Marine Biodiversity post-Rio+20: Towards an UNCLOS Implementing Agreement

The dust has settled on Rio de Janeiro and commentators have begun the process of picking over the wreckage. Civil society has widely decried the document as a disappointment, with little of substance in the 49 page ‘Future We Want’ document:

the document does very little in the way of outlining future action. It uses the word “reaffirm” 59 times and manages to fit in plenty of recognizing, reinvigorating, and underscoring. Specific commitments are sparse…

One of the few ‘commitments’ was made in relation to the protection of marine biodiversity in areas beyond national jurisdiction (ABNJ), where states agreed a deadline to decide whether to start negotiations towards a new international agreement on this issue:

We recognize the importance of the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction… Building on the work of the ad hoc working group and before the end of the 69th Session of the United Nations General Assembly we commit to address, on an urgent basis, the issue… including by taking a decision on the development of an international instrument under UNCLOS.

This issue has been discussed for over a decade, with much academic ink being spilled in considering potential solutions to the governance gaps that exist on the high seas. Thus, as weak as this commitment is, it is one of the potentially significant outcomes of Rio+20.

What happens next?

The 69th Session of the UN General Assembly (UNGA) runs from September 2014 to September 2015, making September 2015 the deadline for a decision on whether to develop an UNCLOS implementing agreement. Practically, however, the deadline is sooner as the decision is likely to be discussed and agreed at the Ad hoc working group or as part of the yearly UNGA omnibus resolution on oceans and law of the sea.

There are some practical issues to be considered in choosing how to commence negotiations. The Ad hoc working group could adopt recommendations to the UNGA to the effect that negotiations should commence, however the consensus decision making format leaves a large scope for a small number of states (or indeed just one state) to stall the decision. In addition, not all states are involved in this forum, and the process of negotiation between those that are is not transparent nor particularly accessible to civil society. By contrast, adoption of a dedicated resolution would involve all states and  require only a majority vote.

However, the real issues are maintaining momentum and a sense of urgency, ensuring that a positive decision will be taken, and the contents of the negations and eventual agreement. Civil society is likely to keep the pressure on, particularly given the interest in oceans and this issue in particular. However, even if momentum is maintained, it is not exactly clear yet how states might vote, though some have well-established positions. The G77 and China for example have advocated that ABNJ are part of the common heritage of mankind, while the US has argued that ABNJ do not fall under the auspices of any extant agreement and so the freedom of the high seas principle applies. The EU sits somewhere between the two, while some other states occupy a grey area, having mixed or undeclared views. In any case, states’ positions are likely to shift and evolve once negotiations get underway.

As to an eventual agreement, it is likely it will be along the lines of the package discussed and tentatively agreed by the EU, G77, China and Mexico at the 2011 meeting of the Ad hoc working group. This encompassed Marine Protected Areas (MPA), Environmental Impact Assessment (EIA), Marine Genetic Resources (MGR), and capacity building/technology transfer. In addition to these discrete areas, an Implementing Agreement may also outline some general principles and fill in remaining governance gaps.

While not much of substance can be taken from Rio+20, this is at least one area of interest that should be watch closely in the coming months and years.