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.

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.

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.

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].

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

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.

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 15^th 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.

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).

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 24^th meeting of the Subsidiary Body on Scientific, Technic and Technological Advice of the CBD (ENB, 2022).

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).

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.

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).

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.

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.

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.

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.

 

References

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Animalia. (n.d.a). Threatened Species of Gabon. https://animalia.bio/lists/country/threatened-species-of-gabon?page=1.

Animalia. (n.d.b). Threatened Species of Jordan. https://animalia.bio/lists/country/threatened-species-of-jordan?page=1

Animalia. (n.d.c). Threatened Species of India. https://animalia.bio/lists/country/threatened-species-of-india?page=1. 

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.

CBD Dec. 14.8, Protected areas and other effective area-based conservation measures (Nov. 30, 2018).

CBD. (2021). First Draft of the Post-2020 Global Biodiversity Framework. (CBD/WG2020/3/3). https://www.cbd.int/doc/c/914a/eca3/24ad42235033f031badf61b1/wg2020-03-03-en.pdf

Cobb, E. (2020). Japan’s forgotten indigenous people. BBC. https://www.bbc.com/travel/article/20200519-japans-forgotten-indigenous-people

Convention on Biological Diversity, Jun. 5, 1992, 1760 U.N.T.S. 79.

ENB. (2022). Geneva Biodiversity Conference Highlights: Friday, 25 March 2022. International Institute for Sustainable Development. https://enb.iisd.org/sites/default/files/2022-03/enb09771e.pdf

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

IUCN. (n.d.). Invasive Alien Species. Retrieved June 3, 2022, from https://www.iucn.org/regions/europe/our-work/biodiversity-conservation/invasive-alien-species?msclkid=28bac60cd0f211ec8246d9df83c67bdd.

IWGIA. (2022). The Indigenous World 2022 (M. Dwayne, Hrsg.; 36th Aufl.).

Kirkfeldt, T. S. (2019). An ocean of concepts: Why choosing between ecosystem-based management, ecosystem-based approach and ecosystem approach makes a difference. Marine Policy, 106, 103541. https://doi.org/10.1016/j.marpol.2019.103541

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

Murray, P. A. (1996). The fisheries of St. Lucia, West Indies. NAGA, 19(1), 41–44.

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

NOBANIS. (2015). Invasive Alien Species: Pathway Analysis and Horizon Scanning for Countries in Northern Europe. TemaNord 2015:517.

Sandilyan, S., Meenakumari, B., Babu, C. R., & Mandal, R. (2019). Invasive Alien Species of india. National Biodiversity Authority, Chennai. http://nbaindia.org/cebpol/pub/iaslist.pdf

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UNEP. (n.d). About the United Nations Environment Assembly. https://www.unep.org/environmentassembly/about-united-nations-environment-assembly#:~:text=The%20United%20Nations%20Environment%20Assembly%20was%20created%20in,on%20Sustainable%20Development%2C%20also%20referred%20to%20as%20RIO%2B20.

UNEP. Environmental Assembly. Res. 5, Nature-based solutions for supporting sustainable development (Mar. 2, 2022).

Vadrot, A. B. M. Langlet, A., Tessnow-von Wysocki, I. (2021a). Who owns marine biodiversity? Contesting the world order through the `common heritage of humankind´ principle. Environmental Politics, 31(2), 226-250. https://doi.org/10.1080/09644016.2021.1911442

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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).

 

Conclusions

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.