As New Ocean Treaty Session Continues, Intergovernmental Conference Speakers Warn Discussions Exceed Mandate, Vulnerable Countries’ Needs Not Addressed
As the Intergovernmental Conference to draft a new maritime biodiversity treaty convened on the eve of the closure of its resumed fifth session, some delegations expressed concern that discussions have gone beyond the Conference’s scope or are not adequately addressing the needs of geographically and economically vulnerable groups of countries, underscoring that the Conference’s outcome must align with the United Nations Convention on the Law of the Sea.
Intergovernmental Conference President Rena Lee (Singapore), welcoming delegations “all ready and warmed up for the marathon”, opened the plenary meeting by inviting facilitators to report on progress made in negotiations.
The representative of Canada, reporting on informal informals addressing area-based management tools, including marine protected areas, said delegations focused on part III to clear the remaining brackets and revisited other complex outstanding issues. On article 1, paragraph 2, there was broad support for a compromise on the definition of “marine protected area”, she said, noting that delegates also discussed a number of proposed textual changes on article 14, including concerns raised with regard to paragraphs (d) and (e), which remain in square brackets. On article 17, paragraph 2, delegations would need to revisit the bracketed text and further consider the suggestions on the grouping of the indicative criteria in annex I in order to remove the prescriptive reference to the indicative criteria and allow for the criteria to be further considered by the Scientific and Technical Body.
Detailing discussions on article 18, she said delegates also exchanged views on paragraphs 6 and 8. Turning to article 19, delegations worked on the basis of a merged alternative paragraph and considered the merged formulation of paragraphs 8 and 9. While some internal brackets remain, the brackets were lifted around this paragraph as a whole. Noting that a further proposal was received from a regional group on paragraphs 4 to 10, which will replace the former option III, she said that delegations also briefly considered proposals on dispute settlements.
The representative of the Netherlands, reporting on informal informals on environmental impact assessments, said another full review of part IV was completed. On article 34, paragraph 1 now distinguishes States from other stakeholders and clarifies that notification and opportunities for participation shall take place throughout the environmental impact assessments process, including during the scoping phase and when a draft environmental impact assessment report has been prepared. However, agreement has not been reached on whether the provision should refer to adjacent coastal States, other States adjacent to the activity and potentially most affected States. Brackets were removed around the new paragraph 2 that defines how to determine “most affected States”. In paragraph 3, which used to be paragraph 2, option B was removed and option A, which is now the single option, was cleaned up. Paragraph 4 merits further discussion regarding the question whether targeted and proactive consultations should be mandatory with respect to adjacent small island developing States. On paragraph 5, progress was made on simplifying the text. A proposal was made regarding deleting paragraph 7, but without success, as the majority of delegations are in favour of retaining it and continuing to work on paragraph 7. The question whether this paragraph should be limited to small island developing States still needs to be resolved.
Regarding the call-in mechanism, he noted that a group of delegations is working on a compromise proposal that is potentially relevant for several stages of the environmental impact assessment process, including the screening phase for planned activities, among others. However, the group’s proposal was not ready for review yet, and their work was continuing yesterday evening. On article 23, the words “with impacts” were removed throughout the article, he said, noting that it was an important step towards resolving the contentious issue of the impact vs. activity-based approach. Progress was also made on article 30 where brackets were lifted in paragraph (b). Brackets were also lifted in article 39, to mirror the language on article 30, paragraph (b). Although some brackets remain in article 41, delegations made positive progress in streamlining its text. A few brackets were also removed in article 41bis. Article 41ter was briefly discussed, he said, noting one delegation’s reservation to the inclusion of a provision on strategic environmental assessments in part IV. Thanking delegations for their constructive approach, he said he trusts that that will lead to positive results.
The representative of El Salvador, reporting on the informal informals addressing capacity-building and the transfer of marine technology, said that delegations were able to lift brackets on some paragraphs and move toward common approach on others. On article 44, paragraph 1, delegations further converged on the phrase “shall cooperate to achieve”, with the addition of “and seek to ensure” remaining in brackets. While many delegations suggested removing the words “in particular” before “developing States” in the first part of paragraph 1, a preference was also expressed to retain it. Discussions continued on the phrase “[including related biotechnology]”, and only two delegations indicated their preference to retain the phrase in brackets.
On article 45, paragraph 1ante, brackets were lifted around a revised version of the proposed text, she continued. On paragraph 1, delegations further honed proposals around the elements of the additional terms of modalities for the transfer of marine technology. On paragraph 3, delegations found a landing zone by lifting all brackets, she said, commending the delegations’ constructive spirit and approach to the discussions. She noted that, in the next informal informal consultations, she would like to only address the text that remains within brackets in articles 42, 43, and 46, along with its annex.
The representative of South Africa, reporting on informal informals addressing cross-cutting issues on institutional arrangements, said significant progress was made towards finalizing article 48bis, article 49 and article 50. On article 48bis, though one delegation requested reinserting an element in paragraph 3, that proposal was withdrawn, resulting in a clean text. On article 49, there was strong support for paragraph 1 as drafted and for paragraphs 2 and 3 as reflected in the outcome of the small group. The remaining reservations were lifted on the text proposed as a compromise in paragraph 4 to accommodate traditional knowledge. However, one delegation maintained its position on alternative language in paragraphs 1, 2 and 3, while two other delegations supported alternative language in paragraph 4. It was agreed that the text would include one clean version reflecting the general comfort in the room with paragraphs 1 through 4, and a second version of these paragraphs with proposals in tracked changes.
Noting the great flexibility shown regarding paragraph 4, he had asked interested delegations to consult towards finalizing that provision. On article 50, the paragraphs of option A had been cleaned in the context of the small group, he said, adding that, with no further proposals, article 50 is also clean. Thus, the only remaining issue is the larger question of proceeding on the basis of option A or option B. Most delegations now appear to prefer option A, while one regional group of States is still consulting on the matter, he said, noting that they are very close to finding a landing zone on those provisions. He thanked delegations for their flexibility and creative and constructive efforts to find a common way forward.
The representative of New Zealand, reporting on cross-cutting issues on implementation and compliance, and dispute settlement, said discussions focused on the proposal made by a regional group on a new part VIIIbis, as delegations also took up article 55. Turning to the proposal for a new part VIIIbis, the proponent substituted the proposal for a new preambular paragraph as well as a reference to a compensation fund for loss and damage in article 52. Different views were also expressed on the inclusion of a reference to a compensation fund and on the linkage of this proposal with the preambular paragraph.
On article 55, she noted that delegations expressed their views on the alternative formulations of paragraph 8, including their general preference for option I, II or III. Option I enjoyed support from many delegations, and one delegation that had previously supported option II indicated that it could also consider option I, she said, pointing out that another delegation requested that option III remain under consideration. Following a suspension of the session to allow for consultations, the key proponent of option II agreed that this option could be placed in brackets, she said.
The Conference President, reporting on the President’s consultations, said discussions continued on part II of the text. Pointing out that some text was suggested for the consideration of delegations, she said that a number of delegations did not consider the text to be a way forward. Consultations were then suspended and a small group of delegations held conversations on how to move forward. At the end of the consultations, delegations expressed a determination to “run a marathon to get to the finish line”, she noted. Outlining the programme of work and addressing logistics, she encouraged delegations to “fuel up, warm up and be prepared to run the marathon to the finish line”.
The representative of the European Union, in its capacity as observer, said that monetary benefits sharing will soon be an innovative way to fund capacity-building and meet objectives under the maritime biodiversity agreement. Thus, delegations will be doing something “very unique” when they agree on a fair and equitable system of monetary benefits. Recognizing that monetary benefits sharing would not be the only source of funding, she noted that for the first year after the agreement enters into force — when capacity-building matters — the mechanism would not yet be able to deliver the amount of funding required. “Yet, we want the biodiversity maritime treaty implemented and financed immediately,” she stressed. She also recalled “Our Ocean 2023” Conference, currently hosted by Panama, where the bloc announced 39 commitments for action, which would be funded up to €816.5 million — one of the biggest amounts announced since the start of the “Our Ocean” Conference in 2015.
Detailing some of the commitments, she said the Union committed €320 million for ocean research to protect marine biodiversity. Together with Panama, the bloc will create a regional centre for Latin America and the Caribbean, which will access data from the Copernicus satellite network. The Union plans to renew satellite constellations, in the amount of €220 million, that will be observing the Artic. In addition, it will commit €126 million to protect biodiversity in the oceans around Benin, Guyana and the United Republic of Tanzania. She further recalled that the Union has already dedicated €40 million to the biodiversity treaty with a focus on ratification and early implementation. She also noted that, during the opening of the Intergovernmental Conference, European Ministers of Foreign Affairs met in Brussels and made a political commitment to step up capacity-building under the treaty. “Friends will be there before the maritime biodiversity treaty enters into force, when it enters into force and once it is at a full cruising speed,” she said.
The representative of Mexico said that to cross the finish line in the next 48 hours, devoting almost three hours this morning to the preamble should not be the priority. Rather, the time should be used instead on substantive issues that potentially could be closed. To this end, he suggested for the President’s and delegations’ consideration of reversing the order of the programme of work, so that the preamble is considered in the afternoon, and delegations in the morning can go straight into institutional arrangements, implementation, compliance and dispute settlement, and environmental impact assessments. He also suggested a reconsideration of the format, wondering whether informal informals were best or whether to transition to small groups which might be more effective at the current stage.
The representative of Bangladesh, calling attention to article 5, section 2, pointed out that “freedom of the high seas” has been included in the text. Underscoring that it has nothing to do with the main aim of the agreement, he also pointed out that it has different parameters. He, thus, stressed that equating the “freedom of high seas” to the common area principle may not be legally appropriate.
The representative of Nicaragua urged delegations to ensure the Conference frames its work within the mandate outlined in resolution 72/249. The discussion is going beyond the scope of the Conference in multiple areas, he reiterated, adding that he wanted to mention this again since the Under-Secretary-General is present. Referring to points 6 and 7, he said the Conference results must be aligned with the United Nations Convention on the Law of the Sea. There is a series of procedures established here that undermine the bodies and legal framework established by the Convention. Further, those who pollute the seas the most are the most developed countries. Some of them are here and a representative from a huge regional group is contributing only $800 million. That is nothing for all the pollution they put out. “Let’s take responsibility for what we are putting out,” he said, urging delegates to work fully toward the conservation and sustainable use of marine resources. He called on leaders to redirect their work towards greater respect for the Conference mandate.
The Conference President thanked Bangladesh and Nicaragua for their comments and noted that they would be taken into account. She also thanked Mexico for its comments about the programme of work.
The representative of Nepal said the draft text has not adequately or equitably accommodated the special needs, interests and challenges of least developed countries and landlocked developing countries. They have received very little attention in the negotiations so far. That could give rise to serious discrepancies with respect to rights already recognized by the Law of the Sea Convention and further endanger alienating those groups of countries from marine activities. Detailing the constraints they face in participating in the ocean economy, he underscored the need for a balanced convention that would promote its universality and encourage their active and meaningful participation. As such, his delegation has submitted a proposal on listings of countries to also include least developed countries and landlocked developing countries in the category of countries with special circumstances, as well as to include landlocked developing countries in mechanisms, committees or bodies along with least developed countries and small island developing States.
The phrase “special circumstances” has also been used for least developed countries, small island developing States and developing countries in other legally binding international instruments, including the Paris Agreement on climate change, he continued, warning that if the special circumstances of least developed countries and landlocked developing countries are not fully recognized based on prevailing international legal instruments, it would prevent those groups of countries and billions of people from contributing in the marine biodiversity of areas beyond national jurisdiction. The special circumstances of least developed countries and landlocked developing countries must receive priority and special consideration in this agreement as in other similar international legal instruments, he said.
The representative of Oman, associating himself with Mexico concerning the amendment on the working programme, asked all delegations to be flexible to enable reaching a consensus.
The Conference President, acknowledging delegates’ remarks, turned to the programme of work and explained that the reason to schedule three informal informals in the afternoon was due to the fact that a number of working groups are meeting formally and informally to find compromises. “We need to give them the time and space this morning, so they can report back to a larger room whether they were able to find a compromise and then take that into the text,” she said, adding: “It is going to be a long day, but with the commitment and the positive spirit — a very fruitful day for all of us.”
The plenary of the Conference will reconvene at 10 a.m. on Friday, 3 March, to continue its work.