Written by Ina Tessnow-von Wysocki, Fuad Bateh, Judith Gobin, Harriet Harden-Davies, Kwaku Kyeremeh & Julia Schutz-Veiga

Only a few months after the adoption of the new legally binding agreement on biodiversity beyond national jurisdiction (BBNJ) in June 2023, stakeholders gathered for the BBNJ Symposium in Edinburgh on October 6-7^th. The Symposium brought together experts from policy, science, conservation and the private sector to discuss the first steps towards implementation and to deliberate on yet unresolved issues. The calls for a Preparatory Commission were followed through by the United Nations Assembly Resolution in April 2024, with the first organizational meeting taking place from 24-26^th June, 2024. This blog focuses on how capacity building and the transfer of technology (CBTMT) were discussed during the Symposium and reflects on equity issues in BBNJ and opportunities for action prior to entry into force of the agreement.

 

With the adoption of the new marine biodiversity agreement, a milestone has been reached. After nearly two decades of deliberations, the United Nations have agreed on a legally binding instrument to govern the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. The new agreement falls within the United Nations Convention on the Law of the Sea (UNCLOS), as a new implementation agreement. States quickly signed the agreement, already counting 91 signatories after the final adoption session in June 2023. Yet, to enter into force, the BBNJ agreement will require 60 ratifications, only seven of which have been formally deposited to the UN (Palau, Chile, Belize, Monaco, Mauritius, Federated States of Micronesia, Seychelles) (UNCLOS, 2023).

Formal ratification, which in many cases includes adjustments of national laws or processes is the first step towards entry into force. However, successful implementation of the agreement goes beyond signature and ratification: Successful implementation of the BBNJ agreement will need a long-lasting strong capacity building element for States that currently lack the necessary information as well as scientific and technical capacity to conduct studies on the marine environment and fully implement the new instrument. The BBNJ agreement acknowledges this by having introduced capacity building and the transfer of marine technology as one main pillar of the new instrument (BBNJ Agreement, Part V). The inclusion of CBTMT into the agreed BBNJ package of topics in 2011 goes also to the broad perception that CBTMT is one of the most under-fulfilled aspects of UNCLOS, but key to implementation (Lothian, 2022). This blog maps out main findings from the expert panel on capacity building and the transfer of marine technology at the BBNJ symposium session to help implement the BBNJ agreement in an efficient and timely manner and reflects on the way forward.

Expert Panel on CBTMT

 

The CBTMT panel (Recording, Session 4) offered a way for BBNJ experts from different regions to share their experiences, use concrete examples from their regions, mention different types of CBTMT needed, suited to their situations and in relation to specific package elements of the agreement. Rather than simply pointing to the – overall agreed – need for CBTMT, the symposium offered a space to dive deeper into what is needed for BBNJ implementation, how and by when, concrete examples of how the CBTMT part can support developing States and concrete actions that will change the status quo, highlighting important topics of support and pointing to scenarios and examples that stakeholders at the symposium could relate to. With an audience of negotiators from both developed and developing countries, representatives of non-governmental organisations, the private sector and academia, the panel sought to encourage action for successful implementation with concrete and implementable ideas.

Dr. Harriet Harden-Davies, Director of the Nippon Foundation-University of Edinburgh Ocean Voices Programme gave introductory remarks as the keynote on the importance of CBTMT and what it entails, the CBTMT text, how it moves forward from UNCLOS and what the key achievements are and where there are remaining questions.

Judith Gobin, Professor at the University of West Indies, elaborated on key needs of small island developing states (SIDS) as regards CBTMT. With an overview of some SIDS institutional and human resource needs, national and local examples served to pin down concrete capacity building types that would be useful when looking at the next steps in trying to support the implementation of the overall agreement.

Kwaku Kyeremeh, Associate Professor of Chemistry, University of Ghana, provided an overview of Research in Africa by using the University of Ghana as an example and pointed to important gaps that could be filled with the BBNJ agreement, such as implementing centres of excellence.

Julia Schutz Veiga, PhD candidate in Law at NOVA School of Law and visiting fellow at the Ocean Voices Programme who was a legal adviser for the Brazilian delegation from 2019-2023 during the BBNJ process addressed unlocking Intellectual property constraints to transfer knowledge and technology and shared her ideas on how to prepare BBNJ implementation prior to entry into force by advancing details of the CBTMT committee.

Fuad Bateh, former IGC delegate and representative of the 2019 G77 & China Chair for BBNJ highlighted the importance of the BBNJ agreement for all States – including land-locked countries. He pointed to challenges of resource mobilisation and proposed a Preparatory Commission for the time before the first COP to formally facilitate early implementation.

The panel overall agreed that CBTMT is not only a crucial pillar of the agreement, it is also interlinked with all other pillars of the instrument and necessary for timely and efficient implementation.

Ensuring equity through CBTMT

There was one topic that was picked up constantly throughout the panels and the symposium discussions: Equity. Attendees of the symposium agreed that for an effective implementation of the BBNJ agreement, several equity concerns must be addressed.

With inclusive language, the BBNJ treaty has recognised voices of developing countries and brought marine scientists to the fore. While many don’t have sufficient human capital, training and finances to implement the BBNJ agreement, scientific training and expertise have advanced significantly over the years and they are ready to support implementation. In this regard, South-South cooperation can be facilitated, with identifying mentors in the region to support other developing States.

Sustained science, however, is a challenge. The aim is to support developing countries’ scientists in the long-term. Regional alliances and private and public partnerships are important. What is needed in the case of SIDS is financing and inclusivity. SIDS scientists need to be included from the start, as currently, a structured overall inclusion is missing. SIDS scientists need to be true collaborators and not simply added to scientific publications. Funding is essential for their scientific trainings to undertake EIAs and identify ABMTs and MPAs.

Similar challenges can be seen in the African region. Capacity building and transfer of marine technology for African universities would be most beneficial by establishing centres of excellence. In this regard, also regional centres could channel expertise and offer improvement for the entire region. The introduction of workshops, programmes, courses and trainings will be valuable.

In relation to the transfer of marine technology, there is a need to recognise the challenge for Global South countries – while having trained scientists – to be part of actually developing technology. Meaningful participation of Global South scientists will include setting up the necessary basis for the development of technology on the global market, rather than simply transferring marine technology that was developed in the Global North.

Ocean health matters to all. Equity demands leaving no one behind – even States that are not islands or coastal are entitled to dedicated capacitation efforts (Harden-Davies et al., 2024). It will be crucial that governance of the global commons will be global and not left to a few countries with the capacities to research or exploitation of ocean resources. Meaningfully engaging in BBNJ governance also means to enable participation and invite diverse ideas. The next generations will be living with the ocean and are entitled to benefit from a harmonic human-nature relationship. In this regard, the involvement of youth is crucial. Ocean literacy efforts by initiatives of the UN Ocean Decade and beyond need to be supported and expanded, which will raise knowledge and awareness. The scientific and technical body that will be set up to inform implementation still needs to be further defined and details to be thought through to ensure equitable participation and representation (Gaebel et al., 2024). Here it is crucial that diverse disciplines and regions are represented. Different forms of knowledge, such as indigenous and local knowledge is to be regarded as equally relevant as scientific knowledge, when informing the implementation of BBNJ (Mulalap et al., 2020). CBTMT is much more than financial donations and includes requirements regarding gender equality and representation.

While ocean health is crucial to current and future generations, as well as non-humans inhabiting the ocean, currently, there is insufficient protection of areas beyond national jurisdiction. With the Global Biodiversity Framework, adopted in December 2022 under the Convention on Biological Diversity (CBD), State parties have set a political signal to commit to meeting the target of 30% protection by 2030. The BBNJ agreement can support the 30×30 target in ABNJ through the establishment of area-based management tools (ABMTs), including marine protected areas (MPAs). While the BBNJ instrument is the governance framework to achieve the GBF target in ABNJ, a clear structure on next steps is needed and would offer a valuable rationale for ratifying BBNJ, as implementation serves GBF commitment, as well as supports Paris Agreement objectives.

To be able to fund implementation, a responsibility of the international community is to find a credible way to fund capacity for e.g. raising the percentage of protected areas in ABNJ from approximately 1.4% (CBD, 2022) to the GBF target of 30%. The Global Environmental Facility (GEF) is identified in the Agreement as one funding resource to cover part of the BBNJ implementation costs, but it is not possible for the GEF to cover even the ABMT part of BBNJ comprehensively. Donors suggest any significant resource mobilisation should be expected only after entry into force of the agreement, yet this under-appreciates developing states officials’ likely concern for where shall the funds be sourced to fulfil legal obligation to effectively implement the BBNJ agreement. Hence, a pledging conference would be a valuable contribution to BBNJ’s implementation: It would encourage confidence and accelerate ratifications by debt-strapped developing countries.

BBNJ Agreement – what now?

With the adoption of the BBNJ agreement the first step is done, however, as it currently stands it is an agreement among nations that still needs to be ratified by another 53 States to enter into force and officially have legally-binding power to only those States that signed and ratified it. 120 days after the 60th ratification, the agreement enters into force and the COP meets within 1 year after. Until entry into force – not to mention the COP meetings and agreement on the details that remain to be negotiated among member States – quite some time can pass. Looking at other agreements and the difference between adoption and entry into force, the BBNJ agreement can be lucky if in force in the next few years.

The BBNJ agreement builds the basis for future governance of marine biodiversity of areas beyond national jurisdiction. Yet, several issues regarding CBTMT are still to be resolved, which are not or only broadly defined in the treaty text including (i) country-driven needs assessments and action plans; (ii) measures to monitor and review the quality of capacity building; (iii) support for key people and processes, including in relation to the Committee; (iv) information sharing and cooperation; (v) funding (Harden-Davies et al., 2024). There needs to be an inclusion of Global South countries in the development of technology and its transfer. Intellectual property (IP) rights are the elephant in the room but need to be discussed when challenges in the transfer of marine technology come about. Are there alternative methods to circumvent or facilitate the application of IP rights in the transfer of marine technology developed to solve, improve and/or mitigate impacts related to the conservation and sustainable use of marine biodiversity? The CBTMT committee serves to facilitate access to and transfer of marine technology, which will need to be on the agenda of the COP meetings: The CBTMT Committee stands as a beacon of hope, guiding international cooperation and fostering a future where marine ecosystems thrive despite the pressures of climate change. The BBNJ Agreement introduces a significant advancement in the form of a monitoring and review process (Article 47), and here, the role of the CBTMT Committee shines prominently. This committee is pivotal in evaluating the effectiveness of CBTMT initiatives, employing a range of vital metrics, including indicators and results-based analyses.

Literature highlighting current weaknesses in ocean governance can facilitate the identification of strategies and measures for reports and recommendations to be made by the CBTMT committee. For instance, the Global Ocean Science Report (IOC-UNESCO, 2020) highlights specific areas of concern that the committee can address in the future. These include (i) information regarding patents, particularly those related to green technologies, to facilitate the access to and transfer of marine technology; (ii) information regarding the needs and priorities of developing countries; and (iii) opportunity to fill the scientific and technological gap among states, as outlined in the UNCLOS preamble.

While the Conference of the Parties meetings will be crucial in clarifying the remaining issues, there are several steps that can already be taken prior to entry into force to ensure smooth implementation of the new agreement.

Taking action before the first COP

Already now – before entry into force – we need to make a strategy to get funding for building capacity and training. A draft document of technologies we are hoping to transfer would be valuable. It is crucial that skill gaps are identified and addressed. Workshops and support by relevant institutions offer opportunities to build knowledge and capacity.

There is little awareness of the importance of areas beyond national jurisdiction in SIDS – even though the international seabed authority is based in Jamaica. SIDS scientists need to be trained to serve on committees, which is key to equitable implementation of the BBNJ agreement.

Ratification of developing countries can be encouraged by clearly stating what is needed, how much funding is required to achieve it and where it will come from. There will be a benefit for bringing in new actors in BBNJ and collaborate with the private sector. Other ideas include an early implementation fund to assist countries that are signatories to ratify the treaty. The fund could provide assistance in terms of the legal work (assessment of national laws, institutional structures, stakeholder involvement mechanisms etc.) that may need to happen in the country to make it ready to ratify. More importantly, the fund could also get countries started on the path of determining their priorities for the BBNJ Agreement, and subsequently start assessing what existing capacities and technologies they have, and what they might additionally need to reach their priorities. This could be a sort of a pre-cursor to a full-on needs assessment, and start dialogues around potential modalities for regional implementation collaboration on how regions might be more effective through sharing expertise, technologies and resources. Such an early implementation fund could help provide certainty to countries that the BBNJ Agreement will be implementable by them, similar to the Montreal Protocol’s Multilateral Fund, which provided assistance to countries prior to ratification. In this way, various aspects of the BBNJ Agreement implementation could be supported in a holistic and non-duplicative way, building on previous efforts and institutions.

To identify the needs, it is essential to mobilise funding resources to undertake inventory as soon as possible.  Needs assessments can now already be funded to identify how BBNJ can best support different regions and countries. The Global Ocean Forum has prepared a draft ToR for a comprehensive inventory of BBNJ relevant CBTMT which shall further include an initial costing of required CBTMT following from national, regional and global needs assessment.

A consortium of UN agencies and other institutions with Marine CBTMT mandates and expertise could mobilise to contribute, including WMU-GOI, UNESCO-IOC, FAO, UNEP, UNDP, World Bank, IUCN, Global Ocean Forum. This information gap must be addressed to inform subsequent decision-making including deployment of development assistance.

The interim Secretariat is currently planning a Preparatory Commission to prepare States for entry into force and to provide a formal forum to discuss important issues for the first COP and BBNJ actors are coming together from 24-26^th June, 2024 for an organisational meeting. What is now needed is the Preparatory Commission to bring in more inclusive voices from civil society and the private sector to support provisional and early implementation among other critical preparatory guidance to the interim secretariat, as well as third parties such as the GEF Secretariat (i.e. directing resource deployment priorities in multi-year GEF programming in advance of BBNJ entry into force). The private sector is the biggest actor in ABNJ. The operative United Nations General Assembly resolution could provide a mandate to the UN Global Compact as the key UN institutional interlocutor with the private sector to mobilise support/engagement on achieving objectives of the BBNJ interrelated with objectives of the CBD GBF and UNFCCC/Paris Agreement.

Measuring implementation success

Surely all members of the agreement would like to see effective and timely implementation. However, measuring the implementation success of the capacity building and marine technology transfer chapter of the agreement might not be as straightforward. With different regions requiring different types, forms, activities and cooperation of CBTMT, easy quantification is not given and goals/targets/reference points might not be as clear as for other topics.

In the context of ABMT/MPAs and the BBNJ securing the GBF Target 30×30, progress can be measured by looking at the percentage of MPAs in ABNJ. Another metric is partnerships organised to establish OECM/MPAs and the number of trained experts/specialists/agents of change in support of OECM/ABNJ. Similarly, in the context of EIAs, the metric is the number of trained experts/specialists/agents of change on undertaking EIAs with specific appreciation of ABNJ context.

One way to measure success of CBTMT is to aim at increased participation by the Global South in developing and patenting emerging technologies, decreasing North-South funding, enabling greater independence for the Global South.

Conclusion

The new BBNJ agreement adopted and already signed by 91 countries offers an important milestone towards restoring our relationship with the ocean and life within it. For the first time, processes to establish marine protected areas and conduct environmental impact assessments in areas beyond national jurisdiction are universally regulated, offering a more concrete framework on how to conserve and sustainably use marine biodiversity. The “trendy” agreement, as some BBNJ symposium attendees called it, provides a living document, with responsibilities to continuously and jointly work towards structures to govern the fair and equitable use of marine genetic resources and ensure a timely response to current and upcoming challenges that the health of marine biodiversity is facing. The agreement is, thus, not the solution to marine biodiversity loss and unequal distribution of ocean resources amongst humans, but it offers a common ground, a legally-binding instrument, adopted – by consensus – by the entire international community. A solid ground to build on for future solutions, integration of different scientific disciplines and knowledge forms through a future scientific and technical body to support implementation, increased cooperation and coordination among the other relevant regional, sub-regional and sectoral bodies that are active in areas beyond national jurisdiction under their respective mandates, and many more meetings of the Conference of the Parties (COP) to negotiate further details of the agreement that are yet to be developed. CBTMT acts as an enabler across all other core topics of the BBNJ Agreement and can significantly channel timely and efficient implementation.

 

References

CBD (2022). CBD/COP/15/9 (30 October 2022). Review of Progress in the Implementation of the Convention and the Strategic Plan for Biodiversity 2011-2022. Para 14 of Subsection B “Aichi Biodiversity Target 11” Retrieved from: https://www.cbd.int/doc/c/53a6/9a0b/dc1cf7bc6eb5c870243ad5a9/cop-15-09-en.pdf

Gaebel, C., Novo, P., Johnson, D. E., & Roberts, J. M. (2024). Institutionalising science and knowledge under the agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ): Stakeholder perspectives on a fit-for-purpose Scientific and Technical Body. Marine Policy, 161, 105998. doi:https://doi.org/10.1016/j.marpol.2023.105998

Harden-Davies, H., Lopes, V. F., Coelho, L. F., Nelson, G., Veiga, J. S., Talma, S., & Vierros, M. (2024). First to finish, what comes next? Putting Capacity Building and the Transfer of Marine Technology under the BBNJ Agreement into practice. npj Ocean Sustainability, 3(1), 3. doi:10.1038/s44183-023-00039-1

IOC-UNESCO (2020). Global Ocean Science Report 2020–Charting Capacity

for Ocean Sustainability. K. Isensee (ed.), Paris, UNESCO Publishing

Lothian, S. L. (2022). Marine conservation and international law : legal instruments for biodiversity beyond national jurisdiction. Routledge, Taylor & Francis Group.

Mulalap, C. Y., Frere, T., Huffer, E., Hviding, E., Paul, K., Smith, A., & Vierros, M. K. (2020). Traditional knowledge and the BBNJ instrument. Marine Policy, 122, 104103. doi:https://doi.org/10.1016/j.marpol.2020.104103

UNCLOS (2023).  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. Retrieved from:  https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en

 

 

 

 

 

 

By Paul Dunshirn, Ayşegül Sırakaya, Adam McCarthy, and Irma Klünker.

This blog post summarizes and reflects on discussions at the Convention on Biological Diversity’s (CBD) first meeting of the Ad Hoc Open-ended Working Group on Benefit-sharing from the Use of Digital Sequence Information (DSI) on Genetic Resources, which took place on November 14-18 in Geneva. It explores some of the key issues under negotiation, namely whether benefit-sharing on DSI should be mandatory or voluntary, how benefit-sharing contributions and modalities should be assessed, and how the multilateral mechanism should interact with other genetic resource governance regimes. The post was written collaboratively by members of the group Interdisciplinary Researchers Working on DSI (iDSI), who are also affiliated with the ERC-funded research project MARIPOLDATA, the Research Platform Governance of Digital Practices, the Manchester Institute of Innovation Research, The Weizenbaum Institute, Lund University and the Natural History Museum.

Parties and observers to the CBD convene to negotiate benefit-sharing from the use of DSI in Geneva (https://enb.iisd.org/).

Introduction

Decision 15/9 of the Conference of the Parties to the CBD (COP Decision 15/9), agreed in December 2022, constituted an important signpost in bringing genetic resource governance to the digital age. Until then, it was disputed whether access to and benefit-sharing from the utilization of DSI, a placeholder term for various types of genetic sequence data, should be considered alongside genetic materials under the auspices of the CBD. However, since considerable scientific and commercial value is produced once DSI are abstracted from material samples, Parties decided that a new multilateral benefit-sharing mechanism on the use of DSI shall be developed until the next Conference of the Parties (COP 16) (COP Decision 15/9, para. 16), to be held in 2024. The decision also initiated an open-ended working group to negotiate whether and if so, how the multilateral benefit-sharing system could operate under the CBD, which had its first meeting on November 14-18 in Geneva. 

This decision was generally received as a major step forward, but it quickly became clear during the Geneva meeting that some fundamental questions about the nature of the mechanism are yet to be resolved. This is visible in the formulations used by the Secretariat in various versions of the negotiation document: while at the start of the meeting, the discussed non-papers described areas where ‘we heard agreement’, the final document merely outlines ‘elements on which there is potential convergence’. Additionally, many important issues remain marked by divergences, and were placed under issues ‘for further discussion’. Considering the lack of concrete progress in the negotiations on the future benefit-sharing system, it is highly relevant to explore which issues are currently on the agenda and how the discussions are likely to proceed in the upcoming months.

Voluntary vs. mandatory 

A central discussion point was whether the benefit-sharing mechanism on DSI should be voluntary or mandatory. Parties in favor of mandatory provisions argued that established voluntary systems have not provided substantial benefits in the past. There was a lack of clarity on what could constitute a voluntary benefit-sharing mechanism but Parties and stakeholders often used the voluntary contributions to the benefit-sharing fund of the International Treaty on Plant Genetic Resources for Food and Agriculture (‘Plant Treaty’) as a point of reference. Some Parties emphasized the need to introduce legally binding forms of benefit-sharing to ensure a system of rights-based transactions rather than of  charity payments.

Proponents of a voluntary system argued that the envisioned CBD system may not be comparable to other specialized mechanisms as its scope (i.e. the types of DSI covered) could be much wider. Some argued that a mandatory system would require a new Treaty to be negotiated, while a voluntary system could more rapidly be established under existing frameworks. 

Overall, the meeting yielded minimal progress regarding the voluntary versus mandatory question, a sentiment that is reflected in the final document. It states that there is a need for further discussion on ‘How obligations for sharing the benefits […] can be created; whether this would facilitate a predictable level of contributions and fairness […], and whether this could be done through a legally binding instrument or a non-legally binding framework’. (para. 9). Some Parties supported starting with a voluntary framework and to transition into a more detailed or mandatory system in the future. It appears that such a ‘two-phase’ solution constitutes a potential area of convergence, which would to some extent resemble the benefit-sharing approach taken under the recently decided Treaty on Biodiversity Beyond National Jurisdiction (BBNJ). 

Here it should be noted that the establishment of a legally binding/mandatory mechanism is generally understood to require enacting Article 10 of the Nagoya Protocol, which is the CBD’s central protocol for regulating access and benefit-sharing. Article 10 was specifically negotiated to enable the establishment of a multilateral benefit-sharing mechanism through future negotiations during a time when more consensus was available and modalities were clarified. However, the majority of the Parties, rightsholders and stakeholders are attempting to reach a mechanism through the CBD without enacting the Nagoya Protocol. 

Triggers and modalities for benefit-sharing

Another important discussion point was how benefit-sharing would be triggered and how benefits to be shared or received should be assessed. Parties deliberated on a wide range of potential triggers for benefit-sharing, such as ‘use of DSI’, commercialization involving DSI, ‘database-related’, or ‘time-based’ triggers, without convergence. A related question was whether a voluntary system would require triggers, which in the end was also included in the final document under issues for further discussion (para. 5). In discussing the various options, delegates repeatedly emphasized the need for conceptual clarification, for example on how ‘use of DSI’ may be defined (e.g. access to DSI, scientific use, or commercialization). At times, the lack of conceptual clarity seemed to make it difficult for Parties to formulate clear statements on positions to be negotiated. 

Next to the potential triggers, the modalities for benefit-sharing had to be discussed. While it remained inconclusive, there appeared to be agreement amongst most Parties that ‘commercialization’ should be taken into account when assessing benefits to be shared and that all actors engaging in commercialising products or processes through the utilisation of genetic resources should contribute to the multilateral system. However, it remains unclear how this should be operationalized in practice and statements remained abstract while touching on a range of options for identifying relevant actors, products, and intellectual property rights. Some Parties suggested avoiding the term commercialization and formulating more precisely as ‘generation of value’, ‘shares of incomes’ or ‘sales’ from the use of DSI to have more concrete discussions. Additionally, some concerns have been raised regarding the lack of knowledge on how to value the biobased product sector which, according to some Parties and stakeholders, results in a lack of transparency in the amounts to be captured, generated and disbursed through the fund. These issues remain unresolved.

Geographic information of DSI origin has been on the table for some time as a potentially important modality to assess benefit-sharing, as it resembles the notion of ‘provider country’ under the Nagoya Protocol. However, some Parties and observers argued that it is not a reliable source of information for the multilateral system on DSI, as many types of DSI (such as proteins) are detached from original samples to the extent that they do not allow for identification of geographic origin. Other arguments against such an indicator are that tracing connections of various types of DSI to original samples would require an extensive track-and-trace system, which has been deemed ‘not practical’ for ‘all DSI’ under CBD decision 15/9 (para. 5). 

Other potential benefit-sharing modalities included: 

• Competitive project applications, which also relates to arguments about ‘absorption capacity’: Several Parties argued that funds should be allocated based on competitive project applications, possibly specified to serve conservation aims. Others opposed this notion, arguing that competitive applications would disadvantage certain countries or Indigenous Peoples and local communities (IPLCs).
• Biodiversity richness: Some Parties argued that biodiversity-rich countries should receive comparatively more funding via the multilateral mechanism, to support local conservation measures
• IPLCs: Some Parties argued that IPLCs should have preferential access to funds, which they should be able to access either directly or via national institutions – views on this question diverged. This approach demonstrated a divergence from the approach during COP 15 as the negotiations in Montreal specifically recognised the IPLCs as primary beneficiaries (COP Decision 15/9, para. 10).

Interactions with other Frameworks

DSI is currently being negotiated under several international fora, namely the Food And Agricultural Organisation (FAO), World Health Organisation (WHO), and World Intellectual Property Organisation. Adopted in June 2023, the BBNJ Treaty constitutes the first legally binding instrument to include DSI in its provisions on marine genetic resources. As such, there is a heightened interest in how the CBD is going to design its multilateral DSI mechanism. 

However, interactions with other frameworks did not appear to be high on the agenda for negotiators at the Geneva Meetings. Some discussion took place on the idea of establishing an inter-forum body on access and benefit-sharing to facilitate coordination. While this was placed under areas of agreement in initial non-paper documents, it was moved to further issues of discussion after some Parties objected. While it is generally uncontested that some form of harmonization across existing and future access and benefit-sharing mechanisms would be useful, during the Geneva Meetings some Parties and stakeholders also pointed out that these arenas are independent legal frameworks that cannot simply be replaced by a new harmonized one nor be forced to adjust to terms defined by the CBD.  

It should be noted that the discussions on relationships with other bodies are partially shaped by tensions within the CBD, namely on how the multilateral mechanisms on DSI would interact with the Nagoya Protocol. Some Parties made statements to suggest they see the new multilateral system as potentially undermining the sovereign rights of states recognised under Article 15 of the CBD as well as Articles 4 and 6 of the Nagoya Protocol.

iDSI emphasizes the importance of Open and Responsible Data Governance in managing DSI

The group Interdisciplinary Researchers Working on DSI (iDSI) made several interventions during the Geneva meeting concerning interactions with other benefit-sharing frameworks. iDSI highlighted the need to develop principles for Open and Responsible Data Governance (ORDG) and integrate them into the evolving multilateral system. The idea of ORDG is to promote guidelines for practitioners on how to nurture fair and equitable DSI use while managing DSI according to the FAIR principles (findable, accessible, interoperable, and reusable). Given the potential transformation of bilateral access processes into multilateral ones, iDSI emphasized the importance of providing practitioners with explicit guidance on avoiding ethical breaches and the infringement of pre-existing rights and obligations in their routine use of DSI. Such guidelines may simplify researchers’ navigation through the complex landscape of benefit-sharing mechanisms while jumpstarting the implementation of international law on the ground. 

Interdisciplinary Researchers Working on DSI (iDSI) at the Geneva Open-Ended Working Group Meeting. 

Next steps and conclusion

To summarize, delegates and observers are faced with a substantial workload in the upcoming months as they endeavor to discern the future configuration of the multilateral benefit-sharing system for DSI. As highlighted in this blog, the main points of negotiations are whether the mechanisms will entail voluntary or mandatory provisions, how the trigger points and assessment criteria are designed, and how the new mechanism will relate to existing legal frameworks. A fundamental question underlying these considerations is how to align principles of open science with the rights of provider countries and IPLCs under the umbrella of a new multilateral system. 

In terms of the next steps, many actors emphasized that they await the results of studies requested under decision 15/9 (para. 22). It was also agreed that an Informal Advisory Group (IAG) will be set up, to meet every month leading up to the second meeting of the Ad-Hoc Open-Ended Working Group on DSI in August 2024, in time for the next COP 16 scheduled for October 2024. The IAG nomination and acceptance process is ongoing and likely to be relatively closed, with selection based on “pertinence” (IAG notification).

iDSI will continue to engage in this process, and is open to discuss our perspectives on any of the issues touched on above. Please feel free to contact us at idsi.research@gmail.com.

By Arne Langlet, Paul Dunshirn & Glen Wright

Twitter has become a central platform for political [1] and scientific communication [2], offering a unique data source for researching digital communication and discussions between diplomats, stakeholders and scientists. During the COVID-19 pandemic, digital communication may have been particularly important for international negotiation processes such as the recently concluded negotiations for a treaty on biodiversity beyond national jurisdiction (BBNJ) [3, 4, 5].

Here we introduce a dataset of tweets related to BBNJ discussions, which we collected from the first of January 2018 to March, 9th, 2023. The resulting dataset contains 72727 tweets from 26137 unique users. We included all tweets that mentioned the hashtag #BBNJ. Below we present a preliminary analysis of the data, focusing on themes such as the intensity of online engagement with BBNJ-related discussions over time, network community structures, and content of tweet texts. We consider these themes as pathways for further research.

We want to invite anyone with an interest in using the data to get in touch with us to discuss possibilities for further engagement.

How did the BBNJ discussion on Twitter evolve?

Our data shows that in early 2018, #BBNJ was already used in an average of around 12 tweets per day. The use of #BBNJ sparked for the first time during the first Intergovernmental Conference (IGC1) in September 2018. Particularly during the first three days of the IGC1 (4-6 September 2018), we can see high activity, peaking at 757 tweets in just one day. A total of ​​13465 BBNJ-tweets were posted during IGC1, averaging around 250 per day. The discussion subsequently went quiet, ahead of the next peak during the IGC2. By then, the hashtag was well established. During the intersessional period between IGCs2 and 3, more tweets were published than in the previous intersessional period.

Tweeting continued during the intersessional period between IGCs3 and 4, which stretched to 30 months owing to the COVID-19 pandemic. This period saw around 17 daily BBNJ-tweets. This continued engagement may indicate that the online dialogues (‘High Seas Dialogues’ and ‘BBNJ Intersessional Work’)  helped to maintain some momentum and visibility during the COVID-19 pandemic [3, 4, 5].

The fourth IGC was originally planned to be the final round of negotiations, and the flurry of BBNJ-tweets on the opening day was relatively high. Nonetheless, this IGC ultimately garnered fewer Tweets in comparison to the previous rounds. Tweets on BBNJ dropped markedly after IGC4 – at around 11 per day, – this period was the quietest since we started sampling in 2018. Usage of #BBNJ once again picked up during the UN Ocean Conference, with civil society and ambitious States using the occasion to call for the finalisation of the BBNJ treaty.

The #BBNJ hashtag exploded during IGC 5 and 5.2, when the hashtag was used in more than 1000 tweets. This correlated with increased media and public attention on the negotiations. The days with the most tweets were March 5th, 6th and 7th 2023 with 5325, 3913 and 2056 Tweets respectively. We were unable to plot these dates on the following graph as they were outliers, and thus, outside of the limits of the visualization.

This analysis reveals a couple of trends. Firstly, BBNJ-related Twitter activity primarily occurs during the in-person negotiation sessions and strongly increased when the negotiations were getting closer to the finish line. After usage of #BBNJ was cemented during IGCs 1 and 2, the hashtag began to occur more often in other ocean events (such as the aforementioned UN Ocean Conference, which was not BBNJ specific). The days after BBNJ was concluded showed the strongest Twitter activity as it became part of the general media coverage.

How did the BBNJ network develop?

From the #BBNJ tweets emerged a social network, which we can visualise by analysing the interactions between users (i.e. retweets and mentions). We found that 13739 users interacted with at least one other user, creating 31842 connections. The following video shows how the BBNJ network has grown since the beginning of 2018.

Video editing: Alexander Medgett

Pathways for further research

Community Analysis

The network is quite closely connected in one large component, and we only see a few  entirely disconnected user groups. A modularity-based community detection algorithm nonetheless identifies different communities within the main component (distinguished by colour in the video). Looking at network evolution over time reveals that certain core communities formed around IGC1, but that subsequent communities joined the discussions at later stages. Particularly, the purple and black communities formed around a small number of highly influential users that attracted a high number of otherwise disconnected users.

Network properties of #BBNJ discussions

Apart from analysing community structures, the relational nature of our data allows the use of established indicators from social network analysis, such as “centralization”. Centralization refers to the distribution of links between nodes [7]. An increase in centralization means that a small number of users are highly connected compared to the majority of people in the network. Table 1 shows that the centralization of the BBNJ network grew steadily after IGC1, indicating that the network grew closer together and a few users became very well connected. During the IGCs (in red), many new users joined the network and the centralization decreased. This indicates that the distribution of connections became more equal, i.e. the gap between hyper- and weakly-connected users shrank and new users joined the BBNJ community. After IGC3, the dynamics of the network did not significantly change and the network grew ever closer around a few highly central nodes for a long time. However, with IGCs 5 and 5.2, the centralization suddenly decreased strongly as many new nodes joined the network by tweeting about #BBNJ and tagging or retweeting other users.

Period	Centralization
Pre IGCs	0,16
IGC 1	0,11
Intersessional IGC 1-2	0,16
IGC 2	0,21
Intersessional IGC 2-3	0,22
IGC 3	0,20
COVID-19 Intersessional IGC 3-4	0,31
IGC 4	0,32
Intersessional IGC 4 – UN Ocean Conference	0,32
UN Ocean Conference	0,34
Past UN Ocean & pre IGC 5	0,34
IGC 5	0.23
IGC 5.2	0.21

Content analysis: other hashtags used in connection to the BBNJ hashtag

Our dataset also contains the actual #BBNJ tweet texts, allowing for a closer analysis of the content of discussion. For example, we can identify other hashtags that were used jointly with #BBNJ. #highseas co-occurs most frequently, reflecting the use of that term as a more readily intelligible alternative and recent discussion about the possibility of renaming the BBNJ Treaty to the commonly used “High Seas Treaty”.

#	Freq
highseas	7230
ocean	3134
highseastreaty	2059
biodiversity	1914
igc5	1754
oneoceanoneplanet	1130
stronghighseas	1045
abnj	1044
igc4	872
sdg14	691
unclos	649
oceans	580
mpas	511
igc2	462
deepsea	417
protecttheoceans	398
igc3	394
oneoceansummit	381
30×30	300

Contact us for collaboration:

We are excited to announce that our comprehensive Twitter dataset on the #BBNJ (Biodiversity Beyond National Jurisdiction) negotiations is available now. The dataset encompasses more than 72.000 tweets and can offer valuable insights into the global discourse surrounding conservation of marine biodiversity and sustainable use of marine resources. We invite fellow researchers, including early-career researchers and master students to utilize this rich dataset for their scholarly investigations, enabling a deeper understanding of public opinions, key themes, networks and emerging trends during the BBNJ negotiations.

Should you wish to access this dataset and collaborate on groundbreaking research, please do not hesitate to contact us:

maripoldata.erc@univie.ac.at

References:

[1] Jungherr, A. (2014). Twitter in politics: a comprehensive literature review. Available at SSRN 2865150.; Jörgens, H., Kolleck, N., & Saerbeck, B. (2016). Exploring the hidden influence of international treaty secretariats: using social network analysis to analyse the Twitter debate on the ‘Lima Work Programme on Gender’. Journal of European Public Policy, 23(7), 979-998.; Pearce, W., Holmberg, K., Hellsten, I., & Nerlich, B. (2014). Climate Change on Twitter: Topics, Communities and Conversations about the 2013 IPCC Working Group 1 Report. PLOS ONE, 9.

[2] Boteler, B. (2016). Scientists and Twitter: How does this Group of Fact Finding Professionals use Twitter? Journal of Visual and Media Anthropology, 1(2), 5-18.; López-Goñi, I., & Sánchez-Angulo, M. (2018). Social networks as a tool for science communication and public engagement: focus on Twitter. FEMS Microbiology letters, 365(2), fnx246.; Su, L. Y.-F., Scheufele, D. A., Bell, L., Brossard, D., & Xenos, M. A. (2017). sci. Science Communication, 39(5), 569-597.

[3] Vadrot, A. B. M., Langlet, A., Tessnow-von Wysocki, I., Tolochko, P., Brogat, E., & Ruiz-Rodríguez, S. C. (2021). Marine Biodiversity Negotiations During COVID-19: A New Role for Digital Diplomacy? Global Environmental Politics, 21(3), 169-186.

[4] Vadrot, A. B. M., & Ruiz Rodríguez, S. C. (2022). Digital Multilateralism in Practice: Extending Critical Policy Ethnography to Digital Negotiation Sites. International Studies Quarterly 66(3). Article sqac051, https://doi.org/10.1093/isq/sqac051

[5] Langlet, A., Wanneau, K., Dunshirn, P., Ruiz Rodríguez, S. C., Tessnow-von Wysocki, I. & Vadrot, A.B.M. (2022). A matter of time: the impacts of Covid-19 on marine biodiversity negotiations. Négociations, 37, 39-65. https://doi.org/10.3917/neg.037.0039

[7] Borgatti, Stephen P. (2005). “Centrality and Network Flow”. Social Networks. 27: 55–71.
[/av_textblock]

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

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

The IOUSP in São Paulo

The Oceanographic Institute (Instituto Oceanográfico) at the University of São Paulo (USP) is a research and teaching institution focused on marine science. It was founded in 1948 with the goal of promoting the study of oceanography in Brazil and contributing to the development of the country through research and education. The Oceanographic Institute is located in the city of São Paulo. São Paulo is the largest city in Brazil and the capital of the state of São Paulo. It is located in the southeastern part of the country, and is known for its cultural, economic, and political importance. The city is the major economic and cultural center in Brazil and home to a diverse population and a vibrant culture. The IOUSP about a 1-2 hour drive from the Atlantic Ocean, and is affiliated with the University of São Paulo, one of the top universities in Latin America. It possesses more than 40 labs researching all aspects of oceanography, including biological, physical and chemical oceanography, marine geology, marine chemistry, and marine governance.

Over the years, the Oceanographic Institute has played a significant role in the development of marine science in Brazil, conducting research and providing education to students from a variety of disciplines. It has largely contributed to the understanding southern Atlantic Ocean – a previously understudied region – and its role in the earth’s climate and ecosystems but also partakes in missions to the Antarctic station, fulfilling Brazil’s research presence on the Antarctic continent. The institute possesses numerous research facilities and equipment, including a fleet of research vessels, and is home to a large number of researchers, professors, and students. In addition to its diverse research activities, the Oceanographic Institute has been pivotal for marine sciences in Brazil by offering undergraduate and graduate programs in marine science, as well as continuing education courses and workshops. Hence, it is also the Brazilian hub for the UN Decade of Ocean Science, for which a large mural painting was inaugurated during my research stay.

Deep Sea Ecology and Evolution Laboratory (LAMP)

The Deep Sea Ecology and Evolution Laboratory (Laboratório de Ecologia e Evolução de Mar Profundo – LAMP) is mainly focused on the deep-sea biodiversity assessment and on the mapping and description of deep-sea habitats and fauna. Further research interests include ecological and biogeochemical benthic processes in the continental margins of the Atlantic Ocean and Antarctica. The laboratory is led by Professor Paulo Sumida who himself was a master student at the IOUSP in 1994 before pursuing his PhD National Oceanography Centre, Southampton, UK and becoming a Post-Doctoral Fellow at Craig Smith Lab in the University of Hawaii at Manoa.

In November 2022 the laboratory had five ongoing projects that aimed at exploring different aspects of largely unknown ecosystems in the southern Atlantic ocean and the Antarctic. One of them is the DECODE project which seeks to understand the dynamics of deep-water coral ecosystems in the south-west Atlantic. The LAMP team used a combination of an ROV (with camera) Lander (with camera) and a sediment trap for this study. First they explored the area with an ROV and then installed the lander and the sediment trap for continuous monitoring. The sediment trap checked what kind of sediment (and tiny animals in it) was floating around and the lander shot videos in regular intervals to research which fauna visited the coral reef. In this way cold water corals and the potential impacts of oiling activities were monitored.

Providing high quality images of a largely unstudied area

Much of the research at LAMP is aimed at the Santos Basin (Bacia de Santos) which is located in the EEZ of Brazil off the coast of the two large Brazilian cities Rio de Janeiro & Sao Paulo. Here, the research team is active in describing the coral ecosystems. As this part of the Atlantic Ocean remains largely undescribed, one of the main tasks of the research team is to produce images of the flora and fauna of ecosystems in the depth of 400-800 meters. Indeed, producing high quality imagines of rarely seen species was repeatedly highlighted as a “speciality” of the lab, with Sumida famously spending “up to 10 hours” to take the perfect picture of a new species during a cruise.

Collaborative taxonomy

“It is normal that every researcher discovers a new species in this area,” the doctoral student Bruno Henrique told me when I congratulated him to describing a new species in his PhD thesis. Indeed, also Bachelor student André Calloni described a new brittle start in his bachelor thesis which consists of a catalog of spectacular photographs of brittle stars. When asking about their methodology how to identify new species, I began to learn about the collaborative working method that characterizes this laboratory. I learned that when they discover something unknown, “here everyone speaks to everyone” so that everyone´s taxonomic knowledge is quickly aggregated to discover the species at hand – or if unknown – realize that it is indeed a new species. One could describe their method as “visual collaborative taxonomy” – as researchers identify species collaboratively and based on images.

The condensed milk statistic & and strong collaboration with oil companies

Unfortunately, researchers in Brazil have faced significant funding cuts in recent years which has led to making them financially dependent on funding from private sources. The decrease of federal public funding for research in Brazil arguably reached its dramatic yet ironic peak in 2021 when a public spending statistic showed that the previous federal government spent more money on condensed milk than on financing research. Because extractive industries in Brazil are required by law to spent 1% of their yearly revenue on scientific or educative purposes, companies such as Petrobras have filled the spending gap in recent years. Petrobras – the company involved in the “Car Wash” scandal – a massive corruption scheme, in which executives and politicians had taken bribes in exchange for awarding contracts – is now a major cooperation partner as they not only provide funding for research projects such as the DECODE project but also provide crucial infrastructure for the researchers such as the necessary vessels to conduct sampling in the deep sea. This cooperation – as always – comes with advantages and disadvantages. One major disadvantage that researchers lamented is the strict data sharing policy that Petrobras requires from its scientifc project partners. This means that Brazilian researchers involved in Petrobras projects are not allowed to share data (particularly not outside of Brazil), which oftentimes prevents them from engaging in international research projects or cooperations.

Overall, I spent two insightful and fascinating weeks at the LAMP and also got to see the research station in Ubatuba.

 

 

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

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

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

 

A new Marine Biodiversity Treaty in Sight

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

The week was characterized by ups and downs in the different sessions that were covering the package elements Marine Genetic Resources (MGRs), Area-based Management Tools (ABMTs), including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and the Transfer of Marine Technology (CBTMT), as well as overarching “Cross-cutting Issues”. The latter includes provisions on general principles and approaches governing the new instrument, the institutional setup regarding the decision-making organ (Conference of the Parties (COP)), the Scientific and Technical Body, the Secretariat, and the Implementation and Compliance Committee. Overall, the first week was characterized by a spirit of compromise by Parties, gradually finding a “landing zone” – namely agreement – on various contentious issues.

Final drafting of the new treaty

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

Figure 1: Language analysis of constructiveness of States’ statements

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

Marine Genetic Resources

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

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

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

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

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

Area-based Management Tools, including Marine Protected Areas 

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

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

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

Environmental Impact Assessments

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

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

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

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

Capacity Building and Transfer of Marine Technology

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

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

Unsettled cross-cutting issues

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

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

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

Conflict over Common Heritage of Mankind, IGC 2 & 3 Source: Vadrot et al., 2021	Conflict over Common Heritage of Mankind,  IGC 5.final Source: Authors

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

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

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

The “fluffy beast” and other institutional arrangements 

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

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

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

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

Compromising on the future Treaty

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

 

References: 

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

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

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

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

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