Concluding First Week of Marine Biodiversity Treaty Negotiations, Legal Experts Assess How to Regulate Genetic Resources, Share Benefits
Experts working to negotiate a new treaty on biodiversity in ocean areas beyond national jurisdiction today deliberated ways to govern marine genetic resources — namely, materials of real or potential value — as well as the specific types of resources to be regulated and the sharing of benefits arising from them.
Discussions on these and other topics are taking place at Headquarters during the third session of the International Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The session runs through 30 August.
As delegates took up article 7 of the draft treaty (document A/CONF.232/2019/6) — dealing with the objectives of benefits sharing related to marine genetic resources — the observer for the State of Palestine, outlined his vision of the section on behalf of the “Group of 77” developing countries and China. Many of those comments were supported by the representative of Fiji (on behalf of the Pacific small island developing States) and the representative of Brazil (on behalf of the Group of Like-Minded Latin American States). Echoing the importance of the article, the latter also advocated for including a reference to the “fair and equitable” sharing of benefits arising from the utilization of marine genetic resources of areas of the ocean beyond national jurisdiction.
Broadly aligning with many of those views was the representative of Barbados, who spoke on behalf of the Caribbean Community (CARICOM). Among other things, she called for the inclusion of a reference to the special circumstances of small island developing States — a suggestion echoed by the representative of Canada — to “the promotion of the generation and sharing of information”.
The representative of China, also associating herself with the Group of 77, underlined the importance of highlighting the transfer of marine technology. In addition, she advocated for the inclusion in article 7 of a reference to the rights and duties of the holders and suppliers of marine technology.
Several delegates struck a different tone, voicing their preference that article 7 be removed in favour of retaining a single objective for the treaty — namely, the conservation and sustainable use of areas beyond national jurisdiction. The representative of the European Union, for one, said no subset of objectives would then be needed for the instrument’s various sections. Like other speakers, however, he expressed willingness to consider the inclusion of article 7, but to “keep it simple” by focusing on the sharing of benefits and technical assistance aimed at conserving marine genetic resources. In addition, he called for deleting a proposed paragraph to the effect that the treaty should “contribute to the realization of a just and equitable international economic order”.
Agreeing that the treaty should have just one overarching objective — rather than various detailed objectives’ sections throughout — were the representatives of Turkey, Russian Federation, Republic of Korea and Iceland. The latter proposed that, should article 7 in fact be retained, it should include a reference to the core goal of conservation and sustainable use.
The representative of New Zealand — echoed by the speaker for Togo, among others — emphasized that article 7 on specific objectives related to marine genetic resources is crucial to what the treaty hopes to achieve. However, she reiterated her openness to consider the streamlining proposals raised by other delegations.
To the question of whether various subsections on objectives should be present throughout the new treaty, the representative of the Food and Agriculture Organization (FAO) emphasized that, if retained, those sections must not contradict the aims of the instrument as a whole. “We should simplify the objectives, rather than convolute [them],” he stressed. As a point of reference, he drew attention to FAO’s 2001 International Treaty on Plant Genetic Resources, as well as the United Nations Conference on Biodiversity and its Nagoya Protocol on Access and Benefit-Sharing — both of which contain language on the conservation and sustainable use of genetic resources, as well as the ecosystems from which they emerge.
A discussion also emerged about which categories of States should be referenced in article 7 on marine genetic resources, especially concerning benefits‑sharing. In that regard, the representative of the United States outlined his preference to see the proposed reference to middle-income countries removed from the draft text in favour of a stronger focus on other categories of States. He also supported the proposed inclusion of text on the transfer of marine technology provided it is conducted on a voluntary basis and mutually agreed terms.
The observer for the State of Palestine, again speaking on behalf of the Group of 77 and China, stressed that the Group would not be in a position to support the deletion of references to middle-income countries. The representative of Indonesia, meanwhile, requested that “archipelagic States” be added to the proposed list of States in special geographic circumstances in article 7.
Participants also turned their attention to article 8 on the application of the treaty’s provisions on marine genetic resources, with speakers weighing the various types of resources that should be included — or explicitly excluded — from the new instrument. Among other things, delegates considered proposed references to fish and fish samples; genetic resources collected in situ and in silica; derivatives; genetic sequence data; and “the use of fish and other biological resources as a commodity”.
The representative of the European Union, echoed by others, including the representatives of Indonesia and Switzerland, advocated for a clearer, more streamlined version of that article. The latter pointed out that relevant international agreements — especially the Nagoya Protocol on Access and Benefit‑Sharing of the Conference on Biodiversity — do not refer to genetic sequence data, which is an emerging issue. The representative of New Zealand declared: “This agreement should start where the [Convention on Biodiversity] ends.”
Meanwhile, the representative of Canada cautioned against such terms as “in silica”, which are not understood by the scientific community, and the representative of China supported the proposed exclusion of scientific research from the agreement’s scope of application. Several delegates questioned the relationship of article 8 with the United Nations 1995 Fish Stocks Agreement, warning that the new treaty should not overlap with the latter. While a number of speakers roundly rejected the applicability of the marine genetic resources clause to fish and other resources collected “as a commodity”, some described that exclusion as self-evident and said it need not be referenced.
Also speaking were representatives of Iran, Norway, Australia, Philippines, Japan, Senegal, Sri Lanka, Maldives, Algeria (on behalf of the African Group), Cuba, Singapore, Ecuador and Thailand.
Representatives of the International Council of Environmental Law and the High Seas Alliance also participated.