Marine Issues and Digital Sequence Information at CBD COP15.2: Lessons and implications for the upcoming BBNJ negotiations?

By Silvia Ruiz Rodríguez and Paul Dunshirn

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about marine biodiversity negotiations – more specifically, 1) the negotiations towards an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) and 2) the second part of 15th Conference of the Parties (COP15.2) to the Convention on Biological Diversity (CBD). In this blog post, we elaborate on the discussions and outcomes of the Kunming-Montreal Global Biodiversity Framework (GBF) and the CBD decision on digital sequence information (DSI) with a focus on marine issues. Additionally, we point out links with the second part of the 5th Intergovernmental Conference (IGC5.2) of the BBNJ negotiations

Opening plenary of the CBD COP 15.2. (Source: own ethnographic data)

Marine issues in the Kunming-Montreal Global Biodiversity Framework

The Kunming-Montreal Global Biodiversity Framework (GBF) aims to halt and reverse global biodiversity loss through the achievement of four goals by 2050 and 23 action-oriented targets by 2030. Such goals and targets contribute to the Agenda for Sustainable Development (CBD COP15.2, dec. 15.4, Annex, para. 26) and pave the way for states to achieve the “shared vision of living in harmony with nature” by 2050 (para. 3).

The GBF was negotiated by state parties to the CBD during the sessions of the Open-Ended Working Group on the Post-2020 Global Biodiversity Framework (WG2020), which met five times between August 2019 and December 2022 and delivered the GBF draft to the COP15.2. While there are numerous marine issues across different targets of the GBF, we focus on the discussions on targets 1, 2, and 3 at COP15.2 as the scope of application of these targets might be subject to different interpretations.

Spatial planning of activities

Target 1 aims to ensure that states implement management plans for activities carried out on all terrestrial and marine areas to decrease biodiversity loss. During COP 15.2, discussions on this target revolved around the geographical reach and types of ecosystems that the target would address, as well as its feasibility.

Similar to discussions throughout the sessions of the WG2020, states struggled over the application of the target to only areas within national jurisdiction or both areas within and beyond national jurisdiction. On the one hand, arguments for circumscribing target 1 to areas within national jurisdiction relied on a narrow interpretation of the applicability of the CBD to national jurisdiction (CBD art. 4) and its relation to other international instruments (CBD art. 22; Prip, 2022). On the other hand, arguments supporting the applicability of target 1 to areas within national jurisdiction and areas beyond national jurisdiction promoted the coexistence of CBD and UNCLOS on the high seas with regard to biodiversity protection (Prip, 2022).

States had heated debates about whether the target would “retain” “intact ecosystems” or “critical and intact ecosystems.” States of the Global North struggled over the protection of such ecosystems while states of the Global South provided an array of arguments against such references. Firstly, retaining “intact ecosystems” would place a disproportionate burden on states of the Global South, which have a higher extent of wild areas in comparison to states of the Global North. Secondly, most ecosystems have been affected by anthropogenic activities. Thirdly, the meaning of “critical ecosystems” is unclear.

Against this scenario, states of the Global North proposed to replace “intact ecosystems” with “ecosystems that are hard to restore.” This proposal was nevertheless not accepted by their counterparts of the Global South. In the spirit of compromise, states agreed to “bring the loss of (…) ecosystems of high ecological integrity, close to zero” under target 1.

Restoring degraded areas of ecosystems

Target 2 aims to restore 30% of degraded land, inland water and marine areas to improve the state of the ecosystems. Debates focused on the numeric element, the purpose of the target, as well as types of ecosystems and areas to restore.

Similar to discussions at the WG2020, disagreements lay on whether the number should be absolute or relative. State actors supporting an absolute number, such as the European Union (EU), the Russian Federation, Samoa, and Switzerland preferred to protect hectares of areas. The EU, particularly, aimed to refer to a billion hectares of areas. States supporting a relative number, such as Australia, Brazil, Dominican Republic, India, Maldives, and Mexico, among others aimed to protect a percentage of areas. Although absolute numbers are needed for calculating a relative one, states agreed on representing the numeric element as a percentage to keep consistency with target 3.

The purpose of the target was also a topic of debate. The EU proposed that the restoration of areas would achieve an “increase of area of natural ecosystems” while Argentina, Kenya, Switzerland, and the United Kingdom proposed that the restoration of areas would “enhance biodiversity, and ecosystem services, ecological integrity and connectivity.” The first option might imply a gradual geographic expansion of the reach of the target before 2030. In contrast, the second option fails to suggest such a gradual increase. Consensus was reached on the second option with the addition of “ecosystem functions,” giving states flexibility to restore natural ecosystems, as well as altered and managed ones like aquaculture ponds.

Implementation of protected areas

Target 3 aims to guarantee that states conserve 30% of land, inland water and marine areas through protected areas and other effective area-based conservation measures (OECMs) while recognizing the rights of Indigenous Peoples and Local Communities (IPLCs). Some of the disagreements focused on the numeric element and the scope of the application.

Similar to discussions throughout the sessions of the WG2020, the numeric element was an object of debate. At COP15.2, differences lay on the specific percentage (30%, 20%, 13%, or even 10%), and whether this percentage would apply to 1) terrestrial and inland water and 2) marine ecosystems together or separately. The higher the percentage, the more efforts states have to undertake to achieve the target. Moreover, applying the percentage to land, inland water and marine areas separately increases these efforts even further. This was particularly challenging for some states of the Global South whose economies depend on the extraction of natural resources for the most part. States could not reach a compromise in the open sessions of COP15.2, resulting in the solution of this issue by state ministers who agreed to protect 30% of 1) land and inland water and 2) marine areas separately. In other words, states would fail to reach the target if they protect 20% of terrestrial and freshwater areas and 10% of marine areas.

The scope of application of target 3 was also an object of debate. At COP15.2, states struggled over the conservation and management 1) “of all land and of ocean” or 2) “of terrestrial and inland water, and of coastal and marine areas.” As the “ocean” contains both national and international waters, reference to the “ocean” might have enabled the implementation of marine protected areas and OECMs in areas within and beyond national jurisdiction. Australia, Cook Islands, Costa Rica, Israel, Maldives, Samoa, Saint Lucia, and Tonga, among others, supported this reference.

The wording “coastal and marine areas” has been interpreted in the context of the CBD as a phrase that mostly applies to national jurisdiction. It might also imply both national and international waters, providing interpretative flexibility to the text. Brazil, the EU, India, Norway, and the Russian Federation supported the reference to “coastal and marine areas” for consistency with Aichi target 11. Parties decided to refer to “coastal and marine areas” in target 3 despite the unconformity of countries that supported reference to the “ocean.

Decision on DSI and its contribution to the GBF

A core element of the CBD is its system for access and benefit-sharing for genetic resources. The Nagoya protocol has introduced a system that attributes a substantial level of sovereignty to nation states over their genetic resources, requiring users to enter mutually agreed terms with provider countries to ensure the sharing of benefits. Importantly, this framework is generally limited to genetic materials, even though the relationship to DSI has always been a source of contention. As DSI is central to a range of Research and Development (R&D) activities, parties to the CBD strived to find solutions during COP15.2.. This resulted in several decisions on the nature of a future multilateral mechanism, some of which appear of particular importance to the BBNJ discussions.

As it relates to the very question of whether benefits from DSI should be shared, COP15.2 “agrees that the benefits from the use of digital sequence information on genetic resources should be shared fairly and equitably” (CBD COP, dec. 15.9, para. 2). This can be read as a general recognition that the CBD should develop a system beyond benefit-sharing on genetic materials. In preparation for BBNJ IGC-5.2, this has created a discussion about the meaning of the phrase ‘benefits from the use of DSI’. As some suggest (Oldham et al., 2023), this implies that benefits need to be assessed based on evidence of DSI use. In other words, monetary benefits cannot be shared if they are ‘decoupled’ from use, but need to be informed by individual or aggregate use. This interpretation of the decision essentially implies that some form of traceability needs to be implemented in combination with the future benefit-sharing system. The question about the extent to which monetary benefit-sharing on DSI and traceability need to go hand-in-hand will also be of key importance for the BBNJ negotiations, where it would make sense to find solutions compatible with the CBD decisions (Langlet & Dunshirn, 2023; Oldham et al., 2023).

Concerning the question of traceability, COP15.2 “recognizes that tracking and tracing of all digital sequence information on genetic resources is not practical” (CBD COP, dec. 15.9, para. 5). The discussions that have inspired this decision have revolved around the complexity of tracing DSI. Research practices involve comparing hundreds or thousands of DSI (Scholz et al., 2022). Thus, scientific observers to COP 15.2. have argued that a comprehensive track and trace system of all of these uses may cost more than it may contribute to the overall goal of establishing a monetary benefit-sharing system on DSI (Scholz et al., 2022). Additionally, a track and trace system on DSI can never be fully comprehensive, as users may download DSI and analyze or further share it directly outside the established infrastructures (Rohden et al., 2020). However, some commentators emphasize that the decision concerns track and trace of all DSI, implying that it may be practical for some DSI (Oldham et al., 2023).  

COP15.2 also “decides to establish […] a multilateral mechanism for benefit sharing from the use of digital sequence information on genetic resources, including a global fund” (CBD COP, dec. 15.9, para. 16). This decision is a clear break with the bilateral access and benefit-sharing system for genetic resources introduced under the Nagoya protocol. Instead, it introduces a novel multilateral mechanism. The relationship between these novel multilateral and bilateral systems remains unclear, and it is conceivable that hybrid forms will be discussed moving forward. As some observers have argued, a multilateral system is particularly suitable for DSI, as many research practices may use DSI from hundreds of different origins in one search, making it hard to imagine how this should be dealt with in a purely bilateral manner (Scholz et al. 2022).

Overall, the decision on DSI provides guidelines for the further construction of a multilateral benefit-sharing mechanism. As guidelines,  they are not legally binding and it is up to state parties to further sketch out the system they sketched out during COP15.2.

Why should we care about the CBD COP 15.2 when negotiating the BBNJ treaty during the coming weeks? 

BBNJ negotiators should keep in mind discussions and outcomes of the CBD COP15.2 to facilitate synergies and collaboration between both instruments. Targets 1, 2, and 3 of the GBF are particularly relevant for the package element on area-based management tools, including marine protected areas.

Two outstanding, interrelated reasons come to the fore. Firstly, it is necessary to conduct marine spatial planning (GBF target 1) to implement area-based management tools and marine protected areas (GBF target 2), restore degraded marine ecosystems (GBF target 3) and protect the marine environment under the CBD and BBNJ instruments. Secondly, the ecological connectivity of the ocean – through species’ movement and genetics, horizontal and vertical currents, as well as culture – requires coherent management and protection measures across areas within and beyond national jurisdiction for the conservation and sustainable use of marine biodiversity (Dunn et al., 2019; Mossop & Schofield, 2021; Mulalap et al., 2020; O’Leary & Roberts, 2018; Popova et al., 2019; Tessnow-von Wysocki and Vadrot, 2022; UNEP‐WCMC, 2018). Agreeing on complementary and mutually supporting measures between the CBD and BBNJ instruments is essential for taking management and conservation actions that ensure species’ persistence and increase ecosystems’ productivity (Berger et al., 2022). This would improve the health of marine ecosystems and protect economic sectors, such as fisheries and tourism.

The CBD COP15.2 decision on DSI is also particularly relevant for the BBNJ negotiations as it is inextricably linked to the package element on marine genetic resources (MGRs). Some negotiating parties to BBNJ have so far opposed including DSI in the treaty text to not forgo CBD decisions. Now that the decisions are on the table, it will be a great opportunity for negotiators to work towards a harmonized multilateral system. Distinguishing DSI from areas beyond national jurisdiction and areas within national jurisdiction on the existing genetic sequence databases is generally tricky and at present not supported by database providers (Langlet & Dunshirn 2023). Establishing functional governance frameworks for MGRs is key to achieving sufficient legal certainty for users and enabling benefit-sharing and capacity-building for the Global South. Enabling a variety of communities to use and benefit from marine biotechnology can go a long way in establishing blue economies that work for both people at the same time as contributing to ecosystem conservation (Blasiak et al. 2023).

Cross-fertilization between the CBD COP15.2 and the BBNJ IGC5.2 is essential for the success of the international community in the efforts toward the conservation and sustainable use of marine biodiversity. It can only help to harmonize international marine legislation, bringing global environmental governance a step forward in its path to coherent and effective protection and management of the world’s oceans.

Silvia Ruiz Rodríguez and Paul Dunshirn are associated researchers of the ERC Project MARIPOLDATA. Paul is a prae-doc at the Research Platform Governance of Digital Practices. Silvia’s on-site participation at COP15.2 and WG2020-5 was possible due to the generous support of MARIPOLDATA, the sowi:docs Fellowship Programme and the advancement scholarship of the University of Vienna.

Understanding Deep-Sea Life through marine scientific research: The case of Scripps Institution of Oceanography

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

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

Ellen Browning Scripps Memorial Pier at Scripps Institution of Oceanography, La Jolla (Photo credits: Ina Tessnow-von Wysocki)

Diving into Deep-Sea Research at the Lab

Whenever you are standing at the beach and your eyes scroll over the infinite horizon; whenever you are at the railing of a ship looking out to the blue waves or diving down to explore the shallow waters to the point where your snorkelling or scuba gear will no longer let you descend further… Have you ever wondered what lives thousands of meters below the surface of the ocean?

You probably know of the deep sea – you might have seen deep-sea organisms on pictures, videos, or even on your own research cruises and in the laboratory. Maybe you are involved in the United Nations negotiations on marine biodiversity governance as an observer – or even as a negotiator – to follow and take decisions over the life that exists in international waters, down to thousands of meters below the surface. Maybe you have come across pharmaceutical companies that are using deep-sea organisms for product development, and have engaged in conversations about deep-seabed mining – all of which are highly controversial discussions at the global UN level nowadays.

Yet, the deep sea is still little-understood: Humans have more knowledge of other planets, than they have about the deepest parts of this blue planet called Earth (Levin et al., 2019; Smith, 2019). But we do know that there is life in these dark and cold spaces in several thousands of meters depth!

Deep-Sea Samples at the Levin Lab (Photo credits: Ina Tessnow-von Wysocki)

Before I visited the Levin Lab, I had already undertaken social science research on the deep sea for almost 4 years, studied the role of deep-sea science in global negotiations of the United Nations, talked to deep-sea scientists like Sylvia Earle, engaged with colleagues on discussions on marine genetic resources and marine scientific research capacity building, yet, I had never been so close to deep-sea life until I got to meet the Levin Lab.

At Scripps Institution of Oceanography, for the first time, I saw a deep-sea organism – I looked at the little creatures that had lived thousands of meters below the surface. As my hand was shaking, I did not get a clear photo of it – don’t drop it! How many hours must have gone into collecting, identifying, preserving, researching, storing it? How much research money must have gone into the research cruise collecting it? And what would still be possible with researching it in the future? I had heard about it so many times, met many people working on it, I had spoken and written about it, had seen pictures and videos of it, followed international negotiations that set regulations about it for the future – but I had never actually seen it. This is how my laboratory ethnography in the Levin Lab started.

 

Why Laboratory Ethnography at Scripps Institution of Oceanography?

Since 1903, Scripps Institution of Oceanography at University of California, San Diego has contributed to investigations of the ocean and atmosphere and is considered one of the most important centers for global earth science research and education in the world[1]. While Scripps research covers climate change impacts and adaptation, resilience to hazards, conservation and biodiversity, ocean and human health, national security, and innovative technology (ibid) to observe the planet – we would like to zoom into one specific laboratory: the Levin Lab.

The Levin Lab opening their doors on a social scientists’ eyes to life in the deep sea… f.l.t.r:. Angelica Bradley, Lisa Levin, Francis Nguyen, Ina Tessnow-von Wysocki, John Howel, Olivia Pereira, Carlos Neira and Guillermo Mendoza (Photo credits: Ina Tessnow-von Wysocki)

Prof. Lisa Levin is a Distinguished Professor Emerita at the Scripps Institution of Oceanography, University of California, San Diego.  She served as Director of the Center for Marine Biodiversity and Conservation and Oliver Chair at Scripps from 2011-2017. Levin’s research interests include biodiversity and climate change impacts on deep-sea continental margin, and the application of deep-sea science to policy. Her lab studies benthic ecosystems in the deep sea and shallow water and has worked with a broad range of taxa, from microbes and microalgae to invertebrates, fishes and whales. Her recent research has emphasized 3 major themes: (1) the structure, function and vulnerability of continental margin ecosystems, particularly those subject to oxygen and sulfide stress, ocean acidification and deoxygenation; (2) wetland biotic interactions; and (3) larval ecology of coastal marine populations with emphasis on connectivity[2]. Levin’s deep-sea research has been conducted on over 50 expeditions to the margins of the Pacific, Indian and Atlantic Oceans using ships, submersibles, remotely operated vehicles (ROVs) and autonomous underwater vehicles (AUVs) to observe, sample and conduct experiments. Now, after her retirement, there still remain seven lab members in the Levin Lab, working on the different projects that she oversees.

A regular day in the lab..?

Identifying species with the Levin Lab (Photo credits: Ina Tessnow-von Wysocki)

There was no one day like the other in my fieldwork – and this is also true for marine research in the Levin Lab. The two weeks enabled me to shadow the scientists in their meetings, classes, observe their lab work with the samples, identification of species under the microscope, and data analysis of research cruise pictures and videos. Not only is the team diverse in their academic and cultural backgrounds, including researchers from Chile, Brazil, Mexico and the United States, but also the projects they work on within the Levin Lab include different geographical regions with study sites in Southern California, the deep Alaska continental margin and Costa Rica, with research topics ranging from  studying effects of DDT waste barrels in a previous industrial dumpsite in the San Pedro basin of Los Angeles; exploration and characterization of microbial and animal biodiversity in the Southern California Borderland; over effects of phosphorite and ferro-manganese crusts on the biology; to studying methane seeps in Costa Rica and hypoxia in coastal estuaries.

The Levin Lab is working on a range of different types of data: during the cruise they collect temperature, salinity, oxygen values for the water, sometimes turbidity, light, or fluorescence. The hyrographic data are automatically sent to the national database Rolling deck to repository (R2R). Moreover, the biological data are very labor-intensive and can take months to years to generate because the scientists in the Levin Lab have to sort the invertebrates out of the samples and measure the properties of the sediments and fauna (MARIPOLDATA Interview with Lisa Levin, 2022). The Levin Lab scientists then use both the physical samples, as well as pictures and videos from the cruises to map and understand the benthic communities.

There was also time to get a sense of the work of other Scripps laboratories, such as getting to know about gene sequences at Greg Rouse’s Lab  and taking a tour through the benthic invertebrate collection of amazing deep-sea creatures.
Besides getting to know the day-to-day work of Scripps scientists, I also conducted semi-structured interviews to understand how they became scientists, their motivations, what fascinates them in research, and got insights into their time on the vessel, and other moments that I could not capture in the little snapshot of two-week laboratory ethnography. What is it like to be on the submarine Alvin  – what crosses a scientist’s mind when descending several thousands of metres down into the depth of the ocean? What are opportunities, challenges and fears of individual scientists when it comes to funding their research? And what do the United States provide as national infrastructures for monitoring marine biodiversity and supporting science?

Benthic Invertebrate Collection, Scripps Institution of Oceanography

Through desk research and interviews, I could identify the conditions and obligations of US scientists, as regards the national and international regulations for their research. While scientists require a research permit in foreign waters, in US waters 3 miles off shore and when conducting research in US sanctuaries, marine scientific research in international waters is currently possible without a permit as regulated under the freedom of scientific research under UNCLOS (Art. 87 (f)).  As US federal funders generally require a data management plan in their grant proposals, scientists will thus commit to uploading their data to specific databases. While making data available to all is desirable, some databases fit certain types of data better than others – e.g. Genbank works well for genetic sequence data – there is currently “no nice, easy home for ecological community data” (MARIPOLDATA Interview with Lisa Levin, 2022), the type of data that the Levin Lab is collecting.

When Science meets Policy

Photo taken through the microscope

Some things are so small, your eyes cannot see them, so far away, you might never reach them and so different you may not be able to ever relate to them. But still, they are there and they are alive, in the deepest places of our ocean. The research of the Levin Lab is significant for international policy-making on global ocean and marine biodiversity governance because it seeks to understand life on the bottom of our ocean (benthic communities) and the conditions the deep-sea animals need to strive, as well as the implications that their existence has on surrounding ecosystems.

Lisa Levin is increasingly involved with policy through her engagement in different international fora. She is co-founder and co-lead of the Deep-Ocean Stewardship Initiative (DOSI)[3], author on the Intergovernmental Panel on Climate Change (IPCC) Special Report on The Ocean and Cryosphere in a Changing Climate, active participant at the Conferences of the Parties (COPs) of the United Nations Framework Convention on Climate Change (UNFCCC), and co-lead of the Deep Ocean Observing Strategy (DOOS)[4]. Apart from being involved in the intersections between science and policy herself, she also encourages early career researchers to get involved in communicating their research to policy-makers and the public. For this reason, the Levin Lab was also engaged in the first ever Climate Ocean Pavilion at a 27th climate conference of the parties (COP27) with Scripps[5].  International policy topics that she is recently engaged in are the link between climate change and the deep sea (Bris & Levin, 2020; Levin, 2019, 2021; Levin et al., 2020) and pointing to the risks of deep-seabed mining (Levin et al., 2016).

Reflecting on the two weeks of laboratory ethnography at Scripps Institution of Oceanography at the Levin Lab, this time provided me with – not just increased knowledge about the deep ocean – but also with incredible experiences and insights into the laboratory work, the situation researchers face, their motivations and a better understanding of marine science in the United States.  Throughout 2023, the MARIPOLDATA team will be able to use the data to compare it to the other cases of Brazil and the EU.

At the MARIPOLDATA Ocean Seminar Climate Change and the Deep Sea: Science-Policy perspectives, Lisa Levin gave insights into how climate change and the deep sea are interconnected and should therefore also be in global policy-making. While the science points to the importance of these links, climate change seems to still be marginalized in ocean discussions. Maybe science could be better integrated into global ocean governance through an Intergovernmental Panel for Ocean Sustainability (Gaill et al., 2022)..?

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

[2] https://llevin.scrippsprofiles.ucsd.edu/bio/

[3] DOSI integrates science, technology, policy, law and economics to advise on ecosystem-based management of resource use in the deep ocean and strategies to maintain the integrity of deep-ocean ecosystems within and beyond national jurisdictions.

[4] a program within the Global Ocean Observing System (GOOS) which aims to coordinate deep ocean-observing to address needs of climate science and society.

[5] https://scripps.ucsd.edu/news/meet-uc-san-diego-delegates-headed-egypt-un-climate-conference

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

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

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

References

Bris, N. L., & Levin, L. A. (2020). 161Climate change cumulative impacts on deep-sea ecosystems. In Natural Capital and Exploitation of the Deep Ocean (pp. 0). doi:10.1093/oso/9780198841654.003.0009

Gaill, F., Brodie Rudolph, T., Lebleu, L., Allemand, D., Blasiak, R., Cheung, W. W. L., . . . Poivre d’Arvor, O. (2022). An evolution towards scientific consensus for a sustainable ocean future. npj Ocean Sustainability, 1(1), 7. doi:10.1038/s44183-022-00007-1

Levin, L. A. (2019). Oceanography (Washington, D.C.), 32, 180. doi:10.5670/oceanog.2019.224

Levin, L. A. (2021). IPCC and the Deep Sea: A Case for Deeper Knowledge. Frontiers in Climate, 3. Retrieved from https://www.frontiersin.org/articles/10.3389/fclim.2021.720755

Levin, L. A., Bett, B. J., Gates, A. R., Heimbach, P., Howe, B. M., Janssen, F., . . . Weller, R. A. (2019). Global Observing Needs in the Deep Ocean. 6(241). doi:10.3389/fmars.2019.00241

Levin, L. A., Mengerink, K., Gjerde, K. M., Rowden, A. A., Van Dover, C. L., Clark, M. R., . . . Brider, J. (2016). Defining “serious harm” to the marine environment in the context of deep-seabed mining. Marine Policy, 74, 245-259. doi:https://doi.org/10.1016/j.marpol.2016.09.032

Levin, L. A., Wei, C.-L., Dunn, D. C., Amon, D. J., Ashford, O. S., Cheung, W. W. L., . . . Yasuhara, M. (2020). Climate change considerations are fundamental to management of deep-sea resource extraction. Global Change Biology, 26(9), 4664-4678. doi:https://doi.org/10.1111/gcb.15223

Smith, N. (2019). Engineering & technology, 14, 63. doi:10.1049/et.2019.0706

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

Vadrot, A. B. M. (2020). Multilateralism as a ‘site’ of struggle over environmental knowledge: the North-South divide. Critical Policy Studies, 14(2), 233-245. doi:10.1080/19460171.2020.1768131

Vadrot, A. B. M., Langlet, A., Tessnow-von Wysocki, I., Tolochko, P., Brogat, E., & Ruiz-Rodríguez, S. C. (2021). Marine Biodiversity Negotiations During COVID-19: A New Role for Digital Diplomacy? Global Environmental Politics, 1-18. doi:10.1162/glep_a_00605

Diving into Marine Issues of the Global Biodiversity Framework: How global will the new biodiversity framework be?

Member States to the United Nations are now meeting in Montreal, Canada to adopt the Post-2020 Global Biodiversity Framework (GBF)[1]. An Open-ended Working Group was tasked to prepare the draft text prior to the upcoming Conference of the Parties (COP). As outstanding issues remained unresolved[2], time for discussions was extended further. The MARIPOLDATA team closely followed the preparations for the Post-2020 Biodiversity Framework since October 2021 with the first virtual session of COP15, followed by on-site participation in the Working Group Meetings in Geneva in March 2022, Nairobi in June 2022 and are represented in Montreal, Canada for the 5th meeting, as well as COP15, in December 2022. This blog provides an overview of marine-related issues in the current draft of the new GBF that are also relevant to the upcoming negotiations for a legally-binding instrument for the conservation and sustainable use of marine diversity of areas beyond national jurisdiction (BBNJ)[3].

Photo by Kris-Mikael Krister on Unsplash

 

A Framework for the World to live in Harmony with Nature by 2050

The global biodiversity crisis is not new to policy-makers around the globe – the recognition that biodiversity loss is happening at an accelerating rate has led to many efforts to reverse biodiversity loss on national, regional and international levels. However, with the realisation that business-as-usual cannot lead to transformative change to reverse biodiversity loss, world leaders are now coming together to agree on action-oriented targets to “immediately” respond to the biodiversity crisis and to “put biodiversity on the path to recovery” in the next 10 years[4]. The first draft of the GBF includes a mission for 2030, a vision for 2050 and milestones to assess along the way to guarantee successful implementation of the framework. Moreover, the framework sets out 22 specific targets to be focused on, covering the themes a) reducing threats to biodiversity, b) meeting people’s needs through sustainable use and benefit-sharing, c) tools and solutions for implementation and mainstreaming.

Representatives from governments, non-governmental organisations (NGOs), academia and research last gathered in Nairobi, Kenya to draft the Post-2020 GBF to achieve living in harmony with nature by 2050. After the extended 5th session shortly before the upcoming conference, the draft will then be finalised and open for adoption at COP15 in Montreal, Canada under the presidency of China (7 to 19 December 2022).

Joining Ocean and Biodiversity efforts for a new Global Framework

There is no doubt we live on a blue planet with more than two-thirds covered by ocean. The ocean constitutes over 90 % of the habitable space on Earth, containing around 250,000 known species – not to speak of the significant biodiversity that is yet unknown to science[5]. The most recent 5th Global Biodiversity Outlook[6] and the Second Global Ocean Assessment[7] emphasise the continuous and increasing marine biodiversity loss, driven by human activities. Stressors include (over)fishing, exploitation of other marine resources, such as minerals, intentional and unintentional marine pollution, including plastic, chemicals and toxicants from shipping, tourism and the military, as well as noise pollution. Moreover, there are risks of further degradation of the marine environment and increased biodiversity loss by future (not yet authorised) activities; the most prevalent being deep sea-bed mining (Miller et al., 2021; Amon et al., 2022). The above-mentioned activities are stressors on biodiversity with uncertain consequences that might extend beyond our predictions and imagination. For the well-being of the planet and people, it is thus evident to put efforts into protecting marine biodiversity and the new GBF is a crucial step forward in reversing marine biodiversity loss.

The ocean is interconnected, but is often not treated this way in international law: The United Nations Convention on the Law of the Sea (UNCLOS) divides the ocean into different maritime zones for governance and jurisdiction (Tessnow-von Wysocki & Vadrot, 2022). 64% of the ocean space (which is 95% of its volume!) is considered to be “international waters” or “the high seas”, which are the areas that do not fall under national jurisdiction of any state. The international effort to negotiate a new agreement on marine biodiversity conservation and sustainable use (beyond national jurisdiction) is underway and many links to the GBF can be observed. Relevance to marine biodiversity can be found in several parts of the framework by aiming to protect and sustainably use biodiversity. In this blog, we focus on the GBF targets in each of the three themes that are most relevant to the upcoming negotiations for a legally-binding agreement for the conservation and sustainable use of marine biodiversity beyond national jurisdiction.

A) Reducing threats to marine biodiversity

During the Nairobi meetings, the Blue Leaders[8], a group of states calling for 30% of protected ocean areas made a joint intervention, reiterating the importance of the world’s ocean and pointing to current stressors including climate change, depleted fish stocks, unsustainable and illegal, unreported and unregulated (IUU) fishing activities. The group agrees on the importance of protecting the ocean by 2030 “meaningfully” – that is to not simply establish “paper parks” (= protected areas that exist on paper but have no actual impact) but to effectively prevent destructive uses through implementation.  Goal A pursues to reduce threats to biodiversity, particularly Targets 1-3 make explicit mention to marine issues and spatial planning but included much contestation among governments in past meetings: Foreseeing divergence on key issues, an informal “friends of the co-leads” group was called together to discuss terminology across targets 1-3. Discussions included multiple views of states as regards the scope of the GBF: Views parted in the terminology of “land and sea” versus “land and ocean” areas. Moreover, a number of states also rejected the terminology “areas”, preferring reference to “ecosystems”. Divergence also existed on the definition of ecosystems, namely the difference between “all” ecosystems versus a specific listing of ecosystem (e.g. “terrestrial, inland water, freshwater, marine, and coastal ecosystems”).

Despite extensive informal discussions in the informal setting, as well as the formal contact group meetings and a long night session until the early morning hours, disagreement remained until the end of the conference on such terminology. While the majority of negotiators supported the inclusion of the entire ocean, some parties would like to limit the target to waters under national jurisdiction, and thereby exclude the high seas. Discussions also included divergence on references to human rights and Indigenous Peoples and Local Communities (IPLCs) and related conventions. Placeholders were set on these contested issues, which means that the negotiation of such issues was postponed to the ongoing meeting in Canada.

These targets are particularly interesting for the upcoming BBNJ negotiations regarding area-based management tools, including marine protected areas. The GBF could in this way be the guidance for immediate action on area-based management tools for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, which could be implemented through the new BBNJ instrument.  Moreover, the overall section of reducing threats to biodiversity also indirectly speak to the regulation of the conduct of environmental impact assessments (EIAs), for which the BBNJ instrument also has a mandate for.

B) Meeting people’s needs through sustainable use and benefit-sharing of marine genetic resources

Also particularly interesting to both negotiators in the CBD and BBNJ discussions is Target 13, as it regards the aim to facilitate access to genetic resources and to ensure fair and equitable sharing of benefits arising from the use of genetic resources. Discussions in the CBD and BBNJ are very similar in this regard, when it comes to issues on, not only access to and sharing of benefits of the physical sample of the genetic resource, but also other data related to the genetic resource, such as digital sequence information (DSI). It will be important to coordinate negotiations to harmonise, rather than duplicate, efforts in both fora.

C) Tools and solutions for implementation and mainstreaming

Target 20 of the current draft seeks to guarantee that relevant knowledge guides decision-making for the effective management of biodiversity. On a similar vein, BBNJ envisages a Scientific and Technical Body to provide a scientific base for implementation of the agreement that will need to correspond to other forms of knowledge, apart from scientific research. One pillar of the BBNJ instrument is capacity building and transfer of marine technology to guarantee advancements in marine scientific research and the inclusion of knowledge of Indigenous Peoples and Local Communities to support the effective implementation of the agreement. Coordination in this regard would ensure that advancing ocean science and embracing different knowledge systems under the BBNJ instrument contributes to holistic biodiversity governance envisaged by the GBF.

All eyes on the GBF – and on BBNJ: What happens next?

Negotiators meet in December 2022 to adopt the new Global Biodiversity Framework and the negotiations for a legally-binding agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) will conclude early next year.

Links between BBNJ and the GBF are obvious:

  • The BBNJ negotiations include the topic of access to and fair and equitable sharing of benefits arising from marine genetic resources in areas beyond national jurisdiction and questions on a future Access and Benefit Sharing Mechanism (ABS). Questions on DSI of (marine) genetic resources are part of target 13 of the GBF and discussions need to be coordinated across the different fora.
  • The BBNJ instrument will have the mandate to establish Area-based management tools (ABMTs), including marine protected areas (MPAs) in areas beyond national jurisdiction, which directly link to the spatial planning targets 1-3 of the GBF. It is crucial that the GBF refers to the entire ocean – as opposed to marine areas under national jurisdiction – in order to be a global framework.
  • The BBNJ agreement will regulate the conduct of environmental impact assessments (EIAs) in areas beyond national jurisdiction, which will respond to efforts to conserve and sustainably use of global biodiversity. Target 15 of the GBF refers to the environmental impact assessments to be conducted by all businesses to determine their footprint and dependencies on biodiversity.
  • The final pillar of the BBNJ agreement regards capacity building and the transfer of marine technology (CBTMT), which relates to target 20 of the GBF. A future Scientific and Technical Body for BBNJ will need to ensure relevant knowledge is available for decision-making and management of biodiversity.

It is crucial that there is coordination between the negotiations for the BBNJ treaty and the GBF when it comes to questions of terminology, scope and state obligations in order to effectively conserve and sustainably use marine biodiversity. While areas beyond national jurisdiction are supposed to fall into the BBNJ instrument’s mandate, future implementation would still benefit from the guidance of the global biodiversity framework, which – by its title – cannot exclude certain marine areas.

The meeting of the Open-Ended Working Group in Nairobi left many questions unanswered and after additional discussions in an Informal Group in September[9], much pressure rests on negotiators of the final 5th  Open-Ended Working Group to streamline the text as best as possible before the start of the COP. Not an easy task with around 900 brackets remaining (text that has not been agreed upon)[10]: The draft text is not clear in many of the targets and time is running, but more importantly, like Executive Secretary of the Convention on Biological Diversity, Elizabeth Mrema, said: “Biodiversity cannot wait.” There is the hope that with only a few days left to negotiate, states will show more flexibility in their positions and approach one another in the spirit of compromise. While the overall aim is to develop a framework for the world on how to protect, sustainably use and share benefits deriving from biodiversity in the next decades to come, it is yet to be seen, how holistic and global the framework will be drafted for final adoption at the upcoming COP15.

Negotiators from both fora need to coordinate efforts so that the global road map corresponds to the realities on the ground. Efforts to setting global targets and creating institutions to implement them should go hand in hand. The fact that these processes are simultaneously happening can be an advantage in ensuring clearly formulated targets and the development of institutions that can lead to successful implementation and take immediate, urgent action, aligned under one common purpose: our vision for 2050.  The Convention on Biological Diversity and the Convention on the Law of the Sea might be two different conventions, with distinct mandates – but if you think about it there is much more that unites them: The same governments are negotiating in these fora, taking decisions about the same planet – having the same objective: conserving and sustainably using biodiversity.

A big thank you to the High Seas Alliance and Deep Ocean Stewardship Initiative who funded my conference participation to attend the 4th Open-Ended Working Group Meeting in Nairobi and the MARIPOLDATA team who conducted digital ethnography from Vienna.

[1] https://www.cbd.int/conferences/post2020

[2] https://www.maripoldata.eu/an-ocean-of-possibilities-marine-biodiversity-in-the-post-2020-global-biodiversity-framework/

[3] https://www.un.org/bbnj/

[4] First draft of the GBF: https://www.cbd.int/doc/c/abb5/591f/2e46096d3f0330b08ce87a45/wg2020-03-03-en.pdf

[5]https://www.un.org/en/chronicle/article/marine-biodiversity-and-ecosystems-underpin-healthy-planet-and-social-well-being

[6] P.156. Secretariat of the Convention on Biological Diversity (2020) Global Biodiversity Outlook 5. Montreal: https://www.cbd.int/gbo/gbo5/publication/gbo-5-en.pdf

[7] https://www.un.org/regularprocess/sites/www.un.org.regularprocess/files/2011859-e-woa-ii-vol-ii.pdf

[8] https://www.theblueleaders.org/

[9] https://www.cbd.int/doc/c/dfeb/e742/b936c09eae9dd558c1310b5b/wg2020-05-02-en.pdf

[10] Daily CBD Press Briefing: https://www.youtube.com/watch?app=desktop&v=9IFs-vzAC8c&feature=youtu.be

 

References

Amon, D. J., Gollner, S., Morato, T., Smith, C. R., Chen, C., Christiansen, S., . . . Pickens, C. (2022). Assessment of scientific gaps related to the effective environmental management of deep-seabed mining. Marine Policy, 138, 105006. doi:https://doi.org/10.1016/j.marpol.2022.105006

Miller, K. A., Brigden, K., Santillo, D., Currie, D., Johnston, P., & Thompson, K. F. (2021). Challenging the Need for Deep Seabed Mining From the Perspective of Metal Demand, Biodiversity, Ecosystems Services, and Benefit Sharing. Frontiers in Marine Science, 8. doi: https://doi.org/10.3389/fmars.2021.706161

Tessnow-von Wysocki., I., & Vadrot, A., B. M. . (2022). Governing a divided ocean: The transformative power of ecological connectivity in the BBNJ negotiations. Politics and governance, 10, 28. doi:https://doi.org/10.17645/pag.v10i3.5428

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

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

By Silvia Ruiz and Alice Vadrot

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

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

Multilateral negotiations are a simultaneous process constituted by different factors:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What will the future bring?

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Too High Hopes for a High Seas Treaty?

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

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

Source: Unsplash

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

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

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

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

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

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

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

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

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

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

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

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

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

Swirls of disagreement – why there was still no consensus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Setting Sail for the next Conference Session

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

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

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

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

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

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

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

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

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

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

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

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

The negotiation room; Source: Author

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

MGRs – will restructuring be enough?

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

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

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

ABMTs/MPAs

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

What is the purpose of ABMTs/MPAs?

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

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

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

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

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

Assessing human impacts on the High Seas 

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

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

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

CBTMT – what is the right amount of detail?

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

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

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

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

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

Crosscutting Issues

Secretariat

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

Funding

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

Scientific and technical body

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

COP

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

Graph – most discussed articles per package item: 

 

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

Conclusion – equipping the BBNJ with strong and flexible institutions: 

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

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

 

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

UN Ocean Conference 2022 Blog – IDDRI & MARIPOLDATA

By: Paul Dunshirn, Arne Langlet, Klaudija Cremers

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

 

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

Deep seabed mining moratorium and the return of the precautionary principle 

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

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

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

Ensuring a strong mandate for BBNJ decision-making bodies

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

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

Establishing an effective implementation and compliance committee 

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

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

Moving towards BBNJ IGC-5

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

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

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

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

Appendix: Graph on BBNJ positions

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

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

By Anook Garden

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

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

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

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

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

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

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

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

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

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

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

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

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

Hybrid meetings and the study thereof

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

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

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

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

Marine Issues in the Post-2020 Global Biodiversity Framework

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

Goals A and B: ecosystems and cultural values

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

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

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

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

Scope of targets 1 and 3

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

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

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

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

Type of spatial measure in target 3

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

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

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

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

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

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

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

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

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

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

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

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

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

Numeric figures

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

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

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

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

What concepts should we apply in target 8?

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

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

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

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

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

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

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

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

 

References

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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.

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

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

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

Key arguments

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

A New Agreement on Marine Biodiversity

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

CITES

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

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

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

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

Controlling the flow of MGRs

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

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

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

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

CITES Introduction From Sea clause                                                                                                                     BBNJ Marine Genetic Resources monitoring draft

 

 

How to proceed with two “not undermining” clauses

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

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

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

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

BBNJ and CITES share a focus on capacity building

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

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

Conclusion

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

 

References

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

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

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

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

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