Participation at BBNJ negotiations matters

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

 

 

 

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

Some background

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

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

Reflections from an environmental justice perspective

Environmental justice often has a plurality of meanings and encapsulates:

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

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

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

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

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

Information and process transparency

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

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

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

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

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

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

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

International human rights perspective

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

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

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

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

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

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

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

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

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

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

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

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

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

Impact on (ethnographic) study of the negotiation

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

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

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

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

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

 

Conclusions

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

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

 

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

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

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

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

 

Recap of second week: 

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

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

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

 

Graph 1 – speaking time of state delegates per package

 

Crosscutting Issues:

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

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

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

 

The future Scientific and Ttechnical Body (STB)

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

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

 

BBNJ Secretariat

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

 

Clearing House Mechanism

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

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

 

Funding for the High Seas Treaty

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

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

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

 

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

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

 

How to make words come into action?

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

 

Defining what is being negotiated…

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

 

Evaluating activities on the High Seas through EIAs:

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

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

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

 

Main points of divergence

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

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

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

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

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

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

 

 

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

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

 

Closing remarks and Outlook

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

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

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

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

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

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

Jumping right into negotiation mode – and into cold water

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

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

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

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

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

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

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

 

Figure 1 – Discussion Time by Topic

 

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

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

Table 1 – Recorded Number of Statements per Package Item

 

How to build capacity and transfer marine technology?

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

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

Table 2 – Contentious Articles in the CBTMT Chapter

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

 

Table 3 – Articles with most flexible positions in CBTMT Chapter

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

 

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

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

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

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

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

Table 4 – Contentious Articles in the MGR Chapter

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

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

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

Table 5 – Articles with most flexible positions in MGRs Chapter

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

 

When water turns into ice: Negotiations in ABMT session freeze

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

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

Table 6 – Contentious Articles in the ABMTs/MPAs Chapter

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

 

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

Diving into the second week of negotiations

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

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

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

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

When Science meets Policy to talk about Marine Biodiversity: Bringing together Academics and Practitioners in a Conversation about the Marine Biodiversity Negotiations

MARIPOLDATA gathered scientists and policy-makers in the Intersessional Period of the new BBNJ agreement at the Earth System Governance in an Innovative Session: United Nations Negotiations for the Future of Marine Biodiversity: A conversation among Academics and Practitioners on the BBNJ Negotiations, chaired by Assoc. Prof. Dr. Alice Vadrot and Ina Tessnow-von Wysocki.

A recording of the panel is now available here:

In the framework of the innovative panel, scientists met with national delegates, as well as representatives of non-governmental organisations that are participating in the negotiations to:

  • discuss the current stage of the BBNJ negotiations, the potential final agreement, and the role of the intersessional work;
  • share their expert knowledge and experiences on the current state and development of the BBNJ negotiations; and
  • reflect on new findings of BBNJ research and current political developments within the BBNJ process.

 

Keeping the Momentum for Marine Biodiversity Negotiations

What is happening while Marine Biodiversity Negotiations are being postponed?

The United Nations are currently negotiating a new 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). The new treaty is expected to set new regulations for marine genetic resources (MGRs), area-based management tools (ABMTs), including marine protected areas (MPAs), environmental impact assessments (EIAs) and capacity building and the transfer of marine technology (CB&TT) (Tessnow-von Wysocki & Vadrot, 2020). Originally, the aim was to terminate negotiations in March 2020, but due to the Covid-19 pandemic, negotiations were postponed continuously and the next tentative date is March 7th-18th 2022.

There are several initiatives happening in the intersessional period – the time in between the conferences – to keep the momentum. The most prominent initiatives include the Intersessional Work[1], organised by the UN Secretariat as an online platform for BBNJ participants to exchange views on package elements, and guiding questions that have been formulated by the facilitators of the conference and provide virtual webinars on BBNJ topics. Moreover, the governments of Belgium, Costa Rica, Monaco and a number of non-governmental organisations (NGOs) (the High Seas Alliance) have organised High Seas Online Dialogues[2], in which BBNJ participants can interactively engage verbally in 3-hour-long sessions on selected topics.

The MARIPOLDATA team facilitated an inter- and transdisciplinary dialogue among the scientific community and fostered the science-policy interfaces for BBNJ by introducing a number of outputs to inform the negotiations and keep the momentum (See: MARIPOLDATA Ocean Seminars; MARIPOLDATA BBNJ Governance Database ; MARIPOLDATA Country Dashboard).

As part of the Earth System Governance (ESG) Conference on September 7th 2021, the MARIPOLDATA team brought together 10 scientists and practitioners on BBNJ to discuss recent developments in the BBNJ negotiations, to identify key areas still to be negotiated in each of the package elements and cross cutting issues and point to how research can contribute to the BBNJ agreement. This innovative panel brought together the different groups engaging in the BBNJ process, including social and natural scientists researching on BBNJ, as well as practitioners who are actively engaged within the negotiation process. It provided an opportunity for a fruitful exchange on different perspectives to existing research and new linkages of research findings among diverse disciplines.

Recent BBNJ Research Findings and Ongoing Projects

Scientists from the fields of Law, Political Science, International Relations, Ocean and Coastal Governance, Environmental Studies and Deep-Sea Biology were invited to join the panel and share their most recent scientific findings related to the BBNJ process.

Researching the Deep-Sea

The deep-sea biologist Dr. Georgios Kazanidis shared experiences from the iAtlantic project, an EU-funded, multidisciplinary research programme seeking to assess the health of deep-sea and open-ocean ecosystems across the full span of the Atlantic Ocean. iAtlantic undertakes ocean observation, ocean mapping, ecosystem assessment, capacity building, and sustainable management of deep-sea and open ocean ecosystems in the North and South Atlantic Ocean.

He particularly emphasised the need to collaborate among different disciplines and geographical regions, include early career researchers in marine scientific research[3], and organise joint workshops among scientists, industry, NGOs and policy-makers.

Following the panel, he shared his co-authored study on a common assessment framework for areas beyond national jurisdiction (ABNJ) that would enable comparable environmental assessments and facilitate monitoring (Orejas et al., 2020), which can contribute to ABNJ governance in the future. iAtlantic’s policy briefs communicate research findings in an accessible way, such as the ATLAS and iAtlantic Policy Brief – Changing Ocean State and its Impact on Natural Capital, explaining how ocean currents are impacting the climate, as well as locations and abundances of marine biodiversity at the surface and in the deep-sea (Spooner et al., 2020). The policy brief has also highlighted that continued observations and improved biological understanding are both needed to assess oceanographic change and its ecological implications.

The Design of the New Agreement

In the making of the new legally binding instrument for governing marine biodiversity in ABNJ, ongoing research surrounds questions on the design of the BBNJ agreement. Assistant Professor Dr. Elizabeth Mendenhall and Prof. Rachel Tiller are, with their research team colleagues, Elizabeth Nyman, and Elizabeth de Santo, particularly interested in what explains the final design of the BBNJ agreement. Prof. Mendenhall presented on the ambiguous definition of “areas beyond national jurisdiction” as regards the undecided extended continental shelf question, leaving the boundaries of ABNJ unclear. Moreover, while coastal states have sovereign rights over their continental shelves and their resources, there is legal uncertainty on the sovereignty over resources on the extended continental shelves. This includes the question of sedentary species but also on the access and use of marine genetic resources (MGRs) in these areas. The definition of sedentary species as “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil” (UNCLOS, Art.77) is identified as quite ambiguous and could trigger further conflicts over the sovereignty over living resources on the extended continental shelf. If this is not addressed in the BBNJ agreement, the ambiguous definition of Art.77 would apply. Mendenhall could imagine a moratorium on the exploitation of MGRs in these ambiguous areas as one option to achieve legal clarity. She points to the fact that so far, there have been 88 submissions for the extended continental shelf, leaving many potential coastal states submissions for the future to define and the boundary of ABNJ ambiguous. Mendenhall suggests discussing this issue within the BBNJ negotiations to prevent misinterpretations over governance responsibilities and whether BBNJ governance will be different regarding the “Area” and the extended continental shelf, in the years and decades to come. Prof. Dr. Rachel Tiller shared her research on the Arctic and BBNJ and pointed to potential conflicts regarding resources in the Arctic ABNJ, including oil, gas or MGRs.

Prof. Dr. DG Webster and Associate Prof. Dr. Leandra Goncalves co-lead the Taskforce on Ocean Governance, a new collaboration of researchers on marine issues within the Earth System Governance Community. Their research focus lies on the institutional design of the BBNJ agreement, pointing to the threat of creating “panaceas” out of well-intentioned provisions. Some issues can be interpreted differently among actors, which on the one hand is an opportunity for compromise, but on the other hand guards the threat of leading to ineffective governance. This can be seen in the case of establishing ABMTs in areas of little economic activity to enhance political willingness and implementation. Prof. Webster cautions that some actors might be interested in ambiguous language to prevent specific rules and regulations and continue to use the ocean’s resources as the status quo currently allows the exploitation of MGRs without further details in regulation. Assoc. Prof. Goncalves focuses on the case of Brazil and political, economic intentions behind its foreign policy within the BBNJ negotiations. She is observing the role of Brazil and the influence of the current government within the negotiations and regional groups, namely the Core Latin American Countries (CLAM) and the Group of 77 and China.

Providing Capacity for Implementation

Ensuring that all states have the capacity to implement the BBNJ agreement requires capacity building and the transfer of marine technology (CB&TT). Dr. Harriet Harden-Davies, Nippon Foundation Ocean Nexus postdoctoral research fellow at the Australian National Centre for Ocean Resources and Security at the University of Wollongong, focuses her research on Capacity building and Technology Transfer concerning the BBNJ agreement.

While UNCLOS lays out regulations for the transfer of marine technology, technical capacities for conducting ocean science are still unequally shared among countries and regions. Capacity building and technology transfer includes access to data, training courses, time at sea, research cruise and cooperation. While these are in general very useful initiatives, however, Harriet stresses that they do not work well as a “one way donation”. Harriet emphasises the need for genuine, collaborative two-way partnerships, designed to meet the needs for ocean-dependent people from the start. Within the BBNJ draft, she applauds the envisaged multi-way partnerships and the references to needs assessments, meeting self-determined priorities of ocean-dependent states (Art. 44 and 46). She also highlights the importance of the Clearing House Mechanism (Art. 51), Funding (Art. 52) and Monitoring and Evaluating the long-term outcomes of capacity building, instead of individual outputs.

What is the State of the BBNJ negotiations? – Where are we now?

With more than 2 years of intersessional period, there has been some progress in the negotiations on a number of issues, thanks to the online discussions, online webinars and workshops and bilateral and multilateral meetings on national, regional and international levels.

Despite progress on some issues, many are still unresolved that will need to be discussed – ideally before the final round of negotiations in New York next March. With experts from governmental, former UN agencies and non-governmental actors, who have been actively involved in the political discussions since the early beginnings of the BBNJ negotiations, the panel identified main areas of divergence in the negotiations that yet need to be resolved.

We invited Gabriele Goettsche-Wanli, former Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs and Sophie Mirgaux, Belgium’s Special Envoy for the Ocean, who are both actively involved in moderating and organising the High Seas Treaty Dialogues, an important informal exchange between BBNJ stakeholders in the intersessional period. Moreover, we invited Kahlil Hassanali, a negotiator in the BBNJ negotiations for the regional group Caribbean Community (CARICOM) and Julian Jackson, a non-state actor, representing The Pew Charitable Trusts in the BBNJ process.

Using and Sharing the Riches of the Ocean

If you are new to the negotiations and you are looking at the outstanding issues of the package element of marine genetic resources (MGRs), you might wonder whether this topic has not been included so far in discussions. We asked Gabriele Goettsche-Wanli, former Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, to summarise outstanding issues of this package element. The very key questions of whether, if so how, when and by whom, benefits from MGRs will be shared and whether this will be voluntary or mandatory are not yet agreed upon. This is largely due to the long entrenched conflict between the supporters of the principle of common heritage of humankind, and the proponents of the principle of the High Seas for the governance of MGRs in areas beyond national jurisdiction (ABNJ) (Vadrot et al., 2021).

The discussion whether benefits from MGRs that originate from areas beyond national jurisdiction have been present since the very beginnings of the negotiations and are to date not resolved (Vadrot et al., 2021). Global commons are resources that do not belong to anyone, but need to be jointly shared and protected, while at the same time, UNCLOS sets out general rights and obligations for activities on the High Seas. In this regard, there are opposing views whether MGRs should fall under the Common Heritage of Humankind or the Freedom of the High Seas Principle.

Further contentious points regard what will ultimately fall under MGRs – will this be only marine genetic material that is found in the ocean (in situ), or does it also include samples stored elsewhere in collections (ex situ), and data on these resources in digital form and their genetic sequences (digital sequence information – DSI) and derivatives?

Regarding traditional knowledge of Indigenous Peoples and Local Communities, the discussions are still ongoing how this knowledge can be accessed, if at all – will it need to be based on the free, prior and informed consent of the traditional knowledge holders and how will it be shared ethically if the traditions of passing on knowledge are inherently different to our technological ways of sharing data online?

Open questions also regard how the agreement will trace MGRs (Humphries et al., 2021) and whether and if so how intellectual property rights be addressed in the new agreement.

Limiting Exploitation of the Ocean

The panel also talked about the package element of Area-Based Management Tools (ABMTs), including Marine Protected Areas (MPAs). This provision seeks to protect certain areas from (unsustainable) human activities. There is already a patchwork of biodiversity governance existent with mandates to establish areas for conservation and sustainable use in different geographical regions and issue areas[4].

Therefore, political discussions often include a divergence of views on the relationship between the new BBNJ agreement and already existing instruments, bodies and frameworks that are governing marine biodiversity under specific regional and sectoral mandates. Fear of duplication and competition of mandates triggers arguments to “not undermine” existing efforts (Ardron et al., 2014; Friedman, 2019; Scanlon, 2018). In light of the connection of the ocean, it is evident that an effective conservation and sustainable use of marine biodiversity requires synergies to existing agreements. What state representatives in BBNJ exactly understand under “not undermining” is an ongoing discussion. Sophie Mirgaux, Special Envoy for the Ocean for the Belgian Ministry of Environment, clarifies that existing frameworks will not be wiped away by the BBNJ agreement, but that the new agreement can indeed have an effect on the existing:

She quotes Dire Tladi (Professor of International Law and SARChI Chair in International Constitutional Law at the University of Pretoria) in explaining that it is a basic rule in international law that states can adhere to more stringent rules in new agreements, which does not mean they are undermining another agreement they have signed in the past.

During the BBNJ negotiations, it is yet to be determined what role the Conference of the Parties (COP) will play – whether it should make recommendations, or ultimately decide on the establishment of ABMTs, including MPAs, and their management plans. Another outstanding question concerns the decision-making procedures. She cautions against taking decisions exclusively by consensus, as this bears the risk for inaction.

Living sustainably with the Sea

Another part of the new agreement regards Environmental Impact Assessments (EIAs) in areas beyond national jurisdiction. How will states agree to live sustainably alongside biodiversity without leaving a footprint that stays forever? In the package element regarding EIAs, there are still many issues to be agreed upon by BBNJ negotiators. Kahlil Hassanali, lead coordinator for EIAs for the Caribbean Community negotiating bloc (CARICOM), identifies three major unresolved areas that will determine the effectiveness of the EIA process in ABNJ in the future:

Firstly, the degree to which the BBNJ agreement will be internationalised has not been agreed on. This regards the question how to ensure genuine participation of all stakeholders, including marginalised or affected groups, as well as interested public. Moreover, internationalisation also concerns the discussion whether there should be global oversight over decision-making. This is particularly relevant as areas beyond national jurisdiction are a global common. He asserts that some developed countries would like to see this process to be “state-led”, meaning that the states proposing activities would be the ones ultimately deciding on whether the activity can take place. In light of the fact that the ocean is a global common and developing countries simply do not have the same capacities as developed countries to undertake activities in international waters, he suggests to introduce some sort of global oversight to ensure inclusive decision-making to permit activities.

Secondly, it is still unclear whether activities that are undertaken exclusively in ABNJ or whether all activities with an impact on ABNJ would be considered for the BBNJ EIA process. This discussion is delicate as states have certain rights within their territorial waters and exclusive economic zones.

Thirdly, questions remain on how the BBNJ agreement will interact with other existing processes (See not undermining discussion in previous section).

Sharing Knowledge with the World

There are global controversies regarding capacity constraints and uneven capacities to undertake research, including to access MGRs, designate and monitor ABMTs, including MPAs and to evaluate EIAs.  The package element of Capacity Building and Transfer of Marine Technology (CB&TT) seeks to address this challenge; however, there are various outstanding issues still to be resolved.

Key issues concern the questions whether capacity building will be only voluntary or additionally include a mandatory component, who would benefit from CB&TT and whether it would be provided on mutually agreed terms and the inclusion of different types of CB&TT.

How to identify the needs of parties and who to benefit and what kind of CB&TT would be required. This triggers the question of whether there should be a list of CB&TT, the possibility of a potential CB&TT committee and whether a financial mechanism could provide funding covering CB&TT issues.

Further outstanding issues regard how the package element of CB&TT relates to cross-cutting issues, for instance, the clearing house mechanism. How would this data-sharing platform most effectively support the CB&TT package element?

The Devil in the Detail

It is yet to be seen if the BBNJ agreement will be ambitious. What this essentially means is: Now is the drafting stage of the agreement, what goes into the agreement now, will be carved into the marvel of international law. Not to say, that this will be set in stone, but it will set the guidance for how humans will govern areas of the ocean that are so far away from our shores where one may not feel connected to this part of the planet but in reality, is the soul of our existence.

Civil society actors are involved in the BBNJ negotiations, represented through a number of different NGOs, including The PEW Charitable Trusts. They have an important role in strengthening transparency and accountability of the process. By observing the discussion, they can provide information for other NGOs that are not able to attend, which is done through their publications, as well as the High Seas Alliance Treaty Tracker. In this way, momentum can be kept among negotiators and in society; and political pressure be built. Civil society organisations also take part in actively supporting the process through capacity building in form of providing basic background for newly joining delegates in the BBNJ process.

Julian Jackson explains the important details of the agreement that need to be understood and closely considered to ensure an ambitious treaty for the ocean: For an ambitious treaty, the precautionary approach and a robust mechanism for environmental impact assessments are important for The PEW Charitable Trusts.

He points to the possibility of exclusions in international law, meaning that states can identify different parts of the agreement, to which they would not need to adhere to, inherently decreasing the ambition and potentially also the effectiveness of the agreement. He emphasises the importance of no exclusions. He is particularly concerned about the discussion among negotiators to exclude fish from the agreement. This is closely connected to the “not undermining” discussion, and would mean that fish would not be regarded as marine biodiversity to be conserved and sustainably used. He stresses the need for the BBNJ agreement to complement Regional Fisheries Management Organisations, but also the relationship to other issues related to marine biodiversity, such as shipping and deep-sea mining.

Another unresolved issue is under which condition the agreement should enter into force. There are several options of how this could look like, e.g. certain number of signatories. However, it is important to balance between an early entry into force vs. a larger number of signatories (up to universality of the agreement). While it is necessary to have a legally binding agreement on this issue as soon as possible, it also needs to have a meaningful number of parties as signatories.

Identified main areas of divergence in the negotiations also include compliance and dispute settlement and the role of the clearing house mechanism for each of the package elements. There is also an ongoing concern of non-parties to UNCLOS about their status in the BBNJ agreement that would have to be solved.

How can Research contribute to the BBNJ process?

The BBNJ process has contributed from research by multiple fields and continues to be informed by new knowledge. Political momentum and targets can be created on the basis of scientific findings, such as in the case of the 30×30 campaign which aims to protect 30% of the Ocean by 2030[5]. Practitioners emphasised the importance of science for the BBNJ negotiations, throughout the BBNJ process and beyond. If you are a scientist working on or planning to work on marine biodiversity, here are some ideas from the practitioners that would be needed in the BBNJ process:

Social Science

  • Integration of traditional knowledge of indigenous Peoples and Local Communities (and other forms) into the different BBNJ package elements
  • (Under-) representation of stakeholder groups in the BBNJ process, how they can engage and their voices be heard
  • Role of Coastal States; marginalised groups, indigenous Peoples and Local Communities

Natural Science:

  • Climate change science (Climate- Ocean Nexus)
  • Research on mesopelagic fish and impact on carbon cycle
  • Biological research
  • Recent scientific development of handling samples (of MGRs)
  • Information on scientific practices concerning the access and use of MGRs
  • Scientific capacities and needs in different regions

Social & Natural Science:

  • Connection between ABNJ and Coastal Waters: effects on a) (marine) ecosystems; b) coastal states and other actors
  • Science-policy interfaces and how can they be improved
  • Research on human-ocean relationship
  • Effective management measures for MPAs
  • Research on the technical side: monitoring, control and surveillance options (e.g. non-human drones)

Sometimes, getting the information the policy-makers seems to be a hindrance, with a myriad of information out there. Science-policy interactions, such as organised meetings among scientists and policy-makers are valuable instances of exchange and mutual learning. Sophie Mirgaux emphasised the openness of the Belgium government and the EU to new scientific findings and encouraged scientists working on these issues that have not had direct contact with policy-makers to contact the ministries directly. These will forward requests to the responsible department. Participant lists are available for the BBNJ negotiations (and other negotiations) where names of state delegates can be found to direct the email to. Julian Jackson stressed the importance for scientists to inspire others and “get people excited about the deep sea”.

What can you do?

You are a scientist? Explain and communicate your research to policy-makers and society; reach out online/on site at conferences; show why your research matters to you; talk to other scientists; participate in panels and meetings and workshops.

You are a policy-maker? Take time to understand the relevance of research in your issue area (for you and others); identify links to other agreements; be open to innovative thoughts from scientific communities; participate in panels, meetings and workshops; think outside of the box.

You are a world citizen? Be interested and informed about what is happening in BBNJ; use the High Seas Alliance Treaty Tracker; Earth Negotiation Bulletin; get involved.

You are all of the above? Bring them together; share your knowledge; engage.

Overwhelmed?

Take the first step into unknown waters

Helpful information links on BBNJ:

United Nations Website on BBNJ; – Formal Website with all documents and dates

BBNJ Informal Intersessional Dialogues (High Seas Treaty Dialogues) Informal Exchanges in Intersessional Period

MARIPOLDATA BBNJ Governance Database; Overview of the Science on BBNJ Governance

MARIPOLDATA Country Dashboard; Information on Actors and Topics in BBNJ

MARIPOLDATA Ocean Seminars; Monthly discussions with experts on Ocean Science and Governance

High Seas Alliance Treaty Tracker; Summaries and Analyses of Positions in BBNJ

Earth Negotiation Bulletin; Daily BBNJ News during Conferences

Newsletters/ Events:

MARIPOLDATA

DOSI

IDDRI

 

References

Ardron, J. A., Rayfuse, R., Gjerde, K., & Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Marine Policy, 49, 98-108. doi:10.1016/j.marpol.2014.02.011

Barros-Platiau, A.F., Søndergaard, N., & Prantl, J. (2019). Policy networks in global environmental governance: connecting the Blue Amazon to Antarctica and the Biodiversity Beyond National Jurisdiction (BBNJ) agendas. Revista Brasileira de Política Internacional, 62. Retrieved from http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0034-73292019000200206&nrm=iso

Blasiak, R., Pittman, J., Yagi, N., & Sugino, H. (2016). Negotiating the Use of Biodiversity in Marine Areas beyond National Jurisdiction. Frontiers in Marine Science, 3. doi:10.3389/fmars.2016.00224

Clark, N.A. (2020). Institutional arrangements for the new BBNJ agreement: Moving beyond global, regional, and hybrid. Marine Policy, 104143. doi:https://doi.org/10.1016/j.marpol.2020.104143

De Santo, Ásgeirsdóttir, Á., Barros-Platiau, A., Biermann, F., Dryzek, J., Gonçalves, L.R., . . . Young, O. (2019). Protecting biodiversity in areas beyond national jurisdiction: An earth system governance perspective. Earth System Governance, 2, 100029. doi:https://doi.org/10.1016/j.esg.2019.100029

Friedman, A. (2019). Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction. ICES Journal of Marine Science, 76(2), 452-456. doi:10.1093/icesjms/fsy192

Gjerde, K., Clark, N., & Harden-Davies, H. (2019). Building a Platform for the Future: the Relationship of the Expected New Agreement for Marine Biodiversity in Areas beyond National Jurisdiction and the UN Convention on the Law of the Sea. Ocean Yearbook, 33, 1-44. doi:10.1163/9789004395633_002

Hassanali, K. (2021). Internationalization of EIA in a new marine biodiversity agreement under the Law of the Sea Convention: A proposal for a tiered approach to review and decision-making. Environmental Impact Assessment Review, 87, 106554. doi:https://doi.org/10.1016/j.eiar.2021.106554

Humphries, F., & Harden-Davies, H. (2020). Practical policy solutions for the final stage of BBNJ treaty negotiations. Marine Policy, 104214. doi:10.1016/j.marpol.2020.104214

Humphries, F., Rabone, M., & Jaspars, M. (2021). Traceability Approaches for Marine Genetic Resources Under the Proposed Ocean (BBNJ) Treaty. Frontiers in Marine Science, 8, 430. Retrieved from https://www.frontiersin.org/article/10.3389/fmars.2021.661313

Mossop, J. (2018). The relationship between the continental shelf regime and a new international instrument for protecting marine biodiversity in areas beyond national jurisdiction. ICES Journal of Marine Science, 75, 450. doi:10.1093/icesjms/fsx111

Orejas, C., Kenchington, E., Rice, J., Kazanidis, G., Palialexis, A., Johnson, D., . . . Roberts, J. M. (2020). Towards a common approach to the assessment of the environmental status of deep-sea ecosystems in areas beyond national jurisdiction. Marine Policy, 121, 104182. doi:https://doi.org/10.1016/j.marpol.2020.104182

Payne, C. (2020). Negotiation and Dispute Prevention in Global Cooperative Institutions: International Community Interests, IUU Fishing, and the Biodiversity Beyond National Jurisdiction Negotiation. International Community Law Review, 22(3-4), 428-438. doi:https://doi.org/10.1163/18719732-12341439

Scanlon, Z. (2018). The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES Journal of Marine Science, 75(1), 405-416. doi:10.1093/icesjms/fsx209

Spooner P., Thornalley D., Cunningham S., & Roberts J.M. (2020). ATLAS Policy Brief – Changing Ocean State and its Impact on Natural Capital. https://doi.org/10.5281/zenodo.3946683

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(1044). doi:10.3389/fmars.2020.614282

Warner, R. (2018). Oceans in transition: Incorporating climate-change impacts into environmental impact assessment for marine areas beyond national jurisdiction. Ecology Law Quarterly, 45, 31-51. doi:10.15779/Z38M61BQ0J

Wright, G., & Rochette, J. (2017). Regional Management of Areas beyond National Jurisdiction in the Western Indian Ocean: State of Play and Possible Ways Forward. The International Journal of Marine and Coastal Law, 32(4), 765-796. doi:https://doi.org/10.1163/15718085-13204020

Vadrot, A. B. M., Langlet, A., & Tessnow-von Wysocki, I. (2021). Who owns marine biodiversity? Contesting the world order through the ‘common heritage of humankind’ principle. Environmental Politics, 1-25. doi:10.1080/09644016.2021.1911442

 

[1] More information on the Virtual Intersessional Work: https://www.un.org/bbnj/content/Intersessional-work

[2] More information on these Informal Intersessional Dialogues: https://highseasdialogues.org/

[3] Information on the iAtlantic Fellow Scheme: https://www.atlanticfellows.org/

[4] See Figure in Tessnow-von Wysocki & Vadrot, 2020: https://www.frontiersin.org/files/Articles/614282/fmars-07-614282-HTML/image_m/fmars-07-614282-g001.jpg

[5] 30 x 30 initiative, See more information: https://www.oceanunite.org/30-x-30/

Assessing the human’s footprint on Ocean Biodiversity

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. 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.

A New Agreement to Conserve and Sustainably Use Marine Biodiversity

Currently, states are negotiating a new legally binding agreement at the United Nations with the aim to conserve and sustainably use marine biodiversity beyond national jurisdiction (BBNJ). The new legal document seeks to fill regulatory gaps concerning the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction in the overarching ocean governance framework (the United Nations Convention of the Law of the Sea (UNCLOS)).

Negotiations at the UN level offer an opportunity to regulate so-called “global commons”- resources that cannot be owned by one state alone, but rather have to be shared amongst all for the greater good (Kok, 2011). Global commons include the atmosphere, outer space, Antarctica and the ocean – areas that need to be protected and regulated through international negotiations. In this regard, it is important to consider that decisions about the governance of these areas do not only concern the current human population, but also future generations and other living beings that depend on these areas. With this in mind, there is a huge responsibility that rests on the negotiators and the organizing Secretariat (The United Nations Division for Ocean Affairs and the Law of the Sea, UNDOALOS) of finalising an ambitious agreement in due time.

Assessing human impacts on Ocean Biodiversity

One pillar of the new agreement is to establish a process for conducting environmental impact assessments (EIAs) to ensure the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) (Tessnow-von Wysocki & Vadrot, 2020).

Environmental impact assessments evaluate, mitigate and monitor the impact of proposed and ongoing activities on the (marine) environment. In this way, environmental impact assessments serve to predict, reduce and prevent the adverse impacts of human activities (Durussel et al., 2017). Scientists have pointed out shortcomings of the current governance framework (Doelle & Sander, 2020; Durussel et al., 2017; Ma et al., 2016; Warner, 2018). A global, standardized procedure for EIAs is therefore needed, permitting or prohibiting activities in ABNJ, to effectively prevent negative impacts on the marine environment and protect the global commons. Large scale activities are envisaged or already planned that might have an adverse impact on the environment, such as building cities in the ocean – not to speak of the activities in the far future, that we cannot even imagine with our highest technology today.

There are already broad international guidelines in place regarding environmental impact assessments. The United Nations Convention of the Law of the Sea (UNCLOS), adopted in 1982, is regarded as “the Constitution of the Ocean”[1]. UNCLOS Art. 192 establishes the “general obligation for states to protect and preserve the marine environment”. To reduce and prevent environmental damage by human activities, UNCLOS already sets a broad framework for monitoring and environmental assessment (Part XII, Section 4).

 

 

UNCLOS Art. 204 requires that States evaluate the risks or effects of pollution of the marine environment and keep under surveillance the effects of any activities which they permit or in which they engage in. Art. 205 further specifies that reports need to be published at appropriate intervals and made available to all States. Art. 206 emphasizes the obligation for states to assess adverse impacts of their planned activities.

 

The Process of Environmental Impact Assessments under the new BBNJ Agreement

In order to implement the provisions of UNCLOS, the new BBNJ agreement seeks to set out the EIA process in more detail. Throughout the ongoing BBNJ negotiations, a draft text[2] has been developed which is a working document that will ultimately be decided on to become the legal text for the BBNJ Agreement. The section on EIAs is the longest in the draft text and covers the envisaged procedure for EIAs in ABNJ once the treaty enters into force. While an overall procedure is agreed on, important details lack consensus that will ultimately determine the ambition and effectiveness of assessing the impacts of human activities on marine biodiversity in the future. In the following, crucial issues of divergence are described in each of the steps of the EIA process:

EIA process envisaged in BBNJ, Source: Author

  1. Assessment of what?

The first step of the EIA process is the “Screening” (Art.30) on which basis, it will be determined if an EIA needs to be conducted. There is agreement that the respective state will undertake the screening for activities taking place under its national jurisdiction or control. It is clear that EIAs assess negative impacts on the environment. However, policy-makers have not yet agreed on where to draw the line between impacts that are acceptable – in which case activities can go ahead without the need for an EIA – and the impacts that are potentially harmful so that the planned activity needs to undergo an EIA. As the current draft text stands, there are several options for thresholds when an EIA should be undertaken (Art. 24): The first option is that activities that “may cause substantial pollution of or significant and harmful changes to the marine environment” need to undergo an EIA. The second option that the policy-makers are discussing is much more ambitious, as it calls for an EIA to be undertaken already when the activities “are likely to have more than a minor or transitory effect on the marine environment”[3]. The latter is supported by the regional groups of the Caribbean Community (CARICOM), the Pacific Small Island Developing States (PSIDS), the African Group and a number of NGOs (Intersessional Work, 2020, own observation; High Seas Alliance, 2020). A point of divergence is also whether the approval of the Scientific and Technical Body must be obtained and whether information should be provided in case the state concludes that an EIA will not be necessary (Art.30 (3)). Also, still under discussion is whether screening of activities will consider the characteristics of the area where the planned activity is taking place or where its effects will be felt. This is particularly relevant regarding the connectivity between the high seas and coastal waters (Livingstone & Jose, 2021) and whether the assessments should be exclusively dealing with impacts that arise from activities that take place in Areas Beyond National Jurisdiction– or also considers impacts of any activities (including those within national jurisdiction) that have an impact on ABNJ. The regional groups African group, and PSIDS, for instance, are strong supporters of the latter option (Intersessional Work, own observations, 2020). Possibly, an EIA will be required for areas of significance or vulnerability, even if impacts are expected to be minimal (Art. 30 (2)).

Also under discussion is the scope of EIAs- namely what kind of impacts are supposed to be assessed (Art. 31). The question here would be if there are other impacts, apart from environmental impacts, that would need to be considered, such as social, economic or cultural ones, which is already EIA best practice (CBD, 2010). Scientific literature emphasizes the need to account for cumulative impacts and climate change in EIAs and Strategic Environmental Assessments (SEAs) (Gjerde et al., 2016; Marciniak, 2017; Sander, 2016)). More recent literature also calls for additional regional environmental assessments (REAs) and the need for the new EIA regime to set out a comprehensive approach of REAs, SEAs and EIAs (Doelle & Sander, 2020). Despite the calls from the scientific community, the question on how to take into account cumulative impacts for environmental impact assessments is still under discussion in the ongoing negotiations (Art. 21bis). Negotiators have until the last round of discussions not agreed on the question how to operationalise Strategic Environmental Assessments (Art. 21bis; Art. 28), and whether or not to include a list of activities that would be exempted from or require an EIA (Art. 29).

  1. How to assess and evaluate impacts?

One part of the draft text considers who would undertake the assessments and on which basis (scientific knowledge, other forms of knowledge, e.g. traditional knowledge of indigenous peoples and local communities). In this regard, differing capacities of states to undertake EIAs need to be considered and adequate expert advice be guaranteed (Art. 32). It remains to be seen to what extent science advice can be guaranteed through the BBNJ agreement – such as in the form of a pool of experts under the Scientific and Technical Body (Art. 32 (4)). Assessment could also regard prevention, mitigation and management of adverse effects, considering the development of alternative activities to the ones previously planned (Art. 33).

  1. Who should be kept in the loop?

When activities are planned in ABNJ, the question arises of who should be notified of these plans and included in the EIA process. There are discussions about the inclusion of potentially affected states, relevant bodies, NGOs, and other stakeholders, such as indigenous peoples and local communities, academia and the general public (Art.34). The inclusion of stakeholders, other than the states, that are planning the activity is crucially important for the transparency and legitimacy of the process. However, there is no consensus yet on how participation and consultation of other stakeholders should look like.

  1. EIA Reports: How to prepare, where to publish?

While there is general agreement that states would be the ones preparing EIA reports (Art. 35) and ensuring that they are published (Art. 36), discussions are still evolving around their contents (Art. 35) and means of publication (Art. 36). Ideas include publishing EIA reports through the BBNJ “Clearing House Mechanism”, a data-sharing platform, which will be established through the BBNJ agreement, but whose characteristics are still undecided. Making EIA reports public – for the Secretariat, the Scientific and Technical Body, other states, intergovernmental organizations (IGOs), NGOs and civil society at large – is important to ensure transparency. A review of the reports by e.g. the Scientific and Technical Body will be necessary for legitimate decisions on whether the proposed activities can go ahead.

  1. How to decide on the approval of an activity?

The draft text of the future agreement lays out the possibility to establish a review of the EIA reports (Art. 37). Similar to the imbalance in capacities to conduct EIAs, not all states have the same capacity to review EIA reports. Review by the Scientific and Technical Body is currently under discussion within the negotiations. After the preparation of EIA reports, the decision whether or not to allow the proposed activity needs to be taken. In this particular question, views are not aligned and contrasting options are on the table, ranging from unilateral decisions (the state who proposed the activity) to global decisions (the Conference of the Parties (COP)) and a potential role of the Scientific and Technical Body (Art. 38).

  1. How to check on impacts of authorized activities?

Final considerations in the EIA process regard the monitoring (Art. 39), reporting (Art. 40) and review (Art. 41) of the impacts of authorized activities. Monitoring of authorized activities refers to continuous checks whether the activities that have been authorized do not exceed the threshold of impacts on the environment. While the value of such monitoring, as well as reporting on these findings and their review has been recognized, details are also yet to be decided on.

Key Considerations for BBNJ

There are a number of overarching issues that are not agreed yet but are of paramount importance as they will decide on the future of EIAs for the ocean and its ecosystems.

Relationship to other bodies

The ocean is currently regulated through a fragmentation of different instruments, frameworks and bodies on sectoral, global, regional and subregional levels that cannot comprehensively ensure the conservation and sustainable use of marine biodiversity (Tessnow-von Wysocki & Vadrot, 2020). The relationship between the EIA process established under BBNJ with existing EIA processes under other relevant legal Instruments and Frameworks and relevant global, regional, subregional and sectoral Bodies (IFBs), is not resolved yet (Art. 23). When it comes to conserving and sustainably using marine biodiversity, splitting the governance of the ocean into different regimes for the seafloor and the water column above it, assigns governance capacity over the ocean to different organisations but does not make sense from an ecological perspective (O’Leary & Roberts, 2018). There are separate entities governing activities in areas beyond national jurisdiction regarding the seafloor (i.e. the International Seabed Authority (ISA)) and the water column (several IFBs). The new BBNJ agreement will be responsible for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction and thus provides an opportunity to comprehensively align the efforts by other IFBs.

There is the argument, that BBNJ cannot “undermine” other bodies and frameworks, which can be interpreted differently (Ardron et al., 2014; O’Leary and Roberts, 2017; Quirk and Harden-Davies, 2017; Scanlon, 2018; Friedman, 2019). It is important to note, however, that if a comprehensive framework is the aim, then a coordinated way of governing the conservation and sustainable use needs to be found – in conjunction with the already existing instruments, frameworks and bodies. In this way, mandates will not be undermined, but rather complemented. An idea in this regard is the proposition of joint environmental impact assessments (REAs and data sharing) with potentially affected coastal states, flag states, as well as existing IFBs with decision-making responsibility in ABNJ, including regionally with Regional Fisheries Management Organisations and Regional Seas organisations, and different sectors, with, for example, the International Maritime Organisation (Doelle & Sander, 2020) or the ISA.

There is a large part of the ocean where not all issues are covered under the respective mandates of existing bodies. Therefore, some actors stress the importance for the EIA section being broad enough to consider fish and fishing, as it would otherwise mean that for areas or species that are not covered under existing instruments, frameworks and bodies, there would be no responsible governing entity (Crespo et al., 2019).

Who will govern human impacts on the ocean in the years, decades and centuries to come..?

The main question about EIAs in international waters comes down to who can ultimately take the decision whether or not activities can take place in the global commons. Participation and inclusion of stakeholders in all steps of the EIA process are therefore critical. As mentioned above, in each of the steps, there is a divergence of views of the BBNJ policy-makers who should be notified about proposed activities and final reports and decisions, who should be actively included in the assessment process (assessing, evaluating, reviewing reports), and who should ultimately have the final say whether or not the proposed activity can take place in ABNJ.

While there is agreement that a “Scientific and Technical Body” needs to be established under the BBNJ agreement, the role of such a body for the EIA process is not clear, even though assessing ecological impacts is an inherently scientific question. Theoretically, there would be the possibility to task a global body of stakeholders or the Scientific and Technical Body with a) identifying whether or not an assessment is necessary; b) conducting the assessments; c) reviewing assessment reports and d) deciding whether or not an activity can take place. As elaborated earlier, the negotiations have put a preference on states deciding whether or not EIAs should take place (Screening & Scoping), undertaking the assessments, and taking (unilaterally or multilaterally) the decision whether or not to allow the activity. The discussions include the options for a) the state who is proposing the activity, and b) the Conference of the Parties (COP) – all states collectively – to make the ultimate decision over whether or not the activity can take place. To what extent the Scientific and Technical Body will be able to support countries with a lack of scientific means to conduct EIAs, and to review assessments before decision-making, remains to be seen. Other impacts that might need to be assessed, including social and cultural ones, would additionally require the inclusion of other stakeholders in the process and ideally in all stages of the EIA process.

It needs to be remembered that the ocean is a global common. Areas beyond national jurisdiction is a shared space, and by definition not under the jurisdiction of states. It is rather a space that is home to prestigious marine ecosystems and inevitable for the health of the blue planet. Safeguarding this space is crucial in order to ensure current and future generations’ access to the ocean’s services that we take for granted today. But beyond that, humanity has a responsibility to protect the ocean for its own right and intrinsic value. Some questions should therefore be reflected on during the negotiations for the creation of a new framework that will govern human activities in this shared space that is inevitable for nature and human well-being: Can it be the right of a state to take a decision over activities in areas that belong to everyone and no-one at the same time? Or do we have a collective responsibility as humanity to make sure that our activities do not harm the marine environment and threaten future generations, living beings and their habitats on the planet? Posing these questions can only improve the course of action as we go through this very important process of setting the rules for future use and protection of the ocean.

The international community should be taking joint decisions on how we as humans use and protect this space. While a few governments demand unilateral decision-making over the global commons, a number of state governments have spoken up for a more global approach in the EIA process. Through “internationalizing” the EIA process, it is hoped by some actors that transparency, fairness, accountability and the collective governance of global commons can be achieved. Internationalization can be defined differently by different actors, including the notification of proposed activities and publication of assessment reports and decisions to all interested stakeholders; participation and inclusion of these stakeholders in the process; collective review; up to joint decision-making. Quite some actors would prefer an internationalized process, with the inclusion of a range of stakeholders in the participation and consultation (including indigenous peoples and local communities, particularly relevant in the Arctic region (Doelle & Sander 2020)), a larger role of the Scientific and Technical Body in the review of reports and global decision-making by the COP whether or not activities can take place.

Timely and public access to information on assessments and how decisions were made can ensure transparency and accountability (Doelle & Sander 2020). Links have been made to the Escazú Agreement as a best practice example on requirements for reasoned decision, responding to comments and relying on evidence and to include the option for “a notice of particular interest” to the Scientific and Technical Body, which would allow stakeholders to make their concerns with a planned activity heard (IUCN, Intersessional Work on EIAs, own observation, 2020). Internationalization of the EIA process is a heated debate in the BBNJ negotiations and will ultimately determine the effectiveness of EIAs and the health of the ocean and its ecosystems in the future.

Formal discussions in the BBNJ negotiations have so far not focused on the possibility of a liability fund, which would be important to include into the agreement (Hassanali, 2021). Such a fund would particularly be relevant to cover compensation costs, in the case of court trials requiring time to be resolved and identify responsible actors for pollution/accidents (Tessnow- von Wysocki, 2021).

Setting Priorities for the Planet

While some stakeholders might want to see more focus on conservation (preserving the marine environment), others prioritize sustainable use (the sustainable exploitation of the marine environment for human benefit). How can a balance be achieved in the agreement when the ocean is already largely exploited and little protected (Karan, 2020)? Environmental Impact Assessments are one important aspect of conservation, as they can prevent environmental damage if a strong framework is in place (Tessnow-von Wysocki & Vadrot, 2020). They are also an important pillar for sustainable use of the ocean to allow activities that are not causing harm to the marine environment and still benefit us as humans. Why not use science to evaluate which activities are bearable for the ocean and the organisms that call the ocean their home? And why not re-think activities that turn out to have an adverse effect on the marine environment? The benefits of rejecting harmful activities on the ocean might mean a short-term financial loss – but it also promises a long-term environmental gain. Maybe it would now be the time to see the ocean as part of the planet we live in, rather than an infinite pool of “resources” for us to use? This is the time to set the priorities for the planet and take the first step towards a more sustainable future- with the priority of conserving our planet, rather than exploiting it against the calls of scientists (IPBES, 2019). Future generations will thank us if we take this turn. The protection of the global commons is in everyone’s interest. A fair and effective assessment of human impacts on ocean biodiversity and the decision-making over whether or not to allow activities, require – apart from states – also the inclusion of scientists, non-state actors and interested civil society along the process.

References

Ardron, J. A., Rayfuse, R., Gjerde, K. M., and Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: what can be achieved using existing international agreements? Mar. Policy 985, 98–108. doi: 10.1016/j.marpol.2014.02.011

CBD. 2010. What is Impact Assessment? Retrieved from: https://www.cbd.int/impact/whatis.shtml

Crespo, G. O., Dunn, D. C., Gianni, M., Gjerde, K. M., Wright, G., and Halpin, P. N. (2019). High-seas fish biodiversity is slipping through the governance net. Nat. Ecol. Evol. 3, 1273–1276. doi: 10.1038/s41559-019-0981-4

Doelle, M., & Sander, G. (2020). Next Generation Environmental Assessment in the Emerging High Seas Regime? An Evaluation of the State of the Negotiations. The International Journal of Marine and Coastal Law, 35(3), 498-532

Durussel, C., Soto Oyarzún, E., & Urrutia S, O. (2017). Strengthening the Legal and Institutional Frame-work of the Southeast Pacific: Focus on the bbnj Package Elements. The International Journal of Marine and Coastal Law, 32, 671. https://doi.org/10.1163/15718085-12324051

Friedman, A. (2019). Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction. J. Mar. Sci. 76, 452–456. doi: 10.1093/icesjms/fsy192

Gjerde, K. M., Reeve, L. L. N., Harden-Davies, H., Ardron, J., Dolan, R., Durussel, C., Earle, S., Jimenez, J. A., Kalas, P., Laffoley, D., Oral, N., Page, R., Ribeiro, M. C., Rochette, J., Spadone, A., Thiele, T., Thomas, H. L., Wagner, D., Warner, R., Wilhelm, A., & Wright, G. (2016, 2016/09/01). Protecting Earth’s last conservation frontier: scientific, management and legal priorities for MPAs beyond national boundaries [https://doi.org/10.1002/aqc.2646]. Aquatic Conservation: Marine and Freshwater Ecosystems, 26(S2), 45-60. https://doi.org/https://doi.org/10.1002/aqc.2646

Hassanali, K. (2021, 2021/03/01/). Internationalization of EIA in a new marine biodiversity agreement under the Law of the Sea Convention: A proposal for a tiered approach to review and decision-making. Environmental Impact Assessment Review, 87, 106554. https://doi.org/https://doi.org/10.1016/j.eiar.2021.106554

High Seas Alliance. (2020). Consistency with the Madrid Protocol Thresholds with UNCLOS EIA Provisions. Why the BBNJ Agreement should adopt the Madrid Protocol Threshold and Tiering Approach. Retrieved from: http://www.highseasalliance.org/wp-content/uploads/2020/09/FInal-Brief-Consistency-of-Madrid-Protocol-Thresholds-with-UNCLOS-9.9.20.pdf

IPBES (2019). Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. Retrieved from. doi: 10.5281/zenodo.3553579

Karan, L. (2020). A Path to Creating the First Generation of High Seas Protected Areas:  Science-based method highlights 10 sites that would help safeguard biodiversity beyond national waters. https://www.pewtrusts.org/en/research-and-analysis/reports/2020/03/a-path-to-creating-the-first-generation-of-high-seas-protected-areas

Kok, M., Brons,J., & Witmer, M. (2011). A global public-goods perspective on the environment and poverty reduction: Implications for Dutch Foreign Policy

Livingstone & Jose, (2021). Connectivity of the High Seas to Coastal Waters Retrieved from: http://www.highseasalliance.org/2021/05/21/connectivity-of-the-high-seas-to-coastal-waters/

Ma, D., Fang, Q., & Guan, S. (2016). Current legal regime for environmental impact assessment in areas beyond national jurisdiction and its future approaches. Environmental Impact Assessment Review, 56, 30. https://doi.org/10.1016/j.eiar.2015.08.009

Marciniak, K. J. (2017). New implementing agreement under UNCLOS: A threat or an opportunity for fisheries governance? Marine Policy, 84, 326. https://doi.org/10.1016/j.marpol.2017.06.035

O’Leary, B. C., and Roberts, C. M. (2017). The structuring role of marine life in open ocean habitat: importance to international policy. Front. Mar. Sci. 4:268. doi: 10.3389/fmars.2017.00268

O’Leary, B. C., and Roberts, C. M. (2018). Ecological connectivity across ocean depths: implications for protected area design. Glob. Ecol. Conserv. 15:e00431. doi: 10.1016/j.gecco.2018.e00431

Sander, G. (2016). International Legal Obligations for Environmental Impact Assessment and Strategic Environmental Assessment in the Arctic Ocean. The International Journal of Marine and Coastal Law, 31(1), 88-119. https://doi.org/https://doi.org/10.1163/15718085-12341385

Scanlon, Z. (2018). The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES J. Mar. Sci. 75, 405–416. doi: 10.1093/icesjms/fsx209

Tessnow- von Wysocki, I. (2021). Developing countries in the BBNJ – CARICOM interests from a blue economy perspective and a proposed approach to EIAs, MARIPOLDATA Ocean Seminar Summary.  https://www.maripoldata.eu/wp-content/uploads/2021/08/Summary_MARIPOLDATA-Ocean-Seminar_Caricom_slides1.pdf

Tessnow-von Wysocki, I., & Vadrot, A. B. M. (2020). The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review [Systematic Review]. Frontiers in Marine Science, 7(1044). https://doi.org/10.3389/fmars.2020.614282

Warner, R. (2018, 01/01). Oceans in transition: Incorporating climate-change impacts into environmental impact assessment for marine areas beyond national jurisdiction. Ecology Law Quarterly, 45, 31-51. https://doi.org/10.15779/Z38M61BQ0J

Quirk, G. C., and Harden-Davies, H. (2017). Cooperation, competence and coherence: the role of regional ocean governance in the south west pacific for the conservation and sustainable use of biodiversity beyond national jurisdiction. Int. J. Mar. Coastal Law 32, 672–708. doi: 10.1163/15718085-13204022

Footnotes:

[1] UNCLOS legal text: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

[2] Revised draft text of an agreement 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, See: https://undocs.org/en/a/conf.232/2020/3

[3] The threshold of impact that triggers an EIA, established in the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

The MARIPOLDATA Marine Biodiversity Country Dashboard – An innovative way to inform about the BBNJ negotiations

MARIPOLDATA has now published a new Marine Biodiversity Country Dashboard which presents some of the ethnographic and bibliometric data collected by the project at and on the ongoing intergovernmental negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). The data is organized by country and the user can interactively select the country of interest as well as compare different countries. 


This interactive dashboard serves to inform the user about a variety of indicators from the ongoing process of international negotiations as well as from the bibliometric sample of marine biodiversity-related scientific publications since 1990, as presented in the paper by 
Tolochko & Vadrot (2021). The dashboard maps the behavior of governmental delegations in the BBNJ negotiations as well as the global distribution of marine biodiversity science by giving data on the scientific output and cooperation of a country as well as data from the ongoing negotiations such as talking time and the mentioning of core concepts.

 

It can be a helpful tool for researchers interested in the study of BBNJ, governmental and non-governmental actors involved in the BBNJ negotiations, and the general public. By making this data publicly accessible, we hope to both inform the ongoing BBNJ negotiations throughout the intersessional period and making the BBNJ negotiations more transparent to the public. The user can click through the dashboard to find relevant data for the country of interest, making the use of the dashboard intuitive and interactive.

 

 Key contributions

  • Making research data openly accessible
  • Presenting ethnographic data from BBNJ negotiations on a country-level 
  • Connecting ethnographic and bibliometric data
  • Strengthening engagement with the BBNJ process

Informing the BBNJ negotiations

While the world´s oceans, their ecosystems, and marine biodiversity face threats from various sources, scientific and technological innovations have constantly increased the reach of humanity to access and potentially exploit the most remote areas of the high seas. To conserve marine biodiversity and regulate areas beyond national jurisdictions, the UN General Assembly has decided to develop a new legally binding treaty under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (resolution 69/292 of 19 June 2015), called the BBNJ agreement.

 

Since 2018, over one hundred governments are negotiating a new legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). The new agreement is organized into four different package items: marine genetic resources (MGRs); area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessments (EIAs); and capacity building and the transfer of marine technology (CB&TT). For an overview of the ongoing negotiations, please refer to the paper by Tessnow-von Wysocki & Vadrot (2020) and Vadrot et al. (2021) or our previous blogposts. Since the beginning of the COVID-19 pandemic, however, intergovernmental negotiations have been postponed and states and stakeholders engage online in informal dialogues. 


Innovative ways of engagement

After almost two years of online intersessional period, it is particularly important to maintain momentum and engagement in the BBNJ negotiation process. Further, it is crucial to make negotiations publicly understandable and increasingly transparent – also to the public that is not directly involved with the negotiations.

 

By making country-level data about marine biodiversity publicly available now, we aim to create novel ways for the public to engage with the BBNJ negotiations. Using the open-source R shiny app, we programmed this dashboard for researchers, policy-makers, non-governmental actors, and other stakeholders or the general public that wish to stay updated on several aspects of the BBNJ process. We hope that the dashboard can trigger continuous engagement with the BBNJ negotiations, particularly during the prolonged intersessional period, and in this way support the intergovernmental efforts to come to an agreement.

 

Being published simultaneously to the innovative panel “United Nations Negotiations for the Future of Marine Biodiversity. A Conversation among Academics and Practitioners on the BBNJ Negotiations” at this year´s Earth System Governance conference, it aims to highlight innovative ways to stimulate discussion and engagement and to contribute to an inter- and transdisciplinary dialogue on the BBNJ negotiations. This dashboard supports the panel which brings together researchers and practitioners by providing new data and analyses.

Thus, we invite scholars and national delegates, as well as representatives of intergovernmental- and non-governmental organizations and everyone else to explore the dashboard and in this way stay informed about the BBNJ process.

 

The MARIPOLDATA approach – a new methodology to analyze negotiation data

Marine biodiversity data and research play a central role in negotiating and implementing the treaty and delegates continuously emphasize the importance of science-based decisions making. But the capacities to conduct marine scientific research, and develop and use data infrastructures are unequally distributed. There are also significant disbalances in the intensity of scientific collaboration among countries as well as primary research topics (Tolochko & Vadrot, 2021). Despite broad recognition of these disbalances, the political aspects of marine biodiversity research remain understudied.

The central objective of MARIPOLDATA is to overcome these shortcomings by developing and applying a new methodology for the analysis of science-policy interrelations. To research the science-policy interrelations, the MARIPOLDATA team has applied a set of qualitative and quantitative methods to collect data within the BBNJ negotiations as well as online in the Web of Science database. 

 

The research team notes that the collection of ethnographic data at international negotiations and its subsequent management and publication has posed a challenge to researchers in the past. Concerning ethnographic data, it has been particularly challenging to make such data publicly accessible and understandable beyond the researcher that collected it. This dashboard was developed as an answer to these challenges. By making ethnographic data from the negotiations and bibliometric data from the web of science publicly accessible, the research team moves forward on this central objective of the project to understand science-policy interrelations and identify new forms of power in global environmental politics as well as develop the methodologies to do so.

(Marine) Territories? Conventional and dynamic ABMTs, and the contribution of Indigenous People and Local Communities

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 which are planned to be concluded in 2022 (Marine Genetic Resources (MGRs), Area Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and Technology Transfer (CBTT)) from the intersessional online discussions taking place on MS Teams since September 2020, the virtual High Seas Dialogues taking place under Chatham House rules, and the MARIPOLDATA Ocean Seminar Series in which scholars and practitioners present and discuss current issues of ocean governance.

Current practice in ocean protection

Life as we know it depends on the health of the ocean (Gjerde et al., 2019), but we continue to perform practices that alter its ecological balance, such as overfishing or polluting the atmosphere. As a response, the international community negotiates the development of a new treaty that would enable the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). To fulfill this task, delegates address the designation of area-based management tools (ABMTs) and marine protected areas (MPAs), which are geographically delimited marine areas – or marine territories – where human activities are regulated or prohibited for ocean management and conservation. They afford higher protection than their surroundings: ABMTs focus on economic activities – i.a. fishing, shipping, deep-sea mining –, while MPAs aim at the long-term in situ conservation of marine ecosystems (D. Johnson et al., 2018).

While it is common practice to designate ABMTs and MPAs around the globe for ocean protection (see Drankier, 2012), such marine territories mainly constitute motionless tools that disregard the intrinsic movement of water and species to help us estimate our impact on the ocean.

In view of this situation, states also implement dynamic ABMTs, and mobile MPAs, – whose boundaries shift in space and time according to the movement of migratory species and movable habitats (Maxwell et al., 2020, pp. 252-253) – but they face legal challenges.

In this blog article, we shed light on the weaknesses of ABMTs and MPAs and their inflexible approach to a fluid ocean, the challenges of dynamic approaches towards marine management, and the contribution of Indigenous People and Local Communities (IPLCs) in improving our knowledge on the ocean, as well as providing alternative forms of engagement with the marine environment.

Our discussion is partially informed by the MARIPOLDATA Ocean Seminar webinar from March 24, 2021, with Prof. Dr. Kimberley Peters (Professor at the Helmholtz Institute for Functional Marine Biodiversity at the University of Oldenburg (HIFMB)). You can read the summary of the session by clicking here.

Key arguments

  • Conventional ABMTs and MPAs set fix boundaries in an ever emerging and fluid ocean.
  • While dynamic ABMTs, including mobile MPAs, are worth further implementation, we need alternatives that can be applied sooner and in the long-term.
  • IPLCs can help us reorientate and enrich current practices of ocean protection.

Land and (marine) territories

Territories are delimited and governed spaces by societies that determine whether and which types of activities are allowed in these bounded areas (Paasi, 2003; Peters, 2020, p. 4). Societies have traditionally thought of territories as flat spaces and measure them in square kilometers – “a flat measure of area” (Peters, 2020, p. 4; Steinberg & Peters, 2015).

To avoid such flat understanding of territories, researchers introduced the vertical dimension by firstly, considering the air, subsoil and surface, and secondly, arguing for control over both flat and three-dimensional spaces (Steinberg & Peters, 2015). That is to say, researchers kept focusing on motionless physical substances (Steinberg & Peters, 2015, p. 248).

Against this scenario, scholars considered the temporal dimension but often in a “periodized” way that oversees transformations of physical elements (Steinberg & Peters, 2015, p. 248). This is particularly problematic in the case of the ocean because water and species move vertically and horizontally (Dunn et al., 2017; O’Leary & Roberts, 2018). Thus, thinking of the ocean as we think of land – as a static space with volume and verticality – makes us grasp the marine environment as something it is not: “a space of fixed horizontal strata” (Steinberg & Peters, 2015, p. 258).

This is, however, how we approach the ocean by creating motionless ABMTs and MPAs (Peters, 2020). As (marine) territories, they follow “static and flat modes” of organizing the ocean, fixing limits around intrinsically mobile objects, such as marine water and species, and humans (Peters, 2020, p. 4-6). This raises the question:

  • How can we manage and protect the ocean by delimiting it as we delimit land?

Dynamic marine management

Aware of the stationary character of (marine) territories, researchers propose to establish dynamic ABMTs, including mobile MPAs. Scientists shift the boundaries of these territories in near-real time by using data that enables them to track marine species and forecast their location (Maxwell et al., 2020, p. 253). This means that scientists constantly relocate the boundaries of dynamic ABMTs, including mobile MPAs, so that specific species are always protected.

To achieve this goal, scientists communicate the new location of dynamic ABMTs, including mobile MPAs, in short time. However, dynamic marine management faces the challenge of contradicting the principle of legal certainty. This principle has different interpretations but, in general terms, establishes that law must be predictable, stable, and reliable so that people are aware of the legal consequences of their actions (see Fenwick et al., 2017). Thus, shifting the boundaries of dynamic ABMTs and mobile MPAs according to the movement of species might hinder people’s ability to grasp the consequences of their activities in the ocean because species might move unpredictably, i.a. due to climate change.

Such situation leads to the questions:

  • How can we improve current practices of marine management?

Our purpose is by no means to discourage the implementation of dynamic ABMTs, including mobile MPAs, but to highlight that our knowledge about ocean management is still developing (Gownaris et al., 2019) and that we need to improve how we govern human activities in the sea. Therefore, we have to further develop technologies to manage the marine realm, as well as expand our horizons by involving further understandings and ways of relating to the sea in decision-making processes (Peters, 2020), such as those of IPLCs. Their approaches can broaden the ways we think of the ocean, provide relevant knowledge and help us effectively conserve and sustainably use marine biodiversity.

Alternative ocean-related experiences: IPLCs and their traditional knowledge

IPLCs develop an intimate relation with the environment by thinking of themselves as part of nature and not aside from it (Escobar, 1998, p. 61). They might protect marine areas on spiritual grounds (Laffoley et al., 2017, p. 135) and do not allow fishing during non-foreseeable or pre-established periods, including when a leader dies or when they identify the need to conserve marine species (Mulalap et al., 2020, p. 5).

Many IPLCs understand the environment holistically, which enables them to grasp ecological processes, different species and further factors that influence the life of such species (Drew, 2005, p. 1288). Moreover, some IPLCs might have more detailed knowledge on marine species and ecological processes than scientists, as it has been the case with the Arctic region (CBD, 2014; Huntington, 2000).

However, why would we use the traditional knowledge (TK) of coastal IPLCs to protect marine biodiversity in the high seas? Because what happens in the coast affects the high seas due to the connectivity of the oceans (Dunn et al., 2017) as exemplified by the protection that IPLCs provide to marine species in international waters or “in connection with” them (Mulalap et al., 2020, p. 7).

TK can help us conserve and sustainably use marine biodiversity in the high seas because it provides knowledge on the connectivity across national and international waters, informs science on conservation and management of marine areas and species, and provides ocean-related practices that are environment-friendly (Dunn et al., 2017; Harden-Davies et al., 2020; Huntington, 2000; Laffoley et al., 2017; Mulalap et al., 2020; Nursey-Bray & Jacobson, 2014; Vierros et al., 2020).

How we decide to conserve and sustainably use marine biodiversity is driven by both the ways we relate to the ocean and what we know about the marine realm (Peters, 2020). As TK is “inseparable from its cultural context” (Dunn et al., 2017, p. 11) and we need to broaden the ways we think of the marine realm, both ocean and humanity would benefit from the participation – or at least increased representation – of IPLCs in the BBNJ Negotiations.

Recommendations for the BBNJ Negotiations

IPLCs are underrepresented in the BBNJ Negotiations (Mulalap et al., 2020; Vierros et al., 2020) where states introduce TK (own ethnographic observations) but fail to understand it on its own terms (Escobar, 1998). Thus, the participation of IPLCs is necessary for an appropriate representation of alternative ways of relating to the ocean in the BBNJ Negotiations. This would turn such intergovernmental meetings into a more participatory process that would enable diplomats to rethink and enrich our understanding of conventional or dynamic ABMTs and MPAs.

Thus, the MARIPOLDATA team recommends the participation of IPLCs in the BBNJ Negotiations to reorientate and improve marine maganement. IPLCs could help us reimagine our engagement with the ocean and could provide valuable knowledge to conserve and sustainably use marine biodiversity.

References:

CBD. (2014). Report of the Arctic regional workshop to facilitate the description of ecologically or biologically significant marine areas (Report No. UNEP/CBD/EBSA/WS/2014/1/5). https://www.cbd.int/doc/meetings/mar/ebsaws-2014-01/official/ebsaws-2014-01-05-en.pdf

Drankier, P. (2012). Marine protected areas in areas beyond national jurisdiction. The International Journal of Marine and Coastal Law, 27, 291-350. https://doi.org/10.1163/157180812X637975

Drew, J. A. (2005). Use of traditional ecological knowledge in marine conservation. Conservation Biology, 19(4), 1286-1293. https://www.jstor.org/stable/3591313

Dunn, D. C., Crespo, G. O., Vierros, M., Freestone, D., Rosenthal, E., Roady, S., Alberini, A., Harrison, A.-L., Cisneros, A., Moore, J. W., Sloat, M. R., Ota, Y., Caddell, R., Halpin. P. N. (2017). Adjacency: How legal precedent, ecological connectivity, and Traditional Knowledge inform our understanding of proximity [Policy brief]. The Nippon Foundation. https://archives.nereusprogram.org/policy-brief-adjacency-how-legal-precedent-ecological-connectivity-and-traditional-knowledge-inform-our-understanding-of-proximity/

Escobar, A. (1998). Whose knowledge, whose nature? Biodiversity, conservation and the political ecology of social movements. Journal of Political Ecology, 5, 53-82. https://doi.org/10.2458/v5i1.21397

Fenwick, M., Siems, M., & Wrbka, S. (Eds.) (2017). The state of the art and shifting meaning of legal certainty. In The Shifting Meaning of Legal Certainty in Comparative and Transnational Law (pp. 1-26). Hart Publishing.

Gjerde, K. M., Clark, N. A., & Harden-Davies, H. R. (2019). Building a platform for the future: The relationship of the expected new agreement for marine biodiversity in areas beyond national jurisdiction and the UN Convention on the Law of the Sea. Ocean Yearbook, 33, 3-44. https://doi.org/10.1163/9789004395633_002

Gownaris, N. J., Santora, C. M., Davis, J. B., & Pikitch, E. K. (2019). Gaps in protection of important ocean areas: A spatial meta-analysis of ten global mapping initiatives. Frontiers in Marine Science, 6, Article 650. https://doi.org/10.3389/fmars.2019.00650

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

Huntington, H. P. (2000). Using traditional knowledge in science: Methods and applications. Ecological Applications, 10(5), 1270-1274. https://doi.org/10.1890/1051-0761(2000)010[1270:UTEKIS]2.0.CO;2

Johnson, D., Ferreira, M. A., & Kenchington, E. (2018). Climate change is likely to severely limit the effectiveness of deep-sea ABMTs in the North Atlantic. Marine Policy 87, 111-122. https://doi.org/10.1016/j.marpol.2017.09.034

Johnson, D. E., Froján, C. B., Turner, P. J., Weaver, P., Gunn, V., Dunn, D. C., Halpin, P., Bax, N. J., & Dunstan, P. K. (2018). Reviewing the EBSA process: Improving on success. Marine Policy, 88, 75-85. https://doi.org/10.1016/j.marpol.2017.11.014

Laffoley, D., Dudley, N., Jonas, H., MacKinnon, D., MacKinnon, K., Hockings, M., & Woodley, S. (2017). An introduction to ‘other effective area-based conservation measures’ under Aichi Target 11 of the Convention on Biological Diversity: Origin, interpretation and emerging ocean issues. Acquatic conservation, 27, 130-137. https://doi.org/10.1002/aqc.2783

Maxwell, S. M., Gjerde, K. M., Conners, M. G., & Crowder, L. B. (2020). Mobile protected areas for biodiversity on the high seas. Science, 367(6475), 252-254. https://doi.org/10.1126/science.aaz9327

Mulalap, C. Y., Frere, T., Huffer, E., Hviding, E., Paul, K., Smith, A. Dr., & Vierros, M. K. (2020). Traditional knowledge and the BBNJ instrument. Marine Policy, 1-10. https://doi.org/10.1016/j.marpol.2020.104103

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

O’Leary, B. C, & Roberts, C. M. (2018). Ecological connectivity across ocean depths: Implications for protected area design. Global Ecology and Conservation, 15, Article e00431. https://doi.org/10.1016/j.gecco.2018.e00431

Paasi, A. (2003). Territory. In J. Agnew, K. Mitchell, G. Toal (Eds.), A Companion to Political Geography (pp. 109-122). Blackwell Publishers.

Peters, K. (2020) The territories of governance: unpacking the ontologies and geophilosophies of fixed to flexible ocean management, and beyond.  Philosophical Transactions of the Royal Society B, 375(1814), Article 20190458. https://doi.org/10.1098/rstb.2019.0458

Steinberg, P., & Peters, K. (2015). Wet ontologies, fluid spaces: giving depth to volume through oceanic thinking. Environment and Planning D: Society and Space, 33, 247-264. https://doi.org/10.1068%2Fd14148p

Vierros, M. K., Harrison, A., Sloat, M. R., Ortuño Crespo, G., Moore, J. W., Dunn, D. C., Ota, Y., Cisneros-Montemayor, A. M., Shillinger, G. L., Watson, T. K., & Govan, H. (2020). Considering Indigenous Peoples and local communities in governance of the global ocean commons. Marine Policy, 119, Article 104039. https://doi.org/10.1016/j.marpol.2020.104039

What do we know about BBNJ? New MARIPOLDATA database of Scientific Literature on the ongoing marine biodiversity negotiations

MARIPOLDATA has now published a new literature database covering scientific publications on the ongoing intergovernmental negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). Providing a continuously updated overview of scientific BBNJ governance publications, the database can serve as a point of information for both researchers interested in the study of BBNJ and governmental and non-governmental actors involved in the BBNJ negotiations. We hope that the database encourages inter- and transdisciplinary debate within and beyond the scientific community and serves to inform the ongoing BBNJ negotiations throughout the intersessional period.

Background on the BBNJ negotiations

Negotiations on a new legally binding instrument for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) are ongoing. After pre-negotiations in form of Ad-Hoc Open-ended Informal Working Group and Preparatory Committee Meetings, four intergovernmental conferences were planned to finalise a new agreement. As the last session, planned for Spring 2020, has been postponed due to the Covid-19 pandemic, formal negotiations have paused and discussions continue as informal exchanges on online platforms[1]. There is general agreement that the new instrument should be based on science, among other forms of knowledge, to inform policy-making and meet societal goals.

The MARIPOLDATA Database on BBNJ Governance Literature

Our database is a comprehensive collection of peer-reviewed scientific literature, published in English language on the BBNJ negotiations. Based on the sample and methodology of the systematic literature review “The Voice of Science on marine biodiversity negotiations” (Tessnow-von Wysocki and Vadrot 2020)  published in Frontiers in Marine Science, the database incorporates articles on the topic from 2004 until 2021 and will be continuously updated.

The database provides an overview of all academic literature published on or in relation to the BBNJ treaty (negotiations), by authors from diverse scientific disciplines and regions. We facilitate navigation through the publications with filters for topics, years and keywords and provide abstracts, which serves users to quickly grasp the topics and contents of individual articles. A statistics section shows the distribution of the publications by topic, year, region, and source. Additionally, we provide access to official United Nations global assessments and reports, as well as to the draft texts of the BBNJ agreement.

We designed this tool for both researchers interested in the BBNJ process and policy-makers, non-governmental actors, and other stakeholders that wish to keep up-to-date with the latest scientific publications on several aspects of the BBNJ process. As the BBNJ negotiations have been put on hold due to the Covid-19 pandemic, we hope that the database will constitute an important pillar during the intersessional period by making existing research more visible and bridging the gap between science and policy until the next intergovernmental conference takes place.

[1] Including the Virtual Intersessional Work, organized by UNDOALOS and the BBNJ Informal Intersessional Dialogues, organized by Belgium, Costa Rica, Monaco and several NGOs.

To get to the literature database click on this picture:

Turning towards the Ocean: Launching a Decade of Ocean Science

On June 1st, the United Nations Decade of Ocean Science for Sustainable Development (2021-2030) has been officially launched with the First Conference of the Ocean Decade by the German Government[1]. The MARIPOLDATA team presented their work at the Early Career Ocean Professional (ECOP) Days that followed the launch and offered a space for ECOPs to engage, present their work, and form networks.

The United Nations Decade of Ocean Science for Sustainable Development was proclaimed in 2017, as a response to the decline of ocean health and the recognition of the importance of the ocean for humanity and planet Earth[2] (Ryabinin et al., 2019). The Intergovernmental Oceanographic Commission (IOC) of UNESCO is overseeing the international cooperation and design of the Decade to “deliver the ocean we need for the future we want”. Several societal needs have been identified which the Decade aims to achieve by 2030: A Clean Ocean, A Healthy and Resilient Ocean, A Productive Ocean, A Predicted Ocean, A Safe Ocean, An Accessible Ocean as well as An Inspiring and Engaging Ocean[3]. One important aspect is the coordination and integration of already existing data and ocean science into decision-making. Sharing existing knowledge equitably with coastal communities that are most affected by the changes of the ocean and introducing more inclusive approaches of designing and conducting marine scientific research will be important to restore ocean health, as well as to use the ocean’s resources sustainably. Through the Decade, United Nations Member States will be enabled to build scientific and institutional capacity to meet the United Nations Sustainable Development Goal (SDG) 14 to conserve and sustainably manage ocean and marine resources by 2030.

The First Conference of the UN Decade of Ocean Science for Sustainable Development in a Virtual Format (f.l.t.r. David Eades, News Anchor, BBC World News TV, Anja Karliczek, German Federal Minister of Education and Research, Ranga Yogeshwar, Science Journalist).

The First Conference of the Decade was attended by over 3,000 participants, high-level politicians, representatives from non-governmental organisations, business and civil society from around the world, who gathered in a virtual format to engage on the most pressing issues and ways forward to protect and sustainably use the ocean and design marine scientific research in the years to come. The conference was characterised by the combination of statements and discussions of heads of government and the space for Early Career Ocean Professionals to contribute and portray their work, who are and will continue to shape our future in the generations to come.

 

 

 

 

 

An opportunity- but no time to lose

The conference served to start off the Ocean Decade, to recognize the significant anthropogenic threats the ocean and marine ecosystems are facing today and to reflect on the opportunity we have to act now. A high-level opening by Anja Karliczek, German Federal Minister of Education and Research, António Guterres, Secretary-General of the United Nations, and German Chancellor Dr. Angela Merkel emphasised the importance of the UN decade of Ocean Science to achieve the UN Sustainable development Goals (SDGs).

German Chancellor Dr. Angela Merkel gives a statement at the Conference

As Audrey Azoulay, Director-General of UNESCO emphasised: After Sepulveda asserted in 1993 that “humans have turned their back to the ocean”, we now need to start a new relationship with the ocean. The Ocean Decade is an opportunity to turn our attention towards the ocean. Prince Albert II of Monaco underlined the link between ocean’s health and human health and Wavel Ramkalawan, the president of Seychelles pointed to the urgency of taking action now, particularly in regards to sea-level rise and expected disappearance of small islands.

Experiences from around the Ocean

The session dived into five projects around the world: Cape Verde, Puerto Rico, the Artic Ocean, Vanuatu, and Canada.

1. Cape Verde

The Ocean Science Center Mindelo, Cape Verde.

 

Ivanice Monteiro Silva, marine biologist and Laboratory’s Manager at the Ocean Science Center Mindelo, is researching the effects of climate change on the marine environment. She observes increase in water temperature and sea-level rise and hopes that one outcome of the Ocean Decade that people understand the importance of the ocean in our earthly experience.

 

 

Christa von Hillebrandt-Andrade revisiting available sea level data in the IOC Sea-level Monitoring Facility

2. Puerto Rico

Christa von Hillebrandt-Andrade is the Manager of the Caribbean Tsunami Program and knows that “the basis of hazard warning systems is collaboration and partnership”. She argues that no country can operate a tsunami warning system without collaboration with partners and scientists and emphasizes the importance of data sharing.

 

 

3. Artic Ocean

The research vessel “Polarstern” is frozen for one year in the Arctic ice to study the climate processes of the Central Arctic- the epicenter of climate change.

 

Prof. Dr. Markus Rex introduced the MOSAIC expedition in the Arctic Ocean, bringing together 80 institutions from 20 nations, showing that international collaboration is necessary and pointing to the urgent need to reduce greenhouse gas emissions to prevent the Artic from becoming ice-free in summer in a few decades to come with its devastating consequences.

 

 

 

 

 

4. Vanuatu

Sustainable Sea transportation can access shallow waters and brings in traditional knowledge that links Pacific voyaging communities.

Dr. Ian Schipper from the Victoria University of Wellington, New Zealand studies volcanic eruptions and their effects on the environment. The research was undertaken in collaboration with local communities, who identified the location of existing submarine volcanoes – an impossible task without local knowledge.

 

 

 

 

5. Canada

Ocean Networks Canada taking ocean samples.

Kate Moran, president and CEO of Ocean Networks Canada is monitoring the ocean, seeking to understand it further. The Ocean Decade can serve in her opinion to make people understand the ocean’s contribution to humanity. She hopes that such public awareness would drive society to reduce its greenhouse gas emissions more rapidly.

 

 

 

 

Including all Voices: Scientific Process as a Cultural Dialogue

To live in harmony with nature “science, technology and innovations to protect our oceans are vital” Inger Andersen, Under-Secretary-General of the United Nations and Executive Director of the United Nations Environment Programme. The UN Ocean Decade seeks to be the connection between science, policy and society. But how can we create the ocean we want? On the roundtable “the science we need for the ocean we want”, Peter Thomson, (Ambassador / UNSG Special Envoy for the Ocean), The Honorable Dr. Jane Lubchenco  (Deputy Director for Climate and Environment, White House Office of Science and Technology Policy) and Dr. Vladimir Ryabinin (Executive Secretary of IOC- UNESCO) elaborated on the importance of science on the one hand, but also on the need for inclusivity.

It is important to embrace the diversity of our society in generating knowledge. This was an underlying theme throughout the conference. Integrated ocean science agendas are required to meet societal needs (Dr. Bruno Oberle, Director General, International Union for Conservation of Nature (IUCN)). Dr. Heide Hackmann, Chief Executive Officer of the International Science Council, points to the importance to connect science to policy across time scales and levels of governance and contexts, which depends on international cooperation and inclusivity. Inclusivity, referring not only to the diversity of scientific communities, but also to include the marginalized voices within scientific communities. For this UN Decade of Ocean Science for Sustainable Development, all voices need to be heard, including: governments, NGOs, the business sector, and civil society. But not only that: The Ocean Decade is now an opportunity to embrace full diversity, including trans- and interdisciplinarity, including social sciences, diversity of men, women and queers, different age groups, religions and cultures, as well as an active engagement with indigenous peoples and local communities.

An Unequal Ocean: The need for International Collaboration and Capacity Building

An important part of including all voices also regards the need for international collaboration and capacity building. The geographical imbalance of states to undertake marine scientific research (Tessnow-von Wysocki & Vadrot, 2020; Tolochko & Vadrot, 2021) were put into focus by a number of speakers. As “not every region is equal” (Dr. Elva Escobar Briones, Professor in Oceanography, Instituto de Ciencias del Mar y Limnología (ICML) UNAM), fair capacity building and technology transfer is a crucial pillar in the UN Decade of Ocean Science for Sustainable Development.

Data sharing goes hand in hand with capacity building and the transfer of marine technology. However, it is important, as it was mentioned in the panel on “The Ocean Decade from End to End”, that efforts do not stop at data collection and sharing, but also include creation and co-design of knowledge among a variety of stakeholders and actor groups and forms of knowledge involved. Industry can play an important role in making data available and contributing to partnerships in this regard.

The role of the private sector and partnerships in the Ocean Decade

Sanda Ojiambo, Executive Director & CEO, United Nations Global Compact, emphasised in the “Visions and Missions” panel that companies can protect the ocean through collaborating with science. Moreover, the private sector itself can contribute to ocean science, innovate technologies, improve our understanding of the ocean by sharing ocean data and engaging international dialogue. The inclusion of the private sector was also prominent in the “The Ocean Decade from End to End” panel. Marc Heine, Chief Executive Officer of Fugro, explains the expertise of his company to collect ocean data and criticises that -while the private sector is interested in contributing to ocean stewardship- incentives are still lacking for companies to provide access to their data, which the Ocean Decade could support. The oil and gas industry will now need to look towards more sustainable ways to generate energy. Partnerships were identified as crucial in data collection and sharing, as well as in knowledge generation. Prof. Dr. Gideon Henderson, Chief Scientific Adviser, Department for Environment, Food and Rural Affairs (Defra), United Kingdom, underlines the importance of an internationally created agenda for ocean science and the role of the G7 and international cooperation to tackle global problems. At the same time, however, Ken Paul (First Nations, Canada) who shared traditional ways of living in harmony with nature is worried that “A lot of times, our science isn’t there necessarily to understand the ecosystem – it’s to help improve economic benefits.” (Ken Paul, First Nations) and that the direction of scientific production and use needs to be thought through in light of the Decade.

Starting the Decade with long-term thinking for the Ocean

Another main theme across the conference’s panellists and participants was the need for long-term goals: there needs to be a shift to more long-term thinking in decision-making on the future of the ocean. As Ken Paul (First Nations) puts it: “We have to think seven generations ahead”. This long-term thinking has unfortunately been missing from everyday politics and was encouraged by panellists, such as Peter Ng, from Singapore.

The Ocean Decade Laboratories, initiated through the Ocean Decade, were presented towards the end of the launch: They offer an opportunity for all stakeholders to engage in “satellite activities”, which will be presented in 48h time slots around the globe. Ideas include  “pitch sessions” for new Ocean Decade programs or projects that are looking for partners, announcements of Decade Actions or commitments, Decade Action design workshops or networking forums, skills training and virtual exhibitions. Applications remain open and invite a diversity of participants.

Final words of the launch included the importance to raise awareness about our interdependence with the ocean and bring together different voices to generate ocean science to meet diverse societal needs. Ocean literacy, coastal resilience and recognition of cultural values of the ocean are only the beginning. Connections between stakeholders will be facilitated by the Decade: A global stakeholder platform will be launched at the end of the year and a Decade Alliance will be created to form a network for experts and investors.

At the table with the next generation

Lobby of the Virtual ECOP Days

During the launch, the Early Career Ocean Professionals were represented by Farah Nibbs, Early Career Disaster Scientist, University of Delaware, Dr. Guillermo Ortuño Crespo, Postdoctoral Researcher at the Stockholm Resilience Centre, Taylor Goelz, Program Manager, Shipping Decarbonization Initiative, Aspen Institute, Fiona-Elaine Strasser, German All-Atlantic Ocean Youth Ambassador and Thando Mazomba, South African All-Atlantic Ocean Youth Ambassador.  Early Career Professionals around the world are currently working in diverse geographical areas and disciplines, keen to take part in the UN Ocean Decade and to contribute to achieving its aims. After the launch, the conference made space for Early Career researchers to contribute with a virtual fair, including a 24h live stream throughout all time zones of presentations, discussions, virtual exhibitions and cinema.

The MARIPOLDATA team was represented at the conference to support the United Nations Decade of Ocean Science for Sustainable Development and show our contribution from a marine social science perspective on marine biodiversity politics in the ongoing legally binding agreement for the conservation and sustainable use of marine biodiversity beyond national jurisdiction. Participants in the conference could stop by the MARIPOLDATA virtual booth to get to know the team and ask questions regarding our latest publications and project events.

Virtual MARIPOLDATA Booth at the ECOP Days

The full event can be watched here: https://www.youtube.com/watch?v=BPBjWEe9IIM

[1] See the Program here: https://www.oceandecade-conference.com/en/program.html

[2] See more information on the Decade: https://www.oceandecade.org/about

[3] The Science we need for the Ocean we want: https://unesdoc.unesco.org/ark:/48223/pf0000265198?posInSet=1&queryId=8e76ac20-6423-442c-862a-1eb4aa9c59ae

References

Ryabinin, V., Barbière, J., Haugan, P., Kullenberg, G., Smith, N., McLean, C., . . . Rigaud, J. (2019). The UN Decade of Ocean Science for Sustainable Development. Frontiers in Marine Science, 6(470).

Tessnow-von Wysocki, Ina. and Vadrot, Alice B.M 2020. The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review. Frontiers in Marine Science 7: 614282.

Tolochko, Petro. and Vadrot, Alice B.M. 2021. The usual suspects? Distribution of collaboration capital in marine biodiversity research. Marine Policy 124 (2).

 

Governing knowledge in relation to Marine Genetic Resources and COVID-19 vaccines

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 which will be concluded in 2021 (Marine Genetic Resources (MGRs), Area Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental  Impact Assessments (EIAs), and Capacity Building and Technology Transfer (CBTT) from the intersessional online discussions taking place on MS Teams since September 2020, the virtual High Seas Dialogues taking place under Chatham House rules on Webex, and the MARIPOLDATA Ocean Seminar Series in which scholars and practitioners present and discuss current issues of ocean governance.

By Paul Dunshirn and Arne Langlet

Widely used in medicine production: deep-sea sponges

How fair and efficient are governance systems based on proprietary rights and global commons?

Marine genetic resources (MGRs)[1] are one of the key issues in the ongoing negotiations towards an intergovernmental legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). In this blog post, we discuss MGRs from a ‘knowledge governance perspective’, focusing on how intellectual property rights (IPRs) and existing access and benefit-sharing (ABS) mechanisms shape ownership and usages of MGRs for the global community of stakeholders. The post sketches out some of the broader implications of this governance setting by drawing parallels to current controversies about the global distribution of COVID-19 vaccines. Throughout both cases, we show how combined attention to both fairness and efficiency of knowledge governance frameworks is necessary for the successful design of international treaties and associated institutions.

Our discussion is largely informed by the recently published MARIPOLDATA publication “Who owns marine biodiversity? Contesting the world order through the ‘common heritage of humankind’ principle” (Vadrot et al., 2021) and the MARIPOLDATA Ocean Seminar webinar from January 27, 2021, with Dr. Konrad Marciniak (Director of the Legal and Treaty Department, Ministry of Foreign Affairs of the Republic of Poland).

Key Arguments

MGRs and IPRs are key issues in the BBNJ negotiations, which raises a variety of questions about the global governance of knowledge resources.
When approaching the governance of knowledge resources, countries should measure the possible avenues against the two factors: fairness and efficiency.
The application of IPRs to medical research is neither fair nor efficient.
Leaving MGRs to the applicable IPRs system is not fair, as it increases inequality concerning the access to and use of MGRs.
Current approaches to govern knowledge on MGRs through ABS systems do not seem efficient because they increase the administrative burdens on scientific research.
The BBNJ treaty could usefully differentiate between public and private research in governing knowledge resources.

Knowledge Governance in BBNJ

The high seas and their organisms remain to a large extent unexplored and unknown. From what is known, however, genetic materials of high and deep-sea organisms can play a fundamental role in fighting diseases and conducting economically valuable pharmaceutical research (World Resource Institute; The Maritime Executive). For instance, COVID-19 rapid tests have been developed using materials from deep-sea bacteria. The drug Remdesivir, an antiviral approved as a treatment for Covid-19 by the U.S. Food and Drug Administration, draws substantially on genetic information extracted from sea sponges (The Maritime Executive).

The current negotiations towards a new BBNJ treaty aim to set rules and strengthen cooperation in researching the High Seas and conserving and sustainably using its biological resources, including MGRs. Introducing such rules and forms of cooperation has become an increasingly important agenda, as the current lack thereof led to conflicts amongst states and other stakeholders in the past (Vadrot et al., 2021). Within the BBNJ, this topic is addressed in the package on MGRs and in discussions about ABS related to these resources.

Most of the value to be gained from MGRs does not lie in the physical samples or the organic materials themselves, but in the scientific knowledge about marine organisms and their genetic makeup. Hence, international governance and cooperation in the context of MGRs is very much a matter of fair and efficient use of knowledge about the oceans – a matter of ‘knowledge governance’ in this sense.

Fairness and Equality in MGR Research

Knowledge about MGRs is politically salient because of its potential economic value and incredibly unequal global distribution (Blasiak et al., 2018). Research into MGRs is costly and requires a high level of investment and scientific capacity – something that only a few countries in the world can afford. It is no secret that “to date, mostly high-income countries have had the financial and other relevant capacities required to conduct marine genetic research and commercial activity associated with the ocean genome” (World Resource Institute). However, the “exploration and sampling of the ocean genome are often conducted in low- or middle-income countries’ ocean territories”, or in ABNJ under no country’s jurisdiction (World Resource Institute). Most countries “lack the resources to undertake the research themselves or to access and use the rapidly growing databases of genetic sequence data” (World Resource Institute). This lack of resources and infrastructures for exploring marine biodiversity has caused a global gap in research (Tolochko & Vadrot, 2021) and the issuing of patents covering MGRs (Blasiak et al., 2018). Exemplifying this, research has demonstrated that 47% of globally registered patents on marine genetic sequences are held by one German company alone (BASF), and 98% of all patent sequences belong to actors in 10 countries, with 165 countries holding none (Blasiak et al., 2018).

Some academics assess the practice of patenting MGRs as contributing to a trend towards more and more exclusive property rights to valuable ocean resources (e.g. Schlüter et al., 2020). Unsurprisingly, countries that cannot participate in this process are highly critical of how these knowledge resources (which may reasonably be considered as global common goods) are made artificially scarce and exclusive through this current lack of a clear governance regime. Thus, demands for more global equality have taken a central role in debates related to the MGR chapter in the BBNJ negotiations (Vadrot et al., 2021). Developing countries have proposed to declare MGRs as Common Heritage of Humankind, which has caused heated arguments throughout the negotiation rounds without any hint to compromise. In his MARIPOLDATA Ocean Seminar presentation, Dr. Konrad Marciniak pointed out that the legal interpretation regarding the opposition between the Common Heritage of Humankind Principle and the Freedom of the High Seas Principle currently remains unclear (Marciniak, 2017, 2020)[2]. Developing countries have argued that the absence of a clear legal interpretation contributes to existing disparities between the global North and South, to the extent that the successful negotiation of the BBNJ agreement hinges on the question of MGRs. In this context, some countries loudly question the global economic order and its fairness (Vadrot et al., 2021).

Efficiency and a Strong Access and Benefit Sharing System

Highly complex ABS systems that are internationally enforced may, however, run the risk of being inefficient. MARIPOLDATA’s observations of the BBNJ negotiations about MGRs show that developing countries favour a strict and enforceable ABS system for MGRs from ABNJ. For instance, the group of Latin American countries (CLAM) proposes a strict tracing of digital sequences through a unique identifier. CLAM sees this as the only way to ensure an effective governance system. To institutionalize this, they propose a mandatory, open, and self-declaratory electronic system in the Clearing-House Mechanism (CHM). This would mean that the CHM includes information on every sample of MGRs taken from ABNJ, filing a unique identifier per sample (and of genetic variants).

An ABS system can only be efficient if it is accepted and used by the scientific community. Representatives of scientific organizations have publicly voiced concerns over a potential ‘over-bureaucratization’ of research that the establishment of new “super” databases and the monetization of access to samples would entail. If all MGRs samples collected from ABNJ need to be registered and identified by the CHM, this may introduce considerable administrative burdens (Rabone et al., 2019). The Nagoya Protocol, which established a rather rigid ABS system, is often cited as a negative example, as it has complicated the access to genetic samples (from land and national waters). In this regard, many researchers stress the substantial difference and intensity of work that lies between biodiversity sampling and the creation of patentable biotechnologies. This ‘gap’ “may have been overlooked during the negotiations and subsequent implementation of the Nagoya Protocol, resulting in an ABS system that often comes at the expense of research for knowledge and conservation” (Arnaud-Haond, 2020, p. 29). Such a system could increase fairness but at the expense of making research inefficient and more complicated.

The argument for IPRs, in particular patents, is that they encourage innovation and safeguard investment in research and development (Posner & Landes, 2003) while being an efficient – market-driven governance tool. The IPR approach is assumed to be efficient because researchers look for property right protection on their own initiative, which in turn assures them the protection of their scientific advancements and secures necessary funding. Hence, IPRs are argued to incentivize scientific research. This has been voiced by many states in the BBNJ negotiations (USA, EU, Japan) that highlight that the conduct and freedom of marine scientific research are paramount to the new agreement.

The efficiency argument for IPRs, however, has become increasingly criticized in recent years. A variety of studies (Baker, Jayadev, & Stiglitz, 2017; Benkler, 2004; Stiglitz, 2006) have shown that an IPRs approach does not necessarily increase innovation but may actually slow it down and increase research costs by forcing researchers to negotiate licensing fees with holders of related patents. Patents are indicated to be responsible for higher prices and monopolies (Benkler, 2004; Heller & Eisenberg, 1998).

Fairness and Efficiency in the context of COVID-19 vaccines

The trend towards more and more exclusive or privatized IPR regimes in the governance of knowledge resources not only takes place in the context of MGRs, but also shapes current controversies about the global distribution of COVID-19 vaccines. In this section, we discuss some of these parallels to clarify the importance of critically evaluating knowledge governance regimes in terms of their efficiency and fairness.

Is the Proprietary Approach to Vaccine Development fair?

The COVID-19 pandemic has cost millions of lives, crippled the economy across the globe, and caused the delay of the BBNJ negotiations, as the fourth and final Intergovernmental Conference (IGC) had to be postponed. Currently, the roll-out of COVID-19 vaccines is a reason for hope (also for the next BBNJ IGC scheduled for August in New York), but also bears potential for conflict. Once again, global inequalities in access to vaccines are widely discussed in many intergovernmental institutions (The Economist; Fortune; UN). Tendencies for countries to prioritize their own access has led to what the new head of the World Trade Organization (WTO), Dr. Ngozi Okonjo-Iweala, has called – ‘vaccine nationalism’ (BBC; Gostin, 2020). Sources estimate that some African countries may receive doses of COVID-19 vaccines only by 2023 (The Economist). Some observers have linked this disparity in access to vaccines to how developed countries have successfully enforced patent protection on vaccines (New York Times). The chief of the World Health Organization (WHO), Tedros Adhanom Ghebreyesus, has stated that “even as vaccines bring hope to some, they become another brick in the wall of inequality between the world’s haves and have-nots” (UN). This observation has not only been heavily discussed within the WHO, but also in many big news outlets (The Economist; Fortune; New York Times), as well as amongst state representatives, health professionals (The Lancet), and NGOs (Médecins Sans Frontières).

This fear is largely triggered by the observed mismatch between demand and supply from the companies licensed to produce the vaccine. There is almost universal demand, but the supply currently does not suffice to even quickly vaccinate substantial parts of the population in wealthy developed countries. It appears that this mismatch is caused by the fact that vaccines against COVID-19 are subject to patents, which means that the vaccine cannot be freely reproduced (Hensher et al., 2020). The companies holding the patents (and knowledge over the Standard Operating Procedures (SOP) that are necessary to produce the serum) have the exclusive right to produce and sell the vaccine. This situation is causing increased criticism of the current practice of licensing and patenting under which the pharmaceutical companies holding the patents (and knowledge over the SOP) occupy a powerful monopolist position. Critics accuse pharmaceutical companies of abusing their monopolist position  – of “choosing profits over human lives” (Zeit).

The fact that a small number of private companies hold patents over these vaccines is questionable, particularly because large amounts of public funding have flown into their research and development. The US has poured an estimated 10.5 billion $ into the research of COVID-19 vaccines (Scientific American). The Moderna vaccine emerged out of a cooperation between the company and the National Institutes of Health in the US (NIH). The EU and its Member States invested 9.8 € billion, out of which 1.4 € billion came directly from the European Commission. The Pfizer-BioNTech vaccine received substantial funding in its development phase from the EU and German public sources (European Investment Bank). AstraZeneca also holds exclusive licenses with no commitment to public access for publicly funded vaccines developed by Oxford University’s Jenner Institute (Hensher et al., 2020). The BBC estimates that public funding substantially supported the research that produced current COVID-19 vaccines. Without heavy public funding, the vaccines would likely not have been developed by now. However, these public investments have not precluded companies from adopting exclusive patenting practices.

This proprietary approach to vaccine development (i.e. an approach that focuses on establishing exclusive patents on pharmaceutical processes and products) has come under fire from different sides. A group of socialist EU lawmakers sent a letter to the European Commission urging the EU executive to explore ways of suspending patents for COVID-19 vaccines, calling it a “moral imperative”. Greece had proposed to the EU member states to jointly buy the patent rights for the COVID-19 vaccine – hence to communalize the patents (Reuters).

Is the Proprietary Approach to Vaccine Development efficient?

Some commentators argue that this proprietary approach has, in fact, slowed down research and development. The behaviour of the Wuhan Institute of Virology at the start of the pandemic is a good case in point. While being located in the epicentre of the pandemic, this institute issued a patent application (in February 2020) on a drug called Remdesivir, even before scientists investigated its effectiveness against COVID-19 (Bonadio & Baldini, 2020). The institute’s first instinct was, instead of sharing crucial data on the virus and giving other research institutes a heads up, to patent a possible treatment. Because of such informational gatekeeping practices, companies and research institutes competing to develop COVID-19 vaccines likely have to replicate basic elements of already existing research, hence, replicating fixed costs, which leads to a higher price of the product (Hensher et al. 2020). This can hamper, or at least slow down the global roll-out of vaccines, increasing the likelihood that the virus will evolve new vaccine-resistant strains (Hensher et al.; 2020).

Observers are also sceptical about how necessary IPRs are for encouraging research and development related to vaccines. For instance, the VFA (Verband Forschender Arzneimittelhersteller), one of Germany’s biggest research-focused drugmakers, argues that IPR protection for COVID-19 vaccines is not necessary for companies to ensure profitable returns on their investments into vaccine development (Bloomberg). This is due to the sheer size of the market: possibly more than 8 billion people need the product. In light of these economic perspectives, companies would be highly incentivized to develop the necessary knowledge and technologies, even if IPRs were not ensured due to the urgent necessity for these products on a global level.

Ways forward – what BBNJ can learn from the COVID-19 crisis

As we have shown in this post, international debates about MGRs and COVID-19 vaccine development revolve around a multitude of similar political and economic issues. We have argued that the global COVID-19 pandemic while being catastrophic in its own right, provides an opportunity for evaluating and possibly improving existing governance regimes. We have discussed the two dimensions of fairness and efficiency as important points of consideration for any possible institutional adjustments. In closing, we point out a few concrete avenues for policy makers to follow in addressing existing deficiencies and designing future-oriented knowledge governance frameworks.

Compulsory licensing

In the context of COVID-19 vaccines, countries such as South Africa and India are pushing for an alternative approach to intellectual property under WTO rules, known as “compulsory licensing” (CNBC). A compulsory license suspends the monopoly effect of a patent holder to produce and supply the product. While controversial, compulsory licenses allow eligible drug-makers to legally manufacture and sell copycat versions of patented drugs during national emergencies, public health crises, or in other instances of extreme need. “As a form of compensation for the original patent holder, the competent authority […] would require manufacturers to pay a fair market price” for the drug (Bonadio, 2020, p.391). When it comes to developing countries that do not have access to COVID-19 vaccines, the EU is willing to discuss several patent options in the framework of the WTO (Euractiv). Under WTO rules, the granting of compulsory licences without the patent owner’s consent can be fast-tracked in emergencies such as the current pandemic.

While compulsory licensing has some potential to enhance fairness and efficiency in the development and distribution of vaccines for the global population, it should probably not be considered an all-in solution for a number of reasons. Granted cases of compulsory licensing seem to be largely based on voluntary commitments from the industry and to emerge as ad-hoc legal solutions to these structural problems. In the long run, we may need a system that fosters knowledge sharing not only in such extreme cases as a global pandemic but also in normal situations. Additionally, we may ask why no compulsory licences on COVID-19 vaccines have been granted to any country so far. Indeed, developed countries within the WTO are currently blocking these proposals to protect their pharmaceutical industries (New York Times), which is indicative of the political dynamics within the WTO.

Open knowledge commons approaches

Other voices have called for substantial reform of global health law to guarantee more equal access to scientific progress (Gostin, Karim, & Mason Meier, 2020), for instance by formulating access to vaccines as a universal human right (Gostin et al., 2020). Related to this idea are various other discourses in the context of MGRs, framing them as ‘open knowledge commons’, ‘global public goods’, or as ‘common heritage’ (Gostin et al., 2020; UN[3]). As described throughout this post, particularly Southern countries advocate ideas of open knowledge commons, while countries of the Global North tend to oppose them.

Knowledge sharing: scientific vs. economic

Another possible consideration for the design of knowledge governance frameworks is the possibility to differentiate between public and private research. In the context of the BBNJ negotiations, public research could potentially be excluded from any access or benefit-sharing regulation as long as the data would be freely available. To facilitate more equal access to research and its outcomes, intensive capacity building needs to be undertaken to allow developing countries to reduce the research gap. At the same time, scientists’ preferences should be reflected in the Treaty draft text. In relation to the CHM, scientists prefer a sort of meta-database that streamlines “processes by providing documentation, guidance, and links to existing platforms and databases relevant to MGR” (Rabone et al., 2019; p.17). They also advocate voluntary commitments to a set of common principles, such as FAIR data and open access (Rabone et al., 2019; p.17).

While these principles and the policy of open data sharing are well established in most scientific contexts, this is not the case for the economic sector and research undertaken therein. The difference between scientific and economic research practices may be well exemplified in the COVID-19 case: “While genomic information on SARS-CoV-2 has been extensively shared amongst a worldwide network of researchers (Nature), current efforts to develop more than 150 candidate vaccines for COVID-19 are highly fragmented (Lancet)”. It is indeed likely that salaried scientists are motivated to work for the public good and tend to see data sharing and open knowledge as incentivizing to improve their research, while private research is much more profit-oriented (Hensher et al., 2020). International policymaking could benefit from recognizing this difference when designing treaties, for example by encouraging forms of peer-to-peer (P2P) generated and publicly funded research and development with an orientation towards the benefit of humankind.

Entering the digital age, the questions presented in this blog will only engrave, which means that fair and effective knowledge-sharing solutions are urgently required. As we discussed in this blog, ongoing information gatekeeping practices in the production and distribution of the COVID-19 vaccine are already driving conflicts between states and world regions. For the BBNJ negotiations, the case of the vaccines may serve as an important call for seriously considering the dimensions of fairness and efficiency in the governance of MGRs. If successful, the BBNJ treaty can become a role model for subsequent knowledge and information-sharing frameworks at the international level, reaching far beyond the immediate issues of ocean governance. More so, it can become an example of global solidarity and serve to counteract some of the existing global inequalities in relation to knowledge resources.

[1] The Convention on Biological Diversity (CBD) defines genetic resources as genetic materials of plants, animals, or microorganisms of (potential) value for future generations of humanity (CBD workshop, Ottawa 2009).

[2] All views expressed by Dr. Konrad Marciniak are personal only and do not necessarily represent the official position of the Government of Poland.

[3] United Nations, Committee on Economic, Social and Cultural Rights, General comment No. 25 (2020) on science and economic, social and cultural rights (article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights), Geneva: United Nations; 2020, U.N. Doc. E/C.12/GC/25.

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