A Very Quick Look at the Revised Draft Text of the new Agreement on Marine Biodiversity in Areas beyond National Jurisdiction

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On 27 November 2019 the President of the Intergovernmental Conference (IGC) on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ) issued a revision of the Draft text of an agreement 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 revised draft text will serve as the basis for the next round of negotiations, to take place in March/April 2020. Its primary focus, as the President observes in the accompanying note, is “on streamlining the text” (p. 2), including by way of eliminating certain options which had not received any support during IGC-3, reformulating others, and including new language yet elsewhere. The structure of the revised text remains however “largely unchanged” (p. 2), and indeed, also the length of the document. Finally, the President invites delegations to submit further proposal between 2 January and 3 February, which will be then compiled in a single document ahead of IGC-4. It is important to note that IGC-4 is the last scheduled negotiating session, and the initial goal was to have an agreement adopted by then. However, given the state of the negotiations at the end of IGC-3, it seems extremely unlikely, if not altogether impossible, that this goal can be achieved. This impression is further supported by a quick review of the revised draft. While length need not be a factor, even a quick read-through of the text reveals how little progress has been made, which reflects the outcome of IGC-3. Additionally however, the President has been very careful in “streamlining” the options, in line with the constant reminder from the room that this is a State-driven process, a reminder which also inevitably poses important limitations on the President. However, a process as complex as these negotiations, with many entrenched positions on all the key issues, needs a strong, active guidance from the President and from the working group facilitators, something which for the most part has perhaps been lacking.

So, what is new in the revised draft text? While a thorough review is not possible here, the post will highlight some of the novelties of the text that stood out as I read the draft for the first time.

The first point to note is that the principle of the common heritage of mankind makes it back into the revised draft. Express mention of the principle had been expunged from the previous draft, and that had elicited strong reactions at IGC-3. Algeria, for example, speaking on behalf of the African Group, had observed during the initial exchange of views how “adopting a new BBNJ instrument without this principle [i.e. common heritage] would be like giving life to a treaty of this importance without a soul, or like putting a ship in the water without a navigational instrument”. Also, Palestine, intervening on behalf of the G77/China during the informal working group on cross-cutting issues, emphasized very clearly their strong support for the inclusion of the CHM as perhaps the central guiding principle of the entire BBNJ treaty (personal observation). The question of the common heritage of mankind (and especially whether it is applicable to marine genetic resources located in the Area) has been a key negotiating issue from the very beginning of the BBNJ process in 2004. The revised draft re-inserts it, under article 5, on general principles, albeit bracketed (which indicates no convergence of views). What remains to be seen is whether this inclusion will be sufficient, assuming for a second that it will be accepted, to appease the wishes of the G77/China, considering how the text proposals submitted by the G77/China in this respect during IGC-3 puts the common heritage at the core of the negotiations and spell out a number of “consequences” that will be meet significant resistance:benefit sharing must be mandatory; benefits must be equitably shared among all States; benefits to be shared must be both monetary and non-monetary (whereby most developed countries delegations are ready to support only non-monetary benefits); all activities of exploration or exploitation with respect to MGRs in areas beyond national jurisdiction must be governed by an international regime(CRP A/CONF.232/2019/MGR/CRP.4).

Another principle that had been deleted from the list of general principles in the previous draft, and that was reinserted, without brackets, after a clear mandate from IGC-3, is the ecosystem approach. This is in general good news, as the ecosystem approach, for all its complexities, remains arguably an important framing for the future BBNJ treaty. Additionally, it will play an important role in relation to two of the other topics under negotiations: area based management, including marine protected areas and environmental impact assessments, each of which includes reference to the principle of some of its constituent elements. The question remains though: what will this inclusion mean? The devil is always in the details, and the details on how to articulate an ecosystem approach in the future BBNJ text remain to date arguably sparse and disconnected.

A further element worth noting relates to another important question that remains also unresolved. UNGA resolution 72/249, which launched the IGC in 2017, “recognized” that the IGC “process and its result should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies” (para 7). The meaning of not undermining remains however ambiguous (see e.g. Scanlon, De Lucia), with some delegations being particularly afraid that a new BBNJ treaty may compromise the ability of key regional and/or sectoral bodies to carry out their mandate, or that the future BBNJ treaty may cut into their competence. Throughout the negotiations the focus on not undermining has been however balanced by a parallel focus on the need to articulate the relation between the new BBNJ treaty and regional and/or sectoral instruments and bodies in terms of cooperation, coordination, coherence and complementarity. These options were all included, in one form or another, in article 4 of the June draft text prepared ahead of IGC-3. The revised draft unsettles this balance, hwoever, as some key options have been deleted from article 4(3). Other minor changes regard the insertion of “subregional” to the list of bodies not to be undermined, so that the obligation not to undermine would now refer to global, regional and subregional bodies. Finally, the revised draft contains an important, if expected, the deletion. The word “existing” has been indeed deleted from the text of article 4, to indicate, on the basis of a significant consensus expressed by delegations at IGC-3, that the obligation not to undermine should be applicable also in relation to instruments and bodies with regional or sectoral competence that may be adopted in the future. The risks of very significant and unfortunate restrictions on the new BBNJ treaty arising from this deletion are however clearly present.

A final point to highlight in this quick first reaction to the revised text is the insertion of a new provision, article 10 bis. Article 10 bis is located in the part of the revised text dedicated to marine genetic resources, and deals with on access to traditional and indigenous knowledge associated with marine genetic resources. It is fully bracketed, but it is very interesting as it reflects the positions expressed by several groups of countries, notably the PSIDS and AOSIS, throughout the process in relation to the need to safeguard the interests of indigenous peoples and local communities. In this respect, article 10 bis would oblige State parties to adopt rules requiring biopropectors to obtain free, prior and informed consent in order to access traditional knowledge associated to marine genetic resources and held by indigenous peoples and local communities. Additionally, the provision stipulates that rules should be established to ensure that access to such knowledge “shall be on mutually agreed terms”. Obviously, the key question is whether this provision will make it into the final text, and there is a strong suspicion that it may not. However, the insertion is a small victory in and of itself, as it will catalyze debate on how to effectively take into consideration the interests of indigenous peoples and local communities which hold, indeed, a traditional knowledge on high seas biodiversity.

To conclude, the general impression is that the revised draft text is a careful document that fully reflects the complexities and difficulties of a negotiating process that proceeds slowly and seems unable to address most of the fundamental disagreements. The initial strategy of the President appears to have been a pragmatic one, trying to avoid principled confrontation, and thus hoping to stimulate concrete progress of the substance. This strategy has not, at best, born sufficient fruit, as the strong reactions to the deletion of references to the principle of common heritage of mankind in the draft text prepared ahead of IGC-3 have clearly illustrated. Of course, the topic of marine genetic resources is the most difficult element of the negotiating package. Some would perhaps also argue that it gets in the way of adopting much needed rules to attend to the conservation of marine biodiversity in areas beyond national jurisdiction. Yet will the IGC find a balance between the conservation of marine biodiversity, its sustainable use, and the equitable sharing of benefits that may arise from the utilization of the marine genetic resources of the deep sea?

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