The oceans provide a large number of resources which are used by different regions of the world in different proportions. Human activities such as transport and maritime trade, fishing, power generation, marine protected areas, maritime and underwater tourism are examples of anthropogenic activities in marine areas, all of them are carried out under the concepts of sovereignty and jurisdiction contained in the United Nations Convention on the Law of the Sea (UNCLOS), however, all these actions also generate an impact and stress on the marine ecosystems of our planet. (3rd Intergovernmental Conference on Marine biodiversity of areas beyond national jurisdiction)
The exploration and exploitation of living and non-living resources on the high seas and the zone is part of the requirements developed by the United Nations Convention on the Law of the Sea (UNCLOS), which in Article 87 “Freedoms of the High Seas” develops the exploitation of fishing and the freedom to conduct marine scientific research, likewise part XI called “The Zone” develops the exploitation of solid, liquid and gaseous resources of the seabed, however, the Convention does not take prima facie the marine biological prospecting on the high seas and seabed.
Certainly, advances in technology allowed humanity to discover new species in deep ecosystems, which generated the interest of multinational pharmaceutical and cosmetic companies for genetic research and exploitation of this marine biodiversity. For this reason, the draft of a “legally binding international instrument in the framework of the United Nations Convention on the Law of the Sea, concerning the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction is being discussed at the United Nations” (BBNJ).
The discussions of the aforementioned draft are planned to be carried out during four sessions, with a duration of ten working days each one. The first session was developed in the second half of 2018, the second and third sessions were developed in 2019 and the fourth session will take place in the first half of 2020, however issues such as intellectual property and the common heritage of mankind regime as well as the fair and equitable distribution of this exploitation of marine biodiversity generate a great challenge for the Conference of the parts.
During the negotiations Latin America joined the group called CLAM in order to negotiate as a region with similar positions, always respecting its own interests. This group is made up of 14 countries in Latin America, Brazil, Panama, Costa Rica, Argentina, Uruguay, Guatemala, Honduras, El Salvador, Colombia, Mexico, Chile, Paraguay, the Dominican Republic, and Peru, which have held meetings and working groups , agreeing positions and creating alliances with other groups of countries such as G-77 and China, as well as with CARICOM, however, for the interests of each State, Ecuador, Nicaragua, Venezuela, and Cuba are not part of this group.
The negotiations addressed the issues of conservation and sustainable use of marine biological diversity in areas outside national jurisdiction, in particular marine genetic resources, including issues related to the distribution of benefits, mechanisms of management based on geographic areas, including marine protected areas, environmental impact assessments and capacity building and transfer of marine technology, the countries participating in the Conference participated individually or as part of coalitions of countries with common objectives , this is the case of the CLAM group.
During the third conference to discuss the main topics of discussion, working groups were created to carry out the negotiations, which covered:
Environmental Impact Studies (EIA)
Area-based management tools (ABMT)
Marine genetic resources (MGR)
Capacity building and technology transfer (CBTT)
Transversal Issues (CC)
Regarding Environmental Impact Assesment (EIA), the lack of marine scientific information on deep-sea ecosystems is highlighted, according to studies carried out by the National Museum of Natural History of France which indicates that the oceans contain 80% of marine life of which only 1% is known, consequently, new species are still being discovered, therefore the elements to be taken into account for EIA will be in a general guidelines and will depend on each area of study, being the States parties responsible for ensuring an adequate EIA under a unified general guide or standard, the latter still to be defined in the fourth and last conference since no consensus has been reached in this part.
Regarding the topic of Area Based Management Tools (ABMT), which integrates existing tools such as marine protected areas management and marine spatial planning, as well as the management carried out by Regional Fisheries Management Organizations (RFMOs) on exploitation of benthic species and deep-sea fishing, including the need of decent marine scientific information, taking into account traditional knowledge of indigenous cultures or other sources of information. Discussions focused on the criteria to be taken into account such as climate change, ocean acidification, scientific evidence, social, economic and cultural factors, as well as specific issues on who will be required to validate the information. Among the proposals were mentioned; the Conference of the Parties (COP), the creation of a scientific and technical body of which several States expressed concern about creating another technical body that represents expenditure, while other proposals focused on using existing bodies such as the Intergovernmental Oceanographic Commission (IOC), experts of the Convention on Biological Diversity, FAO, ISA among others.
Marine Genetic Resources have been a real challenge during the negotiations, South Korea, Palestine, China, Canada, Norway, Japan, UK, and Russia have been the countries that have participated most in the discussions however there are still doubts regarding rights of intellectual property and how to agree to this. UNCLOS establishes in Article 136 that resources outside national jurisdiction must be taken as a common heritage of mankind and all new information must be shared and published among all member states of the instrument. One of the important factors in the discussions is that this new binding instrument must be harmonized with the Nagoya Protocol on “Access to genetic resources and fair and equitable sharing of the benefits derived from its use of the Convention on Biological Diversity. ”
On Capacity Building and Technology Transfer, by the Latin American CLAM group of which Guatemala is part, it was indicated that there is a lack of technology and capabilities among the countries of Central America, so that what is stipulated in the Convention of The United Nations on the Law of the Sea in its part XIII “Marine Scientific Research” and XIV “Development and Transfer of Marine Technology”, therefore, this new instrument should consider a periodic evaluation to ensure compliance. There is a gap between adequate resources and technology for the conduct of marine scientific research and this is the case of Guatemala and the Latin American region in general.
Countries such as Russia, Norway, UK, China, United States of America among other developed countries indicated that the criteria should not be mandatory in terms of capacity building and technology transfer, since this should be done under the common agreement between States parties, whether bilateral, subregional or regional, so it is difficult to reach consensus on this issue.
The fisheries authorities of Latin America together with the FAO have concerns about whether the provisions of the Regional Fisheries Management Organizations, as well as the genetic material of the fisheries will be respected, in the same way if this agreement will create a technical and scientific organization which will be the linking of other organizations such as the Intergovernmental Oceanographic Commission, United Nations Food and Agriculture Organization, International Maritime Organization among others. These are some of the concerns displayed in the conference of the parties.
The most important parts of the discussion during the conference were the sharing of benefits between States under fair conditions, as described in UNCLOS in articles 137 and 140, the immunity of naval vessels on the high seas, if this will also apply to scientific research vessels belonging to the armed forces of the States, and especially the conceptualization of marine technology, marine biotechnology, transboundary impacts, cumulative impacts, the differentiation of in situ, ex-situ and in silico genetic samples, since Each State has a different interpretation of each of these concepts, making it necessary to write unified texts for interpretation.
Unquestionably, progress is being made in the draft Convention in each of its parts and there is a dedication by the member states of the COP to achieve a fair, balanced and efficient document, however, it is ambitious to think that a text will be finalized and adopted at the fourth conference, which is scheduled for the first half of 2020. The second draft prepared by the presidency is expected in October of this year, which will integrate the comments and observations made by the groups of countries or individually, so it should be analyzed by the member countries of the Conference of the Parties.