28.09.2018

On International Legally Binding Instrument Under the UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ)

Recently, the international community has become increasingly aware of the range of services provided by marine ecosystems and of the rich biodiversity of pelagic and benthic ecosystems beyond the limits of national jurisdiction (UN, 2017).

The UN Convention on the Law of the Sea (UNCLOS) was developed as a comprehensive system of law and order in the world’s oceans mainly and primarily for Exclusive Economic Zone (EEZ), but it left the international waters and the high seas which represent around two thirds of the oceans without the mechanisms of effective protection of the marine environment and with-no guarantees of the sustainable character of the economic activities or mechanisms to manage  negative impacts or sharing the benefits of such activities Exploring new economic opportunities, supported by the significant technological advancements, may extend the list of the existing negative anthropogenic impacts caused by the existing unsustainable

economic activities such as overfishing, unsustainable practices of mining, marine pollution, and bioprospecting in the deep sea. The oceans cover over 70% of the Earth’s surface. Given the environmental pressures, increasing demand for the minerals in the future decades and technological advancements which allow to carry on economic activities in the international waters and high seas, a number of the concerned states called for a negotiating process and developing  “Paris Agreement for the Oceans” - A legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).

Following more than a decade of discussions convened under the United Nations General Assembly, the Assembly, in its resolution 72/249 of 24 December 2017, decided to convene an Intergovernmental Conference (IGC) to elaborate the text of an ILBI under UNCLOS on the conservation and sustainable use of BBNJ, with a view to develop, negotiate the draft of this treaty to be signed by the member states at the end of 2020. The treaty would be the first convention ever to address the negative environmental impact of economic activities such as fishing and maritime traffic, and would create a global system for the coordination of environmental protection and the sustainable use of the sea. 

The first session of the Intergovernmental Conference (IGC) on an international legally binding instrument under the UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) held from 4-17 September 2018 at UN Headquarters.

The IGC discussions were organized around the "package" agreed in 2011 on: marine genetic resources, including questions on benefit-sharing; measures such as environmental impact assessments and area-based management tools, including marine protected areas; and capacity building and marine technology transfer (CB&TT).

The IGC was expected to take consensus-based decisions on the preparation process of a zero draft of the international legally binding instrument. The meeting has confirmed significantly divergent positions of the states on a number of issues. 

For instance in respect to CB&TT the US supported its applying to BBNJ conservation and sustainable use, but not to activities covered by UNCLOS; and opposed language according preferential treatment to developing countries. The EU stressed that all CB&TT measures should be related to facilities and equipment, human resources and institutional strengthening, and knowledge dissemination. The highest disagreement has been demonstrated in respect to mandatory and/or voluntary CB&TT provisions. The developed countries have advocated for voluntary CB&TT 

Disagreement over whether the regime of the common heritage of humankind or high seas freedoms should apply to MGRs persisted. Those favoring high seas freedoms emphasized free access to MGRs, whereas those arguing for common heritage called for some sort of international oversight and equitable benefit-sharing. Some delegations over the years of the BBNJ discussions have also pointed out to the possibility of a hybrid approach between these two regimes, but so far the idea has not resulted in a concrete proposal.

Significant divergence also resurfaced in relation to environmental impact assessments (EIAs). IGC-1 negotiators were not quite ready to respond to the outstanding issue of whether the ILBI will provide for an internationalized decisionmaking 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 ILBI would merely serve as an information-sharing mechanism. Please, find the complete coverage of the IGC, published by the IISD Reporting services here.

By Katsiaryna Serada

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