captain j. ashley roach, jagc, usn (retired) office of the ... · preview definitions rio+20 &...

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


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


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


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/

71

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,


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,


areas-beyond-national-jurisdiction-where-are-we-at-part-iii/72

Thank you for your attention

Any questions?

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