Ad-Hoc Open-ended Informal Working Group
issues relating to the conservation and sustainable use of marine
biological diversity beyond areas of national jurisdiction

Opening Remarks
Co-Chair, Ambassador Dr. Palitha Kohona
Permanent Representative of Sri Lanka to the United Nations
31st May, 2011


The Deputy Legal Counsel
Excellencies
Ladies & Gentlemen
Madam Co-Chair,

It is my pleasure to welcome you this morning to this Opening Session of the 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.  I take this opportunity to thank the Office of the Secretary-General for the positive attention paid to this important issue and, in particular, acknowledge the presence of the Deputy Legal Counsel.  I should also express my thanks to the Division for Ocean Affairs and the Law of the Sea for the extensive work done in preparation for this meeting.  Allow me also welcome the experts joining us today, Dr. Rama Rao, Mr. Nii Oduntun, Mr. Lyle Glowka, Mr. Harlan Cohen. 

Excellencies and Friends,

Para 163 of the GA Resolution 65/37 “Notes the discussion on the relevant legal regime on MGR beyond national jurisdiction in accordance with the Convention and calls upon States to consider this issue in the context of the mandate of the 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 with a view to making further progress on this Issue”.  This Committee has discussed these issues extensively over the past few years, and, I believe that it may now be time to focus on what we are seeking to achieve in the next stage. 

As we make progress we also need to identify areas which are already covered by existing regimes.  The Law of the Sea Convention provides a comprehensive regime for the oceans and the seas of the world.  In fact, it has been described as the Constitution for the oceans.  However, even in the best of constitutions there are gaps that come to light in time and through experience.  Marine Genetic Resources (MGR) were probably not even contemplated at the time the Convention was negotiated.  Today MGRs have become important as science has advanced, and our knowledge base has expanded.  Under the Convention, the Seabed Authority has the mandate for the non-living resources of the Area, as defined in the Convention.  However, any activity relating to non living resources may have an impact on the marine biological diversity, including MGRs above.  Article 143 of the Law of the Sea Convention provides for marine scientific research in the Area to be conducted by the Seabed Authority.  It has been suggested that this provision may cover the marine biological resources above.  We may need to examine this aspect further.  The expert from the SBA, Mr. Oduntun, will help to shed light on this issue.   In addition, the Convention provides for a High Seas regime which regulates fisheries.  The Fish Stocks Agreement is particularly relevant here.  Clearly the exploitation of fisheries impacts on genetic resources.  There is also the Convention on Biological Diversity with its Cartagena and Nagoya Protocols, with implications for genetic resources, but these may not necessarily be relevant to our discussions.  The questions that are raised are many – the knowledge gaps are large.  We need to identify possible mechanisms for dealing with these.  There is the overarching and ongoing discussion relating to the ownership of intellectual property rights relating to biological diversity and marine genetic resources in areas beyond national jurisdiction.  

This Working Group has been meeting over the years because the issue of marine biological diversity beyond national jurisdiction is identified as an important issue for States, including the situation with regard to genetic resources.  Even if we can expect national states to deal with such matters in accordance with their laws within their jurisdictions, the physical areas beyond their jurisdictions, which is a vast area of the world, is of utmost concern because of the legal uncertainties and the financial implications.  On the one hand, the harm, possibly permanent harm, to biological diversity, including genetic resources, that could occur, due to human activity and the need to take measures to conserve and sustainably use them demands attention.  Additionally, there is also a call to ensure that research and bio-prospecting which could proceed uncontrolled in areas not covered by existing regimes are brought within a manageable framework so that the benefits resulting from such research and prospecting are equitably shared in a manner consistent with the goals of the UNCLOS. 

Against this background I would like to place before you a number of propositions to assist with the discussions. 

We need to clarify in our own minds that the existing mechanisms are inadequate to cover the issues that we are discussing in this informal working group.  Of specific interest would be the scope of application of the United Nations Convention on the Law of the Sea with regard to scientific research.     

As I see it, we need to agree on the physical area that is to be covered by our discussions.  Any overlap could thus be avoided.  Then there is the question of what is intended to be covered.  I believe that by definition our efforts should be limited to living resources.  We should also satisfy ourselves whether the resources that we are looking at span the entire water column or are limited to the surface of the sea bed and, if so, how they should be addressed.  Are they to be limited to only bacteria or are sedentary life forms, and free swimming fish included?  The need to establish environmentally protected marine areas is a significant issue.  So is the issue of access to MGR and the equitable sharing of the product.  I am conscious that there are many challenges to address.  Not least of which is the issue of intellectual property. 

Another question that arises relates to the two elements of bio prospecting and research.  Prospecting may imply a stage in the eventual commercial exploitation of a resource.  If this were the case, should we be considering applying a different set of rules to bio-prospecting as compared to research.  Research might simply imply dipping a test tube into the depths and analyzing its content.  There is also the question of making the results of such research available to industry for commercial exploitation. 

We have to deal with many issues.  I look forward to a constructive discussion. 

 

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