The final hours of a treaty negotiation
By Joanna Mossop*
Published on 11 April 2023
As I walk around the echoing corridors of the United Nations Conference Building basement, groups of people are huddled in corners, or sprawled out among the chairs in the closed ‘Vienna Cafe’, or are slumped in their chairs in Conference Room 2. One or two people are asleep, while others obviously wish they were asleep. A few blearily stare at their computers, pointing to words on a screen. Takeout food containers litter the tables. The standard greeting is ‘how are you doing?’ Or ‘have you managed to get any sleep?’
The final day of the negotiations for a new agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction has gone past 24 hours. Some government officials have had to leave to check out of their hotel rooms or catch their flights. Yet most delegates are still crammed into a small conference room trying to hammer out a treaty that will hopefully improve the environmental management of the high seas and provide greater equity to developing countries. Just as the President extended the 5th negotiating session into two meetings in August and February, Friday 3 March is going to stretch to two days. Hopefully, it will not be three.
The stakes are high. Discussions have been ongoing in the United Nations since 2004 (probably longer in the corridors) on the problems with conserving and managing marine biodiversity in areas beyond national jurisdiction (the high seas and deep seabed beyond the zones over which countries exercise sovereign rights such as the exclusive economic zone). It wasn’t until 2018 that negotiations began for a new treaty that would focus on four areas: a legal regime for the exploitation of marine genetic resources and the sharing of benefits; area-based management tools, including marine protected areas; environmental impact assessments; and capacity building and the transfer of marine technology. COVID interrupted the negotiations, of course, but they resumed in 2022.
The reason why these negotiations have gone on for so long is that the goal of the process is to agree to a treaty by consensus. As with many international issues States hold very strong, and often incompatible, views about the appropriate outcome of the treaty. This means that a State with a different view to others can hold things up by insisting that its view prevails. The rules of the negotiating Conference allow for voting for the treaty if consensus cannot be achieved, but extraordinary efforts are being taken to avoid this outcome. The effectiveness of the treaty will be much higher if many States feel they can agree to adopt the treaty and its rules. So talks grind on to try to convince those hold-outs to agree. Frustration grows in the room on the final day every time a State refuses to give up its position on a point.
Significant progress has been made at finding compromises between positions taken by different countries. In the last few negotiating sessions, proposals have been offered to try to bridge the gaps between the positions. For example, States slowly made progress on how the interactions between the Agreement’s new institutions and institutions already created by other treaties should work. Decisions were made about the process by which marine protected areas would be identified and agreed. Delegations have been able to agree on checks and balances for state-run environmental impact assessments and about what institutions will be established and how voting will occur.
Despite these compromises, a range of issues still have sticking points. One of the biggest is the insistence by the G77 plus China that the list of principles in draft article 5 includes the common heritage of mankind. Some States are opposed to this, arguing that the Agreement does not need to refer to this principle given that the emphasis on equity and benefit sharing are both already in the list of principles and are fleshed out in practical frameworks that will benefit developing countries.
Another key disagreement that lingers in the final hours is whether draft article 5 will refer to the precautionary principle or the precautionary approach. Most States are comfortable with using the precationary ‘approach’ as this language appears in a range of legal instruments. However, two regional groups are pushing for the use of precautionary ‘principle’. A ‘principle’ is seen by many commentators as having greater legal force than an ‘approach’, and some delegations expressed their worry about how the use of ‘principle’ might be interpreted in the future.
Most of the diplomats, government officials and civil society observers have been working for more than 24 hours straight. The night before, they only got three to four hours sleep. Diplomats are sometimes characterised as drinkers of champagne on behalf of their country. But in the time I have been following these negotiations, I have seen their personal commitment to negotiating a fair and equitable treaty that countries can adopt, that will ultimately, hopefully, deliver better environmental outcomes for the world’s ocean. When was the last time you worked for more than 24 hours in a row without complaint? Just as I write these words, applause comes from the small conference room to indicate that one more point has been agreed upon.
People still look tired. Caffeine is the only way many are keeping their eyes open. But there is a sense of optimism and hope in the air that, maybe, we can get a treaty to be proud of.
*Joanna Mossop is a professor in the Law Faculty at Victoria University of Wellington. Since 2018 she has been an independent academic advisor on the New Zealand delegation to the Intergovernmental Conference for a new agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. She admits that when this was written she had actually had a good night’s sleep unlike the officials worked through the night. And, after 36 hours straight of negotiations, the text was agreed.