Maripoldata Blog

Next steps to implement the BBNJ Agreement through capacity building and technology transfer

8. July 2024/in General /by Julia Chapotot-Necker

Written by Ina Tessnow-von Wysocki, Fuad Bateh, Judith Gobin, Harriet Harden-Davies, Kwaku Kyeremeh & Julia Schutz-Veiga

Only a few months after the adoption of the new legally binding agreement on biodiversity beyond national jurisdiction (BBNJ) in June 2023, stakeholders gathered for the BBNJ Symposium in Edinburgh on October 6-7^th. The Symposium brought together experts from policy, science, conservation and the private sector to discuss the first steps towards implementation and to deliberate on yet unresolved issues. The calls for a Preparatory Commission were followed through by the United Nations Assembly Resolution in April 2024, with the first organizational meeting taking place from 24-26^th June, 2024. This blog focuses on how capacity building and the transfer of technology (CBTMT) were discussed during the Symposium and reflects on equity issues in BBNJ and opportunities for action prior to entry into force of the agreement.

Closing the capacity gap with the BBNJ agreement. (Source: Unsplash)

With the adoption of the new marine biodiversity agreement, a milestone has been reached. After nearly two decades of deliberations, the United Nations have agreed on a legally binding instrument to govern the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. The new agreement falls within the United Nations Convention on the Law of the Sea (UNCLOS), as a new implementation agreement. States quickly signed the agreement, already counting 91 signatories after the final adoption session in June 2023. Yet, to enter into force, the BBNJ agreement will require 60 ratifications, only seven of which have been formally deposited to the UN (Palau, Chile, Belize, Monaco, Mauritius, Federated States of Micronesia, Seychelles) (UNCLOS, 2023).

Formal ratification, which in many cases includes adjustments of national laws or processes is the first step towards entry into force. However, successful implementation of the agreement goes beyond signature and ratification: Successful implementation of the BBNJ agreement will need a long-lasting strong capacity building element for States that currently lack the necessary information as well as scientific and technical capacity to conduct studies on the marine environment and fully implement the new instrument. The BBNJ agreement acknowledges this by having introduced capacity building and the transfer of marine technology as one main pillar of the new instrument (BBNJ Agreement, Part V). The inclusion of CBTMT into the agreed BBNJ package of topics in 2011 goes also to the broad perception that CBTMT is one of the most under-fulfilled aspects of UNCLOS, but key to implementation (Lothian, 2022). This blog maps out main findings from the expert panel on capacity building and the transfer of marine technology at the BBNJ symposium session to help implement the BBNJ agreement in an efficient and timely manner and reflects on the way forward.

Expert Panel on CBTMT

Capacity Building Panel, BBNJ Symposium, Edinburgh, f.l.t.r: Fuad Bateh, Judith Gobin, Julia Schutz Veiga, Harriet Harden Davies, Kwaku Kyeremeh, Ina Tessnow-von Wysocki

The CBTMT panel (Recording, Session 4) offered a way for BBNJ experts from different regions to share their experiences, use concrete examples from their regions, mention different types of CBTMT needed, suited to their situations and in relation to specific package elements of the agreement. Rather than simply pointing to the – overall agreed – need for CBTMT, the symposium offered a space to dive deeper into what is needed for BBNJ implementation, how and by when, concrete examples of how the CBTMT part can support developing States and concrete actions that will change the status quo, highlighting important topics of support and pointing to scenarios and examples that stakeholders at the symposium could relate to. With an audience of negotiators from both developed and developing countries, representatives of non-governmental organisations, the private sector and academia, the panel sought to encourage action for successful implementation with concrete and implementable ideas.

Dr. Harriet Harden-Davies, Director of the Nippon Foundation-University of Edinburgh Ocean Voices Programme gave introductory remarks as the keynote on the importance of CBTMT and what it entails, the CBTMT text, how it moves forward from UNCLOS and what the key achievements are and where there are remaining questions.

Judith Gobin, Professor at the University of West Indies, elaborated on key needs of small island developing states (SIDS) as regards CBTMT. With an overview of some SIDS institutional and human resource needs, national and local examples served to pin down concrete capacity building types that would be useful when looking at the next steps in trying to support the implementation of the overall agreement.

Kwaku Kyeremeh, Associate Professor of Chemistry, University of Ghana, provided an overview of Research in Africa by using the University of Ghana as an example and pointed to important gaps that could be filled with the BBNJ agreement, such as implementing centres of excellence.

Julia Schutz Veiga, PhD candidate in Law at NOVA School of Law and visiting fellow at the Ocean Voices Programme who was a legal adviser for the Brazilian delegation from 2019-2023 during the BBNJ process addressed unlocking Intellectual property constraints to transfer knowledge and technology and shared her ideas on how to prepare BBNJ implementation prior to entry into force by advancing details of the CBTMT committee.

Fuad Bateh, former IGC delegate and representative of the 2019 G77 & China Chair for BBNJ highlighted the importance of the BBNJ agreement for all States – including land-locked countries. He pointed to challenges of resource mobilisation and proposed a Preparatory Commission for the time before the first COP to formally facilitate early implementation.

The panel overall agreed that CBTMT is not only a crucial pillar of the agreement, it is also interlinked with all other pillars of the instrument and necessary for timely and efficient implementation.

Ensuring equity through CBTMT

There was one topic that was picked up constantly throughout the panels and the symposium discussions: Equity. Attendees of the symposium agreed that for an effective implementation of the BBNJ agreement, several equity concerns must be addressed.

With inclusive language, the BBNJ treaty has recognised voices of developing countries and brought marine scientists to the fore. While many don’t have sufficient human capital, training and finances to implement the BBNJ agreement, scientific training and expertise have advanced significantly over the years and they are ready to support implementation. In this regard, South-South cooperation can be facilitated, with identifying mentors in the region to support other developing States.

Sustained science, however, is a challenge. The aim is to support developing countries’ scientists in the long-term. Regional alliances and private and public partnerships are important. What is needed in the case of SIDS is financing and inclusivity. SIDS scientists need to be included from the start, as currently, a structured overall inclusion is missing. SIDS scientists need to be true collaborators and not simply added to scientific publications. Funding is essential for their scientific trainings to undertake EIAs and identify ABMTs and MPAs.

Similar challenges can be seen in the African region. Capacity building and transfer of marine technology for African universities would be most beneficial by establishing centres of excellence. In this regard, also regional centres could channel expertise and offer improvement for the entire region. The introduction of workshops, programmes, courses and trainings will be valuable.

In relation to the transfer of marine technology, there is a need to recognise the challenge for Global South countries – while having trained scientists – to be part of actually developing technology. Meaningful participation of Global South scientists will include setting up the necessary basis for the development of technology on the global market, rather than simply transferring marine technology that was developed in the Global North.

Ocean health matters to all. Equity demands leaving no one behind – even States that are not islands or coastal are entitled to dedicated capacitation efforts (Harden-Davies et al., 2024). It will be crucial that governance of the global commons will be global and not left to a few countries with the capacities to research or exploitation of ocean resources. Meaningfully engaging in BBNJ governance also means to enable participation and invite diverse ideas. The next generations will be living with the ocean and are entitled to benefit from a harmonic human-nature relationship. In this regard, the involvement of youth is crucial. Ocean literacy efforts by initiatives of the UN Ocean Decade and beyond need to be supported and expanded, which will raise knowledge and awareness. The scientific and technical body that will be set up to inform implementation still needs to be further defined and details to be thought through to ensure equitable participation and representation (Gaebel et al., 2024). Here it is crucial that diverse disciplines and regions are represented. Different forms of knowledge, such as indigenous and local knowledge is to be regarded as equally relevant as scientific knowledge, when informing the implementation of BBNJ (Mulalap et al., 2020). CBTMT is much more than financial donations and includes requirements regarding gender equality and representation.

While ocean health is crucial to current and future generations, as well as non-humans inhabiting the ocean, currently, there is insufficient protection of areas beyond national jurisdiction. With the Global Biodiversity Framework, adopted in December 2022 under the Convention on Biological Diversity (CBD), State parties have set a political signal to commit to meeting the target of 30% protection by 2030. The BBNJ agreement can support the 30×30 target in ABNJ through the establishment of area-based management tools (ABMTs), including marine protected areas (MPAs). While the BBNJ instrument is the governance framework to achieve the GBF target in ABNJ, a clear structure on next steps is needed and would offer a valuable rationale for ratifying BBNJ, as implementation serves GBF commitment, as well as supports Paris Agreement objectives.

To be able to fund implementation, a responsibility of the international community is to find a credible way to fund capacity for e.g. raising the percentage of protected areas in ABNJ from approximately 1.4% (CBD, 2022) to the GBF target of 30%. The Global Environmental Facility (GEF) is identified in the Agreement as one funding resource to cover part of the BBNJ implementation costs, but it is not possible for the GEF to cover even the ABMT part of BBNJ comprehensively. Donors suggest any significant resource mobilisation should be expected only after entry into force of the agreement, yet this under-appreciates developing states officials’ likely concern for where shall the funds be sourced to fulfil legal obligation to effectively implement the BBNJ agreement. Hence, a pledging conference would be a valuable contribution to BBNJ’s implementation: It would encourage confidence and accelerate ratifications by debt-strapped developing countries.

BBNJ Agreement – what now?

With the adoption of the BBNJ agreement the first step is done, however, as it currently stands it is an agreement among nations that still needs to be ratified by another 53 States to enter into force and officially have legally-binding power to only those States that signed and ratified it. 120 days after the 60th ratification, the agreement enters into force and the COP meets within 1 year after. Until entry into force – not to mention the COP meetings and agreement on the details that remain to be negotiated among member States – quite some time can pass. Looking at other agreements and the difference between adoption and entry into force, the BBNJ agreement can be lucky if in force in the next few years.

The BBNJ agreement builds the basis for future governance of marine biodiversity of areas beyond national jurisdiction. Yet, several issues regarding CBTMT are still to be resolved, which are not or only broadly defined in the treaty text including (i) country-driven needs assessments and action plans; (ii) measures to monitor and review the quality of capacity building; (iii) support for key people and processes, including in relation to the Committee; (iv) information sharing and cooperation; (v) funding (Harden-Davies et al., 2024). There needs to be an inclusion of Global South countries in the development of technology and its transfer. Intellectual property (IP) rights are the elephant in the room but need to be discussed when challenges in the transfer of marine technology come about. Are there alternative methods to circumvent or facilitate the application of IP rights in the transfer of marine technology developed to solve, improve and/or mitigate impacts related to the conservation and sustainable use of marine biodiversity? The CBTMT committee serves to facilitate access to and transfer of marine technology, which will need to be on the agenda of the COP meetings: The CBTMT Committee stands as a beacon of hope, guiding international cooperation and fostering a future where marine ecosystems thrive despite the pressures of climate change. The BBNJ Agreement introduces a significant advancement in the form of a monitoring and review process (Article 47), and here, the role of the CBTMT Committee shines prominently. This committee is pivotal in evaluating the effectiveness of CBTMT initiatives, employing a range of vital metrics, including indicators and results-based analyses.

Literature highlighting current weaknesses in ocean governance can facilitate the identification of strategies and measures for reports and recommendations to be made by the CBTMT committee. For instance, the Global Ocean Science Report (IOC-UNESCO, 2020) highlights specific areas of concern that the committee can address in the future. These include (i) information regarding patents, particularly those related to green technologies, to facilitate the access to and transfer of marine technology; (ii) information regarding the needs and priorities of developing countries; and (iii) opportunity to fill the scientific and technological gap among states, as outlined in the UNCLOS preamble.

While the Conference of the Parties meetings will be crucial in clarifying the remaining issues, there are several steps that can already be taken prior to entry into force to ensure smooth implementation of the new agreement.

Taking action before the first COP

Already now – before entry into force – we need to make a strategy to get funding for building capacity and training. A draft document of technologies we are hoping to transfer would be valuable. It is crucial that skill gaps are identified and addressed. Workshops and support by relevant institutions offer opportunities to build knowledge and capacity.

There is little awareness of the importance of areas beyond national jurisdiction in SIDS – even though the international seabed authority is based in Jamaica. SIDS scientists need to be trained to serve on committees, which is key to equitable implementation of the BBNJ agreement.

Ratification of developing countries can be encouraged by clearly stating what is needed, how much funding is required to achieve it and where it will come from. There will be a benefit for bringing in new actors in BBNJ and collaborate with the private sector. Other ideas include an early implementation fund to assist countries that are signatories to ratify the treaty. The fund could provide assistance in terms of the legal work (assessment of national laws, institutional structures, stakeholder involvement mechanisms etc.) that may need to happen in the country to make it ready to ratify. More importantly, the fund could also get countries started on the path of determining their priorities for the BBNJ Agreement, and subsequently start assessing what existing capacities and technologies they have, and what they might additionally need to reach their priorities. This could be a sort of a pre-cursor to a full-on needs assessment, and start dialogues around potential modalities for regional implementation collaboration on how regions might be more effective through sharing expertise, technologies and resources. Such an early implementation fund could help provide certainty to countries that the BBNJ Agreement will be implementable by them, similar to the Montreal Protocol’s Multilateral Fund, which provided assistance to countries prior to ratification. In this way, various aspects of the BBNJ Agreement implementation could be supported in a holistic and non-duplicative way, building on previous efforts and institutions.

To identify the needs, it is essential to mobilise funding resources to undertake inventory as soon as possible. Needs assessments can now already be funded to identify how BBNJ can best support different regions and countries. The Global Ocean Forum has prepared a draft ToR for a comprehensive inventory of BBNJ relevant CBTMT which shall further include an initial costing of required CBTMT following from national, regional and global needs assessment.

A consortium of UN agencies and other institutions with Marine CBTMT mandates and expertise could mobilise to contribute, including WMU-GOI, UNESCO-IOC, FAO, UNEP, UNDP, World Bank, IUCN, Global Ocean Forum. This information gap must be addressed to inform subsequent decision-making including deployment of development assistance.

The interim Secretariat is currently planning a Preparatory Commission to prepare States for entry into force and to provide a formal forum to discuss important issues for the first COP and BBNJ actors are coming together from 24-26^th June, 2024 for an organisational meeting. What is now needed is the Preparatory Commission to bring in more inclusive voices from civil society and the private sector to support provisional and early implementation among other critical preparatory guidance to the interim secretariat, as well as third parties such as the GEF Secretariat (i.e. directing resource deployment priorities in multi-year GEF programming in advance of BBNJ entry into force). The private sector is the biggest actor in ABNJ. The operative United Nations General Assembly resolution could provide a mandate to the UN Global Compact as the key UN institutional interlocutor with the private sector to mobilise support/engagement on achieving objectives of the BBNJ interrelated with objectives of the CBD GBF and UNFCCC/Paris Agreement.

Measuring implementation success

Surely all members of the agreement would like to see effective and timely implementation. However, measuring the implementation success of the capacity building and marine technology transfer chapter of the agreement might not be as straightforward. With different regions requiring different types, forms, activities and cooperation of CBTMT, easy quantification is not given and goals/targets/reference points might not be as clear as for other topics.

In the context of ABMT/MPAs and the BBNJ securing the GBF Target 30×30, progress can be measured by looking at the percentage of MPAs in ABNJ. Another metric is partnerships organised to establish OECM/MPAs and the number of trained experts/specialists/agents of change in support of OECM/ABNJ. Similarly, in the context of EIAs, the metric is the number of trained experts/specialists/agents of change on undertaking EIAs with specific appreciation of ABNJ context.

One way to measure success of CBTMT is to aim at increased participation by the Global South in developing and patenting emerging technologies, decreasing North-South funding, enabling greater independence for the Global South.

Conclusion

The new BBNJ agreement adopted and already signed by 91 countries offers an important milestone towards restoring our relationship with the ocean and life within it. For the first time, processes to establish marine protected areas and conduct environmental impact assessments in areas beyond national jurisdiction are universally regulated, offering a more concrete framework on how to conserve and sustainably use marine biodiversity. The “trendy” agreement, as some BBNJ symposium attendees called it, provides a living document, with responsibilities to continuously and jointly work towards structures to govern the fair and equitable use of marine genetic resources and ensure a timely response to current and upcoming challenges that the health of marine biodiversity is facing. The agreement is, thus, not the solution to marine biodiversity loss and unequal distribution of ocean resources amongst humans, but it offers a common ground, a legally-binding instrument, adopted – by consensus – by the entire international community. A solid ground to build on for future solutions, integration of different scientific disciplines and knowledge forms through a future scientific and technical body to support implementation, increased cooperation and coordination among the other relevant regional, sub-regional and sectoral bodies that are active in areas beyond national jurisdiction under their respective mandates, and many more meetings of the Conference of the Parties (COP) to negotiate further details of the agreement that are yet to be developed. CBTMT acts as an enabler across all other core topics of the BBNJ Agreement and can significantly channel timely and efficient implementation.

References

CBD (2022). CBD/COP/15/9 (30 October 2022). Review of Progress in the Implementation of the Convention and the Strategic Plan for Biodiversity 2011-2022. Para 14 of Subsection B “Aichi Biodiversity Target 11” Retrieved from: https://www.cbd.int/doc/c/53a6/9a0b/dc1cf7bc6eb5c870243ad5a9/cop-15-09-en.pdf

Gaebel, C., Novo, P., Johnson, D. E., & Roberts, J. M. (2024). Institutionalising science and knowledge under the agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ): Stakeholder perspectives on a fit-for-purpose Scientific and Technical Body. Marine Policy, 161, 105998. doi:https://doi.org/10.1016/j.marpol.2023.105998

Harden-Davies, H., Lopes, V. F., Coelho, L. F., Nelson, G., Veiga, J. S., Talma, S., & Vierros, M. (2024). First to finish, what comes next? Putting Capacity Building and the Transfer of Marine Technology under the BBNJ Agreement into practice. npj Ocean Sustainability, 3(1), 3. doi:10.1038/s44183-023-00039-1

IOC-UNESCO (2020). Global Ocean Science Report 2020–Charting Capacity

for Ocean Sustainability. K. Isensee (ed.), Paris, UNESCO Publishing

Lothian, S. L. (2022). Marine conservation and international law : legal instruments for biodiversity beyond national jurisdiction. Routledge, Taylor & Francis Group.

Mulalap, C. Y., Frere, T., Huffer, E., Hviding, E., Paul, K., Smith, A., & Vierros, M. K. (2020). Traditional knowledge and the BBNJ instrument. Marine Policy, 122, 104103. doi:https://doi.org/10.1016/j.marpol.2020.104103

UNCLOS (2023). 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. Retrieved from: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en

My internship at MARIPOLDATA and my confidence in the future

21. June 2024/in General /by Julia Chapotot-Necker

written by Petra L. Baldauf

Petra Baldauf is a sixteen-year-old student at the Lycée Français in Vienna. Her grade was assigned a week-long internship at any office or enterprise of choice, so she applied and was accepted into the MARIPOLDATA team. In the following blog, she writes of her first internship experience, her daily responsibilities, and her takeaways.

Photo by vivek kumar on Unsplash

When I first learned that I had to do a week-long internship, I will admit that my mind didn’t immediately wander to political science or law. Growing up in a doctor’s family, the only path I not only ever saw, but the only one I ever knew, was that of a physician. A few years ago, I was so sure that I was going to go into medicine (or, at least, as sure as a teenager can be).

As time faded away, so did unhealthy amounts of biodiversity, forest, and once lush and untouched habitats. Little by little, the increasing weight of our planet’s distraught state began to influence and worry me more than it ever had. Disappointed, I observed and learned that other people didn’t truly see or believe in the horrific effects humankind was exerting on our planet. Dispirited, I realised that perhaps they did see what was happening, yet simply chose to ignore it, push the blame away from themselves, and put the onus on others to research, develop, and offer viable solutions. The more I saw these things happening and the more I discovered that most people weren’t willing to make simple lifestyle changes for the benefit of the planet, the more driven I became to set an example and make a difference.

Returning to the subject of the internship, it is for these reasons that an interest for the domain of environmental laws and agreements flourished, as well as for political science and decision-making processes surrounding these laws. The resulting laws and society’s adoption and implication of these laws, I figured that, in order to change the human behaviours that are the at basis of the planet’s heating; in order to inspire others to make lifestyle changes with the goal of reducing pollution (of many sorts); in order to understand the thinking processes of the people assisting and proposing agreements in meetings and conferences on the subject of the well being and fate of our planet; it was well worth me diving into an internship to see where this multifaceted and diverse topic is being researched, decoded, and proposals put forth. The domain of political science, the resulting laws and society’s adoption and action on these laws, could help implement real changes in this pending global disaster, which encompasses quite literally every life form on this planet.

I was referred to Assoc. Prof. Dr. Alice Vadrot by my science teacher, applied, and, thankfully, was accepted.

Throughout the course of this internship, I was inaugurated into a domain I knew very little about, but had much curiosity for. I must continue by saying that the office I was accepted into was very welcoming and every one of the team members was incredibly helpful, open and made sure I gained as much experience as possible. It was a very positive environment, where, though everyone had their own tasks and projects, everything was hugely coherent, and one could immediately see that it was a great team.

On day one of the internship, I entered the building feeling slightly nervous, but was greeted with a very kind face, and was enthusiastically introduced to the office and led through my itinerary (which had been prepared and filled with many different learning opportunities). I spent most of the morning reading and familiarising myself with Assoc. Prof. Dr. Vadrot’s project through her writing. Though it was fairly difficult at times to understand what was written, all my questions were answered without hesitation. That same morning, I was fortunate enough to be able to assist in one of Vadrot’s seminars, where I was able to hear some of the projects a few of her students were working on. I spent most of the day reading, but I left the office optimistic and with a head full of new knowledge.

The nervousness had eased a lot by the second day, and I started the day off strong, by having an online chat with Silvia C. Ruiz R. (MA; PhD student) who was absent on work-related business, but still kind enough to find time for me (and I am very glad she did, as she was very clear and helpful). She not only led me through what it is that she does, but also taught me more about the project and about the domain of political science in general. Following this productive start to the day, another group member, Simon Fellinger (BA; Master student), spent a significant part of his morning instructing me on the BBNJ (Biodiversity Beyond National Jurisdiction) negotiation process; not only explaining it to me, but also taking the time to show me videos of past meetings, helping me understand the different processes and outlooks of the various countries and organisations involved. In the afternoon, I had yet another online chat, this time with Dr. Arne Langlet (a former PhD student). During this discussion, I discovered a whole new domain of research that I had never considered before, and, thanks to Dr. Langlet’s passion and eagerness, I was able to learn a lot about social science, where it meets political science, and how it influences decision-making.

The third day began and ended in a different building of the University of Vienna, where I attended two classes. Though obviously unable to participate, I was both intrigued and entertained by other students presenting some of their research projects, and I was fortunate enough to get a bit of an inside look at university classes, as well as their dynamics and functioning. The time that wasn’t spent in the university was spent reading more of Assoc. Prof. Dr. Vadrot’s publishing and writing this blog.

Thursday morning was when I found my favourite part of the research, which was explained to me by Paul Dunshirn (MA; PhD student). His fraction of the research focuses on marine genetic resources. It’s the branch of research closest to the domain of natural sciences, which is probably why I found it to be one of my personal favourite subjects. I learned about how the different genetic resources of the deep sea could be used for a multitude of employments, notably pharmaceuticals, cosmetics, food, and different scientific research, and how there are debates on who has and should have access to these ressources, as well as how the resources are used.

The fifth and final day was a calmer day. In the morning, I was given a tour of the University of Vienna’s campus, spanning from political science and sociology to anatomy and medicine. Though I found every building’s architecture to be quite astonishing, the main university and the Josephinum to be particularly so. Following this long stroll around and through the different edifices, we went for an final lunch at a different universitie’s canteen, and then returned to the office, where I would spend my final afternoon finishing the blog, and where I would spend the last hours of my internship.

I must say that I am incredibly glad to have chosen an internship with the MARIPOLDATA team. Over the course of five days, I was able to gain a significant breadth of knowledge, I came to understand and delve into the details of a UN agreement-making process, and I was given the opportunity to get the feel of what it’s like to work in a research group.

Thirsty for knowledge as I am, I really enjoyed and am grateful for all of the learning, meetings, and lectures that I was able to partake in- and all over the course of one week! In choosing an internship in a domain I was largely unfamiliar with, I was able to broaden my understanding, as well as my interests, and I discovered that “science” doesn’t just mean physics, biology or chemistry: it has been defined as “the pursuit and application of knowledge and understanding of the natural and social world following a systematic methodology based on evidence (source: The Science Council).” This is actually one of the things that I was hoping to learn coming into this internship, and I am glad that I got to explore the more “literary” side of science, and uncover how behaviour, thought, policies and power roles are all important.

What are my main takeaways from this internship?

My favourite thing that I learned was on the subject of marine genetic resources – how and by what corporations, groups or people they are used, and even by whom and for what purposes they should be used. I am admittedly more of a scientist (physics & biology), so this intersection between natural and political science is definitely something that I might be interested in in the future.

Simply put: I learned a lot. I found out what global environmental negotiations are, then began to understand their requirements and how they function in a practical sense. I was able to get a closer look at the different treaties that determine the borders of our oceans and what rules govern the uses of the oceans and its finite resources. I learned about the importance of good quality research when it comes to making an impact in the world of political science and international environmental law, but also that the research has to be led by stalwart people who are willing to sacrifice time in order to pursue a project to the very end. I learned that, in every large project, there are multitudes of smaller projects and smaller bits of research that have to be undergone by different team members, each with their own strengths, in order to create a whole. Above all, I learned that there is still hope, and was encouraged by the level of dedication of these professionals who work tirelessly to create and instil change, no matter the size, to join the fight for a cleaner, more sustainable and agreeable future.

A special thank you to the entire MARIPOLDATA team, who made my week incredibly interesting and educational. Thank you for taking the time to show me the details of your project, and I wish you much success in your future projects.

Merci, Julia, pour avoir été si accueillante, bienveillante et gentille- vous avez fait de ma semaine une expérience formidable et positive. Bien sûr, merci Assoc. Prof. Dr. Vadrot pour m’avoir acceptée dans votre environnement, et ce fut une expérience dont je serai toujours reconnaissante.

Je vous souhaite tout le succès et la réussite possible !

iDSI’s Reflections on the CBD’s Open-Ended Working Group on DSI: Discussions on Benefit-Sharing and Data Governance

9. January 2024/in General /by Paul Dunshirn

By Paul Dunshirn, Ayşegül Sırakaya, Adam McCarthy, and Irma Klünker.

This blog post summarizes and reflects on discussions at the Convention on Biological Diversity’s (CBD) first meeting of the Ad Hoc Open-ended Working Group on Benefit-sharing from the Use of Digital Sequence Information (DSI) on Genetic Resources, which took place on November 14-18 in Geneva. It explores some of the key issues under negotiation, namely whether benefit-sharing on DSI should be mandatory or voluntary, how benefit-sharing contributions and modalities should be assessed, and how the multilateral mechanism should interact with other genetic resource governance regimes. The post was written collaboratively by members of the group Interdisciplinary Researchers Working on DSI (iDSI), who are also affiliated with the ERC-funded research project MARIPOLDATA, the Research Platform Governance of Digital Practices, the Manchester Institute of Innovation Research, The Weizenbaum Institute, Lund University and the Natural History Museum.

Parties and observers to the CBD convene to negotiate benefit-sharing from the use of DSI in Geneva (https://enb.iisd.org/).

Introduction

Decision 15/9 of the Conference of the Parties to the CBD (COP Decision 15/9), agreed in December 2022, constituted an important signpost in bringing genetic resource governance to the digital age. Until then, it was disputed whether access to and benefit-sharing from the utilization of DSI, a placeholder term for various types of genetic sequence data, should be considered alongside genetic materials under the auspices of the CBD. However, since considerable scientific and commercial value is produced once DSI are abstracted from material samples, Parties decided that a new multilateral benefit-sharing mechanism on the use of DSI shall be developed until the next Conference of the Parties (COP 16) (COP Decision 15/9, para. 16), to be held in 2024. The decision also initiated an open-ended working group to negotiate whether and if so, how the multilateral benefit-sharing system could operate under the CBD, which had its first meeting on November 14-18 in Geneva.

This decision was generally received as a major step forward, but it quickly became clear during the Geneva meeting that some fundamental questions about the nature of the mechanism are yet to be resolved. This is visible in the formulations used by the Secretariat in various versions of the negotiation document: while at the start of the meeting, the discussed non-papers described areas where ‘we heard agreement’, the final document merely outlines ‘elements on which there is potential convergence’. Additionally, many important issues remain marked by divergences, and were placed under issues ‘for further discussion’. Considering the lack of concrete progress in the negotiations on the future benefit-sharing system, it is highly relevant to explore which issues are currently on the agenda and how the discussions are likely to proceed in the upcoming months.

Voluntary vs. mandatory

A central discussion point was whether the benefit-sharing mechanism on DSI should be voluntary or mandatory. Parties in favor of mandatory provisions argued that established voluntary systems have not provided substantial benefits in the past. There was a lack of clarity on what could constitute a voluntary benefit-sharing mechanism but Parties and stakeholders often used the voluntary contributions to the benefit-sharing fund of the International Treaty on Plant Genetic Resources for Food and Agriculture (‘Plant Treaty’) as a point of reference. Some Parties emphasized the need to introduce legally binding forms of benefit-sharing to ensure a system of rights-based transactions rather than of charity payments.

Proponents of a voluntary system argued that the envisioned CBD system may not be comparable to other specialized mechanisms as its scope (i.e. the types of DSI covered) could be much wider. Some argued that a mandatory system would require a new Treaty to be negotiated, while a voluntary system could more rapidly be established under existing frameworks.

Overall, the meeting yielded minimal progress regarding the voluntary versus mandatory question, a sentiment that is reflected in the final document. It states that there is a need for further discussion on ‘How obligations for sharing the benefits […] can be created; whether this would facilitate a predictable level of contributions and fairness […], and whether this could be done through a legally binding instrument or a non-legally binding framework’. (para. 9). Some Parties supported starting with a voluntary framework and to transition into a more detailed or mandatory system in the future. It appears that such a ‘two-phase’ solution constitutes a potential area of convergence, which would to some extent resemble the benefit-sharing approach taken under the recently decided Treaty on Biodiversity Beyond National Jurisdiction (BBNJ).

Here it should be noted that the establishment of a legally binding/mandatory mechanism is generally understood to require enacting Article 10 of the Nagoya Protocol, which is the CBD’s central protocol for regulating access and benefit-sharing. Article 10 was specifically negotiated to enable the establishment of a multilateral benefit-sharing mechanism through future negotiations during a time when more consensus was available and modalities were clarified. However, the majority of the Parties, rightsholders and stakeholders are attempting to reach a mechanism through the CBD without enacting the Nagoya Protocol.

Triggers and modalities for benefit-sharing

Another important discussion point was how benefit-sharing would be triggered and how benefits to be shared or received should be assessed. Parties deliberated on a wide range of potential triggers for benefit-sharing, such as ‘use of DSI’, commercialization involving DSI, ‘database-related’, or ‘time-based’ triggers, without convergence. A related question was whether a voluntary system would require triggers, which in the end was also included in the final document under issues for further discussion (para. 5). In discussing the various options, delegates repeatedly emphasized the need for conceptual clarification, for example on how ‘use of DSI’ may be defined (e.g. access to DSI, scientific use, or commercialization). At times, the lack of conceptual clarity seemed to make it difficult for Parties to formulate clear statements on positions to be negotiated.

Next to the potential triggers, the modalities for benefit-sharing had to be discussed. While it remained inconclusive, there appeared to be agreement amongst most Parties that ‘commercialization’ should be taken into account when assessing benefits to be shared and that all actors engaging in commercialising products or processes through the utilisation of genetic resources should contribute to the multilateral system. However, it remains unclear how this should be operationalized in practice and statements remained abstract while touching on a range of options for identifying relevant actors, products, and intellectual property rights. Some Parties suggested avoiding the term commercialization and formulating more precisely as ‘generation of value’, ‘shares of incomes’ or ‘sales’ from the use of DSI to have more concrete discussions. Additionally, some concerns have been raised regarding the lack of knowledge on how to value the biobased product sector which, according to some Parties and stakeholders, results in a lack of transparency in the amounts to be captured, generated and disbursed through the fund. These issues remain unresolved.

Geographic information of DSI origin has been on the table for some time as a potentially important modality to assess benefit-sharing, as it resembles the notion of ‘provider country’ under the Nagoya Protocol. However, some Parties and observers argued that it is not a reliable source of information for the multilateral system on DSI, as many types of DSI (such as proteins) are detached from original samples to the extent that they do not allow for identification of geographic origin. Other arguments against such an indicator are that tracing connections of various types of DSI to original samples would require an extensive track-and-trace system, which has been deemed ‘not practical’ for ‘all DSI’ under CBD decision 15/9 (para. 5).

Other potential benefit-sharing modalities included:

Competitive project applications, which also relates to arguments about ‘absorption capacity’: Several Parties argued that funds should be allocated based on competitive project applications, possibly specified to serve conservation aims. Others opposed this notion, arguing that competitive applications would disadvantage certain countries or Indigenous Peoples and local communities (IPLCs).
Biodiversity richness: Some Parties argued that biodiversity-rich countries should receive comparatively more funding via the multilateral mechanism, to support local conservation measures
IPLCs: Some Parties argued that IPLCs should have preferential access to funds, which they should be able to access either directly or via national institutions – views on this question diverged. This approach demonstrated a divergence from the approach during COP 15 as the negotiations in Montreal specifically recognised the IPLCs as primary beneficiaries (COP Decision 15/9, para. 10).

Interactions with other Frameworks

DSI is currently being negotiated under several international fora, namely the Food And Agricultural Organisation (FAO), World Health Organisation (WHO), and World Intellectual Property Organisation. Adopted in June 2023, the BBNJ Treaty constitutes the first legally binding instrument to include DSI in its provisions on marine genetic resources. As such, there is a heightened interest in how the CBD is going to design its multilateral DSI mechanism.

However, interactions with other frameworks did not appear to be high on the agenda for negotiators at the Geneva Meetings. Some discussion took place on the idea of establishing an inter-forum body on access and benefit-sharing to facilitate coordination. While this was placed under areas of agreement in initial non-paper documents, it was moved to further issues of discussion after some Parties objected. While it is generally uncontested that some form of harmonization across existing and future access and benefit-sharing mechanisms would be useful, during the Geneva Meetings some Parties and stakeholders also pointed out that these arenas are independent legal frameworks that cannot simply be replaced by a new harmonized one nor be forced to adjust to terms defined by the CBD.

It should be noted that the discussions on relationships with other bodies are partially shaped by tensions within the CBD, namely on how the multilateral mechanisms on DSI would interact with the Nagoya Protocol. Some Parties made statements to suggest they see the new multilateral system as potentially undermining the sovereign rights of states recognised under Article 15 of the CBD as well as Articles 4 and 6 of the Nagoya Protocol.

iDSI emphasizes the importance of Open and Responsible Data Governance in managing DSI

The group Interdisciplinary Researchers Working on DSI (iDSI) made several interventions during the Geneva meeting concerning interactions with other benefit-sharing frameworks. iDSI highlighted the need to develop principles for Open and Responsible Data Governance (ORDG) and integrate them into the evolving multilateral system. The idea of ORDG is to promote guidelines for practitioners on how to nurture fair and equitable DSI use while managing DSI according to the FAIR principles (findable, accessible, interoperable, and reusable). Given the potential transformation of bilateral access processes into multilateral ones, iDSI emphasized the importance of providing practitioners with explicit guidance on avoiding ethical breaches and the infringement of pre-existing rights and obligations in their routine use of DSI. Such guidelines may simplify researchers’ navigation through the complex landscape of benefit-sharing mechanisms while jumpstarting the implementation of international law on the ground.

Interdisciplinary Researchers Working on DSI (iDSI) at the Geneva Open-Ended Working Group Meeting.

Next steps and conclusion

To summarize, delegates and observers are faced with a substantial workload in the upcoming months as they endeavor to discern the future configuration of the multilateral benefit-sharing system for DSI. As highlighted in this blog, the main points of negotiations are whether the mechanisms will entail voluntary or mandatory provisions, how the trigger points and assessment criteria are designed, and how the new mechanism will relate to existing legal frameworks. A fundamental question underlying these considerations is how to align principles of open science with the rights of provider countries and IPLCs under the umbrella of a new multilateral system.

In terms of the next steps, many actors emphasized that they await the results of studies requested under decision 15/9 (para. 22). It was also agreed that an Informal Advisory Group (IAG) will be set up, to meet every month leading up to the second meeting of the Ad-Hoc Open-Ended Working Group on DSI in August 2024, in time for the next COP 16 scheduled for October 2024. The IAG nomination and acceptance process is ongoing and likely to be relatively closed, with selection based on “pertinence” (IAG notification).

iDSI will continue to engage in this process, and is open to discuss our perspectives on any of the issues touched on above. Please feel free to contact us at idsi.research@gmail.com.