20 January 2015
Do We Need a New Treaty to Protect Biodiversity in the Deep Seas?
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For ten years negotiators in New York have been debating, under the aegis of the UN General Assembly, the need for a new international agreement to protect biodiversity in the deep seas.

For ten years negotiators in New York have been debating, under the aegis of the UN General Assembly, the need for a new international agreement to protect biodiversity in the deep seas. A final decision is expected by the end of 2015, following key negotiations on 20-23 January 2015 on the feasibility, scope and parameters of a new treaty. These negotiations will be held in the framework of the ‘Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction,’ established in 2004. This policy brief reviews the background to this process, discusses the key areas that may be covered by a new agreement, and concludes by exploring the challenges in agreeing on officially launching intergovernmental negotiations on marine biodiversity beyond areas of national jurisdiction.

Background

International concerns have been growing about the increasing pressure posed by existing and emerging human activities on unique forms of life in the depths of the oceans before we even begin to know and understand them. The Working Group was initially convened to identify gaps in the international legal regime concerning the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ). Delegates debated whether mounting pressures on marine biodiversity derive from “implementation gaps” – insufficient and uncoordinated efforts to operationalize existing agreements – or regulatory gaps – insufficient international law to engender the necessary level of action by States individually and collectively at regional and global levels.[1]

As the number of delegations pointing to regulatory gaps increased, the Working Group started discussing proposals for the development of a new treaty – an additional “implementing” agreement under the UN Convention on the Law of the Sea (UNCLOS) to adapt the Convention’s general provisions on the protection of the marine environment to the specific threats to, and the value of, marine biodiversity. UNCLOS already has two implementing agreements on mining in the deep seabed,[2] and on straddling and highly migratory fish stocks.[3] The proposal to develop a new UNCLOS implementing agreement on marine biodiversity was first put forward by NGOs as early as 2006, and successively tabled by the EU and eventually the Group of Developing Countries, Australia and New Zealand. Only a few, key States remain to be convinced of the need for a new implementation agreement: Canada, Japan, the Republic of Korea, the Russian Federation, and the US.

A crucial point was reached in 2011 when a package of issues that could be addressed in a new implementing agreement under UNCLOS was identified, namely: marine genetic resources, including questions on benefit-sharing; measures such as area-based management tools, including marine protected areas and environmental impact assessments; and capacity building and the transfer of marine technology. After that, discussions took a procedural, and somewhat circular turn with repeated recommendations to “initiate” a process with a view to ensuring a legal framework on marine biodiversity beyond national jurisdiction that gathered momentum at the 2012 UN Conference on Sustainable Development (UNCSD, or Rio+20). Finally, by the end of 2013, the UN General Assembly established a timeline (end of 2015) for taking a decision on the development of an international instrument under UNCLOS. To that end, three meetings of the Working Group were scheduled in 2014-2015 to discuss the feasibility, scope and parameters of a new international instrument, with a view to preparing for a decision by the General Assembly before the end of its sixty-ninth session. The General Assembly’s Working Group thus convened from 1-4 April 2014[4] and 16-19 June 2014.[5]

Of the elements of the package, which represent the obvious starting point to delimit the subject-matter scope of a new agreement, marine genetic resources is the most complex topic. Other key elements are marine protected areas and environmental impact assessments.

Marine Genetic Resources in the Deep Seas

Marine genetic resources (the genetic material of, for instance, deep-sea marine sponges, krill, corals, seaweeds and bacteria) in remote and mysterious areas of the oceans are attracting increasing scientific and commercial attention as they are likely to possess unique characteristics that may lead to ground-breaking innovations in the pharmaceutical and food industries, among others.

According to a 2011 Science article, which was discussed on the sidelines of the Working Group,[6]> only 10 countries account for 90% of patents related to marine genetic resources (certain EU countries, Japan, Norway, Switzerland and the US). Developing countries, therefore, are clearly not part of current bioprospecting efforts due to technological barriers in accessing marine genetic resources in the deep seas. For the past ten years or more, developing countries have thus demanded that an international regime be put in place to ensure that all countries benefit from the economic returns deriving from living organisms that do not belong only to technologically advanced States on the basis of the general principle of equity.

These demands need to be understood against the background of the international law of the sea. Accordingly, marine genetic resources are found in the two distinct areas of the oceans that are beyond national jurisdiction: the high seas (the water column beyond the limits of national jurisdiction) and the Area (the deep seabed beyond the limits of national jurisdiction) – taken together they represent 2/3 of the oceans. In both areas, natural resources do not belong to any State, but are subject to different international regimes. As UNCLOS is silent with regard to marine genetic resources – a concept that had not penetrated the international community’s awareness at the time of the adoption of the Convention – marine genetic resources in areas beyond national jurisdiction may be considered “unregulated.” Or, it can be argued that it remains to be clarified whether and how marine genetic resources “fit” into the existing international law of the sea.

Developing States have argued that an approach similar to that for exploring and exploiting mineral resources in the deep seabed (that is, under the centralized and control and administration of the International Seabed Authority) should be adapted to marine genetic resources, as both are activities that are only available to high-tech countries and for that reason raise the same equity concerns. Developing countries are therefore advocating that marine genetic resources in the deep seabed should be subject to the common heritage regime. This would mean that marine genetic resources could not be appropriated exclusively by any State, but rather conserved and exploited only for the benefit of humankind, without discrimination. The latter would be achieved by placing marine genetic resources under an international institution to manage and regulate activities concerning these resources, which must be conducted for peaceful purposes and that would allow for sharing the revenues arising from their exploration and exploitation, as well as sharing relevant technology and research results and building capacity by allowing participation in scientific expeditions and follow-up research. Several developing countries emphasized that benefit-sharing can play a key role in the implementation of the existing obligations under UNCLOS related to capacity building and the transfer of marine technology, which are famously lagging behind in terms of operationalization.

Developed countries have opposed this approach. On the one hand, Canada, Japan and the US have argued that the use and protection of marine genetic resources in areas beyond national jurisdiction fall under the regime of the freedom of the high seas (including freedom of marine scientific research). In this view, marine genetic resources may be appropriated by any State on a first-come-first-served basis. Legally, the argument is based on the understanding that the high seas freedoms are the default regime that applies in the absence of an explicit indication to the contrary in UNCLOS. These States opine that research and development on marine genetic resources in the deep seas is a highly costly and time-consuming endeavor with uncertain results, and that when successful, would benefit humanity in the form of scientific advancements contributing to global public health, food security and environmental protection. Some of these countries have nevertheless indicated openness to some form of benefit-sharing, either through codes of conduct or the ad hoc sharing of data and research results, capacity building and scientific collaboration.

On the other hand, the EU and New Zealand have supported a middle-ground position – the development of a new international regime for multilateral benefit-sharing that would not be based on the other premises of the common heritage approach, but rather be part of an integrated approach to the conservation and sustainable use of biodiversity in areas beyond national jurisdiction. The EU also proposed to subject access to marine genetic resources to notification or authorization, based on flag State jurisdiction or related to an international mechanism to be established by a new agreement.

Country positions were elaborated upon at the April meeting of the Working Group. Developing countries appeared to have different views as to the kind of international institution that would be needed to adapt the common heritage regime to marine genetic resources: a brand-new body, or the international body already in charge of the common heritage regime for mining in the seabed, the International Seabed Authority. While the Authority has considerable knowledge of the marine environment in the deep seabed, it remains to be seen whether it is fully equipped to expand its remit from minerals to marine life-forms. Also, the Authority has yet to start any work on benefit-sharing, as mineral prospecting in the deep seabed is much less advanced than bioprospecting. That said, in a time of economic crisis, using existing institutions for saving on resources is a powerful argument.

Developed countries in favor of developing a sui generis international benefit-sharing regime have instead focused attention on the need to further understand what can be learnt from existing international instruments dealing with access and benefit-sharing to genetic resources for research and development purposes, such as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) and the Nagoya Protocol on Access to Genetic Resources and Benefit-sharing adopted in 2010 under the Convention on Biological Diversity (CBD). In particular, the EU has argued that the ITPGR could serve as a model, but has so far provided no details on how this system (focused on terrestrial resources in areas within national jurisdiction) could contribute to discussions.

The types of benefits to be shared are also under discussion, although there seems to be a general understanding that these can be both monetary and non-monetary, and in that sense the Annex to the Nagoya Protocol[7] provides a starting point for more detailed negotiations. The main hurdle in this discussion is whether or not to address questions related to intellectual property rights (IPRs), which are the usual legal tool employed to derive profit from innovation and thereby provide for monetary benefit-sharing. In addition, IPRs may also be useful to monitor the use of marine genetic resources (by screening information on the origin of marine genetic resources in patent applications) and detect possible violations of the benefit-sharing obligations. But the question is traditionally intractable: if the experience of negotiating the Nagoya Protocol is something to go by, IPR issues are likely to be set aside because they fall under the mandate of the World Intellectual Property Organization.

Several other questions have been identified by the US: how should marine genetic resources be defined? Could a fish be considered a marine genetic resource? Would a benefit-sharing regime also require controls on or conditions for access to marine genetic resources? Would benefit-sharing also apply to non-commercial research on these resources? Who in the very long chain from basic research to product sales would be required to share benefits (the end user, the State of the end user, the seller, the State of the seller)? And to whom would the benefits go and on what basis will they be distributed?

Marine Protected Areas, Environmental Impact Assessment and… Fisheries?

As mentioned above, a new implementing agreement is also expected to contribute to the conservation and sustainable use of marine biodiversity beyond the genetic level, mainly through the use of area-based tools.

The role of a new agreement in relation to marine protected areas (MPAs) remains contentious, due to the fact that several existing agreements already provide for the creation of marine areas of special protection. The supporters of a new treaty, however, argue that these various, sectoral or regional agreements are not sufficient to create a globally representative network of multi-purpose MPAs. The question is therefore whether a new treaty is needed to provide procedures for the identification and designation of new multi-purpose MPAs at the global level, or for the global recognition of existing regional or sectoral MPAs. In addition, it remains to be clarified whether a global process should also establish management measures for these areas, and provide monitoring and surveillance, or even enforcement. Another option is for a global mechanism to provide recommendatory criteria and adopted guidelines to help existing competent bodies to identify, establish and manage MPAs.

With regard to environmental impact assessments (EIAs), UNCLOS already contains a general obligation, but questions are raised as to whether that provision is effective, either because implementation is patchy or more fundamentally, because the Convention lacks consideration of the cumulative impact of multiple stressors on the marine environment. For these reasons, countries supporting a new treaty envisage that the latter would establish common procedures and standards for assessment, monitoring, reporting and management of EIAs (which are also required under existing sectoral and regional agreements) leading to the development of a central information-sharing mechanism; or at least a recommendatory framework to develop capacity for the preparation and review of EIAs of activities in ABNJ that may pose a risk to biodiversity. One key question concerns the need for EIAs to be made public and subject to review by the international community.

NGOs have presented the most articulated proposal on EIAs for a new treaty, noting the need to provide for: criteria to identify the activities that might require EIAs and a threshold for carrying out EIAs; standards or guidelines for the conduct of EIAs; procedures for reporting, assessment, and monitoring of EIAs; verification and follow-up action; and the identification of the entities that should carry out the assessment and those to whom the results should be reported. NGOs also emphasized that activities in areas beyond national jurisdiction should be carried out only after having ascertained that they are regulated in line with UNCLOS; and that strategic environmental assessments should be required for programmes, plans or policies that may have a potential adverse impact on the marine environment or marine biodiversity in areas beyond national jurisdiction.

Both with regard to MPAs and EIAs, a looming question has been whether new rules would affect fisheries, and more generally whether a new treaty would also complement existing global rules on straddling and highly migratory fish stocks. Those opposing a new treaty have often argued that the inclusion of fisheries within the scope of a new implementing agreement is a red line, because fisheries are already regulated under the UN Fish Stocks Agreement, which supports a regional, rather than a global, approach through regional fisheries management organizations (RFMOs). Others, however, have argued that a new treaty could fill gaps in the Fish Stocks Agreement and UNCLOS, providing for more transparency with regard to RFMOs’ work on marine biodiversity in areas beyond national jurisdiction. The International Union for Conservation of Nature (IUCN) more specifically underscored the need for a formalized and institutionalized review process for RFMOs, coupled with a dispute resolution process.

What Kind of New Agreement?

Options concerning the legal nature of a new agreement have also been discussed within the Working Group, ranging from a legally binding instrument, possibly including a legally binding dispute settlement mechanism, to the better use of existing arrangements, such as the UN General Assembly itself and the development of voluntary guidelines for enhanced cooperation and coordination among other existing institutions.

The key question, however, remains the relationship of a new treaty or instrument with other instruments. What would be the value added? Many have pointed to a coordination role in the form of common objectives and guidelines for existing sectoral and regional regimes, with a view to facilitating information-sharing, providing mechanisms and incentives for cooperation and coordination, and reporting back to the global level. A new agreement or instrument could also raise awareness and possibly give broader application to best practices at the regional and sectoral levels.

Ultimately, it will be difficult for countries to exactly pin down the scope and parameters of a new agreement with a view to convincing all of its feasibility. Perhaps, as Argentina suggested in June 2014, the decision to launch formal negotiations rather depends on the extent of the procedural guarantees that can be offered to States with regard to future negotiations, such as a consensus package deal and an exhaustive delineation of the material mandate of the negotiations, including minimum details as to the extent of the incorporation of fisheries.

What Next?

The next meeting of the Working Group will convene from 20-23 January 2015. Delegates will likely focus on procedural issues, namely drafting a recommendation to the General Assembly as to whether to launch formal intergovernmental negotiations on a new international instrument on marine biodiversity in areas beyond national jurisdiction. The Co-Chairs have been mandated to prepare draft elements of recommendations as a basis for discussion in January 2015, together with an updated compilation of State submissions and a summary of discussions so far. And if consensus cannot be reached then, the launch of the negotiations on a new treaty may have to be decided by a majority vote in the General Assembly – this possibility was hinted at several times in the Working Group.



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