As my colleagues in the High Seas Alliance have observed,
"Given the interconnectedness of the vast ocean system to the rest of the planetary life-support system, there cannot be "the future we want" without the ocean we need. […] Now, governments and stakeholders need to roll up their sleeves, and act on what has been formally agreed by all governments on the highest political level at Rio+20."
With respect to protecting marine biodiversity in areas beyond national jurisdiction, in paragraph 162 governments have committed to address the issue "on an urgent basis," and have agreed to take a decision "on the development of an international instrument under the UN Convention on the Law of the Sea ("UNCLOS") before the end of the 69th Session of the UN General Assembly". Though all agreed on the urgency for action, this compromise text addresses the concerns of the few States not yet ready to launch negotiations for a new implementing agreement under UNCLOS.
There is much that needs to be done to ensure successful progress on paragraph 162:
1. The UN Secretary General will need to make this a priority issue, and undertake directed consultations with a range of developed and developing countries aimed at identifying common ground.
2. The intersessional workshops already planned as part of the ongoing UN Ad Hoc Open-ended Informal Working Group on Biodiversity beyond National Jurisdiction ('BBNJ') can be designed to build a shared understanding of potential elements of a new instrument under UNCLOS as well as ways to increase the effectiveness of existing instruments. These workshops, which will address marine genetic resources, area-based management measures, environmental impact assessments, capacity development and technology transfer, should be transparent, participatory and structured with as little formality as possible so as to facilitate a free flow of information and ideas. The UN General Assembly workshop on deep sea bottom fishing on the high seas held in September 2011 provides a useful model.
3. In addition to exploring issues through the BBNJ workshops, government leaders can act immediately to address key gaps and weaknesses in the current legal regime for marine biodiversity beyond national jurisdiction. This can include:
a. Building partnerships with the scientific community, business and civil society to more equitably share in the benefits of marine genetic resources from areas beyond national jurisdiction. Innovative ways to enhance access and share benefits, such as data banks, patent pools, scholarships, shared research cruises and trust funds, can build confidence and develop a range of good practices. This could be complemented by national legislation requiring any patent application involving marine genetic resources to identify the geographic origin of the material, and for areas beyond national jurisdiction, to demonstrate that appropriate benefit-sharing arrangements are in place.
b. Supporting initiatives to describe ecologically or biologically significant areas (EBSAs) through the Convention on Biological Diversity; and working together through the competent intergovernmental organizations to adopt measures to enhance their protection. The UN General Assembly could adopt a resolution similar to UNGA Resolution 61/105 calling on States and relevant organizations to manage activities affecting EBSAs to prevent significant adverse impacts, and to report on progress.
c. Requiring environmental impact assessments (EIAs) and strategic environmental assessments (SEAs) of activities under national jurisdiction or control with a potential to cause significant adverse effects on marine biodiversity or the marine environment beyond national jurisdiction, and to ensure that such activities do not cause significant adverse impacts;
d. Enhancing the capacity of States to cooperate through regional arrangements, including regional seas programmes and other initiatives, to conserve marine biodiversity in areas beyond national jurisdiction;
e. Detailing what flag State responsibility means for UNCLOS Parties and how responsible behavior can best be ensured, in light of existing obligations including the fisheries-focused ocean commitments at Rio+20; and
f. Accelerating the reform, accountability and effectiveness of sectoral and regional organizations based on modern conservation and governance principles.An international instrument under UNCLOS remains essential to provide the global legal mandate and institutional framework to enhance cooperation for these purposes, thus ensuring coordinated progress on all fronts and in all regions. Nonetheless, governments have it within their power now to address at least some of the gaps and to strengthen implementation of existing obligations under UNCLOS and other legal instruments.
And finally, as governments have agreed at Rio+20, a decision on the development of a new instrument under UNCLOS is to be taken at latest by the end of the 69th UN General Assembly—late December 2014. However, given the urgent need for action, there is no reason why a decision cannot be taken before then, for example by the 68th UN General Assembly in 2013.
Photo courtesy of IUCN
