Impressions from the first week of negotiations on marine biodiversity

From March 25th to April 5th 2019 the second round of negotiations on an international legally binding instrument for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) is held in the UN Headquarters in New York. The new instrument -if governments agree- will be established under the United Nations Convention on the Law of the Sea (UNCLOS) and addresses gaps in current international law related to the governance of marine biodiversity in international waters. A third and fourth round of negotiations taking place in August 2019 and spring 2020 are expected to lay the ground for consensus on a new instrument shaping the conditions for how we study and use marine biodiversity in the future.

Fairness in exploring and exploiting the oceans?

The questions, which governments address, are wide-ranging and the proposed solutions carry the potential to transform how we study and govern our oceans in the future. How can the interests of different governments on the use of marine biodiversity be balanced with the need to protect and conserve marine biodiversity for future generations? This week, governments addressed the issues of Marine Genetic Resources (MGR) and Areas-based management tools (ABMT) and Marine Protected Areas (MPAs) based on the President’s aid to negotiations, which was developed to facilitate the negotiations and give an overview on all options that had been proposed by governments during the Preparatory Committee and the first session of negotiations, which took place in New York in September 2018.

Questions addressed

What are the criteria for identifying areas in need of protection? Who can apply these criteria and designate new Marine Protected Areas (MPAs)? If designated, who has the authority to manage and monitor these areas and do certain governments have more responsibilities in doing so than others? Should the technology gap between governments from the global north and the global south and the different capabilities of states to explore and exploit biodiversity beyond national jurisdiction be addressed, and if yes how? Does a new treaty imply changes to existing legal frameworks of the law of the sea? As government do not seem to want any changes to the existing framework, what is it then that a new treaty will actually do?

Marine Genetic Resources (MGRs)

The debate about marine genetic resources deals with the possibility to use a variety of species living in the deep sea for commercial purposes by decoding and analyzing their genetic information. Although knowledge about marine genetic resources and about the potential fields of application is largely lacking up to date, the sheer possibility that genetic information of species found outside of national jurisdictions could become commercially exploited in the future makes this debate a fundamental one. In the negotiations, it quickly became clear that a substantial divide between developing countries and a number of developed countries exists. It had been agreed that some sort of benefit sharing should take place in relation to marine genetic resources and the future commercial use of them but the scope, the process and the rules under which the benefits would be shared caused disagreement.

Is the genetic information of deep sea species a common heritage of mankind?

Place where we were sitting with view on national representatives

Several countries such as the Pacific Small Island Developing States (PSIDS) and Brazil on behalf of the Latin American and likeminded countries favour that marine genetic resources should be treated as “common heritage of mankind”. This principle of “the common heritage of mankind” underpins the current international seabed regime, meaning that all resources found on the seabed in areas beyond national jurisdiction belong to all humans and future generations equally. They are “common goods”. In consequence, if a company wishes to exploit natural resources in the seabed it is obliged to share the benefits. The International Seabed Authority (ISA) is mandated to make sure that all benefits arising from the exploitation of minerals lying on the seabed in areas beyond national jurisdiction are fairly distributed. Some developed countries such as the USA however, strictly reject the application of this principle to marine genetic resources and prefer a process in which companies or states share in a voluntary way and only are supposed to share non-monetary benefits. Non-monetary benefits could include for example genetic repositories and other scientific capacities, including the transfer of marine technology. It was proposed to establish an open access data sharing mechanism in form of a one-stop clearing house, which contains not only genetic repositories but also information about date and place of excursion cruises.

From a scientific perspective it was noted that the sharing of data, samples and repositories exists as common practice and that the potential treaty should thus go beyond the existing practice, enabling more international scientific cooperation without placing complicated regulation on scientific research. Following these considerations, it was discussed how such a clearinghouse mechanism should be designed.

Area-Based Management Tools and Environmental Impact Assessments

After all parties presented their opinion on the topic of MGRs, the president moved the negotiation to the second item of the President’s aid, namely the topic of Area Based Management Tools such as Marine Protected Areas. In this item, it was crucial to determine who could establish a marine protected area and based on which criteria. The room was divided on this issue. Countries such as the US and China prefer to create a process in which only states can propose marine protected areas and subsequently have to decide upon the establishment unanimously. Most of the parties such as the EU however, argue that a mechanism is necessary for cases when consensus cannot be reached and the decision-making body would effectively be blocked. Furthermore, some states proposed to open the process of identification of areas that qualify for a MPA to scientific bodies or other non-state parties. Disagreement also existed on the question whether MPAs should be management and chosen according to the precautionary principle or according to the precautionary approach, which would include weaker rules.

On Friday, the floor was opened to give a first impression into the different positions concerning the conduction of environmental impact assessments (EIA). Again, states differed on the view whether such a process should be led by an independent scientific body or by the states themselves.

Positive atmosphere: hoping for a “zero draft”

The first week of negotiations was marked by a very positive atmosphere and the willingness of governments to make progress was very visible through several interventions made. The chair opened the negotiations using the metaphor of a “canoe”, in which all governments are sitting and where everybody has to engage equally to make the canoe move. The metaphor was picked up by some governments and NGOs as well as representatives of scientific communities that signaled their commitment to the process and their willingness to advice, where necessary. The number of observers and representatives of Intergovernmental Organizations (IGOs) and NGOs, was higher than at the first session and it seems that interest in the process has generally increased.

Each day, two to three side events were organized by IGOs, NGOs and scientific communities to shed light on the most pressing issues and for the purpose of sharing expertise and experiences across different stakeholder groups. In one side event, organized by the International Oceanographic Commission (IOC) of UNESCO, scientists presented ongoing efforts to establish global databases for sharing marine biodiversity data among scientists. The side event was very well attended, inter alia by representatives of the EU and the US, who asked questions about the practicalities to establish some kind of repository under the new instrument through which information on scientific activities on the oceans could be shared and capacity building for developing countries be supported.

Negotiations will continue until the 5th of April. Ideally, a zero draft for the third session in August will be ready by then. However, this depends on how the current discrepancies between the different interest groups are resolved and what language will be found to bridge contradictory red lines between government positions.

This article has been written by Arne Langlet and Alice Vadrot

Why negotiations on marine biodiversity “came close to collapsing”

From the 17th to the 29th of November 2018, governments met in Sharm El Sheik, Egypt, to negotiate issues related to the protection and sustainable use of biodiversity in the framework of the United Nations Convention on Biological Diversity (CBD). “Marine and Coastal Biodiversity” was on the agenda, which is why I participated in the negotiations as a representative of the University of Vienna and in my position as a Principal Investigator of MARIPOLDATA. In the following, I will give an account of the negotiations and shed light on the tensions that emerged between governments and what these tensions tell us about the place of science in international marine politics.

The venue from outside

 

The 14th Conference of the Parties of the CBD was held at the International Congress Center (SHICC) of Sharm El Sheik, close to a seemingly provisional bus terminal, where buses regularly shuttled between the conference hotels, mostly located at the seaside, and the conference venue, which was rather remote. Arriving from the Airport in the middle of the night, one could sense that Egypt was more than proud to host the 14th COP. The airport and the highways were covered by large posters welcoming delegates from all over the world, national delegates, representatives of NGOs, local and indigenous communities, business, academia and research and other UN agencies and bodies.

 

 

Place, from where I did many observations

148 governments and 3828 individuals

COP 14 belongs to the so-called “mega-event”, where high diplomacy is performed and where, for the period of two weeks, the global biodiversity community from A like African Development Bank Group to Z like Zoological Society of London met.148 governments and 3828 individuals participated in the negotiations. The size of the national delegations varied significantly. While the German delegation, for example, comprised 36 delegates, Brazil sent 66 representatives and Bolivia 4. Austria sent 25 delegates, a rather large number, which can be explained by the fact that Austria had the EU Presidency and was in charge of organising the EU position and speaking on behalf of its member states. Because of security issues, some governments did not send any representative; other governments restricted travelling of their delegates to Sharm El Sheik and Kairo.

 

The venue from inside

Egypt, the host of COP 14, had a very keen interest in marine issues. The longstanding representative of Egypt to CBD COPs, Moustafa Fouda, Minister Advisor on Biodiversity, is himself a marine biologist. Marine and coastal biodiversity of the red sea was present at the venue through pictures and advertisements covering the walls and rooms of the Congress Centre, which nearly gave the impression that the whole COP was actually about marine issues. Several side events addressed marine biodiversity and were used by government representatives and representatives of NGOs and academia, to discuss progress made in implementing Marin Protected Areas (MPAs), marine biodiversity monitoring programmes, technologies and practices. On Saturday, November 23rd, during the break from negotiations, a “Sustainable Ocean Day” was organised by the CBD Secretariat, in which surprisingly most of the national delegates, which took part in negotiations on marine issues, participated. Including myself.

 

Negotiations on “Marine and Coastal Biodiversity”

Plenary

The negotiations on item 25 “Marine and Coastal biodiversity” only stared on day 3 of the COP namely on November 20th. The chair opened the floor for interventions on the draft text, including comments on the different options proposed. The interventions were never-ending and marine biodiversity turned very quickly into a controversial issue, which the partly opposing view of some delegations showed. Tensions emerged regarding the symbolic constraint on national sovereignty and jurisdiction, potential effects on conflicts related to disputed marine areas, and the recognition of the United Nation Convention on the Law of the Sea (UNCLOS) and its on-going efforts to establish a new legally binding instrument for marine biodiversity in areas beyond national jurisdiction. Governments, who had to call their capitals for further advice, constantly interrupted negotiations.

Why is marine biodiversity so controversial?

In 2008, CBD COP 9 decided to address the protection and sustainable use of marine biodiversity through a “purely scientific process”, particularly to avoid conflicts related to the United Nation Convention on the Law of the Sea (UNCLOS), which is not recognized by all member governments of the CBD (e.g. Turkey, Venezuela, and Columbia). The idea was to tackle the protection of marine biodiversity beyond national jurisdiction through regional workshops, where scientists could make the first move by synthesising marine biodiversity data for identifying ecologically or biologically significant marine areas (EBSAs) in need of protection in open-ocean waters and deep-sea habitats (COP IX/20). The EBSA descriptions rely on different types of data and the scientific input of experts nominated by governments and relevant organisations. In a final step, the draft descriptions as produced by the experts, including geo-locations and scientific references, are compiled into negotiation text and then adopted by governments before being entered into a digital repository. Since 2008, more than 300 EBSA were described and approved by governments. Some of them are located within national jurisdiction, others in areas beyond national jurisdiction, and some in territories of two states and in international waters and so on. However, once entered into the repository, how can the descriptions be changed and new ones added if they belong to an area already covered by a workshop?

Intergovernmental versus national processes

In other words, borders were the Pudels Kern, which is why negotiations “came close to collapsing” (ENB 2018, p. 2) . Therefore, when the chair opened the floor for intervention, almost 40 governments asked for it and made rather detailed interventions on the proposed text. They continued to the break and had to stop, because of plenary. They continued the next day when the chair had to conclude that a contact group had to be established to balance the diverging views of the different delegations. The contact group met 5 times and negotiations often progressed until midnight. The most difficult part concerned the modalities for changing EBSAs located in national waters of one state. While China, Korea, Singapore, Turkey and Japan, were in favour of establishing an intergovernmental process, the EU (mostly because of the UK and Greece), New Zealand, Argentina, Columbia and Brazil opted for a national process. Columbia in line with other governments such as Brazil and Argentina underlined the superiority of national sovereignty over national waters.

An interesting question remains why China, Korea and Japan formed –at least until the last day- a coalition to support the idea of an intergovernmental process. One could speculate that an intergovernmental process enables governments to control the behaviour over others, particularly regarding disputed marine areas. If the EBSAs already agreed on are changed through a purely national process with no reporting obligations, the descriptions might cover the territory, which is disputed. While the “purely scientific process” and the EBSA descriptions do not imply “the expression of any opinion whatsoever […] concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries” governments were concerned about potential effects of prejudicing through scientific descriptions.

The effects of new science and data (infrastructures)

A continuous process for monitoring and modifying EBSAs is crucial, for maintaining the scientific credibility of the descriptions by updating them with scientific insights and new marine biodiversity data, rapidly developing inter alia because new technologies for collecting and analysing data are applied to ever broader

and deeper areas of the oceans to explore its geography and biological diversity. New detection methods, sampling regimes, big data infrastructures, digitisation of historical data and attempts to combine remote sensing and genetics have created new approaches to safeguard marine biodiversity, enhance national biosecurity and track biodiversity monitoring and modelling into the future. Big environmental data sets and automated analysis shape expectation towards new forms of governing the oceans, which is exemplified by the debate over EBSAs and the modalities for modifying their borders. While the adoption of EBSAs over the past 10 years was rather uncontroversial, the question on how to modify them pushed diplomacy to its margins.

In the end, governments adopted the new EBSA descriptions without any controversy and decided to postpone further debate on how to modify EBSAS and add new ones to the next meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) of the CBD (see brackets and unresolved text in CBD COP 14 Decision 14/9) . It remains to be seen if an agreement can be reached at the CBD SBSTTA or at next COP, which will take place in China in 2020.

 

MARIPOLDATA: An opportunity for ground-breaking research

One year ago, I started to put together my ideas for a submission to the Starting Grant scheme of the European Research Council (ERC). Inspired by research conducted during my two-year stay at the Centre for Science and Policy (CSaP) of the University of Cambridge, debates with my distinguished colleagues and a succession of great discussions and workshops with Hannah Hughes from Cardiff University, I sat down over the summer last year to write a proposal strong and creative enough to convince the SH2 panel on Institutions, Values, Environment and Space of the ground-breaking character of my research- as the ERC frames it- and my research profile. They evaluate both your ideas and, yourself.

After I progressed to the second stage of the evaluation process, I was invited for an interview, which took place in Brussels on the 30th of May. An 8-minute presentation, which in the end I nearly knew by heart. The presentation was followed by 17 minutes of questions by a panel, which was very welcoming and merciless at the same time. I decided to go hiking 250 km on the South West Coast Path from Newquay to Falmouth the week before the interview and this was the best thing I could have done to be mentally prepared for the 25 minutes in front of the ERC panel. After the presentation, I even lost my voice and all the energy I accumulated during our walk along the Cornish coast.

Last Friday- after weeks of waiting and thinking about every single answer I gave- the ERC communicated the results of the last call and I am more than proud to be one out of 403 researchers, who obtained an ERC Starting Grant and get the opportunity to create their own research teams and conduct the research they believe in.

I will use my grant to develop and apply a new multiscale and interdisciplinary methodological approach for grounding the analysis of science-policy interrelations in empirical research. I will apply this approach to the newly emerging field of marine biodiversity politics with the ambition to transform our understanding of the role of data and of global and national marine biodiversity monitoring practices and policies in governing the oceans.

The background of my project is the decision of the UN General Assembly to develop a new legally binding treaty under the United Nations Convention on the Law of the Sea to protect marine biodiversity and ensure that benefits are equally shared. Within this treaty marine biodiversity data will play a central role: Firstly, in supporting intergovernmental efforts to identify, protect and monitor marine biodiversity. Secondly, in informing governments interested in particular aspects of marine biodiversity, including its economic use and its contribution to biosecurity.

In examining how this data is represented and used, this project will create a novel understanding of the materiality of science-policy interrelations in global environmental politics as well as develop the methodologies to do so. This is crucial because the capacities to develop and use data infrastructures are unequally distributed among countries and global initiatives for data sharing are significantly challenged by conflicting perceptions of who benefits from marine biodiversity research. Despite broad recognition of these challenges within natural science communities the political aspects of marine biodiversity data remain understudied. Academic debates tend to neglect the role of international politics in legitimising and authorising scientific concepts, data sources and criteria and how this influences national monitoring priorities.

The central objective of MARIPOLDATA is to overcome these shortcomings by developing and applying a new multiscale methodology for grounding the analysis of science-policy interrelations in empirical research and by strengthening and deepening the research network I have established with wonderful colleagues in the past years.

I really look forward to it and I would like to thank everybody, who supported my efforts and who believed in me.  I also would like to thank the Austrian Science Fund (FWF) for supporting my work in Cambridge and at the Department of Political Science of the University of Vienna, where I could use my time and resources to write my ideas down.

This blog was posted on July 30, 2018 on www.alicevadrot.eu