Australia’s revised submission to the United Nations on the
scope, parameters and feasibility of a potential international instrument addressing
biodiversity beyond national jurisdiction
1.
At the 2012 United Nations Conference on Sustainable Development (‘Rio +20’) leaders
made a commitment “before the end of the sixty-ninth session of the General Assembly to
address, on an urgent basis, the issue of the conservation and sustainable use of marine
biological diversity beyond areas of national jurisdiction, including by taking a decision on
the development of an international instrument under the Convention on the Law of the
Sea.”
2.
In 2013 the General Assembly, in its annual resolution on Oceans and the Law of the Sea,
requested the Ad Hoc Open-ended Informal Working Group to prepare for this decision,
including by making recommendations to the Assembly on the scope, parameters and
feasibility of an international instrument under the United Nations Convention on the Law
of the Sea. To that end, the General Assembly decided that the Working Group would
meet in April and June 2014 and in January 2015.
3.
The General Assembly requested that the Co-Chairs of the Working Group invite Member
States to submit their views on the scope, parameters and feasibility of a potential
international instrument under the United Nations Convention on the Law of the Sea (the
Convention), in order to inform the deliberations of the Working Group.
4.
Australia welcomed the progress made at the April Working Group meeting. This positive
dialogue was assisted greatly by the breadth and quality of submissions by States, their
circulation in a compilation and also by the constructive, open atmosphere of the Working
Group meeting. Australia therefore welcomes the invitation by the Co-Chairs to States to
expand upon their original submissions on scope, parameters and feasibility for the
purpose of preparing an updated compilation document. Australia hereby submits a
revised submission.
5.
The oceans contain the vast majority of the world’s living biomass, are home to a major
share of the world’s biodiversity and play a central role in supporting biodiversity and
ecosystems across the planet. Those parts of the ocean that are in areas beyond national
jurisdiction cover approximately 60 per cent of the ocean surface and approximately 90
per cent of its volume.
6.
With increasing human activity in areas beyond national jurisdiction in the world’s oceans,
both in terms of scale and scope, there is an enhanced risk of damaging, in some
instances irreversibly, the marine environment. Accordingly, careful management of
biodiversity of the world’s oceans and marine environment in areas beyond national
jurisdiction is a shared interest of the global community.
7.
Australia considers that there are gaps in the current patchwork of international
governance arrangements which could be addressed in order to more effectively and
comprehensively manage biodiversity beyond national jurisdiction. Australia is of the view
that an international instrument, with an appropriate focus and suitable governance
arrangements, would assist in addressing both the present and emerging threats to
biodiversity in areas beyond national jurisdiction.
8.
Australia believes that the first Working Group meeting demonstrated a widely held
conviction among States that there are significant challenges that must be addressed in
order to improve the management and conservation, including sustainable use, of
biodiversity in areas beyond national jurisdiction. In this regard, Australia’s view is that the
status quo is not an option.
9.
Australia is of the view that a prospective international instrument should be guided by a
set of principles and proposes the following principles for consideration:
(a) Any new instrument should be consistent with and complementary to the Convention
and its associated implementing agreements.
(i) Such an instrument would complement the existing UNCLOS implementing
agreements to bring a consistent, whole of ecosystem focus to the conservation and
sustainable use of biodiversity beyond national jurisdiction.
(b) Any new instrument should support and complement, and not detract from or
undermine, existing efforts, including regional and sectoral efforts and agreements,
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designed to sustainably manage and/or conserve biodiversity beyond national
jurisdiction and to protect and preserve the marine environment, including from
pollution, while promoting more coordinated and effective action.
(c) The architecture for any new instrument should not be onerous. It should be efficient
and effective and may seek to leverage from, but should not duplicate, existing
institutions or frameworks.
(d) Any new instrument should focus on closing the gaps in the current framework,
including through effective and coordinated assessment and reporting, and monitoring
and data collection.
10. The Convention, under Part XII, creates an obligation on States to co-operate on a global
and, as appropriate, regional basis to formulate rules, standards and practices for the
protection and preservation of the marine environment, taking into account characteristic
regional features. However in practice, the implementation of this obligation in areas
beyond national jurisdiction is largely dependent on regulatory measures in place with
respect to different sectors and regions.
11. A number of gaps in existing regulatory and governance frameworks significantly reduce
the ability of the global community to respond effectively to a growing range of threats to
biodiversity in areas beyond national jurisdiction. For instance, while governance
arrangements have been established for a number of sectors and regions, the
coordination of activities across sectors and the management of cumulative impacts over
both time and geographical areas is often poorly addressed, or lacking altogether.
Australia sees value in discussing the establishment of tools (including strategic
environmental assessments) to facilitate improved governance and sustainable
development across sectors.
12. Arrangements for the protection and preservation of the marine environment and
conservation of some aspects of biodiversity, including in areas beyond national
jurisdiction, have been established at a regional level, or through separate governance
mechanisms. However, there is no global, comprehensive mechanism, to facilitate and
encourage the identification of biodiversity and ecosystem values in the oceans
warranting specific management attention, and particular areas meriting protection,
including identified areas of global importance such as rare ecosystems that may be
threatened.
13. Australia considers that the scope of a new international instrument should be designed to
address these gaps. As such it could:
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(a) facilitate coordination across different sectoral and regional regimes;
(b) establish an appropriate framework for area-based management arrangements and the
use of tools such as marine protected areas;
(c) address the scope, content and conduct of environmental impact assessments and
strategic environmental assessments; and
(d) address the issue of marine genetic resources – particularly with respect to issues of
access and benefit sharing.
14. In this regard, Australia supports focusing discussions on the scope of an agreement on
the “package” of issues agreed by the Working Group in 2011.
“This process would address the conservation and sustainable use of marine
biodiversity in 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, and
environmental impact assessments, capacity-building and the transfer of marine
technology.”
15. Australia therefore sees value in discussing area-based measures and tools - such as
global procedures, based on the best available science, for the establishment and
management of marine protected areas and other mechanisms to protect biodiversity.
16. With respect to marine protected areas, Australia supports an approach to area-based
management which can accommodate a wide range of uses, depending on the
conservation values to be protected and standards and benchmarks that are to be
achieved.
17. Australia would see value in having a framework which assists in defining standards for
the preparation and review of the environmental assessment of activities in areas beyond
national jurisdiction that pose, or may pose, threats to biodiversity in areas beyond
national jurisdiction. This could include the specification of activities and areas to be
considered such as, unregulated activities, new and emerging uses of the ocean and
marine protected areas. Australia also sees value in discussing Strategic Environmental
Assessments including consideration of assessing cumulative impacts on biodiversity over
time and across all the different sectors.
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18. Australia is open to discussing the status of marine genetic resources in areas beyond
national jurisdiction, with a focus on issues relating to access and benefit sharing. In this
regard, Australia would be interested in exploring existing practice and frameworks under
other relevant agreements pertaining to the use of genetic resources, including the
consideration of options for capacity building. This could include relevant aspects of the
Nagoya Protocol under the Convention on Biological Diversity and the International Treaty
on Plant Genetic Resources. Australia considers that matters relating to the intellectual
property system are best dealt with in existing fora, including and in particular the World
Intellectual Property Organization.
19. Australia’s clear preference is to address the challenges in connection to biodiversity
beyond national jurisdiction through the negotiation of binding treaty text, which would
ideally include recourse, consistent with the Convention and its two implementing
agreements, to dispute settlement mechanisms. While hortatory text is not without value,
Australia’s view is that the challenges we face in connection with the management of
biodiversity beyond national jurisdiction must be addressed through obligations of a
binding nature.
20. As this submission has outlined with respect to guiding principles, Australia’s preference is
for any governance architecture created under a prospective agreement to be efficient,
effective and non-burdensome. Australia’s preference is for a governance framework
which facilitates the work of individual States and existing sectoral and regional
organisations, as opposed to seeking to duplicate existing functions or regulatory
structures at the international level.
21. We are confident that the 16-19 June Working Group meeting will build upon the
constructive dialogue and spirit of the April Working Group meeting, allowing the Working
Group meeting in January to focus on the drafting of recommendations to the United
Nations General Assembly.
22. Australia looks forward to continuing to engage in productive and fruitful discussions with
Member States on this subject.
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