President Urges Compromise to Reach Consensus, Find Solutions, as Intergovernmental Conference for Drafting Ocean Biodiversity Treaty Enters Final Stages of 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, and delegates focused on finding the solutions needed to successfully close the fifth session on 26 August.
President Rena Lee (Singapore) also outlined the proposed work programme for 24 August, noting that she would work with the facilitators on the topics raised. Signalling that changes could be made to the topics under informal discussion, she said she would hold closed consultations in the morning to address “institutional arrangements” across the agreement, taking an overview of the bodies that would serve in the agreement and the functions they would carry out.
“We are entering the final stages of our session,” she said. She urged delegations to make the compromises necessary to find consensus and “squeeze out all the creative juices we have to find innovative, creative solutions”.
The Intergovernmental Conference will reconvene at 1 p.m. on Thursday, 25 August.
Marine Genetic Resources, Including Questions on Sharing of Benefits
The representative of Belize said discussions held on 22 and 23 August addressed articles 11, 13 and 10, as well as the use of terms in article 1, paragraphs 1, 2, 12 and 19 of the refreshed draft. Delegations welcomed the restructuring of articles 10, 11 and 13. On article 11, they supported the general direction of paragraphs 1, 2 and 4 and made drafting proposals. She said she presented a proposal on paragraph 3 for further discussion.
On paragraphs 5 to 7, she said views differed on whether and, if so, how to address monetary benefits, with some delegations expressing flexibility on finding pragmatic solutions. On article 13, she noted flexibility on paragraphs 1, 2, 3 and 6, with delegations wishing to clarify modalities and the roles of relevant institutional arrangements. She also noted openness to discuss the issue of “commercialization” in paragraphs 4 and 5, and how it would relate to article 11. On article 10, delegations generally supported paragraph 1 but differed on its placement. They made drafting proposals on paragraphs 2 to 5 and expressed various views on paragraph 6. On paragraph 7, the positions of many delegations are pending further consideration of the definitions of relevant terms.
She went on to note that the “homework group” discussing paragraph 8 reported a proposal to delete this paragraph and reformulate paragraph 2 of article 9. On the use of terms in article 1, she noted openness to separating physical samples and “associated data and information” in paragraphs 1 and 2, with disagreement on the framing of the latter term and its inclusion in the definition of “marine genetic resources” in paragraph 12. There are differing views on some elements of the definition of “utilization” in paragraph 19, with some delegations open to considering these elements. She invited the African Group and Norway to lead small group discussions on articles 10 and 11, as well as on aspects of article 13 that relate to article 11.
Area-based Management Tools, Including Marine Protected Areas
The representative of Canada said discussions focused on article 19 of “Part III”, on decision-making. While they were only able to cover four of the seven paragraphs, these were among the most important as they deal with the powers of the Conference of the Parties. Delegates engaged in thorough discussion of what decisions the Conference of the Parties can take and how these decisions relate to other bodies and instruments, paragraphs 1 through 4. There is strong support to have a clear statement on the ability of the Conference of the Parties to take decisions on the establishment of area-based management tools, including marine protected areas.
Noting that these powers will not be exercised in a vacuum, she said the right assurances or safeguards must be inserted into the text to ensure the transparency, coordination and cooperation needed for a mutually supportive relationship between the agreement and the relevant international frameworks and bodies, and not a conflictual one that could degrade the effectiveness of all concerned. She also noted general agreement on the need to better differentiate, through references to various mandates and competencies. A small group under Norway’s leadership was instructed to reform paragraphs 1, 2 and 4, clarify the powers of the Conference of the Parties, ensure that mandates and competencies are referenced and provide streamlining of the text.
The group will deliberate the remainder of article 19 later today, with a focus on paragraphs addressing how the decisions by the Conference of the Parties will account for national jurisdictions, sovereign rights and interests, covered in paragraphs 5 and 6, and to consider what happens to the Conference of the Parties and associated measures in the event of new relevant international frameworks and bodies, dealt with in paragraphs 7 and 8.
Environmental Impact Assessments
The representative of the Netherlands turned first to reports from the small groups assigned “homework”, noting that the group on article 23, led by Singapore, concluded its work after making good progress on revising this article. The group on article 30, led by Canada, likewise completed its work and streamlined the text. It also took on two additional articles, 34 and 35, with work on those articles ongoing. The group on article 41ter, led by the United Kingdom, concluded and presented its outcomes. All textual proposals submitted by the small groups will be incorporated into the updated version of the refreshed text.
Turning next to definitions, he said the group examined the three definitions in article 1 that are relevant for “Part IV”: Environmental impact assessment in paragraph 11; strategic environmental assessment in paragraph 17; and the “activity under a State’s jurisdiction or control” in paragraph 3. The United Kingdom-led working group on strategic environmental assessments proposed to proceed without a definition of this term. On the definition of “environmental impact assessment”, delegations are divided on which of the three options currently contained in the draft is preferrable.
On the definition of “activity under a State’s jurisdiction or control”, he said delegates agreed that this definition should be deleted, noting that he will recommend that the President do so. On article 22, the group discussed the “impact versus activity-based approach” — one of the remaining major issues — in the context of the newly proposed paragraph 4. While the group was unable to resolve this issue, it explored options to resolve the longstanding issue of whether to refer to a “planned” or a “proposed” activity by using the term “planned”, which is consistent with article 206 of the 1982 United Nations Convention on the Law of the Sea, and including language in paragraph 1 to clarify that planned activities must be assessed before they are authorized. Delegations are considering whether paragraphs 2 and 4 can be deleted.
On article 24 — a controversial article determining the thresholds for environmental impact assessments — he said the central question of whether there should be a tiered approach, and if so, what should constitute the tiers, was not resolved. There may be emerging flexibility to work off “option A.2” — a two-tiered approach that would require a full environmental impact assessment only if the threshold set out in article 206 of the 1982 Convention is crossed. However, it is unclear whether this has enough traction.
On article 38, he said delegations remain divided on the central question on decision-making. They discussed a possible opt-in mechanism in an otherwise State-led decision-making process, giving the Conference of the Parties a role, and how that would relate to article 38 paragraph 4 which allows parties to request assistance and advice from the Conference of the Parties. However, this did not receive enough traction to emerge as a potential way forward. On article 41ter, the small group led by the United Kingdom has made good progress, but the question of whether strategic environmental assessments should be voluntary or mandatory still must be resolved. Progress was also made on “cleaning up” the text in articles “21bis, 24 paragraph 2, 38 paragraphs 2, 3 and 4, 39, 40, 41, and 41bis”.
The representative of New Zealand said discussions on 22 August focused on implementation and compliance (Part VIII) and settlement of disputes and advisory opinions (Part IX).
Turning first to implementation and compliance, she noted strong support for articles 53, 53bis and 53ter under “Option II”, including for an Implementation and Compliance Committee. Delegations preferring “Option I” indicated flexibility. Delegations generally agreed that the Committee should be facilitative and non-adversarial, with suggestions to clarify “non-punitive” and the capacity in which Committee members would act. Whether to refer to parties’ national capabilities and circumstances needs further consideration.
She said delegations welcomed the President’s “rationalization exercise” regarding institutions. She encouraged those delegations with concerns over “Option II” to engage with the principal proponents — Pacific small island developing States, the “CLAM” group and Singapore — to explore how they may be addressed. On dispute settlement and advisory opinions, she said there was broad convergence around retaining articles 54 and 54bis, with a possible clarification of scope under article 54. The “scrubbing committee” might consider sequencing. She also reported strong support for article 54ter as a useful enabling provision for disputes of a technical nature.
On dispute settlement procedures in article 55, she said most delegations supported some type of compulsory binding third-party procedure. Many preferred the application of Part XV of the 1982 United Nations Convention on the Law of the Sea mutatis mutandis. One delegation suggested having equivalent compulsory procedures provisions for non-parties to the 1982 Convention, rather than applying the Convention’s “Part XV regime”. For delegations that did not support any compulsory binding procedure, she suggested that they engage with those delegations in favour, adding that she would consult with the President on how best to move forward. Article 55bis — on provisional arrangements — attracted significant support, while further discussions are required on article 55ter, on advisory opinions.
Following those presentations, the representative of Antigua and Barbuda, speaking for the Alliance of Small Island States, raised a question about when article 5 would be discussed.
The representative of Barbados, speaking for the Caribbean Community (CARICOM), drew attention to the gaps still to be bridged. She requested that the Intergovernmental Conference defer “informal informal” discussions and instead move to a “CR11-like” format, similar to what had been done during the third session, so that delegations can engage directly with each other, which CARICOM believes would be more conducive to reaching the solutions needed to successfully close the fifth session on 26 August.
The representative of Nicaragua reserved the right to come back with additional considerations once there is an official text in Spanish.