PhD students in ocean law and policy, University of Wollongong, Australia
Negotiations to create an international legally binding instrument for governing marine resources beyond national borders took place recently at the UN headquarters.
More than 50 percent of the world’s oceans are in these areas beyond national jurisdiction. These first negotiations from March 28 to April 9 in New York related to the 1982 UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. The underlying principles are mainly that the marine resources and biodiversity are a common heritage, apart from freedom of navigation.
Indonesia, a maritime and archipelagic state, was closely involved with the drafting of UNCLOS and together with the G77 group of developing nations, now comprising 134 members, supports these talks to improve governance of the seas.
The negotiations are historic; the UN agreed only last year to tackle the challenge of coordinated governance of biodiversity beyond national borders through a legally binding instrument. Marine areas beyond national jurisdiction are vital to sustainable development, food security and poverty alleviation. This is because of the trans-boundary nature and interconnectedness of ecosystems in the high seas and on the seabed beyond our borders to the coastal regions within those borders.
Industrial activity has expanded to include seabed mining, ocean energy generation, distant industrial fishing and bio-prospecting for marine genetic resources. Today technological advances are a double-edged sword aiding more intense exploitation, but with the benefit of overcoming the high costs of monitoring and enforcement outside national jurisdictions. Reformed governance of ocean activities beyond our borders is crucial to minimize risks to the health and productivity of marine ecosystems.
Last year the UN working group that studied marine conservation and sustainability stressed the need for a comprehensive regime to address oceans’ governance beyond national borders.
The recent talks of the UN preparatory committee on the issue included discussions on marine genetic resources, which genes and bio compounds are pivotal to medical advances and how the benefits sourced from the high seas should be shared.
Another issue is about the measures for conservation and sustainable use such as marine protected areas, which can be contentious for industries. Others are environmental impact assessments for industries and the transfer of marine technology to developing countries.
Negotiators face complex issues and challenges, especially the creation of an access and benefit sharing mechanism for marine genetic resources and how to establish protected areas in the high seas.
Additional challenges arise in negotiations over an institutional structure that does not undermine the mandates of existing organizations. The other challenges are about an appropriate dispute settlement mechanism, unresolved issues over continental shelves and a mechanism for coordination and oversight for regulation of activities.
For biodiversity beyond national borders, fishing poses the greatest threat. For Indonesia, illegal, unreported and unregulated (IUU) fishing beyond our borders threatens the environment and livelihoods. Indonesia has taken a strong stance on IUU fishing nationally and in international forums.
The UN negotiations — to continue next year before an intergovernmental conference — offer a key opportunity to prevent, deter and eliminate IUU fishing in areas beyond national jurisdictions. Through these negotiations Indonesia can be part of combating these illicit activities in the high seas as a responsible member of the international community.
For Indonesia and its friends in the G77, careful attention is needed in the following issues:
First, the legal framework on areas beyond national jurisdiction should not undermine legal arrangements such as the UN Fish Stocks Agreement and the Food and Agricultural Organization’s agreement on global conservation by fishing vessels on the high seas.
Second, Indonesia must be among the developing states to benefit from marine genetic resources in the high seas.
Third, the institutional framework for the international legally binding instruments should also be considered as cautiously as compliance and cooperation with regional fisheries management organizations. Fourth, Indonesia should ensure that capacity building and transfer of technology will be on equal footing for developed and developing states.
Of particular importance to these negotiations is the link between IUU fishing and transnational organized crime beyond national waters. Crimes such as over-exploitation of fisheries and human trafficking are key examples of illicit activities within and beyond Indonesia’s oceans.
Eradicating the problem requires global cooperation and it is important for Indonesia to continue to cooperate with the global community in this unprecedented opportunity to stamp out illegal and criminal activities at sea.
Zaki Mubarok Busro is a member of the participating in the preparatory committee on areas beyond national jurisdiction Regional Leaders Program at the UN headquarters. Zaki and Genevieve Quirk are PhD students in ocean law and policy at the Australian National Center for Ocean Resources and Security, University of Wollongong, Australia.
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