New Ocean Treaty Should Not Undermine Existing Legal Instruments

Published on 2nd April 2019

Delegates negotiating the terms of a new treaty governing the planet’s high seas considered how that instrument will interact with existing bodies and frameworks, as the Intergovernmental Conference to draft a legally binding instrument on the conservation and sustainable use of marine biological diversity concluded its first week.

Among other things, speakers shared their views on a section of the draft text proposing language on enhancing cooperation and coordination between relevant legal instruments.  They considered ways to avoid overlap, while deliberating how best to ensure that the new treaty “shall not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”.

Norway’s representative was among many speakers expressing support for such language.  Measures adopted within bodies should have appropriate standing by themselves and not be forced to undergo additional processes to be considered valid, he said.  Turning to the section relating to the “relationship between measures under this instrument and those established by adjacent coastal States, including issues of compatibility”, he echoed previous expressions of caution by other States, agreeing that measures undertaken in international waters should not be allowed to undermine those taken by States.

The representative of Kenya said the concepts of cooperation and complementarity have served as core principles guiding the treaty’s negotiation from the outset.  Enacting the new treaty should not disrupt existing instruments, organizations and mechanisms, he stressed.

Australia’s representative emphasized that the treaty should recognize the competence of relevant legal instruments and frameworks and relevant global, regional and sectoral bodies, and voiced support for the inclusion of a provision to that effect.  Joining other speakers in warning against including any language that could create a hierarchy among those bodies, she expressed support for language allowing States to come together at the regional level to establish area-based management tools if that is the most appropriate course of action, while noting that such action need not come at the expense of the global process.

Striking a similar tone, the representative of Monaco said the work of various bodies need not be mutually exclusive.  Area-based management tools set up by the new treaty would sit alongside measures established by other bodies, he said, adding that together they would form a complementary network.

Japan’s representative agreed that the new treaty should not supersede the competence of existing legal instruments.  Rejecting draft paragraphs that might give the new instrument too much power in that regard, he proposed alternative language centred on the role of States parties in promoting coherence and complementarity through consultation, cooperation and the sharing of knowledge and experiences in the establishment of area-based management tools.

Agreeing broadly with that proposal, the representative of the Russian Federation also echoed support for the inclusion of language intended to prevent the undermining of existing legal instruments and frameworks.

A representative of the United Nations Environment Programme (UNEP) described that Agency’s recent studies on such issues as marine protected areas, marine special planning and “particularly sensitive sea areas”, which he said explored how different marine protected areas have been enacted for the purposes of conservation and the sustainable use of marine biodiversity.  The results of those studies will be presented at upcoming side events and will be uploaded to the Conference’s Papersmart portal, he said.

Delegates also deliberated on a section of the draft text titled “Respect for the rights of coastal States over all areas under their national jurisdiction, including the continental shelf within and beyond 200 nautical miles and the exclusive economic zone”.  Speakers outlined a range of views on that point, placing varying degrees of emphasis on the interests of coastal States.

In that vein, Tuvalu’s delegate cited the need to actively consult with adjacent coastal States, stressing that such consultations should go beyond an “open call” for feedback of the mere provision of notice regarding a proposed project.  Relevant stakeholders should be solicited about proposed projects to seek their input.

The representative of Papua New Guinea drew attention to the use of the term “States concerned” in the draft text, which he said is unclear.  That term should include adjacent coastal States which have made submissions to the Commission on the Limits of the Continental Shelf, he said, noting that such countries have legitimate interests and stakes in the activities that take place in the adjacent waters.  In that regard, he echoed support for the inclusion of language establishing an inclusive consultation process.

Meanwhile, delegates also considered a section of the draft text focused on the treaty’s implementation.  The representative of the Federated States of Micronesia, speaking on behalf of the Pacific Small Island Developing States, voiced support for proposed language spotlighting the central role of States parties, noting that the treaty’s implementation realistically rests with the State.  In that context, he underlined the need to avoid placing a disproportionate conservation burden on coastal countries — especially small island developing States.

The representative of Argentina, speaking on behalf of the Latin American Like-Minded States Group, echoed his support for language featuring the leading role of States parties in implementation.

Algeria’s representative, speaking on behalf of the African Group, proposed amendments to that section that would highlight the importance of non-States parties “whose activities, vessels or nationals” operate in the established area-based management tools or marine protected areas — including in a paragraph encouraging the latter to support the treaty’s conservation and management objectives.

The European Union’s delegate advocated for the inclusion of previously introduced concepts and terminology into that section.  In that regard, he proposed amendments including stronger and more declarative language where appropriate.  The representative of Belize, speaking on behalf of the Caribbean Community (CARICOM), agreed with that proposal and proposed to streamline the section’s subparagraphs.  The representative of Bangladesh pointed out that the implementation section lacks a discussion of cross-jurisdictional arrangements.

In the afternoon session, delegates wrapped up the discussion of area-based management tools and took up the section of the text dealing with the environmental impact assessment process, debating whether the details and elements of that process should be part of the new legal instrument.

The representative of the European Union said that the text should be clear on the process of conducting an environmental impact assessment and other guidelines may be needed to cover aspects in cases beyond national jurisdiction.

Several speakers supported the third option proposed for that process, with the speaker for the United States saying that option contains most of his delegation’s requirements.  Similarly, the representative of Trinidad and Tobago, speaking on behalf of CARICOM and associating himself with the “Group of 77” developing countries and China and the Alliance of Small Island States (AOSIS), said that some level of detail should be included in the instrument and the third option presents this.  In its current form, however, the option is quite lengthy, and, in the future, it may need to be streamlined.

The representative of Algeria, speaking on behalf of the African Group and associating himself with the Group of 77, said that the first option should be removed.  As the third option is somewhat detailed, it could be retained either in the text or in an annex, he said.

The representative of the Solomon Islands, speaking on behalf of Pacific Small Island Developing States and associating herself with the Group of 77, said she supported the third option because the process of an environmental impact assessment should be fleshed out in the treaty and should also contain the requisite steps for such an assessment.

New Zealand’s delegate said States will need an indication of the steps required to understand their responsibilities if they chose to ratify the new instrument.  On scoping, she liked the reference to cumulative impacts and traditional knowledge and said the scoping stage could also help to identify key stakeholders and any data requirements.

Offering a different viewpoint, the representative of Japan said that as a matter of principle the details of the process should be determined by each State party and not the new instrument.  Therefore, his delegation could not support the third option, as it makes the detail procedures mandatory.  The instrument should have non-binding guidelines that describe procedural steps.  The guidelines should not be mandatory but rather for reference purposes, he said.

In a similar vein, the representative of Singapore said that his delegation has reservations about the third option due to the amount of detail it contains.  It takes up almost five pages in the English version of the document, which runs the risk of being over-prescriptive.  A few of its options are also impractical, he cautioned.

Also speaking today were representatives of the Philippines, Republic of Korea, Nigeria, Iceland, Uruguay (on behalf of Like-minded Latin American Countries), China, Republic of Korea, Cameroon, Canada and Indonesia, as well as the State of Palestine (on behalf of the Group of 77 and China) and the Holy See.

Representatives of the Deep Ocean Stewardship Initiatives and Greenpeace (on behalf of the High Seas Alliance) also spoke.

Courtesy: United Nations


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