New Treaty Must Complement, Not Renegotiate, ‘Delicate Balance’ in Convention on Law of the Sea, Delegates Tell Intergovernmental Conference
Delegates underlined a need to clarify how a new high seas treaty will interact with the 1982 United Nations Convention on the Law of the Sea today as the Intergovernmental Conference to draft a legally binding instrument on the conservation and sustainable use of marine biological diversity entered its third day.
Throughout the day, delegates deliberated on issues including area‑based management tools and the scope and access of marine genetic resources. Echoing the position of several delegations, Australia’s representative said provisions addressing the interplay of various mechanisms deserve their own section in a new treaty.
However, some voiced concerns that language in the new instrument will revise the Convention on the Law of the Sea without going through proper consultations. Japan’s delegate suggested the inclusion of language to clarify that nothing within the instrument will affect the Convention.
The representative of the United States emphasized that a new instrument must be consistent with the existing regime, pointing out that some States are calling for a renegotiation of the “delicate balance” of interests achieved in the Convention on the Law of the Sea.
Addressing concerns that the new agreement would step on the heels of the Convention, Algeria’s delegate, speaking on behalf of the African Group, clarified that the objective of the new treaty is to cover the existing instrument’s regulatory gaps.
In the same vein, China’s representative said existing agreements already include detailed provisions on fishing in the high seas. As such, to avoid confusion, the new instrument must not be applicable to fishery resources. “This agreement does not apply to fish as a commodity,” he said, noting that threshold amounts must not be used to differentiate commercial and research activities.
Agreeing that the new treaty must not affect sufficiently regulated fisheries in the high seas, Chile’s representative said provisions in the instrument must not undermine the national jurisdiction of States, particularly coastal States. Underlining a need to protect the rights of coastal States, Tonga’s delegate called for increased clarity on how to address marine genetic resources straddling the continental shelf.
Switzerland’s representative, recognizing the cross‑cutting nature of the geographic scope of the treaty, said there must only be one provision on geographical scope that pertains to the entire instrument. “Less is more,” she stressed, cautioning against redundant language.
Another issue that emerged over the treaty’s scope was how to address marine genetic resources collected before its ratification and entry into force. Argentina’s representative said this aspect of temporal scope has been relegated and options in the Conference President’s “Aid to Negotiations” document fail to provide sufficient clarification.
Turning to the issue of marine genetic resources, Norway’s representative said delegations must work towards a system where access is open and in which sharing of data is essential. “The basis for the benefits‑sharing system is access,” he said. On that point, New Zealand’s delegate said the freedom of marine research does not mean unregulated access.
Meanwhile, the representative of Fiji, speaking on behalf of the Pacific small island developing States, said the instrument should only cover marine genetic resources in areas beyond national jurisdiction and must incorporate the knowledge of indigenous communities. Moreover, the use of traditional knowledge must be conducted with the consent of indigenous peoples and local communities, she said, calling for the instrument to allow for the inclusion of clauses on access in the future as the issue evolves.
However, concerns emerged regarding how to seek consent and best engage with indigenous and local communities, with Singapore’s representative asking how States can ascertain if and which indigenous communities must be approached.
Touching on these concerns was the observer for the Holy See, who said taking resources of actual value may require prior notification. If the resource only has potential value, there is no need for notification. Still, she asked delegations to consider if requiring consent for access to marine genetic resources goes against the freedom of the high seas when in international waters.
Further on the value of traditional knowledge, a representative of the International Council of Environmental Law suggested the instrument indicate that this information forms part of the marine genetic resource regime.
Providing examples of best practices in the scientific field, a representative of the Deep Ocean Stewardship Initiative said “open access publications already enable access to marine genetic samples and data.” In addition, biorepositories, like museums, already enable open access.
In the afternoon, delegates discussed the designation process and area‑based management tools, including marine protected zones. Suggesting possible criteria to identify such areas, they offered differing opinions as to how such requirements should be considered. They also discussed the definition of internationally recognized scientific knowledge.
Some delegates offered perspectives on the usefulness of traditional knowledge in this context. A number of representatives, including those from Argentina and Japan, called for clarifications on the role and definition of traditional knowledge. The observer for the European Union said traditional knowledge is an additional source of knowledge that will be taken into account where relevant, so that should be mentioned as well. However, she said she was unclear as to the meaning of the term “internationally accepted scientific standards and criteria”.
Delegates discussed that term at length, with India’s delegate expressing support for identifying areas based on the best scientific knowledge only. Other delegates, including the representative of Turkey, agreed. The representative of China, acknowledging that identifying areas should be based on robust and reliable scientific knowledge, suggested that the words “best available scientific information” be changed to “best available scientific evidence”.
In terms of area‑based management tools, the representative of Belize, speaking on behalf of the Caribbean Community (CARICOM), said economic and social factors are important. While agreeing with this viewpoint, Switzerland’s delegate said these references might be better placed elsewhere in the text rather than in this section. Meanwhile, the representative of the United States said he would prefer not to mention economic and social factors in the text without a better understanding of how these factors may be used to identify areas that require protection.
The representative of Bangladesh said that economic and social factors were included in the draft because coastal people depend on these areas, and if biological activity decreases, then livelihoods are affected and that is an economic and social factor. For that reason, his delegation supports the retention of the term as it is. Eritrea’s representative said his delegation advocates for this standard to be included.
Canada’s delegate, outlining his country’s approach to area‑based management tools, wondered if delegations should entrust other organizations to take on the role of considering such measures. Recognizing the various positions delegations have voiced over the past years, he said a regional or sectoral approach makes sense, but there are equally good examples where a global plan would be ideal. Both approaches should be considered in each specific case, he said.
The representative of Iceland expressed his concern that decision‑making in this section of the text is largely at the global level, but it should also occur at the regional level. Echoing this position, the representative of the Russian Federation also noted the majority of the options being discussed adopt a global approach when it comes to determining area‑based management tools. While his delegation favours a regional or sectoral approach, if there are no competent organizations in place for a geographical area, then States could agree upon their establishment or could agree to decide upon establishing competent bodies.
Turning to the issue of the designation process, delegates discussed several subsections pertaining to proposals, consultations and decision‑making. Belize’s delegate, speaking on behalf of the Alliance of Small Island States, said that with regard to consultations, the process related to the designation of area‑based management tools is an important issue for members from States in proximity to the high seas. She strongly supported the section on taking the special circumstances of small island developing States into consideration, particularly so they can provide meaningful input to the consultative process.
Several delegates, including those from Argentina and Monaco, raised concerns that some terms in different language versions of the text do not align with each other.
Also speaking today were representatives of Turkey, Thailand, Canada, Iceland, Philippines, Cuba, Viet Nam, Eritrea, India, Papua New Guinea, Indonesia, Iran, Federated States of Micronesia, Mauritius, Seychelles, Australia, Republic of Korea, Federated States of Micronesia (on behalf of the Pacific small island developing States), Paraguay (on behalf of landlocked developing countries), Cameroon, Senegal, Togo and Sri Lanka, as well as an observer for the State of Palestine on behalf of the “Group of 77” developing countries and China.
Representatives of the High Seas Alliance, Biological and Cultural Diversity, World Wildlife Fund, Pew Charitable Trust and the International Council of Environmental Law also spoke.
The Conference will meet again at 10 a.m. on Thursday, 28 March, to continue its work.