24 July 2017: The fourth session of the Preparatory Committee (PrepCom) on the elements of a draft text of an international legally binding instrument (ILBI) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) under the UN Convention on the Law of the Sea (UNCLOS) concluded with the adoption of an outcome by consensus. The outcome includes non-exclusive elements of a draft ILBI text that generated convergence among most delegations, a list of main issues on which there is a divergence of views, with the indication that both do not reflect consensus. It also includes a recommendation to the UN General Assembly (UNGA) to take a decision, as soon as possible, on the convening of an intergovernmental conference (IGC).

The Earth Negotiations Bulletin notes that the PrepCom outcome was adopted following informal, closed-door negotiations, informal bilateral consultations with Chair Carlos Sobral Duarte, and regional coordination meetings that continued into the evening of the last day. Most delegations considered that the PrepCom had completed its mandate, although a few cautioned against prejudging the General Assembly’s decision on convening an IGC. To distinguish among areas on which there is consensus and areas on which there is a divergence of views, the outcome document uses the terms “would” and “could”. One of the main areas of contention was whether the decision to convene an IGC on negotiating a treaty was to be left to the UN General Assembly (UNGA), after the end of the PrepCom, exclusively on the merits of the PrepCom’s substantive outcome.

One of the main areas of contention was whether the decision to convene an IGC was to be left to the UNGA, and based exclusively on the merits of the PrepCom’s substantive outcome.

On the draft elements of the ILBI, the final recommendation sets out broad contextual issues, such as, inter alia: a description of the considerations that led to the ILBI development; a recognition of the central role of the UN Convention on the Law of the Sea (UNCLOS) and the role of other existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies for BBNJ conservation and sustainable use; a recognition of the need to enhance cooperation and coordination for BBNJ conservation and sustainable use; a recognition of the need for assistance to countries; a recognition of the need for the comprehensive global regime to better address BBNJ conservation and sustainable use; an expression of conviction that an agreement for the implementation of the relevant UNCLOS provisions would best serve these purposes and contribute to the maintenance of international peace and security; and an affirmation that matters not regulated by UNCLOS, its implementing agreements or the ILBI continue to be governed by the rules and principles of general international law.

On general elements, the final recommendation states the ILBI would, inter alia: provide definitions of key terms; apply to ABNJ; state that the rights and jurisdiction of coastal states over all areas under their national jurisdiction; address BBNJ conservation and sustainable use, in particular, together and as a whole, marine genetic resources (MGRs), including questions on the sharing of benefits, measures such as area-based management tools (ABMTs), including marine protected areas (MPAs), environmental impact assessments (EIAs) and capacity building and technology transfer (CB&TT); set out that the ILBI objective is to ensure BBNJ conservation and sustainable use through effective implementation of UNCLOS; state that nothing in the ILBI shall prejudice the rights, jurisdiction and duties of states under UNCLOS; state that the ILBI shall be interpreted and applied in the context of and in a manner consistent with UNCLOS; promote greater coherence with and complement existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies; and state that the ILBI should be interpreted and applied in a manner that would not undermine these instruments, frameworks and bodies.

In addition, the ILBI could: set out exclusions from the ILBI scope and address, consistent with UNCLOS, issues relating to sovereign immunity; set out additional objectives, if agreed, such as furthering international cooperation and coordination, to ensure the achievement of the overall objective of BBNJ conservation and sustainable use; and recognize that the legal status of non-parties to UNCLOS or any other related agreements with regard to those instruments would not be affected.

The outcome document further addresses issues related to, inter alia: principles and approaches; marine genetic resources; area based management tools; environmental impact assessments; capacity building and knowledge transfer institutional arrangements; clearinghouse; financial mechanism; compliance; dispute settlement; and responsibility and liability.

This final PrepCom session convened the 10-21 July 2017, at UN Headquarters in New York, US. [IISD RS Coverage of BBNJ]