Experts working to draft a new treaty on biodiversity in areas of the ocean beyond national jurisdiction today weighed provisions aimed at prohibiting States from claiming sovereignty over marine genetic resources in those areas, with speakers diverging on the question of whether their use is the “common heritage of mankind”.
Discussions on these and other issues are taking place at Headquarters during the third session of the International Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The session runs through 30 August.
Topics considered today included international cooperation and principles and approaches, as well as the definitions of such terms as “access” and “marine genetic material” which appear throughout the draft treaty (document A/CONF.232/2019/6). Speakers also outlined a range of views on article 9 of the instrument, which focuses on activities related to marine genetic resources and touches on issues of sovereignty, jurisdiction and the interests of coastal States. On paragraph 1 of that section, the observer for the State of Palestine, on behalf of the “Group of 77” developing countries and China, generally agreed with its contents but proposed adding a reference to States parties.
The representatives of Brazil (on behalf of the Group of Like-Minded Latin American Countries), Algeria (on behalf of the African Group), Fiji (on behalf of the Pacific small island developing States), Indonesia, Nigeria and Sri Lanka were among speakers associating themselves with that position.
However, the representative of the European Union expressed concern that the scope of paragraph 1 lacks sufficient precision in its current formulation. He, therefore, proposed adding a specific reference to marine scientific research activities in both the title and body of article 9. Among other modifications, he said the phrase currently reading “Activities with respect to marine genetic resources of areas beyond national jurisdiction may be carried out by all States” should also include the specification “irrespective of their geographic location”.
The representatives of Barbados, speaking on behalf of the Caribbean Community (CARICOM) and associating herself with the Group of 77, said the scope of article 9 should go beyond scientific research and rejected the European Union’s proposal. Australia’s representative — echoed by that of the Republic of Korea — expressed concern that the article in its current form could undermine the marine scientific research provisions of the United Nations Convention on the Law of the Sea. Noting that the intent of the article is already sufficiently covered in other sections, she proposed that article 9 be deleted but said she is also willing to consider other proposals put forward today.
The representative of the Russian Federation cautioned against the “selective quoting” of the Convention on the Law of the Sea, warning that inaccuracies or generalizations in such references to that instrument “only complicate the situation even more”.
Turning to paragraph 2 — whose current formulation calls for marine genetic resource activities to be conducted “with due regard for the rights and legitimate interests of any coastal State under the jurisdiction of which such resources are found” — Switzerland’s delegate called for its deletion, noting that it deals with bilateral and multilateral matters that go beyond the scope of the treaty. The representatives of Norway, the Russian Federation and the United States were among those supporting that position, with the latter stressing that “coastal States, as such, do not have jurisdiction beyond their national jurisdiction”.
However, many speakers rejected that proposed deletion, including the representatives of Fiji (on behalf of the Pacific small island developing States), Philippines, Sri Lanka, Seychelles, Cuba, Morocco, Ghana, Malaysia and Senegal. Explaining his delegation’s position, the representative of Mauritius said paragraph 2 and its references to the rights and interests of coastal States is particularly valuable to small island developing States and others with extended continental shelves, where marine genetic resources are likely to be found.
Having listened to those concerns, China’s representative said that — while his delegation does not recognize the rights of coastal States in areas beyond their national jurisdiction — today’s debate raises important legal issues that warrant further consideration and discussion.
Regarding paragraph 3, which in its current form dictates that “No State shall claim or exercise sovereignty or sovereign rights over marine genetic resources of areas beyond national jurisdiction,” the observer for the State of Palestine outlined the Group of 77’s view that the paragraph should be retained in its entirety. However, Fiji’s representative — speaking on behalf of the Pacific small island developing States — underlined the need to further protect the rights of States with continental shelves. As such, her delegation submitted a proposal for revised language regarding the exploitation of resources, which she said would require the “prior and informed consent” of coastal States and is based on language agreed in the Convention on the Law of the Sea.
The representatives of Japan, the Republic of Korea, the Russian Federation and others also voiced concern about paragraph 3, with several calling for its deletion. The representative of the United States — while agreeing that no State can claim sovereignty over marine genetic resources in areas beyond national jurisdiction — said her delegation nevertheless does not support the principle those resources are the common heritage of humankind. The United States has, therefore, submitted alternate language to that effect, she said.
Participants broadly supported the spirit of paragraph 5, which stipulates that activities related to marine genetic resources in areas beyond national jurisdiction must be carried out “exclusively for peaceful purposes”. However, several speakers, including the representatives of Australia, the United States and Switzerland, questioned its placement, with the latter suggesting that it would be better placed in the treaty’s preambular section.
Turning to Article 4 on “Relationship between this Agreement and the Convention and other [existing] relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”, delegations deliberated on its fourth paragraph which reads: “[4. The provisions of this Agreement are not intended to affect the legal status of non-Parties to the Convention or any other related agreements with regard to those instruments.]”.
The representative of the European Union delegation proposed deleting the paragraph, adding that the bloc aims for universal participation of the agreement and fully anticipates non-parties to the 1982 United Nations Convention on the Law of the Sea to become party to this one. The paragraph’s inclusion is not necessary in this agreement as participation of the implementing agreement cannot affect Member States’ participation in other aspects of law of the sea. Its mention could question the very nature of the instrument as an implementing tool, could undermine the Law of the Sea agreement and constitute a dangerous precedent.
The Republic of Korea also proposed deleting the paragraph, adding that it could possibly provide confusion in the future. The delegate from Australia said that the paragraph is unhelpful and unnecessary. The delegate from Norway said the Article’s third paragraph states “what is already obvious and because of that there is no need”. Many speakers, including the representative of Canada, said that the paragraph could create misunderstanding and unintended consequences. Iceland’s delegate said he is also “sceptical” of having this paragraph in the agreement, adding that its inclusion could raise questions on whether general treaty law applies.
The observer for the State of Palestine proposed keeping the sentence but removing its brackets. Other speakers expressed support to keeping the paragraph as well, including Indonesia’s representative who said the text is reflective of international law. Iran’s delegate emphasized that the paragraph could help with the universality of the agreement. Turkey’s representative, echoing the calls of several Member States, proposed opening the brackets as well. He also expressed reservations to several positions of the Convention, adding “we do not want in the future to have anything registered against us as non-parties” to that agreement.
Moving on to Article 6 on international cooperation, delegations considered its three paragraphs with the representative of the European Union delegation proposing the addition of a new paragraph “1bis” which would read: “A State Party that is a party to a relevant legal instrument, framework, or global, regional or sectoral body, shall endeavour to promote the objectives of this Agreement when participating in decision-making under other instrument, framework or body.”
Other delegations suggested language amendments, with the representative of Jamaica, speaking on behalf of CARICOM, emphasizing that paragraph 2 captures important points. On paragraph 3, she said the focus of Article 6 should correctly be dependent on international cooperation. Japan’s representative said that paragraph 2 is not necessary but if it is retained the Article mentioned therein should be another one. He also proposed deleting paragraph 3 which reads: “[3. States Parties shall cooperate to establish new global, regional and sectoral bodies, where necessary, to fill governance gaps.]”.
The representative of the United States said the final phrase at the end of paragraph 1 which reads, “in the achievement of the objective of this Agreement” is unnecessary because the objective of achieving the agreement is clearly stated in the beginning of the paragraph. Member States made various suggestions to the three paragraphs including the representative of Argentina who echoed the proposal of several delegations to delete paragraph 3 as well.
On Article 5 which is titled General [principles] [and] [approaches], the representative of Colombia, on behalf of Like-Minded Latin American Countries, said the clause must be cleaned up as “not everything belongs together”. The representative of Jamaica said that paragraph D is not clear. Terminology used should be universally understood, she added. The representative of the Russian Federation said he is not fully certain that what is contained in Article 5 can be called “principles and approaches”. Norway’s delegate said that the heading of the Article will be dependent on its content.
China’s delegate said that, if needed, there could be a provision containing general principles. However, approaches do not have that function, proposing the deletion of “approaches” in the title. It is vital to select those norms that are recognized and accepted by States and that are universally binding. Paragraphs A, E, F and G are not clear, nor are they well recognized and accepted by States. Paragraphs B, C and D are either applicable only to parts of the agreement or a specific number of provisions, China’s delegate said, expressing concern that they may not carry significance. Switzerland’s delegate proposed deleting E, F and G and suggested the title contain the word “principles”.
In a general discussion on principles to be highlighted in the instrument, both in Article 5 and throughout, the observer for the State of Palestine, on behalf of the Group of 77, underscored the importance of including the principle of common heritage of mankind. Algeria’s delegate, on behalf of the African Group, proposed a transparency principle to be included in the instrument. Jamaica’s delegate, on behalf of CARICOM, said there must be a cohesive list of principles, including the common heritage of mankind and “polluter pays” principle. Nauru’s delegate, on behalf of Pacific small island developing States, said the ambitious instrument should consider the effects of climate change on the ocean’s health.
In other business, the representative of Fiji (on behalf of the Pacific small island developing States) proposed a new article drafted by the Group of Friends of Traditional Knowledge on related items considered in recent days.
Also speaking today were the representatives of Togo, Cameroon, Dominican Republic, Eritrea, Singapore and Belize, as well as the observer for the Holy See.
The representatives of the International Council of Environmental Law, International Seabed Authority, International Union for the Conservation of Nature, International Maritime Organization (IMO), World Wide Fund for Nature, ICPC, High Seas Alliance and the Food and Agriculture Organization of the United Nations (FAO) also participated.