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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2788

Palitha Kohona: An Extraordinary Diplomat for Sri Lanka; His address on Biological Diversity to FAO

Daya Gamage - Asian Tribune US National Correspondent
Washington, D.C. 24 February (Asiantribune.com):

As Sri Lanka's Permanent Representative in the United Nations, Dr. Palitha Kohona was a prominent voice within the Global Body on equality for women, global security, prevention of violence against girls and boys, getting the UN to recognize Youth Year and holding it in his native Sri Lanka, and now, on his way out as Sri Lanka's ambassador, his achievement - as the co-chair of UN Ad Hoc Committee on Biological Diversity Beyond National Jurisdiction is remarkable.

Having co-chaired the UN Ad Hoc Committee on Biological Diversity Beyond National Jurisdiction (BBNJ), in his presentation at the FAO in Rome, Italy at the 17-20 February held global conference, emphasized that UN action in this area was entering a critical new phase. He expressed the strong belief that in the coming years, the global community will adopt an international instrument to conserve and sustainably use marine biological diversity beyond national jurisdiction.

He said in Rome the General Assembly is now expected to adopt a resolution in the summer of 2015 establishing a preparatory committee to begin work in 2016 which will be mandated to propose the elements of a treaty in 2017, to be adopted by an intergovernmental conference. It is strongly expected, he said, given the forces lined up behind it, that an international agreement under the UN Convention on the Law of the Sea (LOSC) will become a reality thereafter.

The Ad-Hoc Working Group, established in 2006, has been meeting regularly since then. In 2010, for the first time, it adopted a set of recommendations which set in motion a UN process resulting in a methodical progression in the discussions until the momentous decision on Saturday, the 23rd of January. The turning point in the discussions of the Ad-Hoc Working Group, was this set of recommendations adopted in 2010.

Ambassador Palitha T.B. Kohona, who is relinquishing his position at the UN end of this month further said addressing the FAO conference in Rome that "In 2011, the Ad-Hoc Working Group adopted a package of elements to facilitate a more focused discussion, later endorsed by the General Assembly, on the sustainable use of biodiversity and its conservation in areas beyond national jurisdiction. The package included the elements of, marine biodiversity in areas beyond national jurisdiction, including marine genetic resources, (the question of benefit sharing from products developed based on marine genetic resources was part of this), conservation and management tools, including marine protected areas, environmental impact assessments, governance issues and capacity building and the transfer of technology. The wide scope of the package brought together a political alliance, which was unusual and impressive, and which could not be ignored - the EU with its 28 members and the G 77 and China with its 134 members".

Following is his full presentation in Rome:

(Begin) "After almost 10 years of often frustrating negotiations, the U.N. Ad Hoc Working Group on Biological Diversity Beyond Areas of National Jurisdiction (BBNJ) decided by consensus on 23 January, to set in motion a process that will result in work commencing on a legally binding international instrument on the conservation and sustainable use, including benefit sharing, of BBNJ. This decision will have significant implications for the biggest source of biodiversity on the globe, the oceans, particularly in the areas beyond natural jurisdiction.

In 2011, the Ad-Hoc Working Group adopted a package of elements to facilitate a more focused discussion, later endorsed by the General Assembly, on the sustainable use of biodiversity and its conservation in areas beyond national jurisdiction. The package included the elements of, marine biodiversity in areas beyond national jurisdiction, including marine genetic resources, (the question of benefit sharing from products developed based on marine genetic resources was part of this), conservation and management tools, including marine protected areas, environmental impact assessments, governance issues and capacity building and the transfer of technology. The wide scope of the package brought together a political alliance, which was unusual and impressive, and which could not be ignored - the EU with its 28 members and the G 77 and China with its 134 members.

The Working Group conducted two very useful workshops in 2013 which increased the knowledge of the negotiators considerably. Without political buy-in at the highest levels, the negotiations could not have come this far. The political commitment of the global community on BBNJ was clearly expressed in the 2012 Rio+20 Outcome Document, “The Future We Want”, largely at the insistence of a small group of countries, which included Argentina, Sri Lanka, South Africa, and the European Union (EU). Para 162 of the Rio + 20 Outcome Document committed the heads of state to address, on an urgent basis, building on the work of the Ad-Hoc Working Group, the issue of conservation and sustainable use of BBNJ, including by taking a decision on the development of an international instrument under UNCLOS, before the end of its sixty ninth session. This was later endorsed by the UN General Assembly in Resolution 66/228.

The international community, at its highest level, thus recognized the importance of an appropriate global mechanism to sustainably manage and use marine biodiversity beyond national jurisdiction.

Taking another step forward, in 2013, GA resolution A/69/L.29 mandated the Ad Hoc 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 (UNCLOS) to the 69th Session of the GA. Provision was made to hold three meetings of the working group, the last of which was to be in January 2015.

For an island state with the vast Indian ocean around it, Sri Lanka has a history intimately linked with the ocean. Located in a strategically central environment, it obtains a significant part of its food and protein from the ocean, historically, it has conducted extensive trading relations, and developed diplomatic and other inter-state relations via the sea, that have influenced it culturally and politically. Sri Lanka’s profound link with the ocean has made it naturally proactive in global initiatives relating to the sea and was centrally involved in the negotiation of the United Nations Law of the Sea Convention (UNCLOS) with Sri Lankan diplomats playing a significant role, including in the development of the Statement of Understanding to the UNCLOS that recognized Sri Lanka’s special claim in relation to the outer edge of the continental margins of states in the Southern Part of the Bay of Bengal. Ambassador Shirley Amerasingha was the President of the United Nations Conference on the Law of the Sea and chairman of the United Nations Sea-Bed Committee. Today we commemorate his contribution to the law of the sea with an annual scholarship awarded to young developing country lawyers.

There was clear understanding in the Ad Hoc Working Group that UNCLOS should serve as the umbrella for any elaboration of a regime on BBNJ. The 1982 (UNCLOS) established a global regime that covered, inter alia, the living and non-living resources of maritime zones under the jurisdiction of states; viz, the territorial sea, the exclusive economic zone and the continental shelf. Since then, two implementing agreements have been adopted under UNCLOS - the Chapter XI agreement of 1994 and the Straddling Fish Stocks agreement of 1995. The International Seabed Authority, an intergovernmental body based in Kingston, Jamaica, was established under the Chapter XI Agreement to organize and control all mineral-related activities in the international seabed beyond the limits of national jurisdiction. The Straddling Fish Stocks Agreement deals with the conservation and management of straddling fish stocks and highly migratory fish stocks and sets out principles for the conservation and management of those fish stocks. It acknowledges that such management must be based on the precautionary approach and the best available scientific information. The straddling Fish Stocks Agreement does not deal with all fish varieties or the incredible range of life forms in the high seas.

The general feeling among the clear majority of the delegations participating in the Ad Hoc Working Group was that there was a major gap in the legal framework that needed to be addressed.

This perception brought together a strong coalition between the G77 and China and the EU which worked together to advance this view. A small minority of, but highly influential, states took the view that the gaps were in the implementation of existing instruments and arrangements and not in the available legal framework. They suggested that better coordination and implementation of existing mechanisms would be adequate to address the gaps identified by the EU and the G77 and China.

Our knowledge of the biodiversity beyond national jurisdiction at the time of the adoption of the UNCLOS was limited and it has been over three decades since Convention was opened for signature in Montego Bay in Jamaica. Today our knowledge is much more comprehensive and continues to advance, particularly on organisms that live in the deepest parts of the ocean. We did not know much about sea mounts or thermal vents in 1982. Oceans cover more than 70% of the globe. 64% of the ocean surface is located beyond areas of natural jurisdiction. Subsequent mechanisms adopted under UNCLOS, have not fully covered the range of issues in relation to the BBNJ. New possibilities for exploiting the oceans have emerged, such as sea bed mining, power generation, etc. The economic future of the sea is reflected in concepts such as Blue Growth and the Blue Economy concepts.

As a new legal regime is contemplated, the existing regulatory structures must be kept in mind, especially the various international instruments, including regional agreements, to avoid duplication. There are many legal and other mechanisms established under the IMO, the FAO, UNEP, UNESCO, etc. dealing with various aspects of the seas and oceans. The Global Environment Facility has been funding various BBNJ projects. The oceans are a central issue in the discussions on the Post 2015 development agenda. There are other initiatives, including the Global Oceans Commission and those promoted by NGOs, that deal with the oceans. But there is an overwhelming sense that there is a major gap to be addressed with regard to BBNJ. With the recent commemoration of the 20th Anniversary of the entry into force of the Convention on the Law of the Sea, it is proper to address these gaps in the UNCLOS.

The widespread political willingness of a clear majority of states to engage in the discussion relating to BBNJ has suggested a need to move away from the status quo. The Rio+20 Outcome Document, “The Future We Want”, provided a strong indication of the commitment of the international community to adopt a decision on an international instrument under UNCLOS by 2015.

As the oceans become the new frontier for material for the pharmaceutical industry, it will only be reasonable that genetic material harvested or mined from areas beyond national jurisdiction provide benefits to all of humanity. The concept of benefit sharing from products developed from biological material obtained beyond national jurisdiction has received strong support. The details of the mechanisms for such sharing still remain to be explored.

Relevant technological skills and scientific capabilities that can be deployed to exploit BBNJ are limited to a small number of countries today, but it would seem unreasonable to simply turn a blind eye as they exploit the BBNJ to the exclusion of others. The high seas sit on top of the Common Heritage of Mankind.

High financial costs and advanced technological capabilities are required to conduct research and to develop new products. The gradual evolution of the Common Heritage of Mankind concept, which enabled all countries to share in the mineral wealth on the ocean floor beyond national jurisdiction, is instructive. It is important that capacity building and the enhancement of technological skills in developing countries and, especially in Small Island Developing States, be undertaken. Without advanced technological skills, it may not be possible to determine whether biological resources had been extracted from an area covered by a future instrument. This would be an important aspect to be addressed in a future legal instrument.

It is estimated that three billion people live within 100 kilometers of the sea and the seas contribute three trillion dollars to the world economy. The oceans are the biggest carbon sink. Today, unprecedented challenges confront the marine environment and ecosystems. Overfishing, pollution, climate change, ocean warming, coral bleach and ocean acidification, 35 billion dollars of fisheries subsidies, to name a few, pose a severe threat to marine species and the environment. Many communities and livelihoods are threatened. Over three billion people get a fifth of their
protein from the oceans and the oceans produce over half of the globe's oxygen. While there are hundreds of thousands of known marine life forms, there are many that are yet to be discovered.

Unless adequately conserved, many may simply disappear. Scientists suggest that there could actually be millions of marine life forms that we will never know.

With the increase in the exploitation of marine genetic resources more and more patents are filed annually by the pharmaceutical industry. New products based on marine genetic resources are already in the market, for example in antifreeze, antifouling paints and antibiotics. The year by year increase of marine based patents is estimated to be about 12%. The value of these patents could be in the billions of dollars. The question that has been asked is whether patents obtained from genetic resources beyond national jurisdiction should also benefit humanity as a whole.

Recognizing that marine genetic resources in areas beyond national jurisdiction and their likely benefits for human wellbeing could be enormous, it is important to identify a framework for protecting and sustainably accessing these genetic resources in a manner consistent with globally agreed norms. Issues related to the intellectual property rights will further need to be explored. Opportunities and challenges in sharing scientific research information and research results will require attention.

There should be an undoubted obligation for all states to cooperate in the conservation and sustainable use of BBNJ. We are dealing with a resource that has been of inestimable value to humanity in the past and will continue to be of extreme value to all in the future. Humanity must work towards a new era with regard to BBNJ. (End)

NOTE: The Asian Tribune takes this opportunity to profusely thank Dr. Palitha Tikiri Banda Kohona for his selfless service to his nation Sri Lanka in helping to safeguard her global image with utmost obstacles and difficulties. He is expected to complete his term as his nations envoy to the United Nations end of February. He discharged his duties with utmost acceptance, and we, at Asian Tribune, wish him well.

- Asian Tribune -

Ambassador Dr. Palitha Kohona
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