EU Presidency Statement - Working Group on Marine Biodiversity, Agenda Item 5c

Summary: EU Presidency Statement - Working Group on Marine Biodiversity, Agenda Item 5c (15 February 2006: New York)

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; Key issues and questions; Statement by Prof. Dr. Gerhard Hafner, Austrian Federal Ministry for Foreign Affairs, on behalf of the European Union, New York

Mr. Co-Chairman,

The item under discussion concerns key issues and questions where more detailed background studies would facilitate the analysis on conservation and sustainable use of marine biological diversity in ABNJ. As pointed out in the report of UNSG, one specific topic requiring consideration concerns genetic resources. The EU would like to offer some comments on these issues as well as some elements which might guide us in future discussion.

As has been rightly noted by many delegations in previous sessions, UNCLOS establishes the legal framework for all activities in the oceans, and should remain as such. Its jurisdictional framework, in particular, should in no way be undermined. And it applies also to conservation and sustainable use of biodiversity, including in ABNJ.

We consider that genetic resources are not subject to the mandate of the International Seabed Authority (ISBA), in so far as they cannot be seen as mineral resource. In effect, with regard to Part XI, Article 133 defines "resources" as "all solid, liquid or gaseous resources in situ in the Area at or beneath the seabed, including polymetallic nodules". Genetic resources, therefore, fall outside the scope of the ISBA competence.

The second legal regime provided by UNCLOS and which has legal provisions that are mainly designed to address fisheries resources, is that of the High Seas. The general principle in regard to the exploitation of these resources in this area, subject to specific rules and regulations and more general duties under UNCLOS with respect to their conservation and management, can be seen as first come, first served, i.e. in general terms the benefits flow to the person who catches the fish. Indeed, under UNCLOS, such resources do not belong to anybody until they are appropriated by capture. This may not be an appropriate response to address genetic resources.

The CBD defines genetic resources as genetic material of actual or potential value and genetic material as any material of plant, animal, microbial or other origin containing functional units of heredity. Although it can be seen as complementary to UNCLOS its jurisdictional scope does not include the sustainable use of components of biodiversity in ABNJ in the same way as it does to areas within national jurisdiction, since it applies only to processes and activities carried out under the control of States in these areas.

The EU is ready to take part in active discussion about the management of genetic resources in ABNJ by the international community. These discussions might be guided by the following:

 Clarification is needed with regard to the legal status of genetic resources in areas of the seabed and subsoil beyond national jurisdiction, in the light of the general legal system provided by UNCLOS.

 Effective environmental management, guided by the precautionary and ecosystem approaches, needs to be built into the handling of genetic resources, consistent with the general requirements of UNCLOS and the CBD, in order to ensure a sustainable approach to management.

 Options in this context might initially be the development and adoption of voluntary guidelines, voluntary codes of conduct and voluntary tools such as environmental impact assessments, which approach the handling of genetic resources from an environmental management perspective.

The EU is willing to consider, without prejudice to the sovereign rights and jurisdiction of States in areas within national jurisdiction, the question of a more formal regulation of genetic resources within broader, integrated approaches to conservation and sustainable use of marine biodiversity, taking into account the legitimate interests of all states. It seems premature at present to start considering the practical issues involved in taking forward regulatory approaches. Moreover, any such regulatory approaches should not be developed in isolation from wider provisions for the conservation and sustainable use of marine biodiversity.

Ref: PRES06-028EN
EU source: EU Presidency
UN forum: Other
Date: 15/2/2006

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