Focus on Arts and Ecology

The first session of the Intergovernmental Conference (IGC) on an international legally binding instrument under the UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) convened from 4-17 September 2018, at UN Headquarters in New York. Delegates considered a document prepared by the IGC President, which identified areas for further discussion not containing treaty text, aimed at leading to substantive discussions based on the elements of a package agreed in 2011 on:

IGC-1 made some progress in clarifying delegations’ positions on the elements of the package and tabling more detailed options for a process on ABMTs. Several participants stressed the need to proceed on the basis of a zero draft of the international legally binding instrument (ILBI) to fully switch into negotiating mode at the next session. President Lee suggested preparing a document that would not be labelled “zero draft,” to facilitate text-based negotiations, containing treaty language and reflecting options on the four elements of the package, taking into account all inputs during IGC-1 as well as the Preparatory Committee’s report, well in advance of IGC-2.

A Brief History of the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction

The conservation and sustainable use of BBNJ is increasingly attracting international attention, as scientific information, albeit insufficient, reveals the richness and vulnerability of such biodiversity, particularly around seamounts, hydrothermal vents, sponges, and cold-water corals, while concerns grow about the increasing anthropogenic pressures posed by existing and emerging activities, such as fishing, mining, marine pollution, and bioprospecting in the deep sea.

UNCLOS, which entered into force on 16 November 1994, sets forth the rights and obligations of states regarding the use of the oceans, their resources, and the protection of the marine and coastal environment. Although UNCLOS does not refer expressly to marine biodiversity, it is commonly regarded as establishing the legal framework for all activities in the oceans.

The Convention on Biological Diversity (CBD), which entered into force on 29 December 1993, defines biodiversity and aims to promote its conservation, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the use of genetic resources. In areas beyond national jurisdiction (ABNJ), the CBD applies to processes and activities carried out under the jurisdiction or control of its parties. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, which entered into force on 12 October 2014, applies to genetic resources within the scope of CBD Article 15 (Access to Genetic Resources) and to traditional knowledge associated with genetic resources within the scope of the Convention.

Following more than a decade of discussions convened under the United Nations General Assembly, the Assembly, in its resolution 72/249 of 24 December 2017, decided to convene an IGC to elaborate the text of an ILBI under UNCLOS on the conservation and sustainable use of BBNJ, with a view to developing the instrument as soon as possible. The IGC will meet initially for four sessions, with the second and third taking place in 2019, and the fourth in the first half of 2020.

Key Turning Points

Working Group: Established by General Assembly resolution 59/24 of 2004, the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of BBNJ served to exchange views on institutional coordination, the need for short-term measures to address illegal, unregulated, and unreported fishing and destructive fishing practices, MGRs, marine scientific research (MSR) on marine biodiversity, MPAs, and EIAs. It met three times from 2006 to 2010.

The “Package”: The fourth meeting of the Working Group (31 May-3 June 2011, New York) adopted, by consensus, a set of recommendations to initiate a process on the legal framework for the conservation and sustainable use of BBNJ, by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under UNCLOS. The recommendations also include a “package” of issues to be addressed as a whole in this process, namely: MGRs, including questions on benefit-sharing; measures such as EIAs and ABMTs, including MPAs; and CB&TT.

UN Conference on Sustainable Development (Rio+20): The UN Conference on Sustainable Development (20-22 June 2012, Rio de Janeiro, Brazil) expressed the commitment of states to address, on an urgent basis, building on the work of the Working Group and before the end of the 69th session of the General Assembly, the issue of the conservation and sustainable use of BBNJ, including by taking a decision on the development of an international instrument under UNCLOS.

A Legally Binding Instrument: Between 2014 and 2015, the Working Group engaged in interactive substantive debates on the scope, parameters, and feasibility of an international instrument under UNCLOS. At its ninth meeting, the Working Group reached consensus on recommendations for a decision to be taken at the 69th session of the UN General Assembly to develop a new legally binding instrument on BBNJ under UNCLOS, and to start a negotiating process to that end.

Preparatory Committee: Established by General Assembly resolution 69/292 of 2015, the Preparatory Committee (PrepCom) was mandated to make substantive recommendations to the General Assembly on the elements of a draft text of an ILBI under UNCLOS, taking into account the various reports of the Co-Chairs on the Working Group’s work; and for the Assembly to decide at its 72nd session whether to convene an IGC to elaborate the text of the ILBI. The PrepCom considered the scope of an ILBI and its relationship with other instruments, guiding approaches and principles, as well as the elements of the package. In spite of diverging views with a wide majority of countries arguing that the PrepCom had exhausted all efforts to reach consensus, the PrepCom outcome that was eventually adopted by consensus comprised:

IGC Organizational Meeting: The IGC organizational meeting took place from 16-18 April 2018. Delegates agreed to:

IGC-1 Report

Opening the IGC on Tuesday, 4 September, IGC President Rena Lee (Singapore) stressed that despite “the enormity of tasks, complexity of issues, and variety of views held,” the IGC represents an opportunity to “make a difference on how we manage the oceans while we still can.” She recommended working openly, transparently, and inclusively.

Miguel de Serpa Soares, Secretary-General of the IGC, Under-Secretary-General for Legal Affairs and UN Legal Counsel, stated, on behalf of UN Secretary-General António Guterres, that “the path to this day has been long but fruitful”; emphasized the collegial atmosphere during the IGC organizational meeting; and stressed that the spirit of cooperation must prevail in recognition of the vital importance of the conservation and sustainable use of BBNJ.

Delegates approved the agenda (A/CONF.232/2018/4) without amendments, and the programme of work (A/CONF.232/2018/5). IGC President Lee proposed discussing the elements of the package in informal working groups on: MGRs, facilitated by Janine Coye-Felson (Belize); ABMTs, facilitated by Alice Revell (New Zealand); EIAs, facilitated by René Lefebre (Netherlands); and CB&TT facilitated by Olai Uludong (Palau).

On Tuesday and Wednesday, 4-5 September, delegates offered general statements, focusing on their expectations for the IGC, including their preferred procedural way forward towards a zero draft, and on the content of the ILBI. This summary only includes a reflection of procedural statements. Full coverage of the general statements can be found at http://enb.iisd.org/vol25/enb25170e.html and http://enb.iisd.org/vol25/enb25171e.html.

Delegates resumed discussion of the way forward on Friday, 14 September, and Monday, 17 September. Delegates met in the informal working groups from Wednesday, 5 September, to Thursday, 13 September, with Facilitators reporting to plenary on Friday, 14 September.

IGC Process

On Tuesday, 4 September, Wednesday, 5 September, and Friday, 14 September, discussions focused on the need to prepare a textual basis for negotiations after IGC-1. Egypt, for the Group of 77 and China (G-77/China), welcomed, with others, the President’s aid to discussions (A/CONF.232/2018/3), and recommended “switching gears” to elaborate the ILBI text through the preparation of a zero draft to be circulated prior to IGC-2 and to reflect a balanced legal text containing options where needed.

Palau, for Pacific Small Islands Developing States (P-SIDS), cautioned against backsliding from the PrepCom, and suggested engaging respectfully in negotiations geared towards, but not constrained by, reaching consensus. Honduras stressed that the ILBI negotiations should be based on consensus to ensure universal participation and the highest level of commitment for BBNJ conservation and sustainable use. Costa Rica, also on behalf of Argentina, Brazil, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, and Uruguay, suggested preparing an informal, comprehensive but not exhaustive, preliminary draft as a basis for negotiations, using the basic structure of the PrepCom 4 report, and turning the working groups into negotiating groups at IGC-2. Colombia, on behalf of El Salvador, Eritrea, Iran, and Turkey, recommended: clarifying that participation in the IGC or its outcome cannot affect the status of UNCLOS non-parties, supported by Venezuela; and reflecting CBD Article 22 (relationship with other conventions) and UN Fish Stocks Agreement provisions on participation of UNCLOS non-parties.

The European Union (EU) urged starting text-based negotiations on the basis of a zero draft, through a stepwise approach, building on the options identified at the PrepCom, and clarifying the ILBI’s key functions and regulatory options to reach a consensus agreement by 2020. He stressed that not all issues in the President’s aid to discussions should be addressed in detail in the ILBI, suggesting a focus on substantive provisions with options, without necessarily containing procedures, definitions, or final clauses. Switzerland supported a zero draft with options. The International Union for Conservation of Nature (IUCN) and the High Seas Alliance welcomed the development of a zero draft, expressing hope for a concrete outcome by 2020.

The US supported moving towards text-based negotiations, supporting “something less than a full zero draft” for IGC-2, reflecting diversity of views. Monaco and Canada supported a document allowing further progress, whether it is named a zero draft or otherwise. Norway favored producing a text similar to the IGC-1 aid to discussions, emphasizing the inclusion of different options and retaining the same structure.

Supporting a balanced, universal, and practical ILBI, Japan favored a document based on progress achieved so far, to identify areas of convergence and divergence. Favoring a state-driven process, China proposed a three-step way forward: drafting a non-paper outlining options, to be circulated before IGC-2; proposing improvements to the non-paper during IGC-2; and possibly tasking President Lee to draft a zero draft for IGC-3.

Iceland called on President Lee to produce an initial text, leading to the development of a zero draft by states; and emphasized ensuring universal application for the ILBI, considering consensus “the ultimate goal.” The Russian Federation indicated that despite its mandate, the PrepCom did not fully attempt to seek consensus solutions, and that conceptual issues, such as a global, regional, or hybrid approach, should be clarified before preparing a zero draft. He suggested that a transition to text-based negotiations would be beneficial to analyze and react to proposals, and rather than a zero draft, a more focused President’s document, including elements of a text, could be prepared.

On Friday, 14 September, President Lee proposed issuing a document containing treaty language and reflecting different options by 25 February 2019, for consideration at IGC-2 in order to lead to focused discussions and the identification of areas of convergence, as well as areas requiring further discussion. She clarified that the document would not be “a full treaty text, from preamble to final clauses,” and would probably not be called a zero draft. Noting that the document would include IGC-2 organizational modalities, she emphasized that the process leading to a zero draft would be state-driven.

Marine Genetic Resources

The Informal Working Group on MGRs, facilitated by Janine Coye-Felson (Belize) met from Tuesday - Thursday, 11-13 September. During its deliberations, the informal working group focused on, inter alia:

Regime: The G-77/China clarified that common heritage should govern MGR exploitation while high seas freedoms should address access to MGRs under appropriate regulations. Algeria, for the African Group, called for a frank and open-minded dialogue on the common heritage principle. Brazil noted that all countries should access and use MGRs, which should be considered part of common heritage, in a fair and equitable manner. Argentina considered the current status quo, offering “unfettered access to MGRs only to a handful of countries,” unacceptable, and prioritized the common heritage regime and an equitable and transparent benefit-sharing mechanism, CB&TT, and guarantees for a functioning financing and coordination mechanism.

Thailand suggested: applying the common heritage principle to access and benefit-sharing (ABS) for MGRs in the Area (sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction) and in the high seas, as well as to high seas fisheries, whether used as commodity or for bioprospecting. Viet Nam recommended that the ILBI must not limit UNCLOS rights and obligations, underscoring that BBNJ should be considered as common heritage with equitable benefit-sharing.

The African Group stated that the common heritage is “much more than benefit-sharing” and underpins all elements of the package, with South Africa and P-SIDS highlighting intra- and inter-generational equity, sufficient monetary benefits, capacity building, and MGRs as part of common heritage.

The EU emphasized that the ILBI negotiations do not depend on determining the legal status of MGRs. The Russian Federation supported applying the high seas freedoms to MGRs, including in the Area. The US stated that common heritage only applies to resources in the Area. Japan recalled protracted negotiations on, and eventual exclusion of, sedentary species from the Area regime. Responding, the African Group: recalled the limited knowledge of biodiversity of ABNJ and lack of awareness of their economic value during UNCLOS negotiations, calling for a single, light access regime for ABNJ governed by the ILBI Conference of the Parties (COP).

Norway favored a pragmatic, sustainable, fair, and cost-effective regime, considering links with future rules on CB&TT. Bangladesh considered that neither common heritage nor high seas freedoms are practically applicable, calling for a hybrid solution. Fiji proposed a sui generis regime for MGRs based on the ILBI overarching objectives and principles. Considering, with Switzerland, common heritage and high seas freedoms not mutually exclusive, the Caribbean Community (CARICOM) highlighted: international cooperation and ecosystem-based management around the interconnectedness of the high seas and the Area.

Viet Nam favored MGR regulation in the water column above extended continental shelves facilitating access by coastal states and respecting their sovereign rights.

Iceland and the Federated States of Micronesia (FSM) recommended special consideration for MGRs straddling areas within and beyond national jurisdiction. Brazil and Viet Nam suggested triggering consultation in cases of straddling MGRs.

Temporal scope: The EU, the US, and Switzerland proposed applying the ILBI to MGR collection only after entry into force.

Material scope: Maldives, for the Alliance of Small Island States (AOSIS), proposed defining in situ, ex situ, derivatives and, with China, access. P-SIDS proposed defining MGR source or origin. The African Group underscored the need to define derivatives, supported by CARICOM, and biotechnology, supported by P-SIDS; and suggested as a definition for MGRs in ABNJ “any material of marine, plant, animal, microbial, or other origin found in or originating from ABNJ and containing functional units of heredity, as well as any material, derivatives and/or data thereof with actual or potential value for their genetic or biochemical properties.” The Holy See queried if this definition would include viruses. The EU recommended drawing on definitions in existing instruments.

Japan and the US expressed caution about monetary benefit-sharing due to costly, difficult, and lengthy commercialization of MGRs. Japan called for a practical and realistic ILBI, and for deciding at a later stage on the scope in relation to MGRs. The US, with Canada and Iceland, opposed by FSM and Mexico, cautioned against including MGRs ex situ. The Holy See suggested distinguishing MGRs on the basis of their actual or potential economic value, consistent with UNCLOS and the CBD.

Fisheries: Bangladesh, Indonesia, Switzerland, and Ecuador, opposed by Argentina, Colombia, the US, Honduras, Iceland, and the EU, favored including both fish used as a commodity and as a source of MGRs under the ILBI. The Russian Federation called for fishing and MSR to be carried out freely, noting, with others, that fisheries are already regulated by the UN Fish Stocks Agreement.

Fiji argued that genetic resources from fish used as a commodity should be regulated under the MGR regime. India stressed that the value, rather than the volume, of exploited resources should be a differentiating criterion. IUCN urged distinction based on use, rather than purpose of initial taking. Thailand called for “creative ways to deal with this issue,” noting that existing regional fisheries management organizations (RFMOs) have different mandates, implementation and legal gaps, varying performance, limited coordination, incomplete geographical coverage, and limited biodiversity frameworks.

Digital sequence information: The G-77/China and the Holy See, opposed by the Republic of Korea, Switzerland, and Japan, recommended that the ILBI apply to MGRs in silico. Ecuador, the FSM, and Mexico emphasized traceability. The US encouraged the sharing of digital sequence information in research and development; and, with Canada, cautioned against including information under an ABS regime because of consequent reduction in data sharing and challenges in data tracking.

Derivatives: The African Group, supported by Bangladesh, Papua New Guinea (PNG), Indonesia, Argentina, Brazil, the Philippines, Colombia, the FSM, and the Holy See, and opposed by the EU, China, Switzerland, the US, Iceland, Japan, and the Republic of Korea, favored including derivatives in the ILBI, noting that the Nagoya Protocol applies to derivatives and that there is no scientific basis for their exclusion. The African Group also argued that UNCLOS provisions on non-recognition of MSR activities as the legal basis for claims and on publication and dissemination of information and knowledge apply to derivatives and bioprospecting. The FSM called for regulating derivatives and ensuring their traceability for monetary and non-monetary benefit-sharing purposes.

Access: The G-77/China favored regulating access, with terms and conditions, and requirements on CB&TT and on depositing samples, data, and related information in open-source platforms. He noted that any MGR access regime within the scope of ILBI should not hamper MSR or prejudice sovereign rights over exclusive economic zones and continental shelves, including extended continental shelves.

The African Group proposed: distinguishing between MSR and bioprospecting in terms of access, with an obligatory prior electronic notification system to regulate access to MGRs and to “track and trace” their use; and drawing on the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). CARICOM preferred a notification system exploring potential interlinkages between access, ABMTs and EIAs, and how ecologically or biologically significant marine areas (EBSAs), vulnerable marine ecosystems (VMEs), or other specially protected areas should be taken into account.

Brazil favored regulating access through a notice-based process, which would include disclosure of origin and purpose. P-SIDS suggested: for MGRs in situ, an ISA-type system of sponsoring states, emphasizing, with India and CARICOM, traceability; leaving access to MGRs ex situ open, without privatizing samples; and a permit-based system under mutually agreed terms (MATs) or a licensing system on use of digital sequence information. Fiji emphasized recording and reporting mandatory requirements for in situ collectors, and a single-access regime with different provisions depending on the source of MGRs. The Philippines stressed fair access, traceability, transparency, and public accountability, allowing for scientific and technological advances. Ecuador highlighted that open access does not entail lack of regulation or management such as: identification of genomics; taxonomic research possibilities; identification of actors, experiences, and expertise; identification of projects; alignment with sustainability; traceability; and identification of common inventories.

Mexico argued for: “dual regulation” of access for MSR and for commercial purposes, including a procedure for change of intent; public access to information; and conditions for the use of MGRs for commercial purposes. Colombia called for: access regulations for MGRs and derivatives; a global management institution; and a mechanism based on prior consent or notification. China supported: free access to MGRs; notification to the secretariat; and guidelines or codes of conduct on access, for adoption under domestic legislation.

The EU favored free access to in situ MGRs, in line with UNCLOS provisions on MSR and Part XII. Switzerland emphasized a “light access” structure supporting research and innovation. Singapore called for a clearer understanding of bioprospecting vis-à-vis MSR. The Republic of Korea, Japan, the US, and the Russian Federation argued for free access in accordance with the high seas regime.

Norway emphasized free access, expressing willingness to consider notification, with the Intergovernmental Oceanographic Commission (IOC) maintaining a repository. The Holy See supported a simple, online registry for states and nationals to file a notification, whether for commercial or scientific intent, and pointed to the Organization for Economic Cooperation and Development (OECD) Guidelines for the Licensing of Genetic Inventions for inspiration in considering ex situ and in silicoaccess through licensing, calling for non-exclusive or co-exclusive licenses and mandatory sub-licensing.

Benefit-sharing: The G-77/China supported an ABS regime drawing on the Nagoya Protocol, the International Seabed Authority (ISA), and the ITPGRFA. AOSIS highlighted the need to consider the Nagoya Protocol, the ISA, the World Health Organization’s Pandemic Influenza Preparedness (PIP) Framework, and the World Trade Organization (WTO) Agreement on Trade-related Aspects of IPRs (TRIPS). He recommended:

AOSIS and others supported fair and equitable sharing of monetary and non-monetary benefits at different stages, promoting MSR and technology transfer. He highlighted: the Nagoya Protocol approach to traditional knowledge associated with genetic resources; and a requirement under the ILBI for prior informed consent of indigenous peoples and local communities (IPLCs) before accessing their traditional knowledge, if it contributes to knowledge of ABNJ.

P-SIDS considered traceability for both commercial and non-commercial uses as existing best practice and requested paying royalties into an ILBI fund when a product developed from MGRs becomes profitable, without prejudice to scientific progress. She emphasized small island developing states’ (SIDS) special case and their participation in the ILBI, with different kinds of benefits accruing at different stages, as well as transparency, collection of data and scientific information, CB&TT, and coordination and cooperation. PNG underscored open access to scientific information, integration of open data linked to a clearinghouse, biochemical composition, and digital sequence information.

The African Group requested clarity on the stage at which non-monetary benefits should be shared; and suggested levying a fee when access to genetic sequence data is withheld. CARICOM called for: equitable benefit-sharing based on a needs assessment; knowledge dissemination; open research; report submission to a centralized organ; a traceability mechanism; and, with India, a phased approach for benefit-sharing, including open-source samples and payments upon commercialization. Mexico stated that all access to MGRs should lead to benefit-sharing, and supported, with others, establishing a fund.

China favored: prioritizing non-monetary benefits; sharing monetary benefits only upon large-scale commercialization; and providing incentives for MSR. He suggested that the ILBI mandate the COP to manage MGRs and benefit-sharing, and potentially provide for a voluntary trust fund. Brazil called for: triggering benefit-sharing obligations upon commercialization, not in relation to research or patenting; and establishing a global fund derived from 1% of net revenue from the commercial use of MGRs.

The EU drew attention to the IOC and the Global Environment Facility (GEF) and suggested: focusing on “more readily available and feasible” non-monetary benefit-sharing; considering capacity building and sharing of material, information, and scientific knowledge; and requesting notification after MGR collection in ABNJ, including the possibility of sharing digital sequence information.

Canada queried the feasibility and impacts of a staged approach to royalties and its administrative burdens; supported linking benefit-sharing with capacity building; and urged taking into account the differences of other ABS instruments, noting that the ITPGRFA covers mostly genetic materials entirely in the public domain. Japan favored: benefit-sharing for current and future generations and research and development promotion; and voluntary capacity building and non-monetary benefits to enable all states to enjoy the benefits of MGRs. The US preferred non-monetary benefits to achieve the ILBI conservation objectives, focusing on developing countries’ needs.

The G-77/China noted that MGRs, utilization of MGRs, and related technical terms should be defined. The Republic of Korea called for pragmatic benefit-sharing arrangements, including on a voluntary basis and without undermining high seas freedoms. The Russian Federation noted that MSR is costly and is not always commercially viable; and favored voluntary benefit-sharing and capacity building.

Beneficiaries: AOSIS and Colombia considered parties to be beneficiaries. P-SIDS emphasized developing states, particularly SIDS, and traditional knowledge holders. Brazil suggested including all states, especially developing countries and least developed countries (LDCs). The EU highlighted states that may require technical assistance. Tonga suggested directing funds to the ILBI secretariat for administering ABNJ activities and for developing the clearinghouse. China identified all countries as beneficiaries, particularly: LDCs; landlocked developing countries (LLDCs), supported by Paraguay and Nepal; as well as geographically disadvantaged states, SIDS, African states, and future generations.

List of Benefits: The G-77/China supported a non-exhaustive list of benefits, with the Philippines and Fiji clarifying the list should also include monetary benefits, and the African Group underscoring the Nagoya Protocol. CARICOM also mentioned UNCLOS and the ITPGRFA, noting that the list could be annexed and reviewed. The EU, Switzerland, the US, and Singapore expressed openness to consider an indicative list of non-monetary benefits. Mexico proposed drawing from the ISA and the Nagoya Protocol. Tonga noted that benefits could include capacity building on the legal, policy, and financial aspects of the ILBI.

Canada recommended finding the right balance in a non-exhaustive list. Norway called for flexibility and proposed matching needs and opportunities, noting relevant activities under the IOC.

IPRs: The G-77/China called for considering the relationship with IPRs and traceability of any processing of MGRs. The African Group suggested addressing IPRs through a sui generis system. AOSIS favored considering IPRs in a manner consistent with World Intellectual Property Organization (WIPO), opposing, with Mexico, the patenting of MGRs themselves. P-SIDS stressed the need to promote innovation, while setting specific requirements for patents, including prior informed consent. Mexico recommended including: the object of IPRs; coordination with existing regimes, including WIPO; and verification of origin and use of MGRs. Noting that 84% of MGR patents are registered by corporations and 12% by universities, PNG queried how the ILBI would address non-state actors, pointing to potential lessons learned from the Nagoya Protocol and the ITPGRFA.

The EU, Japan, the US, and China preferred excluding IPRs, arguing they are addressed under WIPO and the WTO. Switzerland, Singapore, and Canada pointed to ongoing work under WIPO. The Republic of Korea emphasized respect for IPRs and confidential information. The Russian Federation considered IPRs beyond the ILBI’s scope.

Peru called for the ILBI not to run counter to IPR protection. Colombia preferred addressing disclosure of origin under WIPO and TRIPS, with the ILBI ensuring complementarity with those regimes through general clauses. The Holy See suggested that the origin of every patent should be presumed to be in ABNJ unless otherwise stated in patent applications.

WIPO pointed to bracketed text on MGRs of ABNJ being negotiated under its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The International Council for Environmental Law suggested “going beyond IPRs and direct monetary benefits” to design, implement, and monitor an ABS system that fosters MSR and collaboration.

Monitoring of MGR Utilization: The G-77/China suggested a reporting, monitoring, and traceability mechanism to facilitate benefit-sharing. P-SIDS considered traceability for both commercial and non-commercial uses as existing best practice. AOSIS suggested that a scientific committee or clearinghouse monitor MGR utilization. CARICOM supported disclosure of origin of MGRs. P-SIDS supported a non-exclusive license to access MGRs, allocation of MGR identifiers, and a notification requirement upon access. The African Group emphasized an obligatory prior electronic notification system as a platform managed under the ILBI, setting conditions for access to sample and data, and for practical arrangements to monitor MGR utilization. Chile supported registration requirements, a protocol and guidelines, and a repository to improve monitoring.

The EU and the US opposed monitoring MGR utilization. Japan stated that a traceability mechanism is a disincentive to MSR, and referred to the International Convention for the Safety of Life at Sea (SOLAS), which requires identification systems transmitting vessels’ location to a public International Maritime Organization (IMO) website.

The Holy See identified as challenges to disclosure the fact that research findings are viewed as a marketable commodity, calling for basic disclosure requirements and regulation of access to ensure public scrutiny of MGRs and prevent corporations’ undue influence over ocean biodiversity.

Summary of Discussions: On Friday, 14 September, Informal Working Group Facilitator Coye-Felson, reported on:

Area-based Management Tools

 The ABMTs Informal Working Group, facilitated by Alice Revell (New Zealand) met on Friday, 7 September, Monday, 10 September, and Thursday, 13 September. Discussions focused on: objectives; relationships with other instruments; process, including decision-making and consultation; duration; and monitoring and review (M&R).

Objectives: CARICOM favored operationalizing the balance between the ILBI general objectives of conservation and sustainable use. Mauritius pointed to Aichi Biodiversity Target 11 (protected areas) and Sustainable Development Goal (SDG) 14 (life below water). The Russian Federation responded that these apply within national jurisdiction. Tonga highlighted: ensuring food security, scientific reference areas, and aesthetic and wilderness values; and allowing for the creation of representative and well-connected networks of MPAs.

Viet Nam called for: establishing ABMTs, including MPAs, to protect MGRs. Colombia suggested: developing objectives for each ABMT to be reviewed periodically and adapted based on best available science, in addition to minimum common objectives aiming at conservation and sustainable use; and taking into account in all decisions’ oceanographic characteristics and species’ migratory patterns. Costa Rica highlighted the protection, maintenance, and restoration of ocean health through a global MPA network, addressing vulnerability to climate change, ocean acidification, extractive and contaminating activities, and cumulative effects. Fiji favored specific objectives for ABMTs, MPAs, and marine spatial planning (MSP). Stressing that fisheries should be considered in the ILBI, Senegal called for clearly defined protection levels regarding ABMTs, reflecting resilience to different stressors.

Israel highlighted that objectives should: be based on designation of large and representative areas; be monitored; and support a long-term strategy of a global MPA network. The Russian Federation expressed concern about a global MPA network or fisheries regulation under the ILBI. Norway recommended specifying ABMTs’ objectives upon their establishment.

IUCN emphasized that MPAs primarily focus on long-term biodiversity protection under a long-term strategic plan reflecting science-based priorities. Greenpeace underlined that the ILBI should facilitate the SDG and the Aichi targets to protect at least 10% of marine and coastal waters by 2020. Iceland cautioned against establishing MPAs at specific percentage levels as this may be “superficial and unscientific.” Noting that the ILBI should set out high-level objectives for ABMTs to measure progress, New Zealand suggested: stipulating the circumstances for an MPA to be considered a more appropriate tool than others; clearly defining roles and responsibilities; and establishing a participatory ABMT designation process, including cooperation and coordination.

Relationship with Other Instruments: The G-77/China proposed a “recognition process” for existing ABMTs, with parties identifying specific measures to meet conservation objectives, with Argentina and Mauritius stressing that a global MPA network requires recognizing ABMTs adopted by other competent organizations. The Philippines drew attention to ongoing work on other effective area-based conservation measures under the CBD, emphasizing the need for a coordination mechanism. Seychelles emphasized the CBD EBSAs process, highlighting technical guidelines on MSP from the IOC and the CBD. Fiji underscored that nothing should prevent regional or sectoral bodies from establishing ABMTs, including MPAs. China recommended: striking a balance between conservation and sustainable use; including among ABMTs’ regulatory management methods, not only MPAs; and prioritizing existing approaches that already provide for conservation and sustainable use.

Australia proposed promoting ABMT establishment by regional bodies, and greater coordination and coherence, including through global standards and principles. The EU noted that most competent bodies are working in silos, and recommended establishing criteria whereby coastal states could propose changes to MPA designation if the MPA would undermine their rights under UNCLOS. Switzerland supported well connected and effectively managed MPAs, especially along critical migration routes. 

The US noted that the ILBI could identify areas for additional protection, but regional and sectoral bodies should have primacy over establishing, and enforcing compliance with, management measures. Singapore and Australia cautioned against creating a hierarchy, with the Russian Federation questioning if a new body under the ILBI would be more competent than existing regional and sectoral organizations. Norway proposed automatic recognition of ABMTs established according to certain procedures and requirements. He also suggested stating the functions that the ILBI bodies would not perform, in relation to activities already sufficiently managed by other bodies. Costa Rica recommended extending the duty to cooperate to international organizations.

Iceland suggested a coordinating role for regional seas organizations. Australia proposed recognizing bodies competent to establish and monitor ABMTs on the basis of global principles and best-practice standards. Canada recommended elaborating ABMT plans under the ILBI in consultation with relevant organizations for their consideration and implementation. 

Process: The G-77/China favored: a global framework for designating, deciding on, implementing, and monitoring and reviewing ABMTs; and submitting state proposals for ABMT designation to a global institution, for decisions based on the spatial boundaries of the areas, and appropriate conservation and management measures. Viet Nam recommended a designation process reflecting the status of MGRs as common heritage. AOSIS proposed an indicative set of international criteria for ABMT designation, to be agreed by the scientific/technical body and approved by a decision-making organ, with parties having the option to make collective proposals. The EU recommended stating that nothing should prevent parties from adopting additional or stricter measures and encouraging non-party states to adopt similar measures to those contained in an ABMT management plan.

The G-77//China highlighted grounds for identifying areas such as uniqueness, variability, fragility, sensitivity, and biological productivity and diversity. Mexico added rarity, vulnerability, and interconnectedness. The African Group supported criteria for MPA establishment, allowing for different levels of protection. CARICOM indicated that the ILBI should set out general provisions and criteria for recognizing established ABMTs. Argentina queried if vulnerable areas could be proposed even if they have not been identified as such before the adoption of the ILBI, considering the EBSA criteria useful to that end. Mauritius suggested basing ABMT designation on factors including degree of threat and size of the area affected. China favored MPA identification based on best scientific evidence. Thailand recommended: recognizing existing criteria for identifying areas in need of protection, including EBSAs, Particularly Sensitive Sea Areas, VMEs and those under the Convention on Migratory Species; developing mandatory targets for different levels of protection, in line with the Aichi targets and SDG 14; and considering MSP as a complementary tool under the ILBI. The EU proposed combining regional and global elements with general criteria for areas requiring protection.

Cautioning against creating “paper parks,” the High Seas Alliance called on the ILBI COP to designate MPAs and implement marine protection measures. IUCN called for a global decision-making body empowered to identify, consult on, and adopt protective measures for MPAs, implemented through parties’ regulation of activities within their jurisdiction and control. She also suggested: distinguishing ABMT types; enhancing sectoral and regional organizations’ role and effectiveness to adopt ABMTs, referring to the UN Fish Stocks Agreement and the CBD; and adopting a global approach for MPAs based on states’ duty to protect the marine environment and their power to adopt directly and collectively more stringent measures than sectoral ones. WWF advocated: using MSP to support integrated ocean and ecosystem-based management; designating MPAs based on their biodiversity values, and not on threats; and ensuring management by the competent body.

Submissions: The African Group supported submission of ABMT proposals from parties and competent organizations. P-SIDS suggested that parties, and relevant sectoral and regional organizations, submit proposals individually or jointly. Mauritius preferred collective proposals. CARICOM indicated that a party or the ILBI scientific committee may submit proposals. The Philippines favored proposals submitted by states, regional bodies, or intergovernmental organizations, in consultation with coastal states. Brazil, Japan, Costa Rica, and the Republic of Korea supported proposals from state parties. Norway proposed that the regional seas mechanisms develop proposals, and in regions with no mechanism, states in the region could develop a proposal.

Content of ABMT proposals: The African Group supported including management measures and objectives. P-SIDS suggested including the objective, proposed measures, and a management plan, including M&R. China proposed including protection objectives, a legal basis, scientific data, management plans and measures, and a time limit for protection. Japan preferred incorporating: the identification of the ABMT area, citing examples such as Particularly Sensitive Sea Areas, VMEs, and EBSAs; draft conservation and management measures; and a timeline for review.

Decision-making: The African Group supported an ILBI decision-making body, including on establishing MPAs, on the basis of recommendations from an ILBI scientific and technical body. CARICOM indicated that the ILBI COP should make the final decision, and the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection could be part of an evaluating body. P-SIDS favored a global decision-making body and regional committees for ABMT implementation and stakeholder consultation. Tonga called for due regard to inputs by adjacent coastal states. The FSM suggested that regional and subregional institutions implement management measures without imposing disproportionate conservation burdens on adjacent coastal states, particularly SIDS. Brazil favored: consideration of proposals by a scientific/technical committee, supported by an independent pool of experts; decisions taken by a COP; and implementation by flag-state members. The Philippines called for: coordinating sectoral and regional organizations’ mandates under the ILBI’s oversight body; identifying areas to be protected through regional and subregional scientific bodies in a flexible and adaptive manner; and designating and managing ABMTs at the regional level, subject to global oversight under the ILBI COP.  

Mexico noted that decisions to establish management mechanisms should be binding on state parties with an obligation to cooperate with non-parties. Colombia called for a global, consensus-based decision-making body, with a voting provision as a last resort, on the basis of a recommendation from a scientific and technical subsidiary body that would also assess the effectiveness and coherence of new measures.

The EU proposed that: the scientific/technical body assess proposals and review effectiveness of MPAs; a time-bound consultation process take into account existing procedures in competent organizations; and the ILBI COP establish MPAs with a proposed management plan. Singapore favored a global approach dealing with existing gaps, and providing a platform for consultation and exchange among institutions on proposals, with decisions made by the “body that is more competent and able to do so,” be it the ILBI body or other relevant body in consultation with the other. Japan supported a hybrid approach, whereby submissions, including inputs from prior consultations, are sent to: the ILBI scientific committee for evaluation; the COP for consensus decision-making; and competent existing organizations for a final decision on whether the ABMT will be implemented. He noted the ILBI should stipulate that the measure would be binding on all, including non-members of relevant instruments. 

New Zealand, supported by Chile, outlined a hybrid approach, with:

Australia favored a hybrid model: recognizing the knowledge and science base of regional and sectoral bodies, and encouraging them to make better use of ABMTs, with reporting mechanisms; and mandating the ILBI COP to discuss implementation and share information. The Holy See preferred a hybrid model, with global coordination of conservation in cooperation with regional and business sectors, with regional seas programmes communicating with the ILBI COP to create a global environmental, social, and economic baseline for ABNJ, and to articulate conservation strategies, including MSP, for consideration by sectoral and regional stakeholders.

Cautioning against a global, centralized system duplicating mandates and undermining instruments, the US suggested: a process of site selection and proposal, scientific review, and identification in close collaboration with regional and sectoral bodies; consensus decisions; and a geographically and technically balanced advisory group for scientific assessment of proposals. Canada described a two-phase approach where the ILBI decision-making body would make an initial decision on whether further work should be pursued on a proposal based on its rationale, scientific assessment, objectives, and ABMT type; followed by a wider consultation, including relevant frameworks and bodies, interested stakeholders tailored to each ABMT, and taking into account neighboring coastal states’ views and relevant traditional knowledge. 

The Russian Federation favored a regional approach, recommending that existing regional and sectoral bodies continue to take decisions on ABMTs, and cautioning against politicizing the process through global majority voting. Advocating a regional model, Iceland proposed holding regular global meetings for assessing ABMTs’ effectiveness similar to the UN Fish Stocks Review Conference. Argentina cautioned against delegating decisions on ABMTs to bodies or mechanisms outside the ILBI. 

Norway proposed:

China, Uruguay, and the Republic of Korea proposed COP consensus decisions, with Canada calling for a high voting threshold as a possible last resort.

IUCN called for a process aimed at consensus but not requiring it, pointing to the South Pacific Regional Fisheries Management Organization model. PNG called for interim measures, given the potential lengthy MPA establishment process. The High Seas Alliance called for global recognition of existing MPAs that meet ILBI criteria.

Consultation: The African Group supported a consultation process engaging all relevant bodies and other stakeholders. China opposed an exhaustive list of stakeholders, recommending that the scope of participation is based on objectives, targets, regions, and entities involved in the proposed ABMTs; and recommended consultation between the scientific/technical committee and other relevant bodies if ABMT proposals overlap with their mandates. Tonga underlined the need to provide timely notification to affected states and stakeholders. Colombia favored a broad and transparent consultation process to allow for proposal adjustments. Uruguay emphasized mandatory consultations.

Japan recommended consultations with existing relevant bodies prior to proposal submission, as well as, with the US, a time-bound consultation with a wide range of actors through the ILBI secretariat. The Holy See called for full participation and input by regional and sectoral bodies prior to proposal development, taking into account impacts on workers, investors, and coastal communities, and considering potential compensation. The High Seas Alliance called for a strong consultation process with other global, regional, and sectoral bodies to increase effectiveness and fill regulatory gaps.

Compatibility: AOSIS called for: inclusive and transparent consultation with adjacent states, including IPLCs, and traditional knowledge holders, when determining boundaries, monitoring plans, and evaluating ABMTs, supported by New Zealand; and the possibility for scientific organizations and civil society to provide scientific information and input. P-SIDS called for mandatory consultation with adjacent coastal states, stressing that ABMTs in ABNJ should not be of a lower standard than those within national jurisdiction. Chile, with AOSIS, pointed to UN Fish Stocks Agreement Article 7 (compatible measures), and suggested a consultation and information-sharing mechanism for establishing MPAs, ensuring consideration of resilience, biodiversity restoration, and climate change effects. 

Indonesia called for assurances that practices in ABNJ will not adversely impact coastal states. Japan suggested consultation and cooperation with competent organizations. Morocco, Norway, Australia, and the EU supported consulting coastal states, with Iceland also favoring information sharing and consent for ABMTs in the water column above the extended continental shelf. Australia, with the FSM, Togo, Canada, and PNG, suggested respecting the rights of coastal states on continental shelves.

China emphasized UNCLOS due regard rule for addressing adjacent coastal states and, supported by Uruguay, recommended taking into account their views. The Russian Federation underscored the need for adjacent coastal states’ agreement, with MPA proponents bearing the burden of proving that coastal states’ rights would not be violated. Sri Lanka suggested: considering linkages between MPAs and EIAs without prejudicing coastal states’ rights and legitimate interests, or undermining extended continental shelf claims. Canada proposed consulting and exchanging information with adjacent coastal states, recognizing their particular interest in decision-making.

Duration: The Russian Federation favored including principles allowing competent organizations to take decisions on science-based, time-bound ABMTs. The Republic of Korea recommended that ABMT duration should be based on scientific evidence. P-SIDS cautioned against setting time limits and, with Mexico and Costa Rica, recommended regular reviews of effectiveness. The FSM proposed distinguishing: prohibitions or restrictions for an indefinite time period, subject to regular reviews, for the preservation of areas providing ecosystem services to other areas open to sustainable use; and time-bound recovery for damaged marine areas, depending on speed of recovery. The EU suggested regularly reviewing MPAs that should not be time-limited.

Monitoring and review: The G-77/China proposed communication, reporting, and a compliance system based on best available science and overseen by a scientific/technical body, with the COP deciding on follow up. CARICOM and Colombia called for a follow-up M&R process. Uruguay suggested a transparent procedure for financing ABMTs, in addition to monitoring. Mexico called for a clear process for applying sanctions in cases of non-compliance. South Africa called for a mechanism for global monitoring, control, and surveillance. The Philippines underscored that ABMT management plans should guide implementation, as well as the degree of protection and evaluation measures, and supported adaptive management, a compliance mechanism, an incentive system, and a global oversight body. P-SIDS favored provisions on non-compliance and a compliance committee; collaboration with existing instruments and standardized reporting; and a coordinating entity under the ILBI.

Mexico highlighted: flag state responsibility; suggested exploring whether international organizations and port states could enforce ABMTs; and supported a science-based, regular review of ABMTs’ effectiveness for potential adjustments, similar to the designation mechanism, including stakeholder consultation. Chile called for a periodic review mechanism using publicly available reports to monitor, oversee, and improve enforcement of conservation goals. Nigeria proposed delegating scientific monitoring to appropriate regional bodies when they meet ILBI standards. China stressed the need for clear M&R provisions for the ILBI scientific and technical committee. Costa Rica called for regular monitoring and evaluation of MPAs to identify loopholes and recommend amendments.

The EU: queried who would assess MPA effectiveness and progress in achieving conservation objectives; and proposed that parties report regularly on implementation, with the scientific/technical body assessing reports and making recommendations under follow-up procedures to be established. Canada suggested a two-tier monitoring process, one at the ABMT level and the other addressing the entire mechanism.

IUCN suggested developing sectoral and cross-sectoral regional biodiversity strategies and action plans, building on CBD Article 6 (general measures) and UN Fish Stocks Agreement Article 5 (principles). The High Seas Alliance suggested emergency measures, drawing from the Kuala Lumpur Supplementary Protocol on Liability and Redress and the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean.

Summary of Discussions: On Friday, 14 September, Informal Working Group Facilitator Revell identified a “spectrum of options” across global, hybrid, and regional proposals including:

She outlined options for a global body to:

She also noted options on establishing ABMTs of a limited duration or subjecting them to regular reviews.

Environmental Impact Assessments

The Informal Working Group on EIAs, facilitated by René Lefebre (Netherlands) met on Monday and Tuesday, 10-11 September. Discussions focused on: EIA obligations; thresholds and criteria, including a possible list of activities requiring EIA and special requirements for sensitive areas; EIA process, including consultation and M&R; and strategic environmental assessments (SEAs).

Obligation:  The African Group called for global framework setting standards and minimum requirements, considering EIAs unnecessary when an activity is covered by existing obligations. AOSIS recommended accompanying any obligations arising from EIAs with capacity-building provisions. P-SIDS emphasized facilitating coherent ocean governance and harmonizing environmental standards to ensure equitable decisions and accountability; and supported a global standard-setting body based on the best scientific information, including traditional knowledge, and appropriate proceedings in cases of non-compliance.

China encouraged parties to adopt domestic legislation establishing EIA procedures for activities in ABNJ. Norway emphasized the duty of the flag state to conduct EIAs based on UNCLOS obligations. The Holy See proposed that the ILBI make the UNCLOS due diligence obligation an applicable defense for entities under a state’s jurisdiction or control, including for the purposes of assuming the cost of EIA, enforcement, and damages.

The High Seas Alliance called for: binding EIA obligations; conditions drawing from UN General Assembly resolution 61/105 on bottom fishing to assess significant adverse impacts of all activities; and requirements to manage or prevent such impacts.

Thresholds and Criteria: The African Group suggested adopting the threshold under the Protocol on Environmental Protection to the Antarctic Treaty that refers to minor or transitory impact. Mexico favored: establishing minimum standards; subjecting any activity with the potential to cause harm to the marine environment to an EIA; and taking into account the possible ecological connectivity between an area or activity in ABNJ and potential impacts within national jurisdiction. The Philippines highlighted sensitivity of location, magnitude of adverse effects, and scale of development, calling for review and assessment by a scientific committee. 

China, with the US and others, argued that UNCLOS Article 206 provides an EIA threshold, namely the potential to cause substantial pollution or significant and harmful changes to the marine environment, and stated the ILBI could provide guidance on how to define “significant and harmful changes.” Japan emphasized that UNCLOS Article 206 provisions may be elaborated through guidelines, annexed to the ILBI. The Republic of Korea distinguished among cases requiring: no EIA, because of less than minor impact; preliminary EIAs, with no M&R requirements in cases of minor environmental impact; and a formal EIA in cases of significant impact. Switzerland supported using existing procedures and conducting one EIA per activity. 

Iceland and the Russian Federation supported reference, based on UNCLOS Article 206, to “reasonable grounds to believe that planned activities may cause substantial pollution or significant and harmful changes.” The FSM supported a two-tier approach subjecting to full EIAs activities above the threshold of UNCLOS Article 206.

IUCN and the High Seas Alliance supported a minimum threshold. WWF called for: an EIA regime applicable to all activities; and a two-step threshold-testing mechanism, with a lower test similar to the Antarctic Treaty rather than a higher test similar to UNCLOS Article 206.

Several favored assessing cumulative impacts, with China arguing against a single type of EIA. Norway underscored the difficulty of assessing cumulative impacts. The US supported consideration of direct, indirect, and cumulative effects. The FSM and IUCN, opposed by the Russian Federation, favored considering cumulative impacts, including from climate change and ocean acidification. Colombia suggested establishing thresholds, taking into account the cumulative impacts of anthropogenic impacts.

China cautioned against establishing EIA rules for activities already covered by other EIA-related instruments. The US noted that EIAs conducted under other instruments may fulfill the ILBI requirements if the threshold is similar, and in the absence of thresholds under other agreements, the ILBI would fill this gap. Singapore, Canada, and New Zealand noted that, in cases of different thresholds in other processes, the ILBI threshold should apply, calling for consultations to allow for some harmonization.

List of activities: The G-77/China expressed openness to considering an indicative list of activities requiring EIAs, calling for flexibility and regular updates to include technological advances. Brazil did not favor including a list. The Philippines supported including a non-exhaustive list, with Mexico suggesting inclusion as part of the ILBI text or as an annex subject to review and update when needed. China favored a non-binding list, if it is to be included.

Singapore cautioned against an over- or under-inclusive list. The Republic of Korea noted that a list could be prepared at a later stage as voluntary guidelines. Canada cautioned against creating requirements for formal treaty amendments to reopen a potential list. New Zealand supported an indicative, non-exhaustive list to be elaborated by the COP. Japan expressed openness to discuss a list as an appendix to guidelines annexed to the ILBI. Norway underscored the need for a clear and flexible list, if included. The US supported an illustrative, negative and positive, list. Australia preferred a tiered approach where activities likely to meet thresholds are initially determined.

Sensitive areas: The Philippines and Colombia, opposed by the US, proposed including specific provisions for EIAs in areas identified as ecologically or biologically significant or vulnerable, with IUCN calling for mandatory requirements. Singapore, with Canada, Japan, and New Zealand, stressed that the same threshold may apply to ensure uniformity, emphasizing, with Australia, that in vulnerable areas, it would be easier to cross the threshold. Norway cautioned against making different rules for EBSAs. Iceland opposed a general application of EIAs in ABNJ, supporting focusing on areas of high biodiversity, such as EBSAs and VMEs.

EIA Process: The G-77/China proposed including: