Maripoldata Blog

MARIPOLDATA Methods Workshop

13. September 2019/in General /by Arne Langlet

On the 10^th and 11^th of September, the MARIPOLDATA project hosted a workshop on conceptual and methodological frameworks and approaches for research at global environmental negotiations. The workshop built strongly on the work by Hughes and Vadrot on Methodological Innovation in the Study of Global Environmental Agreement Making and was held in relation to the research conducted by the MARIPOLDATA team at the ongoing Intergovernmental Conference on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) in New York. Scholars from different parts of the world and different disciplines came together to bring their experience in global environmental negotiations to the table to develop methodological innovations. Postgraduate scholars had the chance to discuss interactively their needs and perspectives with the experienced academics. The goals were defined in regards of the research that the MARIPOLDATA team is conducting at the BBNJ negotiations: To develop methodological innovations that may transform how we collectively study global environmental agreement making, while also giving practical guidance for early career researchers and others interested in the study of environmental meetings. The insights generated in the interdisciplinary and very interactive workshops can be applied throughout the investigation process that the MARIPOLDATA team undertakes at the BBNJ meetings.

Tracy Bach (Vermont Law School) and Beth Martin (Washington University) presented a text on the practicalities of being an observer, introducing the particular and sometimes overwhelming aspects of international negotiation sites as research spaces. Their contribution helps future researchers to navigate not only the physical but also the intellectual negotiating spaces.

Jen Iris Allan (Cardiff University) and Pamela Chasek (Manhattan College) drew from their vast experience as authors and managers of the Earth Negotiation Bulletin in order to deliver a contribution overviewing the various types of textual documents that are available in the process of international environmental negotiations and how to approach them analytically.

Yulia Yamineva from the University of Finland shared her experience in conducting interviews at international environmental negotiations. Because interviewing diplomats during ongoing negotiations underlies different methodological challenges such as very limited and often spontaneous availability of the interviewees, researchers that want to conduct and use interviews need to take into account some common pitfalls and tips that were mentioned.

On the second day, Marcela Vecchione Gonçalves from the Center for Amazonian Studies at the Federal University of Pará shared her insights on the ethics of researching indigenous peoples’ representation at international meetings. Indigenous peoples are increasingly represented at international negotiations concerning the climate, biodiversity and the oceans and researchers should approach them as subjects of policy-making, taking indigenous understandings of cosmopolitics seriously.

Kim Marion Suiseeya from the Northwestern University explored the opportunities that ethnographic research provides for studying international negotiation sites and highlighted the importance that researchers iteratively reflect on their work and their subjective interpretation of their observations.

Noella Gray from the University of Guelph contributed with a view on collaboration and multi-sited ethnography. Sharing her extensive experience in collaborative projects, she emphasized that coordinated research in a team has a number of advantages that go beyond the increased number of ‘eyes and ears’ at the research site.

Jennifer Bansard from the University of Potsdam contributed with a text on how to approach side events, issue-specific events taking place outside but parallel to the negotiations, at international environmental negotiations. Side events could be studied either as objects of research or as sites for data collection both of which approaches require different practical and methodological considerations.

Group picture of the participants of the MARIPOLDATA Methods Workshop

In the subsequent roundtable all participants discussed lively why this sort of research matters and may matter increasingly as more and more international bodies are being created. They also discussed what steps the group needs to take next in order to further the methodological conversation and realize the practical guide for young researchers. All scholars left with many ideas and suggestions for collaborative projects in the future.

On Thursday, Marcela Vecchione Gonçalves concluded this eventful week with a public presentation on the situation of indigenous people, land and climate politics in Brazil. While the diverse audience listened attentively, Marcela Gonçalves demonstrated impressively how seemingly local struggles between indigenous land holders and agricultural corporations in the Amazon region are interrelated with political struggles on the national level – not only in Brazil but in European countries as well – and international environmental negotiations.

Slow progress in the third BBNJ meeting: Negotiations are moving – but sideways

6. September 2019/in General /by Ina Tessnow-von Wysocki

After the observations of the first week of the third Intergovernmental Conference (IGC 3) on the conservation and sustainable use of marine biological diversity, the MARIPOLDATA team shares insights of the second week. This blog entry provides a summary of the topics discussed, overall progress made, as well as the challenges that remain to be resolved for the upcoming fourth Intergovernmental Conference (IGC 4) in March 2020.

Imagine all the people, sharing all the ocean

To whom belong the parts of the ocean that are shared among all states? Under the United Nations Convention of the Law of the Sea (UNCLOS), states are free to navigate the areas beyond national jurisdiction and can enjoy “the freedom of the high seas” (UNCLOS Art 87). However, does that imply that all states can collect resources in these areas, conduct research, discover new species and develop new pharmaceutical or other commercial products from the marine genetic material found in the depths of our common ocean? Marine scientific research is costly and not all states have the capacities to access marine genetic resources in areas beyond national jurisdiction. But should the ones who invest in discovering new species and developing new products not be allowed to own their “treasure”? This calls for a new regulatory framework for marine genetic resources (MGRs), which constitutes one of the four pillars of the future new legally binding instrument. The question is whether this agreement will allow for “first come – first serve” or ensure that the resources of our ocean are considered “common heritage of humankind” with access to and benefits from these resources being shared among all states, taking into consideration current and future generations, as well as the environment in itself.

Delegations negotiating the BBNJ zero draft text, while NGOs and IGOs observe from the side

The BBNJ crab dance

The second week of negotiations of the third Intergovernmental Conference (IGC 3) continued with discussions on the remaining cross-cutting issues, and the four BBNJ packages marine genetic resources (MGRs), area-based management tools (ABMTs), environmental impact assessments (EIAs) and capacity building and the transfer of marine technology (CB&TT). The conference included the two formats of the previous week, namely “Informal Working Groups” – discussions in the plenary, which were open to all participants of the conference, including non-governmental and intergovernmental organisations (NGOs and IGOs) – and so called “Informal Informals”, which were held in a smaller room, with restricted access for NGOs and without the participation of the press. The presidency had introduced the informal informals in the first week of ICG 3 to allow government representatives to negotiate text in an informal setting and eventually start developing compromised treaty language.

The MARIPOLDATA team representing the University of Vienna as a Non-Governmental Organisation (NGO)

Enthusiasm for the structure of the informal informals, however, was rather limited: On the side of the NGOs because they were only permitted restricted access and on the side of the government representatives because the dynamic was very similar to the discussions in the plenary, not allowing for informal talks on specific issues that needed further elaboration. With only a few delegates praising this format, the majority was calling for a different dynamic of the sessions, with the opportunity for more in-depth, informal conversation, as well as greater transparency. Despite the formality of all sessions, discussions progressed in the different topics. Such progress could largely be seen in textual formulations, regarding agreement on the inclusion and exclusion of certain wording, re-structuring, streamlining or adding of articles and paragraphs. Nevertheless, key issues that have divided states’ positions since the beginning of the meetings, could not be resolved at this conference. Although only one further IGC is planned, the past 2-weeks of the BBNJ process rather reflected the walking of a crab – moving sideways, not forward.

Regarding marine genetic resources (MGRs), delegates agreed that the provisions in ABNJ should only apply after entry into force of the agreement, rather than retroactively[1]. However, key definitions remained unclarified, such as “marine genetic material” or “access to” MGRs. Further elaboration will be necessary on agreeing whether access to MGRs would entail collecting the resource where found/originated, where processed, or also to include digital sequence data and derivatives. Delegations are particularly divided on the question whether fish should be included as a marine genetic resource, due to concerns of impacts on current fisheries management and the problematic definition of “fish”. Another issue that will require further discussions are intellectual property rights regarding MGRs.

Discussions on area-based management tools (ABMTs) and marine protected areas (MPAs) achieved progress in clarifying the specific steps of the process. Delegates agreed that consultation and assessment of proposals for ABMTs should be inclusive, open and transparent[2]. They identified a potential advisory role for a scientific and technical body for making these proposals, however, there is still a lack of shared understanding on definitions of ABMTs and MPAs and implications for their respective processes. There is agreement that state parties should be responsible for making the proposals for ABMTs and MPAs but delegations are still divided on the question whether a scientific and technical body should be involved in monitoring and review. Another issue that has sparked disagreement and remains unresolved is the relation between the new instrument and other legal global, regional, sub-regional and sectoral bodies, which has been slowing down progress over the past two weeks.

Delegates welcomed discussions regarding environmental impact assessments (EIAs), expressing the need for monitoring, reporting and review. However, the discussions did not give answers on thresholds or criteria to be used for EIAs and divided delegations into some supporting an “impact-oriented”, and others preferring an “activity-oriented” approach. Disagreement remains in regards to the type of impacts, including transboundary and cumulative impacts, as well as social, economic, cultural and health impacts. While governments of the Global South would like to see a reference to social, economic and cultural impacts of harmful activities in ABNJ – particularly on coastal states – governments of the Global North prefer a narrow focus on environmental impacts only. Whether to have a reference to coastal states at all remained contested and had to be postponed to future meetings. Similarly, discussions have not moved forward on identifying the role that traditional knowledge might play within the framework of an environmental impact assessment. Also the potential function of a scientific and technical body requires further elaboration, however, delegates generally preferred state parties to be the responsible entity.

Considering the limited capacity of developing countries, particularly of the least developed countries (LDCs) and small island developing states (SIDS), and capacity building and the transfer of marine technology (CB&TT) is of key importance for the G77/CHINA, the PSIDS, the African Group, as well as the Core Latin American Countries (CLAM) and the Caribbean Community (CARICOM). Discussions on CB&TT showed progress on the potential role of the Conference of the Parties (COP) in developing a list of guidelines and in undertaking monitoring and review[3]. However, there are still diverging views on whether capacity building and marine technology transfer should have a mandatory element and be complemented by voluntary efforts, or if it should solely be voluntary. Questions, moreover, remain on which countries should benefit from CB&TT.

Regarding cross-cutting issues, delegates generally agreed on the establishment of a “clearing-house mechanism” (CHM), to provide a platform for sharing information and data. Discussions included the question of which entity to be the responsible body, whether to make information publicly available, how to deal with confidential data, as well as possible functions. Ideas included the dissemination of pre-cruise information and post-cruise notification, documentation of EIAs and cooperation regarding ABMTs[4]. While there was general agreement on making data and information publicly available while ensuring that confidential information is exempted, there is so far no agreement on the type of data and information that the CHM is supposed to provide, nor which body should be responsible for managing it. Suggestions include the Intergovernmental Oceanic Commission (IOC-UNESCO) and the secretariat which will be established under the new instrument[5]. There was also overall support for the establishment of a Conference of the Parties (COP) to, among other functions, determine CB&TT types[6].

The part on the settlement of disputes could not be sufficiently discussed, even though delegates stayed longer than the interpreters were available. While there was agreement that states have an obligation to settle disputes by peaceful means, no agreement emerged on the procedures for such settlements, as positions divergence on to what extent the article should be drafted on the model of UNCLOS and what this would imply for its non-parties.

Several delegates emphasised the inclusion of the use of best available science and traditional knowledge of indigenous people and local communities, as well as additional principles, such as adjacency, transparency, the polluter pays principle, intra- and intergenerational equity, and the obligation to protect and preserve the marine environment[7][8]. The PSIDS advocated for the establishment of a scientific, technical and technological body, and the inclusion of traditional knowledge of indigenous people and local communities, as well as the recognition of the special circumstances of SIDS.

Even though delegates already started text-based negotiations, discussing specific wording, no treaty will be concluded before states agree on the key issues that still divide positions until now. Therefore – considering that there is currently only one more BBNJ conference planned – state delegations have already expressed the need for quality of the agreement, rather than finishing in time and rushing into a treaty that everyone can interpret differently, or which implementation is not realistic.

Sailing in the same “IG-sea”

When the sun set over the UN headquarters on Friday, the discussions had already ended, as progress was not to be expected on the major issues until the next IGC. As the delegate of Japan mentioned in the ending remarks: This conference laid out the different positions of delegations and their level of flexibility very well[9]. But now everyone is looking towards the next conference with expectations: With the expectation that the president compiles the discussions into a first draft and proposes a negotiation format that will give delegates with their diverging views and interests sufficient time to discuss. Simultaneously, with the expectation that the draft covers as many issues as possible and guarantees transparency and representation of the delegations in the working groups. Not an easy task, considering the contrasting requests from delegations. While some delegations request a streamlined text, others prefer to have an options-based text, with all the points and positions raised at this conference.

Delegates and representatives from non-governmental organisations would like to see the text of the first draft until the end of 2019, ideally already by October, which would give delegates time to review the different positions and prepare their statements. But rather than repeating what happened in IGC 3 – namely coming together to highlight the important issues for their own countries – IGC 4 is expected to focus on compromise of statements. Some delegates suggested to have meetings within their regions and prepare proposals already in advance of the conference. This would allow for discussions prior to IGC 4 and enable a steep start into negotiations when they get back together in March 2020.

But an equitable and fair outcome of this agreement will be hard to negotiate if limited capacity to participate, as well as to fully grasp the content of the negotiations is not guaranteed for all states. While there are some delegations with over 10 representatives, some states have no representation at all. Will this instrument be able to universally reflect the common grounds of all states even if they are disproportionately represented, and with diverse expertise and experiences? The trust fund offers the possibility to sponsor delegates from developing countries, however is highly reliant on voluntary contributions by states, intergovernmental organisations and private persons. This IGC, financial resources in the fund only allowed for five delegates from developing countries to attend the conference while others were left without funding and hence without voice, unless their position could be represented by a group of states they aligned with.

Hope was gained back, when delegations – which had the previous two weeks been insisting on their own interests – reflected the need for cooperation in their closing statements. President Rena Lee looked up to the window where curious visitors watch the negotiations from time to time and shared: “I wonder what they are thinking about us”, reminding the delegates of their important mandate. There seemed to be the realisation that “we are living in a common world and are sailing in a single sea”[10] and that while our “common canoe gets more and more vulnerable, we need to paddle even faster”[11].

Sunset over the third Intergovernmental Conference

[1] ENB Report Vol. 25 No.218, Sep 2, p. 22, retrieved from: https://enb.iisd.org/download/pdf/enb25218e.pdf.

[2] Ibid. p.10.

[3] Ibid. p, 16

[4] ENB Report, 27^th August 2019, Vol 25 No.214, p.2, retrieved from: http://enb.iisd.org/download/pdf/enb25214e.pdf.

[5] ENB Report, 28^th August, Vol 25 No 215, p.2, retrieved from: http://enb.iisd.org/download/pdf/enb25215e.pdf.

[6] ENB Report Vol. 25 No.218, Sep 2, p. 2, retrieved from: https://enb.iisd.org/download/pdf/enb25218e.pdf.

[7] Ibid. p.5

[8] BBNJ ICG 3, Closing Statement of Paraguay on behalf of AOSIS, retrieved from: http://statements.unmeetings.org/media2/21996902/paraguay-eng-.pdf

[9] Delegate of Japan, BBNJ IGC 3, Closing Statements, 30^th August, 3.45pm

[10] Delegate of the Philippines, BBNJ IGC3, Closing statements, 30^th August 4.11pm

[11] IUCN, BBNJ IGC 3, Closing statements, 30^th August, 4.30pm

Setting the stage for the common heritage of humankind principle: Diving into further negotiations on a new marine biodiversity treaty

28. August 2019/in General /by MARIPOLDATA Team

Between August 19^th and August 31^st, the UN headquarters in New York host the third intergovernmental conference (IGC 3) on an international legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). The MARIPOLDATA team is using this opportunity to observe and analyze the negotiations and conduct interviews with delegates from State Parties and non-governmental organizations (NGOs), including scientists. These are the impressions of the first week of negotiations.

In the previous conferences, the delegations exchanged views on the four items of the draft agreement: marine genetic resources (MGRs), area-based management tools (ABMTs), including marine protected areas (MPAs), environmental impact assessments (EIAs), capacity building and the transfer of marine technology (CB&TT), as well as on cross-cutting issues such as the institutional set-up and the relation of the new treaty to other existing sectoral or regional regimes that currently govern the oceans. On the basis of this exchange of opinions, the presidency circulated a President’s Aid for negotiations at IGC 2, which forms the basis for a zero draft document. For the first time since the initiation of the BBNJ process there is a document containing treaty language.

A whale installation in the entrance of the UN building draws attention to the BBNJ negotiations

Here at IGC 3, the negotiations have entered into a decisive phase, in which delegations need to negotiate and compromise on the individual provisions of the treaty. To set the scene for crucial days of negotiations, Greenpeace, the High Seas Alliance (HSA) and the International Union for Conservation of Nature (IUCN) collaborated to install a large figure of a whale erupting from a sea of plastic trash on the UN terrace and the High Seas Alliance together with the Turkish Marine Research Foundation installed a photographic exhibition to increase awareness for marine conservation.

Exhibition in the hallways of the conference rooms portraying pictures of the marine environment

A beautiful morning together

The plenary hall

During the first days, the delegations started discussing the topics of CB&TT and ABMTs and cross-cutting issues. The good and collegial atmosphere that existed between the delegates during IGC 2 was successfully carried over to IGC 3, particularly when the delegate from the Federated States of Micronesia welcomed the facilitator of the informal working group on area-based management tools with the words: “We thank you for bringing ABMT to us – another beautiful morning together”.

Regardless of the friendly atmosphere, negotiators were ready to go directly to the heart of matters. When the countries delivered their opening statements for the upcoming session, representatives of delegations and observers from NGOs, IGOs and many regional seas or fisheries organizations filled all seats of the plenary hall.

It became clear that not only the good atmosphere but also the substantial disagreements were carried straight from IGC 2 to IGC 3 and directly addressed in the opening statements. Palestine, on behalf of the group of the G77 and China, representing 134 countries, as well as the group of Least Developed Countries (LDCs) strongly voiced the demand to the see the principle of “common heritage of mankind” in the treaty text and also Algeria on behalf of the African Group representing 54 African states noted that the principle is absent but that the spirit is sometimes present. This principle, which already in the conferences building up to the third IGC was identified as possibly one of the key issues of contention, had surprisingly been taken out of the zero draft text.

Disagreement also emerged in discussions on Article 3, concerning the paragraph dealing with exceptions for state vessels and warships. Some countries argued that this should not be questioned, as it falls under the freedom of the seas under UNCLOS. Others raised the concern that state vessels could engage in marine research and make use of marine genetic resources. This would be a problem if the agreement wants to guarantee equitable and fair benefit sharing of resources. Furthermore, the debate whether the instrument should refer to the precautionary principle or a precautionary approach remained without agreement at the end of the week. States also raised concerns regarding the lack of common definitions for a number of matters such as criteria for area-based management tools.

Informally negotiating in “informal informals” and restrictions for NGOs

The third IGC introduced to the conference a new negotiation format. In “informal informals” states can now debate and negotiate more informally than in discussions in the working groups and the plenary, and without the presence of the media and the ENB reporters. The presidency hopes that in this way, the delegates can respond to and address issues much more directly.

In order to still ensure a level of transparency, the NGO sector was allocated a total number of five seats which have to be shared by all participating NGOs. The fact that NGOs were granted – albeit limited – access to informal informals, was perceived as a very NGO-friendly policy and a large step towards transparent policy-making. However, they would not be able to intervene in this setting and due to limited capacity in the conference room, the more than 40 NGOs needed to decide amongst one another, who could sit in the informal negotiations. In order to coordinate between themselves which NGO – according to its specific interest and expertise – can sit in which informal informals session, a daily NGO meeting was set up each morning before the negotiations.

Apart from the discussions in the plenary and the informal informals, a variety of closed coordination meetings, bilateral and multilateral discussions took place throughout the week in which delegates could exchange views and discuss key issues amongst a smaller group.

Awakening the “Regime Complex”

The relationship of the evolving BBNJ instrument to other existing sectoral and regional bodies established under the UN system such as the Convention on Biological Diversity (CBD), the Food and Agricultural Organization (FAO) or Regional fisheries management organisations (RFMOs) was a prominent topic during the first week. The treaty that is being developed possibly affects all areas of the world´s ocean and different topics of international politics such as fishing, mining, shipping, communication through the use of deep sea cables, deep sea exploration and scientific cooperation.

Because the potential reach is global and many areas are governed by different and already existing bodies, the question of how to relate a new treaty to the existing frameworks is a crucial one. A new treaty will not exist independently of other international regimes and will eventually function within a regime complex where negotiators fear to create a structure that is contradictory, duplicative and where different bodies compete with each other for competences.

This fear could clearly be observed in the discussions on different parts of the draft text. Concerning the issue of capacity building and the transfer of marine technology, many states noted that various initiatives through which states assist each other in building capacity in marine research already exist. When addressing area-based management tools such as marine protected areas, the negotiators also noted that different institutions already have different systems to identify and designate areas for protective purposes.

A lot of reference was made to the so-called EBSA process under the hospices of the CBD which gives a scientific recommendation to identify ecologically or significant marine areas. Different regional seas and fisheries organizations such as the North East Atlantic Fisheries Commission (NEAFC) also already have a system in place, through which certain areas are put under protection by member states of these agreements.

The question now is: What will happen to these existing marine protected areas when other or similar areas are established globally under the new treaty? It was thus not surprising to observe that a large number of existing organizations are present at the negotiations and a number of side events were organized on the topic of inter- institutional cooperation.

How much science in BBNJ?

Reference to the importance of best available science and knowledge in the BBNJ process was repeatedly made by delegates in the first week, as well as presenters at side events. New technologies based on satellite images and environmental DNA (eDNA) can be used to track species and provide information on the establishment of marine protected areas, and potentially to scan the sea-floor for DNA of undiscovered marine genetic resources. Various side events highlighted the importance of science for the BBNJ process. The FAO side event on multi-institutional collaboration in ABNJ gave an overview of existing capacity building initiatives and North-South collaborations. The CBD and the Global Ocean Biodiversity Initiative emphasized the need for new science for the management of area-based management tools in ABNJ.

There seemed to be general agreement on the wording scientific “body”, over scientific “network”, however, no agreement on the role of such a scientific body and its competences. Various states highlighted the importance of a scientific body as an advisory body for states, however, neither with a mandate to identify and establish ABMTs, nor to initiate or conduct EIAs. The room largely agreed that this responsibility should remain with states. Many countries, including Belize, Tuvalu, Fiji, Micronesia and Myanmar highlighted the significance of other forms of knowledge such as traditional and indigenous knowledge to contribute to an effective implementation agreement – a contribution that was welcomed by a number of other states throughout the week and raised in regard to all the different articles of the draft agreement.

Regardless of the progress made so far, much work remains to be done in the second week. Unresolved disagreements will need to be compromised by state delegations in order to find a common ground for the new instrument. The work on certain specifics of all four elements of the agreement will need to be discussed and informal informals are again scheduled throughout the week, apart from the plenary and working group sessions. On the weekend, delegates showed great interest for workshops on MGRs and the science-policy interface in the BBNJ process, where policy-makers and scientists could clarify scientific definitions and identify the process of current pre- and post-cruise data sharing.

At the end of the day, the stakeholders left with a more aligned understanding of the implications of the instrument, however, it also showed that science and policy still talk different languages and there is the need for further exchange.

We are now looking forward to another IGC3 week, hoping that we will get one step closer to finding common ground on the key elements of the BBNJ treaty to conserve and sustainably manage marine biodiversity and ideally, text on how to address and reduce the unequal distribution of marine science, resources and data infrastructures.

This article has been written by Arne Langlet and Ina Tessnow-von Wysocki.

Maripoldata Blog

MARIPOLDATA Methods Workshop

Slow progress in the third BBNJ meeting: Negotiations are moving – but sideways

Setting the stage for the common heritage of humankind principle: Diving into further negotiations on a new marine biodiversity treaty

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