Delegates Discuss Creating Mechanism for Storing, Exchanging Information, as Intergovernmental Negotiations on New High Seas Treaty Continues
The Intergovernmental Conference tasked with drafting a legally binding instrument on the conservation and sustainable use of marine biological diversity continued its work on cross-cutting issues today, with delegates outlining whether the new treaty should establish a clearing house mechanism, and if so, for what purpose.
Most delegates agreed on the need to include such a provision, with many arguing for the creation of one clearing house performing the activities set out in the new agreement. Many speakers agreed it should be a central repository of information and tools for information and data exchange.
Japan’s delegate objected to the idea of establishing a new body, and instead, recommended making use of data already provided by the Intergovernmental Oceanographic Commission. Oceanographic information data, for example, is shared by the International Oceanographic Data and Information Exchange, biographic data by the Ocean Biogeographic Information System and marine genetic information by data banks in various countries. If a clearing house mechanism were created, it should share information related to conservation and management, environmental impact assessments, and on the demand side, capacity-building and technology transfer.
Jamaica, speaking for the Caribbean Community (CARICOM), favoured relying on existing arrangements to manage a clearing house.
On that idea, the representative of the United States questioned whether the Intergovernmental Oceanographic Commission or the International Seabed Authority would be able to manage a new clearing house mechanism. There might be unique aspects to the new agreement, he argued, which exceed the mandates of those two organizations.
Several delegates, including Algeria’s representative, on behalf of the African Group, said the clearing house should be managed by the secretariat of the new instrument, as management will require a certain level of expertise that only the secretariat would have.
As to what a clearing house would do, some delegates from the Russian Federation, Norway and Canada, said the definition of those functions should happen after other elements of the new agreement were agreed. Switzerland’s delegate suggested that they be defined by the new instrument’s Conference of Parties or main decision-making body.
Others raised the possibility creating more than one clearing house, with Nauru’s delegate, speaking for the Pacific small island developing States, rejecting the idea for a single clearing house mechanism until other sections of the agreement take shape. There might be need for a dedicated clearing house for each section. In broad terms, the role of a clearing house is as a central repository of and for information-sharing, including tools.
She would prefer to see an open-access, web-based platform as that would allow information to flow from the top down, operating at global and regional levels, including national. Some would be open access, other would be confidential. She also saw value in having a network of experts, including traditional knowledge holders, the latter point was also supported by Norway’s delegate and the representative of the International Council of Environmental Law.
Also today, delegates considered funding to support capacity-building and the transfer of marine technology under the implementing instrument, as well as how to monitor those activities and settle disputes. Throughout the discussion, delegates raised issues of compliance, responsibility, liability and due diligence.
For Jamaica’s delegate, speaking on behalf of CARICOM, the Fish Stocks Agreement — formally known as the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks — offered a useful reference tool.
For example, she said, to handle issues related to responsibility and liability, the new treaty could take inspiration from its article 35. To settle disputes, articles 27 through 32 could provide a good basis, with technical disputes resolved by special expert panels.
As for reviewing the effectiveness of the new agreement, some delegates supported the idea for a Conference of Parties taking on that responsibility, with the European Union representative expressing strong preference for that arrangement on a periodic basis. It would be preferable to the example set by the Fish Stocks Agreement, which mandated a review conference without establishing a Conference of Parties. The representative of the United States, meanwhile, said the need for a review conference provision could be negated if a Conference of Parties is established, a point which Australia’s delegate echoed.
Nauru’s delegate, on behalf of the Pacific small island developing States, suggested the creation of a compliance committee to review implementation of the agreement and report to the decision-making body. Regional and subregional committees could supplement its work. There should be clear provisions on responsibility and liability to ensure accountability.
The representative of New Zealand said an ongoing review process would be integral to ensuring the agreement’s effectiveness. It would cover performance of the institutional body set up under the agreement and the decisions taken, measured against standards outlined in the agreement. China’s delegate clarified that any review process should not add unnecessary burden to States parties.
On the topic of dispute resolution, an observer for the Holy See said disagreements would likely be of a commercial nature, or between States and private citizens — such as multinational corporations. Each type of dispute might require different means of settlement. She asked delegates to consider what role a decision-making body would have with respect to disputes.
Delegates also worked to advance the definition of terms including “access”, “use and utilization”, “area-based management tools” and “exploitation”. Speakers agreed broadly on the importance of defining such terms, with some describing it as crucial to agree that “an apple is an apple” rather than a banana or an orange.
However, some representatives — including those of the State of Palestine (on behalf of the “Group of 77” developing countries and China), Algeria (on behalf of the African Group) and Thailand — questioned whether the negotiation process has yet reached a point where such definitions would be useful. Japan’s representative, among others, favoured waiting to define terms “until after views on substantive issues converge to some extent”.
Striking a similar tone, the representative of the European Union proposed that, during the Conference’s next session, participants consider definitions relating to the themes of each of the four working groups. Agreeing with the need for consistency — including across other international instruments and conventions — he nevertheless said it is unnecessary to define self-evident terms or to redraft definitions already outlined in the Convention on the Law of the Sea.
China’s representative agreed that there is no need to redefine terms which already enjoy widespread common understanding, thanks to their inclusion in other international instruments. Stressing that the current draft contains too many definitions, he called for a considerable reduction and said controversial or hard-to-define terms should be avoided at this stage.
Many speakers nevertheless proceeded to stake out positions on terms they viewed as particularly important. Colombia’s delegate, speaking on behalf of the like-minded Latin American States, underlined the need to define the term “exploitation”, should it be used in the treaty. On the term “access”, the representative of the United States stressed that no definition would be needed because the treaty will not be tasked with regulating access.
The representative of Nauru, on behalf of the Pacific small island developing States, favoured defining the term “marine genetic resources” and including language on “derivatives” under that heading. In the group’s view, she said, the latter should refer to fish and other biological resources used strictly for research in to their genetic properties. In addition, she voiced support for the inclusion of references to climate change and ocean acidification in the proposed section on the “cumulative impacts” of activities on oceans and ecosystems.
Senegal’s representative, associating himself with the Group of 77 and the African Group, focused his intervention on the terms “area-based management tools” and “marine protected areas”. The latter’s definition should focus on conservation, biological diversity and other matters related to the sustainable management of ecosystems, he said, proposing that “marine protected area” be defined as: “A geographically defined area in which human activities are regulated, managed or prohibited so as to ensure total protection and long-term conservation of biodiversity and to bolster the resilience of ecosystems.”
Speakers also spotlighted terms and concepts where they felt more discussion is required to reach consensus. The representative of Norway, citing participants’ lengthy discussions earlier in the week on “strategic environmental assessments”, noted that no common understanding of that term yet exists. An observer for the Holy See emphasized that “utilization of resources” also requires further definition and advocated that, rather than limiting it to marine genetic resources, the term should apply more generally to all resources.
Several delegates, including the representative of Singapore, pointed out that many of those terms have already been widely used for years — and without much controversy — despite lacking formal definition. There is therefore no urgent need to define them at this stage, he said.
Participants also deliberated sections on the scope of application, general principles and approaches and international cooperation. On those items, Jamaica’s delegate, speaking on behalf of CARICOM, warned against including any language that would substitute or dilute existing principles, such as the common heritage of mankind. Text that might prejudice existing rights under the Convention on the Law of the Sea must also be avoided. Underlining the balance of rights under that instrument — as well as the “duty to cooperate” — she expressed support for a formulation of the international cooperation section that would also apply to the transfer of marine technology.
Also speaking in the morning were representatives of Algeria (on behalf of the African Group), Colombia (on behalf of the like-minded Latin American States), Canada, Japan, Singapore, New Zealand, Russian Federation, Australia, Indonesia and Iceland, as well as the State of Palestine (on behalf of the Group of 77 developing countries and China).
Representatives of the United Nations Environment Programme, International Union for Conservation of Nature and Natural Resources, Greenpeace (on behalf of the High Seas Alliance) and the International Council of Environmental Law also spoke.
Also speaking in the afternoon session were representatives of Iceland, New Zealand, Switzerland, Canada, Australia, Russian Federation, Indonesia, Turkey, Samoa, Republic of Korea and Bangladesh.
Representatives of the North East Atlantic Fisheries Commission, International Union for Conservation of Nature, Greenpeace (on behalf of the High Seas Alliance) and the International Council of Environmental Law also participated in those discussions.
The Intergovernmental Conference will meet again at 10 a.m. on Friday, 5 April, to conclude its work.