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 15^th 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.

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 5^th 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 5^th 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 5^th 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 5^th  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 4^th 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

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).

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

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.