Delegates Conclude Discussions on Marine Genetic Resources, as Intergovernmental Conference Drafting Treaty under Law of Sea Convention Continues
Delegates today concluded their discussions addressing marine genetic resources, before returning to the topic of area-based management tools, including marine protected areas, as the intergovernmental conference tasked with drafting a legally binding treaty under the 1982 United Nations Convention on the Law of the Sea governing maritime diversity in ocean waters beyond national jurisdiction entered its eighth day.
Definitions to be included in the instrument, and its relationship with the Convention and other legal texts and frameworks governing the world’s oceans, were among the range of issues discussed, with speakers weighing in on how to proceed forward.
The representative of Ecuador emphasized that data resulting from marine genetic resources should be public and made available through a database. Open access does not, however, entail a lack of regulation or management. Reaffirming the principle of the common heritage of mankind, he said the instrument should include a list of yet-to-be-defined monetary and non-monetary benefits.
Jamaica’s delegate, also commenting on access to marine genetic resources in areas beyond national jurisdiction, underscored the need to strike a delicate balance. The instrument should account for situations that may require different levels of regulation, such as in vulnerable marine ecosystems. It should also require the payment of royalties for products developed from marine genetic resources.
Addressing the question of a data repository and clearing house mechanism, the representative of the International Seabed Authority highlighted the importance of ensuring that data be easily and freely available. Noting the lack of sufficient information on deep-sea taxonomy, he said the collection and sharing of information can help fill gaps in scientific knowledge while serving as a catalyst for future research.
The representative of the Convention on Biological Diversity drew attention to an overview document, prepared for the intergovernmental conference, on the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity.
Representing the World Intellectual Property Organization (WIPO), that speaker briefed the session on WIPO’s intergovernmental conference and its ongoing work in marine genetic resources. Noting that the intergovernmental conference is negotiating a consolidated document on intellectual property and genetic resources, she reviewed the various approaches under consideration. She also described WIPO’s work in capacity-building.
The representative of the International Council of Environmental Law stressed the importance of avoiding complex or burdensome requirements that might discourage scientific research or commercial development. She added that researchers would prefer a notice-based approach to access that would favour information sharing.
The intergovernmental conference then extended its discussion on marine genetic resources to address cross-cutting issues, including the use of terms, the treaty’s relationship to the Convention on the Law of the Sea and other instruments and frameworks, general principles and approaches, international cooperation, institutional arrangements and a clearing-house mechanism.
Egypt’s delegate, speaking for the “Group of 77” developing countries and China, took up the matter of general principles and approaches, noting that a complementary approach between the principle of the common heritage of mankind and principle of the freedom of the high seas could be considered. The instrument, through binding provisions, should set out the obligation of States to cooperate on marine genetic resources, with recognition of the need for capacity-building and the transfer of marine technology. On institutional arrangements, he suggested that the conference study existing organizations to consider lessons learned and best practices.
Algeria’s representative, speaking for the African Group, proposed that marine genetic resources be defined in the instrument as any plant, animal or microorganism found or originating in marine areas beyond national jurisdiction, having functional units of heredity, as well as any material, derivative and/or data thereof, with genetic and biochemical properties of actual or potential value.
Speaking for the Alliance of Small Island States (AOSIS), Maldives’ delegate said that marine genetic resources and their use, as well as derivatives and access, should be defined in the instrument, which would also include a provision on its relationship with the Convention on the Law of the Sea and other instruments and frameworks. General principles of the instrument should include freedom of the high seas, the common heritage of mankind, the right to carry out scientific research, equitable benefit-sharing, and the special case of small island developing States, among other things.
The representative of Barbados, speaking for the Caribbean Community (CARICOM), said a track-and-trace regime for marine genetic resources under the instrument would include a clearing house mechanism. The instrument should define such key terms as marine genetic resources, their utilization and derivatives. It should also set out its relationship with other texts and reaffirm the duty of States to cooperate in matters concerning marine genetic resources.
However, the European Union’s representative stressed that it is premature to focus on definitions at this stage. Rather, discussions should move forward based on working definitions drawn from existing instruments. The instrument under negotiation should be interpreted in a manner consistent with the Law of the Sea Convention and should not undermine the rights and duties of States under that text. The European Union does not favour the elaboration of additional general principles in the instrument, he added.
Pointing out that her group is “all about practicality”, Nauru’s delegate, speaking for the Pacific small island developing States, underscored the obligation to report the use of marine genetic resource. Biotechnology should be among the terms to be identified in the text. In addition, she proposed that the secretariat to be created by the instrument oversee a clearing-house mechanism. Emphasizing the special case of small island developing States, she recommended that the secretariat also play a role in responding to non-compliance of the instrument’s provisions.
The observer of the Holy See noted that while oceanographic exploration is currently driven by Governments, academia and competent organizations, the future role of the private sector cannot be overlooked. Emphasizing the role that could be played by environmental, social and governance risk management criteria, she compared the oceans to outer space, where recent years have seen more private sector activity. Without regulation, the question of which country will be responsible for technology deployed by transnational corporations will prove elusive. On the African Group’s proposed definition of marine genetic resources, she wondered if it should include viruses as well.
The representative of the United States voiced his agreement with the European Union on both the monitoring of the use of marine genetic resources and cross-cutting elements. On definitions, he recalled a series of those which his delegation submitted in December 2016.
Japan’s delegate, recalling that the usefulness of deep-sea species had been recognized several decades ago, said the instrument should be consistent with the Law of the Sea Convention, with a mechanism for tracing users of marine genetic resources for the purpose of benefit-sharing. He went on to discuss the role that genetic barcoding could play in addressing illegal fishing.
China’s representative emphasized that the instrument should explicitly state it does not undermine existing instruments and frameworks or the authority of international, regional and sectoral bodies. Its principles should include, among other things, marine research and exploitation for peaceful purposes, the promotion of research, and intergenerational equality. The conference of the parties and the secretariat could be tasked with the management of provisions regarding marine genetic resources, including benefit-sharing. He added that all countries should have access to a clearing house mechanism.
Weighing in on the matter, the representative of Chile said the implementing agreement should include a way to monitor marine genetic resources.
The conference then resumed its discussion on area-based management tools, including marine protected areas, with observer groups invited to share their views on possible approaches and processes.
The representative of the International Union for Conservation of Nature and Natural Resources (IUCN) said effective conservation and sustainable use of marine biodiversity will require cooperation at all levels. She underscored the need to enhance the role and effectiveness of sectoral and regional organizations vis-à-vis marine protected area. She added that decisions regarded area-based management tools should not require consensus.
Also speaking were representatives of the OSPAR Commission, North Pacific Fisheries Commission, Conference on Biological Diversity, Food and Agriculture Organization, Pew Charitable Trusts, World Wildlife Fund and International Cable Protection Committee.
The conference then turned to questions relating to the implementation, monitoring and review of provisions concerning area-based management tools, including marine protected areas.
Speaking for the Group of 77, Egypt’s representative said communication and monitoring protocols are needed to assess the effectiveness of area-based management tools. Reporting obligations and timelines should be established, along with a system for compliance. A scientific technical body, working in coordination with the secretariat, would report to States parties.
The representative of Algeria, speaking for the African Group, proposed that a marine protected area cease to be enforced or amended, should such an area, for whatever reason, fall within the zone of a sovereign State.
The European Union’s delegate said the implementing agreement should reiterate the responsibility of States parties to implement management plans to meet the conservation objectives of marine protected areas. It should promote cross-sectoral coordination and cooperation between international organizations. Nothing in its provisions would prevent States parties from adopting their own stricter measures. The instrument should also establish a regular review process for marine protected areas, he said, adding however that the European Union did not agree with the idea of timebound measures.
Nauru’s delegate, speaking for the Pacific small island developing States, noted that the obligation to cooperate is provided in the Convention on the Law of the Sea. The new instrument would assist in operationalizing that. Emphasizing the importance of scientific bodies in the elaboration of criteria standards, she reiterated her suggestion of establishing a committee working group on a regional platform. Another important element is the inclusion in subsidiary bodies of experts from the small island developing States or Pacific small island developing States.
The observer of the Holy See said that action by sectoral and regional organizations may be legally limited to a specific mandate and not cover all activities. Activities in many parts of the ocean are either unregulated or have little capacity for monitoring enforcement. Given the geographic and jurisdictional challenges, she offered several suggestions, including the consideration of economic tools. Such tools are easier to apply because the impact on users is immediate. These tools could possibly include fees and charges, taxes, and licensing dues. Economic tools taken to prevent action are more effective than physical enforcement, she emphasized.
Chile’s delegate said it is important to include a periodic review mechanism to monitor, ensure oversight, and encourage and improve enforcement. Regarding evaluating the effectiveness of area-based management tools, it is essential to create a scientific committee that could play a crucial role. The ultimate aim should be to issue recommendations focused on reaching specific goals set by the new mechanism.
The representative of Nigeria said it is important to ensure transparency in all activities, particularly for developing countries that lack capacity in important areas. He welcomed the establishment of a technical committee that could assist conference of parties to get on the right track. Addressing general principles and approaches, he said that good environmental governance — which includes transparency and full access to information — should focus on ensuring fairness to all parties. He also added that he is not opposed to using existing mechanisms when and if they are applicable and relevant.
China’s delegate, associating himself with the “Group of 77”, recommended that the new instrument encourage cooperation, which would promote the achievement of the objectives of area-based management tools. The new instrument should contain clear provisions of monitoring and review related to area-based management tools to be conducted by the scientific and technical committees and submitted to the conference of parties. He highlighted the need to include various principles, including the principle of international cooperation, and recommended the establishment of an information platform where data can be shared.
Also speaking were representatives of Mexico, Papua New Guinea, Philippines, Norway, Costa Rica and Canada, as well as the High Seas Alliance and International Union for Conservation of Nature and Natural Resources.
Providing reflection on the varied subjects covered in the informal working groups, Israel’s representative said his country was a coastal State and viewed the high seas as treasures that belonged in line with the principle of common heritage of mankind. Reiterating concerns voiced by many, he stressed the need for synergy between the new instrument and existing mechanisms, particularly those pertaining to the Mediterranean Sea. The new instrument should strengthen such instruments and avoid duplication and redundancy.
Turning to the agenda item on “other matters”, the conference took up consideration of the dates of its second and third sessions, with the Secretary announcing that the former will take place from 25 March to 5 April 2019, and the latter from 19 to 30 August 2019.
Egypt’s delegate, speaking for the Group of 77, said it is important for Member States to have enough time to prepare for the conferences and for the dates to avoid overlap with other meetings, and also ensure the ability of the Secretariat to provide necessary support. He welcomed the dates as acceptable options.
Also speaking on procedural matters were representatives of Maldives (for the Alliance of Small Island States) and the European Union.
Convened pursuant to General Assembly resolution 72/249, the session — continuing through 17 September — is seeking to elaborate the text of an international legally binding instrument under the 1982 United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
The session is the first in a series, with the second and third to take place in 2019 and the fourth and last session planned for the first half of 2020.
The conference will meet on Friday, 14 September, to continue its work.