EXPLANATORY MEMORANDUM

1.CONTEXT OF THE RECOMMENDATION

•Reasons for and objectives of the recommendation

The UN General Assembly, in its Resolution 68/70, paragraph 198, requested the UN Ad-Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (hereinafter "the UN BBNJ Working Group") to make recommendations on the scope, parameters and feasibility of an international instrument under the United Nations Convention on the Law of the Sea (hereinafter, "UNCLOS").

Building on its work since 2006, the UN BBNJ Working Group adopted recommendations at its final meeting in January 2015, which stressed the need for a comprehensive global regime to better address the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction through the development of an international legally-binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (hereinafter, "the Instrument").

Resolution 69/292 of the UN General Assembly, adopted on 19 June 2015, established a Preparatory Committee (hereinafter, "PrepCom"), open to all States Members of the United Nations, members of specialised agencies and parties to the UNCLOS, to make substantive recommendations to the General Assembly on the elements of a draft text of the Instrument. It also set out that the UN General Assembly should further decide on the convening of an intergovernmental conference (hereinafter, "IGC") for the negotiation of such Instrument as well as its starting date, taking into account the report of the PrepCom, before the end of its seventy-second session.

The Council, in March 2016, decided to authorise the Commission to negotiate, on behalf of the Union (Decision 6862/16 of 15 March 2016), as regards matters falling within the Union's competence and in respect of which the Union has adopted rules, on the elements of a draft text of the Instrument. This negotiating authorisation and the directives were explicitly limited to the meetings of the PrepCom.

The PrepCom held four sessions in 2016 and 2017, the last one between 10th and 21st July 2017. The negotiations in the four sessions of the PrepCom addressed the topics identified in the recommendations from the 2011 meeting of the BBNJ Working Group, namely: marine genetic resources, including questions on the sharing of benefits; measures such as area-based management tools, including marine protected areas; environmental impact assessments; capacity building and the transfer of marine technology; as well as more general cross-cutting issues including principles, decision making and dispute-settlement procedures, relationship with other instruments, participation, etc. Final recommendations were adopted by consensus on 21st July 2017 (and are included in the Report of the PrepCom – http://www.un.org/depts/los/biodiversity/prepcom_files/Procedural_report_of_BBNJ_PrepCom.pdf ). Among other things, the PrepCom recommended that the UN General Assembly take a decision on the convening of the IGC as soon as possible to elaborate the text of the Instrument.

It is likely that the decision to convene the IGC will be taken by the UN General Assembly by the end of 2017. The IGC could then begin its work and hold its first meeting during the first semester of 2018.

As a Party to the UNCLOS and one of the main proponents for the need for such an Instrument since the commencement of discussions at the UN in 2006, the EU should continue to actively participate in this process at the UN, thereby contributing to better conservation and sustainable use of marine biological resources of areas beyond national jurisdiction within the legal framework constituted by the UNCLOS. The EU should also ensure that provisions are included enabling it to become a Party to this Instrument.