Delegates Hear Updates on Progress, Concerns over Working Methods, as Intergovernmental Conference to Draft Maritime Biodiversity Treaty Wraps Up First Week of Fifth Session
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 during the first week.
The meeting also heard updates on “homework” assigned to certain delegations tasked with advancing work on several issues. Several concerns were raised about the proliferation of small working groups that do not always consider the views of their participants or allow for them to keep pace with discussions, especially if they convene in parallel to plenary meetings of the Intergovernmental Conference.
In her closing remarks, President Rena Lee (Singapore) said she will continue to discuss the Intergovernmental Conference working methods with the bureau. Going forward, she outlined her intent to produce a “refreshed” text by 21 August, which would review the proposals and homework submitted. For some provisions, she would include a possible way forward that delegations may wish to consider.
She cautioned delegations that they should not expect to see every proposal reflected in the “refreshed” text, as the goal is to provide “a sense of where we think we are headed”. She also requested delegations to demonstrate flexibility on the work programme for next week, noting that some “informal informal” sessions do not yet have topics, to accommodate issues that remain outstanding.
She noted, however, that the schedule for 22 August will include “informal informal” discussions on cross-cutting issues, implementation and compliance, and dispute settlement, facilitated by the representative of New Zealand. Next week she plans to hold President’s consultations on cross-cutting issues, which will be closed to outside observers, and more broadly sought understanding that some consultations will take place “very late at night, or very early in the morning”. In addition, she will consult with the bureau on Mexico’s suggestion for a “scrub committee” to begin work on certain articles, and on China’s response to that proposal, expressing confidence that delegations can make breakthroughs next week.
The Intergovernmental Conference will reconvene at 5:30 p.m. on Tuesday, 23 August.
Marine Genetic Resources, Including Questions on Sharing of Benefits
The representative of Belize updated the Intergovernmental Conference on marine genetic resources including questions on the sharing of benefits, which addressed article 8 — use of terms — related to Part II, under article 1. Delegations were also able to review articles 12, 7 and 9 for a complete reading of “Part II”.
On article 8, she noted a common desire to define the scope of application, and general support for a proposal to change marine genetic resources “originating from” areas beyond national jurisdiction to marine genetic resources “of” areas beyond national jurisdiction in paragraph 1. Delegations also made other drafting proposals to paragraphs 1 and 2, including to merge them, and expressed different preferences towards the options under paragraph 3. Turning to paragraph 2 of article 8, she said that while delegations demonstrated broad agreement that “Part II” should not apply to fish and other biological resources as commodities, views differed on how best to reflect this aspect. As the focal point for small group discussions, she invited interested delegations to speak with her about this situation.
As for the relevant terms in article 1, she said delegations were generally comfortable with the definitions of “biotechnology” and “derivative”, if these are to be included. However, they expressed different views on whether to include article 12 — intellectual property rights and confidential information — and made several drafting proposals. As for article 7, she asked the European Union to coordinate a small group to discuss the direction of the text on “objectives”, she said, noting the aspirational purpose of this article. Noting that a small group is considering paragraph 2 of article 9 together with paragraph 6 of article 10, she said she heard different views on whether to include other paragraphs of article 9, as well as several drafting proposals. Finally, she welcomed that the group discussing article 10bis reported a proposed reformulation of that article.
Area-Based Management Tools, Including Marine Protected Areas
The representative of Canada, updating on area-based management tools, including marine protected areas, said the group completed “a full first go-through” on “Part III”, considering steps involved in how to apply these tools and areas. Articles 17 and 17bis outline the essential elements that should be in a proposal and what should guide the identification of areas that would benefit from the application of area-based management tools, including marine protected areas.
While some felt the role of applying area-based management tools rests solely with regional and sectoral bodies, most saw a useful role for the agreement, she said. There was “generally good” agreement on what should be in a proposal and on what should guide the identification of an area. Delegations emphasized the need to be informed by the best science, and traditional and indigenous knowledge, guided by thorough and transparent consultations and the need for an adaptive approach that considers the entire ecosystem, and which in the absence of full scientific certainty, will err on the side of caution.
She said consideration was raised on the implications of disputed maritime areas, the level of detail required in the agreement proper, the role of the Scientific and Technical Body and concerns over an amendment process that will allow for the incorporation of the latest scientific information and not be too onerous.
On articles 18, 19 and 19bis — provisions related to consultation and decision-making, including international cooperation and coordination — she said delegations expressed general agreement on the range of Governmental and non-governmental actors that must be consulted, and on what matters should be consulted upon — as outlined in article 18. They suggested ways to increase the inclusivity and transparency of the process, with emphasis on the special circumstances of small island developing States. Further work on article 18 is required. There was broad agreement for consultations to be timebound, however wording is being developed to balance the need for an efficient yet thorough process.
On article 19 — decision-making — she said there was agreement to use option 1 as a basis for progress and to bring in preferred elements from option 2 as needed. Several delegations preferred the clarity provided in option 2, paragraph 1 — on the establishment of area-based management tools, including marine protected areas — and would like that captured in option 1. However, some assessed that only existing competent bodies have the power to apply area-based management tools.
In addition, she said delegations strongly agreed the Conference of the Parties is responsible for making arrangements with relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies. In instances with no such body, they strongly agreed there should be no mandatory obligation to cooperate to establish one — however, some thought it useful to encourage States to do so. Delegates also emphasized the importance of not undermining these bodies or infringing on the national jurisdiction and sovereign rights of States. They underscored the need to clearly define that relationship in the new agreement with existing bodies, she said, noting a request to define interests and competencies.
On reaching agreement on proposals, she said all delegations emphasized the need for consensus-based decision-making, with some noting the need for an option for voting in the event of an impasse, including an opt-out option. A small group coordinated by the United States delegation is further developing this concept. On articles 20 and 21 - implementation, and monitoring and review – there was “generally good” agreement on the parts of these stages and on addressing the implementation and updating of area-based management tools, including marine protected areas. Delegates emphasized the need for good collaboration and respect for States’ rights and the competencies of other bodies. There was broad support for increasing transparency by making reports more publicly available.
She said many wished to not specify a time limited for area-based management tools and instead link this issue to the review process and advice from the scientific and technical body. Further refinement related to the disproportionate burden on small island developing States and least developed countries, and references related to scientific information or evidence, will continue, she added, noting that the small groups have submitted or will soon submit text to be captured.
Environmental Impact Assessments
The representative of the Netherlands then reported on discussions related to environmental impact assessments, noting that delegations discussed all articles in “Part IV” - from 21bis to 41ter, and started a discussion on the relevant definitions in article 1. Turning first to article 24, he said delegations remained divided on the question of the thresholds for environmental impact assessments - notably on whether there should be a tiered approach, and if so, what should constitute the tiers. There appeared to be strong support for the inclusion of a non-exhaustive list of criteria or factors to consider, he said, adding that the content and drafting of the list must be finalized.
On article 25, while there is a general understanding that “cumulative impacts” and “transboundary impacts” are an essential element of environmental impact assessments and must be addressed, he said “we are on our way to deleting this provision, subject to its essence being captured in other paragraphs”.
On article 30, support was expressed for the President’s streamlined provision on the environmental impact assessment process, however there were several suggestions for improvement and Canada will develop a revised version, in consultation with the European Union and other interested delegations. He reported productive discussions on article 34, “public notification and consultation”, and article 35, “environmental impact assessment reports”. While there were no major issues, “there is a lot of detail to work out”, he explained.
On article 38 — decision-making — he said option C has little support and can be removed. A possible way to bridge divisions may be the creation of an opt-in mechanism in an otherwise State-led decision-making process, giving the Conference of the Parties a role. On articles 39 and 40 — on monitoring and reporting together — general support was expressed for reports to only be submitted to the Clearing House Mechanism. Further consideration by the Scientific and Technical Body might be acceptable for the purpose of developing guidance.
Moving to article 41, he pointed to general support for a provision on the review of authorized activities and their impacts but said divisions remain on the roles of the Conference of the Parties and the Scientific and Technical Body. There is widespread support for continued work on article 41ter — strategic environmental assessments — but differences remain over what these assessments entail and on whether they should be mandatory. He invited the United Kingdom to consult interested delegations, including on the definition in article 1, paragraph 16.
On article 41bis — guidance to be developed by Scientific and Technical Body — there is general support, he said, but content needs fine-tuning. The group heard “report-backs” from Trinidad and Tobago on article 21bis, the European Union on article 22 and Singapore on article 23. On 22 August, the group will hear from small groups working on articles 23, 30 and 41ter, after which discussions will continue on the definition of the environmental impact assessments covered in article 1, paragraph 12. The group will then turn to pending questions related to decision-making, the impact versus effect-based approach, and the thresholds for environment impact assessments.
The representative of South Africa, reporting on cross-cutting issues, said a “question-and-answer” session was held on 17 August with representatives of the Office of Legal Affairs and the Office of Planning, Finance and Budget on the Secretariat set up and related budget considerations. Regarding institutional arrangements, on article 48 on the Conference of the Parties, he said paragraphs 1 and 2 were strongly supported as drafted. On paragraph 3, as delegations differed on whether the rules of procedure should be adopted by consensus, he invited the Pacific small island developing States and New Zealand to lead a small group on this issue.
He said different preferences were expressed on the options in paragraph 4. He invited the European Union to lead a small group discussion on the links with decision-making modalities. Most delegations were comfortable with paragraph 5 on the functions of the Conference of the Parties. As paragraph 6 — on interim and emergency measures — generated many questions, New Zealand was invited to lead a small group. Most delegations supported paragraph 7 as drafted, regarding periodic review. On article 49, most delegations were comfortable with paragraphs 1, 3 and 4. Several proposals were made to adjust paragraph 2 on composition.
Turning to article 50, on the Secretariat, he said both options A and B of paragraph 1 garnered support, alongside indications of flexibility. Delegations were generally comfortable with the functions listed in paragraph 2. On article 51 — the Clearing House Mechanism — most were comfortable with paragraphs 1 and 2, and there was “a high degree” of comfort with the functions in paragraph 3 and management by the Secretariat in paragraph 4. A suggestion to delete paragraph 5 met with reservations. Suggestions were made to clarify the information protected under paragraph 6. On general provisions, he said views differed on retaining the bracketed text in article 4, paragraph 3, and on retaining article 4, paragraph 4.
The Russian Federation’s delegate noted that her delegation did not receive an answer to the questions it raised, objecting to claims that agreement was achieved. “There are many differences and points of view,” she said.
Capacity-building and Transfer of Marine Technology
Intergovernmental Conference President Rena Lee (Singapore) then reported on article 4, noting that differences remain on paragraph 3 and on whether to retain paragraph 4. She will prepare a revision of article 4, with a view to “nudging” delegations to compromise. In terms of capacity-building and the transfer of marine technology, on paragraphs 4 and 5 of article 44, she said “homework” was assigned to “CLAM” and the Caribbean Community (CARICOM) on how needs assessments should be carried out, whether it should be self-assessed and whether there is a role for a related committee or the Clearing House Mechanism.
On paragraph 5, she said general support was expressed for the timeframe, with further clarity needed on articles 45 and 47 to address remaining issues. On article 45, paragraph 1, she noted the need for flexibility on the nature of the obligation, and asked the group discussing article 44, led by Honduras on behalf of the “CLAM” group, to discuss, as it appeared that reference to “mutually agreed terms and conditions” could remain. She noted distance on the inclusion of paragraph 2 and indicated that she would consult with delegations. On paragraph 3, she invited Switzerland to lead a small group to clarify terms and explore possible revisions. Regarding paragraph 4, she invited the “Group of 77” developing countries and China and the European Union to discuss the use of certain phrases.
Moving to article 43, she said there was “a large measure” of agreement on paragraphs 1 and 2 as drafted. She invited the African Group and Nicaragua to consult on a proposal, and the Russian Federation to consult with other delegations on their proposal. On paragraph 3, the Group of 77 and China volunteered to lead a small group to discuss the listing of States therein. On article 42, she noted support for a provision on objectives, alongside calls for streamlining, adding that she would revise article 42 based on proposals.
Finally, on article 46, paragraph 1, she said several proposals seemed “relatively uncontroversial”. She invited Palau on behalf of the Pacific small island developing States, Iran and the United States to consult on one proposal and invited Australia to work with all interested delegations on whether and how to include a further indicative and non-exhaustive list of types of capacity building and transfer of marine technology.
Updates on “Homework Assignments”
Delegations then reported on “homework” assignments, with Nauru’s representative, speaking for the Pacific small island developing States, noting that while some delegations can support the text in article 48, paragraph 3, many others indicated there should be consideration of a contingency if consensus adoption of the rules of procedure is not possible. Others saw the use of the General Assembly rules as a possible way forward, she said, adding that this issue is linked with other decision-making issues being discussed in other small groups. On article 64, she said both her group and the “CLAM” group are flexible on either the retention or deletion of article 64.
The European Union representative, among other issues, reported on article 22, pointing to general consensus that it is not necessary to repeat references to article 204, 206 in paragraphs 1 and 2, as long as the reference to the Convention remains in article 21bis. On the decision-making modalities of the Conference of the Parties, the small group agreed that consensus is the general rule.
The representative of New Zealand, on emergency and interim measures, said a small group was convened, with a useful discussion that helped to clarify the purpose of the provision. She recalled that the provision was originally submitted at the fourth session of the Intergovernmental Conference and aims to ensure the future agreement is responsive and dynamic to unexpected events. Discussions focused on procedures for emergency measures, the best placement in the text, and scope. Progress was made on all these issues, leading to New Zealand’s submission of a revised text today. There appears to be support for having the provision included in the area-based management tools chapter and for removing the reference to “interim measures”, she added.
The representative of Australia said there will be a small group meeting on 22 August to discuss the potential for reinserting annex two with an indicative, non-exhaustive list of the types of capacity-building activities.
The representative of Singapore, updating on marine genetic resources, said progress was made on articles 9.2 and 10.6. It is generally accepted that these articles would focus on the access/collection of marine genetic resources. The question now is how to consider the rights and interests of States that might be affected by such activity. On area-based management tools, he said Singapore led a small group on articles 1.1 and 1.12 on the definitions of area-based management tools and marine protected areas. Delegations nearly reached agreement on marine protected areas, with the definition providing for recognition of the possibility of sustainable use taking place in marine protected areas, while also recognizing the main objective continues to be conservation. “We are not quite there yet,” he said.
On environmental impact assessments, he said Singapore is coordinating on the different parts of article 23, noting there had been progress on unresolved issues. Questions center on how to describe the modality for consultation with the relevant instruments, frameworks and bodies. The second unresolved issue is around the “impact-based or location-based issue”. On article 23.3 and 23.4, he raised the issue of whether standards can be developed for the purposes of environmental impact assessments under the relevant instruments, frameworks and bodies.
The observer for the State of Palestine took the floor on article 45, paragraph 4, noting that language has been circulated relating to marine technology transfer being “appropriate, relevant”, with concern expressed over the phrasing “to the extent possible”. Feedback is awaited.
The representative of El Salvador, speaking for the “CLAM” group, said that on article 44, paragraph 1, delegations discussed whether obligations around capacity-building and the transfer of marine technology should be viewed together or separately. She read out phrasing for paragraph 1, noting that the wording garnered understanding and that delegations need final feedback from their constituencies. Language for article 44 paragraph 2 is under consultation.
The representative of the United States updated on discussions for an opt-out option for decision-making on area-based management tools, which garnered wide participation. Delegations focused on the goal of wanting to achieve the conservation objectives under the agreement, while ensuring broad membership. They also touched on the European Union’s opt-out text for article 19, for which the United States provided edits. Australia presented a paragraph which delegations were interested in further considering. She cited other good contributions from the Pacific small island developing States, Caribbean Community, Canada, Iceland, Maldives and New Zealand, noting that her delegation stands ready to address outstanding concerns.
Several delegations took up the issue of working groups. The representative of Sierra Leone, speaking for the African Group, stressed that the mandate of the small working group dedicated to articles 9.2 and 10.6 was not clearly defined or represented. The African Group’s submission was rejected without meaningful engagement and he called for inclusive discussions if this format is going to be continued. In a second intervention, he said the proliferation of small groups have been difficult to track, manage and follow — and now may distract from negotiations and inadvertently exclude delegations and groups with limited resources.
Where issues are being discussed in the substantive element or Part, it would be best to pin the issue in the other areas and await progress from the main negotiation forum, he said, instead of having many cross-cutting or “truncated” small working groups. He pointed out that those groups assigned homework, in essence, substitute for the facilitators. As such, their reports should be a factual reflection of discussions and not a reiteration of their positions. He encouraged facilitators to assign homework on those issues where there is movement, but differences remain, he said, stressing that expressions of difference should not automatically lead to homework or the formation of small working groups. Importantly, he recommended that small groups not meet during formal plenary meetings of the Intergovernmental Conference.
The representative of Pakistan, speaking for the Group of 77 and China, said the purpose of small group discussions is to make progress so that all delegations can make informed decisions. However, the proliferation of small groups might undermine this goal, if delegations are not able to keep pace and remain well-informed.
The representative of China echoed concerns about most appropriate working methods, objecting to informal working groups being convened during plenary meetings, which leads to an “overlapping regimen”. While all delegations are concerned about when a new treaty will be adopted, the more important issue is around what kind of text delegations are ready to adopt. With legacy in mind, he pressed delegations to “think about some fundamental elements”. He said it is too early to consider the formation of a “legal scrubbing committee”.
The representative of Kenya similarly acknowledged the need for small working groups not to disrupt the broader International Conference negotiations, with the goal of “carrying the whole room along at the same time, in the same manner”. Small working group discussions are not always representative of the whole room. Some have pointed out that any agreement reached in a small working group is subjected to further debate in the larger group, begging the question as to whether this is productive, as the setup can “pit delegations against one another”, and claims that some delegations are “blocking” what had been agreed in a small working group.
The representative Barbados, speaking for CARICOM, recognized that the amount of work to be accomplished requires the convening of small groups, and encouraged ways to improve working methods.
The representative of Mexico said delegations are in a position to conclude negotiations next week. He underscored the importance of maintaining “a good margin” of flexibility in the organization of work in the coming days, pointing out that small working groups have allowed for making rapid progress. He called for inclusiveness and transparency, and for considering the limitations faced by delegations from developing States. He suggested that the “legal scrubbing” group could begin working in parallel on “articles that are ready”.