20 September 2018: The first session of the Intergovernmental Conference (IGC) on an international legally binding instrument (ILBI) under the UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) considered a document prepared by the IGC President, which aimed at leading to substantive discussions based on the elements of a package agreed in 2011 on: marine genetic resources (MGRs), including questions on benefit-sharing; environmental impact assessments (EIAs); area-based management tools (ABMTs), including marine protected areas (MPAs); and capacity building and marine technology transfer (CB&TT).

Following more than a decade of discussions convened under the UN General Assembly (UNGA), the Assembly, in its resolution 72/249 of 24 December 2017, decided to convene an IGC to elaborate the text of an ILBI under UNCLOS on the conservation and sustainable use of BBNJ, with a view to developing the instrument as soon as possible. The IGC will meet initially for four sessions, with the second and third taking place in 2019, and the fourth in the first half of 2020. IGC-1 convened from 4-17 September 2018, at UN Headquarters in New York, US.

IGC-1 made some progress in clarifying delegations’ positions on the elements of the package and tabling more detailed options for a process on ABMTs. Several participants stressed the need to proceed on the basis of a zero draft of the ILBI to fully switch into negotiating mode at the next session. IGC President Rena Lee suggested preparing a document that would not be labelled “zero draft,” to facilitate text-based negotiations, containing treaty language and reflecting options on the four elements of the package, taking into account all inputs during IGC-1 as well as the Preparatory Committee’s report, well in advance of IGC-2.

IGC President Lee will prepare a document to facilitate focused discussions and text-based negotiations at IGC-2.

According to the Earth Negotiations Bulletin (ENB), significant divergence resurfaced in relation to EIAs. IGC-1 negotiators were not quite ready to respond to the outstanding issue of whether the ILBI will provide for an internationalized decision-making mechanism against which the standards and thresholds set under the instrument will be assessed or if the decision making will be conducted at the national level, and the ILBI would merely serve as an information-sharing mechanism. Other unresolved issues include whether or not to integrate provisions on strategic environmental assessments (SEAs), which would, according to some, facilitate the assessment of cumulative impacts, act as a capacity-building tool, and assist in the development of ABMTs. While some pointed out that SEAs are a type of EIA, as per the Convention on Biological Diversity (CBD) Article 14, others argued that SEAs are not supported by UNCLOS. Another pointed to disagreements regarding the inclusion of mandatory provisions on cumulative impacts, which to some appear crucial to understanding the ability of marine ecosystems to cope with the effects of climate change and ocean acidification. According to the ENB, the issues are quite clearly identified, and several options have been tabled, but it remains to be seen if articulating options in treaty language will help IGC-2 to start identifying solutions.

The ENB observes that IGC-1 delegates made the most progress on ABMTs, with clearer and more elaborate positions on procedural as well as substantive matters, even though a wide range of positions on key components continue to characterize the discussions. Some delegations and civil society have advocated a global approach, entailing the creation of a new global decision-making body to coordinate existing regional and sectoral institutions and fill gaps. Others have argued that regional bodies are already well placed and have significant expertise to create and manage ABMTs, so efforts should focus on enhancing their efforts and coordination among them. Yet others have indicated that combining the two proposals is possible through various hybrid approaches. There was no disagreement that all approaches will have to involve the sectoral bodies as well as regional fisheries management and regional seas bodies. The key outstanding question related to the degree of their involvement vis-à-vis a global decision-making body established under the ILBI.

In concluding remarks, IGC President Lee said that the IGC is “firmly on the path to achieving its mission,” and welcomed “some meeting of the minds” around ABMTs, including MPAs, and “encouraging level of detail” in proposals related to EIAs. She asked delegates to consider the various proposals put forward during IGC-1 to facilitate continued progress at IGC-2. She informed participants that she will prepare a document to facilitate focused discussions and text-based negotiations at IGC-2, including on MGRs, EIAs, ABMTs and CB&TT. [IISD ENB Summary of IGC-1] [IISD RS Coverage of IGC-1] [UN Meeting Coverage from 4 September] [UN Meeting Coverage from 5 September] [UN Meeting Coverage from 6 September] [UN Meeting Coverage from 7 September] [UN Meeting Coverage from 10 September] [UN Meeting Coverage from 11 September] [UN Meeting Coverage from 12 September] [UN Meeting Coverage from 13 September] [UN Meeting Coverage from 14 September] [UN Meeting Coverage from 17 September]