‘The Ship Has Reached the Shore’, President Announces, as Intergovernmental Conference Concludes Historic New Maritime Biodiversity Treaty
Following nearly 36 hours of non-stop negotiations, the Intergovernmental Conference today reached agreement on the text for a historic new maritime biodiversity treaty, as it adjourned its fifth resumed session.
“The ship has reached the shore,” announced Rena Lee (Singapore), Intergovernmental Conference President. As the conference room burst into thunderous applause and cheers from delegations and participants, she reported that the Conference finished the text of the agreement on marine biodiversity of areas beyond national jurisdiction.
Providing an overview of the next steps, she reported on several matters concerning the text. Regarding area-based management tools, the Conference of the Parties would decide by consensus or by voting, she said, noting that one delegation had expressed its reservation on voting. Turning to environmental impact assessments, she said that parties are of the view that these shall be State-led. In order to promote transparency, there are provisions which allow another party to register its views on the impacts of a planned activity and for the scientific and technical body to make non-binding recommendations. However, parties understand that the State decides whether an activity under its jurisdiction or control should proceed.
Also regarding area-based management tools, she said that the article on the area of application refers to the Conference of the Parties not considering for decision proposals for the establishment of any area-based management tools, involving or including any areas within national jurisdiction. Further, the term “the Conference of the Parties shall not consider for this session” means that the Conference of the Parties can look at a proposal but shall not decide on such proposals.
She then proposed establishing an open-ended informal working group to undertake technical edits to ensure uniformity of terminology throughout the draft text and harmonize its versions in the six official languages of the United Nations, with no reopening or discussions of substance in that group. Following the conclusion of its work, the open-ended informal working group will report back to the Conference at a further resumed fifth session at which time the Conference will consider its work. The Conference, without a vote, decided to establish the open-ended informal working group to undertake the technical editing.
In addition, she informed the Conference that the fifth resumed session today would be suspended to allow time for technical edits and translations and would then reconvene at a later date to be decided in order to formally adopt the text in all six official languages of the United Nations. At that time, final statements will be taken.
Ms. Lee went on to express gratitude to Miguel de Serpa Soares, Under-Secretary-General for Legal Affairs, as well as the Secretariat, Division of Ocean Affairs and the Law of the Sea, Office of Legal Affairs and the Conference support systems and interpreters. She also thanked the observers for their support to the Conference and delegations, underscoring that the Conference’s success also belonged to them. Turning to the delegations, she thanked them for their hard work, dedication and commitment to making the Conference a success. Noting it was a privilege to serve them, she said: “I've had the time of my life, fighting dragons with you.”
Prior to the final negotiations, facilitators gave oral reports on discussions in the informal informals and small groups. Carl Grainger (Ireland), Chair of the Credentials Committee, also reported on the Credential Committee, and Vladimir Jares, Secretary of the Intergovernmental Conference and Director, Division for Ocean Affairs and the Law of the Sea, provided an update on the current financial status of the Voluntary Trust Fund.
Also speaking today were representatives of Türkiye, the Russian Federation, Nicaragua and Cuba (on behalf of the “Group of 77” developing countries and China).
The plenary of the Conference will reconvene at a date and time to be announced.
Oral Reports
Intergovernmental Conference Vice-President Martin Zvachula (Federated States of Micronesia) opened the floor for facilitators to report on progress achieved in their informal informals negotiations.
The representative of the Netherlands, reporting on informal informals on environmental impact assessments, said the delegations did another complete reading of part IV and made progress on cleaning up the text. The only major unresolved issue concerns decision-making, specifically who should decide if an activity may proceed after an impact assessment has been conducted. Closely related to that is the question whether there should be a call-in mechanism for parties that have concerns about a particular activity, and whether that call-in mechanism should be applicable during the decision-making stage. Turning to article 22, he said delegations decided to adopt the threshold found in article 206 of the 1982 United Nations Convention on the Law of the Sea, with respect to planned activities conducted in areas within national jurisdiction that may have an impact in areas beyond national jurisdiction.
He also noted that a significant achievement was made regarding article 23, paragraph 4 (b), as delegations agreed to accept “equivalent”, without further qualifiers, as the standard for comparing assessments under other legal instruments, frameworks and bodies with the requirements for environmental impact assessments under the agreement. On article 24, delegations removed option B and settled on option A in paragraph 1. Having detailed changes undertaken on articles 30, 35, 38, 40 and 41, he said that several issues were settled on article 34, where reference to adjacent coastal States, other States adjacent to the activity, and potentially most affected States is now included in paragraph 1, with the word “most” in “potentially most affected States” remaining in square brackets as well as the questions whether the two groups of States that are first mentioned are a subset of the group of States that is last mentioned.
The representative of El Salvador, reporting on informal informals on capacity-building and the transfer of marine technology, said delegations discussed articles 42, 43, 46, 47, 47bis and annex II. On article 42, delegations lifted the brackets around “to developing States Parties” after “transfer of marine technology” in paragraph (c) and converged on inserting the terms “development and” before “transfer of marine technology” in paragraph (e). In paragraph 2, article 43, delegations landed on the phrase “Indigenous Peoples and local communities as holders of traditional knowledge”, whereas in article 46 they converged on including certain terms and made a reference to the free, prior and informed consent of “Indigenous Peoples and, as appropriate, local communities” in subparagraph (b). In article 47, paragraph 3, a drafting proposal to clarify the modalities on reporting was accepted and brackets were lifted around the terms “and expertise, to serve objectively in the best interest of the Agreement” in article 47bis, paragraph 2. Noting that in annex II, delegations settled on the text “traditional knowledge in line with the free, prior and informed consent of the holders of such knowledge”, she said delegations remained at an impasse on articles 44, paragraph 1, and 45, paragraph 1.
The representative of Jamaica, reporting on the informal informals on cross-cutting issues addressing the preamble, said that was the first dedicated discussion on the preamble in informal informals at this session. Most delegations were comfortable with several of the preambular paragraphs in the “Updated draft text”. Focusing on paragraphs which attracted discussion or differing views, he said, among other comments, that on the third preambular paragraph, proposals were made to list impacts of climate change as well as to make a reference to plastic pollution. On the fifth preambular paragraph, there was strong support to adopt the gender-neutral expression “humankind” instead of mankind, which would be relevant throughout the draft agreement. One delegation did not share this view. On the eighth preambular paragraph, suggestions were made as to how to refer to the rights of Indigenous peoples and interests of local communities. On the ninth preambular paragraph, there were suggestions on harmonizing the language with the Law of the Sea Convention or the operative part of the agreement. This paragraph may need to be revisited when relevant paragraphs in part 4 are settled. Noting strong support for the eleventh preambular paragraph, he said some proposals were made to more closely reflect the purpose of the agreement.
Various proposals were made to include references to the common heritage of “humankind” and the freedom of the high seas in the preamble, either separately or jointly, he continued. Some proposals were suggested as a compromise, on the understanding that freedom of the high seas and the principle of the common heritage of humankind would not appear in article 5 on general principles and approaches. Agreement could not be reached on any approach. A delegation proposed omitting references to either the freedom of the high seas or the common heritage of humankind in the preamble. As delegations could not find a landing zone, he said that he would report back on this issue to the President. Proposals for new preambular paragraphs were discussed, including, among others, respect for existing legal instruments, frameworks and bodies; marine genetic resources and the fair and equitable sharing of benefits; and the obligations of States concerning the protection and preservation of the marine environment. These proposals received varying degrees of receptivity. Discussions were not held on proposals relating to a paragraph on the legal status of non-parties to the Law of the Sea Convention as these were the subject of discussions related to article 4 paragraph 3. As they were working in the evening of the penultimate day of the resumed fifth session, he had urged delegations to use the time remaining to consult bilaterally towards finding solutions on those elements of the preamble where common ground could be reached.
The representative of South Africa, reporting on the informal informals on cross-cutting issues addressing institutional arrangements, said that on article 48, paragraph 2, they were able to remove some brackets and streamline the text, although elements relating to extraordinary meetings remained in brackets. On paragraph 2bis, while there was general comfort with the text on where the Conference of Parties shall meet, one regional group noted this is linked to the issue of the establishment of the secretariat and was still considering whether to support option A or not. On paragraph 3 regarding the adoption of the rules of procedure and financial rules, a proposal was made to separate the adoption of those documents into two sentences with only the rules of procedure being adopted by consensus. Several delegations expressed their preference to maintain consensus as the sole decision-making modality for the adoption of both rules of procedure and financial rules, citing common practice in other agreements.
On paragraph 4, they were not able to remove brackets or streamline the text because its provisions are linked to paragraph 3, he continued. On paragraph 5, they were able to streamline some elements, although differing views continued to be expressed as to whether the budget should be adopted by consensus or not. On paragraph 6, he noted many delegations’ flexibility and that a lot of delegations preferred the retention of the original text but are flexible to go where the work shall in the spirit of compromise. As there is a lot of convergence in this paragraph, it is possible to find a landing zone, time permitting. On article 49, paragraph 4, delegations heard a report back on consultations between interested delegations on the remaining brackets concerning the accommodation of traditional knowledge. A further proposal was successful in bridging this gap; this paragraph has only one remaining element in brackets. Towards the end of deliberations and after further consultations, they were able to clean all four paragraphs in article 49, he said.
The representative of New Zealand, reporting on the informal informals addressing cross-cutting issues on implementation and compliance, and dispute settlement, said that with respect to option I of article 55, there were efforts to incorporate elements of option 3, paragraph 3, within this option as paragraphs 8alt and 8bis. Proposals were made to add further text to paragraph 8bis. Many delegations in favour of option I indicated that although they supported this option with its original paragraph 8, in a spirit of flexibility, they could support paragraphs 8bis and 8alt, but only as originally formulated, to preserve the careful balance struck in the text. The delegation in support of option II indicated that it could also consider option I, but that option II could not be removed, as it was still considering its position. Option III also remained due to continued support from the proponent and one other delegation. She had indicated that, in reporting the results of their work to the President, she would recommend option I with the adjusted final paragraphs as the approach likely to attract the greatest degree of support from delegations.
The Conference Vice-President, giving a short overview of the President’s consultations, said work continued into the night in the format of a small group with an aim of arriving at a solution on benefits sharing of marine genetic resources. He informed the Conference that the work resumed early on Friday morning and is ongoing.
Credentials Committee
Carl Grainger (Ireland), Chair of the Credentials Committee, provided an update on credentials received after the submission of the fifth report of the Credentials Committee to the Conference on 23 August 2022, as contained in document A/CONF.232/2022/8, as orally updated on 26 August 2022. Formal credentials were received by the Secretary-General from Bulgaria, Cook Islands, Croatia, Czech Republic, Dominica, Ecuador, Gabon, Guyana, Malaysia, Malta, Oman, Papua New Guinea, Philippines, Poland, Sri Lanta, Tuvalu, Uganda, Uruguay and Venezuela. Information concerning the appointment of representatives to the fifth session of the Conference was received from Antigua and Barbuda, Bolivia, Canada, Chad, Djibouti, Egypt, Fiji and Grenada. The Conference may wish to accept the additional credentials submitted, he said.
Other Matters
VLADIMIR JARES, Secretary of the Intergovernmental Conference and Director, Division for Ocean Affairs and the Law of the Sea provided an update on the current financial status of the Voluntary Trust Fund established by GA/RES/69/292 for the purpose of assisting developing countries, particularly the least developed countries, landlocked developing countries and small island developing States, in attending the meetings of the Intergovernmental Conference. For the resumed fifth session, the Trust Fund facilitated the participation of 44 delegates from developing countries, 26 of whom were from least developed countries, landlocked developing countries or small island developing States. Expressing gratitude to Canada, Finland, France, Germany, Ireland, Malta and Portugal for their generous contributions, he said that as of 23 February, the Fund had an approximate balance of $20,000.
For the resumed sessions, States’ completed applications were needed by 30 December 2022, and 38 of the 47 applications were completed on time. Noting that United Nations rules impose strict deadlines for completed applications, he said that due to last-minute contributions, the Trust Fund was able to offer daily subsistence allowance to the remaining applicants. He also said that requests for assistance that are subsequently cancelled after the issuance of plane tickets or in situations of no-shows for flights have a significant negative financial impact on the Fund and its ability to provide assistance to the greatest number of States. He urged States to mitigate such situations. Underscoring the importance of continued support to the Trust Fund, he said that even small contributions contribute effectively toward sustaining it. Financial contributions can be made not only by Member States, but also by international financial institutions, donor agencies, intergovernmental organizations, non-governmental organizations and natural and juridical persons, he pointed out, encouraging delegations to promote the Trust Fund among such donors or bring information about potential donors to the Division’s attention.
The representative of Palau, speaking for the Pacific small island developing States — 14 ocean States spanning more than 20 million square kilometres of ocean — addressed the “tired but committed negotiators” in the room, noting: “On this final day, we forego pleasantries, as we, like you and many others, came here to work, not talk.” The Pacific has been involved in the process since the very beginning, even before the Open-Ended Working Group. The Pacific States saw the urgent need for a robust and ambitious global ocean governance framework for biodiversity beyond national jurisdiction, which protects the marine environment that they are spiritually connected to and rely on for sustainable development, he said. Against this backdrop, he said the bloc sees the need for an ambitious future-proof access and benefit-sharing regime, underpinned by capacity-building and adequate funding. He reaffirmed his commitment to conclude the session with an internationally binding instrument under the Law of the Sea Convention for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction and called on all delegations to act on the critical momentum built over the session and successfully conclude negotiations to “bring the ship into harbour”.