By Dr Fran Humphries
Senior Research Fellow
The United Nations (UN) has a golden opportunity to protect 64% of the world’s oceans that are the lifeblood of the planet. This ‘area beyond national jurisdiction’ (ABNJ) includes the high seas water column and living resources in the ocean floor below the water column. The ABNJ is not governed by any country and is essentially a ‘free for all’ when it comes to taking and using the areas’ biodiversity. While ABNJ comprises 64% of the oceans’ surface, it includes nearly 95% of the oceans’ volume, which is a massive amount of biodiversity to leave at the mercy of unregulated human activity.
Recognising the risk to what is essentially the world’s last global commons, in 2015, United Nations General Assembly Resolution 69/292 committed its 193 Member States to develop a treaty under the 1982 United Nations Convention on the Law of the Sea for the conservation and sustainable use of marine biological diversity of ABNJ. A UN Intergovernmental Committee commenced treaty negotiations in September 2018, the second session will be in March 2019, the third in August 2019 and others in 2020.
The proposed treaty will address four elements of governance:
(1) access and benefit sharing of marine genetic resources;
(2) area based management tools, including marine park areas;
(3) environmental impact assessments; and
(4) capacity building and transfer of marine technology.
After presenting at a side event of the first negotiating session, the International Council of Environmental Law invited me to join its delegation at the second negotiating session of the treaty at the United Nations next week in March 2019. I am advising them on the first element – access and benefit sharing or ABS. ABS was a concept developed under the UN’s 1993 Convention on Biological Diversity which recognised the sovereign rights of countries to regulate the biological resources within their national jurisdiction. Under this ABS framework or ‘transaction’, a person needs a provider country’s prior informed consent before collecting and using their biological resources, in return for sharing the benefits from the resource’s use with the provider country, such as technology transfer or a percentage of profits from a commercialised product. The idea is that the benefits compensate the provider for the costs of conserving the biodiversity and generates incentives for conservation and sustainable use of resources.
The idea sounds simple but countries have found its implementation problematic. Griffith has a growing team of ABS experts including Charles Lawson, Fran Humphries, Leanne Wiseman, Michelle Rourke and Todd Berry who research the challenges and opportunities of implementation. Our latest publication, ‘The Future of Information under the CBD, Nagoya Protocol, Plant Treaty and PIP Framework’ explores the conflict between treaty obligations to disclose and exchange information and the increasing tendency of countries to treat information, such as digital sequence information, as subject matter of the ABS transaction in its own right, with restrictions on its use. Other challenges include managing traditional knowledge associated with genetic resources and managing the unforeseen effects of ABS on sectors such as virus research and aquaculture that depend on the rapid exchange of genetic resources for global health and food security.
The ABNJ will face these and other unique challenges, the most obvious being the lack of a ‘provider’ with legal capacity or sovereign rights to give ‘consent’ to access in return for benefits. Countries are yet to decide on the objectives for the system that they hope will share
the benefits from the use of ABNJ resources with less technologically advanced countries and achieve some conservation outcomes. The new ABS system will need to fit with a growing patchwork of national ABS laws that apply to the marine species that flow between jurisdictional areas. My contribution to the UN negotiations in March will be ideas and insights into how to design a system that peacefully co-exists with national approaches to ABS, while delivering conservation and equitable outcomes for countries from the sharing of resources, information and technologies.
Whatever countries agree upon over the next few years, the treaty has the potential to change our relationship with the world’s oceans to one of respect and understanding. As humanity’s and the oceans’ fates become increasingly intertwined, all life on earth depends on a more healthy relationship.