29 March 2016, New York – Statement on behalf of the European Union and its Member States at the First Session of the Preparatory Committee established by General Assembly resolution 69/292: Development 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 biological diversity of areas beyond national jurisdiction on Item 7: Development of substantive recommendations on the elements of a draft text of an international legally binding instrument under the United Nations Convention on the Law of the Sea: Consideration of the scope of an international legally binding instrument and its relationship with other instruments
– As delivered –
Let me start by thanking you for placing this item on the agenda of this meeting. The EU and its 28 Member States believe that this item will assist us to delimit the area of focus of our deliberations.
The EU and its Member States hold that the consideration of the scope of the Implementing Agreement represents an important cross-cutting issue in these negotiations. We believe that the question of scope can be divided in three sub-issues, namely first, the geographical scope of application, secondly, the material scope of its application and, thirdly, participation in the Implementing Agreement.
In the view of the EU and its Member States, the geographical scope is clear. As agreed in Resolution 69/292, the Implementing Agreement shall apply to areas beyond national jurisdiction. The notion of ‘areas beyond national jurisdiction’ covers the high seas and the Area, which is defined in UNCLOS as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Thus, as provided in the UNCLOS, areas beyond national jurisdiction cover all parts of the maritime areas that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or the continental shelf of a coastal State, or in the archipelagic waters of an archipelagic State.
With respect to the material scope, we consider that this covers the two main objectives of this future instrument, that is conservation and sustainable use, as well as the package of 2011 composed of the four elements we have all agreed to. When elaborating these subjects it is – in the view of the EU and its Member States – important to continue to keep in mind that the Implementing Agreement should implement, strengthen and elaborate obligations already embodied in UNCLOS. These include, inter alia the following: the general obligation to protect and preserve the marine environment, in particular rare or fragile ecosystems and the habitats of depleted, threatened or endangered species or other forms of marine life, the duty to co-operate on a global or regional basis for the protection and preservation of the marine environment, the duty to undertake environmental impact assessments, as well as other relevant parts of UNCLOS relating to the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
The third sub-issue relates to participation in the Implementing Agreement. The EU and its Member States consider that the goal should be that of universal participation in the new instrument. Consequently, States which are not parties to the UNCLOS should, nevertheless, be entitled to become parties to the Implementing Agreement, as is the case with the United Nations Fish Stocks Agreement.
We also hold that similarly to the provisions of UNCLOS in addition to States, international organizations to which their Member States have transferred competence over matters governed by this Implementing Agreement, including the competence to enter into treaties in respect of those matters, should be entitled to become parties to the new Agreement.
Last but not least, the EU and its Member States recognize the important role that civil society and other stakeholders have to play in achieving the goals of the Implementing Agreement. We believe that we should promote and facilitate their effective participation in the implementation of this Agreement, including in the work of any international institutional arrangements established for its implementation.
(Relationship with the UNCLOS)
A fundamental principle for the EU and its Member States is that the UNCLOS provides the legal framework within which all activities in the oceans and seas must be carried out and which specifies the rights and obligations of all States. We do not intend nor wish to change the existing legal order of the oceans as set out in the UNCLOS. Our intention is to implement and strengthen the UNCLOS, overcome the current fragmentation and address regulatory gaps with rules based on the specific needs of conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. Thus we hold that the Implementing Agreement should maintain the integrity and balance of rights and duties under UNCLOS. It follows that any measures adopted under the Implementing Agreement shall have due regard for and be without prejudice to the rights, jurisdiction and duties of States under the UNCLOS as well as its two existing implementing agreements. Due regard must thus be given to the entitlements of States to and in respect of maritime areas, including the continental shelf.
(Relationship with other instruments / coordination and cooperation / collaborative approach)
Another important issue for the EU and its Member States concerns the relationship of the Implementing Agreement to existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. As agreed in Resolution 69/292, the Implementing Agreement should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. Furthermore, we hold that it should complement existing global, regional and sectoral regimes. The idea here is to put in place a system to enhance cooperation and coordination and to speak in terms of ‘collaborative approach’ rather than of ‘global versus regional approach’.
As all of us here well know, there are many international organizations and arrangements that deal, directly or indirectly, with matters covered by the Implementing Agreement and – insofar as their mandates allow them – may wish to consider committing themselves to the objectives of the Implementing Agreement. These organisations could include, for instance, the International Maritime Organization, the International Seabed Authority, Regional Fisheries Management Organizations, and Regional Seas Conventions. The EU and its Member States hold that these organizations and arrangements should be involved in the implementation of the Implementing Agreement through effective cooperation and coordination. In order to realize such coordination and cooperation, we suggest that these international organizations and arrangements should be entitled to commit to or declare their intention to support the objectives of the Implementing Agreement. The ultimate goal is that they can contribute to the objectives of the Implementing Agreement, namely the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
We look forward to a constructive discussion on these ideas with all other delegations.
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