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

By Silvia Ruiz and Alice Vadrot

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

This contribution presents our new paper tackling the online discussions about an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). Such online discussions took place during the first two years of the COVID-19 pandemic as the fourth intergovernmental conference (IGC4) was postponed until 2022. We include developments from the online Intersessional Work organized by the UN Secretariat since September 2020, and the virtual High Seas Treaty Dialogues, taking place under Chatham House rules, organized by 3 states and a number of NGOs.

Multilateral negotiations are a simultaneous process constituted by different factors:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What will the future bring?

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

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

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


Aeschlimann, J., & Regan, M. (2017). The GA Handbook: A practical guide to the United Nations General Assembly (2nd ed.). Permanent Mission of Switzerland to the United Nations. https://www.unitar.org/sites/default/files/media/publication/doc/un_pga_new_handbook_0.pdf

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

Betsill, M., & Corell, E. (2008). Introduction to NGO Diplomacy. In NGO Diplomacy: The Influence of Nongovernmental Organizations in International Environmental Negotiations (pp. 1-18). MIT Press.

Chasek, Pamela S. 2001. Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy. Tokyo: United Nations University Press.

Chasek, Pamela. 2021. “Is It the End of the COP as We Know It? An Analysis of the First Year of Virtual Meetings in the UN Environment and Sustainable Development Arena.” International Negotiation 27: 1-32.

Coleman, KP (2011) Locating norm diplomacy: Venue change in international norm negotiations. European Journal of International Relations, 19(1): 163-186.

Craggs, Ruth, and Martin Mahony. 2014. “The Geographies of the Conference: Knowledge, Performance and Protest.” Geography Compass 8 (6), 414-30.

Henrikson, Alan K. 2005. “The Geography of Diplomacy.” In Geography of War and Peace: From Death Camps to Diplomats, edited by Colin Flint, 369-94. Oxford: Oxford University Press.

Morin, J., Orsini, A., & Jinnah, S. (Eds.) (2020). Global Environmental Politics: Understanding the Governance of the Earth. Oxford University Press.

Salacuse, Jeswald W., and Jeffrey Z. Rubin. 1990. “Your Place or Mine? Site Location and Negotiation.” Negotiation Journal 6 (1): 5-10

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

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

Touval, Saadia. 1989 “Multilateral negotiation: An analytic approach.” Negotiation Journal 5(2): 159-173.

UNEP. 2007. Guide for Negotiators of Multilateral Environmental Agreements. Nairobi: UNEP. https://wedocs.unep.org/handle/20.500.11822/7496?show=full.

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

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

Winham, Gilbert R. 1977. “Complexity in International Negotiation.” In Negotiations: Social- Psychological Perspectives, edited by Daniel Druckman, 347-366. Beverly Hills: Sage Publications.

Zartman, I. William. 1994. “Two’s Company and More’s a Crowd: The Complexities of Multilateral Negotiation.” In International Multilateral Negotiation: Approaches to the Management of Complexity, edited by I. William Zartman, 1-10. San Francisco: Jossey-Bass.

Too High Hopes for a High Seas Treaty?

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

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

Source: Unsplash

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

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

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

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

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

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

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

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

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

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

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

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

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

Swirls of disagreement – why there was still no consensus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Setting Sail for the next Conference Session

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

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

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

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

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

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

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

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

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

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

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

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

The negotiation room; Source: Author

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

MGRs – will restructuring be enough?

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

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

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


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

What is the purpose of ABMTs/MPAs?

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

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

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

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

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

Assessing human impacts on the High Seas 

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

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

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

CBTMT – what is the right amount of detail?

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

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

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

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

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

Crosscutting Issues


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


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

Scientific and technical body

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


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

Graph – most discussed articles per package item: 


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

Conclusion – equipping the BBNJ with strong and flexible institutions: 

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

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


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

UN Ocean Conference 2022 Blog – IDDRI & MARIPOLDATA

By: Paul Dunshirn, Arne Langlet, Klaudija Cremers

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


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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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

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

Deep seabed mining moratorium and the return of the precautionary principle 

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

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

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

Ensuring a strong mandate for BBNJ decision-making bodies

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

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

Establishing an effective implementation and compliance committee 

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

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

Moving towards BBNJ IGC-5

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

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

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

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

Appendix: Graph on BBNJ positions

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

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

By Anook Garden

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

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

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

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

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

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

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

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

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

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

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

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

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

Hybrid meetings and the study thereof

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

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

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

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

Marine Issues in the Post-2020 Global Biodiversity Framework

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

Goals A and B: ecosystems and cultural values

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

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

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

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

Scope of targets 1 and 3

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

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

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

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

Type of spatial measure in target 3

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

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

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

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

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

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

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

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

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

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

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

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

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

Numeric figures

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

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

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

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

What concepts should we apply in target 8?

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

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

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

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

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

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

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

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



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

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

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

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

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

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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

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

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

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

Key arguments

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

A New Agreement on Marine Biodiversity

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


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

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

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

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

Controlling the flow of MGRs

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

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

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

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

CITES Introduction From Sea clause                                                                                                                     BBNJ Marine Genetic Resources monitoring draft



How to proceed with two “not undermining” clauses

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

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

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

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

BBNJ and CITES share a focus on capacity building

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

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


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



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

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

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

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

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

Participation at BBNJ negotiations matters

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




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

Some background

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

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

Reflections from an environmental justice perspective

Environmental justice often has a plurality of meanings and encapsulates:

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

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

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

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

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

Information and process transparency

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

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

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

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

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

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

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

International human rights perspective

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

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

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

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

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

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

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

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

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

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

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

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

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

Impact on (ethnographic) study of the negotiation

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

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

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

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

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



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

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


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

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

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

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


Recap of second week: 

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

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

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


Graph 1 – speaking time of state delegates per package


Crosscutting Issues:

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

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

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


The future Scientific and Ttechnical Body (STB)

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

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


BBNJ Secretariat

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


Clearing House Mechanism

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

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


Funding for the High Seas Treaty

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

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

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


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

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


How to make words come into action?

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


Defining what is being negotiated…

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


Evaluating activities on the High Seas through EIAs:

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

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

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


Main points of divergence

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

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

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

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

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

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



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

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


Closing remarks and Outlook

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

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

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

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

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

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

Jumping right into negotiation mode – and into cold water

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

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

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

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

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

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

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


Figure 1 – Discussion Time by Topic


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

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

Table 1 – Recorded Number of Statements per Package Item


How to build capacity and transfer marine technology?

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

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

Table 2 – Contentious Articles in the CBTMT Chapter

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


Table 3 – Articles with most flexible positions in CBTMT Chapter

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


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

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

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

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

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

Table 4 – Contentious Articles in the MGR Chapter

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

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

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

Table 5 – Articles with most flexible positions in MGRs Chapter

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


When water turns into ice: Negotiations in ABMT session freeze

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

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

Table 6 – Contentious Articles in the ABMTs/MPAs Chapter

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


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

Diving into the second week of negotiations

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

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

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

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