UN Committee Begins Work on High Seas Biodiversity Pact

14 April 2016

The first session of a preparatory committee tasked with elaborating draft elements for an international, legally binding instrument on marine biodiversity in areas beyond national jurisdiction started unpacking several key topics with an eye on practical advancement, according to reports from the 28 March – 8 April meeting.

During the session, held at UN headquarters in New York, many delegations moved past debates on the usefulness of a new instrument that have stalled previous efforts, according to Earth Negotiations Bulletin (ENB). They instead began detailed exchanges on “how” to put such an instrument in place, given the pressures facing today’s complex marine and environmental governance landscape.

Discussion included consideration of the new instrument’s relationship with existing tools and bodies, guiding principles and approaches, marine genetic resources, environmental impact assessments, capacity building, and technology transfer, among other things.

"The constructive discussion and active participation in the room on all elements of the package bode well for the next PrepCom session,” said Jessica Battle, Marine Manager, WWF International, at the close of the talks last week. 

Following nearly nine years of deliberations, UN members agreed last June to launch a process to develop the instrument under a dedicated working group. The new multilateral pact would sit under the UN Convention on the Law of the Sea (UNCLOS) and should at its core better address the conservation and sustainable use of marine resources found on the high seas and on the international seabed.

The preparatory committee should make a recommendation on elements for the instrument to the UN General Assembly, which will decide in 2018 whether to convene an international conference to elaborate the text of the agreement. (See BioRes, 23 June 2015 and 29 January 2015)

Under UNCLOS, coastal states enjoy sovereign rights over the natural resources found in areas extending up to 200 nautical miles from the coast, with around 64 percent of the oceans consequently lying beyond the jurisdiction of any one country.

These “high seas” and the international seabed are home to a diverse array of marine wildlife and deliver essential ecosystem services such as carbon storage. Campaign groups have long argued that specific international governance gaps exist around these areas, leading to concerns around overfishing, unsustainable use, marine pollution, and biodiversity loss.

Relationship with existing forums

According to media reports, the meeting served to emphasise the universe of tools partially relevant to the new instrument. Emerging questions to be tackled in future sessions include how the instrument will interact with other relevant forums.

For example, the 1992 Convention on Biological Diversity (CBD) regulates biodiversity issues and includes a definition of “ecologically or significant marine areas” (EBSAs). Furthermore, the UN Food and Agriculture Organization (FAO) has developed international guidelines for the management of deep-sea fisheries in the high seas, and the International Maritime Organization (IMO) includes in its work a focus on preventing marine pollution.

A UN Fish Stocks Agreement assists the conservation and management of straddling and highly migratory fish stocks. An additional 30 existing fisheries management and advisory organisations are also responsible for a range of stocks found in the high seas.

In some cases, therefore, the new instrument could engage with international and regional efforts to manage highly traded and commercially significant marine resources. For example, tuna species – all of which are high migratory between national jurisdictions and across the high seas – account for nearly 20 percent of the landed value of the global total marine fish catch, according to the FAO.

Marine genetic resources approach

The preparatory committee talks did feature familiar divergences between member states over the treatment of marine genetic resources (MGRs) and appropriate definitions.

The G77 and China negotiating group, for its part, argued that these resources should be treated as common heritage, while others favoured the freedom of exploitation approach.

While the seabed beyond 200 nautical miles has traditionally been considered the “common heritage of mankind,” implying that these should not be unilaterally exploited – with a separate UNCLOS instrument governing seabed mineral mining – a regime of freedom of exploitation has been applied to living resources in the high seas.

Some states also support explicitly including fish in the definition of MGRs, while others oppose this, along with the inclusion of commodities. Costa Rica and other Pacific island nations, meanwhile, proposed differentiating between fisheries as a commodity and as a source of genetic information.

MGRs already form the basis for over 18,000 natural products in the pharmaceutical and cosmetic industries. Although many of the marine species involved are sources located in exclusive economic zones (EEZs), and bio-prospecting in the high seas is currently limited to a few actors, the approach adopted by the new instrument will define commercial terms of access in these areas moving forward.

On intellectual property rights in relation to MGRs, the EU, US, Japan, and Canada cautioned against taking up the topic and duplicating mandates given to the WTO and the World Intellectual Property Organization (WIPO), while others favoured discussion and supported the need for patent disclosure to ensure transparency in eventual access and benefit sharing (ABS) regimes.

ABS models

Countries also started to discuss potential arrangements for access and benefit-sharing around marine genetic resources in areas beyond national jurisdiction, often referring to existing schemes for other types of genetic material.

This includes the Nagoya Protocol under the CBD, which seeks to ensure genetic resources are appropriately valued and benefit sharing provided for as monetary and non-monetary compensation.

Some interventions referred to the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) as a useful general model. The treaty establishes a multilateral system under which selected crops are exchanged without individual regulation, subject to a standard contract.

Other interventions, however, supported defining a new or “sui generis” approach able to address the practical challenges faced by MGR definitions and ABS. Questions around the viability of voluntary non-monetary benefit-sharing were also debated.

The G77 and China, meanwhile, reportedly suggested that ABS systems take into account developments in the digital economy. This would imply that access to digital genetic information – a trend in bio-based research – should be treated on par with physical access to the resource.

Next steps

The next preparatory session will be held from 26 August to 9 September in New York and will address MGRs, area-based management tools, environmental impact assessments, capacity building, and marine technology transfer. Two additional meetings are planned for next year.

According to a procedural roadmap presented by the chair of the talks, Eden Charles, Deputy Permanent Representative of Trinidad and Tobago, the August session will feature informal working groups on key topics with plenary sessions geared towards “parking” issues that have drawn consensus and discussing next steps.

Several other upcoming meetings on the international agenda could see developments relevant to the marine biodiversity talks. A review of the UN Fish Stocks Agreement is scheduled to take place in New York on 23-27 May. The exercise should assess the adequacy of the pact and, if necessary, propose ways to strengthen its implementation.

A workshop on bottom fishing on 1-2 August will discuss the implementation of UN General Assembly resolutions on sustainable fisheries, specifically regarding the impacts of bottom fishing on vulnerable marine ecosystems and the long-term sustainability of deep-sea fish stocks.

Officials will likely also be tracking the status of the FAO’s Port State Measures Agreement (PSMA), geared towards preventing catch from illegal, unreported, or unregulated (IUU) fishing from being brought into ports. Two more ratifications are required to bring the deal into force, which could help clamp down on illegal fishing activity in the high seas by cutting off access to national and global markets.

ICTSD reporting; “Summary of the First Session of the Preparatory Committee on Marine Biodiversity of Areas Beyond National Jurisdiction: 28 March - 8 April 2016,” EARTH NEGOTIATIONS BULLETIN, 11 April 2016.

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