Formal Negotiations on UN High Seas Biodiversity Pact Get Underway

20 September 2018

On Monday 17 September, UN negotiators concluded a first session of talks towards the establishment of a global treaty to protect marine biodiversity in the high seas, setting in motion a two-year process which, proponents say, could resolve long-standing gaps in international environmental governance. 

The formal body responsible for the negotiations, an intergovernmental conference (IGC) under the UN Convention on the Law of the Sea (UNCLOS), was tasked by the UN General Assembly in December 2017 with developing an international, legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). 

The proposed UN agreement will aim at realising this objective by establishing global rules on various topics, including the creation of marine protected areas, the use of genetic marine resources, the assessment of environmental impacts, and capacity building and marine technology transfer.

Supporting environmental governance

In opening this first session of the IGC, the conference’s President, Ambassador Rena Lee of Singapore, insisted on the urgent need to change the way marine resources and biodiversity are governed globally. She said that the conference constitutes an opportunity to “make a difference on how we manage the oceans while we still can.”

She also recognised, however, that reaching an agreement will not be easy, especially given “the enormity of tasks, complexity of issues, and variety of views held.”

Although the high seas account for almost half of the earth’s surface, many observers have long highlighted that governance is usually very weak in these areas, especially when it comes to environmental protection and the conservation of marine biodiversity. Given that oceans are facing increasing pressure from commercial activities, such as fishing, mining, prospecting, and pollution, this situation has raised significant and growing concern in recent years.

Overexploitation of these resources, experts warn, could also have implications for communities who have long relied on their use for their economic security and livelihoods; for trade in marine resources; and for the health and long-term viability of marine ecosystems and the valuable services they provide.

“The seas and oceans, which have acquired unprecedented commercial value and have become a major source of global nutrition, have also been the subject of considerable international rule making, most of it piecemeal. An estimated 200 million people worldwide make a living from fishing and related activities – mostly in poor developing countries,” said Palitha Kohona in a piece published by the Business Mirror this week. Kohona is the former Sri Lankan Ambassador to the UN and previously co-chaired a working group that was tasked with an earlier stage in the BBNJ process.

Fishing has drawn particular scrutiny, with various experts and organisations sounding the alarm over the unsustainability of current fishing levels and practices, which have already led in various cases to the depletion of fish stocks. According to the UN Food and Agriculture Organization’s (FAO) latest State of the World Fisheries and Aquaculture report, 33.1 percent of marine fished stocks were overfished in 2015, a proportion that has more than tripled over the past four decades. 

Indeed, parallel efforts are underway in different negotiating forums to address concerns over unsustainable fishing practices. For example, negotiators at the Geneva-based World Trade Organization (WTO) are aiming to craft binding disciplines on fisheries subsidies, namely those that contribute to illegal, unreported, and unregulated (IUU) fishing; fishing of overfished stocks; and overfishing and overcapacity. Those talks resumed in the Swiss city last week, with an intense work programme of meetings planned through the end of the year. 

The inclusion of a dedicated SDG on “life below water,” dealing with various facets of marine preservation and conservation, has also been credited by various environmental advocates and governmental officials as providing a useful source of momentum for these processes, many of which date back years, by adding to the sense of urgency of the environmental, economic, and social risks of inaction. 

A long process

A new UN pact on marine biodiversity in the high seas would be the culmination of a process spanning over a decade. A working group was created in 2004 to examine issues related to the conservation and sustainable use of biodiversity in areas beyond national jurisdiction. 

After multiple meetings between 2006 and 2011, the working group adopted a series of recommendations, including a “package” of issues to be addressed. These involve marine genetic resources (MGRs), including questions on benefit-sharing; environmental impact assessments (EIAs); area-based management tools, including marine protected areas (MPAs); and capacity building and marine technology transfer. 

At its ninth meeting in February 2015, the group included in its recommendations the development of a legally binding treaty. The UN General Assembly followed this recommendation in July 2015 in the lead up to the adoption of the Sustainable Development Goals (SDGs) and established a preparatory committee to lay some of the groundwork for the IGC and formulate substantive recommendations on potential elements of a draft text. 

Towards negotiating mode at IGC-2?

During the first two-week session of the IGC, which kicked off on 4 September, negotiators considered an “aid” document prepared by the chair of the conference. Following the structure of this text, substantive discussions were structured around the four main topics included in the “package” of issues agreed in 2011. 

Four dedicated working groups addressed these topics, discussing the various options on the table for each of them, and giving delegations an opportunity to express their positions before reporting back to the plenary. 

At the end of the session, delegates seemed to manifest different feelings regarding the outcome of discussions, according to reporting by Earth Negotiations Bulletin (ENB).

While many negotiators said that the conference played a useful role in helping delegations to improve their mutual understanding of where the more difficult issues lie, others were more sceptical. “Pointing out divergent positions, especially when these positions run counter to each other, does not go a long way towards bridging them,” one delegate told the news outlet. 

Many delegations, however, seemed to agree that there is now a need to switch to negotiating mode, including through the production of some type of text by the conference’s president, Rena Lee. Some officials also issued public statements after this week’s talks praising the overall effort, and calling for strong, continued momentum in the months ahead. 

“This week’s negotiations mark a significant step towards international protection of marine biodiversity on the high seas,” said European Commissioner for Environment, Maritime Affairs and Fisheries Karmenu Vella. “The EU remains fully committed to delivering an effective legal instrument, with universal application, as soon as possible.” 

Rena Lee, the conference president, will now issue a text with treaty language by 25 February 2019 for negotiators to consider at the IGC’s second session. The document will aim to reflect the different options on the table based on this month’s discussions, with the aim of facilitating more focused deliberations and helping identify areas of convergence.

The text, however, will not be “a full treaty text,” noted Lee, emphasising that the process towards a “zero draft” needs to be state-driven. 

Three other two-week sessions of IGC talks are planned until 2020, with the next one expected to take place from 25 March to 5 April 2019, according to a press release from the European Commission. 

ICTSD reporting; “Earth Negotiations Bulletin, “BBNJ IGC-1 Highlights,” 5 September 2018; “Unclos expands to cover marine biodiversity,” BUSINESS MIRROR, 17 September 2018.

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