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UN Working Group on Biodiversity Makes Cautious Progress

UNITED NATIONS, Apr 22 2014 (IPS) - The UN Ad Hoc Open ended Informal Working Group on ‘biological diversity beyond areas of national jurisdiction’ (WG), which was initially convened in 2006, had its first meeting this year in New York from April 1 – 4.

This time, the WG had been entrusted with a specific mandate by UNGA Resolution 68/70 to make recommendations on the scope, parameters and feasibility of an international instrument that would create a regulatory regime for marine biological diversity beyond areas of national jurisdiction (BBNJ) under the UN Convention on the Law of the Sea (UNCLOS).

There will be two further meetings of the WG. The meeting in April attracted substantial participation from states, international organisations and civil society. Civil society participated proactively in the discussions.

UNGA Resolution 68/70 reflected the international community’s commitment made in the Rio+20 final document, “The future we want”, to address urgently, the issue of the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.

It was apparent from their statements that an overwhelming number of delegations, especially the EU and the members of the G-77 and China, were supportive of negotiating a new implementing agreement under the UNCLOS to address gaps in the legal and regulatory mechanisms for the conservation and sustainable use of BBNJ and these delegations proceeded to identify areas that may be included in such a mechanism.

They underlined that there should be no duplication of existing instruments. On the other hand, significant lack of enthusiasm for a legal regulatory mechanism was expressed by some key delegations who continued to emphasize strengthening the implementation of existing instruments to achieve the same objective, including through better coordination and, where necessary, relying on UN General Assembly resolutions.

By the end of the meeting, the co-chairs had compiled a list running in to over four pages of subject matter that states wished to see covered in a future instrument and the reservations of the others. This list will provide the substantial basis for discussions at the next meeting of the WG in June.

The envisaged instrument will constitute a vital elaboration of the legal framework relating to the ocean areas beyond national jurisdiction, in effect, the area still not fully regulated by the legal regime applicable to “The Common Heritage of Mankind”.

At the time the UNCLOS was negotiated, even though it sought to cover almost every aspect of the seas and the oceans, (In Ambassador Tommy Koh’s view, the UNCLOS was the new constitution of the oceans.), knowledge of BBNJ was limited.

Today we possess much more detailed knowledge of the vast biological content of the oceans, including on the ocean floor and sub soil. In the view of many delegations, a future instrument on the conservation and sustainable use of BBNJ would encompass the water column beyond national jurisdiction, and the areas of the seabed and the sub soil beyond national jurisdiction.

The existing UNCLOS regime and subsequent instruments under it (and other instruments relating to the seas and oceans) were considered by many to be inadequate for this vast area which promises enormous potential benefits to humanity, including commercial possibilities.

As the Economist recently pointed out, the oceans produce three trillion dollars worth of goods and services annually and are of untold value for the earth’s ecology. This huge life sustaining asset must be utilised with the interests of the current and future generations in mind.

The majority of the delegations focused their interventions on the “Area” as defined in the UNCLOS. This area contains a significant part of the world’s biomass, and as it became evident during the BBNJ work-shops held in 2013, this area and the water column could contain a major share of the world’s bio-diversity.

The objective of a new instrument would be multi dimensional – the conservation and sustainable utilisation of this vast resource for the benefit of humanity, as well as equitable benefit sharing from such utilisation.

The difficult issue of benefit sharing relating to pharmaceutical and related advances made resulting from research on biological material obtained from areas beyond national jurisdiction will need careful consideration as discussions progress, especially where intellectual property rights are involved.

The question of managing the oceans to conserve biological material while sustainably using them and establishing marine protected areas was also discussed. The long term benefits of marine protected areas is being acknowledged more and more. The concept of area based management has been linked to the need for detailed science based criteria.

The areas to be subject to such management must be identified keeping in mind the commercial benefits and the goal of conservation.

The question of access to and benefit sharing of marine genetic material mined or harvested from the areas covered by such an instrument and further developed needs to be addressed consistent with established principles.

Many delegations articulated the view that this area should not be treated as a new frontier for uncontrolled exploitation where the genetic resources are ravaged and the weak are excluded. The relevant genetic material has to be defined in a practical manner to facilitate identification.

Perhaps the broad model of the Seabed Authority may be adapted for use in this context in developing a mechanism for this purpose.

Alongside the discussion of the principles relating to access and benefit sharing, it would be necessary to build a structure that would facilitate the enhancement of the technical skills of countries, some of whom lack skills even for the purpose of identifying the benefits which they could share.

As was heard during the workshops last year, the technological skill levels and scientific capabilities that can be deployed for research and development with regard to BBNJ are limited to a small number of countries today.

Many delegations acknowledged that the costs incurred and resources expended in conducting research and in developing new products need to be kept in mind but this should not mean that benefits gained from exploiting the biomass from ocean areas beyond national jurisdiction should be limited to a few. This will be an important aspect to be addressed at future discussions.

Many delegations took the view that there should be an obligation for all states to cooperate in the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.

*Dr Palitha Kohona is Sri Lanka’s Permanent Representative to the United Nations and a former Chief of the UN Treaty Section. The Working Group was co-chaired by Dr Liesbeth Lijnzaad of the Netherlands and Ambassador Kohona.

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