMENTING AND UNTANGLING IT, TOO
“This is a whole new game!” If there was any doubt that a Preparatory Committee for a new treaty on marine biodiversity of areas beyond national jurisdiction would not be much different from its predecessor―the BBNJ Working Group―it was quickly dispelled. It was clear from the start that, after taking ten years to find consensus on the legally binding nature of a new instrument to fill gaps in oceans governance, delegations were well prepared to exchange detailed suggestions on “how” to do it, rather than to linger on any remaining “ifs.”
The veterans of the process also remarked that the PrepCom was different from the Working Group in other significant ways. Several delegations have grown in size and rank, with those that were more skeptical of the process having switched to a (in some cases, much) more cooperative attitude. In addition, a new Chair, Eden Charles, and a series of facilitators of informal working groups, were praised repeatedly for their able and good-humored steering of the process. Furthermore, the transparency, notably to allow NGOs and IGOs to contribute to the discussions, was guaranteed in the “hard-fought” UN General Assembly Resolution 69/292 that established the PrepCom. On-the-spot reassurances from Chair Charles and several delegations served to drive out concerns about a possible repetition of the past practice of the Working Group to close lengthy sessions to civil society and IGOs.
As delegations remarked throughout the two weeks, PrepCom 1 engaged in “unpacking the package” of elements that were agreed in 2011―the core of a future treaty. Informally, many confirmed that the PrepCom has placed on the table a wide range of options for each of the different elements, detailing country and regional positions to an unprecedented degree in the process (although they were occasionally “all over the place,” as one delegate observed). The exercise also served to start defragmenting the elements of the package, which brought―according to those concerned with the biological interconnectivity of the oceans―an overdue, albeit still incipient, understanding of inter-linkages necessary to build a truly integrated approach to the conservation and sustainable use of marine biodiversity.
In addition, the unpacking exercise also served to untangle connections with several other processes, which revealed an even more multi-faceted structure than many veterans expected. That is because over the ten years it took the BBNJ process to formalize into a PrepCom, several international bodies have given birth to guidelines, tools and practices that relate to each element of the package. These developments make more complex the task of not “undermining” existing instruments and bodies in moving forward with negotiations (as agreed at the last BBNJ Working Group and reiterated in General Assembly Resolution 69/292). These developments also provide a wealth of materials and lessons learned to build upon.
This brief analysis will discuss progress in unpacking, defragmenting and untangling each element of the package, and provide an outlook of the next stage in the process.
HARMONIZING, BUT NOT UNDERMINING, CONSERVATION EFFORTS
Unpacking and defragmenting the elements related to area-based management tools, including marine protected areas, and environmental impact assessments, brought to the surface the sheer number of relevant international developments that have occurred and continue to mushroom “elsewhere.” With that, the opportunities for harmonization and the challenges of the “non-undermining task” of the PrepCom came into sharper contrast.
The most notable examples are the Convention on Biological Diversity criteria on ecologically or significant marine areas and the vulnerable marine ecosystem criteria. The latter were developed under the FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, as a follow up to General Assembly resolutions on bottom fisheries. One key difference between EBSAs and VMEs is that while the identification of the latter requires specific sectoral conservation and management measures by RFMOs (including EIAs, and what Japan called “de facto MPAs”), the description of areas meeting the EBSA criteria is a scientific and technical exercise, since the CBD was not given the mandate to adopt management measures. Nevertheless, CBD decisions have noted that these areas may require enhanced conservation and management measures, including MPAs and EIAs, which is up to states and competent intergovernmental organizations to undertake. Of the roughly 55 EBSAs located (wholly or partially) in ABNJ to date, however, very few have been granted conservation and management measures (one example can be found in the Sargasso Sea EBSA), although the CBD voluntary guidelines on EIAs in marine and coastal areas, which are applicable to ABNJ, recommend consideration of EBSAs (and VMEs) at different stages of assessments, with the FAO Guidelines providing detailed guidance on EIA standards.
In considering how to factor these new tools into the ILBI, a few countries (like Japan, Iceland, and the Russian Federation) cautioned against interfering with the work of RFMOs mapping VMEs and conducting EIAs to prevent significant adverse impacts, including by closing areas where these are likely to occur. In the corridors, however, NGOs considered positive appraisals of RFMOs significantly overstated, recalling disgruntled voices at the 2009 and 2011 reviews of implementation of the General Assembly resolutions on bottom fishing, with the most recent concluding that “urgent actions” are needed as the relevant provisions of these General Assembly resolutions “have not been fully implemented in all cases.” Chair Charles thus encouraged delegates to keep an eye on the upcoming Fish Stocks Agreement Resumed Review Conference scheduled in May, as well as the bottom fishing workshop in early August, in preparation for PrepCom 2.
But even the BBNJ experts who habitually live out of their suitcases realized that they may need to clone themselves to keep abreast of all relevant processes. The upcoming CBD SBSTTA meeting is not only scheduled to continue work on EBSAs, but also underwater noise, which NGOs recommended integrating under EIAs and MPAs in the ILBI, and biodiversity mainstreaming in the fisheries sector. In addition, SBSTTA will consider guidance and a toolkit for marine spatial planning―a notion that was only sporadically mentioned at PrepCom 1 but appears critical for building a comprehensive and integrated conservation regime, according to some delegations. In addition, while negotiators digest the proposals on institutional mechanisms for establishing, managing, monitoring and/or overseeing MPAs (and ecologically MPA networks), as well as coordinating, conducting, reviewing and/or following up on EIAs and strategic environmental assessments, the role of the regional seas conventions, which was hardly ever mentioned at the PrepCom, may be discussed elsewhere. In effect, some BBNJ veterans only became aware in New York that the May meeting of the United Nations Environment Assembly will consider a proposal from the US and the EU on the possible extension of the mandates of these conventions to ABNJ.
BENEFITS AND CAPABILITIES
On marine genetic resources, the PrepCom featured the well-known divergence of views on the applicable regime. On the one hand, the G-77/China argued that the common heritage of mankind applies to marine genetic resources in the Area and in the high seas, with a wealth of legal arguments offered up by the African Group. On the other hand, some developed countries remain skeptical of this interpretation (as the text of UNCLOS specifically subjects mineral resources to the common heritage), or favor the catch-all regime of freedoms of the high seas. Many developed and developing countries alike, however, emphasized equity as the ultimate rationale for this element―a key qualification that was not explicit in the 2011 package, which refers laconically to “benefit-sharing questions” rather than to “fair and equitable benefit-sharing.” On that basis, developing country delegates appear to be showing increasing signs of openness to discuss a “pragmatic,” “creative” or “sui generis” approach that may be able to build on the complementarity, rather than mutual exclusion, between common heritage and high seas freedoms.
According to many, this is certainly one if not the most difficult issue in the negotiations ahead, and it was pointed out in plenary and on the sidelines that bilateral negotiations may be needed to find common ground. The discussion might have been made even more complex by the recent calls for including access in silico—access to digital genetic information. For some, this is a growing trend in bio-based research and development that may well render obsolete an access and benefit-sharing regime solely focused on physical access to the resource. For others, however, digital information is no longer biodiversity and thereby falls outside of the ILBI scope.
Another thorny question that was unpacked by reference to lessons learned in other benefit-sharing mechanisms that have evolved or have been created since the start of the BBNJ process (notably the ITPGR, but also the International Seabed Authority and the Nagoya Protocol) is the viability of non-monetary benefit-sharing when it solely depends on voluntary contributions. The World Health Organization’s Pandemic Influenza Preparedness framework, which was cited by some in the process, has introduced a system of annual contributions from industry to address this issue. While it remains unclear to what extent experiences in other benefit-sharing processes can be replicated in the BBNJ context, this and other considerations also led to a discussion about voluntary vs mandatory approaches to capacity building and technology transfer, not only as a form of non-monetary benefit but also as a separate element of the 2011 package.
Voluntary approaches were, in effect, one of the reasons identified for the limited implementation of UNCLOS provisions on capacity building and technology transfer. Nevertheless, several developing countries appeared encouraged by the multiple suggestions from all sides for badly needed “tangible” capacity building and technology transfer measures. What remains less clear, however, is the reception of the proposals from developing countries and civil society for a multilateral institutional approach. Countries that are likely to shoulder the expense of new institutions are expected to very carefully study the multifarious institutional desiderata that have been put on the table, although some already expressed openness to consider a clearinghouse that could, similar to that under the Nagoya Protocol, also contribute to monitoring compliance with benefit-sharing. In unpacking the elements on MGRs, capacity and technology, therefore, link with the need to support implementation of the ILBI, including its future conservation provisions, and this became much clearer than in the past. The interface with conservation was also evident in the NGO interventions on benefit-sharing, which were the first ones on this topic since the BBNJ process started.
A BUSY ROAD(MAP) AHEAD
As PrepCom 1 concluded amidst expressions of enthusiasm for the productive and transparent start of official negotiations, perhaps partly explained by the comparison with the exceedingly slow pace of and polarized views at the earlier BBNJ Working Group, delegates braced themselves for a lot of substantive homework back in capital and in other fora throughout the next few months. Now that several concrete options are on the table, some felt that PrepCom 2 can only “keep up the good work” if delegations return to New York in August ready to support some options and explain why they are not willing to take on board others.
And as Chair Charles suggested, in the procedural roadmap approved at the end of the meeting, “parking” options on which wide acceptance has already been achieved, BBNJ delegates were reminded, once again, of the foundational role of General Assembly Resolution 69/292 recognizing “the importance of proceeding efficiently in the PrepCom” and that “any elements where consensus is not attained, even after exhausting every effort, may also be included in a section of the recommendations” to be transmitted from the PrepCom to the General Assembly by its 72nd Session. After unpacking, defragmenting and disentangling the package, those ardently hoping for the adoption of the new instrument by 2018 wish to proceed as expediently as possible to create a strong, universally acceptable and implementable agreement to preserve, as a delegate fervently remarked in closing, our planet – Mother Sea.
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