The first session of the Intergovernmental Conference (IGC) on an international legally binding instrument under the UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) begins on Tuesday, 4 September 2018, at UN Headquarters in New York and will continue until 17 September. Delegates will consider a concise document, begin substantive discussions based on the elements of a package agreed in 2011 on:

marine genetic resources (MGRs), including questions on benefit-sharing;
environmental impact assessments (EIAs);
area-based management tools, including marine protected areas (MPAs); and
capacity building and marine technology transfer.
Rear Admiral Khurshed Alam heading the Bangladesh delegation stated on the inaugural session that the conservation and sustainable use of BBNJ is increasingly attracting international attention, as scientific information, reveals the richness and vulnerability of such biodiversity,, while concerns grow about the increasing anthropogenic pressures posed by existing and emerging activities, such as fishing, mining, marine pollution, and bioprospecting in the deep sea.

The IGC is expected to draw on the recommendations from the BBNJ Preparatory Committee (PrepCom) that completed its work in 2017. The PrepCom’s final outcome was adopted by consensus, but contains elements that “do not reflect consensus”―namely elements that generated “convergence among most delegations” and “main issues on which there is divergence of views.” While the lack of consensus is largely seen as a reflection of the views of number of countries, delegations preferred avoiding the possible adoption of elements by voting, thereby signaling a commitment to negotiating a future international legally binding instrument (ILBI) with the goal of universal participation. Although UNCLOS does not refer expressly to marine biodiversity, it is commonly regarded as establishing the legal framework for all activities in the oceans.

The Convention on Biological Diversity (CBD), which entered into force on 29 December 1993, defines biodiversity and aims to promote its conservation, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the use of genetic resources. In areas beyond national jurisdiction (ABNJ), the Convention applies to processes and activities carried out under the jurisdiction or control of its parties. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, which entered into force on 12 October 2014, applies to genetic resources within the scope of CBD Article 15 (Access to Genetic Resources) and to traditional knowledge associated with genetic resources within the scope of the Convention.

Following more than a decade of discussions convened under the United Nations General Assembly, the Assembly, in its resolution 72/249 of 24 December 2017, decided to convene an IGC to elaborate the text of an Implementing agreement under UNCLOS on the conservation and sustainable use of BBNJ, with a view to developing the instrument as soon as possible. The IGC will meet initially for four sessions, with the second and third taking place in 2019, and the fourth in the first half of 2020.

The final meeting of the Working Group adopted, by consensus, a set of recommendations to initiate a process on the legal framework for the conservation and sustainable use of BBNJ, by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under UNCLOS in 2011. The recommendations also include a “package” of issues to be addressed as a whole in this process, namely: MGRs, including questions on benefit-sharing; measures such as EIAs and area-based management tools, including MPAs; and capacity building and marine technology transfer.

Established by General Assembly resolution 69/292, the PrepCom was mandated to make substantive recommendations to the General Assembly on the elements of a draft text of anagreement under UNCLOS, taking into account the various reports of the Working Group’s work; and for the Assembly to decide at its 72nd session whether to convene an IGC to elaborate the text of the ILBI. The PrepCom considered the scope of an ILBI and its relationship with other instruments, guiding approaches and principles, as well as the elements of the package. In spite of diverging views with a wide majority of countries arguing that the PrepCom had exhausted all efforts to reach consensus, the PrepCom outcome that was eventually adopted by consensus comprised:

non-exclusive elements of a draft ILBI text that generated convergence among most delegations;
a list of main issues on which there is divergence of views, with the indication that both do not reflect consensus; and
a recommendation to the UN General Assembly to take a decision, as soon as possible, on convening an IGC.

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