surrounding the scope of application of the CBD illustrates one of the major issues
concerning ABNJ: these areas are prone to legal uncertainty, which leads to regulatory, governance and implementation gaps.
66 The ILBI could therefore clarify
and/or strengthen an extended coverage for the conservation of biodiversity.
While the ILBI could provide clarifications to the uncertainties related to the
scope of application of the CBD, the relationship between the instruments is not
one-sided. The CBD is also of relevance for the development of the ILBI, which
could build on concepts and mechanisms found in the CBD’s provisions. Although
the final report of the PrepCom does not refer to the CBD specifically,
67 opinions
and ideas on how this Convention could be used as a source of inspiration for the
ILBI can be found in the discussions held during the different meetings of the
PrepCom, in working documents issued by the Chair of the Committee, and in
opinions and ideas discussed at the first meeting of the IGC. References to the CBD
have also found their way in the President’s aid to negotiations.
For example, the CBD has indeed been referred to as a starting point, within the
ILBI, for definitions of terms, explanation of principles, and elaboration of processes. It has been suggested that the definitions of genetic material and resources, of
biotechnology, and of biodiversity itself should rely on the definitions found in
Article 2 of the CBD.
68 Within general principles and approaches, developing a
principle of equity could be done in line with the fair and equitable benefit-sharing
objective of the CBD.
69 Further, a principle of cooperation, primordial for the
conservation and sustainable use of biodiversity and stated as a main objective of
the ILBI,
70 could build on the duty of cooperation found under Articles 5 and 18 of
the CBD. The engagement of relevant stakeholders—and not only States—also
figures as a general principle that should drive the ILBI,
71 which reminds us of the
overarching aim sought by the CBD Strategic Plan for Biodiversity 2011–2020.
72
Measures such as biodiversity strategies and plans, as found under Article 6 of the
CBD, could also be undertaken as part of the ILBI, to integrate marine biodiversity
concerns into decision-making and management.
73 These are only a handful of
examples, but it is expected that some principles that transpire from the CBD—
sustainability, respect for sovereignty, ecosystem approach, science-based approach,
respect of traditional knowledge, public participation, transparency and availability
of the information—will most probably find their way into the ILBI.
74
66 See, e.g., Ardron et al. (2013), Blasiak and Yagi (2016), Houghton (2014) and Takei (2015).
67 PrepCom (2017).
68 DOALOS (2017b), pp. 6–8; IISD (2018), p. 4; IGC (2019), p. 4.
69 IISD (2017), p. 8.
70 PrepCom (2017), pp. 8 and 10.
71 Id., p. 9.
72 CBD, Strategic Plan for Biodiversity 2011–2020.
73 DOALOS (2017a), p. 56.
74 PrepCom (2017), pp. 9–10. We can indeed find these principles in the list of general principles
and approaches.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
363
concerning ABNJ: these areas are prone to legal uncertainty, which leads to regulatory, governance and implementation gaps.
66 The ILBI could therefore clarify
and/or strengthen an extended coverage for the conservation of biodiversity.
While the ILBI could provide clarifications to the uncertainties related to the
scope of application of the CBD, the relationship between the instruments is not
one-sided. The CBD is also of relevance for the development of the ILBI, which
could build on concepts and mechanisms found in the CBD’s provisions. Although
the final report of the PrepCom does not refer to the CBD specifically,
67 opinions
and ideas on how this Convention could be used as a source of inspiration for the
ILBI can be found in the discussions held during the different meetings of the
PrepCom, in working documents issued by the Chair of the Committee, and in
opinions and ideas discussed at the first meeting of the IGC. References to the CBD
have also found their way in the President’s aid to negotiations.
For example, the CBD has indeed been referred to as a starting point, within the
ILBI, for definitions of terms, explanation of principles, and elaboration of processes. It has been suggested that the definitions of genetic material and resources, of
biotechnology, and of biodiversity itself should rely on the definitions found in
Article 2 of the CBD.
68 Within general principles and approaches, developing a
principle of equity could be done in line with the fair and equitable benefit-sharing
objective of the CBD.
69 Further, a principle of cooperation, primordial for the
conservation and sustainable use of biodiversity and stated as a main objective of
the ILBI,
70 could build on the duty of cooperation found under Articles 5 and 18 of
the CBD. The engagement of relevant stakeholders—and not only States—also
figures as a general principle that should drive the ILBI,
71 which reminds us of the
overarching aim sought by the CBD Strategic Plan for Biodiversity 2011–2020.
72
Measures such as biodiversity strategies and plans, as found under Article 6 of the
CBD, could also be undertaken as part of the ILBI, to integrate marine biodiversity
concerns into decision-making and management.
73 These are only a handful of
examples, but it is expected that some principles that transpire from the CBD—
sustainability, respect for sovereignty, ecosystem approach, science-based approach,
respect of traditional knowledge, public participation, transparency and availability
of the information—will most probably find their way into the ILBI.
74
66 See, e.g., Ardron et al. (2013), Blasiak and Yagi (2016), Houghton (2014) and Takei (2015).
67 PrepCom (2017).
68 DOALOS (2017b), pp. 6–8; IISD (2018), p. 4; IGC (2019), p. 4.
69 IISD (2017), p. 8.
70 PrepCom (2017), pp. 8 and 10.
71 Id., p. 9.
72 CBD, Strategic Plan for Biodiversity 2011–2020.
73 DOALOS (2017a), p. 56.
74 PrepCom (2017), pp. 9–10. We can indeed find these principles in the list of general principles
and approaches.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
363