Category: Biodiversity beyond national jurisdiction (BBNJ)

By: Kristine Gu

PDF version: https://site.uit.no/jclos/files/2019/03/JCLOS-Blog-22.3.2019-Kristine-Gu.pdf

Document commented on: President’s aid to negotiations on the international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/Conf.232/2019/1.

The year 2020 will be a milestone year for the UN’s Sustainable Development Goals (SDGs) and an opportunity to reflect on the progress made, and the hurdles still ahead, in attaining these goals. SDG 14 addresses the conservation and sustainable use of the oceans, seas, and marine resources. It sets out to tackle several issues by 2020 that plague the marine environment, including overfishing and ocean acidification, and to manage marine ecosystems to avoid significant adverse impacts (Targets 14.2–14.4). SDG 14 points to the UN Convention on the Law of the Sea (LOSC) as the legal framework for the conservation and sustainable use of the ocean and marine resources (Target 14.C).

2020 also coincides with the final substantive session of the intergovernmental conference (IGC) on an international legally binding agreement (ILBI) under LOSC on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). Key elements of the ILBI will not only uphold LOSC mandates but also provide the tools essential to achieving the targets under SDG 14.

The first session of the IGC convened in September of last year. Discussions were centered around the four key elements of the “package deal” agreed upon in 2011, including environmental impact assessments (EIAs). An overview of the history and objectives of the IGC and the ILBI are provided for in the JCLOS blog posts of 17 August 2015 by Anna-Maria Hubert and 21 October 2016 by Christian Prip.

Delegates will gather again in New York at the end of this month for the second session of the IGC, with a focus on the Zero-Draft contained in the IGC President’s Aid to Negotiations (A/Conf.232/2019/1). Options to treaty text in the Zero-Draft take into consideration discussions from the first session, as well as the Preparatory Committee’s (PrepCom) recommendations in its 2017 report (A/AC.287/2017/PC.4/2), to reflect the general trend in the current dialogue.

This blog post focuses on the treatment of strategic environmental assessments (SEAs) by the IGC within the ambit of the EIA Working Group with a view to demonstrating the role of SEAs in pursuing SDG 14 and in the good governance of marine biodiversity. The post first lays out the nature and purpose of SEAs, and their use in existing environmental agreements. It then reviews delegate positions from the first session and as reflected in the Zero-Draft to uncover the ways in which SEAs may be developed in the ILBI.

By: Vito De Lucia

PDF version: https://site.uit.no/jclos/files/2019/03/JCLOS-Blog-21.3.2019-Reflecting-on-the-meaning-of-not-undermining-ahead-of-IGC-2-3.pdf

Matter commented on: Intergovernmental Conference on marine biodiversity in areas beyond national jurisdiction

Introduction

After years of preliminary and preparatory discussions, the United Nations General Assembly (UNGA) (A/RES/72/249) finally launched an intergovernmental conference (IGC) with the purpose of adopting a new global treaty on marine biodiversity in areas beyond national jurisdiction (BBNJ). The IGC is soon to hold its second substantive session (IGC-2) following an organizational meeting held in April 2018, and a first substantive session (IGC-1) held in September 2018. IGC-1 has arguably shown progress, though not on certain key issues, such as the legal status of marine genetic resources, and a regime to share the benefits arising from their utilization. One of the questions that remains unresolved is the meaning of a key sentence that delimits the mandate of the IGC vis-à-vis existing bodies and institutions. UNGA Resolution 72/249 sets out that the new instrument “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”. Given that the IGC is moving towards text-based negotiations, and that one of the crucial negotiating issues is the institutional architecture, and further, that the interaction between a future BBNJ agreement and existing legal instruments and frameworks and other global, regional and sectoral bodies will be inevitable, it is perhaps time to address and resolve this issue. This post offers some inputs with the aim of furthering the debate on the meaning of “not undermining.”

By: Christian Prip

PDF version: https://site.uit.no/jclos/files/2018/11/JCLOS-Blog_A-global-treaty-on-the-conservation-and-sustainable-use-of-marine-biodiversity-of-areas-beyond-national-jurisdiction.pdf

Matter commented on: First session of Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 4 – 17 September, 2018, New York.

A process towards an international legally binding instrument (ILBI) under the Law of Sea Convention on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) has been under way for 14 years operating under different mandates of the UN General Assembly establishing different negotiating groups. Overviews and the history of the process are provided in JCLOS blog posts of 17 August 2015 by Anna-Maria Hubert and of 21 October 2016 by this author.

The latest phase in this long process was triggered by UNGA resolution 72/249 authorizing an Intergovernmental Conference (IGC) to elaborate the text of an international legally binding instrument. The IGC held its first meeting in September 2018. The meeting was mainly used to clarify positions of different delegations on the elements of the package agreed in 2011 as the basis for the instrument. These are:

– marine genetic resources, including questions on the sharing of benefits,
– measures such as area-based management tools, including marine protected areas,
– environmental impact assessments and
– capacity-building and the transfer of marine technology.

Real negotiations on a text will start at the second session of the IGC, 25 March – 5 April 2019. For that purpose, the IGC President will prepare a document containing treaty-language and reflecting options on the four elements in accordance with the range of the diverging views expressed at IGC1. A third and a fourth meeting will take place in late 2019 and early 2020.

This blog post offers some thoughts on the relevance of a future legal instrument for the protection of biodiversity in the Arctic Ocean (AO), its relationship with existing instruments governing the AO and on whether Arctic States should move ahead of the global process with regard to protection of the AO.

By: Anna-Maria Hubert and Neil Craik

PDF-version: Towards Normative Coherence in the International Law of the Sea for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

Document commented on: International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/72/249, provisionally available as document A/72/L.7.

This past November, based on the recommendations of the Preparatory Committee (PrepCom) established under General Assembly Resolution 69/292, the UN General Assembly agreed in Resolution 72/249 to convene an intergovernmental conference ‘to consider the recommendations of the preparatory committee on the elements and to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, with a view to developing the instrument as soon as possible’ (para 1).

One of the many unresolved issues to be faced in the upcoming negotiations concerns how a new legal instrument will be situated within an increasingly dense, and fragmented, legal and institutional landscape. The Chair’s Overview of the Third PrepCom Session highlights the relationship between agreements as an important cross-cutting issue, stating that ‘going forward, it would be useful to further consider how to articulate the relationship between a new instrument and the arrangements established there under with relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’ (page 5).

This blog post offers some thoughts on how a new legal instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) can be conceived of within the wider legal and institutional landscape of the law of the sea and public international law. Specifically, it explores the question of what relationship a new legal instrument should have to other relevant agreements, including the 1982 UN Convention on the Law of the Sea (LOSC).

By: Vito De Lucia

PDF Version: The Ecosystem Approach for Areas Beyond National Jurisdiction: Reflections on the Chair’s non-paper ahead of “PREPCOM III”

Matter commented on: Chair’s non-paper “On elements of a draft text of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”, dated 28 February 2017.

In a JCLOS blog post of 17 August 2015, Anna-Maria Hubert provided an overview of the UN General Assembly (UNGA) resolution (A/RES/69/292) to begin a process towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (ABNJ). In a second JCLOS blog post on the topic in October 2016, Christian Prip provided an overview of the progress that had been made in the interim. The preparatory committee (PREPCOM) established by UNGA Resolution 69/292 has held two meetings to date, the latest being in August-September 2016. The Chair of the PREPCOM (HE Mr. Eden Charles of Trinidad and Tobago) has released a non-paper in advance of the PREPCOM III meetings in New York at the UN headquarters, March 27 – 7 April, 2017. In this blog post I briefly discuss the purpose of the non-paper within the context of the work being undertaken by PREPCOM, and reflect in detail on one particular aspect of the non-paper: the ecosystem approach.

By: Christian Prip

PDF Version: Towards a new legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction

Meetings commented on:  Meetings towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction in March/April and August/September, 2016.

In a JCLOS blog post of 17 August 2015, Anna-Maria Hubert provided an overview of the UN General Assembly resolution (A/RES/69/292) to begin a process towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (ABNJ). This post examines how the process has progressed since then.

By: Anna-Maria Hubert

PDF Version: UN General Assembly Resolution to develop a new legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction

Matter commented on: General Assembly Resolution – Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/69/292  

A recent review article in Science predicts a major extinction event in the oceans if human impacts on the marine environment go unchecked because of the ‘profoundly deleterious impacts’ that our activities are having on marine life (Douglas J McCauley and others, ‘Marine defaunation: animal loss in the global ocean’ (2015) 347 Science 247). Pressures on marine ecosystems, including ecosystems beyond national jurisdiction, arise from pollution, overfishing, expanded shipping, marine mining, energy development, intensified aquaculture, as well as ocean warming and acidification. The authors of the article still hold out some hope: there remains a chance that we can reverse this trend if we engage in more effective management of the oceans and if we can slow climate change.