“The ship has reached the shore”: why the historic Agreement to protect the High Seas matters and what happens next

By: Glen Wright (IDDRI), Ina Tessnow-von Wysocki & Arne Langlet (MARIPOLDATA)


On Saturday March 4, 2023, the President of the Intergovernmental Conference (IGC) tasked with elaborating an Agreement to protect global ocean biodiversity declared, “The ship has reached the shore”. After a long and winding road of more than 15 years of discussions, consensus on an Agreement to ensure the conservation and sustainable use of  biodiversity in marine areas beyond national jurisdiction (BBNJ) has finally been reached. What is in the Agreement, what could it do, and what happens next?

Picture credit: IISD

Conservation and compromise

This consensus is a striking success for multilateralism and an historic development of the legal regime for the Ocean that will fill gaps in the UN Convention on the Law of the Sea (UNCLOS). The treaty will put in place processes for protecting the marine environment, resolve a longstanding dispute over the common heritage of humankind principle,[1] and strengthen capacity building and technology transfer, thereby enabling all States to take part in the management of this vast global commons.

By imposing a legal obligation to ensure conservation and sustainable use, recognizing the inherent value of biodiversity, and calling for Parties to “act as stewards of the ocean” the Agreement provides a strong basis and renewed impetus for the protection of high seas biodiversity.

The Agreement enables the establishment of area-based management tools (ABMTs) for the conservation and sustainable use of BBNJ, including marine protected areas (MPAs). Parties will submit proposals, which will be assessed by a Scientific and Technical Body (STB). The Conference of the Parties (COP) will then decide whether to adopt the proposal, ideally by consensus but with the possibility of a ¾ majority vote.[2] An opt-out procedure was reluctantly included, allowing a Party to justify a derogation from the majority-approved measure.

The Agreement aims to promote cooperation and coordination, and negotiators had to make sure that it will “not undermine” the diverse range of instruments, frameworks and bodies (IFBs) that have a mandate on BBNJ.[3] The COP will conduct consultations and make recommendations, while Parties to the Agreement must promote conservation and sustainable use of BBNJ when participating in the decision-making processes of other IFBs. Future COP meetings will no doubt have to wrangle with thorny questions regarding the precise mandates of other IFBs and the extent to which proposed conservation and management measures are coherent with existing designations.

The COP may also develop a mechanism for recognizing existing measures adopted in other forums, such as the high-seas MPAs established in the North-East Atlantic by the OSPAR Commission. Parties to a number of Regional Seas Conventions and other bodies have been developing a role in managing BBNJ, so the new Agreement could provide further recognition and support for such efforts.

The environmental impact assessment (EIA) provisions of UNCLOS will be strengthened, with the BBNJ Agreement setting out a clear process that requires stakeholder consultation and involvement of the STB. Developing States had argued for an “internationalized” EIA process that would have given Parties, via the COP and other organs of the BBNJ Agreement, much greater oversight and involvement.

These proposals included the possibility of investing the COP with the power to ultimately authorize or disallow a proposed activity, but developed States were unwilling to cede their sovereignty over activities conducted by their vessels on the high seas. The Agreement therefore leaves it to the State conducting the EIA to decide whether an activity may proceed, with the role of other Parties being limited to notification and consultation.

The Agreement also includes the possibility of developing Strategic Environmental Assessments (SEA), a proactive and collaborative process to assess scientific knowledge and understand the potential impacts of future developments. These assessments could be conducted when new activities and threats to biodiversity are on the horizon, such as exploration for novel fisheries.

Resolving the marine genetic resources dispute

The Agreement resolves the seemingly intractable disagreement regarding the legal status of marine genetic resources (MGRs), which are being used to develop pharmaceuticals, cosmetics, and other products. States from the global South had insisted that MGRs are part of the common heritage of humankind and that rules should be drawn up to regulate access and share the benefits of exploitation; whereas developed States wanted MGRs to remain largely unregulated with no obligation to share future profits.

The deadlock began to break in the first week, as developed States agreed to make up-front payments to a special fund, in addition to their ordinary budget contributions. Rather than being distributed amongst all Parties–as is the case for seabed minerals–monetary benefits will be used to support implementation of the Agreement, thereby promoting conservation, sustainable use, and capacity building. Disagreement nonetheless remained over further payments once products have been commercialized, as well as on reporting requirements and the inclusion of digital sequence information (DSI).[4]

A compromise was reached whereby the COP must consider further modalities for monetary benefit-sharing. In addition, provisions were included to increase transparency and the sharing of research and development outcomes, including through standardized identifiers for MGRs, regular reporting, and notification procedures.

From consensus to a convention

Although a consensus was reached, there was insufficient time to clean up the text and formally adopt it. The President therefore suspended the conference and a short resumed session will be held to adopt the Agreement following technical editing and translation into all six UN languages.

Once adopted, there is more hard work on the horizon: obtaining the 60 ratifications required for the Agreement to enter into force; assessing the capacities and needs of States; building up the institutional framework; and advancing the scientific knowledge needed to support effective decision-making.

The final Agreement also assigns much work to the first meeting of the COP. In addition to establishing the relevant institutional structures,[5] the COP will have to decide the rate of contributions to the benefit-sharing fund, specify the role of the Global Environment Facility in providing financial support, and develop the relevant consultation and assessment processes for conservation measures and impact assessments.

Setting sail

The effectiveness of the BBNJ Agreement is ultimately in the hands of governments and decision-makers. Civil society, scientists and other stakeholders are set to play a significant role, with efforts already underway to identify the next steps toward implementation and possible candidates for protected areas. The ship may have reached the shore, but another long voyage lies ahead.


[1] The Agreement states that it shall be guided by the common heritage principle and places a particular emphasis on the freedom to conduct marine scientific research, while also recognizing the other high seas freedoms granted by UNCLOS.

[2] This ensures that one party cannot effectively veto adoption, as has been the case in the Antarctic Treaty, where proposals to adopt new MPAs have repeatedly stalled due to the objections of a small number of Parties.

[3] E.g. the International Maritime Organization regulates shipping and the International Seabed Authority regulates mining. There are also many Regional Fisheries Management Organizations (RFMOs) that regulate certain fish stocks, though they have not proven effective in terms of biodiversity protection.

[4] DSI generally refers to digital data related to or derived from sequencing processes of genetic resources. For developing States, it was crucially important to include DSI in the benefit sharing provisions of this agreement because it is widely known that the commercial potential of MGRs lies largely in DSI derived from them. The definition of DSI is contested and developed States rejected attempts to define it under the BBNJ Agreement so as not to prejudge similar discussions under the Convention on Biological Diversity.

[5] Including a scientific body, a capacity building committee, and a compliance committee.

A new Marine Biodiversity Treaty in Sight

Finding a landing zone for BBNJ. Photo: Pixabay

A new Marine Biodiversity Treaty in Sight

Marine Biodiversity Negotiations have resumed in New York and negotiators are left with one more week to finalize the new treaty which will govern conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). The MARIPOLDATA Team has been following the proceedings closely. This blog follows the BBNJ Blog Series and provides an overview of the progress of the first week and outstanding issues, which still need to be resolved in the days to come.

The week was characterized by ups and downs in the different sessions that were covering the package elements 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 (CBTMT), as well as overarching “Cross-cutting Issues”. The latter includes provisions on general principles and approaches governing the new instrument, the institutional setup regarding the decision-making organ (Conference of the Parties (COP)), the Scientific and Technical Body, the Secretariat, and the Implementation and Compliance Committee. Overall, the first week was characterized by a spirit of compromise by Parties, gradually finding a “landing zone” – namely agreement – on various contentious issues.

Final drafting of the new treaty

Throughout the first week, negotiations were advancing at different paces on different topics, leaving the issues of firstly, fair and equitable sharing of benefits arising from the use of marine genetic resources in areas beyond national jurisdiction and secondly, the establishment of ABMT, including MPAs as the most challenging parts. Compared to the last conference session in August, the section on EIAs went surprisingly fast, with much flexibility from State Parties and proposals for compromise. Also regarding CBTMT, the textual drafting proceeded without substantial conflicts. The hope that negotiations are now in the final days before the adoption of the agreement can be derived from the language that States use in engaging with each other’s positions and arguments. States’s statements showed that they are willing to work together constructively and with the necessary flexibility.

Figure 1: Language analysis of constructiveness of States’ statements

Using our notes from State Parties’ interventions in the plenary and informal informal sessions, we ran a latent semantic scaling language model to evaluate how constructive the language of the negotiators’ statements was. The language used by States is an important indicator for how a negotiation is progressing (Georgiadou, Angelopoulos,and Drake 2020). We see that in the first week at the resumed 5th session “IGC 5.final”, States used more constructive language than during the same time period at IGC 5. State Parties formulated their statements in a particularly constructive manner at the end of week 1, compared to the previous round of negotiations in August. 

Marine Genetic Resources

The discussions on MGRs started on Monday with two new written proposals from developing and developed State Parties. This promised a constructive and engaged start – a lack of written proposals reflecting the ongoing discussions hampered progress during IGC 5 in August 2022. The proposals made big steps towards compromise as they both converged on an obligation for monetary benefit sharing through an upfront payment. Both sides offered significant concessions from their initial pre-IGC 5 positions to get to this point: developed States moved away from their complete opposition to any sort of monetary benefit sharing and developing States in turn accepted that such monetary contributions are purposed for achieving the objectives of this treaty (conservation and sustainable use). Such a spirit of comprise will be needed to resolve the remaining issues. 

Substantial differences remain on whether upfront payments shall be accompanied by a so-called “enabling clause” or an obligation for payments based on the commercialization of MGR-related products. An enabling clause would mean that obligatory payments on commercialization would not form part of the initial agreement, but that the COP would deal with the matter and possibly develop modalities for such payments. The envisioned enabling clause opens the possibility of commercialization-dependent payments without specifying details at this stage. However, the enabling clause as currently proposed leaves too much uncertainty on whether it will ever be invoked, as it requires consensus from all State parties. 

A similar difference emerged over the long-standing debate on how to treat digital sequence information (DSI). Again, one side offered an enabling clause and the other side requested clear commitments. Both sides had in mind the recent decision by the Convention on Biological Diversity (CBD) COP on the inclusion of DSI for benefit sharing in their lines of argumentation. Developed countries preferred to leave this issue open, waiting for the “fair, transparent, inclusive, participatory and time-bound process to further develop and operationalize the mechanism” (CBD, COP decision 15/9, Art. 17) whereas the developing states insisted that “the benefits from the use of digital sequence information on genetic resources should be shared fairly and equitably (CBD COP decision 15/9, Art. 2) and wished for this to be clarified under the BBNJ regime as well. The compromise may lie in the level of details, as the regime needs to a) accomplish legal certainty for developing states that benefits from DSI will be included and b) remain flexible to take up developments occurring under the CBD mechanism. 

It was noted that it would help developed States in the ratification process if reasonable and doable obligations on State parties are clearly stated throughout Part II of the agreement. In terms of the notification mechanism, a realistic landing zone may lie in requiring State parties to ensure the use of standardized identifiers and regular aggregated utilization reports from databases. 

States agreed that some sort of access and benefit-sharing body will be established to overview and inform implementation of this part. The initial proposal to have a “mechanism” appears to draw logic from the “mechanism” established under CBD. Suggestions to replace this wording with “advisory committee” were met with the argument that all subsidiary bodies established under the instrument will be advisory to the COP and hence, this needs not to be explicitly stated for this body only (see MARIPOLDATA blog on marine issues and DSI at CBD COP15.2).

Area-based Management Tools, including Marine Protected Areas 

While the discussion on whether to have consensus-based decision-making in the COP for establishing the new ABMTs/MPAs is still on the table, most States prefer a majority-based voting procedure. This would mean that proposed ABMTs/MPAs cannot be vetoed by one Party alone, if the majority of the international community agrees on the necessity to undertake this new measure to conserve and sustainably use marine biodiversity. Linked to this discussion is the question of so-called “opt-out”, meaning a State Party objecting to the establishment of the new measure can “opt out” of their obligations to comply with the measures (On the delicate balance between opt-outs and majority voting in other instruments see recent IISD guest article). As explained in previous MARIPOLDATA blogs, this risks having States as Parties to the agreement without actually complying with what is agreed by all or by a majority of the COP, threatening the effectiveness of such measures. Throughout the negotiations, and in the spirit of compromise, there is acknowledgement that this agreement will not fully meet one single State’s interest but rather, that it needs to be a compromise solution that works for all and improves the current situation on the high seas. Under this premise, many States have moved away from their original preference of not having the “opt-out” clause, but rather putting in place a majority vote in the COP and – in very special cases – allow for such exemptions. The following days will be crucial in negotiating the knitty-gritty of the legal text to close loopholes and at the same time allow for universal participation of States to the BBNJ treaty.

The second issue is how the new agreement will account for “other relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies” (IFBs) that are already in place and ABMTs that are already established – or will be established – by those bodies and frameworks. Some Parties interpreted the wording in the draft text  as an introduction of a hierarchy between recognized and unrecognized ABMTs/MPAs by the BBNJ instrument, which would neither be possible nor desired in international ocean governance. The coming days will be busy with finding the right wording to agree on the cooperation and coordination of BBNJ with existing International Frameworks and Bodies (IFBs) with the aim to enable coherent biodiversity governance of ABMTs/MPAs, facilitating well-connected networks of ABMTs/MPAs in areas beyond national jurisdiction (this covers the water column and the seafloor but is currently governed by different international regimes). In the light of ecological connectivity – the knowledge of ecological, biological, genetic and cultural interconnections – such joint establishment of ABMTs/MPAs among the different governing bodies is crucial for effective conservation and sustainable use of marine biodiversity (Tessnow-von Wysocki & Vadrot, 2022) (see: MARIPOLDATA blog on marine issues and DSI at CBD COP15.2).

Towards the end of the first week, discussions were again taken up on issues that were believed to have been resolved already in the past conference session, such as definitions of MPAs, and threatened to throw the negotiations back to where they had left off in August.

Environmental Impact Assessments

The part on EIAs advanced comparatively quickly on passages of the text that were unresolved from the last conference session, due to constructive compromise proposals by several regional groups, which took into account concerns of State Parties that were raised during the past years of negotiation.

The discussions seem to evolve into a two-tiered approach for EIAs between a complete unilateral decision-making over activities in areas beyond national jurisdiction and a full COP decision-making. Several layers of such internationalization at different steps of the EIA process still need to be formulated but both sides seem to converge on a possible “landing zone” and middle ground between the contrasting concepts. In this way, the disagreement about an effects vs. location-based approach could be advanced. Some controversial issues, however, still remain. At one point, the facilitator even felt that “we are rowing backwards”. 

Details of a “call-in” mechanism will still need to be finalized in the coming days, ensuring a process to question a screening undertaken by one Party that would allow the activity to be conducted without an EIA. One particularly contentious issue is the inclusion of a set of guidelines or standards to which the EIAs need to be upheld – as in the current discussions it would be the State Party itself who is undertaking an EIA for their own planned activities. Discussions on whether additionally to voluntary guidelines, this new legally binding agreement should also provide minimum universal standards that all States  need to follow  when conducting their EIAs. This is still a highly controversial topic and remains to be discussed until the last days.

Another issue regards the key question when an EIA will need to be undertaken. In this discussion, two different thresholds on the table would trigger an EIA: 1) significant and harmful changes and 2) minor or transitory effects to the marine environment. This issue has been avoided in discussions, as no easy compromise is expected in this regard. The same attitude was observed for the role of the Scientific and Technical Body, which was left to the very end of week one.

Capacity Building and Transfer of Marine Technology

From the beginning of IGC 5.final, the CBTMT negotiations proceeded relatively smoothly and in clear view on compromise. In the first session, the two State groups holding different views on the topic called the draft text a “clear” and “well balanced” document that “has realistic landing zones”. It was, for example, encouraging to observe that the differences around “shall ensure” in Art. 44 were largely resolved and the wording of the text accepted. 

Disagreement emerged over the proposed addition of the “term” financial to the list of capabilities that shall be enhanced under Art. 46.1. Whereas developing states referred to the required commitment to financial support for capacity-building, developed states argued that the term financial does not fit in the logic of the paragraph. Related to the developments under the MGRs chapter, these differences can certainly be settled by providing the necessary legal certainty and commitment for developing countries that financial support for capacity building is given. 

Unsettled cross-cutting issues

Under Cross-cutting issues, States discussed which principles and approaches should guide the new instrument in two informal-informals sessions. This section of the agreement has been difficult to discuss and left a few concepts up to debate that will form the basis for the new treaty. Negotiations circled back to previous discussions on precautionary principle/approach or the newly phrased term ‘application of precaution’ with a general agreement that the latter could not be a good compromise and would result in further questions of how to define and apply in practice. Developing States pointed to the large  number of countries of regional groups to convey their arguments for the precautionary principle. Yet, whether to use the precautionary principle or approach remains to be discussed.

Also, the option of including the principle of common heritage of humankind as a guiding principle meets much controversy, similar to previous negotiations. It remains to be seen how this disagreement can be resolved to satisfy both proponents of the 1) principle of the common heritage of humankind (mostly developing states) and 2) freedom of the high seas (mostly developed States). In the spirit of compromise, we wonder if a principle encompassing the benefit for the planet could resolve the opposition of two historical principles and provide the basis for  the mandate of the BBNJ treaty focusing overconservation and sustainable use (see: MARIPOLDATA blog on common heritage of the planet).

Figure 2: State (and state-group) positions on whether to include the common heritage of mankind in Art. 5 on general principles and approaches – visualized to depict the conflict over the common heritage principle (position in squares, States in circles). 

Conflict over Common Heritage of Mankind,

IGC 2 & 3

Source: Vadrot et al., 2021

Conflict over Common Heritage of Mankind, 

IGC 5.final

Source: Authors

Another important topic under cross-cutting issues is the future relationship of the BBNJ instrument with other bodies. Considering the already existing amount of international organizations and regimes and the resulting complexity of marine governance, there is the real risk that a strict not undermining clause (Art. 4.2.) may result in little transformative possibility. Proposals to reformulate Art 4.2. that focused on the effectiveness of measures of the instruments were rejected. During the first week, States concerned that BBNJ may turn out too weak instrument provided a  new proposal to strengthen the BBNJ instrument. The text now contains two brackets to “respect the competences of” and to promote “mutual support”, which would reflect the bidirectional relationship of the not-undermining issue (See MARIPOLDATA blog on the relationship with other instruments and organizations). The future of these brackets remains to be seen in week 2. 

On another previously contentious  issue – Art. 52  on funding – a road to compromise is visible. The stronger language “shall provide for” (own emphasis) has become acceptable to most States when the qualifier “in accordance with its national policies, priorities, plans and programmes” is added to the end of the sentence. 

A completely new discussion started around the wording “indigenous peoples” which was capitalized (“Indigenous Peoples”) in the most recent draft text. A number of countries expressed their opposition to this change which for them represents more than a mere editorial drafting change. Countries in favor of the capitalization argued that capitalization followed a precedent and current UN practice in drafting official documents. The editorial capitalization was retained in the new draft text of February 25 but a small working group was set up to solve this issue throughout all provisions of this agreement. 

The “fluffy beast” and other institutional arrangements 

A very fluffy Beast. Photo: Pixabay

Discussions evolved around the details of an Implementation and Compliance Committee to ensure the effective operationalization of the treaty obligations. As pointed out during the discussions, such a committee will probably rather be a “fluffy beast”, with a non-adversarial and non-punitive character and no real legal sanction case of non-compliance. Still, it was agreed on the importance of such a committee to assist States in their implementation of treaty obligations and, thus, a key institutional arrangement for meeting the treaty’s objectives. Moreover, no consensus has been found on dispute settlement, keeping the divide between Parties and non-Parties to UNCLOS.

Another important institutional arrangement to meet the treaty’s objectives will be the Scientific and Technical Body (STB) and related questions about how scientific advice will flow into the implementation of the BBNJ treaty. While the provision on the STB in Art. 49 was agreed on fairly quickly, modalities and character of such a body remain to be developed by the COP at a later stage. In the specific parts of the agreement dealing with the future role of the STB, there was no easy compromise on the role of this body. Pending discussions include the role of the STB in consultations on and assessment of proposals for ABMTs/MPAs, some sort of oversight of the STB regarding decisions by Parties that screenings or EIAs will not be necessary, it’s involvement in the “call-in mechanism”, and consequential actions that would need to be required in response to the recommendations of the STB. Moreover, a potential role for the STB in assisting EIA processes of States with capacity constraints and in the conduct of further public consultation is being discussed. A potential role of the STB in reviewing, proposing rectifications to and publishing EIA (draft) reports is considered by Parties. Regarding decision-making on whether a planned activity can be carried out, the STB could play a role in reviewing EIA reports prior to authorization of an activity and review reports on the impacts of authorized activities to make recommendations on whether the activity should continue.

As regards the Conference of the Parties (COP), discussions have not been exhausted on whether the COP will take decisions by consensus or majority vote, and if so, which majority. Moreover, it was agreed that there should be regular meetings, however, how often and where such meetings will take place are still up for negotiation. 

In negotiations on the Secretariat, Parties seem to agree on the need for a separate Secretariat apart from UNDOALOS. Which country may host a separate Secretariat is however still up to debate.

Compromising on the future Treaty

Now it will be crucial to see which topics can be agreed on and included in the legally-binding agreement – and which decisions will be left to the COP to decide in future meetings (which then will not be able to gain mandatory character without amendments to the agreement). The final text will need to be ready mid-week in order for the legal drafting committee to give the final touch and have it translated into all official UN languages in time for adoption before negotiators leave to return to their home countries. Reasons to hope for a successful conclusion of the agreement exist: The good work of the secretariat in providing a new comprehensive draft text is a major step. As promised by the president during the plenary on Friday morning, a new text was released “Saturday during daylight” for negotiators to continue bilateral meetings over the weekend.



Georgiadou, Elena, Spyros Angelopoulos, and Helen Drake. 2020. “Big Data Analytics and International Negotiations: Sentiment Analysis of Brexit Negotiating Outcomes.” International Journal of Information Management 51: 102048.

Tessnow-von Wysocki, Ina., & Vadrot, Alice B. M. 2022. “Governing a Divided Ocean: The Transformative Power of Ecological Connectivity in the BBNJ negotiations”. Politics and governance, 10, 28. doi:10.17645/pag.v10i3.5428 

Vadrot, Alice B.M. Langlet, Arne. Tessnow-von Wysocki, Ina. 2022. “Who owns marine biodiversity? Contesting the world order through the `common heritage of humankind´ principle”. Environmental Politics 31(2): 226-250

Watanabe, Kohei. 2021. “Latent Semantic Scaling: A Semisupervised Text Analysis Technique for New Domains and Languages.” Communication Methods and Measures 15 (2): 81–102. https://doi.org/10.1080/19312458.2020.1832976.

Watanabe, Kohei. 2023. “Introduction to LSX, the Package for Latent Semantic Scaling.” http://koheiw.github.io/LSX/articles/pkgdown/.


Life in the Ocean – a common heritage of the planet: Do we have a responsibility in the High Seas?

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about marine biodiversity negotiations – more specifically, 1) 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) and 2) the second part of 15th Conference of the Parties (COP15.2) to the Convention on Biological Diversity (CBD). This blog post reflects on the ongoing BBNJ negotiations and the missing aspect of acknowledging the intrinsic value of nature – apart from economic considerations. It dives into the debate on our responsibility to protect the ocean for current, future generations and the planet as a whole and challenges policy-makers in the BBNJ negotiations to consider this aspect as underlying principle of the BBNJ agreement.


Source: Pixabay

Why of common concern…?

The MARIPOLDATA Team has explored the disagreements of States over the years regarding the Principle of “Common Heritage of Humankind” in international law (Vadrot, Langlet, & Tessnow-von Wysocki, 2021). Our research shows how the political discussions surrounding the principle play out in the ongoing negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. It highlights and explains the different rationales of States to support or reject the inclusion of the idea to ensure that living resources are a “common heritage of humankind”, implying the need for its conservation and sustainable use for the benefit of all humankind.

To put the principle into context, it helps to revisit where it is mentioned in the preamble of the United Nations Convention on the Law of the Sea:

“Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States “ (UNCLOS, Preamble)

The principle of common heritage of humankind has been used by developing countries to contest the current inequality gap between countries of the Global North and Global South; and it offers food for thought on how benefits can be fairly and equitably shared among humankind, rather than concentrating wealth in a handful of States. Yet, the principle has been strongly instrumentalised to serve solely financial considerations, rather than conservation aspects. The original objective of introducing the principle into international law was to “ensure that ocean’s plenitude continued to sustain present and future generations and that its uses contributed to peace, security, and the equitable development of peoples” (Taylor, 2019).

Nowadays, it is almost solely linked to the economic benefits of nature for humans and within the BBNJ negotiations almost exclusively mentioned in the section on marine genetic resources and access to and fair and equitable sharing of benefits deriving from them. A human-centric view on nature has been criticized previously in debates on the commonly-used term “ecosystem services” (Schröter et al., 2014) and alternative framings now include “nature’s contributions to people” within the context of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) and the Convention on Biological Diversity (Borie & Hulme, 2015). Taking the conservation angle to the common heritage principle would imply to only explore and exploit to an extent where it benefits all humankind – which in some cases would mean limited or no exploration and exploitation if greater benefit is achieved through preserving the marine environment.

While it is of course desirable to strive for the benefit of humankind, we should even go beyond humankind – and strive for the benefit of the planet as a whole. Scholars have already pointed to the need to phrase the concept more broadly to account for the intrinsic value of nature and the connection between humans and ecological systems, such as ‘common heritage of all life’ (Taylor, 2019). The human right to a clean, healthy, and sustainable environment is already recognized and addresses conservation and sustainable use for the benefit of humankind (UNGA, 2022). In BBNJ, some wording would now be needed that includes the consideration of humankind and extend it to rights of nature.

In the light of debates on “the rights of nature” (Harden-Davies et al., 2020), there is still room at the global level to engage with these ideas.

Is it all about the money..?

With the beginnings of the negotiations, research already pointed early to the lack of funding for conservation in ABNJ and suggested channelling monetary benefits arising from MGRs in ABNJ into a biodiversity fund (Tvedt & Jørem, 2013). Such a fund was envisaged to support conservation projects by state- and non-state actors on the one hand and foster “scientific research projects relating to the loss of marine biodiversity or understanding marine life and diversity” on the other hand (Tvedt & Jørem, 2013, p. 155, own emphasis). The current draft text includes a Financial mechanism (BBNJ draft, Art.52), which seeks to cover costs for the implementation of the agreement (conservation and sustainable use).

The objective of the BBNJ treaty is the “conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”. Yet, with efforts to balance conservation and sustainable use, to date, the actual balance of the two pillars in our ocean is merely mentioned. To equally balance conservation and sustainable use actions on the high seas, one needs to evaluate the current status of marine biodiversity.

Continuing with “business as usual” would include much sustainable (and quite some unsustainable) use of marine biodiversity in areas beyond national jurisdiction. Yet, the conservation aspect of marine biodiversity in ABNJ is currently shockingly low (Karan & Clark, 2020). There is definitely no equal balance between conservation and sustainable use in our ocean currently, with (sustainable) use activities overshadowing efforts for conservation. The BBNJ agreement now offers an opportunity to reverse this trend and introduce ocean conservation efforts.

Who decides…?

Because the ocean is a global common and does not fall under the jurisdiction of any state, it needs to be governed jointly by all. Ocean protection can therefore be regarded as everyone’s concern and responsibility. It would thus also imply that everyone has a voice when it comes to governing, protecting and using the global commons and that no unilateral decisions over these spaces are made. Ideas that go further than a participatory approach include voices for non-humans, such as the consideration of animal rights and the environment, to ensure that natural resources – especially outside of national boundaries – are not solely governed for the benefit of the human population. Critics might say, we should not take responsibility for the ocean, we should not seek to govern it. Yet, we can govern our own actions within the ocean to reverse and prevent further damage.

Considering the common heritage (of the planet) principle for the BBNJ agreement would require to regard biodiversity in areas beyond national jurisdiction as “belonging to all but owned by none” (Taylor, 2019). The principle subjects sovereign authority by individual nation states to limitations – or ecological responsibilities – to serve the interests and well-being of all (Taylor, 2019). Thus, when it comes to decisions over areas beyond national jurisdiction, there is a need for governance in a transparent and internationalized manner, including – besides states – also all other actors in the process.

Source: Pixabay

Moving towards living in harmony with the ocean

The Global Biodiversity framework is a recently adopted document under the Convention on Biological Diversity and recognises the need for living in harmony with nature, and for taking urgent actions towards “transformative change” (Convention on Biological Diversity, 2022; Díaz et al., 2020). It refers to an eco-centric way of seeing and regulating biodiversity – not for the benefit of humans alone, but rather acknowledging the interlinkage between humans and the ecological system as the basis for social, economic and financial models. The vision of the new Global Biodiversity Framework is ambitious: living in harmony with nature by 2050. It even includes references to eco-centric approaches and valuing nature for what it is, not for its economic benefit to humans. Why is it then that almost simultaneously to the adoption of this ambitious biodiversity framework under the Convention on Biological Diversity, the same States seem to prioritize economic prosperity and territory over protecting nature in international negotiations for the conservation and sustainable use of marine biodiversity beyond national jurisdiction? How is the GBF going to be implemented if not through legally-binding regulations on global, national and local levels? Would an emerging legally-binding marine biodiversity agreement not be the perfect opportunity to introduce such change and translate it into national laws?

The upcoming final round of negotiations provides the opportunity to draft a new legally-binding agreement for people and the planet as a whole, thus, the intrinsic value of nature going beyond economic considerations is crucial to be incorporated into the legal text. While at the time of the UNCLOS negotiations little was known about the threats to marine ecosystems and species, today it is clear that human activities can and are already affecting marine biodiversity.

Particularly towards the last days of negotiation, policy-makers need to call to mind that this agreement should not solely be about meeting individual States’ interests, but rather it is a global common treaty that needs to be representative of the planet as a whole. State delegates, thus, are now spokespersons not only for their country, ministry, political party, and constituency – but additionally for the ones that have no voice: future generations and ocean life. For the individual negotiator, this is a huge opportunity to finalise an agreement for the world. But at the same time, it bears a tremendous responsibility – the responsibility to protect this planet for current and future life on Earth.

Source: Pixabay


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Navigating the marine biodiversity regime complex – How will the BBNJ instrument interact with other organizations?

By Arne Langlet and Simon Fellinger

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about marine biodiversity negotiations – more specifically, 1) 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) and 2) the second part of 15th Conference of the Parties (COP15.2) to the Convention on Biological Diversity (CBD)The recently published article Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex informs the BBNJ negotiations by untangling the regime complex of existing international organizations (IOs) that operate in the field of marine biodiversity. We show that up to 52 IOs are perceived as potentially relevant for BBNJ which means that negotiators should carefully formulate the “not undermining” Article 4 of the draft text to strengthen cooperation among IOs in the implementation of the BBNJ agreement. The dataset underlying this publication has recently been made publicly available. 

Will BBNJ become a pilot boat for sustainable ocean governance? (Pilot boat guiding a sailboat, Photo by Philipp Straub)

What does article 4 of the current BBNJ treaty draft refer to?

The BBNJ Agreement is intended to complement and cooperate with other marine biodiversity-related agreements administered by several IOs such as treaty secretariats, intergovernmental organizations, and regional bodies. Art 4.2 of the draft text mandates that the ‘Agreement shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’. The article Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex contributed to informing the negotiations by providing a list of IOs that have been associated to the BBNJ negotiations, addressing the “who” – or, more specifically,  which IOs negotiators refer to when talking about “not undermining”. The observed multitude of IOs and their complex involvement in the negotiations have led scholars and delegates to describe the situation as a “regime complex”.

What are the effects of regime complexity?

Regime complexity, defined as ambiguity in international standards, inconsistent rules and obligations, and opportunities for “forum shopping,” poses a significant threat to the effectiveness of international cooperation. This is due to actors seeking to take advantage of legal incoherence and competition among international organizations (IOs) to select a negotiation forum that best serves their interests (Alter & Meunier, 2009; Gehring & Faude, 2013). Forum shopping can occur when IOs compete in response to regime complexity and can ultimately undermine the effectiveness of all involved regimes. (Henning & Pratt, 2020, p. 1).

While regime complexity has been shown to pose challenges to international cooperation, research has also revealed positive effects. Increased availability of resources (Kelley, 2009), expertise (Lesage and Van de Graaf, 2013), local knowledge (Yadav & Gjerde, 2020), improved flow of information (Pretty & Ward, 2001), diffusion of practices and management structures (Rosenkopf & Abrahamson, 1999), and increased resilience in times of crisis (Janssen et al., 2006) have been identified as potential benefits. However, these positive effects are dependent on the ability of IOs to engage in cooperation and support each other (Dai, 2002; Perez, Cohen & Schreiber 2019; Sofronova, Holley & Nagarajan, 2014). To maximize the positive effects of regime complexity, it is essential to foster cooperative relationships among IOs, rather than competitive ones. But it remains unclear what factors determine the character of cooperative relationships.

How to facilitate cooperative relationships?

The literature suggests that cooperation between IOs is facilitated by shared goals (Downie, 2021; Carlisle & Gruby, 2019) and a clear hierarchy (Henning & Pratt, 2020). In the case of the BBNJ agreement, the hierarchy is established by the predominant role of UNCLOS, which serves as a reference point for other regimes, including the ISA and the UNFSA. However, principles of environmental governance and conservation remained underdeveloped in UNCLOS, such as the requirements for environmental assessments or the duty to cooperate for the conservation of living resources in the high seas. The BBNJ agreement could specify such principles.

Differentiation, or clarifying differences in scope and tasks, have also been shown to support collaborative relationships and compliance in regime complexes (Henning & Pratt, 2020). In the context of the BBNJ agreement, clear differentiation of scope and tasks with other IOs, such as the FAO or CBD, could provide a basis for institutional cooperation. For example, the description of EBSAs from the CBD could be used to inform MPAs under BBNJ, or the FAO could benefit from clarifying the contribution of BBNJ to achieve the holistic and comprehensive conservation and sustainable use of all marine biodiversity species – including fish – in ABNJ.

Hence, the BBNJ instrument could become an important step to fulfilling UNCLOS’ vision as a ‘constitution of the ocean’ by providing overarching goals under which IOs cooperate with diverse mandates.

The case of RFMOs:

The risk that the current formulation of ‘not-undermining’ may be too wide is particularly present in relation to the exclusion of measures for fish. Observers have warned that if fish is excluded from the scope of BBNJ management in order not to undermine the mandate of FAO or RFMOs, fish may slip ‘through the governance net’, leaving many species that are fished or affected by fishing unregulated and unprotected (Crespo, 2019). Particularly for ABMTs/MPAs it is essential to involve FAO and relevant RFMOs in consultations for effective implementation of protective measures. From the RFMOs perspective, the spatial management provisions in the BBNJ Agreement could serve as a tool for RFMOs to achieve sustainable use objectives. From a BBNJ perspective, it could become a hub to increase engagement between IO secretariats, informed by a robust scientific and technical body. In order to promote cooperation and coordination, the BBNJ text should prioritize coherence and coordination over language on not undermining existing instruments. The International Union on (IUCN) has suggested revising the order of elements in Art 4 to reflect such prioritization.

The case of existing scientific and technical bodies:

The Intergovernmental Panel on Climate Change (IPCC) and the Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES) are two further bodies with which BBNJ will interact. The knowledge those bodies aggregate is closely connected to the marine biodiversity regime, as climate change and biodiversity loss are interlinked – on land and in the ocean. Including the expertise of those bodies may have helpful effects for the identification of MPAs, particularly at the beginning of implementation of the treaty, when the BBNJ institutions build their own expertise while many characteristics of the scientific and technical body will likely be defined by the COP in the future.

Further, to strengthen the role of the scientific and technical body that will be established through article 49 of the BBNJ instrument, drawing on existing knowledge practices and lessons learned from IPCC and IPBES should be taken into account (Borie et al., 2021). Both bodies have proven track records for independently aggregating diverse and complex knowledge from a large network of experts, and for communicating it to decision-makers, which will be a key task for the BBNJ scientific and technical body. Yet, this body  needs to be designed for the specific context of marine biodiversity (Beck et al., 2014). Strong institutional links between IPCC, IPBES and the future BBNJ scientific and technical body can help to enhance the knowledge base for decision-making by ensuring exchange and steady flow of information (Pretty & Ward, 2001).


Alter, K. J., & Meunier, S. (2009). The Politics of International Regime Complexity. Perspectives on Politics, 7(1), 13-24. doi:10.1017/s1537592709090033

Beck, S., Borie, M., Chilvers, J., Esguerra, A., Heubach, K., Hulme, M., Lidskog, R., Lövbrand, E., Marquard, E., Miller, C., Nadim, T., Neßhöver, C., Settele, J., Turnhout, E., Vasileiadou, E., & Görg, C. (2014). Towards a Reflexive Turn in the Governance of Global Environmental Expertise. The Cases of the IPCC and the IPBES. GAIA – Ecological Perspectives for Science and Society, 23(2), 80–87. https://doi.org/10.14512/gaia.23.2.4

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Dai, X. (2002). Information Systems in Treaty Regimes. World Politics, 54(4), 405-436. doi:10.1353/wp.2002.0013

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

Gehring, T., & Faude, B. (2013). The dynamics of regime complexes: Microfoundations and systemic effects. Global governance, 19(1), 119-130.

Henning, C. R., & Pratt, T. (2020). Hierarchy and differentiation in international regime complexes: A theoretical framework for comparative research. Unpublished manuscript.

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Langlet, A., & Vadrot, A. B. M. (2023). Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex. Marine Policy, 147, 105372. doi:https://doi.org/10.1016/j.marpol.2022.105372

Lesage, D., & van de Graaf, T. (2013). Thriving in complexity? the OECD system’s role in energy and taxation. Global governance, 19, 92.

Perez, O., Cohen, R., & Schreiber, N. (2019). Governance through Global Networks and Corporate Signaling. Regulation & Governance, 13(4), 447-469. doi:10.2139/ssrn.3265793

Pretty, J., & Ward, H. (2001). Social Capital and the Environment. World Development, 29(2), 209-227. doi:10.1016/S0305-750X(00)00098-X

Sofronova, E., Holley, C., & Nagarajan, V. (2014). Environmental Non-Governmental Organizations and Russian Environmental Governance: Accountability, Participation and Collaboration. Transnational Environmental Law, 3(2), 341-371. doi:10.1017/S2047102514000090

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Yadav, S. S., & Gjerde, K. M. (2020). The ocean, climate change and resilience: Making ocean areas beyond national jurisdiction more resilient to climate change and other anthropogenic activities. Marine Policy, 122, 104184. doi:https://doi.org/10.1016/j.marpol.2020.104184


Marine Issues and Digital Sequence Information at CBD COP15.2: Lessons and implications for the upcoming BBNJ negotiations?

By Silvia Ruiz Rodríguez and Paul Dunshirn

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about marine biodiversity negotiations – more specifically, 1) 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) and 2) the second part of 15th Conference of the Parties (COP15.2) to the Convention on Biological Diversity (CBD). In this blog post, we elaborate on the discussions and outcomes of the Kunming-Montreal Global Biodiversity Framework (GBF) and the CBD decision on digital sequence information (DSI) with a focus on marine issues. Additionally, we point out links with the second part of the 5th Intergovernmental Conference (IGC5.2) of the BBNJ negotiations

Opening plenary of the CBD COP 15.2. (Source: own ethnographic data)

Marine issues in the Kunming-Montreal Global Biodiversity Framework

The Kunming-Montreal Global Biodiversity Framework (GBF) aims to halt and reverse global biodiversity loss through the achievement of four goals by 2050 and 23 action-oriented targets by 2030. Such goals and targets contribute to the Agenda for Sustainable Development (CBD COP15.2, dec. 15.4, Annex, para. 26) and pave the way for states to achieve the “shared vision of living in harmony with nature” by 2050 (para. 3).

The GBF was negotiated by state parties to the CBD during the sessions of the Open-Ended Working Group on the Post-2020 Global Biodiversity Framework (WG2020), which met five times between August 2019 and December 2022 and delivered the GBF draft to the COP15.2. While there are numerous marine issues across different targets of the GBF, we focus on the discussions on targets 1, 2, and 3 at COP15.2 as the scope of application of these targets might be subject to different interpretations.

Spatial planning of activities

Target 1 aims to ensure that states implement management plans for activities carried out on all terrestrial and marine areas to decrease biodiversity loss. During COP 15.2, discussions on this target revolved around the geographical reach and types of ecosystems that the target would address, as well as its feasibility.

Similar to discussions throughout the sessions of the WG2020, states struggled over the application of the target to only areas within national jurisdiction or both areas within and beyond national jurisdiction. On the one hand, arguments for circumscribing target 1 to areas within national jurisdiction relied on a narrow interpretation of the applicability of the CBD to national jurisdiction (CBD art. 4) and its relation to other international instruments (CBD art. 22; Prip, 2022). On the other hand, arguments supporting the applicability of target 1 to areas within national jurisdiction and areas beyond national jurisdiction promoted the coexistence of CBD and UNCLOS on the high seas with regard to biodiversity protection (Prip, 2022).

States had heated debates about whether the target would “retain” “intact ecosystems” or “critical and intact ecosystems.” States of the Global North struggled over the protection of such ecosystems while states of the Global South provided an array of arguments against such references. Firstly, retaining “intact ecosystems” would place a disproportionate burden on states of the Global South, which have a higher extent of wild areas in comparison to states of the Global North. Secondly, most ecosystems have been affected by anthropogenic activities. Thirdly, the meaning of “critical ecosystems” is unclear.

Against this scenario, states of the Global North proposed to replace “intact ecosystems” with “ecosystems that are hard to restore.” This proposal was nevertheless not accepted by their counterparts of the Global South. In the spirit of compromise, states agreed to “bring the loss of (…) ecosystems of high ecological integrity, close to zero” under target 1.

Restoring degraded areas of ecosystems

Target 2 aims to restore 30% of degraded land, inland water and marine areas to improve the state of the ecosystems. Debates focused on the numeric element, the purpose of the target, as well as types of ecosystems and areas to restore.

Similar to discussions at the WG2020, disagreements lay on whether the number should be absolute or relative. State actors supporting an absolute number, such as the European Union (EU), the Russian Federation, Samoa, and Switzerland preferred to protect hectares of areas. The EU, particularly, aimed to refer to a billion hectares of areas. States supporting a relative number, such as Australia, Brazil, Dominican Republic, India, Maldives, and Mexico, among others aimed to protect a percentage of areas. Although absolute numbers are needed for calculating a relative one, states agreed on representing the numeric element as a percentage to keep consistency with target 3.

The purpose of the target was also a topic of debate. The EU proposed that the restoration of areas would achieve an “increase of area of natural ecosystems” while Argentina, Kenya, Switzerland, and the United Kingdom proposed that the restoration of areas would “enhance biodiversity, and ecosystem services, ecological integrity and connectivity.” The first option might imply a gradual geographic expansion of the reach of the target before 2030. In contrast, the second option fails to suggest such a gradual increase. Consensus was reached on the second option with the addition of “ecosystem functions,” giving states flexibility to restore natural ecosystems, as well as altered and managed ones like aquaculture ponds.

Implementation of protected areas

Target 3 aims to guarantee that states conserve 30% of land, inland water and marine areas through protected areas and other effective area-based conservation measures (OECMs) while recognizing the rights of Indigenous Peoples and Local Communities (IPLCs). Some of the disagreements focused on the numeric element and the scope of the application.

Similar to discussions throughout the sessions of the WG2020, the numeric element was an object of debate. At COP15.2, differences lay on the specific percentage (30%, 20%, 13%, or even 10%), and whether this percentage would apply to 1) terrestrial and inland water and 2) marine ecosystems together or separately. The higher the percentage, the more efforts states have to undertake to achieve the target. Moreover, applying the percentage to land, inland water and marine areas separately increases these efforts even further. This was particularly challenging for some states of the Global South whose economies depend on the extraction of natural resources for the most part. States could not reach a compromise in the open sessions of COP15.2, resulting in the solution of this issue by state ministers who agreed to protect 30% of 1) land and inland water and 2) marine areas separately. In other words, states would fail to reach the target if they protect 20% of terrestrial and freshwater areas and 10% of marine areas.

The scope of application of target 3 was also an object of debate. At COP15.2, states struggled over the conservation and management 1) “of all land and of ocean” or 2) “of terrestrial and inland water, and of coastal and marine areas.” As the “ocean” contains both national and international waters, reference to the “ocean” might have enabled the implementation of marine protected areas and OECMs in areas within and beyond national jurisdiction. Australia, Cook Islands, Costa Rica, Israel, Maldives, Samoa, Saint Lucia, and Tonga, among others, supported this reference.

The wording “coastal and marine areas” has been interpreted in the context of the CBD as a phrase that mostly applies to national jurisdiction. It might also imply both national and international waters, providing interpretative flexibility to the text. Brazil, the EU, India, Norway, and the Russian Federation supported the reference to “coastal and marine areas” for consistency with Aichi target 11. Parties decided to refer to “coastal and marine areas” in target 3 despite the unconformity of countries that supported reference to the “ocean.

Decision on DSI and its contribution to the GBF

A core element of the CBD is its system for access and benefit-sharing for genetic resources. The Nagoya protocol has introduced a system that attributes a substantial level of sovereignty to nation states over their genetic resources, requiring users to enter mutually agreed terms with provider countries to ensure the sharing of benefits. Importantly, this framework is generally limited to genetic materials, even though the relationship to DSI has always been a source of contention. As DSI is central to a range of Research and Development (R&D) activities, parties to the CBD strived to find solutions during COP15.2.. This resulted in several decisions on the nature of a future multilateral mechanism, some of which appear of particular importance to the BBNJ discussions.

As it relates to the very question of whether benefits from DSI should be shared, COP15.2 “agrees that the benefits from the use of digital sequence information on genetic resources should be shared fairly and equitably” (CBD COP, dec. 15.9, para. 2). This can be read as a general recognition that the CBD should develop a system beyond benefit-sharing on genetic materials. In preparation for BBNJ IGC-5.2, this has created a discussion about the meaning of the phrase ‘benefits from the use of DSI’. As some suggest (Oldham et al., 2023), this implies that benefits need to be assessed based on evidence of DSI use. In other words, monetary benefits cannot be shared if they are ‘decoupled’ from use, but need to be informed by individual or aggregate use. This interpretation of the decision essentially implies that some form of traceability needs to be implemented in combination with the future benefit-sharing system. The question about the extent to which monetary benefit-sharing on DSI and traceability need to go hand-in-hand will also be of key importance for the BBNJ negotiations, where it would make sense to find solutions compatible with the CBD decisions (Langlet & Dunshirn, 2023; Oldham et al., 2023).

Concerning the question of traceability, COP15.2 “recognizes that tracking and tracing of all digital sequence information on genetic resources is not practical” (CBD COP, dec. 15.9, para. 5). The discussions that have inspired this decision have revolved around the complexity of tracing DSI. Research practices involve comparing hundreds or thousands of DSI (Scholz et al., 2022). Thus, scientific observers to COP 15.2. have argued that a comprehensive track and trace system of all of these uses may cost more than it may contribute to the overall goal of establishing a monetary benefit-sharing system on DSI (Scholz et al., 2022). Additionally, a track and trace system on DSI can never be fully comprehensive, as users may download DSI and analyze or further share it directly outside the established infrastructures (Rohden et al., 2020). However, some commentators emphasize that the decision concerns track and trace of all DSI, implying that it may be practical for some DSI (Oldham et al., 2023).  

COP15.2 also “decides to establish […] a multilateral mechanism for benefit sharing from the use of digital sequence information on genetic resources, including a global fund” (CBD COP, dec. 15.9, para. 16). This decision is a clear break with the bilateral access and benefit-sharing system for genetic resources introduced under the Nagoya protocol. Instead, it introduces a novel multilateral mechanism. The relationship between these novel multilateral and bilateral systems remains unclear, and it is conceivable that hybrid forms will be discussed moving forward. As some observers have argued, a multilateral system is particularly suitable for DSI, as many research practices may use DSI from hundreds of different origins in one search, making it hard to imagine how this should be dealt with in a purely bilateral manner (Scholz et al. 2022).

Overall, the decision on DSI provides guidelines for the further construction of a multilateral benefit-sharing mechanism. As guidelines,  they are not legally binding and it is up to state parties to further sketch out the system they sketched out during COP15.2.

Why should we care about the CBD COP 15.2 when negotiating the BBNJ treaty during the coming weeks? 

BBNJ negotiators should keep in mind discussions and outcomes of the CBD COP15.2 to facilitate synergies and collaboration between both instruments. Targets 1, 2, and 3 of the GBF are particularly relevant for the package element on area-based management tools, including marine protected areas.

Two outstanding, interrelated reasons come to the fore. Firstly, it is necessary to conduct marine spatial planning (GBF target 1) to implement area-based management tools and marine protected areas (GBF target 2), restore degraded marine ecosystems (GBF target 3) and protect the marine environment under the CBD and BBNJ instruments. Secondly, the ecological connectivity of the ocean – through species’ movement and genetics, horizontal and vertical currents, as well as culture – requires coherent management and protection measures across areas within and beyond national jurisdiction for the conservation and sustainable use of marine biodiversity (Dunn et al., 2019; Mossop & Schofield, 2021; Mulalap et al., 2020; O’Leary & Roberts, 2018; Popova et al., 2019; Tessnow-von Wysocki and Vadrot, 2022; UNEP‐WCMC, 2018). Agreeing on complementary and mutually supporting measures between the CBD and BBNJ instruments is essential for taking management and conservation actions that ensure species’ persistence and increase ecosystems’ productivity (Berger et al., 2022). This would improve the health of marine ecosystems and protect economic sectors, such as fisheries and tourism.

The CBD COP15.2 decision on DSI is also particularly relevant for the BBNJ negotiations as it is inextricably linked to the package element on marine genetic resources (MGRs). Some negotiating parties to BBNJ have so far opposed including DSI in the treaty text to not forgo CBD decisions. Now that the decisions are on the table, it will be a great opportunity for negotiators to work towards a harmonized multilateral system. Distinguishing DSI from areas beyond national jurisdiction and areas within national jurisdiction on the existing genetic sequence databases is generally tricky and at present not supported by database providers (Langlet & Dunshirn 2023). Establishing functional governance frameworks for MGRs is key to achieving sufficient legal certainty for users and enabling benefit-sharing and capacity-building for the Global South. Enabling a variety of communities to use and benefit from marine biotechnology can go a long way in establishing blue economies that work for both people at the same time as contributing to ecosystem conservation (Blasiak et al. 2023).

Cross-fertilization between the CBD COP15.2 and the BBNJ IGC5.2 is essential for the success of the international community in the efforts toward the conservation and sustainable use of marine biodiversity. It can only help to harmonize international marine legislation, bringing global environmental governance a step forward in its path to coherent and effective protection and management of the world’s oceans.

Silvia Ruiz Rodríguez and Paul Dunshirn are associated researchers of the ERC Project MARIPOLDATA. Paul is a prae-doc at the Research Platform Governance of Digital Practices. Silvia’s on-site participation at COP15.2 and WG2020-5 was possible due to the generous support of MARIPOLDATA, the sowi:docs Fellowship Programme and the advancement scholarship of the University of Vienna.

Understanding Deep-Sea Life through marine scientific research: The case of Scripps Institution of Oceanography

Since 2018, the MARIPOLDATA research team has followed the BBNJ negotiations and provided extensive insights of the diplomatic practices, science-policy interactions and conflicts shaping the development of a new high seas biodiversity treaty (Tessnow-von Wysocki & Vadrot, 2020; Vadrot, 2020; Vadrot et al. 2022). In parallel, we studied the emerging scientific field of marine biodiversity to understand the state of what scientists knew and delve into the global inequalities of the scientific field, which were reappearing at the negotiation sites (Tolochko & Vadrot 2021a, 2021b). To close the gap between the scientific field and the negotiations though, MARIPOLDATA has taken a closer look at the national level to study marine biodiversity monitoring policies and practices from the perspective of deep-sea laboratories. With the aim to compare these perspectives, the laboratory life of laboratories adds a new key site to understand the structure of the politics of marine biodiversity research entangled between science and policy.

This MARIPOLDATA blog series shares insights from three laboratory ethnographies undertaken between October and December 2022 by three researchers of the ERC MARIPOLDATA team. These ethnographies will take our readers to the United States at Scripps Oceanography[1] at the University of California San Diego, France at the IFREMER[2] of Brest and Brazil at the Oceanographic Institute[3] of São Paulo. Our intention in sharing three singular experiences of laboratory ethnography is to provide a first outlook of how national knowledge infrastructures produce marine biodiversity knowledge. We begin today with Ina’s stay at Scripps.

Ellen Browning Scripps Memorial Pier at Scripps Institution of Oceanography, La Jolla (Photo credits: Ina Tessnow-von Wysocki)

Diving into Deep-Sea Research at the Lab

Whenever you are standing at the beach and your eyes scroll over the infinite horizon; whenever you are at the railing of a ship looking out to the blue waves or diving down to explore the shallow waters to the point where your snorkelling or scuba gear will no longer let you descend further… Have you ever wondered what lives thousands of meters below the surface of the ocean?

You probably know of the deep sea – you might have seen deep-sea organisms on pictures, videos, or even on your own research cruises and in the laboratory. Maybe you are involved in the United Nations negotiations on marine biodiversity governance as an observer – or even as a negotiator – to follow and take decisions over the life that exists in international waters, down to thousands of meters below the surface. Maybe you have come across pharmaceutical companies that are using deep-sea organisms for product development, and have engaged in conversations about deep-seabed mining – all of which are highly controversial discussions at the global UN level nowadays.

Yet, the deep sea is still little-understood: Humans have more knowledge of other planets, than they have about the deepest parts of this blue planet called Earth (Levin et al., 2019; Smith, 2019). But we do know that there is life in these dark and cold spaces in several thousands of meters depth!

Deep-Sea Samples at the Levin Lab (Photo credits: Ina Tessnow-von Wysocki)

Before I visited the Levin Lab, I had already undertaken social science research on the deep sea for almost 4 years, studied the role of deep-sea science in global negotiations of the United Nations, talked to deep-sea scientists like Sylvia Earle, engaged with colleagues on discussions on marine genetic resources and marine scientific research capacity building, yet, I had never been so close to deep-sea life until I got to meet the Levin Lab.

At Scripps Institution of Oceanography, for the first time, I saw a deep-sea organism – I looked at the little creatures that had lived thousands of meters below the surface. As my hand was shaking, I did not get a clear photo of it – don’t drop it! How many hours must have gone into collecting, identifying, preserving, researching, storing it? How much research money must have gone into the research cruise collecting it? And what would still be possible with researching it in the future? I had heard about it so many times, met many people working on it, I had spoken and written about it, had seen pictures and videos of it, followed international negotiations that set regulations about it for the future – but I had never actually seen it. This is how my laboratory ethnography in the Levin Lab started.


Why Laboratory Ethnography at Scripps Institution of Oceanography?

Since 1903, Scripps Institution of Oceanography at University of California, San Diego has contributed to investigations of the ocean and atmosphere and is considered one of the most important centers for global earth science research and education in the world[1]. While Scripps research covers climate change impacts and adaptation, resilience to hazards, conservation and biodiversity, ocean and human health, national security, and innovative technology (ibid) to observe the planet – we would like to zoom into one specific laboratory: the Levin Lab.

The Levin Lab opening their doors on a social scientists’ eyes to life in the deep sea… f.l.t.r:. Angelica Bradley, Lisa Levin, Francis Nguyen, Ina Tessnow-von Wysocki, John Howel, Olivia Pereira, Carlos Neira and Guillermo Mendoza (Photo credits: Ina Tessnow-von Wysocki)

Prof. Lisa Levin is a Distinguished Professor Emerita at the Scripps Institution of Oceanography, University of California, San Diego.  She served as Director of the Center for Marine Biodiversity and Conservation and Oliver Chair at Scripps from 2011-2017. Levin’s research interests include biodiversity and climate change impacts on deep-sea continental margin, and the application of deep-sea science to policy. Her lab studies benthic ecosystems in the deep sea and shallow water and has worked with a broad range of taxa, from microbes and microalgae to invertebrates, fishes and whales. Her recent research has emphasized 3 major themes: (1) the structure, function and vulnerability of continental margin ecosystems, particularly those subject to oxygen and sulfide stress, ocean acidification and deoxygenation; (2) wetland biotic interactions; and (3) larval ecology of coastal marine populations with emphasis on connectivity[2]. Levin’s deep-sea research has been conducted on over 50 expeditions to the margins of the Pacific, Indian and Atlantic Oceans using ships, submersibles, remotely operated vehicles (ROVs) and autonomous underwater vehicles (AUVs) to observe, sample and conduct experiments. Now, after her retirement, there still remain seven lab members in the Levin Lab, working on the different projects that she oversees.

A regular day in the lab..?

Identifying species with the Levin Lab (Photo credits: Ina Tessnow-von Wysocki)

There was no one day like the other in my fieldwork – and this is also true for marine research in the Levin Lab. The two weeks enabled me to shadow the scientists in their meetings, classes, observe their lab work with the samples, identification of species under the microscope, and data analysis of research cruise pictures and videos. Not only is the team diverse in their academic and cultural backgrounds, including researchers from Chile, Brazil, Mexico and the United States, but also the projects they work on within the Levin Lab include different geographical regions with study sites in Southern California, the deep Alaska continental margin and Costa Rica, with research topics ranging from  studying effects of DDT waste barrels in a previous industrial dumpsite in the San Pedro basin of Los Angeles; exploration and characterization of microbial and animal biodiversity in the Southern California Borderland; over effects of phosphorite and ferro-manganese crusts on the biology; to studying methane seeps in Costa Rica and hypoxia in coastal estuaries.

The Levin Lab is working on a range of different types of data: during the cruise they collect temperature, salinity, oxygen values for the water, sometimes turbidity, light, or fluorescence. The hyrographic data are automatically sent to the national database Rolling deck to repository (R2R). Moreover, the biological data are very labor-intensive and can take months to years to generate because the scientists in the Levin Lab have to sort the invertebrates out of the samples and measure the properties of the sediments and fauna (MARIPOLDATA Interview with Lisa Levin, 2022). The Levin Lab scientists then use both the physical samples, as well as pictures and videos from the cruises to map and understand the benthic communities.

There was also time to get a sense of the work of other Scripps laboratories, such as getting to know about gene sequences at Greg Rouse’s Lab  and taking a tour through the benthic invertebrate collection of amazing deep-sea creatures.
Besides getting to know the day-to-day work of Scripps scientists, I also conducted semi-structured interviews to understand how they became scientists, their motivations, what fascinates them in research, and got insights into their time on the vessel, and other moments that I could not capture in the little snapshot of two-week laboratory ethnography. What is it like to be on the submarine Alvin  – what crosses a scientist’s mind when descending several thousands of metres down into the depth of the ocean? What are opportunities, challenges and fears of individual scientists when it comes to funding their research? And what do the United States provide as national infrastructures for monitoring marine biodiversity and supporting science?

Benthic Invertebrate Collection, Scripps Institution of Oceanography

Through desk research and interviews, I could identify the conditions and obligations of US scientists, as regards the national and international regulations for their research. While scientists require a research permit in foreign waters, in US waters 3 miles off shore and when conducting research in US sanctuaries, marine scientific research in international waters is currently possible without a permit as regulated under the freedom of scientific research under UNCLOS (Art. 87 (f)).  As US federal funders generally require a data management plan in their grant proposals, scientists will thus commit to uploading their data to specific databases. While making data available to all is desirable, some databases fit certain types of data better than others – e.g. Genbank works well for genetic sequence data – there is currently “no nice, easy home for ecological community data” (MARIPOLDATA Interview with Lisa Levin, 2022), the type of data that the Levin Lab is collecting.

When Science meets Policy

Photo taken through the microscope

Some things are so small, your eyes cannot see them, so far away, you might never reach them and so different you may not be able to ever relate to them. But still, they are there and they are alive, in the deepest places of our ocean. The research of the Levin Lab is significant for international policy-making on global ocean and marine biodiversity governance because it seeks to understand life on the bottom of our ocean (benthic communities) and the conditions the deep-sea animals need to strive, as well as the implications that their existence has on surrounding ecosystems.

Lisa Levin is increasingly involved with policy through her engagement in different international fora. She is co-founder and co-lead of the Deep-Ocean Stewardship Initiative (DOSI)[3], author on the Intergovernmental Panel on Climate Change (IPCC) Special Report on The Ocean and Cryosphere in a Changing Climate, active participant at the Conferences of the Parties (COPs) of the United Nations Framework Convention on Climate Change (UNFCCC), and co-lead of the Deep Ocean Observing Strategy (DOOS)[4]. Apart from being involved in the intersections between science and policy herself, she also encourages early career researchers to get involved in communicating their research to policy-makers and the public. For this reason, the Levin Lab was also engaged in the first ever Climate Ocean Pavilion at a 27th climate conference of the parties (COP27) with Scripps[5].  International policy topics that she is recently engaged in are the link between climate change and the deep sea (Bris & Levin, 2020; Levin, 2019, 2021; Levin et al., 2020) and pointing to the risks of deep-seabed mining (Levin et al., 2016).

Reflecting on the two weeks of laboratory ethnography at Scripps Institution of Oceanography at the Levin Lab, this time provided me with – not just increased knowledge about the deep ocean – but also with incredible experiences and insights into the laboratory work, the situation researchers face, their motivations and a better understanding of marine science in the United States.  Throughout 2023, the MARIPOLDATA team will be able to use the data to compare it to the other cases of Brazil and the EU.

At the MARIPOLDATA Ocean Seminar Climate Change and the Deep Sea: Science-Policy perspectives, Lisa Levin gave insights into how climate change and the deep sea are interconnected and should therefore also be in global policy-making. While the science points to the importance of these links, climate change seems to still be marginalized in ocean discussions. Maybe science could be better integrated into global ocean governance through an Intergovernmental Panel for Ocean Sustainability (Gaill et al., 2022)..?

[1] https://scripps.ucsd.edu/about

[2] https://llevin.scrippsprofiles.ucsd.edu/bio/

[3] DOSI integrates science, technology, policy, law and economics to advise on ecosystem-based management of resource use in the deep ocean and strategies to maintain the integrity of deep-ocean ecosystems within and beyond national jurisdictions.

[4] a program within the Global Ocean Observing System (GOOS) which aims to coordinate deep ocean-observing to address needs of climate science and society.

[5] https://scripps.ucsd.edu/news/meet-uc-san-diego-delegates-headed-egypt-un-climate-conference

[1] https://scripps.ucsd.edu/

[2] https://www.ifremer.fr/fr

[3] https://www.io.usp.br/


Bris, N. L., & Levin, L. A. (2020). 161Climate change cumulative impacts on deep-sea ecosystems. In Natural Capital and Exploitation of the Deep Ocean (pp. 0). doi:10.1093/oso/9780198841654.003.0009

Gaill, F., Brodie Rudolph, T., Lebleu, L., Allemand, D., Blasiak, R., Cheung, W. W. L., . . . Poivre d’Arvor, O. (2022). An evolution towards scientific consensus for a sustainable ocean future. npj Ocean Sustainability, 1(1), 7. doi:10.1038/s44183-022-00007-1

Levin, L. A. (2019). Oceanography (Washington, D.C.), 32, 180. doi:10.5670/oceanog.2019.224

Levin, L. A. (2021). IPCC and the Deep Sea: A Case for Deeper Knowledge. Frontiers in Climate, 3. Retrieved from https://www.frontiersin.org/articles/10.3389/fclim.2021.720755

Levin, L. A., Bett, B. J., Gates, A. R., Heimbach, P., Howe, B. M., Janssen, F., . . . Weller, R. A. (2019). Global Observing Needs in the Deep Ocean. 6(241). doi:10.3389/fmars.2019.00241

Levin, L. A., Mengerink, K., Gjerde, K. M., Rowden, A. A., Van Dover, C. L., Clark, M. R., . . . Brider, J. (2016). Defining “serious harm” to the marine environment in the context of deep-seabed mining. Marine Policy, 74, 245-259. doi:https://doi.org/10.1016/j.marpol.2016.09.032

Levin, L. A., Wei, C.-L., Dunn, D. C., Amon, D. J., Ashford, O. S., Cheung, W. W. L., . . . Yasuhara, M. (2020). Climate change considerations are fundamental to management of deep-sea resource extraction. Global Change Biology, 26(9), 4664-4678. doi:https://doi.org/10.1111/gcb.15223

Smith, N. (2019). Engineering & technology, 14, 63. doi:10.1049/et.2019.0706

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. Retrieved from https://www.frontiersin.org/articles/10.3389/fmars.2020.614282

Vadrot, A. B. M. (2020). Multilateralism as a ‘site’ of struggle over environmental knowledge: the North-South divide. Critical Policy Studies, 14(2), 233-245. doi:10.1080/19460171.2020.1768131

Vadrot, A. B. M., Langlet, A., Tessnow-von Wysocki, I., Tolochko, P., Brogat, E., & Ruiz-Rodríguez, S. C. (2021). Marine Biodiversity Negotiations During COVID-19: A New Role for Digital Diplomacy? Global Environmental Politics, 1-18. doi:10.1162/glep_a_00605

Diving into Marine Issues of the Global Biodiversity Framework: How global will the new biodiversity framework be?

Member States to the United Nations are now meeting in Montreal, Canada to adopt the Post-2020 Global Biodiversity Framework (GBF)[1]. An Open-ended Working Group was tasked to prepare the draft text prior to the upcoming Conference of the Parties (COP). As outstanding issues remained unresolved[2], time for discussions was extended further. The MARIPOLDATA team closely followed the preparations for the Post-2020 Biodiversity Framework since October 2021 with the first virtual session of COP15, followed by on-site participation in the Working Group Meetings in Geneva in March 2022, Nairobi in June 2022 and are represented in Montreal, Canada for the 5th meeting, as well as COP15, in December 2022. This blog provides an overview of marine-related issues in the current draft of the new GBF that are also relevant to the upcoming negotiations for a legally-binding instrument for the conservation and sustainable use of marine diversity of areas beyond national jurisdiction (BBNJ)[3].

Photo by Kris-Mikael Krister on Unsplash


A Framework for the World to live in Harmony with Nature by 2050

The global biodiversity crisis is not new to policy-makers around the globe – the recognition that biodiversity loss is happening at an accelerating rate has led to many efforts to reverse biodiversity loss on national, regional and international levels. However, with the realisation that business-as-usual cannot lead to transformative change to reverse biodiversity loss, world leaders are now coming together to agree on action-oriented targets to “immediately” respond to the biodiversity crisis and to “put biodiversity on the path to recovery” in the next 10 years[4]. The first draft of the GBF includes a mission for 2030, a vision for 2050 and milestones to assess along the way to guarantee successful implementation of the framework. Moreover, the framework sets out 22 specific targets to be focused on, covering the themes a) reducing threats to biodiversity, b) meeting people’s needs through sustainable use and benefit-sharing, c) tools and solutions for implementation and mainstreaming.

Representatives from governments, non-governmental organisations (NGOs), academia and research last gathered in Nairobi, Kenya to draft the Post-2020 GBF to achieve living in harmony with nature by 2050. After the extended 5th session shortly before the upcoming conference, the draft will then be finalised and open for adoption at COP15 in Montreal, Canada under the presidency of China (7 to 19 December 2022).

Joining Ocean and Biodiversity efforts for a new Global Framework

There is no doubt we live on a blue planet with more than two-thirds covered by ocean. The ocean constitutes over 90 % of the habitable space on Earth, containing around 250,000 known species – not to speak of the significant biodiversity that is yet unknown to science[5]. The most recent 5th Global Biodiversity Outlook[6] and the Second Global Ocean Assessment[7] emphasise the continuous and increasing marine biodiversity loss, driven by human activities. Stressors include (over)fishing, exploitation of other marine resources, such as minerals, intentional and unintentional marine pollution, including plastic, chemicals and toxicants from shipping, tourism and the military, as well as noise pollution. Moreover, there are risks of further degradation of the marine environment and increased biodiversity loss by future (not yet authorised) activities; the most prevalent being deep sea-bed mining (Miller et al., 2021; Amon et al., 2022). The above-mentioned activities are stressors on biodiversity with uncertain consequences that might extend beyond our predictions and imagination. For the well-being of the planet and people, it is thus evident to put efforts into protecting marine biodiversity and the new GBF is a crucial step forward in reversing marine biodiversity loss.

The ocean is interconnected, but is often not treated this way in international law: The United Nations Convention on the Law of the Sea (UNCLOS) divides the ocean into different maritime zones for governance and jurisdiction (Tessnow-von Wysocki & Vadrot, 2022). 64% of the ocean space (which is 95% of its volume!) is considered to be “international waters” or “the high seas”, which are the areas that do not fall under national jurisdiction of any state. The international effort to negotiate a new agreement on marine biodiversity conservation and sustainable use (beyond national jurisdiction) is underway and many links to the GBF can be observed. Relevance to marine biodiversity can be found in several parts of the framework by aiming to protect and sustainably use biodiversity. In this blog, we focus on the GBF targets in each of the three themes that are most relevant to the upcoming negotiations for a legally-binding agreement for the conservation and sustainable use of marine biodiversity beyond national jurisdiction.

A) Reducing threats to marine biodiversity

During the Nairobi meetings, the Blue Leaders[8], a group of states calling for 30% of protected ocean areas made a joint intervention, reiterating the importance of the world’s ocean and pointing to current stressors including climate change, depleted fish stocks, unsustainable and illegal, unreported and unregulated (IUU) fishing activities. The group agrees on the importance of protecting the ocean by 2030 “meaningfully” – that is to not simply establish “paper parks” (= protected areas that exist on paper but have no actual impact) but to effectively prevent destructive uses through implementation.  Goal A pursues to reduce threats to biodiversity, particularly Targets 1-3 make explicit mention to marine issues and spatial planning but included much contestation among governments in past meetings: Foreseeing divergence on key issues, an informal “friends of the co-leads” group was called together to discuss terminology across targets 1-3. Discussions included multiple views of states as regards the scope of the GBF: Views parted in the terminology of “land and sea” versus “land and ocean” areas. Moreover, a number of states also rejected the terminology “areas”, preferring reference to “ecosystems”. Divergence also existed on the definition of ecosystems, namely the difference between “all” ecosystems versus a specific listing of ecosystem (e.g. “terrestrial, inland water, freshwater, marine, and coastal ecosystems”).

Despite extensive informal discussions in the informal setting, as well as the formal contact group meetings and a long night session until the early morning hours, disagreement remained until the end of the conference on such terminology. While the majority of negotiators supported the inclusion of the entire ocean, some parties would like to limit the target to waters under national jurisdiction, and thereby exclude the high seas. Discussions also included divergence on references to human rights and Indigenous Peoples and Local Communities (IPLCs) and related conventions. Placeholders were set on these contested issues, which means that the negotiation of such issues was postponed to the ongoing meeting in Canada.

These targets are particularly interesting for the upcoming BBNJ negotiations regarding area-based management tools, including marine protected areas. The GBF could in this way be the guidance for immediate action on area-based management tools for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, which could be implemented through the new BBNJ instrument.  Moreover, the overall section of reducing threats to biodiversity also indirectly speak to the regulation of the conduct of environmental impact assessments (EIAs), for which the BBNJ instrument also has a mandate for.

B) Meeting people’s needs through sustainable use and benefit-sharing of marine genetic resources

Also particularly interesting to both negotiators in the CBD and BBNJ discussions is Target 13, as it regards the aim to facilitate access to genetic resources and to ensure fair and equitable sharing of benefits arising from the use of genetic resources. Discussions in the CBD and BBNJ are very similar in this regard, when it comes to issues on, not only access to and sharing of benefits of the physical sample of the genetic resource, but also other data related to the genetic resource, such as digital sequence information (DSI). It will be important to coordinate negotiations to harmonise, rather than duplicate, efforts in both fora.

C) Tools and solutions for implementation and mainstreaming

Target 20 of the current draft seeks to guarantee that relevant knowledge guides decision-making for the effective management of biodiversity. On a similar vein, BBNJ envisages a Scientific and Technical Body to provide a scientific base for implementation of the agreement that will need to correspond to other forms of knowledge, apart from scientific research. One pillar of the BBNJ instrument is capacity building and transfer of marine technology to guarantee advancements in marine scientific research and the inclusion of knowledge of Indigenous Peoples and Local Communities to support the effective implementation of the agreement. Coordination in this regard would ensure that advancing ocean science and embracing different knowledge systems under the BBNJ instrument contributes to holistic biodiversity governance envisaged by the GBF.

All eyes on the GBF – and on BBNJ: What happens next?

Negotiators meet in December 2022 to adopt the new Global Biodiversity Framework and the negotiations for a legally-binding agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) will conclude early next year.

Links between BBNJ and the GBF are obvious:

  • The BBNJ negotiations include the topic of access to and fair and equitable sharing of benefits arising from marine genetic resources in areas beyond national jurisdiction and questions on a future Access and Benefit Sharing Mechanism (ABS). Questions on DSI of (marine) genetic resources are part of target 13 of the GBF and discussions need to be coordinated across the different fora.
  • The BBNJ instrument will have the mandate to establish Area-based management tools (ABMTs), including marine protected areas (MPAs) in areas beyond national jurisdiction, which directly link to the spatial planning targets 1-3 of the GBF. It is crucial that the GBF refers to the entire ocean – as opposed to marine areas under national jurisdiction – in order to be a global framework.
  • The BBNJ agreement will regulate the conduct of environmental impact assessments (EIAs) in areas beyond national jurisdiction, which will respond to efforts to conserve and sustainably use of global biodiversity. Target 15 of the GBF refers to the environmental impact assessments to be conducted by all businesses to determine their footprint and dependencies on biodiversity.
  • The final pillar of the BBNJ agreement regards capacity building and the transfer of marine technology (CBTMT), which relates to target 20 of the GBF. A future Scientific and Technical Body for BBNJ will need to ensure relevant knowledge is available for decision-making and management of biodiversity.

It is crucial that there is coordination between the negotiations for the BBNJ treaty and the GBF when it comes to questions of terminology, scope and state obligations in order to effectively conserve and sustainably use marine biodiversity. While areas beyond national jurisdiction are supposed to fall into the BBNJ instrument’s mandate, future implementation would still benefit from the guidance of the global biodiversity framework, which – by its title – cannot exclude certain marine areas.

The meeting of the Open-Ended Working Group in Nairobi left many questions unanswered and after additional discussions in an Informal Group in September[9], much pressure rests on negotiators of the final 5th  Open-Ended Working Group to streamline the text as best as possible before the start of the COP. Not an easy task with around 900 brackets remaining (text that has not been agreed upon)[10]: The draft text is not clear in many of the targets and time is running, but more importantly, like Executive Secretary of the Convention on Biological Diversity, Elizabeth Mrema, said: “Biodiversity cannot wait.” There is the hope that with only a few days left to negotiate, states will show more flexibility in their positions and approach one another in the spirit of compromise. While the overall aim is to develop a framework for the world on how to protect, sustainably use and share benefits deriving from biodiversity in the next decades to come, it is yet to be seen, how holistic and global the framework will be drafted for final adoption at the upcoming COP15.

Negotiators from both fora need to coordinate efforts so that the global road map corresponds to the realities on the ground. Efforts to setting global targets and creating institutions to implement them should go hand in hand. The fact that these processes are simultaneously happening can be an advantage in ensuring clearly formulated targets and the development of institutions that can lead to successful implementation and take immediate, urgent action, aligned under one common purpose: our vision for 2050.  The Convention on Biological Diversity and the Convention on the Law of the Sea might be two different conventions, with distinct mandates – but if you think about it there is much more that unites them: The same governments are negotiating in these fora, taking decisions about the same planet – having the same objective: conserving and sustainably using biodiversity.

A big thank you to the High Seas Alliance and Deep Ocean Stewardship Initiative who funded my conference participation to attend the 4th Open-Ended Working Group Meeting in Nairobi and the MARIPOLDATA team who conducted digital ethnography from Vienna.

[1] https://www.cbd.int/conferences/post2020

[2] https://www.maripoldata.eu/an-ocean-of-possibilities-marine-biodiversity-in-the-post-2020-global-biodiversity-framework/

[3] https://www.un.org/bbnj/

[4] First draft of the GBF: https://www.cbd.int/doc/c/abb5/591f/2e46096d3f0330b08ce87a45/wg2020-03-03-en.pdf


[6] P.156. Secretariat of the Convention on Biological Diversity (2020) Global Biodiversity Outlook 5. Montreal: https://www.cbd.int/gbo/gbo5/publication/gbo-5-en.pdf

[7] https://www.un.org/regularprocess/sites/www.un.org.regularprocess/files/2011859-e-woa-ii-vol-ii.pdf

[8] https://www.theblueleaders.org/

[9] https://www.cbd.int/doc/c/dfeb/e742/b936c09eae9dd558c1310b5b/wg2020-05-02-en.pdf

[10] Daily CBD Press Briefing: https://www.youtube.com/watch?app=desktop&v=9IFs-vzAC8c&feature=youtu.be



Amon, D. J., Gollner, S., Morato, T., Smith, C. R., Chen, C., Christiansen, S., . . . Pickens, C. (2022). Assessment of scientific gaps related to the effective environmental management of deep-seabed mining. Marine Policy, 138, 105006. doi:https://doi.org/10.1016/j.marpol.2022.105006

Miller, K. A., Brigden, K., Santillo, D., Currie, D., Johnston, P., & Thompson, K. F. (2021). Challenging the Need for Deep Seabed Mining From the Perspective of Metal Demand, Biodiversity, Ecosystems Services, and Benefit Sharing. Frontiers in Marine Science, 8. doi: https://doi.org/10.3389/fmars.2021.706161

Tessnow-von Wysocki., I., & Vadrot, A., B. M. . (2022). Governing a divided ocean: The transformative power of ecological connectivity in the BBNJ negotiations. Politics and governance, 10, 28. doi:https://doi.org/10.17645/pag.v10i3.5428

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. doi: https://doi.org/10.3389/fmars.2020.614282

Wait a second… were multilateral negotiations not online before COVID-19? The emergence of digital multilateralism

By Silvia Ruiz and Alice Vadrot

This blog post has also been published on the website of the Research Platform: Governance of Digital Practices

This contribution presents our new paper tackling the online discussions about 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). Such online discussions took place during the first two years of the COVID-19 pandemic as the fourth intergovernmental conference (IGC4) was postponed until 2022. We include developments from the online Intersessional Work organized by the UN Secretariat since September 2020, and the virtual High Seas Treaty Dialogues, taking place under Chatham House rules, organized by 3 states and a number of NGOs.

Multilateral negotiations are a simultaneous process constituted by different factors:

  1. several state actors who usually need to agree on multiple issues in a certain time frame,
  2. several non-state actors – Indigenous People and Local Communities, media, NGOs, scientific community – who try to influence the outcome of such negotiations, and
  3. a venue where multilateral negotiations take place (Betsill & Corell, 2008; Chasek, 2001; Coleman, 2011; Craggs and Mahony, 2014; Henrikson, 2005; Morin et al., 2020; Salacuse and Rubin, 1990; Suiseeya, 2014; Suiseeya & Zanotti, 2019; Touval, 1989; UNEP, 2007).

Example of multilateral negotiation: United Nations Working Group on Nuclear Disarmament in May 2016. Source: ICAN-Australia, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

These factors turn multilateral negotiations into a highly complex process that requires structured procedures in order be carried out in an orderly manner (Chasek, 2001; Winham, 1977). For instance, non-state actors speak after state actors (Aeschlimann & Regan, 2017, p. 47), and decisions are made on the basis of consensus – that is to say, abstentions are affirmative votes (Zartman, 1994, p. 5) and one negative vote hinders the making of a decision.

Structured procedures aid diplomats to create an “environment of trust” because they provide predictability and precedence (Chasek, 2021, p. 5). Also, face-to-face diplomatic encounters facilitate cooperation (Chasek, 2021; Holmes, 2013); and they take place in venues, which can provide a precedent if they have hosted similar negotiations and can be a source of mistrust if they have failed to do so (Coleman, 2011).

It follows that trustful multilateral negotiations only take place in person, most probably in ‘known’ venues and state delegates refrain from using videoconference tools for diplomatic encounters. In simple words, state delegates delayed multilateral negotiations if they could not meet in person despite the use of some digital tools by state delegates, such as word processing programs and email in order to aid negotiations (Adler-Nissen and Drieschova, 2019), and by Indigenous People and Local Communities, such as social media and online interfaces in order to bring their claims forward (Suiseeya and Zanotti, 2019).

Empty negotiation room at the World Trade Organization. Source: https://www.wita.org/blogs/reform-at-wto-divisions-continue/

Delaying multilateral negotiations became problematic after the outbreak of the COVID-19 pandemic as international negotiations were postponed indefinitely, such as the fourth session of the negotiations for a new legally binding instrument to conserve and sustainably use marine Biodiversity in areas Beyond National Jurisdiction (BBNJ Negotiations). In face of such uncertainty, unprecedented digital multilateral sites emerged to facilitate exchange among delegates during the pandemic: the “High Seas Dialogue,” where delegates communicate via videoconference, and the “BBNJ Intersessional Work,” where delegates exchanged positions via written chat and later via videoconference (Vadrot et al., 2021; Vadrot & Ruiz Rodríguez, 2022).

Marine turtle. Source: https://www.rawpixel.com/search/green%20sea%20turtle?page=1&sort=curated

We asked whether these sites could “replace in-person diplomatic practice, under which conditions, and what effects this would have” on policymaking (Vadrot & Ruiz Rodríguez, 2022, p. 2). We observed all discussion sessions of the High Seas Dialogue and BBNJ Intersessional Work. We focused on struggles and processes of change as these might be relevant if digital multilateral negotiations become the ‘new normal’ in the years to come (Chasek, 2021).

These digital multilateral sites have created new inequalities and reinforced existing ones in the making of the BBNJ Instrument. For instance, small delegations have not been able to participate in all sessions, and videoconferences have taken place during the afternoon of Central European Time, which is suitable for Europe and the Americas but not for Pacific states (i.a., Australia, New Zealand, Palau, Samoa) (Vadrot & Ruiz Rodríguez, 2022). Moreover, online discussions lack translation services, making English the de facto language of digital debates.

World time zones. Source: Goran tek-en, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

Beyond these inequalities, digital multilateral sites are politically relevant because diplomats:

  1. follow structured procedures,
  2. perform new practices,
  3. reach convergence on issues they had not discussed previously,
  4. continue struggles that have taken place since the beginning of the negotiations, and
  5. develop a better understanding of each other’s positions in digital multilateral sites (Vadrot & Ruiz Rodríguez, 2022).

Thus, the digitalization of multilateralism is a “key change factor for diplomatic practice in the twenty-first century” due to the COVID-19 pandemic, as well as technological advancements, and despite the difficulties to build trust in virtual encounters (Chasek, 2021; Vadrot & Ruiz Rodríguez, 2022, p. 2; Vadrot et al., 2021). Digital multilateral sites are part of digital multilateralism, which we define as

[1] a set of digital and physical diplomatic practices [2] performed across space and time [3] by state and non-state actors [4] engaged in a joint enterprise of simultaneous negotiation [5] through physical and digital infrastructures [6] in information-rich, highly interactive environments” (Vadrot & Ruiz Rodríguez, 2022, p. 3).

What will the future bring?

Personal conferences are still preferred over digital ones (Allan et al., 2021; Chasek, 2021). However, online discussions offer a unique opportunity to advance work 1) in regional multilateral meetings as time differences might be mild or non-existent and 2) in global multilateral meetings as discussions could be scheduled at different times to adjust to the time zones of participating states (Chasek, 2021; Henrikson, 2005). Moreover, the use of digital multilateral sites would reduce the travel footprint of in-person conferences (Allan et al., 2021; Chasek, 2021).

Seaside footprints. Source: https://pxhere.com/en/photo/695472

Hybrid encounters – combining in-person and digital participation – have offered a way forward as exemplified by the meetings of the Convention on Biological Diversity in Geneva in March 2022 (read our blog article on this regard) and in Nairobi in June 2022. Although issues of equity and fairness have not yet been solved, multilateralism is facing an era of unprecedented digitalization whose implications we will continue to research. Stay tuned!


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Allan, J., Soubry, B., Rosen, T., & Tsioumani, E. (2021). State of Global Environmental Governance 2020. Report, International Institute for Sustainable Development, Canada, February.

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Suiseeya, K. R. M. (2014). Negotiating the Nagoya Protocol: Indigenous demands for justice. Global Environmental Politics, 14(3), 102-124.

Suiseeya, Kimberly R. M., and Laura Zanotti. 2019. “Making influence visible: innovating ethnography at the Paris Climate Summit.” Global Environmental Politics 19 (2): 38-60.

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Vadrot, Alice B. M., Arne Langlet, Ina Tessnow-von Wysocki, Petro Tolochko, Emmanuelle Brogat and Silvia C. Ruiz-Rodríguez. 2021. Marine Biodiversity Negotiations During COVID-19: A New Role for Digital Diplomacy?. Global Environmental Politics 21(3): 1-18.

Vadrot, A. B. M., & Ruiz Rodríguez, S. C. (2022). Digital multilateralism in practice: Extending critical policy ethnography to digital negotiation sites. International Studies Quarterly, 66(3), sqac051. https://doi.org/10.1093/isq/sqac051

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Too High Hopes for a High Seas Treaty?

By Ina Tessnow-von Wysocki, Arne Langlet, Klaudija Cremers (IDDRI), Paul Dunshirn, Silvia Ruiz Rodríguez and Alice Vadrot

Negotiations for a legally binding agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) have once more ended without conclusion of an Agreement. The process started in 2004 with the Ad-Hoc Open Ended Working Group and Preparatory Committee meetings and a United Nations General Assembly Resolution gave States the mandate to conclude negotiations by 2020 after four sessions. Due to the Covid-19 pandemic, the  fourth conference was postponed and informal discussions were initiated in a virtual format[1], enabling the exchange of views until earlier this year when the mandate was extended for a fifth session. The MARIPOLDATA Team attended the fifth – and supposedly final – conference and documented the key developments in the process. Even though States are now closer to an Agreement than ever before, it will be crucial to address outstanding issues in the inter-sessional period, to reach consensus at the upcoming session.

Source: Unsplash

Participants arrived in New York with great motivation to overcome the many remaining issues within the “package deal”[2] and to reach an agreement on the BBNJ instrument during the fifth Intergovernmental Conference (IGC5). There was hope that the highly ambitious statements made during the UN Ocean Conference 2022 could lead to a successful conclusion of the negotiations this year and introduce much needed legally binding regulations for High Seas governance in order to protect the ocean and use it sustainably, fairly and equitably among all nations. After a slow start into the first week[3], significant progress was made towards the end of week one, which raised hopes of negotiators and non-governmental organisations that the treaty could be completed during IGC 5. Even though States and regional groups showed more flexibility and submitted text proposals prior to and during the 2-week long conference, key issues in all package elements could not be resolved.

IGC5 was characterised by different negotiation formats, including plenary sessions (streamlined on UN Webcast), “informal informals” (open to registered observers) and “closed sessions” (accessible by state negotiators only). The MARIPOLDATA team collected data in both the plenary sessions and informal informals on-site during the in-person meetings and by participating virtually. Our collected data and a preliminary analysis thereof allow us to dive deeper into the dynamics of IGC 5, the discussed package items, and actor constellations.

The following graph portrays the distribution of speaking time that delegates spent negotiating the different package items (Marine Genetic Resources (MGRs), Area-based Management Tools (ABMTs)/ Marine Protected Areas (MPAs) and Capacity Building and the Transfer of Marine Technology (CBTMT)) in these two open negotiation formats, not including the closed sessions.

Graph 1: Total Speaking Time in BBNJ Negotiations IGC5 per topic, Source: Authors

The graph indicates that most negotiation time was spent on ABMTs/MPAs, followed by EIAs and crosscutting themes. MGRs and CBTMT on the other hand, were less discussed in the open formats. This overall distribution of speaking time on the different package elements observed in IGC5 stands in contrast to data from the previous IGC4 (see MARIPOLDATA Blogpost from March 2022), where MGRs & CBTMT were discussed more and negotiation time on AMBTs/MPAs and EIAs was comparatively lower. Our results show the different negotiation dynamics in IGC5: ABMTs/MPAs discussions took ¼ of the total negotiation time, as it was extended into the evenings multiple times in the need for further discussions. In the second week of negotiations, closed sessions were held for all package elements, which was particularly the case for the package elements MGRs and CBTMT – those the least discussed in the plenary and informal informals. Both package elements are deeply interconnected: CBTMT is largely dependent on the outcome of the discussions on the MGRs section as regards how much funding will be available for capacity building efforts. Besides awaiting agreement in the MGRs section, no significant disagreement was observed in the CBTMT part and thus, very little time was devoted to discussing CBTMT in Week 2. The MGRs chapter which may be key to unlocking the CBTMT chapter and which has arguably evolved the most during IGC5, was largely discussed behind closed doors and therefore shows up as the second least discussed item. As can be seen, little time was spent on opening and closing statements (roughly 4%) at this stage of the negotiation process to make time for negotiating text.

Turning Point in the Negotiations: Closer to an Agreement than ever before

Despite falling short of an agreement, delegates emphasised that this fifth session has been the most productive. Progress could be seen in each of the package elements and also on cross-cutting issues, where near consensus was reached on several issues that had been impossible to resolve since the beginning of the negotiations. More flexibility from the side of negotiators, some of whom communicated their “red-lines” for the first time and thereby clarified the room for compromise, as well as creative legal drafting made this huge step towards the finish line possible:

On marine genetic resources (MGRs), States were able to break the deadlock between proponents of monetary vs. non-monetary benefit-sharing. Some common ground was found around the idea of decoupling access and benefit-sharing, so as to allow for monetary benefit-sharing (based on ‘flat fee’ contributions from MGR user countries) without requiring an extensive monitoring system or access barriers to scientific databases. Agreement was found in discussions about the notification mechanism for pre- and post-cruise reports and the uploading of datasets, and substantial progress was made on non-monetary benefit-sharing.

On area-based management tools (ABMTs), including marine protected areas (MPAs), agreement was reached on the preparation and review of proposals, and important parts of the decision-making provision. Moreover, a provision on emergency measures was added, to ensure timely reaction to natural disasters and activities that are (or risk to be) harmful to the marine environment.

On environmental impact assessments (EIAs), the lengthy debates on the inclusion of cumulative impacts and strategic environmental assessments (SEAs) in the text seem to be settled (but without definitions or details) and creative drafting managed to resolve the issue on whether to refer to “planned” or “proposed” activities. General agreement was also on the need for inclusiveness and transparency of EIA reports.

On capacity building and transfer of marine technology (CBTMT), States agreed on the establishment of a CB&TT committee, and monitoring and review provisions to ensure more CBTMT takes place.

On cross-cutting issues, progress was made on compliance, dispute settlement, general principles, and international cooperation. Key definitions were also discussed and general consensus was found on terms to be used, such as ABMTs, MPAs and EIAs, while others were deleted, including SEAs and “activity under state jurisdiction and control”. Moreover, negotiators managed to streamline the text significantly.

Plenary Room at the United Nations Headquarters, New York. Source: Author

Swirls of disagreement – why there was still no consensus

While major steps towards compromise were taken, key issues are still outstanding, some of which date back until the beginnings of the discussions and can have significant implications for the implementation of the new agreement. It will be important to consider these points for reflection and exchange in this intersessional period until the next conference to find compromises during the final session.

Regarding MGRs, the envisioned decoupling of access and benefit-sharing requires further deliberation on several aspects. If negotiators were to pursue this path, they need to agree on how high ‘flat fee’ contributions should be. Another issue that remained underspecified in the latest draft version is in how far the definition of MGRs or their utilisation should include digital sequence data, where many delegates referred to the (still) ongoing negotiations to define digital sequence information (DSI) in the context of the Convention on Biological Diversity (CBD) negotiations for a new Global Biodiversity Framework. How the potential outcomes of the CBD discussions relate to the working of the Access and Benefit Sharing (ABS) mechanism in the BBNJ agreement remain unclear. For the BBNJ negotiations, the idea of the decoupled approach sets forth that access to genetic sequence databases would not be restricted as part of non-monetary benefit sharing, and that monetary benefit sharing occurs independently of the utilisation of data.  Having this in mind may motivate negotiators to become more flexible on the exact wording of the MGR definition. This discussion also relates to the question of intellectual property rights, where some States stick to their position that monetary benefits should include patent royalties. Substantial parts of the CBTMT chapter depend on the outcome of these discussions, which should be continued as soon as possible.

Regarding ABMTs/MPAs, initial discussions about conflicting terminologies that date back to previous international negotiations, such as the divide between the use of “precautionary principle” and “precautionary approach”, as well as the problematic discussion on “not undermining” came up again shortly before the treaty was supposed to be finalised and adopted. Several “closed sessions” that could only be attended by State delegates and were not accessible to observers, proved to be helpful to advance on reaching consensus and exploring solutions to settle main disagreements. Another unresolved question includes the possibility for “opt-outs” in the ABMTs/MPAs section, which would allow State Parties to decide on a case-by-case basis whether or not they commit to comply with the regulations of a certain ABMT or MPA established under the BBNJ instrument. While this may lead to a higher number of signatories to the treaty, it significantly puts at jeopardy the level of ambition and hence the effectiveness of the agreement in protecting the marine environment.

In the EIA section, significant progressive streamlining and “cleaning of the text” was done on the final day of the negotiations, which again raised the hope that States would be able to reach a compromise to get the final agreed treaty text. Unfortunately, however, many States needed to reserve their positions and “check with capital”, which could be understandable considering the time differences of various countries, but could also have been a negotiation strategy to delay progress.

Moreover, the two very contrasting views on decision-making in the EIA process did not resolve into a compromise. Developing countries tended to prefer a more internationalised process with decision-making not being a sole competency of the state that proposes the activity, whereas developed states held a strong position for a state-led EIA process. The same divide occurred between proponents of an impacts-based and location/activity-based approach, whereby the former emphasises the need to take into account the impacts on ABNJ, whereas the latter focuses solely on activities undertaken in ABNJ. Proposals included voluntary impacts-based approaches and additional references to the United Nations Convention on the Law of the Sea (UNCLOS), which already contains obligations relevant to EIAs (UNCLOS Art. 192; 194.2).

UNCLOS Art 192: States have the obligation to protect and preserve the marine environment.

UNCLOS Art 194.2: States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

The idea for a call-in mechanism, which could be useful to address concerns of EIAs of convenience was discussed to enable States to “call in” in cases where they challenge a State’s decision to authorise activities in ABNJ due to an arguably acceptable level of impact on the marine environment. However, consensus on the practicalities and decision-making in this regard was not reached. The opportunity for BBNJ bodies to provide guidance on EIAs was welcomed, however, States are still divided on whether the EIA section should include legally binding global standards or voluntary guidelines. Finally, but not least importantly, discussions on the threshold for conducting EIAs are still in deadlock over the two proposed thresholds from previous sessions[4].

In CBTMT, the details of the special fund for CBTMT under the BBNJ instrument are directly linked to the outcomes of the MGR chapter and therefore remain unresolved. While most States see the value of establishing a non-exhaustive and open list of types of CBTMT, divergence remains about its placement in the text and the role of the COP in updating it. Some countries want it enshrined in the Treaty for a legally-binding character, others warn about the inflexibility of such a list and prefer to task the COP with the creation of recommendations in this regard.  Moreover, States still need to agree if a CBTMT review mechanism is needed or whether this task can be fulfilled by another subsidiary body such as the Clearing-house Mechanism or the Scientific and Technical Body.

Another open question is in relation to the new BBNJ Secretariat. Options are on the table for it to be created new, or attached to an existing body, such as UNDOALOS. To address concerns of overburdening of UNCLOS to take on additional BBNJ issues and that the creation of a new secretariat would lead to delays in implementation, one idea is to have UNCLOS serving as an interim Secretariat until preparation for a new one can be guaranteed.

Decision-making is envisaged by individual States under their sovereignty, however, as ABNJ constitute a global commons, the Conference of the Parties (COP) will play an important role for international questions. In several package elements, the role of the COP is still to be elaborated on, such as in the case of the establishment of ABMTs, including MPAs, and the EIA process. Whether or not COP decisions should be based on consensus or – if consensus cannot be achieved – should also allow for majority voting, delegates seemed to favour a 2/3 majority vote.

The role of the Scientific and Technical Body (STB) is to be negotiated still in each of the package elements. Regarding ABMTs, including MPAs, States envisaged a role for the STB for making and assessing proposals for ABMTs/MPAs, in the stage of identification of areas, and for monitoring and review. Concerning EIAs, some States see an important role for the STB to review EIA reports. Emerging consensus points towards an advisory – as opposed to a decision-making – role for the STB.

On the provision of general principles and approaches, a main disagreement emerged regarding whether or not to include the common heritage of humankind principle, as demanded by many developing countries in the final days of the negotiations, stirring up a divide that dates back to the early UNCLOS negotiations[5].

Civil society actors advocate outside the UN building for the urgency of a global ocean treaty. Source: Authors

Setting Sail for the next Conference Session

In their closing statements, State Parties and civil society expressed their disappointment about the failure to finalise the agreement within the “deadline”, but the atmosphere in the room was hopeful for a successful adoption at the next session. While delegates emphasised the importance of finalising the treaty to tackle biodiversity loss in the High Seas, many States also mentioned the treaty could contribute to more equity and bridging the gap between developed and developing countries. Indeed, achieving an agreement that balances the different – and often competing – interests between the global North and South will be one of the most difficult tasks to fulfill.

Negotiators will meet once again for the resumed session of IGC5, “committing to the future generations that we get this done” (Namibia, on behalf of the African group). Negotiation time will be again limited when negotiators reconvene for the resumed IGC5 in New York presumably in March 2023.  For a completion of the treaty, it will be crucial to address those issues that keep dividing governments from the global North and South, especially related to EIAs (international vs. state-driven) and details on monetary benefit sharing of MGRs. While some issues may have to be discussed bilaterally before the next session, it will in addition be important to set up a drafting committee overseeing progress made on the text throughout the next session, and finally, to draft a resolution for the next steps for the United Nations General Assembly.

Even if governments will conclude and adopt the BBNJ treaty at the next session, we need to bear in mind that this is only the first step towards comprehensive and long-term conservation and sustainable use of marine biodiversity. Negotiators should keep in mind that the signature, adoption and ratification process can take several years. In the case of UNCLOS, it took 12 years to reach the 60 ratifications that were required for the entry into force of the treaty; for the UN Fish Stocks Agreement[6] the necessary 30 ratifications were attained in 6 years. Preparatory work on institutional, financing, capacity and decision-making aspects on the sidelines of the upcoming session will be crucial to ensure rapid implementation of the treaty to benefit marine biodiversity as well as present and future generations.

[1] (Vadrot et al., 2021):https://doi.org/10.1162/glep_a_00605

[2] See a summary of the MARIPOLDATA Ocean Seminar on BBNJ prior to IGC5 with Prof. Joanna Mossop on the prospects of the conference and outstanding issues: https://www.maripoldata.eu/newsevents/#igc5seminar

[3] MARIPOLDATA Blog on the First week of IGC5: https://www.maripoldata.eu/finalizing-an-ocean-treaty-drowning-in-detail-or-sailing-towards-compromise/

[4] https://www.maripoldata.eu/assessing-the-humans-footprint-on-ocean-biodiversity/

[5] (Vadrot et al., 2022): https://doi.org/10.1080/09644016.2021.1911442

[6] https://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm

Finalizing an Ocean Treaty: Drowning in detail or sailing towards compromise?

By Arne Langlet, Ina Tessnow-von Wysocki, Paul Dunshirn, Silvia Ruiz Rodríguez,  Daria Sander and Alice Vadrot

After nearly two decades of negotiating a new legally binding agreement to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction (BBNJ treaty), Parties to the United Nations hope to finalize the treaty text during IGC-5 in New York. The MARIPOLDATA Team is following the discussions closely. At the halftime of the negotiations, we provide an overview of the issues discussed – and the outstanding elements that are still to be negotiated in the coming week. 

The negotiation room; Source: Author

The first week of negotiations was filled with a diverse agenda, going through all issues in the four elements of the package –  marine genetic resources (MGRs), area-based management tools including marine protected areas (ABMTs/MPAs), environmental impact assessments (EIAs), capacity building and transfer of marine technology (CBTMT).  Whereas the discussion in the first week was largely driven by re-structuring provisions, some important substantive conflicts need to be solved in week two. To finalize an ambitious and future-proof treaty, states should address the institutional set-up of the BBNJ Agreement to create a few but strong and effective institutions that have the capacities and mandate to monitor and review compliance across package items.

MGRs – will restructuring be enough?

On day one of the fifth Intergovernmental Conference (IGC 5), negotiators dived right into one of the most difficult topics of the BBNJ negotiations: MGRs, including questions on the sharing of benefits. Articles 10, 11, 11bis and 13 of the draft text were addressed during the first week. Negotiators approached commonly acceptable solutions by streamlining and rearranging elements of the above-mentioned articles with regards to the modalities for notification of cruises and benefit-sharing. It is by now accepted by all delegations to have pre and post cruise notifications, as well as a notification to the clearing-house mechanism (CHM) when the relevant data has been uploaded to an open access database. By looking at notifications and benefit sharing separately, common ground could be found regarding the chronology of notifications. In regards to benefit-sharing, the many and intense informal informal sessions on MGRs largely reproduced the conflicts that observers know from previous IGCs on whether to include mandatory monetary benefit-sharing and how closely MGR utilization should be monitored. By the end of week one large part of the chapter had become re-structured and acceptable to most, leaving the big issue of the types of benefit sharing to week two. Although some delegations that previously had strictly rejected any sort of monetary benefit sharing indicated to consider this as long as it would be decoupled from tracking utilization and commercialization.

This work in re-structuring and the new flexibility in positions opened many discussions on monetary benefit sharing in the corridors. The idea that monetary benefit sharing can become a reality in the form of a de-coupled/flat rate/flat fee/upfront payment gained traction among delegations from many different alliances. This approach was recently developed by  the ‘DSI scientific network for similar discussions in the context of the Convention of Biological Diversity and appeals to very opposing interests. It would require developed countries to pay a flat fee/upfront payment on a regular basis, which would in turn allow scientists/universities and companies to freely access and utilize MGRs without having to notify each step of the MGR development/research to the CHM. This has benefits for 1) developing countries, which would be able to receive guaranteed monetary benefit for capacity building from day one of the entry into force of the treaty and for 2) developed countries, which would be able to guarantee their researchers and companies the free engagement with MGR research. The amount of benefit sharing developing countries receive could be weighted by how much genetic sequence data they contribute to openly accessible databases, creating incentives to fill existing biodiversity knowledge gaps in their own regions.

Sketch of potential MGR part containing monetary benefit-sharing from a decoupled flat fee. Source: Author


Throughout week one of the IGC5, negotiations about ABMTs/MPAs have been slowly advancing on a few issues. Parties agreed on including a separate article on objectives into this part on ABMTs/MPAs, however, there was a desire to further streamline the text and details will need to be negotiated in the coming discussions. Broad agreement, even though no consensus, was found on the need for an inclusive consultation process and value for time frames for consultations to avoid delays in the establishment of ABMTs/MPAs. Discussions later in the week included the idea to add a provision to respond to emergencies with temporary measures into the ABMTs/MPA part. Key issues, however, about the purpose of such tools and the responsible body for establishing them, were postponed to the second week.

What is the purpose of ABMTs/MPAs?

Last week discussions about the definitions of ABMTs and MPAs continued, including whether such definitions are required to be set in the treaty. While some states want to differentiate between conservation and sustainable use objectives, others prefer not to draw such a clear line, or even avoid a definition altogether. While discussions still continue, the direction seems to steer towards a slight difference between the definition of ABMTs: 1) to have conservation and sustainable use objectives- and of MPAs 2) to have the primary objective of conservation but still allow sustainable use elements.

Another relevant discussion was postponed for the second week: The  relationship between the future BBNJ Agreement and already existing regional and sectoral frameworks and bodies. Existing bodies and frameworks have shown to be insufficient for a holistic marine biodiversity governance in areas beyond national jurisdiction (ABNJ) (Gjerde, 2019). While the mandate of the BBNJ agreement would close these gaps of fragmented ocean governance and provide the global and holistic answer to biodiversity loss, it does need to recognize and fit into the existing biodiversity regime complex. In this regard, discussions from previous IGCs  on the effective interplay and definition of complementarity continued, as well as fears that the BBNJ Agreement would introduce a hierarchy among existing frameworks and bodies and undermine their mandates. Large fishing states preferred to leave the establishment of ABMTs/MPAs to existing bodies that manage activities in ABNJ, such as Regional Fisheries Management Organizations (RFMOs). It was suggested in case of issues that fall outside of their mandate to get together and discuss the establishment of separate new bodies to take on these tasks. A large number of states disagreed with this suggestion by emphasizing the need for the BBNJ agreement to take a holistic approach to marine biodiversity governance in order to close these gaps.

The following days need to give time for discussions on how the BBNJ agreement will not undermine the work of existing bodies and frameworks, while still fulfilling its own mandate: the conservation and sustainable use of marine biodiversity in ABNJ. As the Swiss delegate reminded everyone in the room that “the high seas negotiators seem to act as there is us and then the ifbs [relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies]. Those are the same countries […] They are different instruments but in the end there are the same countries.”

Going into the second week it is now important to call into minds the necessity to differentiate between ABMTs and MPAs in order to ensure sustainable use through various different tools (ABMTs), while enabling marine conservation (MPAs) (Johnson et al., 2018). In light of the  obligation under UNCLOS to protect and preserve the marine environment, it is urgent to acknowledge the need to use marine resources sustainably in the global ocean and allow for certain areas to be conserved that require protection. While a number of States emphasize their rights (freedom of the high seas) for ocean use, it is important to also consider obiligations (to protect and preserve the marine ebnvironment), particulalry when considering the current unequal proportion of human use and conservation of the high seas (https://www.pewtrusts.org/en/research-and-analysis/reports/2020/03/a-path-to-creating-the-first-generation-of-high-seas-protected-areas).

Another key question will be how States agree on the responsible body to implement ABMTs, including MPAs and how the new BBNJ agreement could fit into the existing ocean governance  cooperatively while ensuring increased conservation and sustainable use measures. In these discussions, the possibility of “opt-out” provisions were preferred by a few States with the argument to achieve a higher participation of Parties, which would, however, also lead to a lower level of ambition and could enable States to commit to conservation and sustainable use only when convenient for them. The second  week of negotiations will show whether States can agree on common definitions of these measures and their purpose to achieve the objective of the overall treaty: conservation and sustainable use of marine biodiversity.

Assessing human impacts on the High Seas 

Discussions about the EIAs part advanced  at the end of the first week. Many proposals, including cross-regional, were introduced by a number of States and flexibility was shown to discuss and include them. There is a general agreement that firstly,  Strategic Environmental Assessments (SEAs) are valuable and secondly, cumulative impacts need to be taken into account. The question on whether or not SEAs should be mandatory or voluntary is still up for debate. Further discussions surrounded the types of impacts that are supposed to be addressed and the question to include or exclude other impacts besides environmental ones.One key question remains: – but this discussion was probably intentionally avoided by the facilitator until the second week – whether the agreement should look at a location-based or effects-based approach. This question has divided the international community since the beginning of the BBNJ negotiations but is a major point of interpretation: is the purpose of the BBNJ agreement the conservation and sustainable use of marine biodiversity in ABNJ or is it the establishment of measures to regulate activities in ABNJ for the conservation and sustainable use of marine biodiversity in ABNJ? One approach would look only at what happens in the high seas and regulate accordingly. The other is more holistic and would include the regulation of activities with IMPACTS on marine biodiversity, regardless of where these activities take place. There is currently no consensus on this point. The EU has introduced a proposed text that would enable states to undertake EIAs of activities with potential harmful effects on ABNJ but which are undertaken in areas within national jurisdiction with the voluntary option to do so.

Another point of discussion that is highly contested is the question of the possibility of BBNJ setting global standards or guidelines/guidance. Some States show reluctance to mandatory global standards for EIAs and emphasize the responsibility of States proposing new activities to conduct their own EIAs (up to their own standards which might be high or low depending on the national contexts). Further, those States have a strong preference to not only conduct the EIA themselves, but also to evaluate them and decide whether or not their proposed activities can take place on the high seas. This point of decision-making is the most contested, as a number of States and regional groups oppose the idea of a purely state-led procedure of EIAs. In their view, there would need to be some sort of global check for harmful activities that will be undertaken in areas beyond national jurisdiction. There has been a compromise option on the table, introduced by CARICOM and PSIDIS at the end of IGC3 that is debated in current discussions. The idea is to have a mixture of state-led and international oversight to accommodate both sides.

Ina Tessnow-von Wysocki and Arne Langlet in front of the UN building in New York City where the negotiations take place. Source: Author

CBTMT – what is the right amount of detail?

In the chapter on capacity building and transfer of marine technology (CBTMT), the disagreements about the strength of language that characterized IGC 4 continued during the first week of IGC 5. The “usual” difference between the preferences of 1) developed countries to formulate “shall promote” and 2) developing countries to have “shall ensure” for stronger and more certain language  in Art 44.1. has not been overcome so far.

Moreover, developing countries generally prefer the inclusion of detailed language and developed countries prefer to leave details out and potentially move this to the upcoming (Conference of the Parties (COP(s)). Ironically, both sides claim that their approach would future-proof this instrument.

This difference could also be observed in discussions about whether to include a detailed list of types of CBTMT in Art 46 and/or the annex. Whereas the fear that a lack of detail means a lack of implementation is understandable, the fact that updating a list that is treaty language (in annex or main body) would require some countries to always re-ratify the treaty when the language changes:a detailed list that should be updated cannot be the solution. The answer may lie in mandating the relevant BBNJ institution(s) to establish and update a list.

While all states agree that CBTMT efforts shall regularly be monitored and reviewed, it remains unclear who/which body should undertake this. Should it be carried out by the COP, a working group or a committee? In general, developed countries prefer to mandate the COP to monitor and review CBTMT, whereas developing countries prefer to establish an extra committee for such purpose. This discussion can be placed in two different broader visions on this treaty: while many developed states prefer a “slim” version of the BBNJ agreement with only a few bodies, developing countries prefer to establish a number of bodies that would monitor and review implementation of CBTMT, update a list of types of CBTMT and monitor benefit sharing of MGRs.

In any case, it seems to be agreeable to all states that the COP shall be the decision-making instance. Aggregating the monitoring and review powers in one body, the discussions on whether to establish a new body  does not have to be repeated in each meeting  about the individual package elements but can maybe be driven forward for the treaty as a whole. Although there are different package elements, it is one common treaty and monitoring and review of implementation should be done on an equal footing for the treaty as a whole.

Crosscutting Issues


Under the crosscutting chapters, the negotiators addressed crucial provisions  for the effective implementation of the BBNJ agreement. Among these were questions on the secretariat. UNDOALOS had distributed an estimate of the personnel and resources needed if UNDOALOS were to be mandated with the BBNJ secretariat. Many delegates expressed their concern that the estimate for the required financial and human resources may have been too conservative to fully address the complete spectrum of activities that the secretariat is to administer. Representatives of UNDOALOS were in the room to openly answer questions on the practicalities of making UNDOALOS the BBNJ Treaty secretariat. One important issue was raised concerning the budget of the future secretariat. States discussed that, as UNDOALOS is financed through the UN regular budget, it could be difficult to ringfence extra budget for BBNJ tasks and all UN member states, whether BBNJ party or not, would be involved in negotiations over UNDOALOS’ budget. This means that on the one hand, non-parties to BBNJ could exert influence over the finances for a treaty they are not part of and on the other, that non-parties would have to contribute financially to the secretariat of a treaty they are not part of. This needs to be considered even though many strong arguments for making UNDOALOS the Treaty’s secretariat were highlighted such as: its location in the UN headquarters in New York, its established working relations with other bodies and most importantly its large experience in dealing with ocean matters.


According to State’s requests during previous IGCs, a representative from the Global Environmental Facility (GEF) was present in the room during negotiations over the funding chapter. The representative was able to contribute to practical questions on the funds that shall be used to finance activities under the BBNJ Treaty. On the one hand, developing countries urged the need to specify between institutional and non-institutional funding and required the establishment of a special fund under Art 52.3b that is to be used for financing capacity building activities. On the other hand, developed countries warned against a potential doubling of funds. It was also warned that being too prescriptive may prevent the GEF financing BBNJ activities because it could not become subordinate to the BBNJ instrument. However, the GEF representative was able to alleviate these concerns as it was made clear that the GEF could work under strict guidance and authority by the COP and also next to other existing funds.

Scientific and technical body

Under article 49.2 of the draft text, states discussed the composition of the scientific and technical body. Negotiators aimed to find the most precise and inclusive terms to create a scientific and technical body that represents all appropriate expertise and regions of the world. Proposals were made to delete the word “scientific” or add the term “technical” and/or “suitable” in relation to qualifications necessary for the scientific and technical body. The role of the STB was discussed in more detail in the parts of ABMTs/MPAs and EIAs for advice and decision-making. Overall agreement was seen on the advisory function of the STB in both sections, but leaving details open as regards to the extent to which the future body will be involved in the identification of ABMTs/MPAs, the process for EIAs, setting standards/guidelines and review of reports.


Finally, the procedures and decision-making rules of the COP are part of the most important issues for an effective implementation of the BBNJ agreement . In the past, this topic divided States into those that wanted exclusively consensus-based decision-making and those that argued for a majority-based system when consensus could be reached. Although a few states still insist that all decisions must be made by consensus, most states have by now accepted that the instrument needs to be able to find a way forward when consensus cannot be reached. While all states clearly strive for consensus decision-making, lessons from other international institutions have shown that if only consensus decision-making is possible, individual states can easily block the implementation of COP decisions. Another important decision must be made in regards to the interim procedures while the BBNJ institutions are not set up yet and the COP has not met. Agreement largely emerged to use the rules of procedure of the UN General Assembly until the COP has decided on its own rules of procedure and to use UNDOALOS until a dedicated BBNJ secretariat has been established (or UNDOALOS remains secretariat). Hence, agreement on some important steps preparing for successful implementation seem tangible within a short time.

Graph – most discussed articles per package item: 


The graph shows the three articles in which states made the most statements per package item. We see that articles that are in direct relation to future BBNJ institutions tended to be the most discussed in each package item. This includes: COP and Funding (crosscutting); Monitoring and review (CBTMT); Relationships to other EIA processes and Review (EIA); Decision-making and Monitoring and review (ABMTs/MPAs) and Collection of MGRs. Therefore, we highlight the importance to clarify the institutional structure and competences for a successful finalization of the Treaty and welcome the plan by President Rena Lee to host a special session on institutional issues later this week. (please note that in the EIA Chapter, negotiators tended to address many articles in one statement which decreased the overall number of interventions).

Conclusion – equipping the BBNJ with strong and flexible institutions: 

At this stage of the negotiation process, states and their representatives have to make some consequential decisions on what to focus on during the remaining 5 days. In all of the 5 package elements, some important steps towards compromise were taken: the potential for monetary benefit sharing in MGRs; agreement on the overall process for establishing ABMTs/MPAs; the inclusion of strategic environmental assessments; the need to regularly review CBTMT efforts; and majority based decision-making possibilities in the COP. However, in all of the package elements some key issues also remain unresolved – in many cases regarding the powers of the future bodies of the instrument. In general, the establishment and composition of bodies under the BBNJ agreement touches upon all the individual provisions in the substantive parts and is arguably one of the deciding factors to whether the agreement will be able to improve the situation in our ocean. Many different bodies have been proposed at some point (COP, secretariat, scientific and technical body, clearing-house mechanism, access and benefit sharing mechanism, CBTMT committee, implementation/compliance committee, special fund) and some states warn against a proliferation of bodies under the new agreement. Indeed, the establishment of up to 8 specialized BBNJ bodies may seem exaggerated. A way forward here could be to tackle these discussions perhaps more broadly, independently of the package element, and perhaps to establish an overall monitoring and review body (as the proposed compliance committee) which works across all package items. Another option could be to give the scientific and technical body or clearing-house mechanism extensive powers to monitor and review elements of treaty implementation on their own initiative. In any case, this means equipping the body at hand with substantial (financial and human) resources and powers to independently and on its own initiative monitor and review the implementation across topics. If the Treaty is to be finished by the end of next week, negotiators may find it useful to rationalize resources to negotiate fewer but stronger bodies instead of getting stuck in the details of substantive provisions. In the end, the ability of the BBNJ bodies to make decisions, monitor implementation and act when needed will make the treaty not only ambitious but also future-proof – and, maybe most importantly, help finalize the treaty.

A good start into the second week was that the secretariat very punctually presented a revised draft text by Sunday afternoon so that negotiations could start from a fresh base on Monday morning.