Source: EURLEX
Language: en
Format: md

![european flag](./../../../images/eclogo.jpg)EUROPEAN COMMISSION

Brussels,4.1.2018

COM(2017) 812 final

Recommendation for a

COUNCIL DECISION

authorising the opening of negotiations on an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction

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.

•Consistency with existing policy provisions in the policy area

The Commission should ensure that the negotiations on the text of the future Instrument are fully consistent with relevant Union rules and policies in the areas which will be covered by it (environment policy, maritime transport policy, common fisheries policy, internal market policy, common commercial policy, research and technological development policy, climate policy and other relevant policies) and with relevant bilateral and multilateral agreements to which the Union is already a party.

Since the Instrument will be an implementing agreement to the UNCLOS and the UNCLOS is already part of the Union acquis, the Commission will have to ensure that the provisions and the balance of rights and obligations enshrined in the UNCLOS and reflected in the Union acquis are fully respected and that the outcome of the negotiations is fully consistent with the UNCLOS.

2.LEGAL ELEMENTS OF THE RECOMMENDATION

The objective of this recommendation is to obtain from the Council the authorisation for the Commission to negotiate the future Instrument on behalf of the EU. The legal basis for the Council to authorise the opening of negotiations is Article 218(3) and (4) TFEU.

3.RESULTS OF CONSULTATIONS WITH INTERESTED THIRD PARTIES

Stakeholders have not been consulted for the elaboration of the drat recommendation.

In accordance with the provisions of UNGA resolution 69/292, the decision on the convening of the intergovernmental conference was to be taken by the UN General Assembly by September 2018. However, it was decided to accelerate the work of the UN in order to convene the intergovernmental conference as soon as possible, with a first meeting already in 2018, thereby maintaining the momentum of the discussions. It is necessary to adopt the negotiating directives before the commencement of the conference and thus, it was not possible to undertake a public consultation, nor publication of a roadmap for feed-back by stakeholders and citizens in line with established practice.

In actual fact, the EU has been politically committed to this process for many years and regular consultations with relevant stakeholders, in particular civil society organisations and other organisations represented in the UN context, have taken place.

Involvement of and feed-back from stakeholders will also be sought during the negotiating process when more concrete (substantive) negotiating positions will be required and it will be necessary to ensure that the negotiating positions are informed by stakeholders' views.

Recommendation for a

COUNCIL DECISION

authorising the opening of negotiations on an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and, in particular, Article 218 (3) and (4) thereof,

Having regard to the recommendation from the European Commission

Whereas:

(1) The Union ratified the United Nations Convention on the Law of the Sea (hereinafter referred as "UNCLOS") by Council Decision 98/392/EC of 23.03.1998
[1](#footnote1)
, being the only international organisation which is a party to that Convention within the meaning of Article 305(1)(f) and Article 1 of Annex IX of the UNCLOS to date.

(2) As a party to the UNCLOS, the Union has participated in the UN Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction that met from 2006 to 2015; the Union also participated in the four sessions, in 2016 and 2017, of the Preparatory Committee which was mandated to make substantive recommendations to the General Assembly on the elements of a future international legally-binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (hereinafter referred to as "the Instrument").

(3) The Preparatory Committee adopted its report on 21 July 2017 and recommended to the General Assembly to consider the elements contained in its recommendation and to take a decision, as soon as possible, on the convening of an intergovernmental conference, under the auspices of the United Nations, to consider the recommendations of the Preparatory Committee and to elaborate the text of an international legally-binding instrument under the UNCLOS.

(4) On the basis of these recommendations, the United Nations General Assembly decided on [...] to convene an intergovernmental conference to elaborate the text of an international legally-binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

(5) The Union, as a Party to the UNCLOS, should fully participate in the negotiations of the Instrument.

HAS ADOPTED THIS DECISION:

Article 1

The Commission is hereby authorised to negotiate, on behalf of the Union, an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

Article 2

The negotiating directives are set out in the Annex.

Article 3

These negotiations shall be conducted in consultation with the special committee to be designated by the Council.

Article 4

This Decision is addressed to the Commission.

Done at Brussels,

For the Council

   The President

:   [(1)](#footnoteref1)
       OJ L 179, 23.06.1998

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![european flag](./../../../images/eclogo.jpg)EUROPEAN COMMISSION

Brussels,4.1.2018

COM(2017) 812 final

ANNEX

to the

Recommendation for a COUNCIL DECISION

authorising the opening of negotiations on an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biologica diversity of areas beyond national jurisdiction

ANNEX

NEGOTIATING DIRECTIVES

1. Principles

In the framework of the negotiation of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (hereinafter the "Instrument"), the Commission shall seek to ensure:

- 
   that the provisions of the Instrument are fully consistent with international law and in particular with the provisions of the UNCLOS and that the balance of rights and obligations enshrined in the UNCLOS is not undermined by the future Instrument;

- 
   that the provisions of the Instrument are consistent with relevant Union law and with relevant bilateral and multilateral agreements to which the Union is a party.

The Commission shall ensure that the negotiations are conducted in consultation with the special committee, meeting in Brussels or sur place. The Commission shall report regularly to the Council on the outcome of the negotiations.

2. Orientations

2.1. The Commission shall seek to ensure that:

·The scope of the negotiations covers, as a package, the elements specified in Resolution [...];

·The rules of procedure for the conducting of the negotiations in the intergovernmental conference allow for full participation of the EU in the negotiations and are consistent with past practice for the negotiation of implementing agreements to the UNCLOS;

·The Instrument provides for an effective framework for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction;

·The Instrument is designed to implement, strengthen and elaborate a number of obligations already embodied in the UNCLOS while giving due regard to the rights and the freedoms set out in the UNCLOS;

·The Instrument provides for an express obligation on States to cooperate, individually and through competent international and regional organisations and arrangements, for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction;

·The Instrument does not undermine existing legal instruments and frameworks and competent global, regional and sectoral bodies or prejudice the rights and obligations thereunder.

·The Instrument respects the mandates of competent global, regional and sectoral bodies, aims at synergies and avoids duplication of their activities;

·The Instrument is without prejudice to the rights and obligations of Parties to the UNCLOS including their entitlement to maritime zones under UNCLOS.

·The Instrument contains appropriate provisions enabling the Union to become a Party and to fully participate within the decision-making processes to be established in the Instrument, consistent with Article 305 and Annex IX of the UNCLOS.

2.2. More in particular, the Commission shall seek to ensure that the Instrument includes or reflects, inter alia, the following:

a) Cross-cutting issues

·General principles for good governance, such as: the protection and preservation of the marine environment, international cooperation, the use of science-based approach, the ecosystem approach, the precautionary principle, the polluter-pays principle, sustainable and equitable use of marine resources, public availability of information, transparent and open decision making processes and the responsibility of States as stewards of the global marine environment;

·An appropriate and cost-effective framework and mechanisms, whether new or already existing, including for the purpose of enhancing cooperation and co-ordination with and between existing competent global, regional, and sectoral bodies, in particular those mandated to regulate activities in areas beyond national jurisdiction or to protect the marine environment in those areas;

·Appropriate mechanisms to ensure compliance with the substantive provisions of the Instrument;

·Appropriate mechanisms for dispute settlement consistent with the UNCLOS.

b) Marine genetic resources (MGRs), including questions on the sharing of benefits

The Commission shall seek to ensure that the Instrument furthers the conservation and sustainable use of MGRs originating in areas beyond national jurisdiction. In particular, the Instrument should:

·Promote environmentally sound access to genetic resources in a manner consistent with their conservation and sustainable use, and not unduly restrict the freedom of marine scientific research as enshrined in the UNCLOS;

·Be designed so as not to regulate matters relating to intellectual property rights or other associated matters;

·Ensure legal certainty for users of MGRs and encourage biotechnological innovations which are not detrimental for biodiversity;

·Improve the transparency and the availability of information on genetic resources originating in areas beyond national jurisdiction;

·Address questions on the sharing of benefits arising from the use of MGRs from areas beyond national jurisdiction.

c) Measures such as area-based management tools, including marine protected areas (MPAs)

The Commission shall seek to ensure that the Instrument provides, inter alia, procedures/mechanisms for:

·The identification, designation and establishment of globally recognised MPAs, including relevant criteria based on the best available scientific information; the establishment of comprehensive conservation and management objectives for the designated areas; the monitoring and surveillance of activities aimed at achieving the conservation and management objectives;

·The global recognition of area-based management tools established by relevant regional organisations and conventions which meet adopted criteria;

Thereby, the Commission shall seek to ensure that the Instrument contributes to the implementation of the Union's international commitments related to the creation of a global network of effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures.

d) Environmental impact assessments (EIAs)

The Commission shall seek to ensure that the Instrument facilitates the evaluation of the cumulative impacts of different activities taking place in the same area, with a view to preventing adverse effects on marine biodiversity, including from new and emerging activities, and also taking due account of the current state of the environment as well as the cumulative effects of other threats such as climate change. In particular, the Commission shall seek to ensure that the Instrument clarifies, strengthens and elaborates the obligations under Article 206 of the UNCLOS so that:

·Individual and cumulative environmental impacts of activities under the jurisdiction or control of States Parties which may cause substantial pollution of or significant and harmful changes to the marine environment ("harmful effects"), including marine biodiversity, in areas beyond national jurisdiction are properly assessed through environmental impact assessments and strategic environmental assessments, as appropriate; and

·Any such harmful effects are identified and taken into account in any decision making process and such activities are consistent with States' obligations under the UNCLOS to protect and preserve the marine environment, including through the adoption of suitable measures to prevent and mitigate any such harmful effects.

e) Capacity-building and transfer of marine technology

The Commission shall seek to ensure that the Instrument:

·Includes provisions, in line with the UNCLOS, for capacity-building and transfer of marine technology for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction;

·Facilitates international cooperation on capacity building and the transfer of marine technology to achieve the objectives and requirements of the UNCLOS for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction.

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