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In September 2018, the United Nations General Assembly (UNGA) convened the first Intergovernmental Conference on Marine Biodiversity. The conference follows the recommendations of the preparatory committee established by the UN with the primary objective of finalising the text of the international legally binding instrument on the conservation and use of marine biodiversity in Areas Beyond National Jurisdiction (ABNJ).
At present, the oceans are governed by the United Nations Convention on the Law of the Sea (UNCLOS) which was adopted and signed in 1982. The ABNJ, more commonly known as the “high seas”, are defined by Article 86 of UNCLOS as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”. The ABNJ are currently governed by principles of “freedom of high seas” and “common pool resources”.
Regulating the high seas is of critical importance from multiple angles. In addition to the conservation value of being home to a wide range of exotic species, most yet undiscovered, the high seas are increasingly coming under the lens due to specific discoveries such as housing rare minerals. In 2017, exploration of the Tropic seamount in the Atlantic Ocean led to the discovery of high concentrations of Tellurium , which is a component of solar panels and has raised the possibility of deep sea mining to fuel renewable energy demands on land.
Another issue under the spotlight is intellectual property rights of marine genetic resources. The multinational company BASF alone owns half of the patents issued on the DNA sequencing of 13,000 marine organisms. The genetic resources are of interest to pharmaceutical companies, and research shows that 84% of the patents issued over the last three decades are owned by just 30 companies.
India’s interventions to the working group meetings from 2006-15 were focussed on three themes — creating a legal instrument for marine genetic resources, obtaining a balance between freedom of high seas and area-based conservation measures and the need to focus on IPR and technology transfer. In the first session of the Preparatory Committee in 2017, in addition to emphasising on the points above, India recommended that ecological assessment principles should be ocean-specific and that impact assessments should be monitored by a technical body.
On the global front, there appears to be resistance from some nations to a legally binding treaty and the fissure between developing and developed countries is evident. For one, the United States has not ratified the UNCLOS and is predictably reluctant to throw its full support behind this effort. Other countries such as Japan, Iceland and Norway appear to be cautious since the treaty may restrict their fishing rights. The U.S., Russia and Japan have also argued that the freedom of high seas and the idea of “common heritage” should apply to marine genes as well, which essentially advocates against controlling access and benefit-sharing.
While the UN’s September 2018 session on marine biodiversity was a plenary, certain developed countries are not quite for a legally binding instrument under UNCLOS. | Special Arrangement
In the recently concluded conference, India’s presence was associated with the developing nations coalition, the Group 77. With regard to genetic resources from fisheries, India has emphasised that the value of resources — rather than their volume — should be the key criterion. India has also, along with CARICOM , called for a phased approach to benefit-sharing which includes open source samples and payments for commercialisation.
The conference president Rena Lee has emphasised that they are on the right track to achieving the mission of drafting the treaty. The next session is in April 2019 by which time a “zero draft” of the treaty will be prepared which will focus on four main issues — “capacity‑building and the transfer of marine technology; area-based management tools, including marine protected areas; environmental impact assessments; and marine genetic resources, including questions on the sharing of benefits.”
With the remaining three conferences scheduled to end in 2020, the next two years will be crucial in determining whether the global community can reach consensus in establishing a fair and just governance mechanism for the high seas.
