‘We are the Ocean’ (Miguel de Serpa Soares, UNDOALOS) – Will highly ambitious statements from the UN Ocean Conference 2022 translate into a highly ambitious BBNJ treaty?

UN Ocean Conference 2022 Blog – IDDRI & MARIPOLDATA

By: Paul Dunshirn, Arne Langlet, Klaudija Cremers

Miguel de Serpa Soares delivering the final remarks of the UN Oceans Conference 2022. Source: own image.

 

From June 27th to July 1st, the governments of Portugal and Kenya hosted the second UN Oceans Conference (UNOC 2022) in Lisbon. 

The conference’s objective was to gather momentum and resources to implement Sustainable Development Goal 14 – ‘Life under Water’ (SDG 14). Its self-proclaimed focus was the role of science and innovation in understanding and counteracting the main threats to ocean ecosystems, and in making ocean-based economic activities sustainable. After a week packed with high-level presentations, panels, and dialogues, delegates unanimously adopted the Lisbon Declaration under the motto ‘Our ocean, our future, our responsibility’. 

An estimated 6000 people attended the conference, including 24 heads of state and over 2000 stakeholders from civil society. After a two-year hiatus due to the Covid-19 pandemic, the entire global ocean community welcomed the opportunity  to come together and discuss current issues related to sustainable ocean governance. Some of the most debated topics included: a proposed moratorium on deep seabed mining which received support by a coalition of States led by Fiji and Samoa (and gained additional momentum through Emmanuel Macron’s call for a corresponding legal framework); the need for increased financing for ocean sustainability (UN Secretary-General António Guterres highlighted that SDG 14 remains the least funded SDG); opportunities and challenges to build blue economies and blue carbon ecosystems for climate change mitigation; and commitments to embark on negotiations for a legally binding treaty to reduce plastic pollution. Also part of the agenda were the on-going negotiations on an international legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ negotiations). 

Because UNOC 2022 took place only a few weeks before the next negotiation session of the BBNJ negotiations in New York from 15-26 August, it was an important opportunity for stakeholders to discuss the key remaining issues that still need to be addressed in the sidelines of the Conference. The BBNJ instrument – or often times called ‘High Seas Treaty’ – is the central instrument through which UN member States aim to address the declining health of the high seas and its biodiversity, as well as the lack of a comprehensive legal framework for these areas (which constitute no less than ~94% of the world’s ocean volume). The future treaty will have a significant impact on most of the topics that were discussed during UNOC 2022.

 

French think tank IDDRI and ERC research project MARIPOLDATA attended UNOC 2022 with  a special eye for the BBNJ-related events and activities. This blogpost summarises our impressions and discusses implications for the BBNJ IGC-5 in August 2022, keeping a critical view on the concrete proposals and commitments made in Lisbon. 

It was particularly noteworthy that member States of the so-called ‘High Ambition Coalition’ were very vocal in promoting and showcasing their position during UNOC 2022. This coalition of States aims for a highly ambitious BBNJ treaty to be concluded in August 2022. In considering the substantive issues at stake, we argue that high ambition statements need to translate into effective legal provisions for the future treaty. This means: 

  • A clear and easy-to-use legal framework for marine genetic resources, which is crucial to further developing ‘blue economies’.
  • BBNJ bodies with firm decision-making powers on environmental impact assessments and on area-based management tools, such as marine protected areas. 
  • Reliable language in the treaty text to ensure capacity building and technology transfer for developing countries according to the commitments made during UNOC 2022. 

‘We want blue economy!’ But what about marine genetic resources? 

‘Blue economy’ as a theme was high on the agenda during UNOC 2022. This was expressed during several events and was interpreted to include a wide range of ocean-related economic activities with sustainability focus, including fishing, aquaculture, tourism, up-cycling of waste, or biotechnological applications. While some events focused on the promises of blue innovation, a lot of emphasis was laid on the question of how to achieve more equitable opportunities for countries to participate and profit from these activities (see this report for a discussion on ocean inequities and their significance to blue economy initiatives). 

To us as BBNJ researchers, it was notable that many biotechnological applications based on marine genetic resources were presented to promote the blue economy concept, yet with very little consideration of implicated governance issues. While UNOC 2022 was not the place to overcome the persistent divides on accessibility to and benefits derived from marine genetic resources as seen during the BBNJ negotiations, it is important to note that the continued development of many such economic activities requires clear and functional legal frameworks, not least in international waters. This is, however, far from reality at present. In considering the current lack of such a framework for marine genetic resources during a side event on BBNJ, the German Minister for the Environment Steffi Lemke described the situation as ‘similar to the wild west’, pointing to the urgency of the High Ambition Coalition to finalise the BBNJ treaty by August 2022. 

The momentum that emerged during UNOC 2022 is indeed needed to overcome the remaining issues in the BBNJ negotiations – marine genetic resources being the most challenging element left on the table. MARIPOLDATA made a graph that visualises positions of various States on the treaty elements as based on their statements during IGC-4 (see graph ‘BBNJ IGC-4 positions’). As the graph shows, members of the High Ambition Coalition want to limit regulation to the ‘collection’ of genetic materials while leaving later uses of genetic sequence data (‘access’ to genetic resources) untouched. This essentially means that commercial activities that follow up on basic research and intellectual property rights will remain outside the treaty. Other countries and groups (particularly developing countries) emphasised the need to cover both collection and access, as well as to share both monetary and non-monetary benefits derived from marine genetic resources. 

 

Graph: ‘BBNJ IGC-4 positions’ (Colours according to whether states showed support (green), opposition (red) or flexibility (yellow); see interactive version; see Appendix for the underlying methodology).

What we heard from different sources in the sidelines of UNOC 2022 is that there is currently a lack of concrete ideas to help States overcome their differences in their positions on marine genetic resources in the BBNJ context. In this regard, the recent proposal made by the DSI Scientific Network  in the Nagoya Protocol context, which includes a decoupling of access and benefit-sharing, combined with a ‘flat-rate’ biodiversity use fee resulting from the commercialization of genetic resources (see also this interview), is relevant. Instead of introducing bureaucratic burdens on scientists or closing open-access databases, this approach constitutes an alternative solution designed to overcome persistent divides, also for the BBNJ context. Finding a practical solution for marine genetic resources that is applicable in both the BBNJ and  the Convention of Biological Diversity context would have additional advantages in terms of reducing institutional complexity. 

Looking forward to IGC-5, we are confident that States can draw on these and other expert voices to find a solution that promotes the equitable and sustainable use of genetic resources while also setting a clear regulatory framework for the continued conduct of research in areas beyond national jurisdiction. 

Anchoring the ambitious commitments on capacity building and transfer of marine technology in the BBNJ treaty  

Participants at UNOC 2022 often viewed the implementation of SDG 14 as critically dependent on the involvement of the entire global community of States, and emphasised that this has to be based on a fair distribution of marine research and benefits from blue economies. Hence, the importance of sharing knowledge, training, data and technologies was not addressed during a number of side events, but also in an interactive dialogue on June 28th. UNOC 2022 participants also witnessed the launch of a declaration by the Alliance of Small Island States (AOSIS) on the enhancement of marine scientific knowledge, research capacity and transfer of technology (CBTMT in BBNJ terms). During this session, marine biologist Dr. Diva Amon made the important remark that the human capacity to research and understand marine ecosystems already exists in many parts of the world, but that the technological equipment to benefit from these capacities is often still lacking. While human-centred training programmes remain important, the transfer of up-to-date marine technologies may become more central in the future. Existing training programmes also need to be improved in  light of various forms of discrimation that scientists from developing countries currently have to face in this process. 

Many States used the stage UNOC 2022 to emphasise the crucial role of CBTMT for the sustainable use of the ocean and made voluntary commitments in this regard. However, when looking at the graph ‘BBNJ IGC-4 positions’, we see that many States of the High Ambition Coalition were unwilling to accept language that creates legal obligations (‘shall ensure’) in the CBTMT Chapter, and instead preferred to remain vague. We hope that the ambitious commitments on CBTMT voiced during the conference can translate into negotiation positions for BBNJ IGC-5, taking the needs of developing countries seriously and addressing them as concretely as possible. 

Deep seabed mining moratorium and the return of the precautionary principle 

Deep seabed mining was arguably the most controversial topic during UNOC 2022. As the International Seabed Authority currently prepares for the potential adoption of a mining code during its next council and assembly meetings at the end of July/beginning of August, the governments of Palau, Samoa, Fiji, Guam and 57 parliamentarians from around the world used the stage of UNOC 2022 to announce a global call for a moratorium on deep seabed mining. This call follows a long-standing demand from various States, researchers and civil society organisations to halt deep seabed mining until its environmental impact is better understood. Interestingly, French president Emmanuel Macron also called for a legal framework to ban deep seabed mining during his visit at the conference, adding momentum to the initiative. 

At the core of the argument against deep seabed mining is the so-called precautionary principle (see also IUCN’s call for a moratorium), which entails that decision-makers avoid authorising human activities as long as there is not sufficient knowledge about the potential environmental impact of these activities (see IISD definition). This principle has hovered around international environmental treaty-making since the 1992 Rio declaration. During the BBNJ negotiations, it has caused continuous disagreement between those States that want to see it included in the process of identifying marine protected areas, and others that favour the weaker ‘precautionary approach’ (or the ‘application of precaution’, as formulated in the draft from May 2022; see also the MARIPOLDATA Blog on this issue). 

The publicly voiced support for the moratorium from the highest political levels thus indicates some momentum for a return to the precautionary principle. During the BBNJ negotiations, we see that many States, that are part of the High Ambition Coalition and have adopted critical stances against deep seabed mining, actually oppose the inclusion of this principle in the area-based management tools chapter (ABMT chapter; see graph ‘BBNJ IGC-4 positions’). If highly ambitious States consider this principle important enough to use it to prevent potentially damaging activities in the seabed, it may be worth also including it in the governance of biodiversity in the water column. While the support of many States and other stakeholders for the 30×30 target on defining (marine) protected areas is an important and welcome step, the adopted legal principles behind these areas also need to be sufficiently ambitious in order to accomplish a treaty that warrants the label of being ‘highly ambitious’. 

Ensuring a strong mandate for BBNJ decision-making bodies

The High Ambition Coalition, aims to ‘secure a strong international legal framework, based on science, setting additional legal obligations and environmental tools for effective action’ (Declaration High Ambition Coalition). Its declaration addresses the question of how strong the future institutions of the BBNJ agreement should be. The answer of the ‘highly ambitious’ is: strong. Similarly, the final declaration of UNOC 2022 recognizes the importance of ‘strong governance’ tools for achieving ocean sustainability. As several State representatives from the High Ambition Coalition indicated in Lisbon, the BBNJ conference of parties (COP) should have the mandate to define and implement marine protected areas. At the same time, open questions about decision-making powers remain for other treaty elements. For example, the mandate of the BBNJ COP can still be strengthened in relation to environmental impact assessments. 

As MARIPOLDATA’s research from IGC-4 shows (see graph ‘BBNJ IGC-4 positions’), States of the High Ambition Coalition opposed or neglected a cross-regional proposal from CARICOM & PSIDS that aimed to find a compromise while giving the BBNJ COP important competences to critically review activities that endanger the environment. If the High Ambition Coalition wants to change the status quo of unsustainable ocean governance, as German Minister for the Environment Steffi Lemke stated in Lisbon, the coalition members should give the BBNJ COP the mandate and sufficient competencies to review, and, if necessary, prevent harmful activities

Establishing an effective implementation and compliance committee 

In order for the BBNJ treaty to change the status quo of (the lack of) regulation for high seas marine biodiversity and serve as a solid framework to conserve and sustainably use marine biodiversity, it will need to be implemented effectively and States will have to comply with its regulations. Ensuring compliance with international agreements on the high seas is challenging. Therefore, sessions at UNOC 2022 addressed the need to foster institutional partnerships, for example to better control illegal, unreported and unregulated (IUU) fishing. 

Effective implementation and compliance of the law of the sea was also an important issue at BBNJ IGC-4, where a cross-regional proposal by CLAM and PSIDS to establish an implementation and compliance committee was welcomed by many delegations. In this case, the graph on BBNJ positions shows how most countries, and specifically those from the High Ambition Coalition supported this proposal. This should encourage negotiators to continue drafting an effective implementation and compliance committee for the BBNJ instrument

Moving towards BBNJ IGC-5

Even though the BBNJ agreement is often portrayed as the main instrument to ‘better balance the conservation and sustainable use of marine resources’, advancing discussions on it was not at the centre stage at UNOC 2022. Nonetheless, the events and informal exchanges held in Lisbon have the potential to contribute significantly to the successful conclusion of a strong BBNJ instrument. 

Both members and non-members of the High Ambition Coalition still have substantial ground to cover to achieve a truly ambitious BBNJ treaty. High ambition cannot be limited to the fast conclusion of the negotiations, but should be reflected in the substance of the agreement. In the case of marine genetic resources, we pointed to a recent proposal by the DSI Scientific Network for a flat-rate approach to benefit sharing that could help overcome the existing divides in the negotiation. Finding a workable solution that establishes legal clarity and contributes to more equitable participation will be crucial for current and future genetic resource users to engage in ocean-related science. The BBNJ treaty has many implications for the ‘blue economy’ in this regard. 

In regards to area-based management tools, the bodies of the BBNJ instrument should not only have a mandate to establish marine protected areas but also to develop and oversee implementation and management plans. Only if given such competences, the BBNJ instrument can make a real difference in protecting sensitive ocean areas. It is similarly important to give the COP of the BBNJ instrument powers to critically deliberate on environmental impact assessments. Finally, if all future parties to the treaty concur that CBTMT is a key element of ocean governance, anchoring concrete CBTMT obligations in the treaty text can help to cement financial predictability and thus gather support among developing countries. Having said that, we are confidently looking towards IGC-5 and the conclusion of this highly important treaty for sustainable and equitable ocean governance. 

Systematic data collection by MARIPOLDATA researchers during UNOC 2022. Source: own image.

Appendix: Graph on BBNJ positions

The graph shows the detailed positions of States and alliances on individual provisions of the BBNJ treaty draft text during IGC-4. Due to the prevailing Chatham House rules, we cannot name the individual States but categorise States and alliances either as members of the High Ambition Coalition or as ‘other’. The data was collected by the MARIPOLDATA project during IGC-4, where we traced whether States voiced their support (green), opposition (red) or showed flexibility (yellow) towards some of the key provisions of the BBNJ agreement. The displayed provisions correspond to articles in the revised draft text of November 2019. As we discuss in this blog post, we consider these provisions as crucial to an assessment on how ambitious the BBNJ treaty will actually turn out to be.

My experience as an intern at MARIPOLDATA – “Science is more than just physics and mathematics”

By Anook Garden

Anook Garden is a 16-year-old student at a Viennese school and stayed with the MARIPOLDATA team for a one-week-long internship in June 2022. In this blog entry, she reflects on her time spent in the project and writes about her experiences, impressions, and learnings.

I heard about MARIPOLDATA through a teacher at my school and decided it was the perfect place to do my internship. I love science and find politics and intergovernmental discussions fascinating, and MARIPOLDATA relates to those subjects. Although I must admit I wasn’t too excited going in, the various subjects and work involved was enticing once I started.

The people working here are very welcoming and uplifting, encouraging you to work to the best of your abilities, and helping you when you’re stuck. You don’t feel as if you spent hours working by the end of the day, because each task done feels rewarding and like an accomplishment. The MARIPOLDATA team works together to produce the best work while maintaining a healthy work environment, where you get along with the people you work with. Lunches and coffee breaks are often spent together which allows the team to get to know each other better and create better work relationships.

After meeting most of the team members here at MARIPOLDATA, I spent the first day understanding the coding and technical part behind the final product. Cleanly putting together the useful ethnographic data acquired to then write reports and texts. I observed one of the previous sessions of an international conference for a new treaty and put the information I collected into an Excel spreadsheet called “Matrix”, to then learn how R studio works and do a bit of coding using my spreadsheet.

On the second day, I attended a 3-hour long conference online in real-time which was part of the working group meeting on the Post-2020 Global Biodiversity Framework of the Convention on Biological Diversity (CBD). Here I learned how the ethnographic data is collected and put into the “Matrix”. I also learned about the structure of a scientific article, and read one published by MARIPOLDATA named: “Who owns marine biodiversity? Contesting the world order through the `common heritage of mankind ́ principle.” Then I answered some questions given to me about the topic at hand.

I spent the third day transcribing an oral history interview with a marine scientist and then learning about how information about other scientists is collected and charted (using “Matrix”). This is done by immersing oneself into the scientists’ work to have a clear understanding of what they do (by reading their reports and looking at their project website and by meeting and interviewing them, which is when the prior knowledge becomes useful). By the end, MARIPOLDATA will have enough information collected to compare three cases: US, France/Eu, Brazil.

I started off the fourth day by reading a team member’s blog article called “An ocean of possibilities: Marine Biodiversity in the Post-2020 Global Biodiversity Framework”, which helped me to understand the action-oriented targets in the framework to be achieved by 2030 in order to be on track for the 2050 goals. It explains the points argued and discussed by states during the conference in Geneva in March 2022. I then read an article on Multilateralism, Science, and the protection of the ocean (“Multilateralismus, Wissenschaft und der Schutz der Ozeane”).  We finished the day by having a team meeting where we talked about what we did during the week. One team member, a student assistant, presented the research synopsis of her master’s thesis, which focuses on introducing Indigenous knowledge in the BBNJ negotiations.

Friday, the last day of my internship was spent writing this blog for the MARIPOLDATA website, and attending a university class at Vienna University about International environmental politics as a research object and career path.
Going into this internship I had the impression that it was entirely centered around biology. It was however much less focused on natural sciences than I had foreseen and instead groups several specialties and subjects together making a research group. These subjects include coding, politics/diplomacy (e.g. global environmental and international politics, science and environmental policies, international ocean protection, multilateral diplomacy, international relations, political ecology …), biology (e.g. biodiversity, bio marine life, socioecology, marine genetics …), and finance.

I thoroughly enjoyed my internship here as well as the welcoming work environment, and hope to, in the future, work in similar conditions. This experience has truly opened my eyes to the wide range of possibilities that exist in terms of what my future entails and was a reminder that science is more than just physics and mathematics. All in all, this was an experience I will always remember and carry with me. Wanting to make the best of this experience I worked hard and was pleasantly surprised with the outcome. I learned a lot, thanks to the amazing team that welcomed me and showed me the ropes.

An Ocean of Possibilities: Marine Biodiversity in the Post-2020 Global Biodiversity Framework

The Post-2020 Global Biodiversity Framework (GBF) is an “ambitious plan” (first draft GBF, Annex, para. 1) to ensure that “biodiversity is used sustainably in order to meet people’s needs” (first draft GBF, Annex, para. 6). The framework has 21 action-oriented targets that should be achieved by 2030 in order to reach the four long-term goals for 2050 and it should be adopted by the 15th Conference of the Parties (COP) of the Convention on Biological Diversity (CBD).

States have negotiated the GBF in the corresponding Open-Ended Working Group (WG2020), which held its first and second meetings in person in 2019 and 2020, and its third meeting in two parts: an online part in 2021 and a hybrid part in 2022. In this blog post, we focus on marine issues discussed in the second part of the third meeting (WG2020-3), which we attended in person and online at the same time.

Inside the venue: CICG – The International Conference Center Geneva. Source: own image/ethnographic data

Hybrid meetings and the study thereof

The meetings of the second part of the WG2020-3 were hybrid: state delegates could give statements and text proposals on-site or online, as well as support or contest interventions of other states and NGOs online in real time if they had to isolate for 5 days because their daily COVID test was positive. This was also the case of delegations that could not attend the meetings in person due to travel restrictions or that could attend some meetings in person and others online.

In case the daily COVID test of a non-state actor was positive, the corresponding delegate could observe the negotiations in real time through the digital platform used by the CBD (Interactio) but could not provide statements. Non-state actor’s participation in hybrid meetings was then meaningful if they were on-site to provide statements and lobby. In sum, hybrid meetings turned negotiations into a more participatory process for states but not for non-state actors.

Two team members observed the meetings on-site and online simultaneously to study marine governance in practice (see Campbell et al., 2014; Vadrot et al., 2021). As registered observers, we had access to the face-to-face meetings and the online platform where these were live-streamed. This enabled us to observe the proceedings in real time both in Geneva and from home (Vienna).

Our seat in the WG2020-3. Source: own image/ethnographic data

Marine Issues in the Post-2020 Global Biodiversity Framework

Marine issues in general are part of the long-term goals for 2050 and of targets 1-9, 11, 12, and 18-20. In this blog post, however, we focus on the discussions related to marine conservation and sustainable use: We address goals A and B, as well as targets 1-8.

Goals A and B: ecosystems and cultural values

Goal A aims to achieve the conservation of ecosystems, species and genetic diversity. States of the Global North and South supported to enhance the connectivity and integrity of all ecosystems (Argentina, Australia, Costa Rica, Egypt, Perú, South Africa, UK). However, Colombia and the EU supported to enhance ‘managed ecosystems’ as well, which are ecosystems altered and overseen by humans (Antle & Capalbo, 2002) like those embedded in aquaculture. A possible explanation for this proposal lies on that incorporating managed ecosystems would facilitate states’ compliance with the GBF as they could focus on conserving economically exploited ecosystems, such as fisheries. Additionally, Costa Rica and Egypt proposed to include marine ecosystems. This might be due to that the CBD has historically focused on terrestrial biodiversity, leaving marine issues aside as exemplified by the short time allocated to marine discussions in the second part of the 24th meeting of the Subsidiary Body on Scientific, Technic and Technological Advice of the CBD (ENB, 2022).

Aquaculture pond. Source: https://www.flickr.com/photos/theworldfishcenter/8491852388

Goal B pursues to achieve the sustainable use of biodiversity. Disagreements in these discussions focused on whether to include cultural values attached to nature by keeping the concept of ‘nature’s contributions to people,’ which considers cultural values, or replacing it with ‘ecosystem services,’ which fails to consider cultural values attached to nature.

States supporting the recognition of such values included Australia, Bolivia, Japan, Namibia, New Zealand, Norway, Palestine, and Saint Lucia. All of these states have Indigenous People and Local Communities (see Cobb, 2020; FAO, 2020; Harden-Davies et al., 2020; IWGIA, 2022; Mulalap et al., 2020; Murray, 1996; Nursey-Bray & Jacobson, 2014). States avoiding the recognition of cultural values attached to nature included China, Costa Rica, Ecuador, EU, Iran, Mexico, the Russian Federation, and Switzerland. This might be due to that states pursue to protect economic interests. In the spirit of compromise, Chile proposed to add “nature’s contributions to people, including ecosystem services,” enabling the accommodation of diverging interests.

Scope of targets 1 and 3

States did not seem to agree on whether targets 1 and 3 would apply to both national and international waters. Target 1 aims to ensure that states implement management plans for human activities in land and sea areas; and target 3 pursues to guarantee that at least 30% of land and sea areas are conserved through terrestrial or marine protected areas by 2030.

With regards to target 1, the United Kingdom (UK), for instance, indicated that the target would apply to both national and international waters, while Brazil highlighted that the target would only apply to 50% of national waters. Regarding target 3, the UK and Turkey indicated that the target would apply to both national and international waters, while Brazil highlighted that the target would only apply to national waters.

On the one hand, recognizing that the CBD can regulate activities in international waters would facilitate states’ compliance with both targets. States could protect less than 30% of their national waters if the targets apply to international waters as well, enabling continuous fishing in over 70% of national waters. On the other hand, limiting the scope of the targets to national waters would limit the influence of the GBF in the ongoing negotiations for an agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, where states discuss the implementation of marine protected areas (MPAs).

Map of national and international waters. National waters are white and international waters are colored blue. Source: https://commons.wikimedia.org/wiki/File:Internationalwaters.png

Type of spatial measure in target 3

State actors from the Global North (Canada, EU) and Global South (Argentina, Armenia, Jordan, Philippines, South Africa, and Turkey) supported the inclusion of MPAs and other effective area-based conservation measures (OECMs), which aim at the long-term in situ conservation of ecosystems while also safeguarding socioeconomic activities (CBD COP dec. 14.8, para. 2). Namibia, for its part, opposed the inclusion of OECMs as these could undermine the target. This might be due to the protection of socioeconomic activities in OECMs.

Global map of MPAs. Source: https://commons.wikimedia.org/wiki/File:GlobalMPAs_logo_2020.jpg

What species should we protect under targets 4, 5 and 6?

While target 4 focuses on the recovery and conservation of species, states failed to agree on what specific species the target would address. India proposed to focus on “wild species,” Gabon on “threatened species,” and Jordan on “wild and threatened species.” A potential explanation for these differing preferences might lie in the capacities of these states to ensure the recovery and conservation of threatened species by 2030. According to the website Animalia, Gabon and Jordan have 37 and 31 threatened species respectively (Animalia, n.d.a; n.d.b), while India has 280 (Animalia, n.d.c).

Leatherback sea turtle: one of the threatened species in Gabon according to Animalia. Source: https://commons.wikimedia.org/wiki/File:Leatherback_Sea_Turtle_%2817665415746%29.jpg

Ecuador and Indigenous Peoples and Local Communities proposed to focus on “wild and domesticated species”; while Brazil, Colombia and Korea preferred to focus on “native species and domesticated species.” A focus on wild species might enable state and non-state actors to perform practices for recovering and conserving all animals. A focus on native species would enable state actors to avoid protecting wild and alien species, such as particular species of fish. In other words, both preferences represent opportunities for states to avoid incurring in obligations that firstly, they cannot fulfil due to lack of capacity or secondly, they are not willing to fulfil due to economic interests.

The sustainable harvesting, trade and use of wild species, however, is addressed in target 5. Argentina, Australia, Canada and New Zealand proposed to include fisheries and coastal and marine biodiversity in this target, while the EU opposed the inclusion of marine species. As explained above, the need to refer to marine biodiversity explicitly might be due to that the CBD has focused on terrestrial biodiversity mainly. A potential explanation for the EU’s behavior might be that its member states have different positions with regards to including marine species in target 5, in which case a reference to wild species in general would accommodate the diverging interests inside the EU.

Jordan, Sri Lanka and Sudan proposed to include “wild species harvesting,” “capture breeding” and “wildlife trade” in target 5. These activities constitute established economic practices in these countries. A focus on sustainable wildlife business would support their economies and simultaneously help achieve this target. Additionally, New Zealand and Fiji proposed to refer to “all species.” This might be due to that a broader focus would give states the possibility to accommodate their interests by enabling them to determine on their own what species they will manage sustainably.

Container with eels – a wild species. Source: https://www.rawpixel.com/search/eel?page=1&sort=curated

Similar to targets 4 and 5, states failed to agree on what species they would manage under target 6. On the one hand, the EU and UK proposed that this target tackled “alien species” in general, instead of “invasive alien species.” Invasive alien species are “species that are introduced, accidentally or intentionally, outside of their natural geographic range and that become problematic” (IUCN, n.d.) as they are “one of the main drivers of biodiversity loss, due to their ability to disperse and cause negative effects on native species and the environment” (NOBANIS, 2015, p. 7). The elimination of the word “invasive” could derive in the interpretation of alien species as those species that are foreign to a particular ecosystem and do not contribute to biodiversity loss. Such interpretation would enable the EU and UK to implement policies that fail to differentiate between the invasive and non-invasive character of alien species.

On the other hand, Colombia indicated that the target could focus on “species with high invasive potential” and South Africa proposed to concentrate on “harmful species.” Such species classifications would enable countries to determine on their own what species they would manage, according to their interests and capabilities.

Lionfish: Invasive alien species in the Atlantic and Caribbean according to the World Resources Institute (n.d.). Source: https://commons.wikimedia.org/wiki/File:Red_lionfish_near_Gilli_Banta_Island.JPG

Furthermore, India proposed to add freshwater and marine species to this target. Aquatic ecosystems in India have the highest number of invasive alien species compared to other ecosystems according to a publication of the Indian Centre for Biodiversity Policy and Law (Sandilyan et al., 2019). A potential explanation of India’s proposal could be that the country might be implementing policies to manage aquatic invasive alien species. Thus, India might be trying to export national policies to the international level, facilitating its own compliance with target 6.

Numeric figures

Goal A and targets 2, 3, 6, 7, and 8 contained numeric figures over which states provided divergent views. In general, Global North actors supported the use of numeric elements in order to measure progress towards the targets; while Global South actors opposed numeric components arguing that they could not measure progress in those terms. The discussions about target 6 exemplify this divide. Global North actors (EU, Israel, Norway, and UK) preferred to reduce the introduction and establishment of invasive alien species “by at least 50 percent”; while Global South actors (Argentina, Bolivia, Brazil, Colombia, Gabon, and United Arab Emirates) preferred to delete this numeric figure.

Chinese mitten crab (Eriocheir sinensis): Invasive alien species in the European Union according to the European Commission (2021). Source: https://commons.wikimedia.org/wiki/File:Zoo_K%C3%B6ln_Eriocheir_sinensis_31122014_1_bis.jpg

As an alternative, Argentina, Dominican Republic, Guatemala, and Korea proposed to replace the percentage with “significantly decrease.” This qualitative evaluation of progress towards the target could accommodate diverging preferences by enabling states to measure progress on their own terms. It also implies that states can decide how much they can achieve, independently of whether this effectively increases the well-being of ecosystems.

Discussions about target 3 provide another example of diverging views with regards to numeric figures. States provided wide support for protecting 30% of land and ocean by 2030 through spatial measures due to the scientific evidence presented by the High Ambition Coalition. States supporting this numeric figure included Armenia, Canada, Colombia, Costa Rica, Egypt, India, Namibia, and Perú. Other countries, such as Cameroon, Paraguay and South Africa supported a qualitative assessment of their contributions to achieving target 3, while Turkey and Jordan opposed the numeric figure. A possible explanation for such a qualitative assessment or opposition to the numeric figure might lie in that these countries pursued to avoid being overburdened with the costs of environmental protection as they might lack the capacities to achieve the target by 2030.

What concepts should we apply in target 8?

States debated about what concepts to include in target 8: ‘ecosystem-based approach’ or ‘nature-based solutions’. On the one hand, ‘ecosystem-based approach’ lacks a definition provided by a legally-binding instrument (Kirkfeldt, 2019, p. 2). According to a technical report of the CBD (2016), ‘ecosystem-based approach’ is the use of biodiversity and nature as part of adaptation strategies to climate change. On the other hand, ‘nature-based solutions’ was recently defined by a resolution of the United Nations Environment Assembly (UNEA) as the protection and sustainable use terrestrial and aquatic ecosystems, which “address social, economic and environmental challenges effectively and adaptively, while simultaneously providing human well-being, ecosystem services, resilience and biodiversity benefits” (UNEP/EA.5/Res. 5, para. 1).

Brazil, Ecuador, and India supported the inclusion of the ‘ecosystem-based approach,’ which might be due to that its non-binding definition enables states to apply it on their own terms to facilitate their own compliance, for instance, by including aquaculture as an adaptation measure.

A wide range of Global North and South state actors (Australia, Colombia, Costa Rica, EU, Ghana, Indonesia, Korea, Mexico, New Zealand, Norway, Sri Lanka, and United Arab Emirates) supported the reference to ‘nature-based solutions.’ Although the resolution that defines this concept is most likely not legally-binding, it represents the general opinion of the highest United Nations (UN) body on environmental issues (UNEP, n.d.; see UN, 2022) and therefore has ‘more weight’ than a concept defined in a technical report, such as ‘ecosystem-based approach’. This ‘weight’ could explain the wide support provided for including ‘nature-based solutions’ in target 8.

Another potential explanation could be that ‘nature-based solutions’ is flexible enough for states to accommodate their diverging interests and facilitate compliance. Additionally, the concept is consistent with the 2030 Agenda for Sustainable Development, which the GBF is supposed to complement and support (first draft GBF, Annex, para. 8).

What is left for the fourth meeting of the WG2020 in Nairobi?

Delegates will face one main challenge across the whole GBF discussions: work together in the spirit of compromise in order to reach consensus on the goals and targets. This implies that states must be willing to reshape their preferences so that there is a general agreement on the obligations they will incur to conserve and sustainably use biodiversity. Core issues include the measurement towards progress, the level of ambition, and the different economic and technological capacities of states, as well as alternative understandings of biodiversity, among others.

In how far would the GBF protect nature if it is not ambitious enough? Or how would the GBF protect nature if it is so ambitious that states cannot comply with it? Delegates in Nairobi have the opportunity to shape our engagement with nature for a better future for both terrestrial and marine biodiversity. The world is in their hands.

Walk to the United Nations Office in Nairobi. Source: https://commons.wikimedia.org/wiki/File:UN_Headquarters,_Nairobi.JPG

 

References

Antle, J.M., Capalbo, S.M. (2002). Agriculture as a Managed Ecosystem: Implications for Econometric Analysis of Production Risk. In: Just, R.E., Pope, R.D. (eds) A Comprehensive Assessment of the Role of Risk in U.S. Agriculture. Natural Resource Management and Policy, vol 23 (pp. 243-263). Springer. https://doi.org/10.1007/978-1-4757-3583-3_12

Animalia. (n.d.a). Threatened Species of Gabon. https://animalia.bio/lists/country/threatened-species-of-gabon?page=1.

Animalia. (n.d.b). Threatened Species of Jordan. https://animalia.bio/lists/country/threatened-species-of-jordan?page=1

Animalia. (n.d.c). Threatened Species of India. https://animalia.bio/lists/country/threatened-species-of-india?page=1. 

Campbell, L. M., Corson, C., Gray, N. J., MacDonald, K. I., & Brosius, J. P. (2014). Studying global environmental meetings to understand global environmental governance: Collaborative event ethnography at the tenth conference of the parties to the convention on biological diversity. Global Environmental Politics, 14(3), 1-20.

CBD Dec. 14.8, Protected areas and other effective area-based conservation measures (Nov. 30, 2018).

CBD. (2021). First Draft of the Post-2020 Global Biodiversity Framework. (CBD/WG2020/3/3). https://www.cbd.int/doc/c/914a/eca3/24ad42235033f031badf61b1/wg2020-03-03-en.pdf

Cobb, E. (2020). Japan’s forgotten indigenous people. BBC. https://www.bbc.com/travel/article/20200519-japans-forgotten-indigenous-people

Convention on Biological Diversity, Jun. 5, 1992, 1760 U.N.T.S. 79.

ENB. (2022). Geneva Biodiversity Conference Highlights: Friday, 25 March 2022. International Institute for Sustainable Development. https://enb.iisd.org/sites/default/files/2022-03/enb09771e.pdf

European Commission (2021). Report from the Commission to the European Parliament and the Council on the Review of the Application of Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the Prevention and Management of the Introduction and Spread of Invasive Alien Species. European Union. https://ec.europa.eu/environment/pdf/nature/invasive_alien_species_implementation_report.pdf

FAO. (2020). WECAFC Fishery Resources Report 2020. Saint Lucia Flyingfish fishery. FIRMS Reports. In: Fisheries and Resources Monitoring System (FIRMS) [online]. Updated [Cited 31 May 2022]. http://firms.fao.org/firms/fishery/906/en

Harden-Davies, H., Humphries, F., Maloney, M., Wright, G., Gjerde, K., & Vierros, M. (2020). Rights of nature: Perspectives for Global Ocean Stewardship. Marine Policy, 120, Article 104059. https://doi.org/10.1016/j.marpol.2020.104059

IUCN. (n.d.). Invasive Alien Species. Retrieved June 3, 2022, from https://www.iucn.org/regions/europe/our-work/biodiversity-conservation/invasive-alien-species?msclkid=28bac60cd0f211ec8246d9df83c67bdd.

IWGIA. (2022). The Indigenous World 2022 (M. Dwayne, Hrsg.; 36th Aufl.).

Kirkfeldt, T. S. (2019). An ocean of concepts: Why choosing between ecosystem-based management, ecosystem-based approach and ecosystem approach makes a difference. Marine Policy, 106, 103541. https://doi.org/10.1016/j.marpol.2019.103541

Mulalap, C. Y., Frere, T., Huffer, E., Hviding, E., Paul, K., Smith, A. Dr., & Vierros, M. K. (2020). Traditional knowledge and the BBNJ instrument. Marine Policy, 1-10. https://doi.org/10.1016/j.marpol.2020.104103

Murray, P. A. (1996). The fisheries of St. Lucia, West Indies. NAGA, 19(1), 41–44.

Nursey-Bray, M., & Jacobson, C. (2014). ‘Which way?’: The contribution of Indigenous marine governance. Australian Journal of Maritime and Ocean Affairs, 6(1), 27-40. https://doi.org/10.1080/18366503.2014.888136

NOBANIS. (2015). Invasive Alien Species: Pathway Analysis and Horizon Scanning for Countries in Northern Europe. TemaNord 2015:517.

Sandilyan, S., Meenakumari, B., Babu, C. R., & Mandal, R. (2019). Invasive Alien Species of india. National Biodiversity Authority, Chennai. http://nbaindia.org/cebpol/pub/iaslist.pdf

  1. (2022, March 23). Are UN resolutions binding?. Dag Hammarskjöld Library. https://ask.un.org/faq/15010

UNEP. (n.d). About the United Nations Environment Assembly. https://www.unep.org/environmentassembly/about-united-nations-environment-assembly#:~:text=The%20United%20Nations%20Environment%20Assembly%20was%20created%20in,on%20Sustainable%20Development%2C%20also%20referred%20to%20as%20RIO%2B20.

UNEP. Environmental Assembly. Res. 5, Nature-based solutions for supporting sustainable development (Mar. 2, 2022).

Vadrot, A. B. M. Langlet, A., Tessnow-von Wysocki, I. (2021a). Who owns marine biodiversity? Contesting the world order through the `common heritage of humankind´ principle. Environmental Politics, 31(2), 226-250. https://doi.org/10.1080/09644016.2021.1911442

World Resources Institute. (n.d.). Atlantic and Caribbean: Lionfish Invasion Threatens Reefs. https://www.wri.org/research/reefs-risk-revisited/atlantic-and-caribbean-lionfish-invasion-threatens-reefs

Not the only Treaty in the Sea: Linking the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the future BBNJ agreement

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about the negotiations towards 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 (BBNJ). In this series, the team publishes updates on the four package items under the BBNJ Agreement: Marine Genetic Resources (MGRs), Area Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and Technology Transfer (CB&TT). Due to the COVID-19 pandemic, the planned-to-be final intergovernmental conference (IGC) was again postponed and is now planned for 2022. In the meantime, informal exchanges among state and non-state actors are taking place [1]. The MARIPOLDATA blog series include developments from the online Intersessional Work organized by the UN Secretariat since September 2020, the virtual High Seas Treaty Dialogues, taking place under Chatham House rules, organized by 3 states and a number of NGOs, and the MARIPOLDATA Ocean Seminar Series in which scholars and practitioners present and discuss current issues of ocean governance. For this blog, we would like to thank Daniel Kachelriess for his valuable feedback and input. 

[1] See more information: Intersessional Work organized by UNDOALOS: https://www.un.org/bbnj/content/Intersessional-work and BBNJ Informal Intersessional Dialogues: https://highseasdialogues.org/.

Key arguments

  • CITES has a mandate to regulate certain activities with regard to marine species listed under the Convention
  • The activities regulated by CITES include activities in ABNJ, leading to the possibility that CITES and the BBNJ treaties may overlap
  • A positive formulation of the “not undermining” clause could enhance cooperation
  • Implementation of CITES and the BBNJ agreement both requires intensive capacity building efforts (e.g. in ports)

A New Agreement on Marine Biodiversity

The establishment of coherent legal framework for the management and conservation of biodiversity in the High Seas is one objective of the currently ongoing negotiations for a new treaty on marine Biodiversity Beyond National Jurisdiction (BBNJ Treaty) under the United Nations Convention on the Law of the Sea (UNCLOS) (Kulovesi, Mehling, & Morgera, 2019)(Kulovesi, Mehling, & Morgera, 2019). The current draft text for the instrument includes provisions on Marine Genetic Resources (MGRs), Area-Based Management Tools (ABMTs), including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and Marine Technology Transfer (CBTT), as well as Cross-cutting issues. At the same time, delegates as well as observers constantly highlight that the BBNJ Treaty will have close linkages to other treaties that sectionally or regionally regulate matters related to marine biodiversity. One of these treaties is arguably the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which entered into force in 1975.

CITES

CITES regulates the international trade of endangered species listed on one of its appendices. Appendix 1 includes the most endangered species – threatened with extinction; Appendix 2 includes species that may be threatened with extinction if trade is not closely controlled; and Appendix 3 includes species in need of international trade controls. The Conference of the Parties (COP) to CITES, which takes place every three years, decides upon enlisting new species on their appendices.

Although CITES initially was largely concerned with terrestrial species, by now, out “of the approximately 39 thousand species currently listed in the CITES Appendices, 2 392 were considered to be marine species” (Pavitt et al., p. 11). With the increasing listing of marine species under CITES, the reported number of trade transactions of marine species has constantly increased as well (Figure 1).

Figure 1: From (Pavitt et al, p.15).

The increasing role CITES plays in relation to marine species is shown in a report recently published by the FAO which presents numbers and trends on trade of commercially exploited CITES-listed marine species. CITES documents and regulates all international trade of listed marine species. By CITES’ definition this includes Introduction from Sea (IFS). “ (the others are import, export, and re-export). IFS is defined in Article 1 of the Convention as transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State.” This addresses areas beyond national jurisdiction (ABNJ) – which is the same geographical scope that the BBNJ treaty aims to cover. Although, this provision was initially not operationalized, partially due to the limited number of marine species listed under CITES, COP 16 in 2013 adopted guidance in Resolution Conf. 14.6 (Rev CoP16) that specified for different scenarios when an IFS certificate or other type of permit that allows the further trade of this species is required.

Controlling the flow of MGRs

As observed by Kachelriess, Cremers and Wright in the recent blog post of IDDRI, “the current BBNJ draft agreement shares many characteristics with IFS”, particularly in the MGR part. In fact, CITES could already now regulate the access and trade of MGRs in ABNJ when they stem from a species under Appendix 1 or 2 of CITES. The similarities can be seen in Figure 2.  The depicted process for MGR registration and access is largely simplified and summarizes some states’ ideas presented by the CITES secretariat in a flowchart in spring 2021. Indeed, MGRs under BBNJ and the IFS share similarities in that both systems come into action when a specimen is taken from ABNJ. One large unresolved question in the BBNJ system is who would be the responsible authority to register the MGR sample and ensure access and a potential tracking mechanism for benefit sharing. The IFS system can bring some clarity to the BBNJ negotiations because it operationalizes the location of  the authority to implement regulations in cases when there is no state authority to “provide” the specimen.

It specifies that the national authority of the vessel at hand carrying the MGRs needs to issue an IFS certificate if the vessels lands in its flag state. When the landing state (where the vessels enter into harbor after the capture) differs from the flag state, the landing state needs to issue an import permit and the flag state under which the vessels operates, needs to issue an export permit. Both scenarios involve a “Scientific Authority” to issue a non-detriment finding if the specimen is listed under appendix 1 or 2 of CITES. A non-detriment finding under CITES is a document, issued by a Scientific Authority that specifies that the transaction is not to the detriment of the specimen based on population status; distribution; population trend; harvest; other biological and ecological factors; and trade information. The issuing of this document requires scientific knowledge on the indicated factors and an Scientific Authority that can document these.

Hence, CITES establishes that parties to the convention need to have a Scientific Authority that is in the position to scientifically assess the condition of the population from which the specimen was landed by a vessel and identification at the port of entry to determine if the specimen at hand is listed under appendix 1 or 2 of CITES. The notion of an authority (e.g. fisheries or port inspectors) with some level of scientific knowledge that assesses what was landed and how to handle it in terms of international regulation may be interesting for BBNJ purposes as well. Although, not specifically termed “Scientific Authority” there has been debate in the ongoing BBNJ negotiations on who would have to report and register the MGRs at hand to the CHM and/or the secretariat of the BBNJ.

Figure 2: Author´s worked, based on https://cites.org/eng/prog/ifs.php and on flowchart handed out by BBNJ secretariat on 16.03.2021

CITES Introduction From Sea clause                                                                                                                     BBNJ Marine Genetic Resources monitoring draft

 

 

How to proceed with two “not undermining” clauses

In order not to undermine existing agreements, the current BBNJ treaty draft pursues to regulate the “Relationship between this Agreement and the Convention and relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies” (Revised Draft of November 27, 2019, art. 4).  In this Article, it is specified that “this Agreement shall be interpreted and applied in a manner that [respects the competences of and] does not undermine relevant legal instruments and frameworks” (Revised Draft of November 27, 2019, art. 4, para. 3).

Similarly, CITES makes clear that nothing in the text of its Convention “shall prejudice the codification and development of” UNCLOS (art. 14). As the BBNJ agreement is negotiated as an implementing agreement of UNCLOS, CITES provisions may not infringe or overrule the BBNJ treaty. Depending on how these two mirroring provisions are interpreted, it may mean that CITES may not be applicable if relevant law exists under UNCLOS. This may come as a surprise as negotiators in BBNJ aim to carefully avoid to undermine any other legal instrument. Depending on the exact formulation of these provisions, there is the danger that both agreements leave species from ABNJ less protected than they currently are out of a fear to undermine an existing agreement. In fact, having a clause not to undermine other agreements is common in international treaty making. Nevertheless, this should not be a reason for negotiators to cut down on ambition in the new treaty. On the opposite, it has been shown how international agreements can also act in a cross-supportive way through cooperation or deference when their competences touch and, in this way, strengthen compliance (Downie, 2021; Pratt, 2018).

CITES was negotiated prior to the current international framework for fisheries management in ABNJ, the 1995 fish stocks agreement and most of the RFMOs, being established. This had changed by 2013, when the IFS provision was operationalized and these treaties and bodies already existed. However, RFMOs and their state parties did not oppose the operationalization of the IFS clause out of fear to undermine RFMOs. In fact, the initiative to make the IFS clause operable came from a Fábio Hazin who had ample experience in fishery bodies (ICCAT). Instead of fearing mutual undermining, representatives realized the potential of synergies between RFMOs and CITES. The UN Fish Stocks Agreement foresees in Article 8.6 that competences may be shared, actively allowing for interinstitutional cooperation (Caddell, 2019). This means that CITES was able to complement the existing institutional framework and to play a supportive role for the protection of fish.

Having this in mind, the relative minor role that CITES has played in the ongoing BBNJ negotiations seems surprising. Few states have referred to the importance of CITES in relation to the BBNJ (Algeria, Mauritius and Israel) but the experience from CITES could teach delegates negotiating the BBNJ agreement not to refrain from strong protective provisions in the fear to undermine another international treaty. This was highlighted by different non-governmental actors during the long intersessional period of the BBNJ negotiations. During this period, non-state actors emphasized how CITES and Regional Fisheries Management Organizations complement each others’ mandates and successfully share competences for conservation of fish stocks in different regions. In light of these insights, we highlight that a mutual ‘not undermining’ should not be formulated negatively but rather in a positive, proactive manner, strengthening the protective measures put in place under CITES.

BBNJ and CITES share a focus on capacity building

Instead of concentrating on ‘not undermining’ it could be worthwhile to look at common areas that could be strengthened by both instruments cooperatively. Similarly to CITES, the BBNJ agreement will have to be implemented through national legislation and national authorities (Kachelriess, Cremers and Wright, year). This means, that the implementation of some of the BBNJ provisions (on MGRs for example) could build on the same state authorities and scientific authorities that already have a role under CITES. When the discussions on CBTT in the BBNJ negotiations move towards who will be the beneficiary of capacity building measures, it seems worthy to understand concretely what kind of institutions and authorities are needed to implement the foreseen measures. Negotiators do not have to re-invent the wheel but a look at CITES can give insights into what national (scientific) authorities are required. The experience with CITES can also teach BBNJ implementation about potential challenges in capacity building needs. It would be mutually beneficial if BBNJ acknowledges the role of these authorities and strengthens them through increased capacity building instead of identifying new actors and institutions on the national level that are expected to enforce treaty provisions.

As shown in the previous workflow on MGRs and IFS, national authorities that are present in the ports and scientific authorities that control the origin and type of species are needed to implement both CITES and BBNJ. Capacity building in the BBNJ agreement could thus simultaneously strengthen the same national capacities to monitor and assess high seas biodiversity that have been supported by CITES. Understanding the implementation of CITES, BBNJ could similarly pursue a collaborative, non-adversarial implementation approach through national laws and support for national authorities.

Conclusion

The Introduction from Sea (IFS) clause lay dormant in CITES’ mandate from 1973 until Parties agreed on guidance how to implement it in 2013. The increased attention by CITES Parties to list marine species under CITES was in response to a significant and dangerous gap in regulation of endangered marine species. Since then the number of CITES regulated marine species and the amount of registered transaction has constantly increased. Because the future BBNJ agreement also aims to conserve marine species, both treaties may end up overlapping in their mandate. In order to prevent conflicts of competences and legal inaccuracies, the BBNJ agreement possesses an “not undermining” clause which specifies that the Treaty shall not undermine other relevant instruments. However, also CITES (and many other agreement) possesses such a clause. This may lead to mutual inaction out of fear to “undermine” each other. Therefore, this blog suggests that the “not undermining” clause could be reformulated into positive language that enhances cooperation between the agreements to support mutual implementation. For a successful implementation of the BBNJ agreement, a look at CITES could help. For example, the IFS work-flow to check whether an organism falls under the IFS clause shows similarities to a potential MGR work-flow controlling the applicability of the MGR provisions. Further, the key actors to monitor IFS (and potentially MGR) provisions will be authorities in ports where vessels from ABNJ land. These require robust scientific knowledge in order to effectively monitor these provisions. The chances for capacity building to support implementation of both – CITES and BBNJ – should be highlighted and used.

 

References

Caddell, R. (2019). International Fisheries Law and Interactions with Global Regimes and Processes. In R. Caddell & E. J. Molenaar (Eds.), Strengthening International Fisheries Law in an Era of Changing Oceans (pp. 133-163): Hart.

Downie, C. (2021). Competition, cooperation, and adaptation: The organizational ecology of international organizations in global energy governance. Review of International Studies, 1-21. doi:10.1017/S0260210521000267

Kulovesi, K., Mehling, M., & Morgera, E. (2019). Global Environmental Law: Context and Theory, Challenge and Promise. Transnational Environmental Law, 8(3), 405-435. doi:10.1017/S2047102519000347

Pratt, T. (2018). Deference and Hierarchy in International Regime Complexes. International organization, 72(3), 561-590. doi:10.1017/S0020818318000164

CITES (n.d.). Introduction from the Sea. Retrieved from https://cites.org/eng/prog/ifs.php

Participation at BBNJ negotiations matters

By: Elisa Morgera, Bernadette Snow and Mia Strand, One Ocean Hub; Alice Vadrot, Arne Langlet and Silvia Ruiz Rodríguez, University of  Vienna, ERC Project MARIPOLDATA

 

 

 

This blog post was published simultaneously by the One Ocean Hub and the ERC Project MARIPOLDATA. It is a collaborative effort by the two projects following the BBNJ process in their capacity as researchers from different scientific disciplines and as advocates for an inclusive and transparent BBNJ process.  The aim of this post is to reflect on the problematic nature of these restrictions from the following inter-linked perspectives: 1) environmental justice and equitable participation; 2) legitimacy and good practices in other multilateral negotiations; 3) international human rights law; and 4) research practices that focus on, and benefit, the BBNJ negotiations. The blog post will conclude with a few pragmatic recommendations on how participation should be enhanced at the next session of this process (IGC 5), which is expected to be organised from 15th to 26th of August 2022.

Some background

The United Nations (UN) negotiations on an international legally binding instrument under the UN Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) resumed, from 7-18 March 2022 at UN Headquarters in New York. This marked the fourth session of the Intergovernmental Conference (IGC 4) mandated by the UN General Assembly (UNGA). Three former sessions were held in September 2018 (IGC 1), March-April 2019 (IGC 2) and August 2019 (IGC 3). Due to COVID-19 restrictions, IGC 4- initially scheduled for March 2020- was postponed many times, which is why great hopes were pinned on IGC 4, although it was clear from the beginning that no great leaps could be achieved after a two-year pause. Still, according to the Earth Negotiations Bulletin, “[f}or the first time, delegations prepared and submitted textual proposals, many times jointly,” and made “unprecedented progress.”

Despite the progress made, the meeting had its downsides, and the lack of equitable participation puts into question the significance of this progress. Only two weeks before the start of IGC 4, the president of the negotiations announced that non-state actors and observers would not be allowed to participate in the physical meeting due to COVID-19 restrictions on-site and would only have the option to follow the negotiations online without any possibility to make statements or interventions. While governments could only send 1+1 delegate into the conference room, non-state actors and observers were not even allowed to access the UN building, at least for the first week.  During the second week, “Three silent observers were allowed to enter into the conference room each day.” These restrictions were considered problematic by both state and non-state actors, which became very clear “[d]uring the closing plenary, [when] many states called for observers to be accorded full participation rights at the next session” (Earth Negotiations Bulletin).

Reflections from an environmental justice perspective

Environmental justice often has a plurality of meanings and encapsulates:

  • distributive justice, referring to fair and equitable distribution of environmental harms and benefits;
  • recognitional justice, referring to recognition of and respect for marginalised groups, perspectives, and ways of knowing; and
  • representational justice, referring to procedures to ensure representation of diverse perspectives in decision-making (Blue et al., 2021; Suiseeya, 2014).

In this Post, we focus on representational justice which is the fair treatment and meaningful involvement of all, independent of class, race, national origin, language, income, place of birth, gender, sexuality and ability, in the development, implementation and enactment of regulations, laws and policies regarding the environment (Environmental Protection Agency, 1998). Principle 10 of the Rio Declaration on Environment and Development specifically states citizens’ rights to participation, “appropriate access to information” and that States shall provide each individual “the opportunity to participate in decision-making processes” regarding environmental issues (UNEP 1992).

Meaningful involvement is understood in this post as a process that goes beyond mere consultation or information sessions, where individuals have influence, opportunities to engage, provide inputs and where the learning and knowledge sharing process is a two-way process (Dyer et al., 2014). Meaningful involvement therefore necessitates appropriate access to adequate and accessible information and platforms that encourage fair and open dialogue, inclusive and adequate representation and transparency (Stewart and Sinclair, 2007; Reed, 2008; Dyer et al., 2014). Fair and equitable participation is in this blog post referring to mechanisms that ensure equal opportunity for engaging as well as the necessary support, contextualised approaches and empowerment to access these equal opportunities for participation (Kapoor, 2001; Reed, 2008). This might include non-online engagement, or support to access online engagements, translation into different languages and approaching environmental challenges from different points of view (Stone, 2002; Hargittai and Jennrich, 2016).

The BBNJ negotiations, by limiting UN Member States to only two delegates, are not facilitating fair and equal access to participation, and run risks of environmental injustice. Although a video link was provided for individuals beyond the two UN Member State delegates, the link did not allow concerned parties to make any interventions – unlike what was made possible in the Convention on Biological Diversity meetings. The “informal informals” approach at IGC 4 meant that the negotiations were not broadcasted through the official UN webcast and only registered observers could  silently follow the negotiations through Webex. In addition, with regard to in-person participation, due to COVID-19 related regulations, only two representatives of civil society were allowed in the room during the second week (of those who had travelled to New York even without the prospect of access) and these representatives were not able to make statements until all states had made their closing remarks on the last day. And non-state actors could not make any statement as the “informal informals” format only foresees state interventions.

By not allowing any participation beyond the physical presence of two delegates per UN Member State except from registered and invited observers in the second week, the BBNJ negotiations are not upholding fair treatment of all. The negotiations are rather directly contradicting the concepts of meaningful involvement and fair and equitable participation. By strictly limiting the opportunity to participate, as well as the means to participate, the IGC 4 can only be categorised as an information session at best, and as purposive exclusion of civil society and non-state actors at worst, from an environmental justice perspective.

Information and process transparency

Transparency is a key topic in global marine governance. Institutions tasked with the governance of different aspects of marine management and protection are normally expected to transparently inform about their activities, decisions and relevant data. This need for institutions of marine governance to be transparent stems from an overall expectation that international institutions are transparent in order to have legitimacy as well as from the experience that much of what happens on the high seas remains hidden to observers on land – therefore institutions governing this aspect should be particularly transparent. However, many institutions have not managed to live up to the transparency expectations. Ardron et al. (2014) after reviewing 2 decades of marine governance find that there is still much to be done to improve the transparency of international marine governance.

The authors distinguish three aspects of transparency (in marine governance institutions),information, process and results:

  • information transparency relates to the timely availability of information used as inputs to decision‐making to members and the public;
  • process relates to the ability of the public to observe or participate in meetings and to review materials produced during the progression of decision‐making processes; and
  • output is the access to outputs of decision‐making, including findings on compliance via compliance reviews and performance assessments (Ardron et al., 2014).

This distinction is important because being able to read relevant documents (information transparency) does not give equal opportunity for the public (civil society organisations) to monitor and influence the process (process transparency) as participation does. Many marine governance institutions score particularly badly in relation to process transparency, which is mirrored by the many calls of NGOs that criticise being left out of important decision-making processes (e.g. in the International Seabed Authority – ISA).

The BBNJ negotiations run the risk of disregarding this important dimension of transparency by not letting civil society organisations’ (CSO) observers into the negotiation room. While the information transparency is largely given (access to documents and the webcast available for CSOs), one delegate mentioned that documents shall be made available because “we didn’t think we were in a secret meeting”, meaning that issues of process transparency were not adequately addressed.

This appears particularly surprising as the participation of CSOs is a fairly established principle in global governance in general and environmental governance in particular. The Convention on Access to Information, Public Participation in Decision‐Making and Access to Justice in Environmental Matters (Aarhus Convention) to which not only most of the states negotiating the BBNJ agreement are parties but which also was mentioned during the intersessionals, online dialogues and during IGC 4 by state delegates, conveys that the ability of the public to observe or participate in meetings and to review materials produced during the progression of decision‐making processes is a core aspect of transparency (Aarhus Convention, art. 3). While a recent survey indicates that BBNJ stakeholders generally view on site negotiations as more inclusive than online formats (see MARIPOLDATA Report), the exclusion of civil society from IGC 4 seems to be in direct opposition to the principle of “process transparency,” which finds reflection in the Aarhus Convention. Although reference to the Aarhus Convention was made by one state during the informal informals, a number of states (only the UK during the plenary meeting and the UK, Costa Rica, Argentina, Canada, New Zealand, Australia, US, and Micronesia during informal informals) expressed their unhappiness over the non-participation of CSO in the negotiation room.

Nevertheless, transparency vis-a-vis non-state actors remained limited throughout the whole IGC 4, supposedly justified by COVID-19 measures, which seems even stricter when compared to other international meetings that had been convened in the last months. For example, during the fifth session of the United Nations Environment Assembly from 28 February to 2 March in Nairobi, Kenya, access for civil society was granted under normal conditions. The meetings in preparation of the COP of the Convention on Biological Diversity, which took place in Geneva from 13 to 29 March allowed two members per observer organisation and 6 per state party. However, participants were given green and yellow badges and only holders of green badges were admitted to the plenary meetings while holders of yellow badges could follow the live stream in the overflow room. At the UN Climate COP in Glasgow (November 2021), observer accreditation was limited to four slots per organisation. But only one person from each party as well as IGOs and NGOs were allowed in any room simultaneously and a live stream was provided in overflow rooms.

International human rights perspective

This section will clarify that the observations made in the previous sections chime with relevant international human rights standards, with a view to underlining that we are not only underscoring justice and good practice issues, but matters that are addressed in international legally binding law that is relevant to this process and applies to States that are parties to underlying international treaties. Biodiversity has been increasingly recognised as a matter of international human rights law: how we protect biodiversity has an impact on a variety of basic human rights (life, health, food, water, culture), hence we need to take into account the implications for human rights of our decisions on biodiversity. In addition, international human rights standards are expected to be applied to decision-making processes on biodiversity, as they are expected to support the consideration and participation of relevant human rights-holders (A/HRC/34/49). This is also true for marine biodiversity of areas beyond national jurisdiction, as specifically underscored by the UN Special Rapporteur on Human Rights and the Environment in 2020 (A/75/161). In effect, to give a prominent example the COVID test relies on an enzyme derived from an organism found at deep sea hydrothermal vents and freshwater hot springs.

These considerations are based on a combined reading of States’ obligations under human rights treaties to which they are party, and their obligations under the UN Convention on the Law of the Sea and the Convention on Biological Diversity. The same international human rights treaties are also relevant for States in pursuing the Sustainable Development Goals, as underscored by the Human Rights Council (The implementation of Agenda 2030 must be consistent with States’ obligations under international human rights law: A/HRC/RES/37/24; A/HRC/RES/37/25.) While we tend to think of these as obligations that relate to decisions and actions within national jurisdiction, it has been clarified that they apply also to international cooperation, including intergovernmental negotiations (A/HRC/37/59, 2018, Principle 13).

From a procedural perspective, these obligations provide clear minimum standards of transparency and public participation that should be followed in the BBNJ negotiations:

  • ensure affordable, effective, objective, understandable and timely access to information that should enable people to understand how environmental harm may undermine their rights to life and health & support the exercise of participation rights;
  • facilitate participation in decision-making, that should be open to all members of the public who may be affected, should give adequate opportunity for the public to express views, and should occur early in decision-making process;
  • take public views into account, which entails an obligation to explain the justification for decisions to the public, and;
  • take additional steps to facilitate participation of marginalised communities, women and children (A/HRC/37/59; A/HRC/37/59).

The last point would certainly be the case of Indigenous peoples and local knowledge holders, given the references to Indigenous and local knowledge in the draft, which would rely on the specific international obligations related to indigenous peoples’ rights. This could draw inspiration from practices at the Intergovernmental Science-Policy Panel on Biodiversity and Ecosystem Services, the International Indigenous Forum on Biodiversity under the Convention on Biological Diversity and the Local Communities and Indigenous Peoples Platform under the UNFCCC.

Furthermore, given that the “discussions of future generations [must] take into account the rights of the children who are constantly arriving, or have already arrived, on this planet” and children are the most vulnerable to environmental harm because they are still developing (A/HRC/37/58), discussions on inter-generational equity and the importance for humankind of BBNJ must include the perspectives and interests of children. There is a need for children-friendly information and modalities to consider children’s views on long-term environmental challenges that will shape the world in which they will spend their lives. This will involve further consideration of the linkages between climate change and BBNJ. Increased scrutiny by international human rights bodies from the perspective of children’s human rights is likely to increase as new UN guidance is being developed on children’s rights to a healthy environment, and the BBNJ negotiations have the opportunity to spearhead this work.

These procedural requirements on public participation are crucial in and of themselves for environmental justice and transparency purposes. But they should also be understood for their functional relation to substantive human rights obligations that are relevant in the BBNJ negotiations. States, individually and collectively, should ensure that these procedural standards contribute to preventing unjustified, foreseeable infringements of human rights arising from biodiversity loss (A/HRC/34/49), which requires consideration of:

  • public interventions that may infringe human rights dependent on marine ecosystems (for examples related to the human right to health, see here);
  • the regulation of businesses so as to prevent them from violating human rights in the context of extractives and conservation
  • the best interests of the child as a primary consideration.

These are considerations that would be relevant across all the elements of the treaty, notably environmental impact assessments and strategic impact assessments, as well as the role of precaution in area-based management tools, bio-based innovation, capacity building and technology transfer.

In addition to these general international human rights law bases for transparency and public participation in the BBNJ negotiations, certain States have specific obligations under the:

  • Escazú Convention, Art 7(12): Each Party shall promote, where appropriate and in accordance with domestic legislation, public participation in international forums and negotiations on environmental matters or with an environmental impact, in accordance with the procedural rules on participation of each forum.
  • Aarhus Convention, Art. 3(7): Parties should promote the application of the principles of the Convention in international environmental decision-making processes and within the framework of international organisations in matters relating to the environment.

In particular, under the Aarhus Convention, the Almaty Guidelines were adopted to provide more clarity on what Art. 3(7) entails. The Guidelines call for adjustments to international processes to allow for appropriate public participation, such as the following ones:

As discussed also in the context of the International Seabed Authority, the growing understanding, from a scientific and legal perspective, of the inter-dependence of human rights and marine biodiversity requires visible and effective changes to current practices in intergovernmental negotiations to ensure that all the relevant interests and knowledge systems are taken into account in State cooperation, including with regard to marine areas beyond national jurisdiction.

Impact on (ethnographic) study of the negotiation

The BBNJ IGCs are not only important avenues for non-state actors seeking to inform or influence the treaty negotiations. They are also sites of study for ethnographic research and scholars interested in the making of the BBNJ treaty (Vadrot, 2020). From the second IGC onwards, the MARIPOLDATA research team (funded by the European Research Council) has conducted collaborative event ethnography on-site with the aim to collect data that would allow us to understand struggle between different actors and how these have shaped the final treaty text. For instance, they have observed tensions regarding the inclusion of the Common Heritage of Humankind principle while being on-site in New York and used their ethnographic data to reconstruct and analyse state positions in favour or against the concept (Vadrot et al., 2021). Ethnographers rely on fieldwork in their attempts to study and describe the culture of a specific community- in the BBNJ case the state and nonstate actors shaping the future agreement within the highly structured and restrained setting of multilateral environmental diplomacy.

Thus, the decision to restrict access to IGC 4, has also impacted ethnographic studies of the BBNJ process in both methodological and analytical terms. It meant that researchers did not have access to the field site and potential interview partners. Like other non-state actors, researchers learned about the restrictions only two weeks before the start of the negotiations. Registered under the International Studies Association (ISA) approximately 20 researchers from all over the world – many of them PhD students and early career researchers – only got the possibility to follow the negotiations online, which significantly limited the scope and depths of the observations they could potentially make.

Due to the fact that the MARIPOLDATA team already had to adapt their methodology in 2020, when IGC 4 was indefinitely postponed and several informal online dialogues launched, they could quickly adapt to denied access and collect data on the basis of digital ethnography (Vadrot et al., 2021). Applying digital ethnography to IGC 4 allowed them to collect data, which they also used to publish a blog after the first week of negotiations to increase transparency of the process. This was important, as the largest part of IGC 4 was using the “informal informals” negotiating format, as mentioned above . During “informal informals” on-site, only a limited number of non-state actors and observers have permission to enter the negotiation room. During IGC 3, for instance, non-state actors had to negotiate among their group, who will occupy the 5 seats reserved for observers. And even if a researcher manages to get into the room, they are asked not to link the recorded statements to individual state actors, which significantly reduces the usability of data.

However, the online negotiation room of IGC 4 blurred the line between the different formats. While one could say that it was potentially more inclusive, it also created ambiguity, where boundaries between different negotiation formats and rules for data collection and use were blurred. Researchers watched the proceedings in some cases without even noticing that they passed from one negotiation format to another. We saw the same room with the same people performing the same diplomatic practices that we would normally observe during informal working group meetings and plenaries.

However, depending on the negotiation format researchers must follow different ethical standards and rules. The IGC 4 online format was challenging in this regard and confirms that our research object is in constant motion and is shaped by internal and external forces that we need to consider during our research. The stakes in the BBNJ negotiations are high and it is thus our duty as researchers to be as reflexive and transparent as we can regarding both the methodological and ethical stakes of studying negotiations (Hughes et al., 2021).

 

Conclusions

As delegates at IGC 4 “requested IGC President Rena Lee to take the necessary steps to obtain a UN General Assembly decision to convene a fifth session in August 2022,” we would like to draw together a few recommendations on enhancing participation at IGC 5 that will bring together the findings from the different perspectives represented in this blog:

  • opportunities for non-state actor representatives to meaningfully engage at IGC 5 should be clear and communicated at least a month in advance, and ideally three months in advance, with a view to enabling them to understand how these negotiations may affect them (and their human rights);
  • equal opportunity for meaningful engagement needs to be specifically addressed, taking into account different issues in in-person and online engagement;
  • as a general rule, non-state actors should be allowed to observe and participate in the negotiating sessions;
  • any restrictions to participation should be seen as exceptional, clearly motivated and accompanied by measures to ensure continued minimum levels of transparency and opportunities for non-state actors to make contributions; and
  • specific steps should be taken to facilitate the participation of representatives of Indigenous peoples and other knowledge-holding communities, women and children.

 

Where did the last negotiation round for a High Seas Treaty take us?

By Arne Langlet, Ina Tessnow-von Wysocki and Alice Vadrot

After two weeks of negotiations, the planned-to-be final intergovernmental conference (IGC) for a new instrument to govern marine biodiversity beyond national jurisdiction did not end with a treaty but with the decision to reconvene in August 2022 for a fifth IGC. In our MARIPOLDATA Blog on the first negotiation week, we analyzed state preferences regarding the package elements Capacity-building and Transfer of Marine Technology (CBTMT), Marine Genetic Resources (MGRs) and Area-based management Tools (ABMTs), including Marine Protected Areas (MPAs). This blog summarizes outcomes of the second week of negotiations.

Where is the often cited “common BBNJ canoe” going?

 

Recap of second week: 

Overall discussions during IGC 4 were less polarized and general flexibility made the negotiations progress faster in comparison with previous sessions. There seems to be agreement that the Conference of the Parties (COP) – the future decision-making body of the new instrument, should be empowered to establish Marine Protected Areas (MPAs) in the High Seas and that a dedicated secretariat would be the best option to implement the future Treaty. Although governments did not have time to discuss all text passages and intersessional work will be highly needed, IGC 4 gives hope that states are committed enough to finalize the treaty text at the next and final negotiation round in August 2022. 

After a brief recap by the facilitators on the topics discussed in the first week, the second week started with Crosscutting issues (CCI) from Monday until Wednesday morning. Wednesday and Thursday were used to negotiate the EIA chapter. On Thursday afternoon the substantive negotiations concluded with discussions on the use of terms under Crosscutting issues. On Friday – the last day of the conference – delegates and facilitators took stock of the progress made, decided on a way forward and delivered closing statements expressing their committment to finalizing the BBNJ Treaty.

When looking at the netto talking time for each of the package items, we see that Crosscutting Issues took up most of the time, whereas the EIA Chapter was the least discussed during the whole two weeks – although the EIA Chapter is the longest in terms of text and individual provisions. 

 

Graph 1 – speaking time of state delegates per package

 

Crosscutting Issues:

Under the crosscutting issues chapter the negotiations addressed Article 48 (Conference of the Parties – COP), 49 (Scientific and Technical Body – STB), 50 (Secretariat), 51 (Clearing-House Mechanism – CHM), 52 (Funding), 53 (Implementation and Compliance), and 54 and 55 (Settlement of Disputes). On Wednesday and Thursday, the discussions moved to the EIA Chapter before turning back to Crosscutting Issues on Thursday afternoon to discuss remaining issues under the Settlement of Disputes Provisions and Chapter 1 on the Use of Terms. 

Rapidly, consensus on some general issues could be found. For instance there was broad support to establish a COP as the main decision-making body of the treaty. There was also overall support for review and assessment by the COP. While there was general agreement by delegations to make reports and decisions of the COP publicly available, some delegations stated that it would not be necessary to mention it in the text, as ”this is not a secret meeting”. Further, there was agreement that the COP should adopt its rules of procedure and may establish subsidiary bodies if deemed necessary for the implementation of the Treaty, but parties disagreed on the need of a list of subsidiary bodies to be mentioned in the text, which would guarantee their timely establishment independently of COP decisions in the future.

On the modalities (Art. 48. 3) of decision-making in the COP, disagreement was voiced. While some states insisted on  consensus to decide on any matters – which would give any party a veto right – many other delegates pointed to the need to have the possibility of majority voting in case COP decisions get blocked, making the COP unable to act. The possibility of opt-out provisions were discussed, mainly in regards to ABMTs, including MPAs to achieve a higher number of signatories to the agreement, but was cautioned against by others, questioning the overall effectiveness of conservation measures with such an option to “pick-and-choose”.

 

The future Scientific and Ttechnical Body (STB)

While there seems to be no question that science and knowledge is needed to inform global policy-making and to effectively support the implementation of the new BBNJ agreement, detailed characteristics of how such a body should look like, what its powers and functions ought to be and which experts would need to be represented – needless to say how to select them – has gotten very little attention throughout the BBNJ process. Informal discussions during the intersessional period touched on this topic by asking very specific questions on how many experts the delegations envisage for such a body, and what this body should be tasked with. In the actual negotiations, however, this important topic has only received little time on the agenda as one of many institutional arrangements to be discussed. 

Overall, delegations largely agreed that the STB would have an advisory function, operating under guidance of the COP (Art. 49. 4). While it should focus on the scientific and technical (and technological) advice, the COP can further elaborate on its functions. In this regard, the intersessional period will be key to discuss these details, if one wants to avoid to leave essential elements to be delayed to later COP decisions.The MARIPOLDATA Team will contribute to this discussion by looking into research from different scientific and technical advice institutions for global governance (Panel on Scientific and Technical Advice for Global Governance). 

 

BBNJ Secretariat

Regarding the functions of a secretariat laid out Article 51 of the draft text, delegation’s views converged to streamline Paragraph 4 and 8 (a and m) and delete details in the provision which can be accommodated elsewhere. While delegations quickly agreed to the need for and overall functions of the secretariat, different views were expressed on whether a new secretariat should be established, or an existing institution could take over this task. Some delegations suggested exploring the possibility of UNDOALOS becoming the secretariat of the BBNJ Treaty. It was clear that UNDOALOS would require significant strengthening of structure and resources to fulfill the new functions. In any case, it was noted that if a new secretariat was to be established, UNDOALOS could operate as the interim secretariat. 

 

Clearing House Mechanism

Similar to discussions for the STB, also for the Clearing House Mechanism (CHM), there was no question about its indispensable role for implementation, but the specifics were not agreed on and detailed language on the modalities was preferred to be deleted in the draft text (Art 51) and for the COP to decide. 

There was some support to have either the future secretariat or the existing IOC-UNESCO (Paragraph 6) manage the CHM, or to also to leave this open for further debate in the COP. Some delegations addressed the issue of confidentiality for the work of the CHM as its main task is open data sharing. It was largely preferred to include an additional provision in Paragraph 7 to avoid conflicts between these principles. What remains clear up to this point is that the CHM needs “a human element”, an administration with staff going beyond a mere database which can be accessed via a website. It was highlighted that the CHM needs to be able to show initiative, for example in establishing partnerships across the world regions as to future-proof the agreement.

 

Funding for the High Seas Treaty

Throughout the discussions, three main streams emerged for funding to happen within the BBNJ agreement 1) funding for developing states’ representatives to participate further meetings (e.g. in the COP); 2) funding to make effective implementation of the agreement possible for states with capacity needs through CBTMT and benefit-sharing; and 3) funding for the institutional framework of the BBNJ treaty.

While developed countries made it clear that they are not willing to commit to mandatory funding in the first two streams, they rather supported mandatory funding for setting up the necessary institutions including a financial mechanism. The financial mechanism (Art.52) was seen as another main pillar of the institutional framework of the new Treaty but views diverged regarding the desirable sources:

Proposals were made for a voluntary trust fund (Para 4) and a special fund (Para 5), or to task the Global Environmental Facility (GEF) as core funding body under direction of the COP. A representative of the GEF was given the word to explore the possibility of the GEF becoming the financial mechanism of the BBNJ Treaty. While this was welcomed in general, the text as it currently stands in the draft would need to be re-formulated to enable further engagement with the GEF. In relation to funding it was highlighted that the GEF already contains a number of financing streams for ocean management. One delegation noted that a comprehensive overview of the current landscape of ocean funding would be useful. This demand was well-received by the presidency of the conference who offered to prepare information in this regard.

 

How to be prepared for potential disputes that arise about the High Seas?

International agreements generally have a provision about dispute settlement, to address potentially arising conflicts about the subject matter. In negotiations about the dispute settlement for BBNJ, there is up until now no agreement on how this should look like.  UNCLOS parties see the provision on dispute settlement of the convention as a good basis to be translated into the BBNJ agreement, as it was done previously in the case of the United Nations Fish Stock Agreement (UNFSA). However, non-parties to UNCLOS raised their voices against such an approach with the concern to be somehow bound to UNCLOS obligations. They categorize the BBNJ agreement as an “environmental treaty”, and propose to take environmental treaties as a drafting example instead. A proposal was made to submit joint disputes, like in the UNFSA, or to establish an additional chamber in the International Tribunal on the Law of the Seas (ITLOS) for disputes arising from the BBNJ Treaty. It was noted that it would not be necessary to enshrine this in the BBNJ Treaty as ITLOS can decide to establish such a chamber itself. A number of states proposed to authorize the COP to request an advisory opinion by ITLOS, which was however also met with opposition by others. 

 

How to make words come into action?

States showed general support for Article 53 on implementation and compliance, stating that states shall take the necessary legislative measures to ensure implementation. A cross-regional proposal for an implementation and compliance committee was welcomed by many. States highlighted that such a committee would act in a non-adversarial, non-confrontational way. It was agreed to consider best practice examples for compliance committees of other agreements to see the value of such a mechanism. 

 

Defining what is being negotiated…

At the end of the conference, delegates embarked on discussing the use of terms (Art. 1). Although this agenda item was kept until the last day of the conference still, at this stage, a number of delegates referred to this discussion being premature, as first, the substantive parts would have to be agreed on. And indeed, the disagreements over how to define MGRs and ABMTs reflected to a large extent the divides that were expressed in the substantive parts when delegates discussed the content of the respective chapters. Hence, no significant progress on defining the use of terms was made. 

 

Evaluating activities on the High Seas through EIAs:

As the last package item, EIAs were discussed on Wednesday and Thursday. The facilitator decided to put the individual provisions into clusters in which many different provisions were discussed jointly. Under the first cluster, delegates were invited to discuss the criteria and threshold for EIAs, addressing Art. 24 (Thresholds and Criteria), Art. 27 (Areas identified as ecologically or biologically significant or vulnerable), Art. 29 (List of Activities). Under the second cluster, the internationalization of EIAs was discussed, addressing the question to what extent the bodies of the BBNJ instrument or states should oversee the conduct and evaluation (Art. 30 (Screening), Art. 37 (Consideration and Review)) of an EIA and who can ultimately decide on going ahead with an activity (Art. 38 (Decision-making)), as well as how the activity and its impacts shall be observed and communicated (Art. 39 (Monitoring), Art. 40 (Reporting), Art. 41 (Review)) and how it sits within the EIA processes of existing IFBs (Art. 23 (Relationship to other IFBs)). The EIA Chapter was concluded with discussions on Art. 28 (Strategic Environmental Assessments) on Thursday afternoon. 

A cross-regional group of states presented a proposal to have a tiered approach for assessing an activity based on the threshold used in the Madrid Protocol on the Environmental Protection to the Antarctic Treaty for triggering an EIA. This cross-regional proposal of the tiered approach foresees that a state should firstly screen whether a proposed activity is “likely to have more than a minor or transitory effect on the marine environment”. If this threshold is reached, an EIA under the BBNJ agreement will be necessary and different levels of internationalization throughout the EIA process are envisaged. In terms of decision-making, the COP would be responsible for determining whether the activity at hand may proceed, which remained a contested provision in the draft agreement. Many states however, largely from the global North, opposed this proposal and showed unwillingness to go beyond the threshold of UNCLOS which states that an EIA is required “when States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment”. These delegations also fiercely opposed the proposal to let the COP decide whether an activity may proceed and stated that the EIA process should be purely state-led and also decided by the state under whose control the activity should take place. This would leave the BBNJ instrument with virtually no power to evaluate EIAs or prevent any harmful activities from taking place. Arguments that the state which sponsors the activity under assessment may encounter a conflict of interest assessing said activity itself or be inclined to conduct a rather “complaisant” EIA were ignored. 

Discussions also addressed whether areas that have already been identified as vulnerable (ecologically and biologically sensitive areas – EBSAs) would make an EIA compulsory, where some delegations noted that a specific provision addressing EBSAs was not necessary as activities in these areas would automatically meet the threshold. 

 

Main points of divergence

While some progress was made during the two-week negotiations, and delegations showed arguably more flexibility than in previous sessions, deep divergences remained over some of the main issues. In the following Figure 1, we show the disagreement among and flexibility of delegations over one provision from each package item which represent key points of divergence. The states are shown as circles that support (green arrow), oppose (red arrow) or are flexible (yellow arrow) towards the key Treaty provisions. 

In the MGR package item, delegations mainly disagreed over what should fall under the definition of MGRs and how to regulate access and benefit-sharing thereof (see MARIPOLDATA Blog). This divide over how to approach the regulation of MGRs was represented in the positions towards the brackets in the draft text under Article 10.1. where many developing countries preferred the wording of “access” to MGRs whereas many industrialized countries supported the more narrow wording “collection of” MGRs. When referring to “access”, developing countries sought to include marine genetic resources in any form – going beyond the physical sample, also including genetic sequence data, digital sequence information and derivatives – whereas the formulation “collection of” refers exclusively to the moment when a sample is taken from the High Seas and leaves possible other forms of MGRs unregulated. This division was particularly contentious regarding benefit-sharing of MGRs.

In the ABMT/MPA chapter, countries disagreed over how broad the mandate of the BBNJ Treaty should be to designate MPAs. While this divide was voiced throughout many different provisions, it can be clearly seen in the diverging positions on whether the instrument shall apply the precautionary principle. Enshrining this principle in the ABMT/MPA Chapter would mean that the BBNJ instrument could identify and propose areas that require protection more progressively, particularly in situations of uncertainty. The precautionary principle states that conservationist action shall be taken immediately because waiting for compelling evidence of harm may be too costly for the environment (see IUCN Guideline). 

Main disagreements also concern how the new BBNJ agreement can complement existing measures undertaken by other IFBs. Proponents of leaving the designation and management of MPAs solely in the hands of existing IBFs, such as regional fisheries management organizations (RFMOs) also oppose the inclusion of the precautionary principle in the text. As seen in the use of terms discussions, actors additionally disagree on the definitions of ABMTs and MPAs and whether or not to include – apart from conservation – also sustainable use objectives.

In the EIA chapter, the main division among delegations was in defining the threshold (see above) and the role of the future BBNJ institutions (Scientific and technical body and COP) in decision-making (Art. 38) on approving planned activities for which EIAs were conducted. While the cross-regional proposal (mainly by developing states) suggested that the COP should have decision-making power, regarding the approval of  activities of a certain scale, this BBNJ-decision-making was met with fierce opposition by many developed states who preferred unilateral decision-making powers by the state proposing the activity.

In the CBTMT chapter, divergence persisted over whether capacity building and transfer of marine technology should be mandatory or voluntary. This conflict was expressed in the wording of Article 44. 1 where developing countries wanted strong language (states “shall ensure” capacity building) and industrialized opposed this strong wording and supported “shall promote” instead. 

 

 

Figure 1 – The disagreement in 4 key provisions visualized. States are represented by the small grey circles and their position towards four key provisions is shown by the coloured arrows. Red -> opposition, green -> support and yellow -> flexibility. Because of the “informal informals” negotiation format we cannot name the states that expressed these positions.

Figure 1 shows that generally, the core of the disagreements and the division between developing and developed world in each of the package items has remained the same since IGC 1. Click here to have a detailed and interactive look at the key disagreements of Figure 1.  

 

Closing remarks and Outlook

In the final round of statements on Friday, 18th March, many states used the opportunity to highlight the negotiating progress that was made and to emphasize the key positions for their delegations. Many statements highlighted the need to protect the ocean and to regard biodiversity in areas beyond national jurisdiction as common heritage of humankind. For the first time in IGC 4, also NGOs were finally invited to give statements and they expressed their availability to facilitate discussions during the upcoming intersessional period in order to advance the exchange on key issues. The proposal to plan the next IGC in August 2022 was agreed upon. While some remained skeptical that the pending issues can be resolved in the next conference session with less than 4 months of intersessional period after the new draft text will be released in May – many expressed the ambition to finish the agreement in the upcoming session.

In light of the urgency to act, as one delegate stated it “while we are negotiating, the stressors on the ocean continue” – there will be the need for a strong and meaningful agreement that can guarantee the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. If one sentence can stick with the delegates when they are traveling home which might loosen up existing struggles from the past 14 years of discussions about BBNJ it would be  – while both objectives of conservation and sustainable use are to be achieved with the agreement, one needs to remember, as one state delegate put it: “without conservation there will not be sustainable use”.

Light on the Horizon? Negotiations to complete a new Marine Biodiversity Treaty resume

By Ina Tessnow-von Wysocki, Arne Langlet and Alice Vadrot

Please cite as: Tessnow-von Wysocki, I., Langlet, A., Vadrot, A. (2022). Light on the Horizon? Negotiations to complete a new Marine Biodiversity Treaty resume. MARIPOLDATA Blog post. DOI:10.25365/phaidra.331. Retrieved from https://www.maripoldata.eu/light-on-the-horizon-negotiations-to-complete-a-new-marine-biodiversity-treaty-resume/

The negotiations for the legally binding agreement on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) go into the next round. The fourth Intergovernmental Conference (IGC) had been postponed over 2 years, due to the Covid-19 pandemic. Last week, negotiators from around the world could finally get back together to formally pick up their work on the BBNJ Treaty. MARIPOLDATA is following the discussions online, as access to the UN premises was not granted to observers.

Jumping right into negotiation mode – and into cold water

Some efforts have been made to keep momentum throughout the 2 years of intersessional period (High Seas Treaty Dialogues and the Virtual intersessional work). However, no formal progress could be made with the “informal” conversations not being formally recognised as negotiations and, thus, not transferred into new proposals for legal text.

On March 7th, therefore, negotiators went back to the draft text from November 2019, and skipping opening statements, to “jump right into negotiation mode”. Almost. The terrible developments in Ukraine did not go by the BBNJ negotiations and caused many delegates to show solidarity with Ukraine before they turned their attention to the negotiation agenda and procedures.

Initial confusion about how to access the conference room papers and new procedures to submit textual proposals could quickly be overcome. But there was something else different this time: Observers were not allowed in the room. Due to Covid-19 regulations, the number of representatives per delegation was reduced to two per state delegation, leaving observers excluded from the conference room.

Observers include intergovernmental organisations, such as regional fisheries management organisations, the United Nations Environment Program, the International Seabed Authority, or the Convention on Biological Diversity- actors that have previously been present in the room and actively engaged in the discussions. Moreover, observers consist of representatives from media, industry and environmental non-governmental organisations – including an alliance of more than 40 NGOs (the High Seas Alliance) which have been contributing significantly to the exchange among governments during the intersessional period. Last but not least, the whole academic community from research institutes and universities, representing the social and natural marine science communities from around the world, including DOSI (the deep ocean stewardship initiative) or the International Studies Association were – despite their successful registration – not allowed to access UN premises. Registered observers could follow the negotiations online and email their statements to the Secretariat for publication on the Conference Website but not attend and intervene in the sessions, which was criticised by several state delegations.

The MARIPOLDATA Team members Ina Tessnow-von Wysocki and Arne Langlet are following the negotiations from the office in Vienna.

Half- way into the negotiations: How was the time used?

Taking stock of the progress of the first week of negotiations, the package elements Capacity-building and Transfer of Marine Technology (CBTMT), Marine Genetic Resources (MGRs) and Area-based management Tools (ABMTs), including Marine Protected Areas (MPAs) were addressed by negotiators. Using our systematic fieldnotes taken on the basis of ethnographic data collection- MARIPOLDATA  can display the net speaking time of delegates on the different articles of the draft text, as illustrated in Figure 1.

 

Figure 1 – Discussion Time by Topic

 

Whereas on the ABMTs/MPAs, speaking time was relatively equally divided among the three articles under discussion (identification of areas, decision-making and international cooperation and coordination), the most negotiation time on both MGRs and CBTMTs focused on a single article. In the MGR chapter, the article Collection of and Access to MGRs and in the CBTMT Chapter the article Modalities (with the link to the article on additional modalities) took up considerably more time to discuss than the remaining issues.

While delegates spent slightly more time discussing the chapters Negotiation of MGRs and CBTMT chapters were characterized by lengthier discussions and significantly more interaction between state delegates (see table 1) indicating that these were the more controversial topics in the first week. In the following sections we give an overview of the topics discussed and identify areas of convergence and divergence of views.

Table 1 – Recorded Number of Statements per Package Item

 

How to build capacity and transfer marine technology?

Technology (CBTMT). Main discussion points were whether CBTMT should be country-driven or needs-driven. While there was general convergence of views that duplication should be avoided when it comes to research projects and funding, opinions were raised that a positive phrasing might be more appropriate, along the lines of “building on existing”, to avoid complicated discussions around the definition of “duplication”. Another main point was to what extent modalities of CBTMT needed to be specified in the BBNJ treaty text as opposed to tasking the COP with the development of such. The IOC criteria and guidelines on the transfer of marine technology were repeatedly mentioned as best practice and valuable guidance to the COP. The main complication remained with the question whether or not CBTMT needed to be an obligation or voluntary. Japan and UK expressed concern that unless the voluntary vs. mandatory question was settled, it would be difficult to decide on concrete provisions in this article. Proposals were raised to merge Art. 43 and 44; or 44 and 45 by several delegations.

The second day started right where delegated left off the day before: A possible indicative, non-exhaustive list of types of CBTMT was discussed under Art. 46 to which states voiced contrary positions (Table 2). Meaningful for most developing countries, developed countries were skeptical of the usefulness of such a list in the treaty text and mentioned their concern over difficulties in amending it over time. The discussions ended with the three options: a) list in the draft text(Art. 46 1; Art. 46 2) and/or annex ii,  b) no list c) list in official report of the conference but not in the agreement as such.

Table 2 – Contentious Articles in the CBTMT Chapter

Other contentious topics regarding the Article on modalities were whether the agreement shall ensure or promote the access to CBTMT (Art.44 (1)), and potential obligations for the COP to develop detailed modalities (Art. 44 (5)) (see Table 2). Delegations needed to sit together after the end of the sessions to develop some creative language in finding a middle ground between the strong and mandatory language of “shall ensure” and the loose language on the other end of “shall promote” and consider the different tasks that the COP should be covering in light of the whole agreement.

 

Table 3 – Articles with most flexible positions in CBTMT Chapter

When monitoring and review (Art. 47) in the section of CBTMT was discussed, some voices raised the call for having a single article on monitoring and review to cover the whole agreement, rather than in each section. Discussions surrounded whether subsidiary bodies should be mentioned in the article or left for the COP to establish if needed in the future. There was also some discussion on the term relevant actors vs. relevant stakeholders (Art. 47 (4)) regarding the scope of inclusion (e.g. the private sector). The Alliance of Pacific Small Island States (PSIDS) and the Caribbean Community (CARICOM) stressed the importance of monitoring control and surveillance to be taken up – possibly also in a different part of the agreement, which will be considered by the EU. Generally, states showed flexibility on the topic of monitoring (Art. 47), whether to have an article on types of capacity building (Art. 46) and on the objectives of CBTMT (Art. 42) (Table 3). Except for contrary voices from Russia and China, there was also agreement on including Strategic Environmental Assessments (SEAs). Despite some disagreements on the inclusion of a list of countries, there was overall support for reporting of CBTMT (Art. 47 (5)).

 

The negotiation room from the “online” perspective with only two representatives per delegation allowed in the room.

All agree that sharing is caring – But what and how, with whom, when?

After concluding the session on CBTMT, delegations had a short “switch over”- to exchange the responsible delegates from CBTMT to the Marine Genetic Resources (MGR) experts, as only two representatives were allowed in the room. Facilitation of the session was again guided by the president of the conference Rena Lee.

The discussion immediately showed the discrepancy between views on whether to talk about collection of or access to MGRs (Art. 10 (1 & 6), calling into the minds the deep divergence of views regarding access and benefit sharing (ABS) schemes. When discussions delved into the topic of how to set up a system for the collection/access to MGRs: two broad options were a) a notification and b) permit/license system. Broad agreement could be settled on a notification system– meaning that with a notification, the research cruise/collection/access activity could be undertaken and no prior permission needs to be issued. However, as there is a myriad of ways of such as notification scheme can look like, whether or not it would entail pre-cruise, post-cruise notification or both, the timeframes when those needed to be done and what should be notified, considering issues of confidentiality.

While delegations could agree on some sort of mandatory benefit sharing mechanism, the usual disagreement between whether or not benefit sharing would include only non-monetary or also monetary benefits came up under Art. 11 (2) (See Table 4) and was not resolved. The EU offered a suggestion to include financing of research projects as monetary benefit sharing. However, developed countries did not agree to the sharing of monetary benefits of products that derived from MGRs in ABNJ. Overall, disagreement on the inclusion of in silico digital sequence information and genetic sequence data could not be settled.

Table 4 – Contentious Articles in the MGR Chapter

Article 10, paragraph 5 caused disagreement on two issues: whether it is necessary to specify that state parties shall take the necessary legislative, administrative and policy measures to ensure the application of the MGR chapter in particular, or sufficient to have such a provision in general for the whole instrument. The heavier disagreement however was on the question whether adjacent coastal states should have particular rights to be notified and consulted when activities in relation to MGRs are undertaken in areas adjacent to their waters (See Table 4), a conflict which was responded to with the idea of an automatic system to notify all states.

Despite the differences, there were moments of efforts for approaching agreement. If we had not heard the facilitator giving Iceland the floor, one could have thought the facilitator had spoken the words of encouraging “solutions that the majority of us can accept, maybe not what we had in mind when we first joined the table, but what accommodate most. […] creative ways to accommodate everybody’s interests” (MARIPOLDATA Fieldnotes, March, 7th, 2022, 4:11 pm EST).

Discussions went on into the next day (day 4), where is became clear that developed countries were not supportive of the term “monitoring” and rather opted for “transparency”. Brazil on behalf of the Core American Country Group (CLAM) presented a proposal for an access and benefit-sharing (ABS)scheme based on the idea to track and trace the use of MGRs, and the EU proposed an ABS scheme with a focus on transparency. A number of delegations expressed their flexibility in regards to the EU proposal. Delegations also showed flexibility to include the Article 10bis which was proposed by the PSIDS on the rights of traditional and indigenous knowledge holders in relation to MGRs.

Table 5 – Articles with most flexible positions in MGRs Chapter

The next difficult conversation evolved around whether or not and to what extent the agreement should apply to fish or fishing activities (Art. 8 (1)). No state delegation wanted fishing or fisheries to be regulated by the new agreement, however – apart from some few exceptions – there was strong support for fish to be covered in the agreement, as it is part of biodiversity.

 

When water turns into ice: Negotiations in ABMT session freeze

Without reaching agreement on the key issues of which kinds of benefits to be shared and whether or not to include monetary benefits, the agenda moved on to Area-based Management Tools (ABMTs), including Marine Protected Areas (MPAs). The atmosphere in the room changed completely, and convergence on a range of issues could be found. There was general agreement on taking precaution and a potential indicative list of criteria was debated. All delegations speaking in favour of the need for science-based criteria and including a reference to traditional knowledge of Indigenous Peoples and Local Communities. Some drafting and merging of provisions from Art. 16 (4) with Art. 17 were discussed and the session ended early and with friendly laughs among colleagues as if they were all representing the same delegation.

As lovely the previous session had ended, as cold and confrontative negotiations started the next morning with the statement by Russia that – while some convergence might have happened – no consensus was reached on the previous ABMTs session. Delegates and observers knew that the provisions on the relationship with existing instruments was a topic of confrontation (Art. 15), which was yet to come. Our analysis shows states expressed contrary positions particularly in Article 15, paragraph 3 on whether states shall make arrangements for consultation and coordination with other instruments (See Table 6). Several delegates circulated in the debate about the definition of (not) undermining, while some were referring to undermining institutions and others stressing that this discussion should focus on not undermining mandates and the effectiveness of measures. Confusion about the definition of complementarity was responded to with useful examples and best practices from cooperation between NEAFC and OSPAR. The difference between relevant and competent global, regional, subregional and sectoral institutions, frameworks and bodies (IFBs) was highlighted by Monaco, who preferred the term relevant (incorporating a larger number of stakeholders) in the consultation process for ABMTs, including MPAs, and competent IBFs when it comes to the issue of undermining. There was also disagreement whether the title of Article 16 should read “Identification of areas” or “Identification of areas requiring protection” and whether to refer to a list of criteria in annex 1 (Table 6).

Table 6 – Contentious Articles in the ABMTs/MPAs Chapter

The change of atmosphere in the room was visible, but then some states showed almost surprising flexibility – notably Iceland – no longer holding onto their traditional position in the negotiations (of a strict regional approach), introducing constructive proposals. “We have been on a more regional approach [refers to Art. 19, Alt.2], but the time of binary is over” (MARIPOLDATA Fieldnotes, Iceland, March 11, 2022, 4:08 pm EST). These sparks of hope for consensus brought light into the otherwise split discussions. Some states showed flexibility in regards to the general inclusion of Articles 15 and 16, and indicated that the second sentence in Art. 16 – referring to the best available science – could potentially be a way forward (Table 7).

 

Table 7 – Articles with most flexible positions in ABMTs/MPAs Chapter

Diving into the second week of negotiations

Delegates showed some flexibility on certain issues and negotiations started removing brackets in the draft text – meaning to progress the text towards consensus. At the same time, however, it became clear that initial divergence on key issues – such as the nature of benefits to be shared and its process, whether to protect biodiversity from impacts of activities in general or just from high seas activities or how to situate BBNJ in the landscape of existing instruments – could not be resolved in the lengthy intersessional period and remain until this day. Without anyone daring to say it out loud, it is in everybody’s minds – in order to have agreement on these issues, one more week seems to be too little time.

The week starting from the 14th of March, 2022 will cover the remaining package element of Environmental Impact Assessments, as well as cross-cutting issues and will allow time for stock-taking. What else will be new? After continuous pressure from the High Seas Alliance and statements by state delegates, calling for civil society participation, three representatives of observers will now be allowed in the room.

Observations of the first week of negotiations show that the contrasting views of the past continue to divide current state positions. For example, the eternal and profound divide between supporters of the common heritage of mankind principle and their opposition is still present when delegates discussed the MGR topic. The hardened position of much of the developing world on the MGR and related CBTMT topic can be attributed to the deep mistrust that has built since the entry into force of UNCLOS. As the delegate of Bangladesh eloquently expressed: developing countries are disappointed that even though capacity building is foreseen in UNCLOS, it has not materialized since its entry into force 40 years ago (MARIPOLDATA Fieldnotes, Bangladesh, March 7, 2022, 4:23 pm EST). This may explain why developing countries insist on a great level of detail in the CBTMT chapter combined with obligatory language. However, one may also recall that the conservation of marine biodiversity is one of the main goals of this treaty. Discussions on the establishment of ABMTs, including MPAs and the conduct of EIAs, essential to achieve this aim however, have been taken a backseat in the first week of negotiations. The BBNJ Treaty presents a unique opportunity to establish a global network of MPAs that are globally recognised and in the best case jointly monitored by regional and global institutions. Therefore, it is regrettable that advances in the negotiations are held back by disagreements over the exploitation and allocation of resources, rather than focusing on a holistic solution for ocean protection.

This is now the time for delegations to approach one another with more flexibility and the realisation that this agreement is at the end of the day not for one country alone, but in the joint interest of all and future generations to come. This means that countries should acknowledge the deep material inequalities that exist between the developed and the developing world in exploring, exploiting and protecting the ocean. This instrument can address these – to the benefit of all. At the same time, while discussions on MGRs and potential benefit-sharing as well as the monitoring of such efforts are important, countries should not lose sight of one of the main objectives of this negotiation process, namely the conservation of marine biodiversity. We saw also that, although some states indicated to be flexible about certain provisions, there is much room for improvement in making “flexible our new favorite word” as the President of the conference Rena Lee suggested to delegations.

When Science meets Policy to talk about Marine Biodiversity: Bringing together Academics and Practitioners in a Conversation about the Marine Biodiversity Negotiations

MARIPOLDATA gathered scientists and policy-makers in the Intersessional Period of the new BBNJ agreement at the Earth System Governance in an Innovative Session: United Nations Negotiations for the Future of Marine Biodiversity: A conversation among Academics and Practitioners on the BBNJ Negotiations, chaired by Assoc. Prof. Dr. Alice Vadrot and Ina Tessnow-von Wysocki.

A recording of the panel is now available here:

In the framework of the innovative panel, scientists met with national delegates, as well as representatives of non-governmental organisations that are participating in the negotiations to:

  • discuss the current stage of the BBNJ negotiations, the potential final agreement, and the role of the intersessional work;
  • share their expert knowledge and experiences on the current state and development of the BBNJ negotiations; and
  • reflect on new findings of BBNJ research and current political developments within the BBNJ process.

 

Keeping the Momentum for Marine Biodiversity Negotiations

What is happening while Marine Biodiversity Negotiations are being postponed?

The United Nations are currently negotiating a new 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 (BBNJ). The new treaty is expected to set new regulations for marine genetic resources (MGRs), area-based management tools (ABMTs), including marine protected areas (MPAs), environmental impact assessments (EIAs) and capacity building and the transfer of marine technology (CB&TT) (Tessnow-von Wysocki & Vadrot, 2020). Originally, the aim was to terminate negotiations in March 2020, but due to the Covid-19 pandemic, negotiations were postponed continuously and the next tentative date is March 7th-18th 2022.

There are several initiatives happening in the intersessional period – the time in between the conferences – to keep the momentum. The most prominent initiatives include the Intersessional Work[1], organised by the UN Secretariat as an online platform for BBNJ participants to exchange views on package elements, and guiding questions that have been formulated by the facilitators of the conference and provide virtual webinars on BBNJ topics. Moreover, the governments of Belgium, Costa Rica, Monaco and a number of non-governmental organisations (NGOs) (the High Seas Alliance) have organised High Seas Online Dialogues[2], in which BBNJ participants can interactively engage verbally in 3-hour-long sessions on selected topics.

The MARIPOLDATA team facilitated an inter- and transdisciplinary dialogue among the scientific community and fostered the science-policy interfaces for BBNJ by introducing a number of outputs to inform the negotiations and keep the momentum (See: MARIPOLDATA Ocean Seminars; MARIPOLDATA BBNJ Governance Database ; MARIPOLDATA Country Dashboard).

As part of the Earth System Governance (ESG) Conference on September 7th 2021, the MARIPOLDATA team brought together 10 scientists and practitioners on BBNJ to discuss recent developments in the BBNJ negotiations, to identify key areas still to be negotiated in each of the package elements and cross cutting issues and point to how research can contribute to the BBNJ agreement. This innovative panel brought together the different groups engaging in the BBNJ process, including social and natural scientists researching on BBNJ, as well as practitioners who are actively engaged within the negotiation process. It provided an opportunity for a fruitful exchange on different perspectives to existing research and new linkages of research findings among diverse disciplines.

Recent BBNJ Research Findings and Ongoing Projects

Scientists from the fields of Law, Political Science, International Relations, Ocean and Coastal Governance, Environmental Studies and Deep-Sea Biology were invited to join the panel and share their most recent scientific findings related to the BBNJ process.

Researching the Deep-Sea

The deep-sea biologist Dr. Georgios Kazanidis shared experiences from the iAtlantic project, an EU-funded, multidisciplinary research programme seeking to assess the health of deep-sea and open-ocean ecosystems across the full span of the Atlantic Ocean. iAtlantic undertakes ocean observation, ocean mapping, ecosystem assessment, capacity building, and sustainable management of deep-sea and open ocean ecosystems in the North and South Atlantic Ocean.

He particularly emphasised the need to collaborate among different disciplines and geographical regions, include early career researchers in marine scientific research[3], and organise joint workshops among scientists, industry, NGOs and policy-makers.

Following the panel, he shared his co-authored study on a common assessment framework for areas beyond national jurisdiction (ABNJ) that would enable comparable environmental assessments and facilitate monitoring (Orejas et al., 2020), which can contribute to ABNJ governance in the future. iAtlantic’s policy briefs communicate research findings in an accessible way, such as the ATLAS and iAtlantic Policy Brief – Changing Ocean State and its Impact on Natural Capital, explaining how ocean currents are impacting the climate, as well as locations and abundances of marine biodiversity at the surface and in the deep-sea (Spooner et al., 2020). The policy brief has also highlighted that continued observations and improved biological understanding are both needed to assess oceanographic change and its ecological implications.

The Design of the New Agreement

In the making of the new legally binding instrument for governing marine biodiversity in ABNJ, ongoing research surrounds questions on the design of the BBNJ agreement. Assistant Professor Dr. Elizabeth Mendenhall and Prof. Rachel Tiller are, with their research team colleagues, Elizabeth Nyman, and Elizabeth de Santo, particularly interested in what explains the final design of the BBNJ agreement. Prof. Mendenhall presented on the ambiguous definition of “areas beyond national jurisdiction” as regards the undecided extended continental shelf question, leaving the boundaries of ABNJ unclear. Moreover, while coastal states have sovereign rights over their continental shelves and their resources, there is legal uncertainty on the sovereignty over resources on the extended continental shelves. This includes the question of sedentary species but also on the access and use of marine genetic resources (MGRs) in these areas. The definition of sedentary species as “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil” (UNCLOS, Art.77) is identified as quite ambiguous and could trigger further conflicts over the sovereignty over living resources on the extended continental shelf. If this is not addressed in the BBNJ agreement, the ambiguous definition of Art.77 would apply. Mendenhall could imagine a moratorium on the exploitation of MGRs in these ambiguous areas as one option to achieve legal clarity. She points to the fact that so far, there have been 88 submissions for the extended continental shelf, leaving many potential coastal states submissions for the future to define and the boundary of ABNJ ambiguous. Mendenhall suggests discussing this issue within the BBNJ negotiations to prevent misinterpretations over governance responsibilities and whether BBNJ governance will be different regarding the “Area” and the extended continental shelf, in the years and decades to come. Prof. Dr. Rachel Tiller shared her research on the Arctic and BBNJ and pointed to potential conflicts regarding resources in the Arctic ABNJ, including oil, gas or MGRs.

Prof. Dr. DG Webster and Associate Prof. Dr. Leandra Goncalves co-lead the Taskforce on Ocean Governance, a new collaboration of researchers on marine issues within the Earth System Governance Community. Their research focus lies on the institutional design of the BBNJ agreement, pointing to the threat of creating “panaceas” out of well-intentioned provisions. Some issues can be interpreted differently among actors, which on the one hand is an opportunity for compromise, but on the other hand guards the threat of leading to ineffective governance. This can be seen in the case of establishing ABMTs in areas of little economic activity to enhance political willingness and implementation. Prof. Webster cautions that some actors might be interested in ambiguous language to prevent specific rules and regulations and continue to use the ocean’s resources as the status quo currently allows the exploitation of MGRs without further details in regulation. Assoc. Prof. Goncalves focuses on the case of Brazil and political, economic intentions behind its foreign policy within the BBNJ negotiations. She is observing the role of Brazil and the influence of the current government within the negotiations and regional groups, namely the Core Latin American Countries (CLAM) and the Group of 77 and China.

Providing Capacity for Implementation

Ensuring that all states have the capacity to implement the BBNJ agreement requires capacity building and the transfer of marine technology (CB&TT). Dr. Harriet Harden-Davies, Nippon Foundation Ocean Nexus postdoctoral research fellow at the Australian National Centre for Ocean Resources and Security at the University of Wollongong, focuses her research on Capacity building and Technology Transfer concerning the BBNJ agreement.

While UNCLOS lays out regulations for the transfer of marine technology, technical capacities for conducting ocean science are still unequally shared among countries and regions. Capacity building and technology transfer includes access to data, training courses, time at sea, research cruise and cooperation. While these are in general very useful initiatives, however, Harriet stresses that they do not work well as a “one way donation”. Harriet emphasises the need for genuine, collaborative two-way partnerships, designed to meet the needs for ocean-dependent people from the start. Within the BBNJ draft, she applauds the envisaged multi-way partnerships and the references to needs assessments, meeting self-determined priorities of ocean-dependent states (Art. 44 and 46). She also highlights the importance of the Clearing House Mechanism (Art. 51), Funding (Art. 52) and Monitoring and Evaluating the long-term outcomes of capacity building, instead of individual outputs.

What is the State of the BBNJ negotiations? – Where are we now?

With more than 2 years of intersessional period, there has been some progress in the negotiations on a number of issues, thanks to the online discussions, online webinars and workshops and bilateral and multilateral meetings on national, regional and international levels.

Despite progress on some issues, many are still unresolved that will need to be discussed – ideally before the final round of negotiations in New York next March. With experts from governmental, former UN agencies and non-governmental actors, who have been actively involved in the political discussions since the early beginnings of the BBNJ negotiations, the panel identified main areas of divergence in the negotiations that yet need to be resolved.

We invited Gabriele Goettsche-Wanli, former Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs and Sophie Mirgaux, Belgium’s Special Envoy for the Ocean, who are both actively involved in moderating and organising the High Seas Treaty Dialogues, an important informal exchange between BBNJ stakeholders in the intersessional period. Moreover, we invited Kahlil Hassanali, a negotiator in the BBNJ negotiations for the regional group Caribbean Community (CARICOM) and Julian Jackson, a non-state actor, representing The Pew Charitable Trusts in the BBNJ process.

Using and Sharing the Riches of the Ocean

If you are new to the negotiations and you are looking at the outstanding issues of the package element of marine genetic resources (MGRs), you might wonder whether this topic has not been included so far in discussions. We asked Gabriele Goettsche-Wanli, former Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, to summarise outstanding issues of this package element. The very key questions of whether, if so how, when and by whom, benefits from MGRs will be shared and whether this will be voluntary or mandatory are not yet agreed upon. This is largely due to the long entrenched conflict between the supporters of the principle of common heritage of humankind, and the proponents of the principle of the High Seas for the governance of MGRs in areas beyond national jurisdiction (ABNJ) (Vadrot et al., 2021).

The discussion whether benefits from MGRs that originate from areas beyond national jurisdiction have been present since the very beginnings of the negotiations and are to date not resolved (Vadrot et al., 2021). Global commons are resources that do not belong to anyone, but need to be jointly shared and protected, while at the same time, UNCLOS sets out general rights and obligations for activities on the High Seas. In this regard, there are opposing views whether MGRs should fall under the Common Heritage of Humankind or the Freedom of the High Seas Principle.

Further contentious points regard what will ultimately fall under MGRs – will this be only marine genetic material that is found in the ocean (in situ), or does it also include samples stored elsewhere in collections (ex situ), and data on these resources in digital form and their genetic sequences (digital sequence information – DSI) and derivatives?

Regarding traditional knowledge of Indigenous Peoples and Local Communities, the discussions are still ongoing how this knowledge can be accessed, if at all – will it need to be based on the free, prior and informed consent of the traditional knowledge holders and how will it be shared ethically if the traditions of passing on knowledge are inherently different to our technological ways of sharing data online?

Open questions also regard how the agreement will trace MGRs (Humphries et al., 2021) and whether and if so how intellectual property rights be addressed in the new agreement.

Limiting Exploitation of the Ocean

The panel also talked about the package element of Area-Based Management Tools (ABMTs), including Marine Protected Areas (MPAs). This provision seeks to protect certain areas from (unsustainable) human activities. There is already a patchwork of biodiversity governance existent with mandates to establish areas for conservation and sustainable use in different geographical regions and issue areas[4].

Therefore, political discussions often include a divergence of views on the relationship between the new BBNJ agreement and already existing instruments, bodies and frameworks that are governing marine biodiversity under specific regional and sectoral mandates. Fear of duplication and competition of mandates triggers arguments to “not undermine” existing efforts (Ardron et al., 2014; Friedman, 2019; Scanlon, 2018). In light of the connection of the ocean, it is evident that an effective conservation and sustainable use of marine biodiversity requires synergies to existing agreements. What state representatives in BBNJ exactly understand under “not undermining” is an ongoing discussion. Sophie Mirgaux, Special Envoy for the Ocean for the Belgian Ministry of Environment, clarifies that existing frameworks will not be wiped away by the BBNJ agreement, but that the new agreement can indeed have an effect on the existing:

She quotes Dire Tladi (Professor of International Law and SARChI Chair in International Constitutional Law at the University of Pretoria) in explaining that it is a basic rule in international law that states can adhere to more stringent rules in new agreements, which does not mean they are undermining another agreement they have signed in the past.

During the BBNJ negotiations, it is yet to be determined what role the Conference of the Parties (COP) will play – whether it should make recommendations, or ultimately decide on the establishment of ABMTs, including MPAs, and their management plans. Another outstanding question concerns the decision-making procedures. She cautions against taking decisions exclusively by consensus, as this bears the risk for inaction.

Living sustainably with the Sea

Another part of the new agreement regards Environmental Impact Assessments (EIAs) in areas beyond national jurisdiction. How will states agree to live sustainably alongside biodiversity without leaving a footprint that stays forever? In the package element regarding EIAs, there are still many issues to be agreed upon by BBNJ negotiators. Kahlil Hassanali, lead coordinator for EIAs for the Caribbean Community negotiating bloc (CARICOM), identifies three major unresolved areas that will determine the effectiveness of the EIA process in ABNJ in the future:

Firstly, the degree to which the BBNJ agreement will be internationalised has not been agreed on. This regards the question how to ensure genuine participation of all stakeholders, including marginalised or affected groups, as well as interested public. Moreover, internationalisation also concerns the discussion whether there should be global oversight over decision-making. This is particularly relevant as areas beyond national jurisdiction are a global common. He asserts that some developed countries would like to see this process to be “state-led”, meaning that the states proposing activities would be the ones ultimately deciding on whether the activity can take place. In light of the fact that the ocean is a global common and developing countries simply do not have the same capacities as developed countries to undertake activities in international waters, he suggests to introduce some sort of global oversight to ensure inclusive decision-making to permit activities.

Secondly, it is still unclear whether activities that are undertaken exclusively in ABNJ or whether all activities with an impact on ABNJ would be considered for the BBNJ EIA process. This discussion is delicate as states have certain rights within their territorial waters and exclusive economic zones.

Thirdly, questions remain on how the BBNJ agreement will interact with other existing processes (See not undermining discussion in previous section).

Sharing Knowledge with the World

There are global controversies regarding capacity constraints and uneven capacities to undertake research, including to access MGRs, designate and monitor ABMTs, including MPAs and to evaluate EIAs.  The package element of Capacity Building and Transfer of Marine Technology (CB&TT) seeks to address this challenge; however, there are various outstanding issues still to be resolved.

Key issues concern the questions whether capacity building will be only voluntary or additionally include a mandatory component, who would benefit from CB&TT and whether it would be provided on mutually agreed terms and the inclusion of different types of CB&TT.

How to identify the needs of parties and who to benefit and what kind of CB&TT would be required. This triggers the question of whether there should be a list of CB&TT, the possibility of a potential CB&TT committee and whether a financial mechanism could provide funding covering CB&TT issues.

Further outstanding issues regard how the package element of CB&TT relates to cross-cutting issues, for instance, the clearing house mechanism. How would this data-sharing platform most effectively support the CB&TT package element?

The Devil in the Detail

It is yet to be seen if the BBNJ agreement will be ambitious. What this essentially means is: Now is the drafting stage of the agreement, what goes into the agreement now, will be carved into the marvel of international law. Not to say, that this will be set in stone, but it will set the guidance for how humans will govern areas of the ocean that are so far away from our shores where one may not feel connected to this part of the planet but in reality, is the soul of our existence.

Civil society actors are involved in the BBNJ negotiations, represented through a number of different NGOs, including The PEW Charitable Trusts. They have an important role in strengthening transparency and accountability of the process. By observing the discussion, they can provide information for other NGOs that are not able to attend, which is done through their publications, as well as the High Seas Alliance Treaty Tracker. In this way, momentum can be kept among negotiators and in society; and political pressure be built. Civil society organisations also take part in actively supporting the process through capacity building in form of providing basic background for newly joining delegates in the BBNJ process.

Julian Jackson explains the important details of the agreement that need to be understood and closely considered to ensure an ambitious treaty for the ocean: For an ambitious treaty, the precautionary approach and a robust mechanism for environmental impact assessments are important for The PEW Charitable Trusts.

He points to the possibility of exclusions in international law, meaning that states can identify different parts of the agreement, to which they would not need to adhere to, inherently decreasing the ambition and potentially also the effectiveness of the agreement. He emphasises the importance of no exclusions. He is particularly concerned about the discussion among negotiators to exclude fish from the agreement. This is closely connected to the “not undermining” discussion, and would mean that fish would not be regarded as marine biodiversity to be conserved and sustainably used. He stresses the need for the BBNJ agreement to complement Regional Fisheries Management Organisations, but also the relationship to other issues related to marine biodiversity, such as shipping and deep-sea mining.

Another unresolved issue is under which condition the agreement should enter into force. There are several options of how this could look like, e.g. certain number of signatories. However, it is important to balance between an early entry into force vs. a larger number of signatories (up to universality of the agreement). While it is necessary to have a legally binding agreement on this issue as soon as possible, it also needs to have a meaningful number of parties as signatories.

Identified main areas of divergence in the negotiations also include compliance and dispute settlement and the role of the clearing house mechanism for each of the package elements. There is also an ongoing concern of non-parties to UNCLOS about their status in the BBNJ agreement that would have to be solved.

How can Research contribute to the BBNJ process?

The BBNJ process has contributed from research by multiple fields and continues to be informed by new knowledge. Political momentum and targets can be created on the basis of scientific findings, such as in the case of the 30×30 campaign which aims to protect 30% of the Ocean by 2030[5]. Practitioners emphasised the importance of science for the BBNJ negotiations, throughout the BBNJ process and beyond. If you are a scientist working on or planning to work on marine biodiversity, here are some ideas from the practitioners that would be needed in the BBNJ process:

Social Science

  • Integration of traditional knowledge of indigenous Peoples and Local Communities (and other forms) into the different BBNJ package elements
  • (Under-) representation of stakeholder groups in the BBNJ process, how they can engage and their voices be heard
  • Role of Coastal States; marginalised groups, indigenous Peoples and Local Communities

Natural Science:

  • Climate change science (Climate- Ocean Nexus)
  • Research on mesopelagic fish and impact on carbon cycle
  • Biological research
  • Recent scientific development of handling samples (of MGRs)
  • Information on scientific practices concerning the access and use of MGRs
  • Scientific capacities and needs in different regions

Social & Natural Science:

  • Connection between ABNJ and Coastal Waters: effects on a) (marine) ecosystems; b) coastal states and other actors
  • Science-policy interfaces and how can they be improved
  • Research on human-ocean relationship
  • Effective management measures for MPAs
  • Research on the technical side: monitoring, control and surveillance options (e.g. non-human drones)

Sometimes, getting the information the policy-makers seems to be a hindrance, with a myriad of information out there. Science-policy interactions, such as organised meetings among scientists and policy-makers are valuable instances of exchange and mutual learning. Sophie Mirgaux emphasised the openness of the Belgium government and the EU to new scientific findings and encouraged scientists working on these issues that have not had direct contact with policy-makers to contact the ministries directly. These will forward requests to the responsible department. Participant lists are available for the BBNJ negotiations (and other negotiations) where names of state delegates can be found to direct the email to. Julian Jackson stressed the importance for scientists to inspire others and “get people excited about the deep sea”.

What can you do?

You are a scientist? Explain and communicate your research to policy-makers and society; reach out online/on site at conferences; show why your research matters to you; talk to other scientists; participate in panels and meetings and workshops.

You are a policy-maker? Take time to understand the relevance of research in your issue area (for you and others); identify links to other agreements; be open to innovative thoughts from scientific communities; participate in panels, meetings and workshops; think outside of the box.

You are a world citizen? Be interested and informed about what is happening in BBNJ; use the High Seas Alliance Treaty Tracker; Earth Negotiation Bulletin; get involved.

You are all of the above? Bring them together; share your knowledge; engage.

Overwhelmed?

Take the first step into unknown waters

Helpful information links on BBNJ:

United Nations Website on BBNJ; – Formal Website with all documents and dates

BBNJ Informal Intersessional Dialogues (High Seas Treaty Dialogues) Informal Exchanges in Intersessional Period

MARIPOLDATA BBNJ Governance Database; Overview of the Science on BBNJ Governance

MARIPOLDATA Country Dashboard; Information on Actors and Topics in BBNJ

MARIPOLDATA Ocean Seminars; Monthly discussions with experts on Ocean Science and Governance

High Seas Alliance Treaty Tracker; Summaries and Analyses of Positions in BBNJ

Earth Negotiation Bulletin; Daily BBNJ News during Conferences

Newsletters/ Events:

MARIPOLDATA

DOSI

IDDRI

 

References

Ardron, J. A., Rayfuse, R., Gjerde, K., & Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Marine Policy, 49, 98-108. doi:10.1016/j.marpol.2014.02.011

Barros-Platiau, A.F., Søndergaard, N., & Prantl, J. (2019). Policy networks in global environmental governance: connecting the Blue Amazon to Antarctica and the Biodiversity Beyond National Jurisdiction (BBNJ) agendas. Revista Brasileira de Política Internacional, 62. Retrieved from http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0034-73292019000200206&nrm=iso

Blasiak, R., Pittman, J., Yagi, N., & Sugino, H. (2016). Negotiating the Use of Biodiversity in Marine Areas beyond National Jurisdiction. Frontiers in Marine Science, 3. doi:10.3389/fmars.2016.00224

Clark, N.A. (2020). Institutional arrangements for the new BBNJ agreement: Moving beyond global, regional, and hybrid. Marine Policy, 104143. doi:https://doi.org/10.1016/j.marpol.2020.104143

De Santo, Ásgeirsdóttir, Á., Barros-Platiau, A., Biermann, F., Dryzek, J., Gonçalves, L.R., . . . Young, O. (2019). Protecting biodiversity in areas beyond national jurisdiction: An earth system governance perspective. Earth System Governance, 2, 100029. doi:https://doi.org/10.1016/j.esg.2019.100029

Friedman, A. (2019). Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction. ICES Journal of Marine Science, 76(2), 452-456. doi:10.1093/icesjms/fsy192

Gjerde, K., Clark, N., & Harden-Davies, H. (2019). Building a Platform for the Future: the Relationship of the Expected New Agreement for Marine Biodiversity in Areas beyond National Jurisdiction and the UN Convention on the Law of the Sea. Ocean Yearbook, 33, 1-44. doi:10.1163/9789004395633_002

Hassanali, K. (2021). Internationalization of EIA in a new marine biodiversity agreement under the Law of the Sea Convention: A proposal for a tiered approach to review and decision-making. Environmental Impact Assessment Review, 87, 106554. doi:https://doi.org/10.1016/j.eiar.2021.106554

Humphries, F., & Harden-Davies, H. (2020). Practical policy solutions for the final stage of BBNJ treaty negotiations. Marine Policy, 104214. doi:10.1016/j.marpol.2020.104214

Humphries, F., Rabone, M., & Jaspars, M. (2021). Traceability Approaches for Marine Genetic Resources Under the Proposed Ocean (BBNJ) Treaty. Frontiers in Marine Science, 8, 430. Retrieved from https://www.frontiersin.org/article/10.3389/fmars.2021.661313

Mossop, J. (2018). The relationship between the continental shelf regime and a new international instrument for protecting marine biodiversity in areas beyond national jurisdiction. ICES Journal of Marine Science, 75, 450. doi:10.1093/icesjms/fsx111

Orejas, C., Kenchington, E., Rice, J., Kazanidis, G., Palialexis, A., Johnson, D., . . . Roberts, J. M. (2020). Towards a common approach to the assessment of the environmental status of deep-sea ecosystems in areas beyond national jurisdiction. Marine Policy, 121, 104182. doi:https://doi.org/10.1016/j.marpol.2020.104182

Payne, C. (2020). Negotiation and Dispute Prevention in Global Cooperative Institutions: International Community Interests, IUU Fishing, and the Biodiversity Beyond National Jurisdiction Negotiation. International Community Law Review, 22(3-4), 428-438. doi:https://doi.org/10.1163/18719732-12341439

Scanlon, Z. (2018). The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES Journal of Marine Science, 75(1), 405-416. doi:10.1093/icesjms/fsx209

Spooner P., Thornalley D., Cunningham S., & Roberts J.M. (2020). ATLAS Policy Brief – Changing Ocean State and its Impact on Natural Capital. https://doi.org/10.5281/zenodo.3946683

Tessnow-von Wysocki, I., & Vadrot, A.B.M. (2020). The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review. Frontiers in Marine Science, 7(1044). doi:10.3389/fmars.2020.614282

Warner, R. (2018). Oceans in transition: Incorporating climate-change impacts into environmental impact assessment for marine areas beyond national jurisdiction. Ecology Law Quarterly, 45, 31-51. doi:10.15779/Z38M61BQ0J

Wright, G., & Rochette, J. (2017). Regional Management of Areas beyond National Jurisdiction in the Western Indian Ocean: State of Play and Possible Ways Forward. The International Journal of Marine and Coastal Law, 32(4), 765-796. doi:https://doi.org/10.1163/15718085-13204020

Vadrot, A. B. M., Langlet, A., & Tessnow-von Wysocki, I. (2021). Who owns marine biodiversity? Contesting the world order through the ‘common heritage of humankind’ principle. Environmental Politics, 1-25. doi:10.1080/09644016.2021.1911442

 

[1] More information on the Virtual Intersessional Work: https://www.un.org/bbnj/content/Intersessional-work

[2] More information on these Informal Intersessional Dialogues: https://highseasdialogues.org/

[3] Information on the iAtlantic Fellow Scheme: https://www.atlanticfellows.org/

[4] See Figure in Tessnow-von Wysocki & Vadrot, 2020: https://www.frontiersin.org/files/Articles/614282/fmars-07-614282-HTML/image_m/fmars-07-614282-g001.jpg

[5] 30 x 30 initiative, See more information: https://www.oceanunite.org/30-x-30/

Assessing the human’s footprint on Ocean Biodiversity

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about the negotiations towards 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 (BBNJ). In this series, the team publishes updates on the four package items under the BBNJ Agreement: Marine Genetic Resources (MGRs), Area Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and Technology Transfer (CB&TT). Due to the COVID-19 pandemic, the planned-to-be final intergovernmental conference (IGC) was again postponed and is now planned for 2022. In the meantime, informal exchanges among state and non-state actors are taking place. The MARIPOLDATA blog series include developments from the online Intersessional Work organized by the UN Secretariat since September 2020, the virtual High Seas Treaty Dialogues, taking place under Chatham House rules, organized by 3 states and a number of NGOs, and the MARIPOLDATA Ocean Seminar Series in which scholars and practitioners present and discuss current issues of ocean governance.

A New Agreement to Conserve and Sustainably Use Marine Biodiversity

Currently, states are negotiating a new legally binding agreement at the United Nations with the aim to conserve and sustainably use marine biodiversity beyond national jurisdiction (BBNJ). The new legal document seeks to fill regulatory gaps concerning the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction in the overarching ocean governance framework (the United Nations Convention of the Law of the Sea (UNCLOS)).

Negotiations at the UN level offer an opportunity to regulate so-called “global commons”- resources that cannot be owned by one state alone, but rather have to be shared amongst all for the greater good (Kok, 2011). Global commons include the atmosphere, outer space, Antarctica and the ocean – areas that need to be protected and regulated through international negotiations. In this regard, it is important to consider that decisions about the governance of these areas do not only concern the current human population, but also future generations and other living beings that depend on these areas. With this in mind, there is a huge responsibility that rests on the negotiators and the organizing Secretariat (The United Nations Division for Ocean Affairs and the Law of the Sea, UNDOALOS) of finalising an ambitious agreement in due time.

Assessing human impacts on Ocean Biodiversity

One pillar of the new agreement is to establish a process for conducting environmental impact assessments (EIAs) to ensure the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) (Tessnow-von Wysocki & Vadrot, 2020).

Environmental impact assessments evaluate, mitigate and monitor the impact of proposed and ongoing activities on the (marine) environment. In this way, environmental impact assessments serve to predict, reduce and prevent the adverse impacts of human activities (Durussel et al., 2017). Scientists have pointed out shortcomings of the current governance framework (Doelle & Sander, 2020; Durussel et al., 2017; Ma et al., 2016; Warner, 2018). A global, standardized procedure for EIAs is therefore needed, permitting or prohibiting activities in ABNJ, to effectively prevent negative impacts on the marine environment and protect the global commons. Large scale activities are envisaged or already planned that might have an adverse impact on the environment, such as building cities in the ocean – not to speak of the activities in the far future, that we cannot even imagine with our highest technology today.

There are already broad international guidelines in place regarding environmental impact assessments. The United Nations Convention of the Law of the Sea (UNCLOS), adopted in 1982, is regarded as “the Constitution of the Ocean”[1]. UNCLOS Art. 192 establishes the “general obligation for states to protect and preserve the marine environment”. To reduce and prevent environmental damage by human activities, UNCLOS already sets a broad framework for monitoring and environmental assessment (Part XII, Section 4).

 

 

UNCLOS Art. 204 requires that States evaluate the risks or effects of pollution of the marine environment and keep under surveillance the effects of any activities which they permit or in which they engage in. Art. 205 further specifies that reports need to be published at appropriate intervals and made available to all States. Art. 206 emphasizes the obligation for states to assess adverse impacts of their planned activities.

 

The Process of Environmental Impact Assessments under the new BBNJ Agreement

In order to implement the provisions of UNCLOS, the new BBNJ agreement seeks to set out the EIA process in more detail. Throughout the ongoing BBNJ negotiations, a draft text[2] has been developed which is a working document that will ultimately be decided on to become the legal text for the BBNJ Agreement. The section on EIAs is the longest in the draft text and covers the envisaged procedure for EIAs in ABNJ once the treaty enters into force. While an overall procedure is agreed on, important details lack consensus that will ultimately determine the ambition and effectiveness of assessing the impacts of human activities on marine biodiversity in the future. In the following, crucial issues of divergence are described in each of the steps of the EIA process:

EIA process envisaged in BBNJ, Source: Author

  1. Assessment of what?

The first step of the EIA process is the “Screening” (Art.30) on which basis, it will be determined if an EIA needs to be conducted. There is agreement that the respective state will undertake the screening for activities taking place under its national jurisdiction or control. It is clear that EIAs assess negative impacts on the environment. However, policy-makers have not yet agreed on where to draw the line between impacts that are acceptable – in which case activities can go ahead without the need for an EIA – and the impacts that are potentially harmful so that the planned activity needs to undergo an EIA. As the current draft text stands, there are several options for thresholds when an EIA should be undertaken (Art. 24): The first option is that activities that “may cause substantial pollution of or significant and harmful changes to the marine environment” need to undergo an EIA. The second option that the policy-makers are discussing is much more ambitious, as it calls for an EIA to be undertaken already when the activities “are likely to have more than a minor or transitory effect on the marine environment”[3]. The latter is supported by the regional groups of the Caribbean Community (CARICOM), the Pacific Small Island Developing States (PSIDS), the African Group and a number of NGOs (Intersessional Work, 2020, own observation; High Seas Alliance, 2020). A point of divergence is also whether the approval of the Scientific and Technical Body must be obtained and whether information should be provided in case the state concludes that an EIA will not be necessary (Art.30 (3)). Also, still under discussion is whether screening of activities will consider the characteristics of the area where the planned activity is taking place or where its effects will be felt. This is particularly relevant regarding the connectivity between the high seas and coastal waters (Livingstone & Jose, 2021) and whether the assessments should be exclusively dealing with impacts that arise from activities that take place in Areas Beyond National Jurisdiction– or also considers impacts of any activities (including those within national jurisdiction) that have an impact on ABNJ. The regional groups African group, and PSIDS, for instance, are strong supporters of the latter option (Intersessional Work, own observations, 2020). Possibly, an EIA will be required for areas of significance or vulnerability, even if impacts are expected to be minimal (Art. 30 (2)).

Also under discussion is the scope of EIAs- namely what kind of impacts are supposed to be assessed (Art. 31). The question here would be if there are other impacts, apart from environmental impacts, that would need to be considered, such as social, economic or cultural ones, which is already EIA best practice (CBD, 2010). Scientific literature emphasizes the need to account for cumulative impacts and climate change in EIAs and Strategic Environmental Assessments (SEAs) (Gjerde et al., 2016; Marciniak, 2017; Sander, 2016)). More recent literature also calls for additional regional environmental assessments (REAs) and the need for the new EIA regime to set out a comprehensive approach of REAs, SEAs and EIAs (Doelle & Sander, 2020). Despite the calls from the scientific community, the question on how to take into account cumulative impacts for environmental impact assessments is still under discussion in the ongoing negotiations (Art. 21bis). Negotiators have until the last round of discussions not agreed on the question how to operationalise Strategic Environmental Assessments (Art. 21bis; Art. 28), and whether or not to include a list of activities that would be exempted from or require an EIA (Art. 29).

  1. How to assess and evaluate impacts?

One part of the draft text considers who would undertake the assessments and on which basis (scientific knowledge, other forms of knowledge, e.g. traditional knowledge of indigenous peoples and local communities). In this regard, differing capacities of states to undertake EIAs need to be considered and adequate expert advice be guaranteed (Art. 32). It remains to be seen to what extent science advice can be guaranteed through the BBNJ agreement – such as in the form of a pool of experts under the Scientific and Technical Body (Art. 32 (4)). Assessment could also regard prevention, mitigation and management of adverse effects, considering the development of alternative activities to the ones previously planned (Art. 33).

  1. Who should be kept in the loop?

When activities are planned in ABNJ, the question arises of who should be notified of these plans and included in the EIA process. There are discussions about the inclusion of potentially affected states, relevant bodies, NGOs, and other stakeholders, such as indigenous peoples and local communities, academia and the general public (Art.34). The inclusion of stakeholders, other than the states, that are planning the activity is crucially important for the transparency and legitimacy of the process. However, there is no consensus yet on how participation and consultation of other stakeholders should look like.

  1. EIA Reports: How to prepare, where to publish?

While there is general agreement that states would be the ones preparing EIA reports (Art. 35) and ensuring that they are published (Art. 36), discussions are still evolving around their contents (Art. 35) and means of publication (Art. 36). Ideas include publishing EIA reports through the BBNJ “Clearing House Mechanism”, a data-sharing platform, which will be established through the BBNJ agreement, but whose characteristics are still undecided. Making EIA reports public – for the Secretariat, the Scientific and Technical Body, other states, intergovernmental organizations (IGOs), NGOs and civil society at large – is important to ensure transparency. A review of the reports by e.g. the Scientific and Technical Body will be necessary for legitimate decisions on whether the proposed activities can go ahead.

  1. How to decide on the approval of an activity?

The draft text of the future agreement lays out the possibility to establish a review of the EIA reports (Art. 37). Similar to the imbalance in capacities to conduct EIAs, not all states have the same capacity to review EIA reports. Review by the Scientific and Technical Body is currently under discussion within the negotiations. After the preparation of EIA reports, the decision whether or not to allow the proposed activity needs to be taken. In this particular question, views are not aligned and contrasting options are on the table, ranging from unilateral decisions (the state who proposed the activity) to global decisions (the Conference of the Parties (COP)) and a potential role of the Scientific and Technical Body (Art. 38).

  1. How to check on impacts of authorized activities?

Final considerations in the EIA process regard the monitoring (Art. 39), reporting (Art. 40) and review (Art. 41) of the impacts of authorized activities. Monitoring of authorized activities refers to continuous checks whether the activities that have been authorized do not exceed the threshold of impacts on the environment. While the value of such monitoring, as well as reporting on these findings and their review has been recognized, details are also yet to be decided on.

Key Considerations for BBNJ

There are a number of overarching issues that are not agreed yet but are of paramount importance as they will decide on the future of EIAs for the ocean and its ecosystems.

Relationship to other bodies

The ocean is currently regulated through a fragmentation of different instruments, frameworks and bodies on sectoral, global, regional and subregional levels that cannot comprehensively ensure the conservation and sustainable use of marine biodiversity (Tessnow-von Wysocki & Vadrot, 2020). The relationship between the EIA process established under BBNJ with existing EIA processes under other relevant legal Instruments and Frameworks and relevant global, regional, subregional and sectoral Bodies (IFBs), is not resolved yet (Art. 23). When it comes to conserving and sustainably using marine biodiversity, splitting the governance of the ocean into different regimes for the seafloor and the water column above it, assigns governance capacity over the ocean to different organisations but does not make sense from an ecological perspective (O’Leary & Roberts, 2018). There are separate entities governing activities in areas beyond national jurisdiction regarding the seafloor (i.e. the International Seabed Authority (ISA)) and the water column (several IFBs). The new BBNJ agreement will be responsible for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction and thus provides an opportunity to comprehensively align the efforts by other IFBs.

There is the argument, that BBNJ cannot “undermine” other bodies and frameworks, which can be interpreted differently (Ardron et al., 2014; O’Leary and Roberts, 2017; Quirk and Harden-Davies, 2017; Scanlon, 2018; Friedman, 2019). It is important to note, however, that if a comprehensive framework is the aim, then a coordinated way of governing the conservation and sustainable use needs to be found – in conjunction with the already existing instruments, frameworks and bodies. In this way, mandates will not be undermined, but rather complemented. An idea in this regard is the proposition of joint environmental impact assessments (REAs and data sharing) with potentially affected coastal states, flag states, as well as existing IFBs with decision-making responsibility in ABNJ, including regionally with Regional Fisheries Management Organisations and Regional Seas organisations, and different sectors, with, for example, the International Maritime Organisation (Doelle & Sander, 2020) or the ISA.

There is a large part of the ocean where not all issues are covered under the respective mandates of existing bodies. Therefore, some actors stress the importance for the EIA section being broad enough to consider fish and fishing, as it would otherwise mean that for areas or species that are not covered under existing instruments, frameworks and bodies, there would be no responsible governing entity (Crespo et al., 2019).

Who will govern human impacts on the ocean in the years, decades and centuries to come..?

The main question about EIAs in international waters comes down to who can ultimately take the decision whether or not activities can take place in the global commons. Participation and inclusion of stakeholders in all steps of the EIA process are therefore critical. As mentioned above, in each of the steps, there is a divergence of views of the BBNJ policy-makers who should be notified about proposed activities and final reports and decisions, who should be actively included in the assessment process (assessing, evaluating, reviewing reports), and who should ultimately have the final say whether or not the proposed activity can take place in ABNJ.

While there is agreement that a “Scientific and Technical Body” needs to be established under the BBNJ agreement, the role of such a body for the EIA process is not clear, even though assessing ecological impacts is an inherently scientific question. Theoretically, there would be the possibility to task a global body of stakeholders or the Scientific and Technical Body with a) identifying whether or not an assessment is necessary; b) conducting the assessments; c) reviewing assessment reports and d) deciding whether or not an activity can take place. As elaborated earlier, the negotiations have put a preference on states deciding whether or not EIAs should take place (Screening & Scoping), undertaking the assessments, and taking (unilaterally or multilaterally) the decision whether or not to allow the activity. The discussions include the options for a) the state who is proposing the activity, and b) the Conference of the Parties (COP) – all states collectively – to make the ultimate decision over whether or not the activity can take place. To what extent the Scientific and Technical Body will be able to support countries with a lack of scientific means to conduct EIAs, and to review assessments before decision-making, remains to be seen. Other impacts that might need to be assessed, including social and cultural ones, would additionally require the inclusion of other stakeholders in the process and ideally in all stages of the EIA process.

It needs to be remembered that the ocean is a global common. Areas beyond national jurisdiction is a shared space, and by definition not under the jurisdiction of states. It is rather a space that is home to prestigious marine ecosystems and inevitable for the health of the blue planet. Safeguarding this space is crucial in order to ensure current and future generations’ access to the ocean’s services that we take for granted today. But beyond that, humanity has a responsibility to protect the ocean for its own right and intrinsic value. Some questions should therefore be reflected on during the negotiations for the creation of a new framework that will govern human activities in this shared space that is inevitable for nature and human well-being: Can it be the right of a state to take a decision over activities in areas that belong to everyone and no-one at the same time? Or do we have a collective responsibility as humanity to make sure that our activities do not harm the marine environment and threaten future generations, living beings and their habitats on the planet? Posing these questions can only improve the course of action as we go through this very important process of setting the rules for future use and protection of the ocean.

The international community should be taking joint decisions on how we as humans use and protect this space. While a few governments demand unilateral decision-making over the global commons, a number of state governments have spoken up for a more global approach in the EIA process. Through “internationalizing” the EIA process, it is hoped by some actors that transparency, fairness, accountability and the collective governance of global commons can be achieved. Internationalization can be defined differently by different actors, including the notification of proposed activities and publication of assessment reports and decisions to all interested stakeholders; participation and inclusion of these stakeholders in the process; collective review; up to joint decision-making. Quite some actors would prefer an internationalized process, with the inclusion of a range of stakeholders in the participation and consultation (including indigenous peoples and local communities, particularly relevant in the Arctic region (Doelle & Sander 2020)), a larger role of the Scientific and Technical Body in the review of reports and global decision-making by the COP whether or not activities can take place.

Timely and public access to information on assessments and how decisions were made can ensure transparency and accountability (Doelle & Sander 2020). Links have been made to the Escazú Agreement as a best practice example on requirements for reasoned decision, responding to comments and relying on evidence and to include the option for “a notice of particular interest” to the Scientific and Technical Body, which would allow stakeholders to make their concerns with a planned activity heard (IUCN, Intersessional Work on EIAs, own observation, 2020). Internationalization of the EIA process is a heated debate in the BBNJ negotiations and will ultimately determine the effectiveness of EIAs and the health of the ocean and its ecosystems in the future.

Formal discussions in the BBNJ negotiations have so far not focused on the possibility of a liability fund, which would be important to include into the agreement (Hassanali, 2021). Such a fund would particularly be relevant to cover compensation costs, in the case of court trials requiring time to be resolved and identify responsible actors for pollution/accidents (Tessnow- von Wysocki, 2021).

Setting Priorities for the Planet

While some stakeholders might want to see more focus on conservation (preserving the marine environment), others prioritize sustainable use (the sustainable exploitation of the marine environment for human benefit). How can a balance be achieved in the agreement when the ocean is already largely exploited and little protected (Karan, 2020)? Environmental Impact Assessments are one important aspect of conservation, as they can prevent environmental damage if a strong framework is in place (Tessnow-von Wysocki & Vadrot, 2020). They are also an important pillar for sustainable use of the ocean to allow activities that are not causing harm to the marine environment and still benefit us as humans. Why not use science to evaluate which activities are bearable for the ocean and the organisms that call the ocean their home? And why not re-think activities that turn out to have an adverse effect on the marine environment? The benefits of rejecting harmful activities on the ocean might mean a short-term financial loss – but it also promises a long-term environmental gain. Maybe it would now be the time to see the ocean as part of the planet we live in, rather than an infinite pool of “resources” for us to use? This is the time to set the priorities for the planet and take the first step towards a more sustainable future- with the priority of conserving our planet, rather than exploiting it against the calls of scientists (IPBES, 2019). Future generations will thank us if we take this turn. The protection of the global commons is in everyone’s interest. A fair and effective assessment of human impacts on ocean biodiversity and the decision-making over whether or not to allow activities, require – apart from states – also the inclusion of scientists, non-state actors and interested civil society along the process.

References

Ardron, J. A., Rayfuse, R., Gjerde, K. M., and Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: what can be achieved using existing international agreements? Mar. Policy 985, 98–108. doi: 10.1016/j.marpol.2014.02.011

CBD. 2010. What is Impact Assessment? Retrieved from: https://www.cbd.int/impact/whatis.shtml

Crespo, G. O., Dunn, D. C., Gianni, M., Gjerde, K. M., Wright, G., and Halpin, P. N. (2019). High-seas fish biodiversity is slipping through the governance net. Nat. Ecol. Evol. 3, 1273–1276. doi: 10.1038/s41559-019-0981-4

Doelle, M., & Sander, G. (2020). Next Generation Environmental Assessment in the Emerging High Seas Regime? An Evaluation of the State of the Negotiations. The International Journal of Marine and Coastal Law, 35(3), 498-532

Durussel, C., Soto Oyarzún, E., & Urrutia S, O. (2017). Strengthening the Legal and Institutional Frame-work of the Southeast Pacific: Focus on the bbnj Package Elements. The International Journal of Marine and Coastal Law, 32, 671. https://doi.org/10.1163/15718085-12324051

Friedman, A. (2019). Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction. J. Mar. Sci. 76, 452–456. doi: 10.1093/icesjms/fsy192

Gjerde, K. M., Reeve, L. L. N., Harden-Davies, H., Ardron, J., Dolan, R., Durussel, C., Earle, S., Jimenez, J. A., Kalas, P., Laffoley, D., Oral, N., Page, R., Ribeiro, M. C., Rochette, J., Spadone, A., Thiele, T., Thomas, H. L., Wagner, D., Warner, R., Wilhelm, A., & Wright, G. (2016, 2016/09/01). Protecting Earth’s last conservation frontier: scientific, management and legal priorities for MPAs beyond national boundaries [https://doi.org/10.1002/aqc.2646]. Aquatic Conservation: Marine and Freshwater Ecosystems, 26(S2), 45-60. https://doi.org/https://doi.org/10.1002/aqc.2646

Hassanali, K. (2021, 2021/03/01/). Internationalization of EIA in a new marine biodiversity agreement under the Law of the Sea Convention: A proposal for a tiered approach to review and decision-making. Environmental Impact Assessment Review, 87, 106554. https://doi.org/https://doi.org/10.1016/j.eiar.2021.106554

High Seas Alliance. (2020). Consistency with the Madrid Protocol Thresholds with UNCLOS EIA Provisions. Why the BBNJ Agreement should adopt the Madrid Protocol Threshold and Tiering Approach. Retrieved from: http://www.highseasalliance.org/wp-content/uploads/2020/09/FInal-Brief-Consistency-of-Madrid-Protocol-Thresholds-with-UNCLOS-9.9.20.pdf

IPBES (2019). Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. Retrieved from. doi: 10.5281/zenodo.3553579

Karan, L. (2020). A Path to Creating the First Generation of High Seas Protected Areas:  Science-based method highlights 10 sites that would help safeguard biodiversity beyond national waters. https://www.pewtrusts.org/en/research-and-analysis/reports/2020/03/a-path-to-creating-the-first-generation-of-high-seas-protected-areas

Kok, M., Brons,J., & Witmer, M. (2011). A global public-goods perspective on the environment and poverty reduction: Implications for Dutch Foreign Policy

Livingstone & Jose, (2021). Connectivity of the High Seas to Coastal Waters Retrieved from: http://www.highseasalliance.org/2021/05/21/connectivity-of-the-high-seas-to-coastal-waters/

Ma, D., Fang, Q., & Guan, S. (2016). Current legal regime for environmental impact assessment in areas beyond national jurisdiction and its future approaches. Environmental Impact Assessment Review, 56, 30. https://doi.org/10.1016/j.eiar.2015.08.009

Marciniak, K. J. (2017). New implementing agreement under UNCLOS: A threat or an opportunity for fisheries governance? Marine Policy, 84, 326. https://doi.org/10.1016/j.marpol.2017.06.035

O’Leary, B. C., and Roberts, C. M. (2017). The structuring role of marine life in open ocean habitat: importance to international policy. Front. Mar. Sci. 4:268. doi: 10.3389/fmars.2017.00268

O’Leary, B. C., and Roberts, C. M. (2018). Ecological connectivity across ocean depths: implications for protected area design. Glob. Ecol. Conserv. 15:e00431. doi: 10.1016/j.gecco.2018.e00431

Sander, G. (2016). International Legal Obligations for Environmental Impact Assessment and Strategic Environmental Assessment in the Arctic Ocean. The International Journal of Marine and Coastal Law, 31(1), 88-119. https://doi.org/https://doi.org/10.1163/15718085-12341385

Scanlon, Z. (2018). The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES J. Mar. Sci. 75, 405–416. doi: 10.1093/icesjms/fsx209

Tessnow- von Wysocki, I. (2021). Developing countries in the BBNJ – CARICOM interests from a blue economy perspective and a proposed approach to EIAs, MARIPOLDATA Ocean Seminar Summary.  https://www.maripoldata.eu/wp-content/uploads/2021/08/Summary_MARIPOLDATA-Ocean-Seminar_Caricom_slides1.pdf

Tessnow-von Wysocki, I., & Vadrot, A. B. M. (2020). The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review [Systematic Review]. Frontiers in Marine Science, 7(1044). https://doi.org/10.3389/fmars.2020.614282

Warner, R. (2018, 01/01). Oceans in transition: Incorporating climate-change impacts into environmental impact assessment for marine areas beyond national jurisdiction. Ecology Law Quarterly, 45, 31-51. https://doi.org/10.15779/Z38M61BQ0J

Quirk, G. C., and Harden-Davies, H. (2017). Cooperation, competence and coherence: the role of regional ocean governance in the south west pacific for the conservation and sustainable use of biodiversity beyond national jurisdiction. Int. J. Mar. Coastal Law 32, 672–708. doi: 10.1163/15718085-13204022

Footnotes:

[1] UNCLOS legal text: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

[2] Revised draft text of an agreement 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, See: https://undocs.org/en/a/conf.232/2020/3

[3] The threshold of impact that triggers an EIA, established in the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

The MARIPOLDATA Marine Biodiversity Country Dashboard – An innovative way to inform about the BBNJ negotiations

MARIPOLDATA has now published a new Marine Biodiversity Country Dashboard which presents some of the ethnographic and bibliometric data collected by the project at and on the ongoing intergovernmental negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). The data is organized by country and the user can interactively select the country of interest as well as compare different countries. 


This interactive dashboard serves to inform the user about a variety of indicators from the ongoing process of international negotiations as well as from the bibliometric sample of marine biodiversity-related scientific publications since 1990, as presented in the paper by 
Tolochko & Vadrot (2021). The dashboard maps the behavior of governmental delegations in the BBNJ negotiations as well as the global distribution of marine biodiversity science by giving data on the scientific output and cooperation of a country as well as data from the ongoing negotiations such as talking time and the mentioning of core concepts.

 

It can be a helpful tool for researchers interested in the study of BBNJ, governmental and non-governmental actors involved in the BBNJ negotiations, and the general public. By making this data publicly accessible, we hope to both inform the ongoing BBNJ negotiations throughout the intersessional period and making the BBNJ negotiations more transparent to the public. The user can click through the dashboard to find relevant data for the country of interest, making the use of the dashboard intuitive and interactive.

 

 Key contributions

  • Making research data openly accessible
  • Presenting ethnographic data from BBNJ negotiations on a country-level 
  • Connecting ethnographic and bibliometric data
  • Strengthening engagement with the BBNJ process

Informing the BBNJ negotiations

While the world´s oceans, their ecosystems, and marine biodiversity face threats from various sources, scientific and technological innovations have constantly increased the reach of humanity to access and potentially exploit the most remote areas of the high seas. To conserve marine biodiversity and regulate areas beyond national jurisdictions, the UN General Assembly has decided to develop a new legally binding treaty under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (resolution 69/292 of 19 June 2015), called the BBNJ agreement.

 

Since 2018, over one hundred governments are negotiating a new legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). The new agreement is organized into four different package items: marine genetic resources (MGRs); area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessments (EIAs); and capacity building and the transfer of marine technology (CB&TT). For an overview of the ongoing negotiations, please refer to the paper by Tessnow-von Wysocki & Vadrot (2020) and Vadrot et al. (2021) or our previous blogposts. Since the beginning of the COVID-19 pandemic, however, intergovernmental negotiations have been postponed and states and stakeholders engage online in informal dialogues. 


Innovative ways of engagement

After almost two years of online intersessional period, it is particularly important to maintain momentum and engagement in the BBNJ negotiation process. Further, it is crucial to make negotiations publicly understandable and increasingly transparent – also to the public that is not directly involved with the negotiations.

 

By making country-level data about marine biodiversity publicly available now, we aim to create novel ways for the public to engage with the BBNJ negotiations. Using the open-source R shiny app, we programmed this dashboard for researchers, policy-makers, non-governmental actors, and other stakeholders or the general public that wish to stay updated on several aspects of the BBNJ process. We hope that the dashboard can trigger continuous engagement with the BBNJ negotiations, particularly during the prolonged intersessional period, and in this way support the intergovernmental efforts to come to an agreement.

 

Being published simultaneously to the innovative panel “United Nations Negotiations for the Future of Marine Biodiversity. A Conversation among Academics and Practitioners on the BBNJ Negotiations” at this year´s Earth System Governance conference, it aims to highlight innovative ways to stimulate discussion and engagement and to contribute to an inter- and transdisciplinary dialogue on the BBNJ negotiations. This dashboard supports the panel which brings together researchers and practitioners by providing new data and analyses.

Thus, we invite scholars and national delegates, as well as representatives of intergovernmental- and non-governmental organizations and everyone else to explore the dashboard and in this way stay informed about the BBNJ process.

 

The MARIPOLDATA approach – a new methodology to analyze negotiation data

Marine biodiversity data and research play a central role in negotiating and implementing the treaty and delegates continuously emphasize the importance of science-based decisions making. But the capacities to conduct marine scientific research, and develop and use data infrastructures are unequally distributed. There are also significant disbalances in the intensity of scientific collaboration among countries as well as primary research topics (Tolochko & Vadrot, 2021). Despite broad recognition of these disbalances, the political aspects of marine biodiversity research remain understudied.

The central objective of MARIPOLDATA is to overcome these shortcomings by developing and applying a new methodology for the analysis of science-policy interrelations. To research the science-policy interrelations, the MARIPOLDATA team has applied a set of qualitative and quantitative methods to collect data within the BBNJ negotiations as well as online in the Web of Science database. 

 

The research team notes that the collection of ethnographic data at international negotiations and its subsequent management and publication has posed a challenge to researchers in the past. Concerning ethnographic data, it has been particularly challenging to make such data publicly accessible and understandable beyond the researcher that collected it. This dashboard was developed as an answer to these challenges. By making ethnographic data from the negotiations and bibliometric data from the web of science publicly accessible, the research team moves forward on this central objective of the project to understand science-policy interrelations and identify new forms of power in global environmental politics as well as develop the methodologies to do so.