Fifth Session,
65th Meeting (AM)

As Intergovernmental Conference on New Maritime Biodiversity Treaty Continues Resumed Session, Speakers Voice Concerns about Proposals, Urge Flexibility

As the Intergovernmental Conference to draft a new maritime biodiversity treaty went into its second week of negotiations focusing on an updated text, some delegations expressed concern that not all proposals have been reflected in the revisions and called for flexibility, confidence-building and maintaining integrity of the process under the auspices of the Conference President’s leadership.

Intergovernmental Conference President Rena Lee (Singapore) opened the second week of the resumed fifth session by inviting facilitators of small groups and informal informals to report on the progress achieved in their negotiations and discussions.

The representative of Belize presented an overview of the discussions on marine genetic resources, including questions on the sharing of benefits, pointing out that proposals on terms relating to part II in article 1 and on article 10 were discussed.  In the following informal informals, delegations addressed the chapeau of article 11, paragraph 2, as well as articles 7, 8 and 9.  On article 11, paragraph 2, there was general support for lifting the brackets around the term “non-monetary”, with several proposals made on other parts of the chapeau.  Article 7 enjoyed general support for lifting the brackets in subparagraph (c), with additional proposals made in subparagraph (a).  On article 8, views continued to differ on the temporal scope of application, additional drafting proposals were made.  A joint proposal was introduced to include a new paragraph that excludes the application of part II to military activities.  Turning to article 9, delegations supported the text of paragraphs 1 to 3 and 6 in the “Further refreshed draft text”, with different views being expressed on several additional proposals in these paragraphs.  The upcoming informal informals will consider article 10bis and 12 and will continue working towards bridging remaining gaps, she said.

The representative of Canada, reporting on the informal informals on area‑based management tools, including marine protected areas, said the discussions focused on four main areas:  decision making, recognition, objection process and emergency measures.  Noting that small group discussions on article 19 resulted in a revised text supported by many delegations, she noted that one delegation indicated that decisions by the Conference of the Parties should only be made when the measures are not within the competence of the international framework of body.  With regard to article 19, while some conceptual issues remain with regard to the idea of recognition, some delegations expressed flexibility.  Acknowledging progress made on article 19bis, she outlined the proposal circulated by the Caribbean Community (CARICOM), among other proposals of regional groups.  Turning to articles 17, 17bis, 18 and 20, she highlighted China’s proposal related to disputed areas that will be discussed in informal informals.

The representative of the Netherlands, presenting the outcome of informal informals on environmental impact assessments, said that, on article 39, it was agreed in principle — though with reservations — to include any associated impacts, with precise wording subject to further discussion.  This should be reflected in article 30 on the understanding that the wording may be different.  Also clarified was that the monitoring of impacts is an obligation of each party, rather than a collective obligation.  On article 41bis, paragraph 2(b), the brackets around the paragraph were lifted, after deleting text linking to other relevant instruments, frameworks and bodies.  On article 41bis, it was decided that the provision should refer to “standards and guidelines” to be developed by the Scientific and Technical Body.  Also decided, among other things, was that two proposals from a small group on States be incorporated in part IV.  This led to changes in article 21bis, subparagraph (f), and article 30, paragraph 2.  A proposal for a new paragraph 4 in article 30 was included in the text for further consideration, he said, noting that this might be an important step towards a compromise on whether environmental impact assessments decision-making should be State-led or Conference of States Parties-led.  It was also decided to delete article 22, paragraph 2, since its essence is covered by article 53.  On article 30, they successfully resolved some outstanding issues, or at least narrowed the divides, he said.

The representative of El Salvador, reporting on the informal informals on capacity-building and the transfer of marine technology, said that articles 42, 43, 45, 46, 47, 47bis and annex II, including proposals advanced in two small groups, were discussed.  On article 42, delegations continued debating existing proposals, whereas on article 43, general agreement on the text seemed to be reached, pending a proposal on the reference to holders of traditional knowledge and two cross-cutting issues.  On article 45, she outlined a landing zone on inserting the word “additional” to the title of the article and a rephrased beginning of paragraph 1, noting that other proposals on this paragraph, including alternative language, remained under discussion.  Spotlighting a significant degree of agreement on articles 46 and annex II and reporting on progress relating to some paragraphs of article 47, she outlined some landing zones on article 47bis in paragraphs 2 and 3.

The representative of Jamaica, reporting on the informal informals on cross‑cutting issues, noted that the group first considered previous work done on article 4.  In respect to each paragraph of article 4 in the small group, he noted that most delegations seemed comfortable with the landing point reached on paragraph 1.  Regarding paragraph 2, there was an understanding that the text would revert to that of the “Further refreshed draft text”, in a spirit of compromise.  All but one of the proposals made on that provision were thus withdrawn.  Two proposals are now reflected in the text.  A divide remains concerning paragraph 3; without further movement towards a solution, that provision was not addressed in detail.  On article 5, discussions continued on the proposals made on the chapeau, he said, noting strong support expressed for retaining a streamlined chapeau.  Support was expressed for the language in the chapeau as currently reflected in the 25 February updated draft text.  Several delegations recalled their preferences on the concept of precaution, with a suggestion also made to refer to this concept descriptively to bridge the divide between “principle” and “approach”.  As that was the final informal informals for the week on those matters, delegations were encouraged to continue their consultations towards finding a common path forward, he said.

The representative of New Zealand, reporting on the informal informals on cross-cutting issues, said discussions continued from the small group work concerning article 53ter, article 55 and the proposal for a new part VIIIbis on liability and compensation.  On article 53ter, there was general agreement on the text as reflected in that outcome.  On article 55, proposals had been made in respect to both options I and II, as well as a proposal for a further option within that article.  Further adjustments were proposed regarding option I towards a landing zone on that option, she said, pointing out that a further proposal seemed to take the text backwards.  Noting further discussions among some key proponents of option I, she said there may now be a text that resolves those differences.  A delegation also introduced its proposal for an additional option under article 55 which would not provide for compulsory binding dispute-settlement procedures.  While clear preferences remain for the different options on the table, there were encouraging expressions of openness to consider suggestions that move the delegations closer to agreement.  They also briefly turned back to the discussion on the proposal made for a new part VIIIbis, which included some clarifications by the proponent in response to comments on the proposal by other delegations, she said.

The Conference President, expressing appreciation to facilitators and delegations for their hard work in producing the updated draft text of 25 February, outlined the progress made.  Spotlighting the remaining matters, she said that many of them relate to drafting issues and encouraged delegations to “pick up their dictionaries and thesauruses” and work on closing such gaps in the coming days.

As the floor opened to delegations’ comments, the representative of Cuba, speaking for the “Group of 77” developing countries and China, said that some proposals, which have been reflected in the updated refreshed text, should not be considered as proposals that have the same level of acceptance as those others already contained in the negotiating draft.  He voiced concern about proposals pushed by no more than five delegations that are being put in equal condition as those put forward by more than 140 Member States, underscoring that the text needs to be representative of the international system.

The Russian Federation’s representative, reiterating concerns with regard to the working methods, said that not all proposals have been reflected in the updated text.  Pointing out that a selective approach would not help to achieve consensus, he also expressed concern about plenary sessions taking place in parallel, thereby hampering participation of medium-sized delegations.  Noting that entire paragraphs and sections remain in brackets with no consensus or agreement, he urged delegations to maintain transparency and ensure monitoring of the process.

Sierra Leone’s delegate, speaking for the African Group, and noting the limited number of days to “cross the finish line”, said the bloc is seeking to understand the decision-making process that led to some of the changes in the updated draft text, particularly those issues that have the potential to undermine or weaken the treaty.  Some of the carve-outs, which were last-minute suggestions proposed or supported by a limited number of States and opposed by groups of States, including the African Group, have been added to the treaty text.  For example, the inclusion of the freedom of the high seas in the article on principles — even though in brackets — will undermine a treaty that has conservation and sustainable use as its core objectives.  Further, it was added only after three delegations proposed or supported the addition in the twilight of negotiations.  There are other examples in part II and in cross-cutting issues where last-minute suggestions were added and not in conformity with the usual working methods or in view of groups’ rejection.  The Conference President’s leadership is fundamental in confidence-building and maintaining the integrity of the process.  However, the willingness to conclude must not be at the detriment of a treaty that only maintains the status quo, he said.

The delegate of Ecuador, expressing concern over the lack of time allocated in the programme of work for discussions on financing, suggested that discussions on marine genetic resources conducted in informal informals or in small working groups, which are linked to finance, could include matters related to finance.  This, for the sake of transparency, would enable delegations to attend discussions on this topic.

The representative of Brazil underscored his commitment to concluding an agreement contributing to the conservation of marine biodiversity and taking into account the special needs of developing countries.  He also noted that his delegation has been adopting a conciliatory approach and is working for the reduction of inequalities between developed and developing countries.  It is understood that the agreement shall include the application of the principle of common heritage of humankind on marine biodiversity of areas beyond national jurisdiction, as well as non-monetary and monetary-benefit-sharing arising from utilization of marine genetic resources.  Voicing support for the agreement to be fully consistent with the United Nations Convention on the Law of the Sea, he called on delegations to be flexible so that they can move towards the conclusion of negotiations that considers the needs and interests of developing countries.

China’s representative, recognizing the progress made, pointed out that the updated text still includes “hundreds of brackets”.  Emphasizing that having different views is not daunting, he underlined the importance of respecting different opinions to understand the rationale and concerns behind proposals and seek respective solutions.  In this regard, he reiterated his readiness to work with the President, the facilitators and other delegations to achieve a widely acceptable agreement that takes into account concerns of different parties.

The representative of Jamaica, noting that others in the Caribbean Community (CARICOM) share the same view, voiced concern that delegations do not seem to be making progress needed to achieve an effective new agreement.  Rather, many delegations appear to be complaining about the process, he noted, urging participants to redouble their efforts.  Delegations also seem intent on holding fast to their positions, appearing to be determined to hold up the conclusion of the process instead of meeting counterparts in the middle or part of the way.  The outcome seems to be moving further away with a day or two left.  Calling for a give-and-take approach, he encouraged colleagues to make every effort for consensus, compromise and maximum flexibility.  Underscoring that his delegation, like others, cannot go along with a new agreement which only reinforces the status quo, he pointed out that, at this time in global history, the world is in a transition and is looking forward to a different future that is coming.  “Look forward.  Look to the best outcome,” he urged delegations.  “Otherwise, we will not achieve an agreement.  This session, these 20 years will be a failure and we will have no one to blame but ourselves,” he said.

The Conference President, acknowledging the concerns expressed by delegations regarding the different proposals, underscored that efforts are being made to achieve a consensual outcome.  She urged delegations to focus on finding solutions that would enable a consensus, underscoring that “a bright spark from one delegation may show the way forward”.

The plenary of the Conference will reconvene at 10 a.m. on Tuesday, 28 February, to continue its work.

For information media. Not an official record.