Abstract

On 24 December 2017, the United Nations General Assembly resolved to convene an intergovernmental conference (IGC) to finalise the text of a legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (the BBNJ negotiations). The IGC was mandated to meet “initially with respect to 2018, 2019 and the first half of 2020…for four sessions of a duration of 10 working days each”. 1 The last session, originally scheduled for March 2020, was postponed due to the measures adopted to combat COVID-19. 2 This article discusses the progress so far, focusing on the third IGC meeting, which convened in UN Headquarters in New York from 19– 30 August 2019. 3 It further analyses the main obstacles to a timely, successful conclusion of the exercise that would result in a new global treaty to govern the world’s oceans.
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”.
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.
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.
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.
Access and Benefit-sharing
There has been little doubt since the inception of these negotiations that marine genetic resources would be a contentious topic, particularly with regard to benefit-sharing issues. Many expected tensions similar to those present during the negotiations on UNCLOS Part XI regarding the seabed. In broad terms, the roles are similar. Those countries that are likely to operate in areas beyond national jurisdiction (usually developed countries) do not favour regulations, citing the “freedom of the seas”. Other countries prefer a well-regulated regime, often stressing the existence of the access and benefit-sharing (ABS) regime under the CBD and its Nagoya Protocol. These delegations strongly emphasise the “common heritage of humankind”. The draft text tried to outmanoeuvre this discrepancy, stating neither of the two principles. The problem, however, is much more complicated and cannot be so simply avoided. Different interpretations spill over into various aspects of the topics under discussion.
Bridging different opinions will require effort; voluntary, non-monetary benefit-sharing is a world apart from mandatory monetary payments and any middle-ground solutions will have to be balanced, well-crafted and inspired. Moreover, uncertainties are inherent to all bioprospecting activities. As noted by some, “Differing expectations about the potential benefits of (marine genetic resources) seem to be shaping the cost/benefit analyses of actors with regard to the prospect of creating a heavy or rigid international architecture for regulating access and benefit-sharing”. 11
With no sovereign rights recognised (in contrast to the CBD), however, there is no legally recognised “provider” entitled to prior informed consent and a share of the benefits from genetic-resource use, at least not one that is parallel to that found in bilateral ABS arrangements. Instead, any potential treaty needs to conceive an approach to ABS – either by identifying some type of entity or concept that can be seen as the “provider” of the genetic resources or by building a negotiated system that is not dependent on the transactional approach but still achieves the objectives of ABS.
Difficulties in estimating potential commercial future profit from genetic-resource-related activities in marine areas beyond national jurisdiction, coupled with the desire to avoid unreasonably stifling marine scientific research and differing interpretations on the role of intellectual property rights in the future treaty, have created a knot that will require skill to untie. As noted in earlier issues of EPL, 12 there is, at present, active on-going debate in forums under the CBD and the International Treaty on Plant Genetic Resources for Food and Agriculture, focused on a current and critical ABS-related topic that has been referred to as “digital sequence information”. These discussions have tried to include marine-genetic-resource issues, and address the matter in much more detail and complexity. They underscore another critical element of the creation of a new ABS system for genetic and biological resources in marine areas: the need for incentives that promote transparency about access and collection, as well as compliance with obligations to share benefits. 13
Area-based Management Tools
By contrast to these perturbations, area-based management tools (ABMTs), including marine protected areas (MPAs), were expected to create less controversy. Still delegates struggle to agree on definitions and use of terms, devoting a considerable amount of energy to discussing whether ABMTs will be “established”, “designated”, “identified” or “adopted and implemented”. The underlying criteria for adopting and implementing ABMTs have not been agreed upon, with divergent opinions surfacing on the inclusion of socio-economic criteria. Even the development of a list of such criteria is not unanimously desired. Some delegations recommended that a scientific and technical body under the new instrument be assigned that task.
The discussion on ABMTs also brings the role of other instruments and bodies to the fore. Many of these have already adopted or recognised ABMTs or other measures or have the competency to do so. The role of these bodies is a delicate issue for the BBNJ negotiations. Both resolutions 69/292 (establishing the Preparatory Committee) and 72/249 (establishing the IGC) explicitly note that any new agreement “should not undermine existing relevant legal instruments and frameworks, and relevant global, regional and sectoral bodies”. During the Working Group discussions, several different formulations had been proposed; albeit the result of a compromise, the “not undermining” phrase “is not typically used in conflict clauses found in other international agreements, meaning that there is little precedent to rely on for its interpretation”. 14
Environmental Impact Assessment
EIAs have been a topic about which multiple efforts have been made to table compromise solutions and bridge divergent opinions. Still, there was little agreement apart from the recognition that the State Parties should bear the responsibility regarding the conduct of EIAs. Interventions varied over the State Party’s authority versus the possibility of authorising a scientific and technical body under the new instrument. Related considerations include the divergence over whether the treaty would include a list of activities that would automatically trigger an EIA and/or whether it could include a process that would make it possible for some person, entity or State to overturn EIA-related decisions taken by State Parties.
Capacity-building
Capacity-building and the transfer of marine technology are well intertwined in the zero draft, especially with regard to ABS considerations. The debate at the current stage is not very fruitful, with not-unexpected divergences between the developed and the developing countries. While a significant part of the discussions on modalities and types of capacity-building reveals the “voluntary and non-monetary” versus “mandatory and monetary” chasm, much more needs to be done in order to include a section in the new treaty that meaningfully addresses the need for capacity-building and the transfer of marine technology, especially if all Parties are to be equal partners in the new agreement.
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.
Footnotes
The official background documents of the meeting are online at https://www.un.org/bbnj/content/third-substantive-session. The article-by-article compilation of textual proposals for consideration at IGC-4 is available at https://www.un.org/bbnj/sites/www.un.org.bbnj/files/textual_proposals_compilation_article-by-article_-_15_april_2020.pdf. The IISD Reporting Services’ daily reports, digital coverage, and summary and analysis of the meeting are available at
. This article is based on an assessment of the meeting by the author, based on a review of the documents, his personal notes and observations as a member of the IISD Reporting Services team in all IGC and previous BBNJ meetings, and interviews with selected participants.
“The Area” is defined as “The seabed and ocean floor, and subsoil thereof, beyond the limits of national jurisdiction” (UNCLOS, Article 1).
“All parts of the sea that are not included in the EEZ, in the territorial sea, or in the internal waters of a State” (UNCLOS, Article 86).
The ENB reports from the four PrepCom meetings are available at https://enb.iisd.org/vol25/enb25106e.html, https://enb.iisd.org/vol25/enb25118e.html, https://enb.iisd.org/vol25/enb25129e.html and
.
Tsioumani, E. 2019. “The 2018 UN Biodiversity Conference”. EPL 49(1): 19– 24.
Blasiak, R. et al. 2018. “Corporate control and global governance of marine genetic resources”. Science Advances 4(6): eaar5237.
