UN Marine Negotiations: The Third Intergovernmental Conference and Future Prospects for the Ocean Negotiations

1 Underlying the Negotiations

The importance of an effective international treaty to protect and sustainably use marine life and ecosystems cannot be overestimated. The world’s oceans, with their multiple functions, are critical not only to humanity’s wellbeing, but, furthermore, to its survival. While the UN Convention on the Law of the Sea (UNCLOS), which entered into force in 1994, sets forth the rights and duties of States regarding the use of the oceans, their resources, and the protection of the marine and coastal environment, it does not directly address marine biodiversity or the exploitation of marine resources within the water column in areas beyond national jurisdiction. According to UNCLOS, the “Area” 4 and its mineral resources are governed by the principle of common heritage of humankind (UNCLOS, Article 136), while the “high seas” 5 fall under the freedom of the seas (UNCLOS, Article 87). Regulatory gaps arise both from the lack of specificity in some UNCLOS provisions and definitions, and from problems regarding the exploitation of marine genetic resources or marine pollution that have arisen or intensified since UNCLOS ratification. 6

Although no global legal regime currently regulates activities in the high seas, there are at least 190 multi- and bilateral agreements covering a multitude of issues, from waste dumping to deep-sea mining. 7 A global ocean treaty will need to address fragmentation and provide coordination as well as an overall vision.

Creating this new global instrument has proved to be a difficult, lengthy task. Issues related to the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction have been under discussion at least since 2004, when the Ad Hoc Open-ended Informal Working Group was established to study related matters. In 2011, during the fourth meeting of the Working Group, a set of recommendations was adopted to initiate a process for an international legal framework, including the elements of a “package” of issues that have been under deliberation ever since. The “package” focuses on marine genetic resources, area-based management tools, environmental impact assessments (EIAs) and capacity-building.

Following the ninth meeting of the Working Group, the Preparatory Committee was established with the mandate “to make substantive recommendations to the General Assembly on the elements of a draft text of a legally binding instrument under UNCLOS”. 8 Following four meetings from March 2016 to July 2017, 9 the Preparatory Committee presented its outcome document that contained areas of convergence and divergence of views, and the IGC was convened.

To date, the IGC has held three meetings, in September 2018, March 2019 and August 2019 respectively, with the fourth meeting postponed due to the lockdown measures, as already noted. The deliberations still revolve around the items identified in the 2011 “package”.

2 Trying to Shift into a Higher Gear

The BBNJ negotiations have been going on for a considerable period of time. As a result, a range of views have been expressed recently regarding their timely completion. Some commenters point to the complexity of issues at hand and the delicate character of the negotiations as groups of countries have different, and sometimes opposing, interests and aspirations regarding the management of oceanic resources. They argue that a race against time to operationalise a global agreement may result in an incomplete treaty, jeopardising the whole objective. Others point to the urgency of the issues under discussion, underscoring that the negotiations have already been lengthy and extensive, and that there is little room for agreement without significant concessions from the negotiating parties.

Many delegates and participants have indicated, during the many BBNJ meetings that took place in the past decade, that the pace of discussions has been rather slow and arguments have been repetitive with limited progress in bridging differing positions. They also highlight that some major disagreements relate to core issues and principles, including which of the following principles should govern the Preparatory Committee’s work: “common heritage of humankind” or “freedom of the seas”.

A significant amount of energy has been channelled towards extensively discussing important details of the new agreement, however, without reaching common ground on core principles, including the nature of the instrument’s secretariat or implementing body, leaving the proposed treaty without proper foundations.

IGC President Rena Lee (Singapore) and the Committee’s Bureau, in an effort to move discussions forward during IGC-3, introduced two important changes to the negotiation approach that had applied until that moment. Firstly, a “zero draft” text was produced, building upon the discussions that had been held during the first two IGC meetings, considering a document called the “President’s Aid to Discussions”. This “zero draft” more closely resembled the potential text of a treaty. It was intended to allow for a focused exchange of views on specific parts of the document, a submission of textual suggestions and a better understanding of nuanced positions. Following IGC-3, an updated version of the zero draft was produced, taking into account comments and interventions. 10

Secondly, the meeting’s format changed, moving from the earlier operations in plenary sessions to greater use of informal group discussions in the third IGC meeting. These informal discussions were often held behind closed doors, in the hope that limitation of the number of observers would encourage more direct, frank negotiations on delicate topics, picking up the meeting’s pace and hopefully increasing the chances of a successful outcome by following negotiating avenues that have proved effective in the past under the auspices of UNCLOS.

3 Staying in Low Gear

While progress in some areas under discussion during IGC-3 can be attributed both to the production of a zero draft and to the informal character of the discussions. The meeting, however, did not provide any significant breakthroughs that will be necessary to break the deadlock on core issues.

Participants expressed relief when the decision was made to specify limited times for focus on each element of the text. The Parties indicated that their general positions were already well established. Similarly, the zero draft approach garnered positive statements, that it was definitely helpful. It allowed the circulation and discussion of text-based suggestions that permitted further elaboration of views.

As hoped, the informal meetings led to a more direct, hands-on, negotiating tempo. Although some claimed that the informal settings adopted at IGC-3 were not that different from the previous working groups, many applauded the effort to provide a more relaxed negotiating environment. These changes, however, came with a price. They seriously limited the number of observers and their interventions, and gave the negotiations a rather secretive appearance. Although this closed approach has not been completely unheard of in multilateral environmental negotiations, its use in this meeting created a poor contrast with the open, inclusive, transparent, participatory approach used, for example, by the Convention on Biological Diversity (CBD) and other bodies. It also discounted the value, found in other contexts, of the participation of both non-governmental and intergovernmental organisations, particularly where it helps to fill gaps regarding the contributions of the scientific research community and/or the private sector.

It is not easy to judge whether the benefits of the informal negotiating format adopted at IGC-3 outweigh the costs, especially since those benefits have yet to materialise. If the informal, closed sessions eventually lead to finding common ground between opposing camps in the near future, a strong “end justifying the means” argument will arise; if limited progress is noted, it is inevitable that the format will attract considerable criticism in the near future.

4 Prospects and Main Obstacles Ahead

The fourth IGC meeting is expected to follow the same negotiating format and will focus on a new version of the draft. The work is split among five working groups, addressing the four issues identified in the “2011 package” and cross-cutting issues. In order to successfully complete the negotiation, different opinions on core principles will need to be bridged regarding all the package’s elements.

5 Concluding Remarks – is a Much-needed New Treaty on the Horizon?

Since the beginning of the negotiations, few could argue against the potential of a new global body to be an invaluable ally in the fight for conservation and sustainable use of biodiversity in areas beyond national jurisdiction. Recalling the difficulties that arose when negotiating UNCLOS Part XI, it is clear that shaping a new global instrument will not be an easy task. Even after 16 years of efforts, it is not easy to discern the journey’s end.

The differing worldviews reflected in the competing principles of common heritage of humankind and the freedom of the seas, will not be easily moderated. Opposing interests, including financial concerns, shape national and regional positions, and traditional negotiating camps often find themselves sitting in trenches rather than round tables.

This is not surprising, given that parties don’t operate in a vacuum, but rather within an uneven international environment. The potential value of marine genetic resources, as a central focus, has been seen as an example of these divergences: “[A]ctors located or headquartered in 10 countries registered 98% of all marine patent sequences and 165 countries were unrepresented, while a single corporation registered 47% of all marine sequences included in gene patents”. 15

While competing interests may not be removed from the equation, any realistic instrument with ambition to attract universal participation will need to strike a delicate balance, using initial positions as negotiating chips. Give and take must focus around the ABS issues of exploitation and benefit-sharing with regard to marine genetic resources, as well as the various existing bodies and instruments whose mandates may be relevant and the relative ascendancy of the envisioned instrument compared with national authorities and regional or sectoral bodies.

In attempting to strike the required balance, delegates will need to overcome numerous obstacles and make several concessions. Although breakthroughs during the next stages of the negotiations are still possible, many participants seem frustrated, expecting further progress only after a lengthy process.

These slow-downs can potentially be accelerated if the IGC can reach agreement on key structural issues and principles, and on the relationship of the new body with existing institutions. For that to be achieved, however, a lot of negotiating hours would be needed. Many mid-table solutions will need to be suggested along the way, before any final agreement can be reached.

Notwithstanding the complexity of the BBNJ negotiations, it seems generally apparent that the final treaty is not yet in sight. Delicate discussions will need to be held to move the process forward. Scheduled intersessional work, too, could help to bring about compromises. Unfortunately, the turmoil due to the COVID-19 lockdown has further delayed such efforts. As things stand, the finish line does not seem significantly closer.