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The Sixth Meeting of the UN General Assembly’s Ad Hoc Open-ended Informal Working Group for Marine Biological Diversity beyond Areas of National Jurisdiction

Tuesday, 17 September 2013
The sixth meeting of the Ad Hoc Open-ended Informal Working Group (hereinafter, the Working Group) to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (BBNJ) convened from 19-23 August 2013 at UN Headquarters in New York.  The meeting was called by the General Assembly in resolution 67/78 and was held in light of paragraph 162 of the 2012 UN Conference on Sustainable Development’s (UNCSD or Rio+20) outcome document “The Future We Want,” which contains a commitment to address on an urgent basis, building on the work of the Working Group, the issue of BBNJ including by taking a decision on the development of an international instrument under the United Nations Convention on the Law of the Sea (UNCLOS), before the end of the sixty-ninth session of the UN General Assembly.

The meeting was attended by approximately 300 participants, including national delegations, intergovernmental organizations and non-governmental organizations.

Especially, Fiji, on behalf of the Group of 77 and China, noted the significant role of the UN General Assembly and UNCLOS for the conservation and sustainable use of BBNJ, the paramount importance of intellectual property rights (IPRs) to the understanding of the exploitation of marine genetic resources (MGRs), and the mandate emerging from Rio+20 calling for an intergovernmental conference on a new legal instrument on BBNJ. The EU and Norway considered the proposal by the G-77/China as a good basis for discussion.

Norway underscored that it was not opposed to a new implementing agreement, but called for a detailed discussion of possible weaknesses of UNCLOS first, noting that lack of political will not be “cured” by new rules.

The EU noted the need for an implementing agreement to establish a specific instrument for the creation of a network of MPAs, international regulation of the conservation and sustainable use of MGRs, and a regime for ABS from MGRs.

Papua New Guinea, on behalf of Pacific small island developing states, recommended that negotiations on a new implementing agreement include: environmental impact assessment (EIA) and strategic environmental assessment (SEA), marine protected areas (MPAs), MGRs, including sharing of benefits, and taking into account IPRs, scientific research, capacity building and technology transfer.

Japan stated that it was not convinced of the need for a new implementing agreement but underlined the need to promote scientific research in areas beyond national jurisdiction (ABNJ) and to find agreement on implementation gaps in existing instruments.

The Republic of Korea proposed discussing MGRs separately from marine scientific research, and focusing on enhanced enforcement of existing instruments rather than setting up new mandatory rules. A similar point of view was expressed by the Russian Federation which considered that it was too early to discuss a new implementing agreement under UNCLOS.

The US opposed the view that MGRs in ABNJ fall under the high seas regime or that MGRs are to be considered common heritage of mankind under customary international law. She pointed to the need to strengthen implementation of existing commitments and enhance coordination and cooperation among states, and she considered, supported by Canada, that an implementation agreement was not necessary to move discussions forward on BBNJ

As concerns non-governmental organisations, WWF, the Pew Environment Group, the High Seas Alliance and the Deep Sea Conservation Coalition called for a new implementing agreement to: create a mandate to establish and enforce management measures for MPAs; develop and adopt uniform requirements for EIA and SEA; create a mechanism for sharing benefits derived from MGRs: And establish an effective framework for state responsibility and control of nationals, including vessels, for monitoring, control, surveillance and enforcement/compliance mechanisms for all maritime activities. Greenpeace underlined the clear progress made under the CBD on ecologically and biologically sensitive areas (EBSAs) and called for fast-tracking negotiations of a new implementing agreement.

Among the unexpected incidents of the meeting was an NGO statement which circulated expressing grave concern at the exclusion of civil society from the deliberations and noting that negotiations on the high seas as a responsibility for all humankind linked to providing ecosystem services and food security for all. NGOs argued that the negotiations must be conducted in a transparent and democratic manner and not behind closed doors. Furthermore, they said that the exclusion of civil society is a breach of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters and its Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums; and called on governments to restore transparency to the BBNJ process by opening the deliberations to civil society representatives.

The EU expressed her understanding for the concerns expressed by NGOs, sharing the view that public participation and transparency are important elements of global environmental governance. Mexico supported the NGO statements, Australia favored open sessions at future meetings of the Working Group, and the G-77/China underlined its continued appreciation for their role in UN discussions.

Finally, the Working Group recommended inter alia that the General Assembly at its sixty-eighth session:
• welcome the inter-sessional workshops, which provided valuable scientific and technical expert information as an input to the work of the Working Group;
• reaffirm the commitment made by states at Rio+20 on BBNJ, and decide to establish a process within the Working Group to prepare for a decision by the General Assembly before the end of its sixty-ninth session on BBNJ, including by taking a decision on the development of an international instrument under UNCLOS;
• request the Working Group, within its mandate established by resolution 66/231 and in light of resolution 67/78, to make recommendations to the General Assembly on the scope, parameters and feasibility of an international instrument under UNCLOS;
• decide that the Working Group will meet for three meetings of four days each
• request the Co-Chairs to invite states to submit their views on scope, parameters and feasibility of an international instrument under the Convention of the Law of Sea for compilation and circulation as an informal working document no later than three weeks before the next meeting of the Working Group.

Sources: IISD Reporting Services, United Nations
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