‘Zero Draft’ of Marine Biological Diversity Treaty Critical for Negotiations, Delegates Tell Intergovernmental Conference
Delegates to the first session of the intergovernmental conference drafting a legally binding treaty under the 1982 United Nations Convention on the Law of the Sea governing marine biodiversity in ocean waters beyond national jurisdiction deliberated on how to move forward today, with the majority speaking in favour of a “zero draft” or similar text around which they could focus their negotiations.
Egypt’s representative, speaking on behalf of the “Group of 77” developing countries and China, echoed the views of many delegates in saying that a zero draft — prepared by the conference President and circulated before the second session, scheduled for 25 March to 5 April 2019 — would be the next logical step.
His counterpart from the Maldives, speaking for the Alliance of Small Island States (AOSIS), said the zero draft could reflect the different views put forward by delegations since the session began on 4 September. He too appealed for the text to be released as soon as possible.
Stating that “we now understand each other better,” the European Union’s delegate suggested that the zero draft focus on substantive positions as well as the different options brought to the table by various Member States. Although the text need not include definitions or final clauses, it could identify areas of convergence and commonalities.
While many speakers welcomed the idea of some kind of rough draft, regardless of what it might be called, the representative of China proposed a different approach, whereby the President would draft a non-paper ahead of the second session, followed by a zero draft for the third session scheduled for 19 to 30 August 2019.
The Russian Federation’s representative, however, urged that although delegations were describing a “convergence of views” on certain matters, such a use of that term might suggest the view of a majority. He urged that it be used with caution so as not to drift away from consensus solutions. As well, a zero draft text that included ready-made decisions would put some delegations in uncomfortable positions. Rather, the text should reflect all main approaches and alternative positions, enabling delegations to continue with a focused exchange of views.
Nonetheless, Algeria’s delegate, speaking for the African Group, stressed that the draft should not be interpreted as representing consensus. Rather, it would be a tool for negotiations. Urging unity in the process, he quoted oceanographer Jacques Yves Cousteau, who said: “The sea, the great unifier, is man's only hope. Now, as never before, the old phrase has a literal meaning: We are all in the same boat.”
Rena Lee (Singapore), President of the Intergovernmental Conference, speaking at the end of today’s discussion, said a negotiating text will be ready before the second session, adding, however, that it will not be called a zero draft. In terms of its structure, she noted that she needed some time to assess materials and figure out how to structure the document.
“I have taken note of suggestions,” she added, emphasizing the need to strike a balance. Nonetheless, she cautioned against the second session turning into a drafting session where delegates engaged in the “nitty gritty” of punctuation and paragraph breaks.
Gabriele Goettsche-Wanli, Director of the Division for Ocean Affairs and the Law of the Sea, presented an update on the current financial status of the Voluntary Trust Fund established by the General Assembly in 2015 to help developing countries to send representatives to the conference. The Trust Fund had provided assistance to 22 delegations to attend the first session. However, once again that assistance virtually deplete the Trust Fund’s coffers. She called for continued support to the Trust Fund, even in small contributions made regularly, as it was critical to ensure meaningful assistance to those who need it.
Today’s meeting opened with facilitators presenting reports on the conference’s discussions on capacity-building and transfer of marine technology; area-based management tools, including marine protected areas; environmental impact assessments; and marine genetic resources, including questions on benefit-sharing.
Convened pursuant to General Assembly resolution 72/249, the session — continuing through 17 September — is seeking to elaborate the text of an international legally binding instrument under the 1982 United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
The session is the first in a series, with the second and third to take place in 2019 and the fourth and last session planned for the first half of 2020. Also speaking today were representatives of Samoa (for the Pacific Islands Forum members), Nauru (for the Pacific small island developing States), Belize (for the Caribbean Community), Costa Rica (for a group of 14 Latin American States), Monaco, Morocco, Philippines, Switzerland, United States, Venezuela, Federated States of Micronesia, Colombia (for five Member States), Togo, Iran, Canada, Iceland, Norway, Indonesia, Japan and India.
Representatives of the International Union for Conservation of Nature and Natural Resources, High Seas Alliance, International Council of Environmental Law and Food and Agriculture Organization also spoke.
The conference will meet again on Monday, 17 September, to complete its first session.
Reports of Working Groups
NGEDIKES OLAI ULUDONG (Palau) reported on the intergovernmental conference’s discussions on capacity-building and transfer of marine technology. Among other things, she said different approaches were presented on how the instrument could concretely play a role in ensuring that capacity-building contributed to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. It was generally recognized that capacity-building and technology transfer should be responsive to the needs of developing countries, particularly small island developing States and least developed countries.
ALICE REVELL (New Zealand) reported on the discussions on area-based management tools, including marine protected areas, including a general convergence on the role that area-based management tools would play in achieving the instrument’s objectives. Some speakers suggested that standards and criteria be established for identifying those areas requiring protection. On the use of terms, there was convergence on the idea that area-based management tools and marine protected areas be defined in the instrument.
RENÉ LEFEBER (Netherlands), reporting on discussions on environmental impact assessments, said, among other things, that there was convergence around the view that such assessment should be obligatory, but should avoid duplication with existing processes. Speakers also underscored the need for consultation, coordination and cooperation with existing instruments, framework and bodies. There was also general recognition of the importance of international cooperation and the special situation of small island developing States.
JANINE ELIZABETH COYE-FELSON (Belize) reported on the discussions on marine genetic resources, including questions on the sharing of benefits. She said there seemed to be some agreement on the idea that the instrument should apply to both marine areas beyond national jurisdiction and the high seas. With that, there was also general recognition that the rights of coastal States must be respected. As well, different views were put forward on how the principles of the common heritage of mankind and the freedom of the high seas would apply in the case of marine genetic resources. Various ways were also proposed on how the monetary and non-monetary benefits of marine genetic resources could be shared.
Statements on Draft Text
The conference then considered the process to a “zero draft text”.
EMAD MORCOS MATTAR (Egypt), speaking for the “Group of 77” developing countries and China, said a zero draft — prepared by the conference President — is the next logical step. Structured in a flexible manner, it would contribute to a more focused and substantive discussion, he said, adding that it should be circulated before the next session in 2019.
MEHDI REMAOUN (Algeria), speaking for the African Group, said the time has come for text-based negotiations. Reiterating the Group’s call for a zero draft ahead of the second session, and noting his discussions with his United States counterpart, he stressed that the draft should not be interpreted as representing consensus. Rather, it would be a tool for negotiations, subject to an intergovernmental process that, to the greatest extent possible, avoided parallel meetings. Urging unity in the process, he quoted oceanographer Jacques Yves Cousteau, who said: “The sea, the great unifier, is man's only hope. Now, as never before, the old phrase has a literal meaning: We are all in the same boat.”
ANDREAS PAPACONSTANTINOU, European Union delegation, also voiced the bloc’s preference for text-based negotiations and a zero draft prepared by the President. “We now understand each other better”, he observed, adding that the zero draft should focus on substantive positions as well as the different options brought to the table by the various delegations. While the text need not include definitions or final clauses, it could identify areas of convergence and commonalities.
ISMAIL ZAHIR (Maldives), speaking for the Alliance of Small Island States (AOSIS) and associating himself with the Group of 77, also emphasized the importance of moving towards a zero draft, adding that the President is in an informed position to prepare it. That text could feature options that reflected the different views put forward by delegations, he said, adding that it should be distributed as soon as possible to allow time for coordination.
MATILDA BARTLEY (Samoa), speaking for the Pacific Islands Forum members, underscored the importance of creating a legal instrument that introduces international management mechanisms allowing for the comprehensive and effective management of areas beyond national jurisdiction, without undermining existing efforts. Welcoming the support expressed for the special needs of small island developing States, she called for that principle to be reflected in the new instrument, which should incorporate the relevant traditional knowledge of indigenous peoples and local communities in its operationalization.
MARGO DEIYE (Nauru), speaking for the Pacific Small Island Developing States, encouraged the President to prepare a zero draft that would move the conference towards a more focus and concise discussion. It should be prepared as soon as possible, in time for the next session, she said.
Ms. COYE-FELSON (Belize), speaking for the Caribbean Community (CARICOM), said now is the time to formally start negotiations on the basis of a text prepared by the President and her team. Its early release, she emphasized, will facilitate consultations between delegations and with relevant stakeholders.
SHARA DUNCAN VILLALOBOS (Costa Rica), speaking on behalf of 14 Latin American States, requested the President to prepare an informal preliminary draft text that would be comprehensive but not exhaustive, and which would be ready before the next session. She also suggested that working groups become negotiating groups that would discuss specific proposals. She reiterated the importance of transparent and inclusive negotiations that would be open to all.
TIDIANI COUMA (Monaco) agreed that, regardless of what the draft is called, the conference should move forward with a substantive text.
ATLASSI MOHAMMED (Morocco), associating himself with the Group of 77 and the African Group, said a zero draft is needed to tackle outstanding issues head-on. It should be ambitious and put the conference on track for substantive work. It should include mention of the need to respect the rights and jurisdictions of coastal States, including their continental shelves and offshore economic zones.
SERGEY LEONIDCHENKO (Russian Federation) said the term “convergence of views” was being used at times to suggest the view of a majority when it should be used with caution so as not to drift away from consensus solutions. On a zero draft, he said a transition to text-based negotiations could be beneficial, making it easier for delegations to analyse proposals and react to them. However, he said he did not want to see a text that included ready-made decisions that would put some delegations in uncomfortable positions. Rather, the text should reflect all main approaches and alternative positions, enabling delegations to continue with a focused exchange of views.
Mr. ALCANTARA (Philippines), associating himself with the Group of 77, expressed strong support for moving towards the timely development of a zero draft. “It is time and the oceans cannot wait,” he said, confident that such a draft would reflect the input of delegations during the preparatory process.
SYBILLE VERMONT (Switzerland), acknowledging that hers is not a coastal State, said her delegation is ready to join the President in entering negotiations on a zero draft that would be structures on the Preparatory Committee report and the work of the current session.
EVAN BLOOM (United States) supported the idea of the President submitting a text before the next session that would include a set of options that reflected the diversity of views expressed during the current session. Convergence is lacking on many issues, he said, adding, however, that his delegation will work constructively with others towards a text that all can accept.
LILIANA MATOS (Venezuela), noting that her country is not a party to the Convention on the Law of the Sea, requested that a zero draft or other document that would take the interests of non-party States into account.
MARTIN ZVACHULA (Federated States of Micronesia), associating himself “with all the groups that have spoken”, said the desire among delegations to move to text-based negotiations is very clear. He added that the President is best placed to find the right balance that would keep all delegations engaged while moving discussions forward.
FRANCISCO GONZALEZ (Colombia) spoke on behalf of five countries, saying neither their participation in the discussions, nor the outcome of the conference, may be seen to affect their legal status as non-parties to the Convention on the Law of the Sea. She asked that that be reflected in the zero draft.
DEKALEGA FINTAKPA LAMEGA (Togo), associating himself with the Group of 77 and the African Group, said it is important to have a zero draft, prepared by the President, that would be produced in all of the official languages of the United Nations.
MA XINMIN (China), associating himself with the Group of 77, said the zero draft should be prepared through a State-driven process and a three-step approach. The conference could first authorize its President to come up with a non-paper that would reflect the positions of countries and groups and propose various options. That document would be circulated before the next session. Next, the second session would discuss the non-paper and propose improvements. Finally, the conference would task its President to improve on that work and create a zero draft for the third session.
ABBAS BAGHERPOUR ARDEKANI (Iran), associating himself with the Group of 77, noted that the conference is in the final stage of a lengthy process that dates back to 2006. Everyone in the room can agree that the time is right to invite the President to produce a zero draft, he stated, adding that its early circulation would be appreciated.
ALAIN TELLIER (Canada), noting that “this sounds very much like the closing session”, voiced his agreement on the need for a text, adding that the President is best placed to prepare it. Hopefully she will accept, he commented. Canada is flexible on the name and form of the text, but it should help delegations to focus their work. “We are looking for a document that would enable us to make progress and negotiate,” he emphasized.
MATTHIAS PAISSON (Iceland) said his country put its trust in the President to produce a text. He also agreed with China on the need for the negotiating process to be State-driven.
KJELL KRISTIAN EGGE (Norway) said the conference is united in its trust of its President. Describing the President’s aid to discussion as a good experience, he said a negotiating text should be structed along the lines of previous documents.
SORA LOKITA (Indonesia), associating himself with the Group of 77, said the past two weeks set the stage for substantial progress. The President should prepare a zero draft that would outline areas of convergence as well as options. In addition, it should be distributed well in advance of the next session, perhaps by the end of this year.
TETSUYA YOSHIMOTO (Japan) reassured the President of his delegation’s support.
Ms. BARTLEY (Samoa), speaking in her national capacity, said a draft text should give special consideration to the special situation of small island developing States. She also underscored the importance of the voluntary trust fund that enabled States like hers to participate in the negotiations.
SARAVANANE NARAYANANE (India), associating himself with the Group of 77, said a draft text would enable the conference to move forward in a flexible manner.
LYDIA SLOBODIAN, International Union for Conservation of Nature and Natural Resources (IUCN), welcomed the development of a zero draft and the start of text-based negotiations. By the end of 2020, IUCN will be ready to adopt and implement a new global agreement that aims to protect oceans.
Also speaking today were representatives of the High Seas Alliance, International Council of Environmental Law and Food and Agriculture Organization (FAO).
RENA LEE (Singapore), President of the Intergovernmental Conference, said she expects the instrument to have treaty language and reflect options, adding that it will not be a “take it or leave it text”. In terms of structure, she said that she needed some time to assess materials and figure out how to structure the document. “I have taken note of suggestions,” she added, emphasizing the need to strike a balance.
It is unlikely that the document will be a full treaty text; it will not be called a zero draft, she continued, adding that the draft document will be available before the April session. On the second session, she said there may be some time for cross-cutting issues that have not been deliberated during this session. She also added that she did not want the second session to turn into a drafting session where delegates engaged in the “nitty gritty” of punctuation and paragraph breaks. The second session should focus on the text as a whole.
GABRIELE GOETTSCHE-WANLI, Director of the Division for Ocean Affairs and the Law of the Sea (DOALOS/OLA), updated delegates on the current financial status of the Voluntary Trust Fund established by the General Assembly in 2015. The Fund provides assistance to developing countries, particularly least developed countries, landlocked developing countries, and small island developing States in attending meetings of the preparatory committee and the intergovernmental conference.
Without such assistance, many developing States face great challenges in participating in the development of an international legally binding instrument, she continued. For the current session, the Division received 24 complete and on time applications and 22 late and/or incomplete applications. All 24 complete applications were processed for assistance, with 22 attending. She underscored the importance of submitting timely and complete applications. More so, she pointed out that providing assistance to those 22 delegations will once again virtually deplete the Trust Fund. Continued support to the Trust Fund, even in small contributions made regularly, is critical to ensure that meaningful assistance to those who need it can be provided.