An International Instrument on Conservation and Sustainable Use of Biodiversity in Marine Areas beyond National Jurisdiction

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1 An International Instrument on Conservation and Sustainable Use of Biodiversity in Marine Areas beyond National Jurisdiction Exploring Different Elements to Consider Series of Policy Briefs on Scope, Parameters and Feasibility * Commissioned by the German Federal Agency for Nature Conservation with funds from the German Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety. * DISLAIMER: The views expressed in this paper do not necessarily reflect those of the German Federal Agency for Nature Conservation or the German Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety.

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3 Table of Content Paper I: Introduction on Scope, Parameters and Feasibility 1 Paper II: Enhancing Cooperation and Coordination 7 Paper III: Options and Approaches for Access and Benefit-sharing 15 Paper IV: Governance Principles 23 Paper V: Understanding Area-based Management Tools and Marine Protected Areas 31 Paper VI: Options and Approaches for Establishing and Managing MPAs in ABNJ 37 Paper VII: Relation between Environmental Impact Assessments, Strategic Environmental Assessments and Marine Spatial Planning 57 Paper VIII: Options for Environmental Impact Assessment Elements 65 Paper IX: Technology Transfer and Capacity-building 71 Paper X: Existing Regulatory, Institutional and General Governance Gaps 77 Paper XI: Basic Ideas for a Possible Institutional Structure 83 Paper XII: International Procedures to Ensure Science-based Decision-making 87 Paper XIII: Compliance and Verification Mechanisms 101

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5 Paper I Introduction on Scope, Parameters and Feasibility By Thomas Greiber, with comments from Kristina Gjerde, Elisabeth Druel and Duncan Currie 1. Background At the 2012 United Nations Conference on Sustainable Development (Rio+20), States committed themselves to address, on an urgent basis, building on the work of the Ad Hoc Open-ended Informal Working Group and before the end of the sixty-ninth session of the General Assembly, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the United Nations Convention on the Law of the Sea. 1 This commitment was recalled and reaffirmed by the United Nations General Assembly (UNGA) in its 67 th and 68 th session. 2 In its resolution 68/70, the UNGA also requested the United Nations Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (UN Working Group) to make recommendations to the UNGA on the scope, parameters and feasibility of an international instrument under the Convention. 3 These recommendations shall help to prepare for the decision to be taken at the 69 th session of the UNGA in 2015, whether to start the negotiation of an international instrument on the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (ABNJ). The International Union for Conservation of Nature (IUCN) in collaboration with different partners has prepared a series of policy briefs to provide technical input to the ongoing ABNJ discussions, and thereby support the UNGA decision-making process. The following paper provides an overall framework for this using the Arms Trade Treaty (ATT) as a potential model and case study. Through comparison to the ATT, it aims to explore the meaning of the wording scope, parameters and feasibility of an international instrument in order to better understand what issues to consider in the context of ABNJ, and which topics to address in the series of IUCN policy briefs. 2. Origin of the Terms Scope, Parameters and Feasibility The wording scope, parameters and feasibility of an international instrument originates from the international process leading to the negotiations of the ATT which was finally adopted by the UNGA on 2 April, It is therefore useful to take a brief look at the history of the ATT process as well as its interpretation of the terms scope, parameters and feasibility. In 2006, the UNGA adopted resolution 61/89 which called on the Secretary-General to seek the views of Member States on the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer 1 UNGA resolution 66/288. The future we want. UN doc. A/RES/66/288, of 11 September Paragraph UNGA resolution 67/78. Oceans and the law of the sea. UN doc. A/RES/67/78, of 11 December Paragraph 181. UNGA resolution 68/70. Oceans and the law of the sea. UN doc. A/RES/68/70, of 9 December Paragraph UNGA resolution 68/70. Oceans and the law of the sea. UN doc. A/RES/68/70, of 9 December Paragraph For further information, visit the Website of the United Nations Office for Disarmament Affairs at (last visited on 13 November 2013). 1

6 of conventional arms. 5 Furthermore, the Secretary-General was requested to establish a group of governmental experts to examine the feasibility, scope and draft parameters for such an instrument. 6 In response to that, a report of States views was issued in August 2007 indicating growing support across many regions for an international treaty. 7 Another report from the group of governmental experts was prepared in August 2008 which, however, did not offer concrete suggestions due to the complexity of the issues at stake. 8 In resolution 63/240 of 2009, the UNGA therefore established an open-ended working group to further consider the feasibility, scope and draft parameters in order to gather sufficient consensus. 9 The working group convened twice that year to hear statements of numerous State representatives, as well as observers, after which it had an informal exchange of views with representatives of civil society. 10 In January 2010, the UNGA resolution 64/48 endorsed the working group report, and agreed to convene a UN Conference on the ATT in 2012 to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms. 11 To that end, the UNGA requested the Secretary-General to seek the views of Member States on proposed treaty elements, while converting the working group to a preparatory committee for the conference. 12 The following similarities and differences between the process leading to the ATT and the process under the UN Working Group on biodiversity in ABNJ can be identified: In the ATT process, a vast majority of States were initially already in favour of a legally binding instrument to establish international standards, with the US as one of the key players opposing such an instrument. Similarly, in the UN Working Group on biodiversity in ABNJ the concept of an implementing agreement has been supported by the EU and G77 and many other States, with the US as a key player opposing such an instrument. The ATT working group was first established to consider how to achieve sufficient consensus for a legally binding treaty, and only in a second step was it converted into a preparatory committee for a negotiation conference. The current process in the UN Working Group on biodiversity in ABNJ is in part designed to determine if there is sufficient consensus for a legally binding treaty. Many States are ready to convert it into a preparatory process. 5 UNGA resolution 61/89. Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms. UN doc. A/RES/61/89 of 18 December Paragraph 1. 6 Ibid. Paragraph 2. 7 Toward an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms Report of the Secretary-General. UN doc. A/62/278, of 17 August Parts I, II & Add Report of the Group of Governmental Experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms. UN doc. A/63/334, of 26 August UNGA resolution 63/240. Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms. UN doc. A/63/240, of 8 January Paragraph Report of the Open-ended Working Group towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms. UN doc. A/AC.277/2009/1, of 20 July UNGA resolution 64/48. The arms trade treaty. UN doc. A/64/48, of 12 January Paragraph Ibid. Paragraphs 6 and 9. 2

7 Initially, the exercise of collecting views on scope, feasibility and desired parameters of a potential ATT had the objective to identify whether there was broad support for such an instrument; only then did this consultation aim at determining potential building blocks of a future regime. In 2011, the UN Working Group on biodiversity in ABNJ identified the package of building blocks for a new regime; the focus now is to determine if there is sufficient support. An important role was played by non-governmental organizations and civil society to enhance cooperation, improve information exchange and transparency, and assist States in implementing confidence-building measures in the field of responsible arms trade. Though still at an early stage, non-governmental organizations have been and continue to be actively engaged in all meetings of the UN Working Group on biodiversity in ABNJ, starting with the initial meeting in 2006 and leading to the present. 3. Scope In the ATT process, States were first requested to consider elements of the conventional arms trade that should be included in the scope of the future arms trade treaty. 13 The views submitted by Member States, in general, interpreted scope to mean the types of conventional arms, ammunition, related equipment, and transfers the treaty should cover. 14 The ATT group of governmental experts understood scope as the types of weapons, activities, and/or transactions to be covered by the ATT. 15 In the context of the UN Working Group on biodiversity in ABNJ, the term scope could therefore be interpreted as referring to questions on: Substantive scope Substantive scope means the actual resources and activities that should be addressed by an international instrument for ABNJ under the United Nations Convention on the Law of the Sea (UNCLOS). As agreed by the 2011 UN Working Group, the scope would include marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, and environmental impact assessments, capacity-building and the transfer of marine technology together and as a whole in a single package. 16 To reflect existing obligations under the Convention on Biological Diversity and customary international law, an international instrument would logically apply to those activities and processes under national jurisdiction and control that have the potential to adversely affect marine biodiversity beyond national jurisdiction. A particular challenge in this context is how to address management of 13 Toward an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms Report of the Secretary-General. UN doc. A/62/278, of 17 August Part I, Paragraph Toward an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms Report of the Secretary-General. UN doc. A/62/278, of 17 August Parts I, II & Add Report of the Group of Governmental Experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms. UN doc. A/63/334, of 26 August Paragraph UNGA resolution 66/231. Oceans and the law of the sea. UN doc. A/RES/66/231, of 24 December Paragraph

8 activities and any decisions regarding the management of a specific sector where activities are already regulated by existing competent authorities and legally binding instruments (e.g. Regional Fisheries Management Organizations, the International Maritime Organization, the International Whaling Commission, as well as related agreements). The specific question of how to enhance cooperation and coordination to ensure a coherent implementation of any new international instrument is further addressed in Paper II of this IUCN series. Geographical scope Geographical scope refers to the maritime zones to be covered by the international instrument, namely ABNJ which comprise the high seas and the Area. For example, for the sharing of benefits from the utilization of marine genetic resources from ABNJ it needs to be considered that such resources move between the benthic zone (i.e. the Area) and the pelagic zone (i.e. the water column above), and that from a scientific as well as managerial point of view a comprehensive regime covering the entire ABNJ appears to be indispensable. This particular concern is raised in Paper III which focuses on benefit-sharing issues. Level of detail Furthermore, it should be noted that in the ATT context, the group of governmental experts also discussed under scope the balance between broad definitions that remain adaptable to technological advances and more detailed definitions that potentially require more regular review. 17 Agreement was reached that in all cases, clarity in terms of purpose and implementation would be necessary. 18 This leads to the question of how detailed the overarching instrument should be, and what might be left to annexes or supplementary instruments (decisions, regulations, guidelines) for specific issues, to incorporate new information, or to enhance ease of decision-making, for example, on designation of marine protected areas (MPAs), adoption of management plans, conduct of environmental impact assessments (EIAs), etc. 4. Parameters With regard to parameters, in the ATT process, States were requested to consider principles, guidelines and parameters that should govern the international transfer of conventional arms. 19 The views submitted by Member States interpreted parameters as analogous to guidelines, conditions, and criteria to be applied to international trade in conventional arms. 20 The ATT group of governmental experts discussed principles, themes, and operational mechanisms of a potential treaty under parameters. The Charter of the United Nations, international human rights law, and international humanitarian law were all put forward as relevant treaty principles. Thematic areas included diverse issues, such as terrorism, organized crime, regional stability, socio-economic development, compliance with Security Council arms embargoes and other international 17 Ibid. Paragraph Ibid. 19 Toward an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms Report of the Secretary-General. UN doc. A/62/278, of 17 August Part I, Paragraph Ibid. Parts I, II & Add

9 obligations. 21 Operational mechanisms included information-sharing and exchange, reporting mechanisms, and international cooperation and assistance. 22 In the ABNJ context, the term parameters could therefore be interpreted as covering: General governance principles An overview of the most relevant governance principles in the context of conservation and sustainable use of marine biodiversity in ABNJ, as well as different approaches on how to include such principles in an international instrument for ABNJ under UNCLOS is provided in Paper IV. Operational mechanisms The key operational mechanisms for implementation of a future international instrument for ABNJ would need to be developed for the issues identified in resolution 66/ These include Area-based management tools (ABMT), including MPAs: Paper V reviews different definitions on MPA and ABMT, Paper VI discusses various options and approaches for establishing and managing MPAs through an international instrument for ABNJ under UNCLOS, providing also references to related case studies. EIAs: Paper VII explains the relation between EIAs, strategic environmental assessments and spatial planning, while Paper VIII proposes potential EIA elements, screening criteria and thresholds reflecting minimum to maximum options. Benefit-sharing: Paper III discusses potential options for sharing the benefits from the utilization of marine genetic resources from ABNJ (see above). Capacity-building and transfer of marine technology: Paper IX looks into issues related to capacity-building and technology transfer, as well as current practices. Operational measures would also include institutional mechanisms to enhance cooperation, coordination and coherency such as a conference of parties, a secretariat, a science body, compliance review mechanisms and a funding system (see Paper II). Paper XI aims to provide basic ideas for a possible institutional structure, while Paper XII reviews different international procedures to ensure science-based decision-making. Paper XIII analyses compliance and verification mechanisms under different multilateral environmental agreements. 5. Feasibility Finally, in the ATT process, States were requested to consider any other features that might contribute to the development and adoption of an effective arms trade treaty. 24 Feasibility implied both the process and foundation by which a comprehensive, legally-binding, and enforceable treaty 21 Report of the Group of Governmental Experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms. UN doc. A/63/334, of 26 August Paragraph Ibid. Paragraphs UNGA resolution 66/231. Oceans and the law of the sea. UN doc. A/RES/66/231, of 24 December Paragraph Toward an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms Report of the Secretary-General. UN doc. A/62/278, of 17 August Part I, Paragraph 3. 5

10 may be agreed upon. The report developed by the ATT group of governmental experts concluded that a feasible treaty would need to respect state sovereignty and be fair, objective, balanced, nonpolitical, non-discriminatory and universal within the framework of the United Nations. 25 It also recognized that the question of feasibility had both political and technical dimensions. 26 Finally, it is important to note the understanding of experts that feasibility was dependent on collective agreement around the treaty s clearly defined scope and parameters, objectives, practical applicability, resistance to political abuse, and potential for universality. In the context of the ABNJ process, the term feasibility could therefore be interpreted as referring to: General need for a new instrument Given the fact that cumulative pressures on biodiversity in ABNJ increase, and potential additional threats from future forms of utilization arise, the question has to be posed whether the traditional regional and sectoral governance approach still adequately serves the present needs of marine biodiversity conservation. Paper X briefly summarizes the existing regulatory, institutional and general governance gaps related to the conservation and sustainable use of biodiversity in ABNJ. Technical feasibility Multilateral legally binding instruments have been established in different policy areas where international cooperation is necessary to achieve collectively agreed objectives. Two Implementing Agreements have also been successfully negotiated and adopted under UNCLOS. A potential international instrument for biodiversity in ABNJ could therefore take advantage of the lessons learned from implementing these agreements, but also of modern technologies which have opened a window on the sea, enabling improved observation and monitoring of remote activities, species and oceanographic conditions. Political feasibility States may wish to discuss the prospects for negotiation of an international instrument for biodiversity in ABNJ, possible timeframes for a diplomatic conference and modalities for entry into force (such as provisional application). 25 Report of the Group of Governmental Experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms. UN doc. A/63/334, of 26 August Paragraph Ibid. Paragraph 15. 6

11 Paper II Enhancing Cooperation and Coordination By Kristina Gjerde, with Elisabeth Druel and Duncan Currie 1. Background At the 2012 United Nations Conference on Sustainable Development (Rio+20), States committed themselves to address, on an urgent basis, building on the work of the Ad Hoc Open-ended Informal Working Group and before the end of the sixty-ninth session of the General Assembly, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the United Nations Convention on the Law of the Sea. 1 This commitment was recalled and reaffirmed by the United Nations General Assembly (UNGA) in its 67 th and 68 th session. 2 In its resolution 68/70, the UNGA also requested the United Nations Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (UN Working Group) to make recommendations to the UNGA on the scope, parameters and feasibility of an international instrument under the Convention. 3 These recommendations shall help to prepare for the decision to be taken at the 69 th session of the UNGA in 2015, whether to start the negotiation of an international instrument on the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (ABNJ). The International Union for Conservation of Nature (IUCN) in collaboration with different partners has prepared a series of policy briefs to provide technical input to the ongoing ABNJ discussions, and thereby support the UNGA decision-making process. As indicated in Paper I, one of the issues to be discussed under scope could be enhancing cooperation and coordination. The following paper aims to provide an overview of the challenges to securing cooperation and coordination for the conservation and sustainable use of marine biodiversity in ABNJ as well as different approaches for improving cooperation and coordination through an international instrument for ABNJ under the United Nations Convention on the Law of the Sea (UNCLOS). 2. Existing Legal and Policy Framework The duty to cooperate for the protection and preservation of the marine environment and the conservation of marine biodiversity in ABNJ is evidenced in multiple legal instruments and called for in many declarations. UNCLOS in Article 197 provides: States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and 1 UNGA resolution 66/288. The future we want. UN doc. A/RES/66/288, of 11 September Paragraph UNGA resolution 67/78. Oceans and the law of the sea. UN doc. A/RES/67/78, of 11 December Paragraph 181. UNGA resolution 68/70. Oceans and the law of the sea. UN doc. A/RES/68/70, of 9 December Paragraph UNGA resolution 68/70. Oceans and the law of the sea. UN doc. A/RES/68/70, of 9 December Paragraph

12 elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features. UNCLOS Article 118 further calls for cooperation with respect to the conservation and management of living resources: States shall co-operate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. [ ] The Convention on Biological Diversity (CBD), currently with 193 Contracting Parties, contains an explicit reference to cooperation in ABNJ. Article 5 provides that each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interesting, for the conservation and sustainable use of biological diversity. The Agreement on the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement) also contains a complementary duty in Article 5 (g), requiring coastal States and States fishing on the high seas, in giving effect to their duty to cooperate, to protect biodiversity in the marine environment, amongst other actions for the conservation and sustainable use of straddling fish stocks and highly migratory fish stocks. Goals and objectives for this cooperation have also evolved in more recent declarations, resolutions and commitments. At the 2002 World Summit on Sustainable Development (WSSD), governments committed to improving ocean conservation and management through actions at all levels, giving due regard to the relevant international instruments. Specifically, they committed to [d]evelop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods, proper coastal land use and watershed planning and the integration of marine and coastal areas management into key sectors. 4 In 2002 the UNGA welcomed the WSSD commitments and called upon States and relevant international organizations at all levels urgently to consider ways of integrating and improving, on a scientific basis, the management of risks to vulnerable marine biodiversity within the framework of the UNCLOS, consistent with international law and the principles of integrated ecosystem-based management. 5 The UN Working Group on ABNJ was established in 2004, to indicate, among other things, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. 6 At the 2012 UN Summit on Sustainable Development (Rio+20), government leaders in paragraph 158 committed to protect, and restore, the health, productivity and resilience of oceans and marine ecosystems, and to maintain their biodiversity, enabling their conservation and sustainable use for present and future generations, and to effectively apply an ecosystem approach 4 World Summit on Sustainable Development. (2002). Agenda 21 Plan of Implementation. Paragraph 32(c). 5 UNGA resolution 57/141. Oceans and the Law of the Sea. UN doc. A/RES/57/141, of 12 December UNGA resolution 59/24. Oceans and the Law of the Sea. UN doc. A/RES/59/24, of 17 November

13 and the precautionary approach in the management, in accordance with international law, of activities impacting on the marine environment, to deliver on all three dimensions of sustainable development. 3. Challenges However, currently existing institutions are operating independently based on sectoral mandates without an overarching framework that could provide an efficient and effective structure, and without the necessary mechanisms ensuring coordination, consistency and coherence. 7 As such, sectoral organizations are not sufficiently cooperating towards the common goals. As is recognized in the political science literature, interplay amongst institutions is possible but it requires institutions to be interacting based on a common purpose and set of principles in a nonhierarchical way. 8 An integrated, ecosystem-based approach accordingly requires the involvement of all sectors, compatibility between policies and activities, as well as a balance of uses. 9 While there has been some progress towards fostering the cooperation and coordination in ABNJ, many challenges remain. Based on the experiences of existing regional processes, challenges include: 10 Lack of common principles To date, it has been difficult to agree on a shared interpretation of governance principles at a regional or global level, such as ecosystem-based management, the precautionary principle vs. approach, or even transparency and public participation. Owing to the different histories of each sectoral and regional organization, there are no commonly shared principles or shared interpretation of them. Limited substantive and geographic mandates International organizations can only act within the specific terms of their respective jurisdictions and mandates (principle of speciality). 11 Some regional fisheries management organizations (RFMOs), for example, have mandates pre-dating the UN Fish Stocks Agreement with single species mandate. 12 RFMO mandates may thus not explicitly include the protection or conservation of marine biodiversity in ABNJ, or the obligation to cooperate for these purposes. The geographic ambit of most regional 7 Tladi, D. (2011). Ocean governance a fragmented regulatory framework. In: Jacquet, P., Pachauri, R., Tubiana, L., ed. Oceans: the new frontier a planet for life. Delhi: Teri Press. P Orsini, A., J.-F. Morin and O. Young. (2013). Regime complexes: a buzz, a boom, or a boost for global governance? Global Governance 19. P Earth Summit. Agenda 21: The United Nations Action Programme from Rio. Paragraph 17.5(a). Available at: 10 Freestone, D., Johnson, D., Ardron, J., Killerlain Morrison, K., and Unger, S. (2014). Can existing institutions protect biodiversity in areas beyond national jurisdiction? Experiences from two on-going processes. Marine Policy. 11 International Court of Justice, advisory opinion of 8 July 1996, Legality of the threat or use of nuclear weapons, p.16, international organisations are governed by the principle of speciality that is to say they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. 12 See Ardron, J., Rayfuse, R., Gjerde, K. and Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: what can be achieved using existing international agreements? Marine Policy. 9

14 seas conventions (RSCs) is limited to marine areas within national jurisdiction, thus few have a direct mandate for biodiversity conservation in ABNJ. Difficulty integrating science across sectors Sectoral bodies may be reluctant to accept the results of scientific research and peer review originating outside their respective organizations. For example, the CBD has initiated a process to help States and competent organizations identify ecologically or biologically significant areas (EBSAs), but this status has so far had little impact on dealings with sectoral bodies. 13 Lack of specific coordinating mechanisms, policies or incentives Specific mechanisms, policies or incentives to coordinate activities and impacts across sectors or even within sectors beyond national jurisdiction are currently lacking. 14 For example, bottom contacting gear used for deep sea bottom fishing in the high seas could interfere with seabed mining operations and damage areas closed to seabed mining (as impact reference areas or preservation reference areas). Pollution from ships in eddies, gyres or other areas of low circulation could impair the health of high seas fish stocks and other forms of marine life. Additionally, seabed mining and deep sea bottom gear could adversely impact areas of importance for spawning of commercially important fish stocks. Similarly lacking are mechanisms, to coordinate activities affecting areas across national and international boundaries. 15 Activities such as seabed mining in the Area, for example, could have far reaching effects on water quality that might impact adjacent exclusive economic zones (EEZ). Similarly, deep seabed mining on the extended continental shelf could impact the high seas water column above. As well, the dumping of wastes from seabed mining is excluded from the London Convention 16 and the London Protocol 17 as disposal of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off-shore processing of sea-bed mineral resources' is not covered by their provisions. This is because it was envisaged that seabed mining waste would be addressed by the International Seabed Authority (ISA). However, the exclusions are not limited to the Area. The terms directly arising from, or related to are very broad and leave little room for doubt. 13 Ibid. 14 Gjerde, K.M, Ardron, J., Gotheil, S., Hanich, Q., Simard, F., Warner, R., Bernal, P., Garcia, S., Lee, J. Lodge, M., Meliane, M. Rice, J., Sanders, J., and Vestergaard, O. (2010). Modalities for advancing cross-sectoral cooperation in managing marine areas beyond national jurisdiction. Report for UNEP s 12th Global Meeting of the Regional Seas Conventions and Action Plans, 27 pp.. 15 Golytsyn, V. (2010). Major Challenges of Globalisation for Seas and Oceans: Legal Aspects. In Vidas, D. (ed.). LAW, TECHNOLOGY AND SCIENCE FOR OCEANS IN GLOBALISATION. Martinus Nijhoff, Leiden, Boston. P Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. Adopted 30 November 1972, entered into force 30 August Art III.1(c). 17 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, adopted 7 November 1996, entered into force 11 March 2008, (as amended in 2006). Art

15 Limited resources International organizations that do have a mandate for both conservation and cooperation may lack the technical or human resources, time, funding or information to collaborate with other regional or sectoral organizations. To achieve any progress towards cooperation between conservation and sectoral organizations to date, a great deal of time and effort has been required to align external and internal processes and actors, attend the various meetings required and get new items onto agendas. 18 Very few ocean regions currently have such capacity or resources to extend their sphere of activity absent either added resources or a high-level global mandate. 4. Possible Future Options and Approaches for Enhancing Cooperation and Coordination While a potential future international instrument for ABNJ should build on existing regional and sectoral institutions, the above described challenges in ABNJ need to be overcome. A central feature of any new instrument would therefore be mechanisms for securing cooperation and coordination for integrated, ecosystem-based management, capacity-building and marine technology transfer as well as for questions related to benefit-sharing of marine genetic resources. Options for enhancing cooperation and coordination include: Common governance principles Despite their very general nature, modern governance principles are fundamental and basic to more specific and concrete rights and obligations for cooperation, coordination and coherency. They would constitute a general framework within which the measures to achieve the objectives of the instrument would need to be taken. Such principles do not need to be developed from scratch but are already included in UNCLOS as well as different multilateral environmental agreements and international court decisions 19 (see Paper IV on governance principles). As in the UN Fish Stocks Agreement and other instruments, such principles could be made operational as specific articles of the main text of the international instrument. 20 Expansion of mandates Contracting Parties could specifically commit to cooperate to achieve the objectives of a new instrument, including through their participation in, and in cooperation with, competent international organizations such as the ISA, the International Maritime Organization, RFMOs and RSCs and through promotion of institutional reform and consistency with the governance principles as necessary to achieve the purposes of the instrument. Article 10 of the UN Fish Stocks Agreement provides a potential model, as it details the duties of States in exercising their duty of cooperation through RFMOs. However, based on recent experience, such a provision could more clearly call for Contracting Parties to proactively promote the implementation of the principles and objectives of 18 Freestone, D., Johnson, D., Ardron, J., Killerlain Morrison, K., and Unger, S. (in press). Can existing institutions protect biodiversity in areas beyond national jurisdiction? Experiences from two on-going processes. Marine Policy. 19 Freestone, D. A. (2009). Modern Principles of High Seas Governance: The Legal Underpinnings. 39/1 Environmental Policy and Law. P Druel, E., Gjerde, K.M. (2013). Sustaining marine life beyond boundaries: Options for an implementing agreement for marine biodiversity beyond national jurisdiction under the United Nations Convention on the Law of the Sea. Marine Policy. 11

16 the new instrument inside relevant competent organizations, and include a provision for regular review of implementation at the global level. An institutional framework A future international instrument could create an efficient, effective and transparent institutional framework to bring coherence and consistency to the currently fragmented governance system in ABNJ and to implement cooperation systematically. This would include the establishment of mechanisms to make sure that States as well as existing sectoral and regional organizations cooperate and coordinate their activities, and ensure the implementation of the regime and its principles and instruments in all regions. Institutional mechanisms could include a conference of parties, with a mandate to review and assess implementation and take decisions as necessary to promote effective cooperation, reform and compliance; a permanent secretariat, and a global scientific body (see Paper XI on basic ideas for a possible institutional structure and Paper XII on international procedures to ensure science-based decision-making). Provisions would need to be developed to address existing disincentives for cooperation such as the current imbalance of power between RFMOs and RSOs. The mandate of RFMOs and RSCs, for example, could be enhanced or established to facilitate such cooperation, coordination and coherency. At the same time, cooperation and coordination amongst and between sectoral organizations and RSCs would need to be enhanced to ensure that networks of marine protected areas (MPAs) are well-managed, connected and ecologically representative. Compliance mechanisms and procedures Mechanisms for compliance, verification, implementation, monitoring, and enforcement are often critical to ensuring cooperation and coordination in successful international legal instruments. They can build confidence and a shared understanding between the parties to the instrument; improve prospects for future cooperation; produce information to inform future multilateral environmental agreements; and provide measures to address non-compliance. 21 Many multilateral environmental agreements now have some form of compliance procedures, including specific compliance review panels. Typical non-compliance mechanisms are non-adversarial, include procedural safeguards, and take the totality of circumstances (i.e. the state, history, nature of violation, etc.) into consideration. Paper XIII analyses compliance and verification mechanisms under different multilateral environmental agreements, including relevant safeguards. In addition, States and the relevant organizations could enter into cooperative agreements for activities such as monitoring, surveillance and enforcement, as has been done in the South West Pacific region. 22 States, for example, could enter into agreements to pool resources, technologies and data, and authorize others to act on their behalf in enforcement actions in port and at sea. Such systems of mutual assistance are already common in the context of customs and taxes. 21 Jabour, J. et al. (2012). Internationally agreed environmental goals: A critical evaluation of progress. Environmental Development 3: P Gjerde, K.M., Ardron, J., Gotheil, S., Hanich, Q., Simard, F., Warner, R., Bernal, P., Garcia, S., Lee, J. Lodge, M., Meliane, M., Rice, J., Sanders, J., and Vestergaard, O. (2010). Modalities for advancing cross-sectoral cooperation in managing marine areas beyond national jurisdiction. Report for UNEP s 12th Global Meeting of the Regional Seas Conventions and Action Plans. 12

17 Conservation and management tools EBSAs, MPAs, environmental impact assessments (EIAs) and strategic environmental assessments (SEAs) can be very effective tools for enhancing cooperation, coordination and coherency. They can provide a platform for all sectors and stakeholders to contribute effectively and to take cumulative impacts into account. However, this only works if the various bodies operate based on common goals, principles, criteria and objectives and benefit from a shared scientific basis. The criteria and guidance developed by the CBD for EBSAs, the design of representative MPA networks and the conduct of biodiversity-inclusive EIAs and SEAs could help create a shared science basis, but to date have not been accepted by any sectoral body. Thus a new instrument could establish a common science-based approach for EBSAs, MPAs, EIAs and SEAs as well as access to scientifically credible and independent information that takes into account the complex relationships between biodiversity, ecosystem services, and the various ongoing and emerging activities in ABNJ. A sciencebased decision-making approach, fostered for example by a global scientific body, could be an important means to minimize the potential influence of non-science-based interests promoted by individual States or stakeholder groups (see Paper XII on international procedures to ensure sciencebased decision-making). Dedicated funding mechanism To provide a common glue to enhance cooperation, and to support the costs of new activities to promote conservation and sustainable use, the question of funding would need to be addressed. The determination as to how funding could be raised and equitably allocated is key. A targeted portfolio under the Global Environment Facility (GEF) is one option to consider. GEF s International Waters portfolio is the only project area that is not currently associated with an existing international instrument. GEF is already funding several ABNJ related projects related to sustainable management of fisheries and biodiversity conservation. 23 A global fund could also be established to support capacity-building projects, conservation initiatives as well as to fund the development of a possible Clearing House for marine scientific research technology transfer Conclusion Cooperation is an integral and crucial aspect of UNCLOS, and the improved implementation of coordination is essential. A new international agreement could implement institutional arrangements, shared governance principles, encourage the expansion of mandates of regional seas organizations and RFMOs, and put into place compliance mechanisms and procedures Druel, E., Gjerde, K. M. (2014) Sustaining marine life beyond boundaries: the need for and potential content of an UNCLOS Implementing Agreement for marine biodiversity beyond national jurisdiction. Marine Policy. Druel and Gjerde suggest that such a fund could be funded for example by a tax on activities in ABNJ. 13

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19 Paper III Options and Approaches for Access and Benefit-sharing By Thomas Greiber 1. Background At the 2012 United Nations Conference on Sustainable Development (Rio+20), States committed themselves to address, on an urgent basis, building on the work of the Ad Hoc Open-ended Informal Working Group and before the end of the sixty-ninth session of the General Assembly, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the United Nations Convention on the Law of the Sea. 1 This commitment was recalled and reaffirmed by the United Nations General Assembly (UNGA) in its 67 th and 68 th session. 2 In its resolution 68/70, the UNGA also requested the United Nations Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (UN Working Group) to make recommendations to the UNGA on the scope, parameters and feasibility of an international instrument under the Convention. 3 These recommendations shall help to prepare for the decision to be taken at the 69 th session of the UNGA in 2015, whether to start the negotiation of an international instrument on the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (ABNJ). The International Union for Conservation of Nature (IUCN) in collaboration with different partners has prepared a series of policy briefs to provide technical input to the ongoing ABNJ discussions, and thereby support the UNGA decision-making process. As indicated in Paper I, one of the issues to be discussed under parameters could be access to marine genetic resources from ABNJ and equitable benefit-sharing. The following paper aims to briefly explain the challenges with regard to marine genetic resources from ABNJ, before clarifying existing access and benefit-sharing (ABS) approaches and their applicability to ABNJ. The paper will then illustrate different options for regulating ABS through an international instrument for ABNJ under the United Nations Convention on the Law of the Sea (UNCLOS). 2. Opportunities and Challenges Until relatively recently, genetic resources from the terrestrial environment have been the main focus of major research and development (R&D) in biotechnology, as far more species of plants and animals are presently known in the terrestrial environment than in the oceans. 4 Yet the marine realm 1 UNGA resolution 66/288. The future we want. UN doc. A/RES/66/288, of 11 September Paragraph UNGA resolution 67/78. Oceans and the law of the sea. UN doc. A/RES/67/78, of 11 December Paragraph 181. UNGA resolution 68/70. Oceans and the law of the sea. UN doc. A/RES/68/70, of 9 December Paragraph UNGA resolution 68/70. Oceans and the law of the sea. UN doc. A/RES/68/70, of 9 December Paragraph Juniper, S. K. (2013). Technological, Environmental, Social and Economic Aspects. IUCN Information Papers on Marine Genetic Resources. P

20 represents 70% of the biosphere, hosts a greater diversity of major animal groups (phyla) than the terrestrial environment, and also provides for a wide range of extreme environmental conditions to which organisms had to adapt over time in order to develop and survive. This raises expectations that marine organisms (from within as well as beyond national jurisdictions) are an abundant source of bioactive compounds and of novel molecules and materials for present and future R&D. 5 However, opportunities for R&D on marine genetic resources from ABNJ need to be seen in light of a number of challenges and constraints, such as the following: High investment costs The costs for collecting marine organisms in coastal areas can be rather moderate. However, expenditures substantially increase when oceanographic means, such as special research vessels or even submersibles, are required to access marine genetic resources from interesting ecosystems on the high seas or in the deep sea. 6 Further costs accrue after the sampling takes place throughout the different steps of R&D, from the storage of samples in repositories under appropriate conditions together with associated metadata, to DNA isolation, purification, sequencing, activity screening, and eventual commercialization of products. 7 Uneven distribution of technologies and expertise Lack of sufficient R&D capacities, both intellectual and technological, limit many countries in benefiting from the scientific as well as commercial opportunities related to marine genetic resources. More than 40 countries possess offshore research vessels, but the majority of them belong to a small number of developed countries. 8 The number of deep diving scientific submersibles is even more limited and operated by a subset of developed countries currently leading marine scientific research. 9 Furthermore, the majority of leading marine biotech experts is located in developed countries, as indicated by the geographic distribution of marine biodiversity publications as well as patent claims for genes of marine origin. 10 Lack of legal clarity and certainty So far, marine genetic resources in ABNJ are not regulated through a specific international legal instrument. The scope of the ABS regime established by the Convention on Biological Diversity (CBD) and its Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol) is limited to genetic resources over which States have sovereign rights (Article 15.1 of the CBD and Article 3 of the Nagoya Protocol). Therefore, marine 5 See for example Horizon 2020, the EU Framework Programme for Research and Innovation at horizon.com/innovative-marine-biodiscovery-pipelines-for-novel-industrial-products-i284.html. 6 Broggiato, A., Arnaud-Haond, S., Chiarolla, C., Greiber, T. (2014). Fair and Equitable Sharing of Benefits from the Utilization of Marine Genetic Resources in Areas beyond National Jurisdiction: Bridging the Gaps between Science and Policy. Marine Policy. 7 Ibid. 8 Juniper, S. K. (2013). Technological, Environmental, Social and Economic Aspects. IUCN Information Papers on Marine Genetic Resources. P Ibid. 10 Hendriks, I. E., Duarte, C. M. (2008). Allocation of effort and imbalances in biodiversity research. Journal of Experimental Marine Biology and Ecology. Arnaud-Haond, S., Arrieta, J. M., Duarte, C. M. (2011). Marine biodiversity and gene patents. Science 331,