Assessing the human’s footprint on Ocean Biodiversity

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

A New Agreement to Conserve and Sustainably Use Marine Biodiversity

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

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

Assessing human impacts on Ocean Biodiversity

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

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

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

 

 

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

 

The Process of Environmental Impact Assessments under the new BBNJ Agreement

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

EIA process envisaged in BBNJ, Source: Author

  1. Assessment of what?

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

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

  1. How to assess and evaluate impacts?

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

  1. Who should be kept in the loop?

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

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

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

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

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

  1. How to check on impacts of authorized activities?

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

Key Considerations for BBNJ

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

Relationship to other bodies

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

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

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

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

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

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

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

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

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

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

Setting Priorities for the Planet

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes:

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

[2] Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, See: https://undocs.org/en/a/conf.232/2020/3

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

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

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


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

 

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

 

 Key contributions

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

Informing the BBNJ negotiations

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

 

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


Innovative ways of engagement

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

 

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

 

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

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

 

The MARIPOLDATA approach – a new methodology to analyze negotiation data

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

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

 

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

(Marine) Territories? Conventional and dynamic ABMTs, and the contribution of Indigenous People and Local Communities

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about the negotiations towards an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). In this series, the team publishes updates on the four package items under the BBNJ Agreement which are planned to be concluded in 2022 (Marine Genetic Resources (MGRs), Area Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and Technology Transfer (CBTT)) from the intersessional online discussions taking place on MS Teams since September 2020, the virtual High Seas Dialogues taking place under Chatham House rules, and the MARIPOLDATA Ocean Seminar Series in which scholars and practitioners present and discuss current issues of ocean governance.

Current practice in ocean protection

Life as we know it depends on the health of the ocean (Gjerde et al., 2019), but we continue to perform practices that alter its ecological balance, such as overfishing or polluting the atmosphere. As a response, the international community negotiates the development of a new treaty that would enable the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). To fulfill this task, delegates address the designation of area-based management tools (ABMTs) and marine protected areas (MPAs), which are geographically delimited marine areas – or marine territories – where human activities are regulated or prohibited for ocean management and conservation. They afford higher protection than their surroundings: ABMTs focus on economic activities – i.a. fishing, shipping, deep-sea mining –, while MPAs aim at the long-term in situ conservation of marine ecosystems (D. Johnson et al., 2018).

While it is common practice to designate ABMTs and MPAs around the globe for ocean protection (see Drankier, 2012), such marine territories mainly constitute motionless tools that disregard the intrinsic movement of water and species to help us estimate our impact on the ocean.

In view of this situation, states also implement dynamic ABMTs, and mobile MPAs, – whose boundaries shift in space and time according to the movement of migratory species and movable habitats (Maxwell et al., 2020, pp. 252-253) – but they face legal challenges.

In this blog article, we shed light on the weaknesses of ABMTs and MPAs and their inflexible approach to a fluid ocean, the challenges of dynamic approaches towards marine management, and the contribution of Indigenous People and Local Communities (IPLCs) in improving our knowledge on the ocean, as well as providing alternative forms of engagement with the marine environment.

Our discussion is partially informed by the MARIPOLDATA Ocean Seminar webinar from March 24, 2021, with Prof. Dr. Kimberley Peters (Professor at the Helmholtz Institute for Functional Marine Biodiversity at the University of Oldenburg (HIFMB)). You can read the summary of the session by clicking here.

Key arguments

  • Conventional ABMTs and MPAs set fix boundaries in an ever emerging and fluid ocean.
  • While dynamic ABMTs, including mobile MPAs, are worth further implementation, we need alternatives that can be applied sooner and in the long-term.
  • IPLCs can help us reorientate and enrich current practices of ocean protection.

Land and (marine) territories

Territories are delimited and governed spaces by societies that determine whether and which types of activities are allowed in these bounded areas (Paasi, 2003; Peters, 2020, p. 4). Societies have traditionally thought of territories as flat spaces and measure them in square kilometers – “a flat measure of area” (Peters, 2020, p. 4; Steinberg & Peters, 2015).

To avoid such flat understanding of territories, researchers introduced the vertical dimension by firstly, considering the air, subsoil and surface, and secondly, arguing for control over both flat and three-dimensional spaces (Steinberg & Peters, 2015). That is to say, researchers kept focusing on motionless physical substances (Steinberg & Peters, 2015, p. 248).

Against this scenario, scholars considered the temporal dimension but often in a “periodized” way that oversees transformations of physical elements (Steinberg & Peters, 2015, p. 248). This is particularly problematic in the case of the ocean because water and species move vertically and horizontally (Dunn et al., 2017; O’Leary & Roberts, 2018). Thus, thinking of the ocean as we think of land – as a static space with volume and verticality – makes us grasp the marine environment as something it is not: “a space of fixed horizontal strata” (Steinberg & Peters, 2015, p. 258).

This is, however, how we approach the ocean by creating motionless ABMTs and MPAs (Peters, 2020). As (marine) territories, they follow “static and flat modes” of organizing the ocean, fixing limits around intrinsically mobile objects, such as marine water and species, and humans (Peters, 2020, p. 4-6). This raises the question:

  • How can we manage and protect the ocean by delimiting it as we delimit land?

Dynamic marine management

Aware of the stationary character of (marine) territories, researchers propose to establish dynamic ABMTs, including mobile MPAs. Scientists shift the boundaries of these territories in near-real time by using data that enables them to track marine species and forecast their location (Maxwell et al., 2020, p. 253). This means that scientists constantly relocate the boundaries of dynamic ABMTs, including mobile MPAs, so that specific species are always protected.

To achieve this goal, scientists communicate the new location of dynamic ABMTs, including mobile MPAs, in short time. However, dynamic marine management faces the challenge of contradicting the principle of legal certainty. This principle has different interpretations but, in general terms, establishes that law must be predictable, stable, and reliable so that people are aware of the legal consequences of their actions (see Fenwick et al., 2017). Thus, shifting the boundaries of dynamic ABMTs and mobile MPAs according to the movement of species might hinder people’s ability to grasp the consequences of their activities in the ocean because species might move unpredictably, i.a. due to climate change.

Such situation leads to the questions:

  • How can we improve current practices of marine management?

Our purpose is by no means to discourage the implementation of dynamic ABMTs, including mobile MPAs, but to highlight that our knowledge about ocean management is still developing (Gownaris et al., 2019) and that we need to improve how we govern human activities in the sea. Therefore, we have to further develop technologies to manage the marine realm, as well as expand our horizons by involving further understandings and ways of relating to the sea in decision-making processes (Peters, 2020), such as those of IPLCs. Their approaches can broaden the ways we think of the ocean, provide relevant knowledge and help us effectively conserve and sustainably use marine biodiversity.

Alternative ocean-related experiences: IPLCs and their traditional knowledge

IPLCs develop an intimate relation with the environment by thinking of themselves as part of nature and not aside from it (Escobar, 1998, p. 61). They might protect marine areas on spiritual grounds (Laffoley et al., 2017, p. 135) and do not allow fishing during non-foreseeable or pre-established periods, including when a leader dies or when they identify the need to conserve marine species (Mulalap et al., 2020, p. 5).

Many IPLCs understand the environment holistically, which enables them to grasp ecological processes, different species and further factors that influence the life of such species (Drew, 2005, p. 1288). Moreover, some IPLCs might have more detailed knowledge on marine species and ecological processes than scientists, as it has been the case with the Arctic region (CBD, 2014; Huntington, 2000).

However, why would we use the traditional knowledge (TK) of coastal IPLCs to protect marine biodiversity in the high seas? Because what happens in the coast affects the high seas due to the connectivity of the oceans (Dunn et al., 2017) as exemplified by the protection that IPLCs provide to marine species in international waters or “in connection with” them (Mulalap et al., 2020, p. 7).

TK can help us conserve and sustainably use marine biodiversity in the high seas because it provides knowledge on the connectivity across national and international waters, informs science on conservation and management of marine areas and species, and provides ocean-related practices that are environment-friendly (Dunn et al., 2017; Harden-Davies et al., 2020; Huntington, 2000; Laffoley et al., 2017; Mulalap et al., 2020; Nursey-Bray & Jacobson, 2014; Vierros et al., 2020).

How we decide to conserve and sustainably use marine biodiversity is driven by both the ways we relate to the ocean and what we know about the marine realm (Peters, 2020). As TK is “inseparable from its cultural context” (Dunn et al., 2017, p. 11) and we need to broaden the ways we think of the marine realm, both ocean and humanity would benefit from the participation – or at least increased representation – of IPLCs in the BBNJ Negotiations.

Recommendations for the BBNJ Negotiations

IPLCs are underrepresented in the BBNJ Negotiations (Mulalap et al., 2020; Vierros et al., 2020) where states introduce TK (own ethnographic observations) but fail to understand it on its own terms (Escobar, 1998). Thus, the participation of IPLCs is necessary for an appropriate representation of alternative ways of relating to the ocean in the BBNJ Negotiations. This would turn such intergovernmental meetings into a more participatory process that would enable diplomats to rethink and enrich our understanding of conventional or dynamic ABMTs and MPAs.

Thus, the MARIPOLDATA team recommends the participation of IPLCs in the BBNJ Negotiations to reorientate and improve marine maganement. IPLCs could help us reimagine our engagement with the ocean and could provide valuable knowledge to conserve and sustainably use marine biodiversity.

References:

CBD. (2014). Report of the Arctic regional workshop to facilitate the description of ecologically or biologically significant marine areas (Report No. UNEP/CBD/EBSA/WS/2014/1/5). https://www.cbd.int/doc/meetings/mar/ebsaws-2014-01/official/ebsaws-2014-01-05-en.pdf

Drankier, P. (2012). Marine protected areas in areas beyond national jurisdiction. The International Journal of Marine and Coastal Law, 27, 291-350. https://doi.org/10.1163/157180812X637975

Drew, J. A. (2005). Use of traditional ecological knowledge in marine conservation. Conservation Biology, 19(4), 1286-1293. https://www.jstor.org/stable/3591313

Dunn, D. C., Crespo, G. O., Vierros, M., Freestone, D., Rosenthal, E., Roady, S., Alberini, A., Harrison, A.-L., Cisneros, A., Moore, J. W., Sloat, M. R., Ota, Y., Caddell, R., Halpin. P. N. (2017). Adjacency: How legal precedent, ecological connectivity, and Traditional Knowledge inform our understanding of proximity [Policy brief]. The Nippon Foundation. https://archives.nereusprogram.org/policy-brief-adjacency-how-legal-precedent-ecological-connectivity-and-traditional-knowledge-inform-our-understanding-of-proximity/

Escobar, A. (1998). Whose knowledge, whose nature? Biodiversity, conservation and the political ecology of social movements. Journal of Political Ecology, 5, 53-82. https://doi.org/10.2458/v5i1.21397

Fenwick, M., Siems, M., & Wrbka, S. (Eds.) (2017). The state of the art and shifting meaning of legal certainty. In The Shifting Meaning of Legal Certainty in Comparative and Transnational Law (pp. 1-26). Hart Publishing.

Gjerde, K. M., Clark, N. A., & Harden-Davies, H. R. (2019). Building a platform for the future: The relationship of the expected new agreement for marine biodiversity in areas beyond national jurisdiction and the UN Convention on the Law of the Sea. Ocean Yearbook, 33, 3-44. https://doi.org/10.1163/9789004395633_002

Gownaris, N. J., Santora, C. M., Davis, J. B., & Pikitch, E. K. (2019). Gaps in protection of important ocean areas: A spatial meta-analysis of ten global mapping initiatives. Frontiers in Marine Science, 6, Article 650. https://doi.org/10.3389/fmars.2019.00650

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

Huntington, H. P. (2000). Using traditional knowledge in science: Methods and applications. Ecological Applications, 10(5), 1270-1274. https://doi.org/10.1890/1051-0761(2000)010[1270:UTEKIS]2.0.CO;2

Johnson, D., Ferreira, M. A., & Kenchington, E. (2018). Climate change is likely to severely limit the effectiveness of deep-sea ABMTs in the North Atlantic. Marine Policy 87, 111-122. https://doi.org/10.1016/j.marpol.2017.09.034

Johnson, D. E., Froján, C. B., Turner, P. J., Weaver, P., Gunn, V., Dunn, D. C., Halpin, P., Bax, N. J., & Dunstan, P. K. (2018). Reviewing the EBSA process: Improving on success. Marine Policy, 88, 75-85. https://doi.org/10.1016/j.marpol.2017.11.014

Laffoley, D., Dudley, N., Jonas, H., MacKinnon, D., MacKinnon, K., Hockings, M., & Woodley, S. (2017). An introduction to ‘other effective area-based conservation measures’ under Aichi Target 11 of the Convention on Biological Diversity: Origin, interpretation and emerging ocean issues. Acquatic conservation, 27, 130-137. https://doi.org/10.1002/aqc.2783

Maxwell, S. M., Gjerde, K. M., Conners, M. G., & Crowder, L. B. (2020). Mobile protected areas for biodiversity on the high seas. Science, 367(6475), 252-254. https://doi.org/10.1126/science.aaz9327

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

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

O’Leary, B. C, & Roberts, C. M. (2018). Ecological connectivity across ocean depths: Implications for protected area design. Global Ecology and Conservation, 15, Article e00431. https://doi.org/10.1016/j.gecco.2018.e00431

Paasi, A. (2003). Territory. In J. Agnew, K. Mitchell, G. Toal (Eds.), A Companion to Political Geography (pp. 109-122). Blackwell Publishers.

Peters, K. (2020) The territories of governance: unpacking the ontologies and geophilosophies of fixed to flexible ocean management, and beyond.  Philosophical Transactions of the Royal Society B, 375(1814), Article 20190458. https://doi.org/10.1098/rstb.2019.0458

Steinberg, P., & Peters, K. (2015). Wet ontologies, fluid spaces: giving depth to volume through oceanic thinking. Environment and Planning D: Society and Space, 33, 247-264. https://doi.org/10.1068%2Fd14148p

Vierros, M. K., Harrison, A., Sloat, M. R., Ortuño Crespo, G., Moore, J. W., Dunn, D. C., Ota, Y., Cisneros-Montemayor, A. M., Shillinger, G. L., Watson, T. K., & Govan, H. (2020). Considering Indigenous Peoples and local communities in governance of the global ocean commons. Marine Policy, 119, Article 104039. https://doi.org/10.1016/j.marpol.2020.104039

What do we know about BBNJ? New MARIPOLDATA database of Scientific Literature on the ongoing marine biodiversity negotiations

MARIPOLDATA has now published a new literature database covering scientific publications on the ongoing intergovernmental negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). Providing a continuously updated overview of scientific BBNJ governance publications, the database can serve as a point of information for both researchers interested in the study of BBNJ and governmental and non-governmental actors involved in the BBNJ negotiations. We hope that the database encourages inter- and transdisciplinary debate within and beyond the scientific community and serves to inform the ongoing BBNJ negotiations throughout the intersessional period.

Background on the BBNJ negotiations

Negotiations on a new legally binding instrument for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) are ongoing. After pre-negotiations in form of Ad-Hoc Open-ended Informal Working Group and Preparatory Committee Meetings, four intergovernmental conferences were planned to finalise a new agreement. As the last session, planned for Spring 2020, has been postponed due to the Covid-19 pandemic, formal negotiations have paused and discussions continue as informal exchanges on online platforms[1]. There is general agreement that the new instrument should be based on science, among other forms of knowledge, to inform policy-making and meet societal goals.

The MARIPOLDATA Database on BBNJ Governance Literature

Our database is a comprehensive collection of peer-reviewed scientific literature, published in English language on the BBNJ negotiations. Based on the sample and methodology of the systematic literature review “The Voice of Science on marine biodiversity negotiations” (Tessnow-von Wysocki and Vadrot 2020)  published in Frontiers in Marine Science, the database incorporates articles on the topic from 2004 until 2021 and will be continuously updated.

The database provides an overview of all academic literature published on or in relation to the BBNJ treaty (negotiations), by authors from diverse scientific disciplines and regions. We facilitate navigation through the publications with filters for topics, years and keywords and provide abstracts, which serves users to quickly grasp the topics and contents of individual articles. A statistics section shows the distribution of the publications by topic, year, region, and source. Additionally, we provide access to official United Nations global assessments and reports, as well as to the draft texts of the BBNJ agreement.

We designed this tool for both researchers interested in the BBNJ process and policy-makers, non-governmental actors, and other stakeholders that wish to keep up-to-date with the latest scientific publications on several aspects of the BBNJ process. As the BBNJ negotiations have been put on hold due to the Covid-19 pandemic, we hope that the database will constitute an important pillar during the intersessional period by making existing research more visible and bridging the gap between science and policy until the next intergovernmental conference takes place.

[1] Including the Virtual Intersessional Work, organized by UNDOALOS and the BBNJ Informal Intersessional Dialogues, organized by Belgium, Costa Rica, Monaco and several NGOs.

To get to the literature database click on this picture:

Turning towards the Ocean: Launching a Decade of Ocean Science

On June 1st, the United Nations Decade of Ocean Science for Sustainable Development (2021-2030) has been officially launched with the First Conference of the Ocean Decade by the German Government[1]. The MARIPOLDATA team presented their work at the Early Career Ocean Professional (ECOP) Days that followed the launch and offered a space for ECOPs to engage, present their work, and form networks.

The United Nations Decade of Ocean Science for Sustainable Development was proclaimed in 2017, as a response to the decline of ocean health and the recognition of the importance of the ocean for humanity and planet Earth[2] (Ryabinin et al., 2019). The Intergovernmental Oceanographic Commission (IOC) of UNESCO is overseeing the international cooperation and design of the Decade to “deliver the ocean we need for the future we want”. Several societal needs have been identified which the Decade aims to achieve by 2030: A Clean Ocean, A Healthy and Resilient Ocean, A Productive Ocean, A Predicted Ocean, A Safe Ocean, An Accessible Ocean as well as An Inspiring and Engaging Ocean[3]. One important aspect is the coordination and integration of already existing data and ocean science into decision-making. Sharing existing knowledge equitably with coastal communities that are most affected by the changes of the ocean and introducing more inclusive approaches of designing and conducting marine scientific research will be important to restore ocean health, as well as to use the ocean’s resources sustainably. Through the Decade, United Nations Member States will be enabled to build scientific and institutional capacity to meet the United Nations Sustainable Development Goal (SDG) 14 to conserve and sustainably manage ocean and marine resources by 2030.

The First Conference of the UN Decade of Ocean Science for Sustainable Development in a Virtual Format (f.l.t.r. David Eades, News Anchor, BBC World News TV, Anja Karliczek, German Federal Minister of Education and Research, Ranga Yogeshwar, Science Journalist).

The First Conference of the Decade was attended by over 3,000 participants, high-level politicians, representatives from non-governmental organisations, business and civil society from around the world, who gathered in a virtual format to engage on the most pressing issues and ways forward to protect and sustainably use the ocean and design marine scientific research in the years to come. The conference was characterised by the combination of statements and discussions of heads of government and the space for Early Career Ocean Professionals to contribute and portray their work, who are and will continue to shape our future in the generations to come.

 

 

 

 

 

An opportunity- but no time to lose

The conference served to start off the Ocean Decade, to recognize the significant anthropogenic threats the ocean and marine ecosystems are facing today and to reflect on the opportunity we have to act now. A high-level opening by Anja Karliczek, German Federal Minister of Education and Research, António Guterres, Secretary-General of the United Nations, and German Chancellor Dr. Angela Merkel emphasised the importance of the UN decade of Ocean Science to achieve the UN Sustainable development Goals (SDGs).

German Chancellor Dr. Angela Merkel gives a statement at the Conference

As Audrey Azoulay, Director-General of UNESCO emphasised: After Sepulveda asserted in 1993 that “humans have turned their back to the ocean”, we now need to start a new relationship with the ocean. The Ocean Decade is an opportunity to turn our attention towards the ocean. Prince Albert II of Monaco underlined the link between ocean’s health and human health and Wavel Ramkalawan, the president of Seychelles pointed to the urgency of taking action now, particularly in regards to sea-level rise and expected disappearance of small islands.

Experiences from around the Ocean

The session dived into five projects around the world: Cape Verde, Puerto Rico, the Artic Ocean, Vanuatu, and Canada.

1. Cape Verde

The Ocean Science Center Mindelo, Cape Verde.

 

Ivanice Monteiro Silva, marine biologist and Laboratory’s Manager at the Ocean Science Center Mindelo, is researching the effects of climate change on the marine environment. She observes increase in water temperature and sea-level rise and hopes that one outcome of the Ocean Decade that people understand the importance of the ocean in our earthly experience.

 

 

Christa von Hillebrandt-Andrade revisiting available sea level data in the IOC Sea-level Monitoring Facility

2. Puerto Rico

Christa von Hillebrandt-Andrade is the Manager of the Caribbean Tsunami Program and knows that “the basis of hazard warning systems is collaboration and partnership”. She argues that no country can operate a tsunami warning system without collaboration with partners and scientists and emphasizes the importance of data sharing.

 

 

3. Artic Ocean

The research vessel “Polarstern” is frozen for one year in the Arctic ice to study the climate processes of the Central Arctic- the epicenter of climate change.

 

Prof. Dr. Markus Rex introduced the MOSAIC expedition in the Arctic Ocean, bringing together 80 institutions from 20 nations, showing that international collaboration is necessary and pointing to the urgent need to reduce greenhouse gas emissions to prevent the Artic from becoming ice-free in summer in a few decades to come with its devastating consequences.

 

 

 

 

 

4. Vanuatu

Sustainable Sea transportation can access shallow waters and brings in traditional knowledge that links Pacific voyaging communities.

Dr. Ian Schipper from the Victoria University of Wellington, New Zealand studies volcanic eruptions and their effects on the environment. The research was undertaken in collaboration with local communities, who identified the location of existing submarine volcanoes – an impossible task without local knowledge.

 

 

 

 

5. Canada

Ocean Networks Canada taking ocean samples.

Kate Moran, president and CEO of Ocean Networks Canada is monitoring the ocean, seeking to understand it further. The Ocean Decade can serve in her opinion to make people understand the ocean’s contribution to humanity. She hopes that such public awareness would drive society to reduce its greenhouse gas emissions more rapidly.

 

 

 

 

Including all Voices: Scientific Process as a Cultural Dialogue

To live in harmony with nature “science, technology and innovations to protect our oceans are vital” Inger Andersen, Under-Secretary-General of the United Nations and Executive Director of the United Nations Environment Programme. The UN Ocean Decade seeks to be the connection between science, policy and society. But how can we create the ocean we want? On the roundtable “the science we need for the ocean we want”, Peter Thomson, (Ambassador / UNSG Special Envoy for the Ocean), The Honorable Dr. Jane Lubchenco  (Deputy Director for Climate and Environment, White House Office of Science and Technology Policy) and Dr. Vladimir Ryabinin (Executive Secretary of IOC- UNESCO) elaborated on the importance of science on the one hand, but also on the need for inclusivity.

It is important to embrace the diversity of our society in generating knowledge. This was an underlying theme throughout the conference. Integrated ocean science agendas are required to meet societal needs (Dr. Bruno Oberle, Director General, International Union for Conservation of Nature (IUCN)). Dr. Heide Hackmann, Chief Executive Officer of the International Science Council, points to the importance to connect science to policy across time scales and levels of governance and contexts, which depends on international cooperation and inclusivity. Inclusivity, referring not only to the diversity of scientific communities, but also to include the marginalized voices within scientific communities. For this UN Decade of Ocean Science for Sustainable Development, all voices need to be heard, including: governments, NGOs, the business sector, and civil society. But not only that: The Ocean Decade is now an opportunity to embrace full diversity, including trans- and interdisciplinarity, including social sciences, diversity of men, women and queers, different age groups, religions and cultures, as well as an active engagement with indigenous peoples and local communities.

An Unequal Ocean: The need for International Collaboration and Capacity Building

An important part of including all voices also regards the need for international collaboration and capacity building. The geographical imbalance of states to undertake marine scientific research (Tessnow-von Wysocki & Vadrot, 2020; Tolochko & Vadrot, 2021) were put into focus by a number of speakers. As “not every region is equal” (Dr. Elva Escobar Briones, Professor in Oceanography, Instituto de Ciencias del Mar y Limnología (ICML) UNAM), fair capacity building and technology transfer is a crucial pillar in the UN Decade of Ocean Science for Sustainable Development.

Data sharing goes hand in hand with capacity building and the transfer of marine technology. However, it is important, as it was mentioned in the panel on “The Ocean Decade from End to End”, that efforts do not stop at data collection and sharing, but also include creation and co-design of knowledge among a variety of stakeholders and actor groups and forms of knowledge involved. Industry can play an important role in making data available and contributing to partnerships in this regard.

The role of the private sector and partnerships in the Ocean Decade

Sanda Ojiambo, Executive Director & CEO, United Nations Global Compact, emphasised in the “Visions and Missions” panel that companies can protect the ocean through collaborating with science. Moreover, the private sector itself can contribute to ocean science, innovate technologies, improve our understanding of the ocean by sharing ocean data and engaging international dialogue. The inclusion of the private sector was also prominent in the “The Ocean Decade from End to End” panel. Marc Heine, Chief Executive Officer of Fugro, explains the expertise of his company to collect ocean data and criticises that -while the private sector is interested in contributing to ocean stewardship- incentives are still lacking for companies to provide access to their data, which the Ocean Decade could support. The oil and gas industry will now need to look towards more sustainable ways to generate energy. Partnerships were identified as crucial in data collection and sharing, as well as in knowledge generation. Prof. Dr. Gideon Henderson, Chief Scientific Adviser, Department for Environment, Food and Rural Affairs (Defra), United Kingdom, underlines the importance of an internationally created agenda for ocean science and the role of the G7 and international cooperation to tackle global problems. At the same time, however, Ken Paul (First Nations, Canada) who shared traditional ways of living in harmony with nature is worried that “A lot of times, our science isn’t there necessarily to understand the ecosystem – it’s to help improve economic benefits.” (Ken Paul, First Nations) and that the direction of scientific production and use needs to be thought through in light of the Decade.

Starting the Decade with long-term thinking for the Ocean

Another main theme across the conference’s panellists and participants was the need for long-term goals: there needs to be a shift to more long-term thinking in decision-making on the future of the ocean. As Ken Paul (First Nations) puts it: “We have to think seven generations ahead”. This long-term thinking has unfortunately been missing from everyday politics and was encouraged by panellists, such as Peter Ng, from Singapore.

The Ocean Decade Laboratories, initiated through the Ocean Decade, were presented towards the end of the launch: They offer an opportunity for all stakeholders to engage in “satellite activities”, which will be presented in 48h time slots around the globe. Ideas include  “pitch sessions” for new Ocean Decade programs or projects that are looking for partners, announcements of Decade Actions or commitments, Decade Action design workshops or networking forums, skills training and virtual exhibitions. Applications remain open and invite a diversity of participants.

Final words of the launch included the importance to raise awareness about our interdependence with the ocean and bring together different voices to generate ocean science to meet diverse societal needs. Ocean literacy, coastal resilience and recognition of cultural values of the ocean are only the beginning. Connections between stakeholders will be facilitated by the Decade: A global stakeholder platform will be launched at the end of the year and a Decade Alliance will be created to form a network for experts and investors.

At the table with the next generation

Lobby of the Virtual ECOP Days

During the launch, the Early Career Ocean Professionals were represented by Farah Nibbs, Early Career Disaster Scientist, University of Delaware, Dr. Guillermo Ortuño Crespo, Postdoctoral Researcher at the Stockholm Resilience Centre, Taylor Goelz, Program Manager, Shipping Decarbonization Initiative, Aspen Institute, Fiona-Elaine Strasser, German All-Atlantic Ocean Youth Ambassador and Thando Mazomba, South African All-Atlantic Ocean Youth Ambassador.  Early Career Professionals around the world are currently working in diverse geographical areas and disciplines, keen to take part in the UN Ocean Decade and to contribute to achieving its aims. After the launch, the conference made space for Early Career researchers to contribute with a virtual fair, including a 24h live stream throughout all time zones of presentations, discussions, virtual exhibitions and cinema.

The MARIPOLDATA team was represented at the conference to support the United Nations Decade of Ocean Science for Sustainable Development and show our contribution from a marine social science perspective on marine biodiversity politics in the ongoing legally binding agreement for the conservation and sustainable use of marine biodiversity beyond national jurisdiction. Participants in the conference could stop by the MARIPOLDATA virtual booth to get to know the team and ask questions regarding our latest publications and project events.

Virtual MARIPOLDATA Booth at the ECOP Days

The full event can be watched here: https://www.youtube.com/watch?v=BPBjWEe9IIM

[1] See the Program here: https://www.oceandecade-conference.com/en/program.html

[2] See more information on the Decade: https://www.oceandecade.org/about

[3] The Science we need for the Ocean we want: https://unesdoc.unesco.org/ark:/48223/pf0000265198?posInSet=1&queryId=8e76ac20-6423-442c-862a-1eb4aa9c59ae

References

Ryabinin, V., Barbière, J., Haugan, P., Kullenberg, G., Smith, N., McLean, C., . . . Rigaud, J. (2019). The UN Decade of Ocean Science for Sustainable Development. Frontiers in Marine Science, 6(470).

Tessnow-von Wysocki, Ina. and Vadrot, Alice B.M 2020. The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review. Frontiers in Marine Science 7: 614282.

Tolochko, Petro. and Vadrot, Alice B.M. 2021. The usual suspects? Distribution of collaboration capital in marine biodiversity research. Marine Policy 124 (2).

 

Governing knowledge in relation to Marine Genetic Resources and COVID-19 vaccines

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about the negotiations towards an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). In this series, the team publishes updates on the four package items under the BBNJ Agreement which will be concluded in 2021 (Marine Genetic Resources (MGRs), Area Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental  Impact Assessments (EIAs), and Capacity Building and Technology Transfer (CBTT) from the intersessional online discussions taking place on MS Teams since September 2020, the virtual High Seas Dialogues taking place under Chatham House rules on Webex, and the MARIPOLDATA Ocean Seminar Series in which scholars and practitioners present and discuss current issues of ocean governance.

By Paul Dunshirn and Arne Langlet

Widely used in medicine production: deep-sea sponges

How fair and efficient are governance systems based on proprietary rights and global commons?

Marine genetic resources (MGRs)[1] are one of the key issues in the ongoing negotiations towards an intergovernmental legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). In this blog post, we discuss MGRs from a ‘knowledge governance perspective’, focusing on how intellectual property rights (IPRs) and existing access and benefit-sharing (ABS) mechanisms shape ownership and usages of MGRs for the global community of stakeholders. The post sketches out some of the broader implications of this governance setting by drawing parallels to current controversies about the global distribution of COVID-19 vaccines. Throughout both cases, we show how combined attention to both fairness and efficiency of knowledge governance frameworks is necessary for the successful design of international treaties and associated institutions.

Our discussion is largely informed by the recently published MARIPOLDATA publication “Who owns marine biodiversity? Contesting the world order through the ‘common heritage of humankind’ principle” (Vadrot et al., 2021) and the MARIPOLDATA Ocean Seminar webinar from January 27, 2021, with Dr. Konrad Marciniak (Director of the Legal and Treaty Department, Ministry of Foreign Affairs of the Republic of Poland).

Key Arguments

MGRs and IPRs are key issues in the BBNJ negotiations, which raises a variety of questions about the global governance of knowledge resources.
When approaching the governance of knowledge resources, countries should measure the possible avenues against the two factors: fairness and efficiency.
The application of IPRs to medical research is neither fair nor efficient.
Leaving MGRs to the applicable IPRs system is not fair, as it increases inequality concerning the access to and use of MGRs.
Current approaches to govern knowledge on MGRs through ABS systems do not seem efficient because they increase the administrative burdens on scientific research.
The BBNJ treaty could usefully differentiate between public and private research in governing knowledge resources.

Knowledge Governance in BBNJ

The high seas and their organisms remain to a large extent unexplored and unknown. From what is known, however, genetic materials of high and deep-sea organisms can play a fundamental role in fighting diseases and conducting economically valuable pharmaceutical research (World Resource Institute; The Maritime Executive). For instance, COVID-19 rapid tests have been developed using materials from deep-sea bacteria. The drug Remdesivir, an antiviral approved as a treatment for Covid-19 by the U.S. Food and Drug Administration, draws substantially on genetic information extracted from sea sponges (The Maritime Executive).

The current negotiations towards a new BBNJ treaty aim to set rules and strengthen cooperation in researching the High Seas and conserving and sustainably using its biological resources, including MGRs. Introducing such rules and forms of cooperation has become an increasingly important agenda, as the current lack thereof led to conflicts amongst states and other stakeholders in the past (Vadrot et al., 2021). Within the BBNJ, this topic is addressed in the package on MGRs and in discussions about ABS related to these resources.

Most of the value to be gained from MGRs does not lie in the physical samples or the organic materials themselves, but in the scientific knowledge about marine organisms and their genetic makeup. Hence, international governance and cooperation in the context of MGRs is very much a matter of fair and efficient use of knowledge about the oceans – a matter of ‘knowledge governance’ in this sense.

Fairness and Equality in MGR Research

Knowledge about MGRs is politically salient because of its potential economic value and incredibly unequal global distribution (Blasiak et al., 2018). Research into MGRs is costly and requires a high level of investment and scientific capacity – something that only a few countries in the world can afford. It is no secret that “to date, mostly high-income countries have had the financial and other relevant capacities required to conduct marine genetic research and commercial activity associated with the ocean genome” (World Resource Institute). However, the “exploration and sampling of the ocean genome are often conducted in low- or middle-income countries’ ocean territories”, or in ABNJ under no country’s jurisdiction (World Resource Institute). Most countries “lack the resources to undertake the research themselves or to access and use the rapidly growing databases of genetic sequence data” (World Resource Institute). This lack of resources and infrastructures for exploring marine biodiversity has caused a global gap in research (Tolochko & Vadrot, 2021) and the issuing of patents covering MGRs (Blasiak et al., 2018). Exemplifying this, research has demonstrated that 47% of globally registered patents on marine genetic sequences are held by one German company alone (BASF), and 98% of all patent sequences belong to actors in 10 countries, with 165 countries holding none (Blasiak et al., 2018).

Some academics assess the practice of patenting MGRs as contributing to a trend towards more and more exclusive property rights to valuable ocean resources (e.g. Schlüter et al., 2020). Unsurprisingly, countries that cannot participate in this process are highly critical of how these knowledge resources (which may reasonably be considered as global common goods) are made artificially scarce and exclusive through this current lack of a clear governance regime. Thus, demands for more global equality have taken a central role in debates related to the MGR chapter in the BBNJ negotiations (Vadrot et al., 2021). Developing countries have proposed to declare MGRs as Common Heritage of Humankind, which has caused heated arguments throughout the negotiation rounds without any hint to compromise. In his MARIPOLDATA Ocean Seminar presentation, Dr. Konrad Marciniak pointed out that the legal interpretation regarding the opposition between the Common Heritage of Humankind Principle and the Freedom of the High Seas Principle currently remains unclear (Marciniak, 2017, 2020)[2]. Developing countries have argued that the absence of a clear legal interpretation contributes to existing disparities between the global North and South, to the extent that the successful negotiation of the BBNJ agreement hinges on the question of MGRs. In this context, some countries loudly question the global economic order and its fairness (Vadrot et al., 2021).

Efficiency and a Strong Access and Benefit Sharing System

Highly complex ABS systems that are internationally enforced may, however, run the risk of being inefficient. MARIPOLDATA’s observations of the BBNJ negotiations about MGRs show that developing countries favour a strict and enforceable ABS system for MGRs from ABNJ. For instance, the group of Latin American countries (CLAM) proposes a strict tracing of digital sequences through a unique identifier. CLAM sees this as the only way to ensure an effective governance system. To institutionalize this, they propose a mandatory, open, and self-declaratory electronic system in the Clearing-House Mechanism (CHM). This would mean that the CHM includes information on every sample of MGRs taken from ABNJ, filing a unique identifier per sample (and of genetic variants).

An ABS system can only be efficient if it is accepted and used by the scientific community. Representatives of scientific organizations have publicly voiced concerns over a potential ‘over-bureaucratization’ of research that the establishment of new “super” databases and the monetization of access to samples would entail. If all MGRs samples collected from ABNJ need to be registered and identified by the CHM, this may introduce considerable administrative burdens (Rabone et al., 2019). The Nagoya Protocol, which established a rather rigid ABS system, is often cited as a negative example, as it has complicated the access to genetic samples (from land and national waters). In this regard, many researchers stress the substantial difference and intensity of work that lies between biodiversity sampling and the creation of patentable biotechnologies. This ‘gap’ “may have been overlooked during the negotiations and subsequent implementation of the Nagoya Protocol, resulting in an ABS system that often comes at the expense of research for knowledge and conservation” (Arnaud-Haond, 2020, p. 29). Such a system could increase fairness but at the expense of making research inefficient and more complicated.

The argument for IPRs, in particular patents, is that they encourage innovation and safeguard investment in research and development (Posner & Landes, 2003) while being an efficient – market-driven governance tool. The IPR approach is assumed to be efficient because researchers look for property right protection on their own initiative, which in turn assures them the protection of their scientific advancements and secures necessary funding. Hence, IPRs are argued to incentivize scientific research. This has been voiced by many states in the BBNJ negotiations (USA, EU, Japan) that highlight that the conduct and freedom of marine scientific research are paramount to the new agreement.

The efficiency argument for IPRs, however, has become increasingly criticized in recent years. A variety of studies (Baker, Jayadev, & Stiglitz, 2017; Benkler, 2004; Stiglitz, 2006) have shown that an IPRs approach does not necessarily increase innovation but may actually slow it down and increase research costs by forcing researchers to negotiate licensing fees with holders of related patents. Patents are indicated to be responsible for higher prices and monopolies (Benkler, 2004; Heller & Eisenberg, 1998).

Fairness and Efficiency in the context of COVID-19 vaccines

The trend towards more and more exclusive or privatized IPR regimes in the governance of knowledge resources not only takes place in the context of MGRs, but also shapes current controversies about the global distribution of COVID-19 vaccines. In this section, we discuss some of these parallels to clarify the importance of critically evaluating knowledge governance regimes in terms of their efficiency and fairness.

Is the Proprietary Approach to Vaccine Development fair?

The COVID-19 pandemic has cost millions of lives, crippled the economy across the globe, and caused the delay of the BBNJ negotiations, as the fourth and final Intergovernmental Conference (IGC) had to be postponed. Currently, the roll-out of COVID-19 vaccines is a reason for hope (also for the next BBNJ IGC scheduled for August in New York), but also bears potential for conflict. Once again, global inequalities in access to vaccines are widely discussed in many intergovernmental institutions (The Economist; Fortune; UN). Tendencies for countries to prioritize their own access has led to what the new head of the World Trade Organization (WTO), Dr. Ngozi Okonjo-Iweala, has called – ‘vaccine nationalism’ (BBC; Gostin, 2020). Sources estimate that some African countries may receive doses of COVID-19 vaccines only by 2023 (The Economist). Some observers have linked this disparity in access to vaccines to how developed countries have successfully enforced patent protection on vaccines (New York Times). The chief of the World Health Organization (WHO), Tedros Adhanom Ghebreyesus, has stated that “even as vaccines bring hope to some, they become another brick in the wall of inequality between the world’s haves and have-nots” (UN). This observation has not only been heavily discussed within the WHO, but also in many big news outlets (The Economist; Fortune; New York Times), as well as amongst state representatives, health professionals (The Lancet), and NGOs (Médecins Sans Frontières).

This fear is largely triggered by the observed mismatch between demand and supply from the companies licensed to produce the vaccine. There is almost universal demand, but the supply currently does not suffice to even quickly vaccinate substantial parts of the population in wealthy developed countries. It appears that this mismatch is caused by the fact that vaccines against COVID-19 are subject to patents, which means that the vaccine cannot be freely reproduced (Hensher et al., 2020). The companies holding the patents (and knowledge over the Standard Operating Procedures (SOP) that are necessary to produce the serum) have the exclusive right to produce and sell the vaccine. This situation is causing increased criticism of the current practice of licensing and patenting under which the pharmaceutical companies holding the patents (and knowledge over the SOP) occupy a powerful monopolist position. Critics accuse pharmaceutical companies of abusing their monopolist position  – of “choosing profits over human lives” (Zeit).

The fact that a small number of private companies hold patents over these vaccines is questionable, particularly because large amounts of public funding have flown into their research and development. The US has poured an estimated 10.5 billion $ into the research of COVID-19 vaccines (Scientific American). The Moderna vaccine emerged out of a cooperation between the company and the National Institutes of Health in the US (NIH). The EU and its Member States invested 9.8 € billion, out of which 1.4 € billion came directly from the European Commission. The Pfizer-BioNTech vaccine received substantial funding in its development phase from the EU and German public sources (European Investment Bank). AstraZeneca also holds exclusive licenses with no commitment to public access for publicly funded vaccines developed by Oxford University’s Jenner Institute (Hensher et al., 2020). The BBC estimates that public funding substantially supported the research that produced current COVID-19 vaccines. Without heavy public funding, the vaccines would likely not have been developed by now. However, these public investments have not precluded companies from adopting exclusive patenting practices.

This proprietary approach to vaccine development (i.e. an approach that focuses on establishing exclusive patents on pharmaceutical processes and products) has come under fire from different sides. A group of socialist EU lawmakers sent a letter to the European Commission urging the EU executive to explore ways of suspending patents for COVID-19 vaccines, calling it a “moral imperative”. Greece had proposed to the EU member states to jointly buy the patent rights for the COVID-19 vaccine – hence to communalize the patents (Reuters).

Is the Proprietary Approach to Vaccine Development efficient?

Some commentators argue that this proprietary approach has, in fact, slowed down research and development. The behaviour of the Wuhan Institute of Virology at the start of the pandemic is a good case in point. While being located in the epicentre of the pandemic, this institute issued a patent application (in February 2020) on a drug called Remdesivir, even before scientists investigated its effectiveness against COVID-19 (Bonadio & Baldini, 2020). The institute’s first instinct was, instead of sharing crucial data on the virus and giving other research institutes a heads up, to patent a possible treatment. Because of such informational gatekeeping practices, companies and research institutes competing to develop COVID-19 vaccines likely have to replicate basic elements of already existing research, hence, replicating fixed costs, which leads to a higher price of the product (Hensher et al. 2020). This can hamper, or at least slow down the global roll-out of vaccines, increasing the likelihood that the virus will evolve new vaccine-resistant strains (Hensher et al.; 2020).

Observers are also sceptical about how necessary IPRs are for encouraging research and development related to vaccines. For instance, the VFA (Verband Forschender Arzneimittelhersteller), one of Germany’s biggest research-focused drugmakers, argues that IPR protection for COVID-19 vaccines is not necessary for companies to ensure profitable returns on their investments into vaccine development (Bloomberg). This is due to the sheer size of the market: possibly more than 8 billion people need the product. In light of these economic perspectives, companies would be highly incentivized to develop the necessary knowledge and technologies, even if IPRs were not ensured due to the urgent necessity for these products on a global level.

Ways forward – what BBNJ can learn from the COVID-19 crisis

As we have shown in this post, international debates about MGRs and COVID-19 vaccine development revolve around a multitude of similar political and economic issues. We have argued that the global COVID-19 pandemic while being catastrophic in its own right, provides an opportunity for evaluating and possibly improving existing governance regimes. We have discussed the two dimensions of fairness and efficiency as important points of consideration for any possible institutional adjustments. In closing, we point out a few concrete avenues for policy makers to follow in addressing existing deficiencies and designing future-oriented knowledge governance frameworks.

Compulsory licensing

In the context of COVID-19 vaccines, countries such as South Africa and India are pushing for an alternative approach to intellectual property under WTO rules, known as “compulsory licensing” (CNBC). A compulsory license suspends the monopoly effect of a patent holder to produce and supply the product. While controversial, compulsory licenses allow eligible drug-makers to legally manufacture and sell copycat versions of patented drugs during national emergencies, public health crises, or in other instances of extreme need. “As a form of compensation for the original patent holder, the competent authority […] would require manufacturers to pay a fair market price” for the drug (Bonadio, 2020, p.391). When it comes to developing countries that do not have access to COVID-19 vaccines, the EU is willing to discuss several patent options in the framework of the WTO (Euractiv). Under WTO rules, the granting of compulsory licences without the patent owner’s consent can be fast-tracked in emergencies such as the current pandemic.

While compulsory licensing has some potential to enhance fairness and efficiency in the development and distribution of vaccines for the global population, it should probably not be considered an all-in solution for a number of reasons. Granted cases of compulsory licensing seem to be largely based on voluntary commitments from the industry and to emerge as ad-hoc legal solutions to these structural problems. In the long run, we may need a system that fosters knowledge sharing not only in such extreme cases as a global pandemic but also in normal situations. Additionally, we may ask why no compulsory licences on COVID-19 vaccines have been granted to any country so far. Indeed, developed countries within the WTO are currently blocking these proposals to protect their pharmaceutical industries (New York Times), which is indicative of the political dynamics within the WTO.

Open knowledge commons approaches

Other voices have called for substantial reform of global health law to guarantee more equal access to scientific progress (Gostin, Karim, & Mason Meier, 2020), for instance by formulating access to vaccines as a universal human right (Gostin et al., 2020). Related to this idea are various other discourses in the context of MGRs, framing them as ‘open knowledge commons’, ‘global public goods’, or as ‘common heritage’ (Gostin et al., 2020; UN[3]). As described throughout this post, particularly Southern countries advocate ideas of open knowledge commons, while countries of the Global North tend to oppose them.

Knowledge sharing: scientific vs. economic

Another possible consideration for the design of knowledge governance frameworks is the possibility to differentiate between public and private research. In the context of the BBNJ negotiations, public research could potentially be excluded from any access or benefit-sharing regulation as long as the data would be freely available. To facilitate more equal access to research and its outcomes, intensive capacity building needs to be undertaken to allow developing countries to reduce the research gap. At the same time, scientists’ preferences should be reflected in the Treaty draft text. In relation to the CHM, scientists prefer a sort of meta-database that streamlines “processes by providing documentation, guidance, and links to existing platforms and databases relevant to MGR” (Rabone et al., 2019; p.17). They also advocate voluntary commitments to a set of common principles, such as FAIR data and open access (Rabone et al., 2019; p.17).

While these principles and the policy of open data sharing are well established in most scientific contexts, this is not the case for the economic sector and research undertaken therein. The difference between scientific and economic research practices may be well exemplified in the COVID-19 case: “While genomic information on SARS-CoV-2 has been extensively shared amongst a worldwide network of researchers (Nature), current efforts to develop more than 150 candidate vaccines for COVID-19 are highly fragmented (Lancet)”. It is indeed likely that salaried scientists are motivated to work for the public good and tend to see data sharing and open knowledge as incentivizing to improve their research, while private research is much more profit-oriented (Hensher et al., 2020). International policymaking could benefit from recognizing this difference when designing treaties, for example by encouraging forms of peer-to-peer (P2P) generated and publicly funded research and development with an orientation towards the benefit of humankind.

Entering the digital age, the questions presented in this blog will only engrave, which means that fair and effective knowledge-sharing solutions are urgently required. As we discussed in this blog, ongoing information gatekeeping practices in the production and distribution of the COVID-19 vaccine are already driving conflicts between states and world regions. For the BBNJ negotiations, the case of the vaccines may serve as an important call for seriously considering the dimensions of fairness and efficiency in the governance of MGRs. If successful, the BBNJ treaty can become a role model for subsequent knowledge and information-sharing frameworks at the international level, reaching far beyond the immediate issues of ocean governance. More so, it can become an example of global solidarity and serve to counteract some of the existing global inequalities in relation to knowledge resources.

[1] The Convention on Biological Diversity (CBD) defines genetic resources as genetic materials of plants, animals, or microorganisms of (potential) value for future generations of humanity (CBD workshop, Ottawa 2009).

[2] All views expressed by Dr. Konrad Marciniak are personal only and do not necessarily represent the official position of the Government of Poland.

[3] United Nations, Committee on Economic, Social and Cultural Rights, General comment No. 25 (2020) on science and economic, social and cultural rights (article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights), Geneva: United Nations; 2020, U.N. Doc. E/C.12/GC/25.

References

Arnaud-Haond, S. (2020). Mind the Gap between Biological Samples and Marine Genetic Resources in Areas beyond National Jurisdiction: Lessons from Land. In New Knowledge and Changing Circumstances in the Law of the Sea (pp. 29-39): Brill Nijhoff.

Baker, D., Jayadev, A., & Stiglitz, J. E. (2017). Innovation, Intellectual Property, and Development. Retrieved from https://cepr.net/images/stories/reports/baker-jayadev-stiglitz-innovation-ip-development-2017-07.pdf

Benkler, Y. (2004). Commons-based strategies and the problems of patents. In: American Association for the Advancement of Science.

Blasiak, R., Jouffray, J.-B., Wabnitz, C. C. C., Sundström, E., & Österblom, H. (2018). Corporate control and global governance of marine genetic resources. Science Advances, 4(6), eaar5237. doi:10.1126/sciadv.aar5237

Bonadio, E., & Baldini, A. (2020). COVID-19, patents and the never-ending tension between proprietary rights and the protection of public health. European Journal of Risk Regulation, 11(2), 390-395.

Gostin, L. O., Karim, S. A., & Mason Meier, B. (2020). Facilitating access to a COVID-19 vaccine through global health law. The Journal of Law, Medicine & Ethics, 48(3), 622-626.

Heller, M. A., & Eisenberg, R. S. (1998). Can patents deter innovation? The anticommons in biomedical research. Science, 280(5364), 698-701.

Hensher, M., Kish, K., Farley, J., Quilley, S., & Zywert, K. (2020). Open knowledge commons versus privatized gain in a fractured information ecology: Lessons from COVID-19 for the future of sustainability. Global Sustainability, 3.

Marciniak, K. (2017). Marine Genetic Resources: Do They Form Part of the Common Heritage of Mankind Principle? In C. S. L. Martin, C. Hioureas (Ed.), Natural Resources and the Law of the Sea: Exploration, Allocation, Exploitation of Natural Resources in Areas under National Jurisdiction and Beyond (pp. 373-406).

Marciniak, K. (2020). The Legal Status of Marine Genetic Resources in the Context of BBNJ Negotiations: Diverse Legal Regimes and Related Problems. In New Knowledge and Changing Circumstances in the Law of the Sea (pp. 40-64): Brill Nijhoff.

Posner, R., & Landes, W. (2003). The economic structure of intellectual property law. Harvard University Press.

Rabone, M., Harden-Davies, H., Collins, J., Zajderman, S., Appeltans, W., Droege, G., . . . Horton, T. (2019). Access to Marine Genetic Resources (MGR): Raising Awareness of Best-Practice Through a New Agreement for Biodiversity Beyond National Jurisdiction (BBNJ). Frontiers in Marine Science, 6, 520. doi:10.3389/fmars.2019.00520.

Schlüter, A., Bavinck, M., Hadjimichael, M., Partelow, S., Said, A., & Ertör, I. (2020). Broadening the perspective on ocean privatizations: an interdisciplinary social science enquiry. Ecology and Society, 25(3).

Stiglitz, J. E. (2006). Making globalization work. London: Allen Lane.

Tolochko, P., & Vadrot, A. B. (2021). The usual suspects? Distribution of collaboration capital in marine biodiversity research. Marine Policy, 124, 104318.

Vadrot, A., Langlet, A., Tessnow von Wysocki, I. (2021). Who owns marine biodiversity? Contesting the world order through the ‘common heritage of humankind’ principle. Environmental politics.

 

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Does COVID-19 pave the way for digital diplomacy? Some insights from studying marine biodiversity negotiations

For more than a decade, governments have been trying to agree on the cornerstones of a new international instrument to protect marine biodiversity beyond national jurisdiction (BBNJ). In 2020, the international community was close to concluding negotiations on a new treaty at its fourth and meant to be the final Intergovernmental Conference (IGC4) scheduled for the end of March, when COVID-19 measures made it impossible to continue in-person formal international negotiations in the New York headquarters.

A survey to respond to the COVID-19 impact on our research

As researchers studying the BBNJ process “on-site”, we learned from the postponement of IGC 4 only a few weeks before the actual event took place. Not knowing how long the COVID-19 pandemic would continue to threaten our lives- and certainly not assuming that it would master our world for more than a year- I thought about possibilities to study the process further and find out how multilateral diplomacy responds to such a crisis.

During these early days of COVID-19, when the national lockdowns became the “new normal” in all parts of the world, I developed the idea of an online survey to reach out to diplomats and other stakeholders engaged in the BBNJ process. I intended the survey to be both a route out of the impasse of a disappearing object of research and a project that the whole MARIPOLDATA team would be engaged with; a measure which I hoped would enable us to explore new ways of working collectively during the first phase of home office, which was entirely new and challenging for us.

When we started to discuss ideas and draft the survey, we noticed many scholars’ rush to use survey methods to reach out to all kinds of audiences and target groups to assess the impact of COVID-19 on our everyday lives. Would it be ethical to ask people during times of crisis to participate in our research, and would the BBNJ community welcome our work? When noticing that after a first stage of shock, several NGOs and scientists started to launch online webinars and circulate BBNJ related contents, I was reassured that there was enough momentum for initiatives seeking to keep the BBNJ treaty negotiations high on the political and public agenda. Many people interested in the BBNJ process seemed to use the additional time released by the global lockdowns to further engage in BBNJ related issues by diving deeper into the different package elements of the treaty and engaging in debates outside of the negotiation room.

Will digital diplomacy become the new normal?

In order to capture these activities and how they may affect the future agreement, we designed our survey around our research interest in understanding changing communication patterns and the potential of online formats for state and non-state interaction. Furthermore, it was our ambition to contribute to maintaining momentum by widely disseminating the survey and selecting ideas on how to move on with the BBNJ process despite the pandemic. Our online survey was run in May 2020, accessed by 709 persons, and completed by 105 respondents, many of them participating in the negotiations as national delegates or non-state observers.

Our results suggest that the effects of online tools on participation and inclusiveness appear to determine how actors perceive virtual arrangements’ suitability to continue formal negotiations of any sort online. When asked whether online negotiations made the BBNJ process more inclusive, state actors and nonstate actors responded quite differently. State respondents—who tended to answer no—argued that the process was “already quite” or “highly” inclusive. Nonstate respondents drew a different picture, pointing to the challenges of physically attending IGCs. Some mentioned that attending online negotiations may be cheaper and less time consuming: They also pointed to groups that might benefit, including delegations from developing countries, local and Indigenous peoples, and marginalized communities with limited resources (Vadrot et al. 2021, p. 9).

Need for new methodologies and concepts

We also learned about several online initiatives taking place, including the “High Seas Treaty Dialogues” organized by an alliance of ocean-related NGOs supported by the governments of Belgium, Costa Rica, and Monaco. I was lucky to participate in these talks. When observing the interaction between participants in the online room, I quickly noticed the need to think more carefully about the potential of online formats in the context of multilateral negotiations, the limitations that these tools have, and the need to study further the role of digital tools in international negotiation settings and how it would affect (digital) diplomacy in the future. While the broad range of online initiatives and high participation by states is a clear indicator for the commitment to both a new treaty to protect marine biodiversity and multilateralism as a way to negotiate environmental protection at the international scale, current digital diplomatic efforts are still not designed for the purpose of treaty making.

Still, online dialogues already carry meaning because they are built on “old” practices of engaging in the diplomatic realm while enacting new practices online. Hence, will we see extended use of digital tools in environmental negotiations after COVID-19 has passed? What will be the impact on power constellations, inclusiveness, and trust relations that many respondents of our survey view to be the main reason why digital diplomacy will not become the new normal. How can we make sense of the different digital forms of interaction among states, including the virtual BBNJ intersessional work that uses MS Team and Webex to allow informal exchange among delegates in preparation of IGC 4? Can we conceptualize these forms of interaction in terms of digital diplomacy, and if yes, how can we study such digital diplomatic practices in the future?

One route that we explore in our recently published research note in Global Environmental Politics, where we also summarize our survey’s key results, is to adapt the methodology of digital ethnography to the negotiation site’s specific needs. As scholars interested in the role of international negotiations for protecting our environment, we need to be prepared to adapt our concepts and methods to capture continuities and disruptions in global environmental politics in a post-COVID world. It remains to be seen whether and how digital practices will transform multilateral diplomacy and environmental agreement making in the future.

For more information on the survey study, please see https://www.maripoldata.eu/research/#survey

To access our publication “Marine Biodiversity Negotiations During COVID-19: A New Role for Digital Diplomacy?” please go to https://doi.org/10.1162/glep_a_00605

To access the full report of our study results, please go to https://www.maripoldata.eu/wp-content/uploads/2021/03/MARIPOLDATA_Special_Report_COVID-19-and-the-BBNJ-negotiations_March_2021.pdf

 

Speech is silver – Science is gold: The Voice of Science within UN negotiations for the Ocean

The United Nations are currently negotiating a new Agreement for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). This agreement seeks to regulate the access to and sharing of benefits from marine genetic resources (MGRs), to establish area-based management tools (ABMTs), including marine protected areas (MPAs) on the High Seas, to assess the impact of activities on the marine environment through environmental impact assessments (EIAs), and to strengthen marine scientific research and guarantee capacity building and technology transfer (CB&TT). The recently published article “The Voice of Science on Marine Biodiversity Negotiations: A systematic Literature review” by Ina Tessnow-von Wysocki and Alice Vadrot informs international ocean governance by untangling the complex BBNJ negotiations, highlighting the policy relevance of existing work, and facilitating links between science, policy, and practice.

Science and Knowledge on Marine Biodiversity Negotiations

Photo credits: Ines Alvarez on Unsplash

Oftentimes, it is expected that international policy-decisions are based on the “best available science and knowledge”,  especially when areas and resources at stake are “global commons” and belong to no one and everyone at the same time. This is the case with the ocean, where state governments are currently negotiating about the future of marine biodiversity in areas beyond national jurisdiction. But what is meant by such “best available science and knowledge” remains undefined. Various stakeholders are valuing different forms of knowledge and grant science and knowledge of different powers regarding decision-making about activities on the High Seas. Most people agree that regulating the ocean should be based on sound knowledge, retrieved by scientific methods, and approved through peer-review of other scientists before publication. Increasingly, there are calls to integrate other forms of knowledge, including traditional knowledge of Indigenous Peoples and Local Communities, and local knowledge of practitioners, civil society and the private sector.

The interdisciplinary and international team of the ERC project MARIPOLDATA researches the role of science in the BBNJ negotiations through a multi- and mixed-method approach, using event ethnography at the intergovernmental conferences to collect qualitative and quantitative data, as well as bibliometric data, combined with network analysis and oral history interviews. In this way, the team maps existing marine biodiversity research and identifies collaborations on the global scale, explores the different scientific capacities of state actors in the negotiations and studies the authority of existing intergovernmental organisations within the BBNJ regime complex, portrays differences in state positions regarding key BBNJ issues and looks at case studies of specific regions within the BBNJ context. One key pillar of the MARIPOLDATA project is researching how science and knowledge influence the treaty-making process and how science-policy interrelations can be improved at different policy-making stages.

In this regard, the recently published systematic literature review serves as an up-to-date summary and analysis of scientific publications on the BBNJ process, compiling main priority topics and recommendations from 140 multidisciplinary, geographically diverse publications. Our literature review focuses on the peer-reviewed scientific findings that scholars have published on the BBNJ process. To find out what the scientific community writes about the BBNJ Agreement, we were interested in the questions: Which issues are prioritized in BBNJ research and the academic debate? Which best practices were identified and discussed in the literature that can serve as guiding principles and approaches? And what is currently missing in the debate about the future regulatory framework to protect and sustainably use marine biodiversity?

At the moment, the ongoing BBNJ negotiations have been indefinitely postponed due to the COVID-19 measures around the globe. However, informal and semi-formal online discussions continue to take place, in the form of “High Seas Online Dialogue”, organized by certain state and non-state actors, and Intersessional Work – an online platform- organized by the UN Secretariat to keep the momentum and progress towards consensus.

The time is now to approach policy-makers with the most recent scientific findings on BBNJ. At the same time, final decisions about the future of the ocean and marine biodiversity have still not been made. Within this intersessional period, there is the opportunity for recent scientific findings on BBNJ to make their way to the policy-makers’ negotiating table, and – by being put into context – to be perceived as politically relevant to be taken into consideration when negotiating the next (final) BBNJ round. In this regard, our literature review serves as a tool to untangle the complex BBNJ issues for newcomers in the field. It gives an overview of all existing work on BBNJ since the early beginnings of the process and provides insights on the latest scientific findings relevant to BBNJ.

The wave of Scientific Literature published along the BBNJ pathway

Photo credits: Lysander Yuen on Unsplash

The BBNJ process started in 2006 with the first meetings of the Ad Hoc Open-ended Informal Working Group and transitioned into Preparatory Committee meetings, and finally, formal negotiations – the intergovernmental conferences, taking place in the New York UN Headquarters since 2018, which are supposed to end with the next upcoming IGC-4.

Throughout the BBNJ process, there have been many academic contributions regarding the process in the form of new scientific findings, case studies, geospatial analyses, and law reviews by authors from multiple disciplines, including oceanography, marine biology, conservation science, political science, and law. Publications on BBNJ issues and the number of new authors in this field have been growing throughout the process.

There is often little time to go through hundreds and hundreds of scientific publications, many of which are often only accessible with certain rights for academic journals and written in scientific jargon of the particular discipline. We, therefore, provide a timely overview of what is “out there” of findings, analyses, studies, and recommendations for the new agreement and critically reflect on this corpus of literature – a review intended for researchers from diverse academic disciplines in the natural and social sciences, policy-makers, and practitioners. The systematic literature review serves to capture all academic publications related to the BBNJ Treaty from the database “Web of Science,” complemented using the snowball method to include additional sources from reference lists of relevant publications[1]. The sample includes all publications referring to the BBNJ negotiations or directly relevant to the BBNJ process – since before the official start of BBNJ meetings in 2004 until 2020. More recently published articles were not analyzed in detail but mentioned in the discussion section of the review to ensure timeliness and policy-relevance for the upcoming – and planned to be last – intergovernmental conference. We observe a high increase in BBNJ publications in 2014 with a special issue on this topic, as well as a general growing BBNJ literature starting from the beginning of the Preparatory Committee in 2016. The analysis ends in May 2020, but there have been many contributions in the second half of 2020, which is expected to continue with ongoing BBNJ online discussions until the next conference and beyond.

Scientific Publications along the BBNJ Pathway

A large amount of the scientific literature we analyzed aims to directly inform the BBNJ agreement by identifying areas in need of protection, outlining consequences of certain activities on the marine environment, pointing to best practice examples and lessons learned from past experiences with international implementing agreements of UNCLOS, or other international and regional frameworks seeking to conserve or sustainably use marine species or genetic resources. Therefore, such a review is critically relevant to consider for researchers studying BBNJ, state representatives forming their positions in the negotiations, and non-state actors and civil society being involved in the process. The academic literature is valuable for scientists to make a connection to their research, serves as a knowledge base on BBNJ and is significant for policy-makers to make informed decisions about how to regulate, use and protect the marine environment for current and future generations, as well as for planet Earth in its own right.

The Voice of Science is calling

The review presents recommendations made in the scientific literature sample for each of the four package elements of the future treaty. It first examines the main challenges facing the current ocean governance framework identified in the literature and potential solutions offered by the package elements. Second, it provides for each of the BBNJ package elements: a) a compilation of scientific findings and identified priority areas, b) suggested guiding principles, approaches, and recommendations, c) references to existing law, d) best-practice examples and lessons learned and e) recommended institutional entities for implementation. Further, our review elaborates on overarching topics across package elements named by BBNJ authors, which need to be considered in the negotiations if objectives for conservation and sustainable use of marine biodiversity are to be met. These include ocean connectivity, the relationship between BBNJ and existing instruments, institutional design; the role of science in BBNJ; and digital technology.

Marine Genetic Resources (MGRs)

Under the existing ocean governance framework, set by the UN Convention on the Law of the Sea (UNCLOS), the water column of the High Seas is regulated under the “Freedom of the High Seas” principle, granting states the freedom to access and use these areas and resources under certain environmental standards. However, the seafloor in these areas is governed under the principle of the “common heritage of humankind”, guaranteeing all states an equal share of financial and other economic benefits derived from the exploration and exploitation of mineral resources. There is legal uncertainty about living marine resources, which resulted in an international debate about the regulation of their exploitation. As the access to marine genetic resources and the sharing of benefits resulting from their use (e.g. from the development of pharmaceutical products) for areas beyond national jurisdiction is not regulated under the current framework, there is a need to fill this gap with the new agreement. While the potential economic value of such MGRs remains uncertain, an increasing interest in these resources is identified in the BBNJ literature, sparking debates on the imbalance between developed and developing countries in undertaking marine research and using marine genetic resources for product development. One part of the BBNJ authors analyses and recommends ways to approach potential access and benefit-sharing systems for marine genetic resources under the new agreement, which we lay out in the literature review.

Area-based Management Tools (ABMTs),

including Marine Protected Areas (MPAs)

Scientists in the BBNJ literature point to the worsening state of marine biodiversity, calling into mind various harmful human activities, including climate change and other anthropogenic stressors, such as overfishing, destructive fishing practices, shipping, pollution and, the need for urgent action to reverse biodiversity loss. Within the sample of publications, valuable management recommendations can be found. Area-based management tools, including marine protected areas, are considered an important marine conservation tool by the BBNJ scientific community. As under the current ocean governance framework, there is no global responsible body for the establishment of ABMTs, including MPAs in areas beyond national jurisdiction. The BBNJ instrument offers the potential to fill this gap. Considering the ocean connectivity of various forms, recent BBNJ authors suggest new ways of thinking about area-based management tools, leaving options open to consider climate change and cumulative impacts, as well as dynamic management when designing such conservation and sustainable use tools. Marine areas, already identified as “ecologically or biologically significant” (EBSAs) could form the basis for the new establishment of High Seas ABMTs, including MPAs. Moreover, scientists identify areas in need of protection and recommend these sites for protected area establishment. An ecosystem-based approach and a representative network of MPAs are recommended for the BBNJ agreement.

Environmental Impact Assessments (EIAs)

Embedded in a strong legal framework, environmental impact assessments have the potential to predict, reduce and even prevent environmental harm. Within national jurisdiction, EIAs seem to be advanced; however, in areas beyond national jurisdiction, BBNJ authors see the potential for improvement. In the light of emerging activities in the marine environment, there is a need for a stronger framework to develop and implement EIAs in ABNJ, and a clear EIA process, taking climate change and cumulative impacts into account.

Capacity Building and Transfer of Marine Technology (CB&TT)

Areas beyond national jurisdiction are over 200 nautical miles (around 370 kilometres!) away from the coastlines. The deep seafloor lies several thousand meters below the ocean surface. It is obvious that to undertake marine research under these conditions, a high level of technology and equipment is necessary. Besides physical samples of MGRs, digital sequence data of these resources are of interest to research and industry. Currently, however, only a handful of countries from the Global North are undertaking exploration and exploitation of marine genetic resources and have the capacity to participate in the development of products. Academic literature on BBNJ discusses the imbalance between developed and developing countries in conducting marine research and developing products from MGRs and differences in the capacity to implement conservation measures and undertake monitoring, control and surveillance. The pillar of capacity building and transfer of marine technology is crucial to guarantee a just agreement and ensure effective implementation and enforcement.

Beyond the BBNJ package elements

Scientists from a range of disciplines writing on BBNJ issues agree: the ocean is one. Numerous interconnections have to be accounted for when discussing the exploitation of marine genetic resources, the establishment of marine protected areas and the assessment of environmental impacts. BBNJ authors explain different forms of ocean connectivity and its relevance to the BBNJ negotiations. Human activities can significantly harm marine species and whole ecosystems, but listening to science could prevent major harm. While the BBNJ scientific community is diverse, scientists consensually agree that the marine environment needs to be dealt with in precaution and be managed holistically, as a connected system. This recognizes that activity in one place of the ocean (e.g. fishing in the water column) can negatively impact other parts where the link might not be immediately obvious (e.g. impacts on the marine biodiversity on the seafloor). Also, the ocean and the climate are interlinked, meaning that changes in the marine environment can be triggered by the climate and major variation in ocean cycles can result in changes in the global climate.

Significant discussions in the literature regard how the new instrument will interplay with existing instruments and the composition of the new BBNJ instrument with its internal arrangements. The literature provides an explanation of the three institutional models that have been envisaged for BBNJ within existing mechanisms and organisations, namely Regional, Hybrid and Global and analyses specific examples of relationships between BBNJ and existing instruments. One part of the BBNJ authors provides analyses of possible institutional arrangements, including a Conference of the Parties (COP), a Scientific and Technical Body, a clearing-house mechanism (CHM), and a financial mechanism, as well as provide ideas for implementation and compliance of the agreement.

Science plays a crucial role in all BBNJ package elements. Knowledge on the ocean and its ecosystems is necessary to understand the world’s ecosystems and use the ocean’s resources for product development in the pharmaceutical, biofuel, and chemical industries and to protect marine biodiversity. Some BBNJ authors emphasize the need for scientific cooperation in BBNJ, coupled with capacity building and marine technology transfer. There seems to be a general agreement that science is needed in the decision-making process. Still, there is no universal definition of the knowledge forms and no consensus on what tasks and powers would be appropriate for a scientific and technical body. Some BBNJ authors provide best practice examples and lessons learnt from existing science-policy interfaces in ocean governance institutions.

Another part of the BBNJ literature regards the overarching theme “digital technology”. It is identified as important to develop products from MGRs using digital sequence data. Moreover, it also contributes to the conservation of species through understanding migratory routes. Satellite data can support the identification of mobile MPAs, as suggested recently by some BBNJ authors.

Furthermore, monitoring, control and surveillance measures can significantly be improved through automatic identification system (AIS) which uses satellites to transmit real-time data of fishing vessels’ location. Such technology is particularly helpful in ABNJ, as these areas are largely remote and not easily accessible for physical monitoring. The NGO Global Fishing Watch is using such technology to track global fishing activities in real-time.

Photo credits: Global Fishing Watch

Will BBNJ blow a wind of change against the stormy sea?

As responsible policy-makers, researchers, civil society actors and parts of the private sector- with this knowledge – we can no longer continue the “business as usual” but need to be open to alternative forms of living in harmony with nature. Based on the review, we identify two important gaps in the BBNJ literature that need to be addressed if we are to conserve marine biodiversity in international waters: the science-policy interfaces and the need for transformative change.

The need to consider science in the ongoing BBNJ negotiations to conserve and sustainably use the ocean effectively does not seem to be disputed by many, however, how such interaction between science and policy takes place is not sufficiently studied. Ways through which science and knowledge reach policy-makers and under what conditions such findings impact the negotiations are yet to be identified. Formalized processes are required to guide the integration of science and other forms of knowledge, including local and traditional knowledge of Indigenous Peoples and Local Communities. Moreover, an independent expert body for BBNJ, which is currently discussed at the BBNJ negotiations, is necessary to implement the treaty’s targets successfully.

Need for transformative change

To understand the roots of the anthropogenic threats to the ocean, social, political and economic factors need to be considered. The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) recognized that biodiversity loss could only be reversed by introducing transformative change into our societies. Such debate is not (yet?) visible in the BBNJ context, but is important to reflect on when seeking to conserve and sustainably use the ocean. Existing economic, political and social structures have led to the dramatic state in which the ocean is now. Reversing such damage, thus, requires to re-think the “business as usual” and imagine alternatives.

There is a need to uncover the politics behind tensions in the negotiations, including competing environmental values and legitimate knowledge. In the light of negotiating global commons, we need to examine if the existing structures ensure adequate representation of the international community and consider the idea to represent future generations and nature in itself. With our critical view on the corpus of BBNJ literature and the identification of gaps, we encourage to develop ideas and ways forward – without taking the “business as usual” within existing political, economic and social boundaries as a given – and to think beyond such structures for creating new regulations for marine biodiversity that serves all of humanity and contributes to a healthy ocean for its own right.

Open Access to full article: Tessnow-von Wysocki, I. and Vadrot, A. 2020. The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review. Frontiers in Marine Science 7: 614282.

Past MARIPOLDATA blogs about the BBNJ negotiations:

Key findings from our study of the marine biodiversity field and why our data matters for the new BBNJ treaty by Alice Vadrot and Petro Tolochko, December 22, 2020

Slow progress in the third BBNJ meeting: Negotiations are moving – but sideways, by Ina Tessnow-von Wysocki on September 6, 2019

Setting the stage for the common heritage of humankind principle: Diving into further negotiations on a new marine biodiversity treaty, by Alice Vadrot, Ina Tessnow-von Wysocki and Arne Langlet on August 28, 2019

Impressions from the second week of BBNJ negotiations and why they became political in the end, by Alice Vadrot and Arne Langlet on April 15, 2019

Key findings from our study of the marine biodiversity field and why our data matters for the new BBNJ treaty

Governments are currently engaged in Online Intersessional work to keep the momentum for a new Treaty to protect marine biodiversity beyond national jurisdiction (BBNJ). While online formats do not replace formal negotiations, they provide delegates with additional time to exchange their views on contentious and unresolved issues in the draft treaty text. Based on our observations of the Intergovernmental Conferences in 2019, we can confidently say that marine biodiversity research accounts for a critical conflict line between developed and developing countries. In the following, we will further develop this argument and introduce some findings and recommendations from our new paper “The Usual Suspects? Distribution of collaboration capital in marine biodiversity” recently published in Marine Policy.

Imbalances in Ocean Science as Key Issues of the new BBNJ Treaty

The unequal global distribution of ocean science, together with the lack of sufficient scientific and technological capacities to explore and exploit marine biodiversity in the global South, are repeatedly referred to as crucial issues that the new BBNJ Treaty should address. Firstly, to account for the idea that the protection of BBNJ is a common concern of humankind and that developing countries should be empowered to contribute to conservation measures (e.g. identification, designation, management, and monitoring of MPAs, contribution to EIAs) by their means. Secondly, to reduce global inequalities in exploring and exploiting “global commons”, by transferring the capacities and technological tools to use marine biodiversity in the High Seas to those that have historically been excluded from doing so.

Not surprisingly, under UNCLOS Article 242, “States and competent international organizations shall promote international cooperation in marine scientific research for peaceful purposes.” Acknowledging “rapid advances being made in the field of marine science and technology,” UNCLOS “urges the industrialized countries to assist the developing countries in the preparation and implementation of their marine science, [and] technology” (UNCLOS 1992, Annex 6). Thus, while scientists and governments seem to agree that scientific cooperation is needed to reduce global imbalances in marine science, progress in defining and assessing “the special interests and needs of developing countries” (UNCLOS Preamble) has been slow.

Studying global imbalances in the marine biodiversity field

It is against this background that MARIPOLDATA proposes looking at the BBNJ Treaty negotiations by combining ethnographic work at the negotiation site with bibliometric analyses of the marine biodiversity research field. The treaty negotiations – most notably concerning the package element “Capacity Building and Marine Technology Transfer” – demonstrate the need for careful analyses of the global distribution of ocean science and developing countries’ needs.

The article we recently published in Marine Policy is intended as a first step into an analysis of the Marine Biodiversity science field from a social science perspective. Since marine biodiversity has firmly established itself is a political dimension (e.g., Biodiversity Beyond National Jurisdiction (BBNJ) negotiations at the UN), it is in a relatively unique position in that it has the potential to matter and influence political decision making, thus making it a fascinating case study for political scientists. Our paper has introduced a new concept of “collaboration capital”, which is derived from a co-authorship network of countries engaged in the production of marine biodiversity scientific literature. This concept is inspired by Pierre Bourdieu’s notion of ‘capital’ and views international scientific collaboration as a finite resource that countries can allocate to each other within a given time-frame.

Key findings

The main findings show that within the field of marine biodiversity the usual suspects (mainly the US and Europe) possess the vast majority of collaboration capital, with other regions allocating their share of collaboration capital to the US and Europe, often neglecting to foster intra-regional collaboration. More specifically, our data indicate that the marine biodiversity field shows the following properties:

  • Since the 1990s, interest in “Marine Biodiversity” as a scientific field has grown enormously (24,286 scientific publications)
  • Average annual growth rate of 15.77% compared to an average of 4.55% for the total WoS Core Collection repository
  • 91% of papers in the data set were co-authored by two or more researchers
  • 41% by researchers from two or more different countries
  • USA (52.5), Sweden (47), and Canada (43.9) are the top-cited countries
  • Brazil (with the largest scientific output in South America) averages only 9 citations per paper, on a par with Mexico (12.0) and Argentina (11.9).
  • China has a noticeably smaller paper citation rate among the rest of the group: 9 contrasted with the top 10 average, 39.6 (SD = 7.39)
  • The USA received most collaboration capital: consistently stays at the top with 54 largest proportional allocations in 1990–2009 and 83 in 2010–2018 timeframes.
  • South American, African, and Asian countries are generally focused either on the United States or European countries as their prime collaboration partners.

These dynamics leave the regions of the global South with an underdeveloped research network that may impact their positioning in the political arena, specifically, but not limited to, at the BBNJ negotiations.

Figure 1:Geographic distribution of the total amount of articles and average citation count by country, 1990–2018 (Source: Tolochko & Vadrot 2021)

Implications for BBNJ Treaty negotiations

The current study has implications for scientists and practitioners invested in the protection of the marine environment and the design of institutional arrangements and activities to foster scientific collaboration between countries and regions. Particularly, efforts to institutionalize science advice and capacity building at the national, regional, or international scale should take the structural conditions and effects of international scientific collaboration into account. As was argued earlier, scientific cooperation is key for supporting the development and implementation of marine conservation in and beyond national jurisdiction, yet, our data reveals substantial differences between cooperation patterns of developing and developed regions that may potentially hinder regional research networks.

Addressing these differences as part of the negotiations around a new legally binding instrument to protect marine biodiversity in areas beyond national jurisdiction is important because the treaty may have direct ramifications for the practice of ocean science, including potential restriction for marine scientific research to account for global inequalities between the Global North and the global South. Access to marine biodiversity, more specifically to marine genetic resources (MGRs), is a high-stakes item for current negotiations; it involves complex scientific endeavours in which considerable investments, often government-funded, are made. Demands by countries of the global South for equal access to MGRs and the fair distribution of benefits resulting from their use are inherently tied to the unequal scientific capacities to explore and exploit those.

Capacity building and marine technology transfer (CBMTT) is another point of contention within current negotiations, for the demands of developing countries exceed what developed countries are willing to concede. CBMTT and scientific cooperation between governments of the global North and global South may have the potential to reduce some of the inequalities resulting from the resource and equipment-intensive character of marine scientific research. CBMTT in the new treaty should give primacy to the regional scale, for instance, by recommending that bilateral CBMTT arrangements should include research institutions or individual scientists from neighbouring countries.

What does it mean for future research?

The findings complement existing studies demonstrating deeply rooted inequalities between the global North and South in exploring marine biodiversity and calls for future research into the practices and effects of scientific collaboration in different regions and at different scales. It may be useful for future investigations of scientific collaboration in diverse fields of ocean science at the macro and micro levels of scientific practice.

Future studies may, for instance, look into how different regions contribute to specific topics or sub-disciplines, whether authors engage in ’strategic’ collaboration to shape their position or strategically use their collaboration capital, e.g., to gain access to marine environments, genetic resources, or other data. The results should be of interest to a broad spectrum of readers, including marine scientists, policy-makers, conservationists, and social scientists interested in science-policy interrelations. They may entice more in-depth investigations into the causes of structural imbalances in marine biodiversity research and anticipate critical, innovative thinking on how to overcome them in the future.

Open Access to full article: Tolochko, P. and Vadrot, A. 2021. The usual suspects? Distribution of collaboration capital in marine biodiversity research. Marine Policy 124 (2).

Past MARIPOLDATA blogs about the BBNJ negotiations:

Slow progress in the third BBNJ meeting: Negotiations are moving – but sideways, by Ina Tessnow-von Wysocki on September 6, 2019

Setting the stage for the common heritage of humankind principle: Diving into further negotiations on a new marine biodiversity treaty, by Alice Vadrot, Ina Tessnow-von Wysocki and Arne Langlet on August 28, 2019

Impressions from the second week of BBNJ negotiations and why they became political in the end, by Alice Vadrot and Arne Langlet on April 15, 2019

 

Blog written by Alice Vadrot & Petro Tolochko

MARIPOLDATA and Peter Jacques: Sustainability and Growth in the Oceans

 

Peter Jacques

On the 11th of March, the MARIPOLDATA team welcomed one of its international advisory network members: Doctor Peter Jacques from the University of Central Florida in Orlando (USA). He has a PhD in Political Science with a focus on the connection between environmental policy and foreign policy; and he is an expert in sustainability with specific experience in climate change policy, fisheries, and international marine policy. Some of his current research projects include the study of denial of climate change and its connections to western ideals of progress, the international regulation of ocean pollution and fisheries.

MARIPOLDATA organized a workshop with Peter Jacques to exchange views on ongoing and future research. The MARIPOLDATA team presented preliminary findings of our work, the methodological approach, which we develop to study the practice of agreement-making in tandem with the social study of scientific fields, and ideas on future research paths. Peter raised critical questions, such as “Do international relation theories properly thematize environmental issues and the current BBNJ case?” He was also engaged with what the BBNJ regime is and how to define it.

Evening talk in exceptional times

Peter was invited to give an open talk about the World Ocean Regime. The public event had to be canceled and replaced by an internal event with him and two discussants: Dr. Thomas Loidl, from MARIPOLDATA’s advisory network, and Dr. Monica Berg, our guest researcher. Peter presented the findings of the research article that he wrote with Rafaella Lobo: “The Shifting Context of Sustainability: Growth and the World Ocean Regime”, which explores the use of sustainability concepts in the supervision of fisheries. Peter discussed innovative theoretical and methodological approaches, as well as research findings. He started by emphasizing that the World Ocean Regime is an implicit, unwritten set of rules that governs the activities in the oceans beyond all international agreements. In other words, the World Ocean Regime is the ways in which countries and international organizations carry out activities in the oceans; and these ways are not explicitly written in any international document. To study this regime, he focused on the analysis of the reports over the State of the World Fisheries and Acquaculture (SOFIA reports). These have been published every two years by the Food and Agriculture Organization (FAO) since 1995 and inform about the state of fisheries and associated laws. They are fundamental for the research because they assess all aspects that are related to and affect fish, such as, among others, temperature, food web, pollution, acidification: the SOFIA reports account for the conditions of the ocean.

The ocean faces different threats: acidification, biodiversity loss, increased temperatures, among others. As years pass by and these conditions worsen, Peter asked himself ‘Why is the World Ocean on fire?’.

Secondary questions came to mind when trying to find an answer: What has allowed this to happen? Why have Regional Fisheries Management Organizations (RFMOs) not kept fisheries sustainable? Are values, beliefs and norms responsible for this? What determines them? He concluded that discourses shape these questions: Discourses institutionalize thinking and expectations and are representations of reality. ‘But what determines how values, beliefs and norms are selected?’, Peter asked. Institutions might have a role in this.

Fisheries and Sustainability

Photo credits: Matthew T Rader on Unsplash

Peter and Rafaella used Quantitative Content Analysis (QCA) of the SOFIA reports back to 1995. This research method requires the proper identification of pre-processed text, this means, for instance, to exclude job titles, and indexes from the sample. Additionally, QCA requires the creation of a stemmed dictionary that encompasses all relevant words. They modified an existing dictionary and added social issues, science concerns, food issues, governance, overfishing, and a sample of specific fish stocks.

The following step was the creation of categories that represent the ideas to explore. These were life support, governance, economic-utilitarian values, specific fisheries, overfishing, social values, science, govern food, aesthetic, moral-spiritual. They later used hierarchical cluster analysis to test the coherence between the categories. They also used multidimensional scaling to make sure that categories are different from each other. The results showed that economic values dominate the discussion and that governance is the second most important category of all – the FAO focuses more on the growth of fisheries rather than on setting limits to how much fisheries can catch.

After this first phase, they decided to concentrate exclusively on a new category – Sustainability, which focuses on that economic activities do not exhaust natural resources so that future generations have access to these resources as well. Peter and Rafaella then aimed to answer the questions: How is the concept of sustainability used and how does it change over time? How are some norms chosen over others? To do this, they divided sustainability into three main profiles and added them to the dictionary they previously used. These profiles were principles of sustainability, sustainable development and maximum sustainable yield. The results showed that the principle of sustainability constitutes the majority of the discussions. Nevertheless, a deeper analysis of the results demonstrated that the reports portray sustainability primarily as an economic issue.

Findings and discussion

Jacques and Lobo concluded that ‘sustainability’, ‘sustainable development’ and related concepts have been used to secure economic norms that are in fact not sustainable. Their research argues that, while the FAO is not opposing ocean protection, economic growth is its main priority and ‘sustainability’ legitimizes its economic concerns.

Dr. Monika Berg, senior lecturer in sociology at the University of Örebro, Sweden, and specialist on the science-policy interface and environmental policy took part in the event as a discussant. She asked questions related to the theoretical framework of the research. For example, she asked Peter why he selected the discourses of the FAO, how these reports relate to other sustainability discourses, if sustainability has become more relevant in the discourses because it has been subsumed in the economic discourse, how these norms are actually invisible, and how states and individuals are related to these discourses.

Peter concluded that the SOFIA reports and other sustainability discourses are interrelated because they are characterized by the use of a sustainable development concept that does not restrain how much fisheries can catch. He emphasized that sustainable development has always focused on economic growth and stressed that sustainability has effectively been subsumed in the economic discourse. Moreover, the economic demands of countries have not allowed conservation-oriented RFMOs to fulfill their tasks. This is closely related to the organization of the global economy and to the primary interest of the USA in shaping the discourses and regimes that govern fisheries. Finally, he clarified that these norms are invisible in the sense that they are hidden in the linguistic structure of the reports.

Dr. Thomas Loidl pointed out that there is not a reigning anarchy in the high seas. The lack of an overarching authority characterizes the socioeconomic reality of the areas beyond national jurisdiction (ABNJ). Additionally, there is a lack of compliance with international instruments that regulate activities in these areas, such as the different RFMOs.

Peter Jacques made it possible for the MARIPOLDATA team to get a closer look on the underlying growth discourse of the SOFIA reports. This is certainly a meaningful contribution to the understanding of the economic development of fisheries, a significant area for the mentioned BBNJ negotiations, and therefore, for the research of MARIPOLDATA.

If you want to listen to the recorded talk, feel free to email us (maripoldata.erc@univie.ac.at) indicating your interest and we will send you the link.

Sources

Jacques, P. J., & Lobo, R. (2018). The Shifting Context of Sustainability: Growth and the World Ocean Regime. Global Environmental Politics, 18(4), 85–106.