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Captain J. Ashley Roach, JAGC, USN (retired)
Office of the Legal Adviser
U.S. Department of State (retired)
Senior Visiting Scholar and Global Associate
Center for International Law NUS Singapore
8 May 2015
Preview Definitions
Rio+20 & UN General Assembly (UNGA)
Legal Issues
Scientific Issues
Economic Issues
Singapore’s Interests
Views of Others
BBNJ 9 Recommendations
Next Steps
Tommy Koh on negotiating
Further Information and Additional Resources
2
Definitions (1)
BBNJ = Marine Biodiversity Beyond Areas of National Jurisdiction
“Beyond areas of national jurisdiction” =
The high seas, i.e., seaward of the territorial sea and EEZ if claimed (UNCLOS article 86)
The Area, i.e., “the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction” (UNCLOS article 1(1)(1))
“Limits of national jurisdiction” = the outer limit of the continental shelf, including the extended shelf if delineated (UNCLOS article 76)
3
Legal Boundaries of the Oceans and Airspace
4
Definitions (2)
Biodiversity = diversity within species, between
species, and of ecosystems (Biodiversity
Convention, article 2)
The variability among living organisms and the
ecological complexes of which they are part make up
biodiversity
5
BBNJ in the High Seas Marine genetic resources (MGR) have been
sampled and after extensive and expensive research some new drugs have been created
Tension between developed and developing countries has arisen with the latter wanting a share of the profits
Currently no specific legal regime for the conservation and sustainable use of marine biological diversity BBNJ
Hence the international community’s interest in developing such a regime
6
UNGA Since 2004 UNGA has addressed marine biological
diversity
UNICPOLOS 8, 25-29 June 2007, focused on MGR
Reported in A/62/169, 30 July 2007, paras. 15-108
and Annex
Panelists presentations and abstracts at
www.un.org/depts/los/consultative_process/8thmeeti
ngpanel.htm
7
Rio+20 UNCSD Outcome Document We recognize the importance of the conservation and sustainable
use of marine biodiversity beyond areas of national jurisdiction.
We note the ongoing work under the auspices of the General Assembly of the 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.
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, we commit to address, on an urgent basis, 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 underthe Convention on the Law of the Sea
A/RES/66/288, 11 Sept 2012, Annex The Future We Want, para 162,
http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/66/288&Lang=E
8
UNGA 2014 Annual resolution on oceans and the law of the sea, most
recently A/RES/69/245 adopted 29 December 2014, section X paras. 211-216 on marine biodiversity:
Reaffirmed UNGA’s central role relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (BBNJ)
The legal framework for the conservation and sustainable use of BBNJ should effectively address those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under the LOS Convention (UNCLOS)
9
A/RES/69/245 cont’d 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
Reaffirmed before the end of UNGA 69 (September 2015) to take a decision on the development of an international instrument under the LOS Convention for the conservation and sustainable use of BBNJ
Tasked BBNJ WG 9 to make recommendations on the scope, parameters and feasibility of such an international instrument
10
Legal Issues: Seabed Resources UNCLOS governs only mineral resources in the Area
The International Seabed Authority regulates only “activities in the Area”, i.e., all activities of exploration for, and exploitation of, the resources of the Area (UNCLOS article 1(1)(3))
“Resources” are limited to “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules,” which when recovered are referred to as “minerals” (UNCLOS article 133)
The Area and its resources are the common heritage of mankind (UNCLOS article 136)
UNCLOS does not specifically regulate living resources in the Area, such as those seabed, or benthic, ecosystems living on or near seamounts, hydrothermal vents and cold-water coral reefs, or bioprospecting
11
Seabed Resources Manganese nodules and other valuable minerals in
large quantities
As common heritage of mankind, the benefits of their recovery to be shared with all
Resulting tension between developed countries with capability to exploit at great expense and developing countries wanting to share in the resulting wealth
UNCLOS Part XI and 1994 Implementing Agreement
No exploitation of seabed resources to date
ISA just beginning to consider the regulatory regime for exploitation
12
Legal Issues: High Seas The legal status of the waters superjacent to the Area and
airspace above those waters are unaffected by Part XI (UNCLOS article 135)
Freedom of the high seas extends to all States, who must exercise that freedom with due regard to the interests of other States in their exercise of the freedom of the seas (UNCLOS article 87)
The high seas are not subject to the sovereignty of any State (UNCLOS article 89)
UNCLOS Part VII Section 2 addresses “conservation and management of the living resources of the high seas” but “living resources” is not defined
Part VII Section 2 deals with fisheries and marine mammals in the high seas but not other living resources, such a marine genetic resources, in the water column above the Area
UNCLOS does not refer expressly to marine biodiversity13
Legal Issues: Elements BBNJ 4 (2011) Package of Elements:
Address the conservation and sustainable use of BBNJ, in particular, together and as a whole,
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
transfer of marine technology
Sources: A/66/119, para. 1(b); A/RES/66/231, para. 167
14
Conservation and Sustainable Use Seabed mineral resources are not renewable
Exploitation/exploitation of seabed resources is
inherently not sustainable
Living marine resources are renewable and
sustainable so long as the resource is not over
exploited or destructive
Differences suggest significant differences in legal
regimes
15
Scientific Issues Intersessional Workshop on marine genetic
resources, 2-3 May 2013, UNHQ NYC
http://www.un.org/Depts/los/biodiversityworkinggroup/works
hop1_panels_website.pdf
16
Economic Issues Intersessional Workshop on conservation and
management tools, including area-based
management and environmental impact
assessments, 6-7 May 2013, UNHQ NYC
http://www.un.org/Depts/los/biodiversityworkinggroup/works
hop2_panels_website.pdf
17
Singapore’s Interests At the most recent meeting of the Working Group, #9, 20-23
January 2015, Singapore:
Opposed as premature Co-Chairs’ specific recommendations of December 2014
Supported the EU’s call for an intergovernmental conference as soon as possible and stated it should complete its work within an agreed deadline
Recommended postponing discussion of specific concepts to the formal negotiation of an implementing agreement
Source: http://www.mfa.gov.sg/content/mfa/overseasmission/newyork/nyemb_statements/plenary/2015/201501/press_20150120.html; Earth Negotiations Bulletin BBNJ 9 #2
Singapore’s HOD at BBNJ 8 & 9 was Ms. Rena Lee, Deputy Senior State Counsel, AG’s Chambers
18
Other Singapore Interests Freedom of navigation and other high seas freedoms
Marine scientific research
Intellectual property rights
Maintaining balance of interests in the LOS
Convention
19
Views of Others Main Supporters of New Agreement
EU, G-77/China
Remain to be convinced:
Canada, Japan, South Korea, Russia, USA
Reservations
Australia, New Zealand, Iceland, Norway
20
BBNJ 9 Recommendations (1)
BBNJ 9 (A/69/780*, 13 February 2015)
recommended UNGA 69 decide, inter alia, to:
develop an international legally-binding instrument
under the LOS Convention on the conservation and
sustainable use of BBNJ
establish a preparatory committee to make
substantive recommendations to the General
Assembly on the elements of a draft text of such an
instrument and to start its work in 2016 and by the
end of 2017 report to UNGA on its progress
21
BBNJ 9 Recommendations (2)
Before the end of UNGA 72 (August 2018) decide on the convening and on the starting date of an intergovernmental conference (but not the end date)
Not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies
Neither the participation in the negotiations nor their outcome may affect the legal status of non-parties to LOSC or any other related agreements with regard to those instruments, or the legal status of parties to the LOSC or any other related agreements with regard to those instruments
22
Next Steps Informal consultations on establishment of PrepCom to
be completed by August 2015 UNGA resolution A/RES/47/192, 22 Dec 1992, para. 3
required the fish stocks implementing agreement “to be fully consistent” with the Convention
So should this implementing agreement per UNGA decisions in 2012 and 2014
Decision by UNGA 69 on next steps should occur before end of August 2015
Prepare for PrepCom Elaborate agenda
Rules of procedure
Identify elements for draft text
Suggest texts for each element
Use Fish Stocks Implementing Agreement as model23
PrepCom Agenda Identify elements for a text covering the four topics
identified in the 2011 package: conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole
Marine genetic resources, including questions on the sharing of benefits
Measures such as area-based management tools, including marine protected areas
Environmental impact assessments
Capacity-building and transfer of marine technology
24
UNCLOS III Agenda Opening of the Conference
Election of the President
Adoption of Agenda
Adoption of rules of procedure
Appointment of Credentials Committee
Elections Chairmen of main Committees
Chairman of Drafting Committee
Vice-Presidents
Organization of work
Consideration of subject matter in A/RES/38/6067, 1973
Adoption of Convention
Signature of Convention and Final ActA/CONF.62/1, 26 Nov. 1973
25
UNCLOS III Issues 25 items from A/RES/25/2750 C, 1970
Allocated to Plenary and 3 Main Committees
Plenary: peaceful uses
First Committee: deep seabed mining
Second Committee: maritime zones, navigation, LLGDS
Third Committee: preservation of marine environment, MSR, tech transfer
A/CONF.62/28, 20 June 1974, III Official Records 57,
http://legal.un.org/diplomaticconferences/lawofthesea-1982/docs/vol_III/a_conf-62_28.pdf
26
ROP: Gentleman’s Agreement Bearing in mind that the problems of ocean space are
closely interrelated and need to be considered as a whole and the desirability of adopting a Convention on the Law of the Sea which will secure the widest possible acceptance,
The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.
Declaration incorporating the “Gentleman’s Agreement” made by the President and endorsed by the Conference at its19th meeting on 27 June 1974, previously approved by UNGA at its 2169th meeting on 16 November 1973, and appended to the final ROP of UNCLOS III, A/CONF.62/30/Rev.3
27
Decision Making Rules UNCLOS III Rule 37. 1. Before a matter of substance is put to a vote,
a determination that all efforts at reaching general agreement have been exhausted by the majority specified in paragraph 1 of rule 39 2. Prior to making such a determination the following
procedures may be invoked:
(a) When a matter of substances comes up for the first time the President may, and shall if requested by 15 representatives, defer the question of taking a vote on such matter for a period not exceeding 10 calendar days ….
Rule 39. 1. Decisions of the Conference on all matters of substance … shall be taken by a two-thirds majority of the representatives present and voting, provided that such majority shall include at least a majority of the States participating in that session of the Conference
A/CONF.62/30/Rev.3
28
Fish Stocks Conference Agenda Opening of Conference
Election of Chairman
Adoption of rules of procedure
Election of other officers
Organization of work
Credentials
Consideration of subject-matter in A/RES/47/192,
para 2 (what Conference should address)
Report of ConferenceA/CONF.164/1, 19 March 1993
29
Fish Stocks Conference - Issues Nature of conservation and management measures to be
established through cooperation
Mechanisms for cooperation
Responsibilities of RFMOs
Compliance with conservation and management measures
Enforcement of high seas fisheries, conservation and management measures
Non-parties to RFMO
Settlement of disputes on matters of technical nature
Compatibility and coherence between national and international conservation measure for same stocks
A/CONF.164/10, 24 June 1993, prepared by the Chairman
30
Decision Making Rules Fish Conf Fish Stocks Conference:
Rule 33. The Conference should conduct its work on the basis of general agreement. It may proceed to a vote in accordance with rule 35 only after all efforts at achieving general agreement have been exhausted. Before doing so, the Chairman shall inform the Conference that all efforts at achieving general agreement have been exhausted.
Rule 35.1. Subject to rule 33, decisions of the Conference on all matters of substance shall be taken by a two-thirds majority of the representatives present and voting.
31
Mandates UNCLOS III conference A/RES/3067, 16 November
1973, not specify when work should be completed
Fish Stocks conference A/RES/47/192, 29 January
1993, para 1, decided to convene in 1993
conference “which should complete its work before
the 49th UNGA, i.e. before September 1995
32
33
UNCLOS Fish Stocks
PrepCom 1971-1973 None
Negotiations Dec 1973-
Dec 1982
April 1993-
August 1995
Signatories 157 59
EIF 10 Nov 1994 11 Dec 2001
Parties 166 82
Non-parties 24 108,
inc. China,
Singapore
Fish Stocks Implementation Agreement Structure
Preamble
Part I General Provisions
1 Use of terms and scope
2 Objective
3 Application
4 Relationship between this Agreement and the Convention
Part II Conservation and Management
Articles 5-7
Part III Mechanisms for International Cooperation
Articles 8-16
34
Fish Stocks Implementation Agreement Structure (2)
Part IV Non-Members and Non-Participants
Article 17
Part V Duties of the Flag State Article 18
Part VI Compliance and Enforcement
Articles 19-23
Part VII Requirements of Developing States
Articles 24-26
35
Fish Stocks Implementation Agreement Structure (3)
Part VIII Peaceful Settlement of Disputes
Articles 27-32
Part IX Non-Parties to this Agreement Article 33
Part X Good Faith and Abuse of Rights Article 34
Part XI Responsibility and Liability Article 35
Part XII Review Conference Article 36
Part XIII Final Provisions Article 37-50
Preamble, Parts I, VIII-XIII are based on LOS Convention
Singapore is not a party to the Fish Stocks Agreement
36
Possible Definition of BBNJ Marine biodiversity beyond the limits of national
jurisdiction means the living marine resources, including their genetic resources, other than those specifically included in Parts VI (continental shelf) and VII Section 2 (conservation and management of the living resources of the high seas) of the LOS Convention, located seaward of the outer limits of the EEZ and continental shelf
Excludes fish, marine mammals and sedentary species as already covered by Convention
Is BBNJ the common heritage of mankind?
37
Common Heritage of Mankind As news of financial benefits from exploitation of MGR
became known in early 21st Century, developing world called for BBNJ be designated common heritage of mankind
Concept was that resources of deep seabed BNJ belonged to all
Spurred by discovery of manganese nodules, a valuable mineral resource, on deep seabed floor became well known in 1960s
Made famous by Amb Pardo of Malta in 1967
Accepted by UNGA in resolution in 1967
First treaty text proposed by USA in PrepCom in 1970
Existing regime applies only to mineral resources of the Area (UNCLOS Articles 133, 136)
38
Pro Common Heritage of Mankind MGR regime not equated to regime for living marine
resources of high seas
Access and benefit-sharing based on common heritage principles
UNCLOS PP4 “equitable” utilization; PP5 “just and equitable international economic order” including needs of developing countries
Free access and private ownership not equitable
Obligation to cooperate (UNCLOS article 192)
MGR should be explicitly managed under UNCLOSA/62/169, paras 71-73
39
Against Common Heritage Activities re BBNJ regulated by CIL in UNCLOS
LMR not covered by Part XI and outside ISBA’s mandate
Except as LMR as part of marine environment to be protected ICW mining activities
No new role for ISA, not needed
LMR covered by Part VII on high seas, esp. articles 117 -118, and Parts XII (protection of marine environment), XIII (MSR) and XIV (tech transfer)
Inhibits research depriving mankind of its benefits
Interferes with high seas freedomsA/62/169, paras 74-80
40
Protecting BBNJ Biodiversity of living marine resources in areas
beyond national jurisdiction already have protections through the MSR regime and ISA’s Areas of Particular Environmental Interest
Are they sufficient? If so,
May be no need for BBNJ Implementing Agreement to create new institution or assign new role to ISA for protecting BBNJ
ISA’s APEI protects LMR on the seabed of the Area in those areas from effects of mining
What about MSR regime?
41
MSR Regime Protects BBNJ Article 87(1)(f): freedom of the high seas includes MSR,
subject to Part XIII
Article 117: all States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas
Article 192: States have the obligation to protect and preserve the marine environment
Articles 256 and 257: all States have the right to conduct MSR in the Area (in conformity with Part XI, esp. Article 143) and in the water column beyond the EEZ
Article 240(d) requires MSR to be conducted in compliance with all relevant regulations adopted in conformity with this Convention including those for the protection and preservation of the environment
Article 241: MSR activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources 42
ISA Protections In 2011 ISBA LTC adopted an Environmental
Management Plan for the Clarion-Clipperton Zone that included criteria for establishing “Areas of Particular Environmental Interest” in which no mining would be permitted to protect vulnerable ecosystems, including MGR (“closed to potential mining activities to protect and preserve the marine environment”)
ISBA/17/LTC/7, 13 July 2011
ISBA has already designated at least 8 such areasISBA/18/C/22, 26 July 2012
43
ISBA Areas of Particular Environmental Interest (APEI)
The operational objectives for areas of particular
environmental interest are to:
Protect biodiversity and ecosystem structure and function
by a system of representative seafloor areas closed to
mining activities. The system must be in place before
additional mining claims further compromise the ability to
develop a scientifically robust design
Include a wide range of the habitat types present in the
Clarion-Clipperton Zone within the areas of particular
environmental interest (for example seamounts and
fracture zone structures)
44
APEI Criteria Establish an area of particular environmental interest
system to avoid overlap with the current distribution
of claimant and reserve areas (as was the basis for
the current scientific design)
Provide a degree of certainty to existing and
prospective contractors by laying out the location of
areas closed to mining activities
45
Scientific Design Criteria for APEI Based on generally accepted and widely applied
principles for the design of marine protected area networks, e.g., scientific guidance for selecting areas to establish a
representative network of marine protected areas, including in open ocean waters and deep-sea habitats (Conference of the Parties to the Convention on Biological Diversity decision IX/20, Annex II, May 2008) www.cbd.int/decision/cop/default.shtml?id=11663
Design utilizes geological, oceanographic and biological proxy data based on previous ISA workshops and reports, as well as the peer-reviewed scientific literature and experience of international experts in deep-sea biology
46
Area-based Management Tools Scientific criteria for identifying ecologically or biologically
significant marine areas (EBSAs) in need of protection in
open-ocean waters and deep-sea habitats CBD decision of COP 9, decision IX/20, Annex I
Four initial steps to be considered in development of
representative networks of marine protected areas. CBD
decision of COP 9, decision IX/20, Annex III:
Scientific identification of initial set of areas
Develop/choose classification system
Iteratively use techniques to ID sites/network
Assess adequacy and viability of selected sites
47
Possible Text on Conservation and Sustainable Use of BBNJ
States shall require their nationals or other persons subject to their jurisdiction or control and ships flying their flag when conducting MSR for MGR to comply with the provisions of the Convention and other provisions of international law for the conservation and sustainable use of BBNJ, including respect for ecologically or biologically significant marine areas (EBSAs) established to protect the biodiversity of living marine resources in areas beyond national jurisdiction
48
Access and Benefit Sharing (1)
No current legal regime applicable in areas beyond national jurisdiction (BBNJ)
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, entered into force 12 October 2014:
http://www.cbd.int/abs/text/default.shtml
Does not apply to areas beyond national jurisdiction
Requires prior informed consent from country of origin to access to genetic resources
Consider global multilateral benefit-sharing mechanism
Established Access and Benefit-sharing Clearing-House
National compliance monitored through checkpoints
Not directly transferable to BBNJ but may have useful features49
Access and Benefit Sharing (2) Nagoya Protocol monetary benefits include:
Access fees/fee per sample collected or otherwise acquired
Up-front payments
Milestone payments
Payment of royalties
Licence fees in case of commercialization
Special fees to be paid to trust funds supporting conservation and sustainable use of biodiversity
Salaries and preferential terms where mutually agreed
Research funding
Joint ventures
Joint ownership of relevant intellectual property rights
50
Access and Benefit Sharing (3)
Nagoya Protocol non-monetary benefits include:
Sharing of research and development results
Collaboration, cooperation and contribution in scientific
research and development programmes, particularly
biotechnological research activities, where possible in the
Party providing genetic resources
Participation in product development
Collaboration, cooperation and contribution in education
and training
Admittance to ex situ facilities of genetic resources and to
databases
51
Access and Benefit Sharing (4)
Transfer to the provider of the genetic resources of knowledge and technology under fair and most favourable terms, including on concessional and preferential terms where agreed, in particular, knowledge and technology that make use of genetic resources, including biotechnology, or that are relevant to the conservation and sustainable utilization of biological diversity
Strengthening capacities for technology transfer
Institutional capacity-building
Human and material resources to strengthen the capacities for the administration and enforcement of access regulations
Training related to genetic resources with the full participation of countries providing genetic resources, and where possible, in such countries
52
Access and Benefit Sharing (5) Access to scientific information relevant to conservation
and sustainable use of biological diversity, including biological inventories and taxonomic studies
Contributions to the local economy
Research directed towards priority needs, such as health and food security, taking into account domestic uses of genetic resources in the Party providing genetic resources
Institutional and professional relationships that can arise from an access and benefit-sharing agreement and subsequent collaborative activities
Food and livelihood security benefits
Social recognition
Joint ownership of relevant intellectual property rights53
Access and Benefit Sharing (6)
Not clear if Nagoya Protocol structure can be
adapted to BBNJ
Singapore is not a party to the Nagoya Protocol
Singapore is a party to CBD
Most researching States are not party to the Nagoya
Protocol
54
Plant Genetic Resources (PGR) International Treaty on Plant Genetic Resources for Food
and Agriculture, EIF 29 June 2004, Part IV - The Multilateral System of Access and Benefit-Sharing, articles 10-13
http://www.planttreaty.org/content/texts-treaty-official-versions
Applies to 35 listed food crops and listed forages (legume, grass and other)
Applies to plant genetic recourses under Parties management and control in the public domain
Multilateral system to be set up under specified criteria
Singapore not listed on website www.planettreaty.org
Among other ASEAN states only Thailand and Vietnam are not party
55
PGR A&BS System Criteria Multilateral system to be established, which is efficient,
effective, and transparent, both to facilitate access to
plant genetic resources for food and agriculture, and to
share, in a fair and equitable way, the benefits arising
from the utilization of these resources, on a
complementary and mutually reinforcing basis
Objectives: conservation and sustainable use of plant
genetic resources for food and agriculture and the fair
and equitable sharing of benefits arising out of their use
Articles 10.1, 11.1
56
PGR Implementation Multilateral System establishedhttp://www.planttreaty.org/content/multilateral-system
Standard Material Transfer Agreement adoptedhttp://www.planttreaty.org/content/what-smta
Benefit-sharing Fund “Leading the Field” established in 2008
52 projects so far have been funded around the world
http://www.planttreaty.org/content/benefit-sharing-fund
PGR A&BS system does not seem suitable for BBNJ
57
Environmental Impact Assessments When States have reasonable grounds for believing that
planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205 (UNCLOS article 206)
States shall publish reports of the results obtained pursuant to article 204 or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States (UNCLOS article 205)
58
Status of EIA Requirement ICJ: “it may now be considered a requirement under
general international law to undertake an
environmental assessment where there is a risk that
the proposed industrial activity may have a
significant adverse impact in a transboundary
context, in particular, on a shared resource.”
Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Judgment, [2010] ICJ Rep. 14, 83 para. 204 (20 April)
59
Geographical Scope of EIA Requirement
ITLOS: “The [ICJ]’s reasoning in a transboundary context may also apply to activities with an impact on the environment in an area beyond the limits of national jurisdiction; and the [ICJ]’s references to ‘shared resources’ may also apply to resources that are the common heritage of mankind.”
“environmental impact assessments should be included in the system of consultations and prior notifications set out in article 142 of the Convention with respect to ‘resource deposits in the Area which lie across limits of national jurisdiction’”
ITLOS Seabed Disputes Chamber Advisory Opinion, 2011, para 148
60
Scope and Content of EIA ICJ: CIL does not “specify the scope and content of an
environmental impact assessment” Paragraph 205 of the Judgment in Pulp Mills on the River Uruguay
Section I, para. 7, Part XI Implementing Agreementrequires “An application for approval of a plan of work shall be accompanied by an assessment of the potential environmental impacts of the proposed activities ...”
Implemented in paragraph 10 of the Recommendations for the Guidance of the Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area, issued by the Authority’s Legal and Technical Commission in 2002 pursuant to regulation 38 of the Nodules Regulations
ISBA/7/LTC/1/Rev.1 of 13 February 2002
61
Possible Text on EIA Before engaging in activities to search for and collect
marine genetic resources in areas BNJ, States
having jurisdiction or control over such activities shall
conduct and publish an environmental impact
assessment as required by the Convention and other
provisions of international law.
62
Capacity-building & Technology Transfer
1. States, directly or through competent international
organizations, shall cooperate in accordance with their
capabilities to promote actively the development and
transfer of marine science and marine technology on
fair and reasonable terms and conditions (UNCLOS
Article 266(1))
3. States shall endeavour to foster favourable
economic and legal conditions for the transfer of
marine technology for the benefit of all parties
concerned on an equitable basis (UNCLOS 266(3))
63
UNCLOS Article 266(2)2. States shall promote the development of the marine scientific and technological capacity of States which may need and request technical assistance in this field, particularly developing States, including land-locked and geographically disadvantaged States, with regard to the exploration, exploitation, conservation and management of marine resources, the protection and preservation of the marine environment, marine scientific research and other activities in the marine environment compatible with this Convention, with a view to accelerating the social and economic development of the developing States.
64
Tech Transfer: Int’l Cooperation LOSC Part XIV Articles 270-274 International
Cooperation on transfer of marine technology
Article 271: States shall promote establishment of generally accepted guidelines, criteria and standards for transfer of marine technology, taking into account, in particular, the interests and needs of developing States
IOC, Criteria and Guidelines for Transfer of Marine Technology (2005), http://unesdoc.unesco.org/images/0013/001391/139193m.pdf
65
Protection of Legitimate Interests States, in promoting cooperation pursuant to article 266,
shall have due regard for all legitimate interests including, inter alia, the rights and duties of holders, suppliers and recipients of marine technology.
UNCLOS Article 267
Patent Cooperation Treaty, 1970 as amended through 2001, 148 parties including Singapore
Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, 1977, 79 parties including Singapore Over 87,000 deposits and over 21,000 samples
Both administered by the World Intellectual Property Organization (IWIPO)
66
TRIPS Agreement World Trade Organization (WTO): Agreement on
Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement) (1994), article 27, Patentable
Subject Matter, includes micro-organisms
161 parties, including Singapore
67
Possible Text on Tech Transfer Parties shall cooperate in developing capacity and
transfer of technology for the conservation and
sustainable use of marine biological diversity beyond
areas of national jurisdiction in accordance with the
Convention and other provisions of international law.
68
Tommy Koh on Negotiating The Tommy Koh reader: Favourite Essays and Lectures
(World Scientific 2013):
“A Constitution for the Oceans” (1982) (pp 50-56)
“Commemoration of the 30th Anniversary of the Opening for Signature of the 1982 UNCLOS” (2012) (pp 57-60)
“Eight Lessons on Negotiations” (2005) (pp 232-237)
“The Art of Chairing Conferences: Lessons Learnt” (pp 238-244)
“Reflections on the Negotiating Process of UNCLOS” (1982) (pp 301-314)
“The Earth Summit’s Negotiating Process: Some Reflections on the Art and Science of Negotiation” (1992) (pp 483-493)
69
Tommy Koh on Negotiating (2)
UN lecture series on law of the sea:
http://legal.un.org/avl/ls/Koh_T_LS.html
“The Negotiating Process of the Third United Nations
Conference on the Law of the Sea” (with S.
Jayakumar), Center for Oceans Law and Policy,
University of Virginia Commentary, vol. I, pp 29-134
70
Further Information http://www.un.org/Depts/los/biodiversityworkinggroup
/biodiversityworkinggroup.htm
http://www.un.org/Depts/los/consultative_process/8th
meetingpanel.htm
http://wipo.org
http://www.iisd.ca/oceans/marinebiodiv9/
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Additional Resources Thomas Greiber, “Access and Benefit Sharing in Relation to Marine Genetic
Resources from Areas Beyond National Jurisdiction: A Possible Way
Forward,” Study in Preparation of the Informal Workshop on Conservation of
Biodiversity Beyond National Jurisdiction, Bonn, Germany, December 2011,
Research Project of the German Federal Agency for Nature Conservation,
https://www.bfn.de/fileadmin/MDB/documents/service/Skript_301.pdf
Elisa Morgera, “Benefit-sharing in marine areas beyond national jurisdiction:
where are we at? (Part I),” 23 May 2014,
http://www.benelexblog.law.ed.ac.uk/2014/05/23/benefit-sharing-in-marine-
areas-beyond-national-jurisdiction-where-are-we-at-part-i/
Elisa Morgera, “Benefit-sharing in marine areas beyond national jurisdiction:
where are we at? (Part II),” 8 July 2014,
http://www.benelexblog.law.ed.ac.uk/2014/07/08/benefit-sharing-in-marine-
areas-beyond-national-jurisdiction-where-are-we-at-part-ii/
Elisa Morgera, “Benefit-Sharing in marine areas beyond national jurisdiction:
where are we at? (Part III),” 13 March 2015,
http://www.benelexblog.law.ed.ac.uk/2015/03/13/benefit-sharing-in-marine-
areas-beyond-national-jurisdiction-where-are-we-at-part-iii/72