Maripoldata Blog

A new Marine Biodiversity Treaty in Sight

27. February 2023/in General /by MARIPOLDATA Team

Finding a landing zone for BBNJ. Photo: Pixabay

A new Marine Biodiversity Treaty in Sight

Marine Biodiversity Negotiations have resumed in New York and negotiators are left with one more week to finalize the new treaty which will govern conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). The MARIPOLDATA Team has been following the proceedings closely. This blog follows the BBNJ Blog Series and provides an overview of the progress of the first week and outstanding issues, which still need to be resolved in the days to come.

The week was characterized by ups and downs in the different sessions that were covering the package elements 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 (CBTMT), as well as overarching “Cross-cutting Issues”. The latter includes provisions on general principles and approaches governing the new instrument, the institutional setup regarding the decision-making organ (Conference of the Parties (COP)), the Scientific and Technical Body, the Secretariat, and the Implementation and Compliance Committee. Overall, the first week was characterized by a spirit of compromise by Parties, gradually finding a “landing zone” – namely agreement – on various contentious issues.

Final drafting of the new treaty

Throughout the first week, negotiations were advancing at different paces on different topics, leaving the issues of firstly, fair and equitable sharing of benefits arising from the use of marine genetic resources in areas beyond national jurisdiction and secondly, the establishment of ABMT, including MPAs as the most challenging parts. Compared to the last conference session in August, the section on EIAs went surprisingly fast, with much flexibility from State Parties and proposals for compromise. Also regarding CBTMT, the textual drafting proceeded without substantial conflicts. The hope that negotiations are now in the final days before the adoption of the agreement can be derived from the language that States use in engaging with each other’s positions and arguments. States’s statements showed that they are willing to work together constructively and with the necessary flexibility.

Figure 1: Language analysis of constructiveness of States’ statements

Using our notes from State Parties’ interventions in the plenary and informal informal sessions, we ran a latent semantic scaling language model to evaluate how constructive the language of the negotiators’ statements was. The language used by States is an important indicator for how a negotiation is progressing (Georgiadou, Angelopoulos,and Drake 2020). We see that in the first week at the resumed 5th session “IGC 5.final”, States used more constructive language than during the same time period at IGC 5. State Parties formulated their statements in a particularly constructive manner at the end of week 1, compared to the previous round of negotiations in August.

Marine Genetic Resources

The discussions on MGRs started on Monday with two new written proposals from developing and developed State Parties. This promised a constructive and engaged start – a lack of written proposals reflecting the ongoing discussions hampered progress during IGC 5 in August 2022. The proposals made big steps towards compromise as they both converged on an obligation for monetary benefit sharing through an upfront payment. Both sides offered significant concessions from their initial pre-IGC 5 positions to get to this point: developed States moved away from their complete opposition to any sort of monetary benefit sharing and developing States in turn accepted that such monetary contributions are purposed for achieving the objectives of this treaty (conservation and sustainable use). Such a spirit of comprise will be needed to resolve the remaining issues.

Substantial differences remain on whether upfront payments shall be accompanied by a so-called “enabling clause” or an obligation for payments based on the commercialization of MGR-related products. An enabling clause would mean that obligatory payments on commercialization would not form part of the initial agreement, but that the COP would deal with the matter and possibly develop modalities for such payments. The envisioned enabling clause opens the possibility of commercialization-dependent payments without specifying details at this stage. However, the enabling clause as currently proposed leaves too much uncertainty on whether it will ever be invoked, as it requires consensus from all State parties.

A similar difference emerged over the long-standing debate on how to treat digital sequence information (DSI). Again, one side offered an enabling clause and the other side requested clear commitments. Both sides had in mind the recent decision by the Convention on Biological Diversity (CBD) COP on the inclusion of DSI for benefit sharing in their lines of argumentation. Developed countries preferred to leave this issue open, waiting for the “fair, transparent, inclusive, participatory and time-bound process to further develop and operationalize the mechanism” (CBD, COP decision 15/9, Art. 17) whereas the developing states insisted that “the benefits from the use of digital sequence information on genetic resources should be shared fairly and equitably (CBD COP decision 15/9, Art. 2) and wished for this to be clarified under the BBNJ regime as well. The compromise may lie in the level of details, as the regime needs to a) accomplish legal certainty for developing states that benefits from DSI will be included and b) remain flexible to take up developments occurring under the CBD mechanism.

It was noted that it would help developed States in the ratification process if reasonable and doable obligations on State parties are clearly stated throughout Part II of the agreement. In terms of the notification mechanism, a realistic landing zone may lie in requiring State parties to ensure the use of standardized identifiers and regular aggregated utilization reports from databases.

States agreed that some sort of access and benefit-sharing body will be established to overview and inform implementation of this part. The initial proposal to have a “mechanism” appears to draw logic from the “mechanism” established under CBD. Suggestions to replace this wording with “advisory committee” were met with the argument that all subsidiary bodies established under the instrument will be advisory to the COP and hence, this needs not to be explicitly stated for this body only (see MARIPOLDATA blog on marine issues and DSI at CBD COP15.2).

Area-based Management Tools, including Marine Protected Areas

While the discussion on whether to have consensus-based decision-making in the COP for establishing the new ABMTs/MPAs is still on the table, most States prefer a majority-based voting procedure. This would mean that proposed ABMTs/MPAs cannot be vetoed by one Party alone, if the majority of the international community agrees on the necessity to undertake this new measure to conserve and sustainably use marine biodiversity. Linked to this discussion is the question of so-called “opt-out”, meaning a State Party objecting to the establishment of the new measure can “opt out” of their obligations to comply with the measures (On the delicate balance between opt-outs and majority voting in other instruments see recent IISD guest article). As explained in previous MARIPOLDATA blogs, this risks having States as Parties to the agreement without actually complying with what is agreed by all or by a majority of the COP, threatening the effectiveness of such measures. Throughout the negotiations, and in the spirit of compromise, there is acknowledgement that this agreement will not fully meet one single State’s interest but rather, that it needs to be a compromise solution that works for all and improves the current situation on the high seas. Under this premise, many States have moved away from their original preference of not having the “opt-out” clause, but rather putting in place a majority vote in the COP and – in very special cases – allow for such exemptions. The following days will be crucial in negotiating the knitty-gritty of the legal text to close loopholes and at the same time allow for universal participation of States to the BBNJ treaty.

The second issue is how the new agreement will account for “other relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies” (IFBs) that are already in place and ABMTs that are already established – or will be established – by those bodies and frameworks. Some Parties interpreted the wording in the draft text as an introduction of a hierarchy between recognized and unrecognized ABMTs/MPAs by the BBNJ instrument, which would neither be possible nor desired in international ocean governance. The coming days will be busy with finding the right wording to agree on the cooperation and coordination of BBNJ with existing International Frameworks and Bodies (IFBs) with the aim to enable coherent biodiversity governance of ABMTs/MPAs, facilitating well-connected networks of ABMTs/MPAs in areas beyond national jurisdiction (this covers the water column and the seafloor but is currently governed by different international regimes). In the light of ecological connectivity – the knowledge of ecological, biological, genetic and cultural interconnections – such joint establishment of ABMTs/MPAs among the different governing bodies is crucial for effective conservation and sustainable use of marine biodiversity (Tessnow-von Wysocki & Vadrot, 2022) (see: MARIPOLDATA blog on marine issues and DSI at CBD COP15.2).

Towards the end of the first week, discussions were again taken up on issues that were believed to have been resolved already in the past conference session, such as definitions of MPAs, and threatened to throw the negotiations back to where they had left off in August.

Environmental Impact Assessments

The part on EIAs advanced comparatively quickly on passages of the text that were unresolved from the last conference session, due to constructive compromise proposals by several regional groups, which took into account concerns of State Parties that were raised during the past years of negotiation.

The discussions seem to evolve into a two-tiered approach for EIAs between a complete unilateral decision-making over activities in areas beyond national jurisdiction and a full COP decision-making. Several layers of such internationalization at different steps of the EIA process still need to be formulated but both sides seem to converge on a possible “landing zone” and middle ground between the contrasting concepts. In this way, the disagreement about an effects vs. location-based approach could be advanced. Some controversial issues, however, still remain. At one point, the facilitator even felt that “we are rowing backwards”.

Details of a “call-in” mechanism will still need to be finalized in the coming days, ensuring a process to question a screening undertaken by one Party that would allow the activity to be conducted without an EIA. One particularly contentious issue is the inclusion of a set of guidelines or standards to which the EIAs need to be upheld – as in the current discussions it would be the State Party itself who is undertaking an EIA for their own planned activities. Discussions on whether additionally to voluntary guidelines, this new legally binding agreement should also provide minimum universal standards that all States need to follow when conducting their EIAs. This is still a highly controversial topic and remains to be discussed until the last days.

Another issue regards the key question when an EIA will need to be undertaken. In this discussion, two different thresholds on the table would trigger an EIA: 1) significant and harmful changes and 2) minor or transitory effects to the marine environment. This issue has been avoided in discussions, as no easy compromise is expected in this regard. The same attitude was observed for the role of the Scientific and Technical Body, which was left to the very end of week one.

Capacity Building and Transfer of Marine Technology

From the beginning of IGC 5.final, the CBTMT negotiations proceeded relatively smoothly and in clear view on compromise. In the first session, the two State groups holding different views on the topic called the draft text a “clear” and “well balanced” document that “has realistic landing zones”. It was, for example, encouraging to observe that the differences around “shall ensure” in Art. 44 were largely resolved and the wording of the text accepted.

Disagreement emerged over the proposed addition of the “term” financial to the list of capabilities that shall be enhanced under Art. 46.1. Whereas developing states referred to the required commitment to financial support for capacity-building, developed states argued that the term financial does not fit in the logic of the paragraph. Related to the developments under the MGRs chapter, these differences can certainly be settled by providing the necessary legal certainty and commitment for developing countries that financial support for capacity building is given.

Unsettled cross-cutting issues

Under Cross-cutting issues, States discussed which principles and approaches should guide the new instrument in two informal-informals sessions. This section of the agreement has been difficult to discuss and left a few concepts up to debate that will form the basis for the new treaty. Negotiations circled back to previous discussions on precautionary principle/approach or the newly phrased term ‘application of precaution’ with a general agreement that the latter could not be a good compromise and would result in further questions of how to define and apply in practice. Developing States pointed to the large number of countries of regional groups to convey their arguments for the precautionary principle. Yet, whether to use the precautionary principle or approach remains to be discussed.

Also, the option of including the principle of common heritage of humankind as a guiding principle meets much controversy, similar to previous negotiations. It remains to be seen how this disagreement can be resolved to satisfy both proponents of the 1) principle of the common heritage of humankind (mostly developing states) and 2) freedom of the high seas (mostly developed States). In the spirit of compromise, we wonder if a principle encompassing the benefit for the planet could resolve the opposition of two historical principles and provide the basis for the mandate of the BBNJ treaty focusing overconservation and sustainable use (see: MARIPOLDATA blog on common heritage of the planet).

Figure 2: State (and state-group) positions on whether to include the common heritage of mankind in Art. 5 on general principles and approaches – visualized to depict the conflict over the common heritage principle (position in squares, States in circles).

Conflict over Common Heritage of Mankind,

IGC 2 & 3

Source: Vadrot et al., 2021

Conflict over Common Heritage of Mankind,

IGC 5.final

Source: Authors

Another important topic under cross-cutting issues is the future relationship of the BBNJ instrument with other bodies. Considering the already existing amount of international organizations and regimes and the resulting complexity of marine governance, there is the real risk that a strict not undermining clause (Art. 4.2.) may result in little transformative possibility. Proposals to reformulate Art 4.2. that focused on the effectiveness of measures of the instruments were rejected. During the first week, States concerned that BBNJ may turn out too weak instrument provided a new proposal to strengthen the BBNJ instrument. The text now contains two brackets to “respect the competences of” and to promote “mutual support”, which would reflect the bidirectional relationship of the not-undermining issue (See MARIPOLDATA blog on the relationship with other instruments and organizations). The future of these brackets remains to be seen in week 2.

On another previously contentious issue – Art. 52 on funding – a road to compromise is visible. The stronger language “shall provide for” (own emphasis) has become acceptable to most States when the qualifier “in accordance with its national policies, priorities, plans and programmes” is added to the end of the sentence.

A completely new discussion started around the wording “indigenous peoples” which was capitalized (“Indigenous Peoples”) in the most recent draft text. A number of countries expressed their opposition to this change which for them represents more than a mere editorial drafting change. Countries in favor of the capitalization argued that capitalization followed a precedent and current UN practice in drafting official documents. The editorial capitalization was retained in the new draft text of February 25 but a small working group was set up to solve this issue throughout all provisions of this agreement.

The “fluffy beast” and other institutional arrangements

A very fluffy Beast. Photo: Pixabay

Discussions evolved around the details of an Implementation and Compliance Committee to ensure the effective operationalization of the treaty obligations. As pointed out during the discussions, such a committee will probably rather be a “fluffy beast”, with a non-adversarial and non-punitive character and no real legal sanction case of non-compliance. Still, it was agreed on the importance of such a committee to assist States in their implementation of treaty obligations and, thus, a key institutional arrangement for meeting the treaty’s objectives. Moreover, no consensus has been found on dispute settlement, keeping the divide between Parties and non-Parties to UNCLOS.

Another important institutional arrangement to meet the treaty’s objectives will be the Scientific and Technical Body (STB) and related questions about how scientific advice will flow into the implementation of the BBNJ treaty. While the provision on the STB in Art. 49 was agreed on fairly quickly, modalities and character of such a body remain to be developed by the COP at a later stage. In the specific parts of the agreement dealing with the future role of the STB, there was no easy compromise on the role of this body. Pending discussions include the role of the STB in consultations on and assessment of proposals for ABMTs/MPAs, some sort of oversight of the STB regarding decisions by Parties that screenings or EIAs will not be necessary, it’s involvement in the “call-in mechanism”, and consequential actions that would need to be required in response to the recommendations of the STB. Moreover, a potential role for the STB in assisting EIA processes of States with capacity constraints and in the conduct of further public consultation is being discussed. A potential role of the STB in reviewing, proposing rectifications to and publishing EIA (draft) reports is considered by Parties. Regarding decision-making on whether a planned activity can be carried out, the STB could play a role in reviewing EIA reports prior to authorization of an activity and review reports on the impacts of authorized activities to make recommendations on whether the activity should continue.

As regards the Conference of the Parties (COP), discussions have not been exhausted on whether the COP will take decisions by consensus or majority vote, and if so, which majority. Moreover, it was agreed that there should be regular meetings, however, how often and where such meetings will take place are still up for negotiation.

In negotiations on the Secretariat, Parties seem to agree on the need for a separate Secretariat apart from UNDOALOS. Which country may host a separate Secretariat is however still up to debate.

Compromising on the future Treaty

Now it will be crucial to see which topics can be agreed on and included in the legally-binding agreement – and which decisions will be left to the COP to decide in future meetings (which then will not be able to gain mandatory character without amendments to the agreement). The final text will need to be ready mid-week in order for the legal drafting committee to give the final touch and have it translated into all official UN languages in time for adoption before negotiators leave to return to their home countries. Reasons to hope for a successful conclusion of the agreement exist: The good work of the secretariat in providing a new comprehensive draft text is a major step. As promised by the president during the plenary on Friday morning, a new text was released “Saturday during daylight” for negotiators to continue bilateral meetings over the weekend.

References:

Georgiadou, Elena, Spyros Angelopoulos, and Helen Drake. 2020. “Big Data Analytics and International Negotiations: Sentiment Analysis of Brexit Negotiating Outcomes.” International Journal of Information Management 51: 102048.

Tessnow-von Wysocki, Ina., & Vadrot, Alice B. M. 2022. “Governing a Divided Ocean: The Transformative Power of Ecological Connectivity in the BBNJ negotiations”. Politics and governance, 10, 28. doi:10.17645/pag.v10i3.5428

Vadrot, Alice B.M. Langlet, Arne. Tessnow-von Wysocki, Ina. 2022. “Who owns marine biodiversity? Contesting the world order through the `common heritage of humankind´ principle”. Environmental Politics 31(2): 226-250

Watanabe, Kohei. 2021. “Latent Semantic Scaling: A Semisupervised Text Analysis Technique for New Domains and Languages.” Communication Methods and Measures 15 (2): 81–102. https://doi.org/10.1080/19312458.2020.1832976.

Watanabe, Kohei. 2023. “Introduction to LSX, the Package for Latent Semantic Scaling.” http://koheiw.github.io/LSX/articles/pkgdown/.

Life in the Ocean – a common heritage of the planet: Do we have a responsibility in the High Seas?

20. February 2023/in General /by Ina Tessnow-von Wysocki

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about marine biodiversity negotiations – more specifically, 1) the negotiations towards an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) and 2) the second part of 15^th Conference of the Parties (COP15.2) to the Convention on Biological Diversity (CBD). This blog post reflects on the ongoing BBNJ negotiations and the missing aspect of acknowledging the intrinsic value of nature – apart from economic considerations. It dives into the debate on our responsibility to protect the ocean for current, future generations and the planet as a whole and challenges policy-makers in the BBNJ negotiations to consider this aspect as underlying principle of the BBNJ agreement.

Source: Pixabay

Why of common concern…?

The MARIPOLDATA Team has explored the disagreements of States over the years regarding the Principle of “Common Heritage of Humankind” in international law (Vadrot, Langlet, & Tessnow-von Wysocki, 2021). Our research shows how the political discussions surrounding the principle play out in the ongoing negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. It highlights and explains the different rationales of States to support or reject the inclusion of the idea to ensure that living resources are a “common heritage of humankind”, implying the need for its conservation and sustainable use for the benefit of all humankind.

To put the principle into context, it helps to revisit where it is mentioned in the preamble of the United Nations Convention on the Law of the Sea:

“Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States “ (UNCLOS, Preamble)

The principle of common heritage of humankind has been used by developing countries to contest the current inequality gap between countries of the Global North and Global South; and it offers food for thought on how benefits can be fairly and equitably shared among humankind, rather than concentrating wealth in a handful of States. Yet, the principle has been strongly instrumentalised to serve solely financial considerations, rather than conservation aspects. The original objective of introducing the principle into international law was to “ensure that ocean’s plenitude continued to sustain present and future generations and that its uses contributed to peace, security, and the equitable development of peoples” (Taylor, 2019).

Nowadays, it is almost solely linked to the economic benefits of nature for humans and within the BBNJ negotiations almost exclusively mentioned in the section on marine genetic resources and access to and fair and equitable sharing of benefits deriving from them. A human-centric view on nature has been criticized previously in debates on the commonly-used term “ecosystem services” (Schröter et al., 2014) and alternative framings now include “nature’s contributions to people” within the context of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) and the Convention on Biological Diversity (Borie & Hulme, 2015). Taking the conservation angle to the common heritage principle would imply to only explore and exploit to an extent where it benefits all humankind – which in some cases would mean limited or no exploration and exploitation if greater benefit is achieved through preserving the marine environment.

While it is of course desirable to strive for the benefit of humankind, we should even go beyond humankind – and strive for the benefit of the planet as a whole. Scholars have already pointed to the need to phrase the concept more broadly to account for the intrinsic value of nature and the connection between humans and ecological systems, such as ‘common heritage of all life’ (Taylor, 2019). The human right to a clean, healthy, and sustainable environment is already recognized and addresses conservation and sustainable use for the benefit of humankind (UNGA, 2022). In BBNJ, some wording would now be needed that includes the consideration of humankind and extend it to rights of nature.

In the light of debates on “the rights of nature” (Harden-Davies et al., 2020), there is still room at the global level to engage with these ideas.

Is it all about the money..?

With the beginnings of the negotiations, research already pointed early to the lack of funding for conservation in ABNJ and suggested channelling monetary benefits arising from MGRs in ABNJ into a biodiversity fund (Tvedt & Jørem, 2013). Such a fund was envisaged to support conservation projects by state- and non-state actors on the one hand and foster “scientific research projects relating to the loss of marine biodiversity or understanding marine life and diversity” on the other hand (Tvedt & Jørem, 2013, p. 155, own emphasis). The current draft text includes a Financial mechanism (BBNJ draft, Art.52), which seeks to cover costs for the implementation of the agreement (conservation and sustainable use).

The objective of the BBNJ treaty is the “conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”. Yet, with efforts to balance conservation and sustainable use, to date, the actual balance of the two pillars in our ocean is merely mentioned. To equally balance conservation and sustainable use actions on the high seas, one needs to evaluate the current status of marine biodiversity.

Continuing with “business as usual” would include much sustainable (and quite some unsustainable) use of marine biodiversity in areas beyond national jurisdiction. Yet, the conservation aspect of marine biodiversity in ABNJ is currently shockingly low (Karan & Clark, 2020). There is definitely no equal balance between conservation and sustainable use in our ocean currently, with (sustainable) use activities overshadowing efforts for conservation. The BBNJ agreement now offers an opportunity to reverse this trend and introduce ocean conservation efforts.

Who decides…?

Because the ocean is a global common and does not fall under the jurisdiction of any state, it needs to be governed jointly by all. Ocean protection can therefore be regarded as everyone’s concern and responsibility. It would thus also imply that everyone has a voice when it comes to governing, protecting and using the global commons and that no unilateral decisions over these spaces are made. Ideas that go further than a participatory approach include voices for non-humans, such as the consideration of animal rights and the environment, to ensure that natural resources – especially outside of national boundaries – are not solely governed for the benefit of the human population. Critics might say, we should not take responsibility for the ocean, we should not seek to govern it. Yet, we can govern our own actions within the ocean to reverse and prevent further damage.

Considering the common heritage (of the planet) principle for the BBNJ agreement would require to regard biodiversity in areas beyond national jurisdiction as “belonging to all but owned by none” (Taylor, 2019). The principle subjects sovereign authority by individual nation states to limitations – or ecological responsibilities – to serve the interests and well-being of all (Taylor, 2019). Thus, when it comes to decisions over areas beyond national jurisdiction, there is a need for governance in a transparent and internationalized manner, including – besides states – also all other actors in the process.

Source: Pixabay

Moving towards living in harmony with the ocean

The Global Biodiversity framework is a recently adopted document under the Convention on Biological Diversity and recognises the need for living in harmony with nature, and for taking urgent actions towards “transformative change” (Convention on Biological Diversity, 2022; Díaz et al., 2020). It refers to an eco-centric way of seeing and regulating biodiversity – not for the benefit of humans alone, but rather acknowledging the interlinkage between humans and the ecological system as the basis for social, economic and financial models. The vision of the new Global Biodiversity Framework is ambitious: living in harmony with nature by 2050. It even includes references to eco-centric approaches and valuing nature for what it is, not for its economic benefit to humans. Why is it then that almost simultaneously to the adoption of this ambitious biodiversity framework under the Convention on Biological Diversity, the same States seem to prioritize economic prosperity and territory over protecting nature in international negotiations for the conservation and sustainable use of marine biodiversity beyond national jurisdiction? How is the GBF going to be implemented if not through legally-binding regulations on global, national and local levels? Would an emerging legally-binding marine biodiversity agreement not be the perfect opportunity to introduce such change and translate it into national laws?

The upcoming final round of negotiations provides the opportunity to draft a new legally-binding agreement for people and the planet as a whole, thus, the intrinsic value of nature going beyond economic considerations is crucial to be incorporated into the legal text. While at the time of the UNCLOS negotiations little was known about the threats to marine ecosystems and species, today it is clear that human activities can and are already affecting marine biodiversity.

Particularly towards the last days of negotiation, policy-makers need to call to mind that this agreement should not solely be about meeting individual States’ interests, but rather it is a global common treaty that needs to be representative of the planet as a whole. State delegates, thus, are now spokespersons not only for their country, ministry, political party, and constituency – but additionally for the ones that have no voice: future generations and ocean life. For the individual negotiator, this is a huge opportunity to finalise an agreement for the world. But at the same time, it bears a tremendous responsibility – the responsibility to protect this planet for current and future life on Earth.

Source: Pixabay

References

Borie, M., & Hulme, M. (2015). Framing global biodiversity: IPBES between mother earth and ecosystem services. Environmental Science & Policy, 54, 487-496. doi:https://doi.org/10.1016/j.envsci.2015.05.009

Kunming-Montreal Global Biodiversity Framework, (2022).

Díaz, S., Zafra-Calvo, N., Purvis, A., Verburg Peter, H., Obura, D., Leadley, P., . . . Zanne Amy, E. (2020). Set ambitious goals for biodiversity and sustainability. Science, 370(6515), 411-413. doi:10.1126/science.abe1530

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

Karan, L., & Clark, N. (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. Retrieved from https://www.pewtrusts.org/en/research-and-analysis/reports/2020/03/a-path-to-creating-the-first-generation-of-high-seas-protected-areas

Schröter, M., van der Zanden, E. H., van Oudenhoven, A. P. E., Remme, R. P., Serna-Chavez, H. M., de Groot, R. S., & Opdam, P. (2014). Ecosystem Services as a Contested Concept: a Synthesis of Critique and Counter-Arguments. Conservation Letters, 7(6), 514-523. doi:https://doi.org/10.1111/conl.12091

Taylor, P. (2019). The Common Heritage of Mankind: Expanding the Oceanic Circle. In (pp. 142-150). Leiden, Niederlande: Brill | Nijhoff.

Tvedt, M. W., & Jørem, A. E. (2013). Bioprospecting in the High Seas: Regulatory Options for Benefit Sharing. The Journal of World Intellectual Property, 16(3-4), 150-167. doi:10.1002/jwip.12010

UNGA. (2022). Resolution adopted by the General Assembly on 28 July 2022. 76/300. The human right to a clean, healthy and sustainable environment. Retrieved from https://digitallibrary.un.org/record/3983329?ln=en

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

Navigating the marine biodiversity regime complex – How will the BBNJ instrument interact with other organizations?

17. February 2023/in General /by MARIPOLDATA Team

By Arne Langlet and Simon Fellinger

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about marine biodiversity negotiations – more specifically, 1) the negotiations towards an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) and 2) the second part of 15^th Conference of the Parties (COP15.2) to the Convention on Biological Diversity (CBD). The recently published article “Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex” informs the BBNJ negotiations by untangling the regime complex of existing international organizations (IOs) that operate in the field of marine biodiversity. We show that up to 52 IOs are perceived as potentially relevant for BBNJ which means that negotiators should carefully formulate the “not undermining” Article 4 of the draft text to strengthen cooperation among IOs in the implementation of the BBNJ agreement. The dataset underlying this publication has recently been made publicly available.

Will BBNJ become a pilot boat for sustainable ocean governance? (Pilot boat guiding a sailboat, Photo by Philipp Straub)

What does article 4 of the current BBNJ treaty draft refer to?

The BBNJ Agreement is intended to complement and cooperate with other marine biodiversity-related agreements administered by several IOs such as treaty secretariats, intergovernmental organizations, and regional bodies. Art 4.2 of the draft text mandates that the ‘Agreement shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies’. The article “Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex” contributed to informing the negotiations by providing a list of IOs that have been associated to the BBNJ negotiations, addressing the “who” – or, more specifically, which IOs negotiators refer to when talking about “not undermining”. The observed multitude of IOs and their complex involvement in the negotiations have led scholars and delegates to describe the situation as a “regime complex”.

What are the effects of regime complexity?

Regime complexity, defined as ambiguity in international standards, inconsistent rules and obligations, and opportunities for “forum shopping,” poses a significant threat to the effectiveness of international cooperation. This is due to actors seeking to take advantage of legal incoherence and competition among international organizations (IOs) to select a negotiation forum that best serves their interests (Alter & Meunier, 2009; Gehring & Faude, 2013). Forum shopping can occur when IOs compete in response to regime complexity and can ultimately undermine the effectiveness of all involved regimes. (Henning & Pratt, 2020, p. 1).

While regime complexity has been shown to pose challenges to international cooperation, research has also revealed positive effects. Increased availability of resources (Kelley, 2009), expertise (Lesage and Van de Graaf, 2013), local knowledge (Yadav & Gjerde, 2020), improved flow of information (Pretty & Ward, 2001), diffusion of practices and management structures (Rosenkopf & Abrahamson, 1999), and increased resilience in times of crisis (Janssen et al., 2006) have been identified as potential benefits. However, these positive effects are dependent on the ability of IOs to engage in cooperation and support each other (Dai, 2002; Perez, Cohen & Schreiber 2019; Sofronova, Holley & Nagarajan, 2014). To maximize the positive effects of regime complexity, it is essential to foster cooperative relationships among IOs, rather than competitive ones. But it remains unclear what factors determine the character of cooperative relationships.

How to facilitate cooperative relationships?

The literature suggests that cooperation between IOs is facilitated by shared goals (Downie, 2021; Carlisle & Gruby, 2019) and a clear hierarchy (Henning & Pratt, 2020). In the case of the BBNJ agreement, the hierarchy is established by the predominant role of UNCLOS, which serves as a reference point for other regimes, including the ISA and the UNFSA. However, principles of environmental governance and conservation remained underdeveloped in UNCLOS, such as the requirements for environmental assessments or the duty to cooperate for the conservation of living resources in the high seas. The BBNJ agreement could specify such principles.

Differentiation, or clarifying differences in scope and tasks, have also been shown to support collaborative relationships and compliance in regime complexes (Henning & Pratt, 2020). In the context of the BBNJ agreement, clear differentiation of scope and tasks with other IOs, such as the FAO or CBD, could provide a basis for institutional cooperation. For example, the description of EBSAs from the CBD could be used to inform MPAs under BBNJ, or the FAO could benefit from clarifying the contribution of BBNJ to achieve the holistic and comprehensive conservation and sustainable use of all marine biodiversity species – including fish – in ABNJ.

Hence, the BBNJ instrument could become an important step to fulfilling UNCLOS’ vision as a ‘constitution of the ocean’ by providing overarching goals under which IOs cooperate with diverse mandates.

The case of RFMOs:

The risk that the current formulation of ‘not-undermining’ may be too wide is particularly present in relation to the exclusion of measures for fish. Observers have warned that if fish is excluded from the scope of BBNJ management in order not to undermine the mandate of FAO or RFMOs, fish may slip ‘through the governance net’, leaving many species that are fished or affected by fishing unregulated and unprotected (Crespo, 2019). Particularly for ABMTs/MPAs it is essential to involve FAO and relevant RFMOs in consultations for effective implementation of protective measures. From the RFMOs perspective, the spatial management provisions in the BBNJ Agreement could serve as a tool for RFMOs to achieve sustainable use objectives. From a BBNJ perspective, it could become a hub to increase engagement between IO secretariats, informed by a robust scientific and technical body. In order to promote cooperation and coordination, the BBNJ text should prioritize coherence and coordination over language on not undermining existing instruments. The International Union on (IUCN) has suggested revising the order of elements in Art 4 to reflect such prioritization.

The case of existing scientific and technical bodies:

The Intergovernmental Panel on Climate Change (IPCC) and the Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES) are two further bodies with which BBNJ will interact. The knowledge those bodies aggregate is closely connected to the marine biodiversity regime, as climate change and biodiversity loss are interlinked – on land and in the ocean. Including the expertise of those bodies may have helpful effects for the identification of MPAs, particularly at the beginning of implementation of the treaty, when the BBNJ institutions build their own expertise while many characteristics of the scientific and technical body will likely be defined by the COP in the future.

Further, to strengthen the role of the scientific and technical body that will be established through article 49 of the BBNJ instrument, drawing on existing knowledge practices and lessons learned from IPCC and IPBES should be taken into account (Borie et al., 2021). Both bodies have proven track records for independently aggregating diverse and complex knowledge from a large network of experts, and for communicating it to decision-makers, which will be a key task for the BBNJ scientific and technical body. Yet, this body needs to be designed for the specific context of marine biodiversity (Beck et al., 2014). Strong institutional links between IPCC, IPBES and the future BBNJ scientific and technical body can help to enhance the knowledge base for decision-making by ensuring exchange and steady flow of information (Pretty & Ward, 2001).

References:

Alter, K. J., & Meunier, S. (2009). The Politics of International Regime Complexity. Perspectives on Politics, 7(1), 13-24. doi:10.1017/s1537592709090033

Beck, S., Borie, M., Chilvers, J., Esguerra, A., Heubach, K., Hulme, M., Lidskog, R., Lövbrand, E., Marquard, E., Miller, C., Nadim, T., Neßhöver, C., Settele, J., Turnhout, E., Vasileiadou, E., & Görg, C. (2014). Towards a Reflexive Turn in the Governance of Global Environmental Expertise. The Cases of the IPCC and the IPBES. GAIA – Ecological Perspectives for Science and Society, 23(2), 80–87. https://doi.org/10.14512/gaia.23.2.4

Borie, M., Mahony, M., Obermeister, N., & Hulme, M. (2021). Knowing like a global expert organization: Comparative insights from the IPCC and IPBES. Global Environmental Change, 68(12), 102261. https://doi.org/10.1016/j.gloenvcha.2021.102261

Carlisle, K., & Gruby, R. L. (2019). Polycentric systems of governance: A theoretical model for the commons. Policy Studies Journal, 47(4), 927-952.

Crespo, G. O., Dunn, D. C., Gianni, M., Gjerde, K. M., Wright, G., & Halpin, P. N. (2019). High-seas fish biodiversity is slipping through the governance net. Nat Ecol Evol, 3(9), 1273-1276. doi:10.1038/s41559-019-0981-4

Dai, X. (2002). Information Systems in Treaty Regimes. World Politics, 54(4), 405-436. doi:10.1353/wp.2002.0013

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

Gehring, T., & Faude, B. (2013). The dynamics of regime complexes: Microfoundations and systemic effects. Global governance, 19(1), 119-130.

Henning, C. R., & Pratt, T. (2020). Hierarchy and differentiation in international regime complexes: A theoretical framework for comparative research. Unpublished manuscript.

Janssen, M., Bodin, Ö., Anderies, J. M., Elmqvist, T., Ernstson, H., Mcallister, R., R. J. , . . . Ryan, P. (2006). Toward a Network Perspective of the Study of Resilience in Social-Ecological Systems. Ecology and Society, 11(1), 1-20. doi:10.5751/ES-01462-110115

Kelley, J. (2009). The More the Merrier? The Effects of Having Multiple International Election Monitoring Organizations. Perspectives on Politics, 7(1), 59-64. doi:10.1017/S1537592709090094

Langlet, A., & Vadrot, A. B. M. (2023). Not ‘undermining’ who? Unpacking the emerging BBNJ regime complex. Marine Policy, 147, 105372. doi:https://doi.org/10.1016/j.marpol.2022.105372

Lesage, D., & van de Graaf, T. (2013). Thriving in complexity? the OECD system’s role in energy and taxation. Global governance, 19, 92.

Perez, O., Cohen, R., & Schreiber, N. (2019). Governance through Global Networks and Corporate Signaling. Regulation & Governance, 13(4), 447-469. doi:10.2139/ssrn.3265793

Pretty, J., & Ward, H. (2001). Social Capital and the Environment. World Development, 29(2), 209-227. doi:10.1016/S0305-750X(00)00098-X

Sofronova, E., Holley, C., & Nagarajan, V. (2014). Environmental Non-Governmental Organizations and Russian Environmental Governance: Accountability, Participation and Collaboration. Transnational Environmental Law, 3(2), 341-371. doi:10.1017/S2047102514000090

Rosenkopf, L., & Abrahamson, E. (1999). Modeling Reputational and Informational Influences in Threshold Models of Bandwagon Innovation Diffusion. Computational & Mathematical Organization Theory, 5(4), 361-384. doi:10.1023/A:1009620618662

Yadav, S. S., & Gjerde, K. M. (2020). The ocean, climate change and resilience: Making ocean areas beyond national jurisdiction more resilient to climate change and other anthropogenic activities. Marine Policy, 122, 104184. doi:https://doi.org/10.1016/j.marpol.2020.104184

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