Commentary: The fifth session of the IGC on an Internationally Legally Binding Instrument under UNCLOS concluded on 26 August without a final agreement

“For too long, the world acted as if the oceans were somehow a realm apart – as areas owned by no-one, free for all, with little need for care or management. The Law of the Sea Convention and other landmark legal instruments have brought important progress over the past two decades in protecting fisheries and marine ecosystems. But this common heritage of all humankind continues to face profound pressures.” (Secretary-General Kofi Annan, Secretary-General's remarks at meeting organized by the Seychelles and the United Kingdom, "Reefs, Island Communities and Protected Areas - Committing to the Future", 13 January 2005)


The law of the sea seemed to unite humanism, the attempt to build a human law and order, and romanticism, the love of nature and of the oceans as part of nature. It offered a starting point for a new philosophy – an “ecological worldview” – and a new economic theory – sustainable development, the economics of the common heritage.” (Elisabeth Mann Borgese, in Freedom for the Seas in the 21st Century, 1993) 


The United Nations General Assembly, at the instigation of developing countries established an open-ended informal working group as a forum for discussion of marine, biological diversity in areas beyond national jurisdiction in 2003 and began its annual meeting in 2004 - a painstaking process for a noble cause.


There appeared to be an emerging consensus on the need for a new implementation agreement under UNCLOS to  help meet a governance gap in what the authors of UNCLOS called the common heritage of humankind  with the noble purpose of  implementing and updating the environmental protection and conservation provisions of UNCLOS in relation to BBNJ.


The need for such an agreement was strongly supported by the EU and the Group of 77 and China but opposed initially by USA, Canada, Japan, Russia and Republic of Korea.


Recalling that Para 162 of Rio+20 reflected an emerging consensus in The Future We Want document  thus began an arduous process in the UN modus operandi which progressed from a low level working  group to full-fledged negotiating conferences (ICGs). In the light of our current incomplete knowledge of the importance of the ocean to life on earth the lack of progress to finalise a critically important agreement after a process  that began more than a decade ago is beyond the  bounds of reason.


The classical diplomatic architectural dance to finalise an outcome as an International Legally Binding Instrument under UNCLOS on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction was continued  at UN Headquarters in New York, 15-26 August, 2022. IOI was represented by its delegate  in New York,  Ms Liliana Rodriguez Cortes.


Regrettably, although not unexpectedly, and after more than a decade no final agreement was  reached, reflecting the dismal status of global  multilateral  cooperation. Selfish interests of individual entities  have replaced  common policies of reason for the benefit of all humankind.


The slow pace of  arriving at consensus  reminded some of us  of the fate of similar endeavours which suffered a slow death  after  years of agonizing negotiations, such as the case of the  "Code of Conduct on Transnational Corporations"  or the negotiations for the "International Code of Conduct on the Transfer of Technology".


The tragedy today is that the largest part of the Ocean is at risk of irreversible change, including its biodiversity. What is under dire threat  is humankind and our life on this planet. This situation – even as we attempt to cling to hope - is beyond redemption. How many more years are we  to be subjected to the UN phrase “excellent progress is being made”?


Awni Behnam

Honorary President, IOI