Documents considered by the Committee on 7 February 2018 Contents

6UNCLOS: Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; further information required

Document details

Recommendation for a Council Decision authorising the opening of negotiations on 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

Legal base

Article 218(3) and (4) TFEU: unanimity

Department

Foreign and Commonwealth Office

Document Number

(39460), 5171/18 + ADD 1, COM(17) 812

Summary and Committee’s conclusions

6.1This proposal would authorise the Commission, on behalf of the EU, to negotiate a new implementing agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction in an intergovernmental conference under the UN Convention on the Law of the Sea (“UNCLOS”); and includes directives for it to conduct that negotiation. There have already been discussions within a Preparatory Committee of UNCLOS which has made a report to the UN General Assembly on the elements of a draft agreement and it has resolved to establish an intergovernmental conference to negotiate a text of a new agreement. The Commission was authorised to participate in the Preparatory Committee by Council Decision 2016/455.

6.2The negotiating directives broadly seek: an effective and strengthened framework for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction using general principles for good governance—such as a science-based approach, application of the precautionary principle and the polluter pays principle; an express obligation to cooperate and a mechanism to do so; no undermining of existing legal instruments, rights and obligations; the promotion of legal certainty for users of marine genetic resources; the identification, designation and establishment of globally recognised marine protected areas; the use of environmental impact assessments; and provisions for capacity building.

6.3The Minister (Sir Alan Duncan) indicates that the UK is a strong supporter of these negotiations which align with the Government’s 25 Year Plan to Improve the Environment.

6.4However, he raises legal concerns that the proposal does not adequately reflect the fact that the negotiations covered areas of shared and parallel competence. Decision 2016/455 had an environmental legal basis to reflect the existence of shared competence and made special provision for coordination between the Commission and the Member States in areas of shared competence  neither of which are found in the current proposal. He indicates that “This matter may be addressed in Council negotiations on this draft Decision”.

6.5As this document raises no policy issues we clear it from scrutiny to facilitate its adoption in time for an April meeting of the intergovernmental conference. We note that the Minister believes that the issue of competence “may” be addressed in Council negotiations. We expect him to press for the competence issue to be satisfactorily resolved and ask him to report the outcome to us.

6.6We also ask that his response elaborate on the standard-formula Brexit paragraph in his Explanatory Memorandum, and in particular address whether the UK can be a separate and full participant in any agreement that is reached after the UK’s formal exit from the EU or the expiry of any transitional/implementing period.

Full details of the documents

Recommendation for a Council Decision authorising the opening of negotiations on 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: (39460), 5171/18 + ADD 1, COM(17) 812.

The Explanatory Memorandum of 23 January 2018

6.7In respect of the policy the Minister indicates:

“The United Kingdom is strong supporter of the negotiations for a new implementing agreement. This is because whilst a range of different bodies with varying responsibilities address the protection of marine bio-diversity in areas beyond national jurisdiction, these bodies have sectorally or regionally restricted mandates. UK officials have participated in the negotiations from the outset of the Ad-Hoc working group.

“In the Government’s 25 Year Plan to Improve the Environment, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/673203/25-year-environment-plan.pdf, the Government commits to “Playing an active role in securing a new international agreement for the conservation and sustainable use of marine areas beyond national jurisdiction”. The Government’s priority in these negotiations is to deliver an outcome that protects the marine environment areas beyond national jurisdiction through the establishment of Marine Protected Areas and delivering an effective Environmental Impact Assessment regime. The new instrument should not inhibit research and allow appropriate commercial development of products derived from marine genetic resources.”

6.8In respect of the legal issue arising on this proposal he indicates:

“Legal Basis of the Council Decision: the draft Council Decision states that the legal basis is Article 218 (3) and (4) of the Treaty on the Functioning of the European Union.

“It was the view of the Member States that the Prepcom negotiations covered matters of shared and parallel competence. This was reflected in the substantive legal base of Decision 2016/455, Article 192(1)—Environment, which is a matter of shared competence. This matter may be addressed in Council negotiations on this draft Decision.

….

The Commission’s mandate for the PrepCom phase of these negotiations was limited to negotiating matters falling within Union competence and on which the Union had adopted rules. The Presidency led the negotiations on matters falling within Member States’ competence (in areas of shared and parallel competence) based on positions agreed between the Member States. This draft Decision and the Negotiating Directives will the subject of detailed negotiations in the Law of the Sea Working Party (COMAR).”

Previous Committee Reports

None.





9 February 2018