Facilitators Highlight Progress Over Last Two Days at Intergovernmental Conference to Draft First-Ever Oceans Biodiversity Treaty
The Intergovernmental Conference to draft a new maritime biodiversity treaty continued its fifth session today, with the facilitators of informal discussions on various elements updating on progress made over the last two days.
The representative of Belize updated on discussions related to marine genetic resources, including questions on the sharing of benefits, noting that they focused on articles 10, 10bis, 11, 11bis and 13. Several proposals were made to streamline and restructure “Part II” by rearranging elements of articles 10, 11, 11bis and 13, on the modalities for notification and benefit sharing. Given the desire to jointly determine a way forward, and the common elements of various proposals, she invited the United Kingdom to lead informal discussions towards grouping notifications at different stages in a chronological order, she explained.
Noting different views on including of paragraph 6 of article 10, and its link with paragraph 2 of article 9, she invited interested delegations, including the African Group, European Union, Pacific small island developing States, Singapore and others, to consider how to reframe this paragraph. She noted general support for article 10bis, on which several proposals were made, and invited the cross-regional proponents of this article to convene small group discussions. On article 11, delegates expressed a preference towards one of the two options and made several drafting proposals.
She noted the openness of delegations to consider elements of both options in order to move forward, recalling that these options are not mutually exclusive. For 11bis, while many delegates — including some groups of States — expressed support for an access and benefits-sharing mechanism, others said relevant mandates could be undertaken by other institutional arrangements. On article 13, she said delegates exchanged views on the two options, and discussed the potential role of institutional arrangements for monitoring and/or transparency. On 18 August, small groups will report back and consider article 8, terms relating to Part II, article 1, as well as article 12.
The representative of Canada, updating on “Part III”, area-based management tools, including marine protected areas, said delegates shared views on the difference between an area-based management tool and a marine protected area, and whether these terms were appropriately captured in article 1, “use of terms”. Most felt it was useful to define these terms. While there were diverging views on the two options for area-based management tools, and whether a marine protected area should include a sustainable use objective, many agreed that an area-based management tool was the broader term, under which a marine protected area was a part — and that the driving objective for a marine protected area is conservation related, not necessarily excluding other purposes. Building on this, a small group, under Singapore’s leadership, was formed and the discussion group is awaiting its report.
After this discussion on definitions, the group discussed provisions under “Part III”, she explained, with a thorough consideration of article 14, on “objectives”. While some questioned the need for an “objectives” section, most felt it was useful to include “objectives” but that streamlining was required. Several common suggestions were made on removing redundancies, preferred terms and details that are not typically found in “objectives”. Given this commonality, including support for a reference to capacity-building, she offered to capture these suggestions and bring them back to the group for further review. Today, the group will consider article 17, which focuses on the components of an area-based management tool proposal, and move through the remaining provisions addressing the various components of the process; for example, identifying areas of consultations, monitoring and review.
The representative of the Netherlands, updating on environmental impact assessments, said delegations discussed articles 21bis and 22, and started their consideration of article 23, with paragraph 5. On article 21bis, he noted general support for including a provision on “objectives” to “Part IV”, although the details of those objectives to be included in a provision require further discussion. There appears to be appetite for including the concept of a strategic environmental assessment in the agreement, but there was debate over whether it should be voluntary or mandatory and whether the concept warranted inclusion in the article on “objectives”. Different views were also expressed on whether to reflect it in the title of “Part IV”.
He added that proposals for two additional objectives were introduced, notably for a new sub-paragraph e connected to article 38, paragraph 2, and suggested that they could be considered together. He invited Trinidad and Tobago to consult interested delegates to attempt to remove existing brackets in the text before the next informal discussions. On article 22, he said there was general support for inclusion of the article and the existing three paragraphs, while two additional paragraphs were introduced and received some support.
Further, he said there was support for referring to the Convention only once in the Part, while opposition was also expressed. He invited the European Union to consult with interested delegations to clean up the text. On paragraph 5 of article 23, he said flexibility was expressed by several delegations to work with either option 1 or 2, although further discussions are needed, and that some delegates continue to express support for option 3. Today, reports from the two small groups will be presented, after which discussions on article 23 will continue, followed by discussion on the other articles in “Part IV” in the order in which they appear.
Rena Lee (Singapore) updated first on capacity-building and transfer of marine technologies, noting that the group attempted to rationalize the three options in article 47 by considering the overall institutional arrangements. There seemed to be agreement on the four common elements identified during discussions — reviewing needs and priorities, reviewing funding support, measuring performance, and a forward-looking process — and she identified areas of convergence. The group discussed whether there should be a subsidiary body established in the agreement, or whether monitoring should be carried out by the conference of the parties. She said she will provide a revised text for article 47 and request a smaller drafting group to refine the text.
On article 44, modalities for capacity-building and the transfer of marine technology, she said discussions on paragraph 1 were on whether obligations for the transfer of marine technologies should be dealt with together or separately, and about the nature of the obligation. On paragraph 2, focus is on the nature of the obligation to provide resources to support capacity-building and the transfer of marine technology. She invited a small group, led by Honduras on behalf of others, to consult on these issues and report back on 19 August. There seemed to be some agreement on paragraph 3 of article 44, and she invited delegates to reflect on the terms “effective” and “iterative”, among other drafting suggestions.
Noting that the group today will continue with article 44, before moving on to article 45, on cross-cutting issues, she turned first to final provisions and acknowledged that articles 58, 59, 69 and 70 “are generally where they need to be” subject to the finalization of dates in article 58 and questions regarding formal confirmation in article 59. There was generally broad support for article 66. She invited the European Union and other interested parties to report back on article 58ante on whether regional economic integration organization votes should be limited to the number of Member States present, and to discuss including a provision on internal divisions of competence between regional economic integration organizations and Member States in article 59bis.
She said there was “a large measure” of agreement on article 61 in terms of the number of instruments needed for entry into force, noting that delegations generally supported a balance between the need for universal participation with urgency of action and that most supported a number between 30 and 60 ratifications. There was a proposal for a higher number, with flexibility shown on the number. Many delegations supported article 62.
She said many also supported including article 63 and 63bis, on reservations and declarations, while others stressed that allowing for limited reservations would depend on the outcomes of the substantive elements. Some delegations supported article 64, concerning the relationship with other agreements, while others thought it should be deleted. Setting aside questions on decision-making, she said there was general support for article 65 and that text proposals were made. The group has yet to consider paragraph 5. She invited delegates to report back on whether there should be a simplified amendment procedure for annexes.
On general provisions, she reported that there was support for article 2 as reformulated, however, certain issues must be revisited. There was also support for article 3(1) read together with a definition of areas beyond national jurisdiction in article 1(4). She invited delegates to study proposals made on article 3(2) on sovereign immunity, while avoiding loopholes for State-owned enterprises. On article 4, while there were proposals for an all-encompassing provision covering all agreements, including the 1982 United Nations Convention on the Law of the Sea, there was also strong support for articles 4(1) and 4(2), paragraphs 1 and 2 retaining primary emphasis on the Convention. Today, the group will first consider “Part VI” on institutional arrangements, beginning with the conference of parties, then return to “Part I”.
“Nothing is agreed until everything is agreed,” she said. “We still do have some ground to cover to bring us close to the finish line.” She encouraged delegations to build on those areas where common interests and perspectives were expressed. “We want to be certain on the direction, but we want to be flexible on the details,” she added.
Following the summaries, representatives reported on “homework” assigned during the process, with the United Kingdom’s representative thanking the “Group of 77” developing countries and China for having agreed to take forward the “homework” of a group exploring marine genetic resources, rather than creating two separate meetings. Singapore’s delegate announced that the group working on definitions of area-based management tools and marine protected areas would convene later today and that a small group focused on articles 9(2) and 10(6) would gather in conference room A.
The European Union representative reported that for article 58ante, his delegation met with the United States, Australia, the African Group and others, explaining there is ample practice for the related proposal. He cited the Minimata Convention on Mercury, the United Nations Framework Convention on Climate Change, the Paris Agreement on climate change and the Convention on Biodiversity in this context, which all have a standard clause similar to that found in paragraph 2.
He agreed with the idea to streamline article 59, as formal confirmation is not necessary in order for the European Union to ratify. For 59bis, this is standard language in all conventions, aimed at clarifying the competences of the Union. He said his delegation would be open to removing the chapeau and placing paragraphs 1 and 2 under article 59, as is customary in the other conventions. The European Union is working with others on marine genetic resources, area-based management tools, environmental impact assessments and other issues to deliver the homework assigned.
The representative of Honduras, speaking for a certain group, said a meeting will be held today to discuss article 44, paragraphs 1 and 2. The representative of Australia, on article 65, said her delegation intends to have a written proposal for amendments to annexes and is consulting with other delegations.
When the floor was opened for comments, the representative of Pakistan, speaking for the Group of 77 and China, on cross-cutting issues, notably institutional arrangements, pointed to an informal document on resources that might be required and wondered whether the Division for Ocean Affairs and the Law of the Sea could brief the group.
The representative of Antigua and Barbuda, speaking for the Alliance of Small Island States, drew attention to the principle of special circumstances: small populations and geographies, remoteness and acute exposure to external shocks. These special circumstances have been recognized as being unique to small island developing States. This principle was affirmed and operationalized in the Paris Agreement, as well as in the 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, and the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.
Stressing that the new legally binding instrument can be no different, she said the principle should be enshrined in its “general principles and approaches” article, ensuring small island developing States are able to effectively implement the new instrument. She lamented that after two decades, her delegation must make the same arguments for something already recognized by the international community and agreed in treaty texts. The new text must consistently reflect the special circumstances of small island developing States, which should not be confused with the special requirements of developing countries. The only text that would be acceptable is one reflecting special circumstances of small island developing States and which gives recognition to these circumstances in its articles.
The representative of Samoa, speaking for the Pacific small island developing States and associating himself with the Alliance of Small Island States, said the principle of special circumstances is anchored in multiple legally binding instruments, including the United Nations Straddling Fish Stocks Agreement and Port State Measures Agreement. His delegation has consistently advocated for a reflection of this principle in a new legally binding instrument since the preparatory period. It is the unique circumstances of small island developing States in terms of their small populations and geographies, remoteness and acute exposure to external shocks that merit recognition in the new instrument, including its general provisions.
The representative of the Russian Federation cautioned against streamlining the text too quickly, noting that in the current draft, options are placed in brackets. Sometimes, these options are mutually exclusive. In this case, the aim to streamline the text is already difficult. In addition to “options a and b”, for example, there might be “option c” which is not in the text, but which could boil down to a “zero option” — or what should not be in the text. He advocated for a framework agreement that would resemble “the 1995 agreement”. This would be the approach of his delegation to organizational structure and decision-making methods. “Our task is difficult,” he acknowledged, noting that the Russian Federation is “totally open” to cooperation with its partners.