At its ninth meeting in late January 2015, the Working Group agreed, by
consensus, on recommendations to submit to the UNGA to develop an ILBI on
BBNJ. In June 2015, the UNGA, having considered the recommendations of the
Working Group, made the decision to develop an ILBI under the United Nations
Convention on the Law of the Sea (UNCLOS). For that purpose, the UNGA first
established a Preparatory Committee (PrepCom or the Committee), with the mandate
“to make substantive recommendations to the General Assembly on the elements of
a draft text of an [ILBI]”.
10
The Committee met four times, in 2016 and 2017, and at its last meeting adopted
its final report, which contained a list of elements to be considered for the draft text
of an ILBI.
11 The PrepCom also recommended that the UNGA make a decision on
the convening of an intergovernmental conference (IGC) to conclude the ILBI, on
the basis of the PrepCom’s recommendations.
12 On 24 December 2017, the UNGA
followed suit and decided to convene an IGC, “to consider the recommendations of
the [PrepCom] [. . .] with a view to developing the instrument as soon as possible”.
13
With the IGC starting its work in September 2018, the international community
saw the BBNJ process enter a new stage of development, where delegations focused
on questions and clarifications left open by the PrepCom.
14 The discussions held
were a necessary step to get everybody on board and to clearly set the table for this
new step of the process.
15 This first meeting was followed by the publication, in
January 2019, of the “President’s aid to negotiations”,
16 a compilation of options for
treaty text formulations, which is expected to form the basis of future negotiations on
the content of the ILBI.
17
Against this backdrop, and curious about the future of the BBNJ process, we
decided to travel forward in time and to give it a try at anticipating history. With the
students of the International Environmental Law course of the LLM programme in
Public International Law at Utrecht University, we conducted a role-playing game
entitled “Negotiating the new ILBI”. Each student represented a particular State or
non-State actor and elaborated a position, putting forward the interests and legal
arguments of the entity represented, that could contribute to the negotiations.
To address the different issues of the 2011 package, as well as cross-cutting
elements, the “plenary” of our time travelling experiment was divided into three
“working groups”, each of which addressed one structural aspect of the ILBI:
10 UNGA Res 69/292 (2015), para 1(a).
11 PrepCom (2017), para 38. It is to be noted that these elements were divided in two categories:
elements that generated convergence among most delegations, and main issues on which there is
divergence of views.
12 Ibid.
13 UNGA Res 72/249 (2017), para 1.
14 IGC (2018b).
15 IISD (2018), p. 15.
16 IGC (2019).
17 The IGC has since met on two additional occasions, in March-April and August 2019, and a
fourth session is pending. A draft text (June 2019) and revised draft text (November 2019) have also
been published by the President of the IGC. However, the content of the present chapter was last
updated in April 2019, and the authors relied on the state of the negotiations and information
available at that time.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
353
consensus, on recommendations to submit to the UNGA to develop an ILBI on
BBNJ. In June 2015, the UNGA, having considered the recommendations of the
Working Group, made the decision to develop an ILBI under the United Nations
Convention on the Law of the Sea (UNCLOS). For that purpose, the UNGA first
established a Preparatory Committee (PrepCom or the Committee), with the mandate
“to make substantive recommendations to the General Assembly on the elements of
a draft text of an [ILBI]”.
10
The Committee met four times, in 2016 and 2017, and at its last meeting adopted
its final report, which contained a list of elements to be considered for the draft text
of an ILBI.
11 The PrepCom also recommended that the UNGA make a decision on
the convening of an intergovernmental conference (IGC) to conclude the ILBI, on
the basis of the PrepCom’s recommendations.
12 On 24 December 2017, the UNGA
followed suit and decided to convene an IGC, “to consider the recommendations of
the [PrepCom] [. . .] with a view to developing the instrument as soon as possible”.
13
With the IGC starting its work in September 2018, the international community
saw the BBNJ process enter a new stage of development, where delegations focused
on questions and clarifications left open by the PrepCom.
14 The discussions held
were a necessary step to get everybody on board and to clearly set the table for this
new step of the process.
15 This first meeting was followed by the publication, in
January 2019, of the “President’s aid to negotiations”,
16 a compilation of options for
treaty text formulations, which is expected to form the basis of future negotiations on
the content of the ILBI.
17
Against this backdrop, and curious about the future of the BBNJ process, we
decided to travel forward in time and to give it a try at anticipating history. With the
students of the International Environmental Law course of the LLM programme in
Public International Law at Utrecht University, we conducted a role-playing game
entitled “Negotiating the new ILBI”. Each student represented a particular State or
non-State actor and elaborated a position, putting forward the interests and legal
arguments of the entity represented, that could contribute to the negotiations.
To address the different issues of the 2011 package, as well as cross-cutting
elements, the “plenary” of our time travelling experiment was divided into three
“working groups”, each of which addressed one structural aspect of the ILBI:
10 UNGA Res 69/292 (2015), para 1(a).
11 PrepCom (2017), para 38. It is to be noted that these elements were divided in two categories:
elements that generated convergence among most delegations, and main issues on which there is
divergence of views.
12 Ibid.
13 UNGA Res 72/249 (2017), para 1.
14 IGC (2018b).
15 IISD (2018), p. 15.
16 IGC (2019).
17 The IGC has since met on two additional occasions, in March-April and August 2019, and a
fourth session is pending. A draft text (June 2019) and revised draft text (November 2019) have also
been published by the President of the IGC. However, the content of the present chapter was last
updated in April 2019, and the authors relied on the state of the negotiations and information
available at that time.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
353