Maripoldata Blog

Too High Hopes for a High Seas Treaty?

12. September 2022/in General /by MARIPOLDATA Team

By Ina Tessnow-von Wysocki, Arne Langlet, Klaudija Cremers (IDDRI), Paul Dunshirn, Silvia Ruiz Rodríguez and Alice Vadrot

Negotiations for a legally binding agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) have once more ended without conclusion of an Agreement. The process started in 2004 with the Ad-Hoc Open Ended Working Group and Preparatory Committee meetings and a United Nations General Assembly Resolution gave States the mandate to conclude negotiations by 2020 after four sessions. Due to the Covid-19 pandemic, the fourth conference was postponed and informal discussions were initiated in a virtual format^[1], enabling the exchange of views until earlier this year when the mandate was extended for a fifth session. The MARIPOLDATA Team attended the fifth – and supposedly final – conference and documented the key developments in the process. Even though States are now closer to an Agreement than ever before, it will be crucial to address outstanding issues in the inter-sessional period, to reach consensus at the upcoming session.

Source: Unsplash

Participants arrived in New York with great motivation to overcome the many remaining issues within the “package deal”[2] and to reach an agreement on the BBNJ instrument during the fifth Intergovernmental Conference (IGC5). There was hope that the highly ambitious statements made during the UN Ocean Conference 2022 could lead to a successful conclusion of the negotiations this year and introduce much needed legally binding regulations for High Seas governance in order to protect the ocean and use it sustainably, fairly and equitably among all nations. After a slow start into the first week[3], significant progress was made towards the end of week one, which raised hopes of negotiators and non-governmental organisations that the treaty could be completed during IGC 5. Even though States and regional groups showed more flexibility and submitted text proposals prior to and during the 2-week long conference, key issues in all package elements could not be resolved.

IGC5 was characterised by different negotiation formats, including plenary sessions (streamlined on UN Webcast), “informal informals” (open to registered observers) and “closed sessions” (accessible by state negotiators only). The MARIPOLDATA team collected data in both the plenary sessions and informal informals on-site during the in-person meetings and by participating virtually. Our collected data and a preliminary analysis thereof allow us to dive deeper into the dynamics of IGC 5, the discussed package items, and actor constellations.

The following graph portrays the distribution of speaking time that delegates spent negotiating the different package items (Marine Genetic Resources (MGRs), Area-based Management Tools (ABMTs)/ Marine Protected Areas (MPAs) and Capacity Building and the Transfer of Marine Technology (CBTMT)) in these two open negotiation formats, not including the closed sessions.

Graph 1: Total Speaking Time in BBNJ Negotiations IGC5 per topic, Source: Authors

The graph indicates that most negotiation time was spent on ABMTs/MPAs, followed by EIAs and crosscutting themes. MGRs and CBTMT on the other hand, were less discussed in the open formats. This overall distribution of speaking time on the different package elements observed in IGC5 stands in contrast to data from the previous IGC4 (see MARIPOLDATA Blogpost from March 2022), where MGRs & CBTMT were discussed more and negotiation time on AMBTs/MPAs and EIAs was comparatively lower. Our results show the different negotiation dynamics in IGC5: ABMTs/MPAs discussions took ¼ of the total negotiation time, as it was extended into the evenings multiple times in the need for further discussions. In the second week of negotiations, closed sessions were held for all package elements, which was particularly the case for the package elements MGRs and CBTMT – those the least discussed in the plenary and informal informals. Both package elements are deeply interconnected: CBTMT is largely dependent on the outcome of the discussions on the MGRs section as regards how much funding will be available for capacity building efforts. Besides awaiting agreement in the MGRs section, no significant disagreement was observed in the CBTMT part and thus, very little time was devoted to discussing CBTMT in Week 2. The MGRs chapter which may be key to unlocking the CBTMT chapter and which has arguably evolved the most during IGC5, was largely discussed behind closed doors and therefore shows up as the second least discussed item. As can be seen, little time was spent on opening and closing statements (roughly 4%) at this stage of the negotiation process to make time for negotiating text.

Turning Point in the Negotiations: Closer to an Agreement than ever before

Despite falling short of an agreement, delegates emphasised that this fifth session has been the most productive. Progress could be seen in each of the package elements and also on cross-cutting issues, where near consensus was reached on several issues that had been impossible to resolve since the beginning of the negotiations. More flexibility from the side of negotiators, some of whom communicated their “red-lines” for the first time and thereby clarified the room for compromise, as well as creative legal drafting made this huge step towards the finish line possible:

On marine genetic resources (MGRs), States were able to break the deadlock between proponents of monetary vs. non-monetary benefit-sharing. Some common ground was found around the idea of decoupling access and benefit-sharing, so as to allow for monetary benefit-sharing (based on ‘flat fee’ contributions from MGR user countries) without requiring an extensive monitoring system or access barriers to scientific databases. Agreement was found in discussions about the notification mechanism for pre- and post-cruise reports and the uploading of datasets, and substantial progress was made on non-monetary benefit-sharing.

On area-based management tools (ABMTs), including marine protected areas (MPAs), agreement was reached on the preparation and review of proposals, and important parts of the decision-making provision. Moreover, a provision on emergency measures was added, to ensure timely reaction to natural disasters and activities that are (or risk to be) harmful to the marine environment.

On environmental impact assessments (EIAs), the lengthy debates on the inclusion of cumulative impacts and strategic environmental assessments (SEAs) in the text seem to be settled (but without definitions or details) and creative drafting managed to resolve the issue on whether to refer to “planned” or “proposed” activities. General agreement was also on the need for inclusiveness and transparency of EIA reports.

On capacity building and transfer of marine technology (CBTMT), States agreed on the establishment of a CB&TT committee, and monitoring and review provisions to ensure more CBTMT takes place.

On cross-cutting issues, progress was made on compliance, dispute settlement, general principles, and international cooperation. Key definitions were also discussed and general consensus was found on terms to be used, such as ABMTs, MPAs and EIAs, while others were deleted, including SEAs and “activity under state jurisdiction and control”. Moreover, negotiators managed to streamline the text significantly.

Plenary Room at the United Nations Headquarters, New York. Source: Author

Swirls of disagreement – why there was still no consensus

While major steps towards compromise were taken, key issues are still outstanding, some of which date back until the beginnings of the discussions and can have significant implications for the implementation of the new agreement. It will be important to consider these points for reflection and exchange in this intersessional period until the next conference to find compromises during the final session.

Regarding MGRs, the envisioned decoupling of access and benefit-sharing requires further deliberation on several aspects. If negotiators were to pursue this path, they need to agree on how high ‘flat fee’ contributions should be. Another issue that remained underspecified in the latest draft version is in how far the definition of MGRs or their utilisation should include digital sequence data, where many delegates referred to the (still) ongoing negotiations to define digital sequence information (DSI) in the context of the Convention on Biological Diversity (CBD) negotiations for a new Global Biodiversity Framework. How the potential outcomes of the CBD discussions relate to the working of the Access and Benefit Sharing (ABS) mechanism in the BBNJ agreement remain unclear. For the BBNJ negotiations, the idea of the decoupled approach sets forth that access to genetic sequence databases would not be restricted as part of non-monetary benefit sharing, and that monetary benefit sharing occurs independently of the utilisation of data. Having this in mind may motivate negotiators to become more flexible on the exact wording of the MGR definition. This discussion also relates to the question of intellectual property rights, where some States stick to their position that monetary benefits should include patent royalties. Substantial parts of the CBTMT chapter depend on the outcome of these discussions, which should be continued as soon as possible.

Regarding ABMTs/MPAs, initial discussions about conflicting terminologies that date back to previous international negotiations, such as the divide between the use of “precautionary principle” and “precautionary approach”, as well as the problematic discussion on “not undermining” came up again shortly before the treaty was supposed to be finalised and adopted. Several “closed sessions” that could only be attended by State delegates and were not accessible to observers, proved to be helpful to advance on reaching consensus and exploring solutions to settle main disagreements. Another unresolved question includes the possibility for “opt-outs” in the ABMTs/MPAs section, which would allow State Parties to decide on a case-by-case basis whether or not they commit to comply with the regulations of a certain ABMT or MPA established under the BBNJ instrument. While this may lead to a higher number of signatories to the treaty, it significantly puts at jeopardy the level of ambition and hence the effectiveness of the agreement in protecting the marine environment.

In the EIA section, significant progressive streamlining and “cleaning of the text” was done on the final day of the negotiations, which again raised the hope that States would be able to reach a compromise to get the final agreed treaty text. Unfortunately, however, many States needed to reserve their positions and “check with capital”, which could be understandable considering the time differences of various countries, but could also have been a negotiation strategy to delay progress.

Moreover, the two very contrasting views on decision-making in the EIA process did not resolve into a compromise. Developing countries tended to prefer a more internationalised process with decision-making not being a sole competency of the state that proposes the activity, whereas developed states held a strong position for a state-led EIA process. The same divide occurred between proponents of an impacts-based and location/activity-based approach, whereby the former emphasises the need to take into account the impacts on ABNJ, whereas the latter focuses solely on activities undertaken in ABNJ. Proposals included voluntary impacts-based approaches and additional references to the United Nations Convention on the Law of the Sea (UNCLOS), which already contains obligations relevant to EIAs (UNCLOS Art. 192; 194.2).

UNCLOS Art 192: States have the obligation to protect and preserve the marine environment.

UNCLOS Art 194.2: States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

The idea for a call-in mechanism, which could be useful to address concerns of EIAs of convenience was discussed to enable States to “call in” in cases where they challenge a State’s decision to authorise activities in ABNJ due to an arguably acceptable level of impact on the marine environment. However, consensus on the practicalities and decision-making in this regard was not reached. The opportunity for BBNJ bodies to provide guidance on EIAs was welcomed, however, States are still divided on whether the EIA section should include legally binding global standards or voluntary guidelines. Finally, but not least importantly, discussions on the threshold for conducting EIAs are still in deadlock over the two proposed thresholds from previous sessions[4].

In CBTMT, the details of the special fund for CBTMT under the BBNJ instrument are directly linked to the outcomes of the MGR chapter and therefore remain unresolved. While most States see the value of establishing a non-exhaustive and open list of types of CBTMT, divergence remains about its placement in the text and the role of the COP in updating it. Some countries want it enshrined in the Treaty for a legally-binding character, others warn about the inflexibility of such a list and prefer to task the COP with the creation of recommendations in this regard. Moreover, States still need to agree if a CBTMT review mechanism is needed or whether this task can be fulfilled by another subsidiary body such as the Clearing-house Mechanism or the Scientific and Technical Body.

Another open question is in relation to the new BBNJ Secretariat. Options are on the table for it to be created new, or attached to an existing body, such as UNDOALOS. To address concerns of overburdening of UNCLOS to take on additional BBNJ issues and that the creation of a new secretariat would lead to delays in implementation, one idea is to have UNCLOS serving as an interim Secretariat until preparation for a new one can be guaranteed.

Decision-making is envisaged by individual States under their sovereignty, however, as ABNJ constitute a global commons, the Conference of the Parties (COP) will play an important role for international questions. In several package elements, the role of the COP is still to be elaborated on, such as in the case of the establishment of ABMTs, including MPAs, and the EIA process. Whether or not COP decisions should be based on consensus or – if consensus cannot be achieved – should also allow for majority voting, delegates seemed to favour a 2/3 majority vote.

The role of the Scientific and Technical Body (STB) is to be negotiated still in each of the package elements. Regarding ABMTs, including MPAs, States envisaged a role for the STB for making and assessing proposals for ABMTs/MPAs, in the stage of identification of areas, and for monitoring and review. Concerning EIAs, some States see an important role for the STB to review EIA reports. Emerging consensus points towards an advisory – as opposed to a decision-making – role for the STB.

On the provision of general principles and approaches, a main disagreement emerged regarding whether or not to include the common heritage of humankind principle, as demanded by many developing countries in the final days of the negotiations, stirring up a divide that dates back to the early UNCLOS negotiations^[5].

Civil society actors advocate outside the UN building for the urgency of a global ocean treaty. Source: Authors

Setting Sail for the next Conference Session

In their closing statements, State Parties and civil society expressed their disappointment about the failure to finalise the agreement within the “deadline”, but the atmosphere in the room was hopeful for a successful adoption at the next session. While delegates emphasised the importance of finalising the treaty to tackle biodiversity loss in the High Seas, many States also mentioned the treaty could contribute to more equity and bridging the gap between developed and developing countries. Indeed, achieving an agreement that balances the different – and often competing – interests between the global North and South will be one of the most difficult tasks to fulfill.

Negotiators will meet once again for the resumed session of IGC5, “committing to the future generations that we get this done” (Namibia, on behalf of the African group). Negotiation time will be again limited when negotiators reconvene for the resumed IGC5 in New York presumably in March 2023. For a completion of the treaty, it will be crucial to address those issues that keep dividing governments from the global North and South, especially related to EIAs (international vs. state-driven) and details on monetary benefit sharing of MGRs. While some issues may have to be discussed bilaterally before the next session, it will in addition be important to set up a drafting committee overseeing progress made on the text throughout the next session, and finally, to draft a resolution for the next steps for the United Nations General Assembly.

Even if governments will conclude and adopt the BBNJ treaty at the next session, we need to bear in mind that this is only the first step towards comprehensive and long-term conservation and sustainable use of marine biodiversity. Negotiators should keep in mind that the signature, adoption and ratification process can take several years. In the case of UNCLOS, it took 12 years to reach the 60 ratifications that were required for the entry into force of the treaty; for the UN Fish Stocks Agreement^[6] the necessary 30 ratifications were attained in 6 years. Preparatory work on institutional, financing, capacity and decision-making aspects on the sidelines of the upcoming session will be crucial to ensure rapid implementation of the treaty to benefit marine biodiversity as well as present and future generations.

^[1] (Vadrot et al., 2021):https://doi.org/10.1162/glep_a_00605

[2] See a summary of the MARIPOLDATA Ocean Seminar on BBNJ prior to IGC5 with Prof. Joanna Mossop on the prospects of the conference and outstanding issues: https://www.maripoldata.eu/newsevents/#igc5seminar

[3] MARIPOLDATA Blog on the First week of IGC5: https://www.maripoldata.eu/finalizing-an-ocean-treaty-drowning-in-detail-or-sailing-towards-compromise/

[4] https://www.maripoldata.eu/assessing-the-humans-footprint-on-ocean-biodiversity/

^[5] (Vadrot et al., 2022): https://doi.org/10.1080/09644016.2021.1911442

^[6] https://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm

Finalizing an Ocean Treaty: Drowning in detail or sailing towards compromise?

22. August 2022/in General /by MARIPOLDATA Team

By Arne Langlet, Ina Tessnow-von Wysocki, Paul Dunshirn, Silvia Ruiz Rodríguez, Daria Sander and Alice Vadrot

After nearly two decades of negotiating a new legally binding agreement to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction (BBNJ treaty), Parties to the United Nations hope to finalize the treaty text during IGC-5 in New York. The MARIPOLDATA Team is following the discussions closely. At the halftime of the negotiations, we provide an overview of the issues discussed – and the outstanding elements that are still to be negotiated in the coming week.

The negotiation room; Source: Author

The first week of negotiations was filled with a diverse agenda, going through all issues in the four elements of the package – marine genetic resources (MGRs), area-based management tools including marine protected areas (ABMTs/MPAs), environmental impact assessments (EIAs), capacity building and transfer of marine technology (CBTMT). Whereas the discussion in the first week was largely driven by re-structuring provisions, some important substantive conflicts need to be solved in week two. To finalize an ambitious and future-proof treaty, states should address the institutional set-up of the BBNJ Agreement to create a few but strong and effective institutions that have the capacities and mandate to monitor and review compliance across package items.

MGRs – will restructuring be enough?

On day one of the fifth Intergovernmental Conference (IGC 5), negotiators dived right into one of the most difficult topics of the BBNJ negotiations: MGRs, including questions on the sharing of benefits. Articles 10, 11, 11bis and 13 of the draft text were addressed during the first week. Negotiators approached commonly acceptable solutions by streamlining and rearranging elements of the above-mentioned articles with regards to the modalities for notification of cruises and benefit-sharing. It is by now accepted by all delegations to have pre and post cruise notifications, as well as a notification to the clearing-house mechanism (CHM) when the relevant data has been uploaded to an open access database. By looking at notifications and benefit sharing separately, common ground could be found regarding the chronology of notifications. In regards to benefit-sharing, the many and intense informal informal sessions on MGRs largely reproduced the conflicts that observers know from previous IGCs on whether to include mandatory monetary benefit-sharing and how closely MGR utilization should be monitored. By the end of week one large part of the chapter had become re-structured and acceptable to most, leaving the big issue of the types of benefit sharing to week two. Although some delegations that previously had strictly rejected any sort of monetary benefit sharing indicated to consider this as long as it would be decoupled from tracking utilization and commercialization.

This work in re-structuring and the new flexibility in positions opened many discussions on monetary benefit sharing in the corridors. The idea that monetary benefit sharing can become a reality in the form of a de-coupled/flat rate/flat fee/upfront payment gained traction among delegations from many different alliances. This approach was recently developed by the ‘DSI scientific network’ for similar discussions in the context of the Convention of Biological Diversity and appeals to very opposing interests. It would require developed countries to pay a flat fee/upfront payment on a regular basis, which would in turn allow scientists/universities and companies to freely access and utilize MGRs without having to notify each step of the MGR development/research to the CHM. This has benefits for 1) developing countries, which would be able to receive guaranteed monetary benefit for capacity building from day one of the entry into force of the treaty and for 2) developed countries, which would be able to guarantee their researchers and companies the free engagement with MGR research. The amount of benefit sharing developing countries receive could be weighted by how much genetic sequence data they contribute to openly accessible databases, creating incentives to fill existing biodiversity knowledge gaps in their own regions.

Sketch of potential MGR part containing monetary benefit-sharing from a decoupled flat fee. Source: Author

ABMTs/MPAs

Throughout week one of the IGC5, negotiations about ABMTs/MPAs have been slowly advancing on a few issues. Parties agreed on including a separate article on objectives into this part on ABMTs/MPAs, however, there was a desire to further streamline the text and details will need to be negotiated in the coming discussions. Broad agreement, even though no consensus, was found on the need for an inclusive consultation process and value for time frames for consultations to avoid delays in the establishment of ABMTs/MPAs. Discussions later in the week included the idea to add a provision to respond to emergencies with temporary measures into the ABMTs/MPA part. Key issues, however, about the purpose of such tools and the responsible body for establishing them, were postponed to the second week.

What is the purpose of ABMTs/MPAs?

Last week discussions about the definitions of ABMTs and MPAs continued, including whether such definitions are required to be set in the treaty. While some states want to differentiate between conservation and sustainable use objectives, others prefer not to draw such a clear line, or even avoid a definition altogether. While discussions still continue, the direction seems to steer towards a slight difference between the definition of ABMTs: 1) to have conservation and sustainable use objectives- and of MPAs 2) to have the primary objective of conservation but still allow sustainable use elements.

Another relevant discussion was postponed for the second week: The relationship between the future BBNJ Agreement and already existing regional and sectoral frameworks and bodies. Existing bodies and frameworks have shown to be insufficient for a holistic marine biodiversity governance in areas beyond national jurisdiction (ABNJ) (Gjerde, 2019). While the mandate of the BBNJ agreement would close these gaps of fragmented ocean governance and provide the global and holistic answer to biodiversity loss, it does need to recognize and fit into the existing biodiversity regime complex. In this regard, discussions from previous IGCs on the effective interplay and definition of complementarity continued, as well as fears that the BBNJ Agreement would introduce a hierarchy among existing frameworks and bodies and undermine their mandates. Large fishing states preferred to leave the establishment of ABMTs/MPAs to existing bodies that manage activities in ABNJ, such as Regional Fisheries Management Organizations (RFMOs). It was suggested in case of issues that fall outside of their mandate to get together and discuss the establishment of separate new bodies to take on these tasks. A large number of states disagreed with this suggestion by emphasizing the need for the BBNJ agreement to take a holistic approach to marine biodiversity governance in order to close these gaps.

The following days need to give time for discussions on how the BBNJ agreement will not undermine the work of existing bodies and frameworks, while still fulfilling its own mandate: the conservation and sustainable use of marine biodiversity in ABNJ. As the Swiss delegate reminded everyone in the room that “the high seas negotiators seem to act as there is us and then the ifbs [relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies]. Those are the same countries […] They are different instruments but in the end there are the same countries.”

Going into the second week it is now important to call into minds the necessity to differentiate between ABMTs and MPAs in order to ensure sustainable use through various different tools (ABMTs), while enabling marine conservation (MPAs) (Johnson et al., 2018). In light of the obligation under UNCLOS to protect and preserve the marine environment, it is urgent to acknowledge the need to use marine resources sustainably in the global ocean and allow for certain areas to be conserved that require protection. While a number of States emphasize their rights (freedom of the high seas) for ocean use, it is important to also consider obiligations (to protect and preserve the marine ebnvironment), particulalry when considering the current unequal proportion of human use and conservation of the high seas (https://www.pewtrusts.org/en/research-and-analysis/reports/2020/03/a-path-to-creating-the-first-generation-of-high-seas-protected-areas).

Another key question will be how States agree on the responsible body to implement ABMTs, including MPAs and how the new BBNJ agreement could fit into the existing ocean governance cooperatively while ensuring increased conservation and sustainable use measures. In these discussions, the possibility of “opt-out” provisions were preferred by a few States with the argument to achieve a higher participation of Parties, which would, however, also lead to a lower level of ambition and could enable States to commit to conservation and sustainable use only when convenient for them. The second week of negotiations will show whether States can agree on common definitions of these measures and their purpose to achieve the objective of the overall treaty: conservation and sustainable use of marine biodiversity.

Assessing human impacts on the High Seas

Discussions about the EIAs part advanced at the end of the first week. Many proposals, including cross-regional, were introduced by a number of States and flexibility was shown to discuss and include them. There is a general agreement that firstly, Strategic Environmental Assessments (SEAs) are valuable and secondly, cumulative impacts need to be taken into account. The question on whether or not SEAs should be mandatory or voluntary is still up for debate. Further discussions surrounded the types of impacts that are supposed to be addressed and the question to include or exclude other impacts besides environmental ones.One key question remains: – but this discussion was probably intentionally avoided by the facilitator until the second week – whether the agreement should look at a location-based or effects-based approach. This question has divided the international community since the beginning of the BBNJ negotiations but is a major point of interpretation: is the purpose of the BBNJ agreement the conservation and sustainable use of marine biodiversity in ABNJ or is it the establishment of measures to regulate activities in ABNJ for the conservation and sustainable use of marine biodiversity in ABNJ? One approach would look only at what happens in the high seas and regulate accordingly. The other is more holistic and would include the regulation of activities with IMPACTS on marine biodiversity, regardless of where these activities take place. There is currently no consensus on this point. The EU has introduced a proposed text that would enable states to undertake EIAs of activities with potential harmful effects on ABNJ but which are undertaken in areas within national jurisdiction with the voluntary option to do so.

Another point of discussion that is highly contested is the question of the possibility of BBNJ setting global standards or guidelines/guidance. Some States show reluctance to mandatory global standards for EIAs and emphasize the responsibility of States proposing new activities to conduct their own EIAs (up to their own standards which might be high or low depending on the national contexts). Further, those States have a strong preference to not only conduct the EIA themselves, but also to evaluate them and decide whether or not their proposed activities can take place on the high seas. This point of decision-making is the most contested, as a number of States and regional groups oppose the idea of a purely state-led procedure of EIAs. In their view, there would need to be some sort of global check for harmful activities that will be undertaken in areas beyond national jurisdiction. There has been a compromise option on the table, introduced by CARICOM and PSIDIS at the end of IGC3 that is debated in current discussions. The idea is to have a mixture of state-led and international oversight to accommodate both sides.

Ina Tessnow-von Wysocki and Arne Langlet in front of the UN building in New York City where the negotiations take place. Source: Author

CBTMT – what is the right amount of detail?

In the chapter on capacity building and transfer of marine technology (CBTMT), the disagreements about the strength of language that characterized IGC 4 continued during the first week of IGC 5. The “usual” difference between the preferences of 1) developed countries to formulate “shall promote” and 2) developing countries to have “shall ensure” for stronger and more certain language in Art 44.1. has not been overcome so far.

Moreover, developing countries generally prefer the inclusion of detailed language and developed countries prefer to leave details out and potentially move this to the upcoming (Conference of the Parties (COP(s)). Ironically, both sides claim that their approach would future-proof this instrument.

This difference could also be observed in discussions about whether to include a detailed list of types of CBTMT in Art 46 and/or the annex. Whereas the fear that a lack of detail means a lack of implementation is understandable, the fact that updating a list that is treaty language (in annex or main body) would require some countries to always re-ratify the treaty when the language changes:a detailed list that should be updated cannot be the solution. The answer may lie in mandating the relevant BBNJ institution(s) to establish and update a list.

While all states agree that CBTMT efforts shall regularly be monitored and reviewed, it remains unclear who/which body should undertake this. Should it be carried out by the COP, a working group or a committee? In general, developed countries prefer to mandate the COP to monitor and review CBTMT, whereas developing countries prefer to establish an extra committee for such purpose. This discussion can be placed in two different broader visions on this treaty: while many developed states prefer a “slim” version of the BBNJ agreement with only a few bodies, developing countries prefer to establish a number of bodies that would monitor and review implementation of CBTMT, update a list of types of CBTMT and monitor benefit sharing of MGRs.

In any case, it seems to be agreeable to all states that the COP shall be the decision-making instance. Aggregating the monitoring and review powers in one body, the discussions on whether to establish a new body does not have to be repeated in each meeting about the individual package elements but can maybe be driven forward for the treaty as a whole. Although there are different package elements, it is one common treaty and monitoring and review of implementation should be done on an equal footing for the treaty as a whole.

Crosscutting Issues

Secretariat

Under the crosscutting chapters, the negotiators addressed crucial provisions for the effective implementation of the BBNJ agreement. Among these were questions on the secretariat. UNDOALOS had distributed an estimate of the personnel and resources needed if UNDOALOS were to be mandated with the BBNJ secretariat. Many delegates expressed their concern that the estimate for the required financial and human resources may have been too conservative to fully address the complete spectrum of activities that the secretariat is to administer. Representatives of UNDOALOS were in the room to openly answer questions on the practicalities of making UNDOALOS the BBNJ Treaty secretariat. One important issue was raised concerning the budget of the future secretariat. States discussed that, as UNDOALOS is financed through the UN regular budget, it could be difficult to ringfence extra budget for BBNJ tasks and all UN member states, whether BBNJ party or not, would be involved in negotiations over UNDOALOS’ budget. This means that on the one hand, non-parties to BBNJ could exert influence over the finances for a treaty they are not part of and on the other, that non-parties would have to contribute financially to the secretariat of a treaty they are not part of. This needs to be considered even though many strong arguments for making UNDOALOS the Treaty’s secretariat were highlighted such as: its location in the UN headquarters in New York, its established working relations with other bodies and most importantly its large experience in dealing with ocean matters.

Funding

According to State’s requests during previous IGCs, a representative from the Global Environmental Facility (GEF) was present in the room during negotiations over the funding chapter. The representative was able to contribute to practical questions on the funds that shall be used to finance activities under the BBNJ Treaty. On the one hand, developing countries urged the need to specify between institutional and non-institutional funding and required the establishment of a special fund under Art 52.3b that is to be used for financing capacity building activities. On the other hand, developed countries warned against a potential doubling of funds. It was also warned that being too prescriptive may prevent the GEF financing BBNJ activities because it could not become subordinate to the BBNJ instrument. However, the GEF representative was able to alleviate these concerns as it was made clear that the GEF could work under strict guidance and authority by the COP and also next to other existing funds.

Scientific and technical body

Under article 49.2 of the draft text, states discussed the composition of the scientific and technical body. Negotiators aimed to find the most precise and inclusive terms to create a scientific and technical body that represents all appropriate expertise and regions of the world. Proposals were made to delete the word “scientific” or add the term “technical” and/or “suitable” in relation to qualifications necessary for the scientific and technical body. The role of the STB was discussed in more detail in the parts of ABMTs/MPAs and EIAs for advice and decision-making. Overall agreement was seen on the advisory function of the STB in both sections, but leaving details open as regards to the extent to which the future body will be involved in the identification of ABMTs/MPAs, the process for EIAs, setting standards/guidelines and review of reports.

COP

Finally, the procedures and decision-making rules of the COP are part of the most important issues for an effective implementation of the BBNJ agreement . In the past, this topic divided States into those that wanted exclusively consensus-based decision-making and those that argued for a majority-based system when consensus could be reached. Although a few states still insist that all decisions must be made by consensus, most states have by now accepted that the instrument needs to be able to find a way forward when consensus cannot be reached. While all states clearly strive for consensus decision-making, lessons from other international institutions have shown that if only consensus decision-making is possible, individual states can easily block the implementation of COP decisions. Another important decision must be made in regards to the interim procedures while the BBNJ institutions are not set up yet and the COP has not met. Agreement largely emerged to use the rules of procedure of the UN General Assembly until the COP has decided on its own rules of procedure and to use UNDOALOS until a dedicated BBNJ secretariat has been established (or UNDOALOS remains secretariat). Hence, agreement on some important steps preparing for successful implementation seem tangible within a short time.

Graph – most discussed articles per package item:

The graph shows the three articles in which states made the most statements per package item. We see that articles that are in direct relation to future BBNJ institutions tended to be the most discussed in each package item. This includes: COP and Funding (crosscutting); Monitoring and review (CBTMT); Relationships to other EIA processes and Review (EIA); Decision-making and Monitoring and review (ABMTs/MPAs) and Collection of MGRs. Therefore, we highlight the importance to clarify the institutional structure and competences for a successful finalization of the Treaty and welcome the plan by President Rena Lee to host a special session on institutional issues later this week. (please note that in the EIA Chapter, negotiators tended to address many articles in one statement which decreased the overall number of interventions).

Conclusion – equipping the BBNJ with strong and flexible institutions:

At this stage of the negotiation process, states and their representatives have to make some consequential decisions on what to focus on during the remaining 5 days. In all of the 5 package elements, some important steps towards compromise were taken: the potential for monetary benefit sharing in MGRs; agreement on the overall process for establishing ABMTs/MPAs; the inclusion of strategic environmental assessments; the need to regularly review CBTMT efforts; and majority based decision-making possibilities in the COP. However, in all of the package elements some key issues also remain unresolved – in many cases regarding the powers of the future bodies of the instrument. In general, the establishment and composition of bodies under the BBNJ agreement touches upon all the individual provisions in the substantive parts and is arguably one of the deciding factors to whether the agreement will be able to improve the situation in our ocean. Many different bodies have been proposed at some point (COP, secretariat, scientific and technical body, clearing-house mechanism, access and benefit sharing mechanism, CBTMT committee, implementation/compliance committee, special fund) and some states warn against a proliferation of bodies under the new agreement. Indeed, the establishment of up to 8 specialized BBNJ bodies may seem exaggerated. A way forward here could be to tackle these discussions perhaps more broadly, independently of the package element, and perhaps to establish an overall monitoring and review body (as the proposed compliance committee) which works across all package items. Another option could be to give the scientific and technical body or clearing-house mechanism extensive powers to monitor and review elements of treaty implementation on their own initiative. In any case, this means equipping the body at hand with substantial (financial and human) resources and powers to independently and on its own initiative monitor and review the implementation across topics. If the Treaty is to be finished by the end of next week, negotiators may find it useful to rationalize resources to negotiate fewer but stronger bodies instead of getting stuck in the details of substantive provisions. In the end, the ability of the BBNJ bodies to make decisions, monitor implementation and act when needed will make the treaty not only ambitious but also future-proof – and, maybe most importantly, help finalize the treaty.

A good start into the second week was that the secretariat very punctually presented a revised draft text by Sunday afternoon so that negotiations could start from a fresh base on Monday morning.

‘We are the Ocean’ (Miguel de Serpa Soares, UNDOALOS) – Will highly ambitious statements from the UN Ocean Conference 2022 translate into a highly ambitious BBNJ treaty?

21. July 2022/in General /by MARIPOLDATA Team

UN Ocean Conference 2022 Blog – IDDRI & MARIPOLDATA

By: Paul Dunshirn, Arne Langlet, Klaudija Cremers

Miguel de Serpa Soares delivering the final remarks of the UN Oceans Conference 2022. Source: own image.

From June 27th to July 1st, the governments of Portugal and Kenya hosted the second UN Oceans Conference (UNOC 2022) in Lisbon.

The conference’s objective was to gather momentum and resources to implement Sustainable Development Goal 14 – ‘Life under Water’ (SDG 14). Its self-proclaimed focus was the role of science and innovation in understanding and counteracting the main threats to ocean ecosystems, and in making ocean-based economic activities sustainable. After a week packed with high-level presentations, panels, and dialogues, delegates unanimously adopted the Lisbon Declaration under the motto ‘Our ocean, our future, our responsibility’.

An estimated 6000 people attended the conference, including 24 heads of state and over 2000 stakeholders from civil society. After a two-year hiatus due to the Covid-19 pandemic, the entire global ocean community welcomed the opportunity to come together and discuss current issues related to sustainable ocean governance. Some of the most debated topics included: a proposed moratorium on deep seabed mining which received support by a coalition of States led by Fiji and Samoa (and gained additional momentum through Emmanuel Macron’s call for a corresponding legal framework); the need for increased financing for ocean sustainability (UN Secretary-General António Guterres highlighted that SDG 14 remains the least funded SDG); opportunities and challenges to build blue economies and blue carbon ecosystems for climate change mitigation; and commitments to embark on negotiations for a legally binding treaty to reduce plastic pollution. Also part of the agenda were the on-going negotiations on an international legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ negotiations).

Because UNOC 2022 took place only a few weeks before the next negotiation session of the BBNJ negotiations in New York from 15-26 August, it was an important opportunity for stakeholders to discuss the key remaining issues that still need to be addressed in the sidelines of the Conference. The BBNJ instrument – or often times called ‘High Seas Treaty’ – is the central instrument through which UN member States aim to address the declining health of the high seas and its biodiversity, as well as the lack of a comprehensive legal framework for these areas (which constitute no less than ~94% of the world’s ocean volume). The future treaty will have a significant impact on most of the topics that were discussed during UNOC 2022.

French think tank IDDRI and ERC research project MARIPOLDATA attended UNOC 2022 with a special eye for the BBNJ-related events and activities. This blogpost summarises our impressions and discusses implications for the BBNJ IGC-5 in August 2022, keeping a critical view on the concrete proposals and commitments made in Lisbon.

It was particularly noteworthy that member States of the so-called ‘High Ambition Coalition’ were very vocal in promoting and showcasing their position during UNOC 2022. This coalition of States aims for a highly ambitious BBNJ treaty to be concluded in August 2022. In considering the substantive issues at stake, we argue that high ambition statements need to translate into effective legal provisions for the future treaty. This means:

A clear and easy-to-use legal framework for marine genetic resources, which is crucial to further developing ‘blue economies’.
BBNJ bodies with firm decision-making powers on environmental impact assessments and on area-based management tools, such as marine protected areas.
Reliable language in the treaty text to ensure capacity building and technology transfer for developing countries according to the commitments made during UNOC 2022.

‘We want blue economy!’ But what about marine genetic resources?

‘Blue economy’ as a theme was high on the agenda during UNOC 2022. This was expressed during several events and was interpreted to include a wide range of ocean-related economic activities with sustainability focus, including fishing, aquaculture, tourism, up-cycling of waste, or biotechnological applications. While some events focused on the promises of blue innovation, a lot of emphasis was laid on the question of how to achieve more equitable opportunities for countries to participate and profit from these activities (see this report for a discussion on ocean inequities and their significance to blue economy initiatives).

To us as BBNJ researchers, it was notable that many biotechnological applications based on marine genetic resources were presented to promote the blue economy concept, yet with very little consideration of implicated governance issues. While UNOC 2022 was not the place to overcome the persistent divides on accessibility to and benefits derived from marine genetic resources as seen during the BBNJ negotiations, it is important to note that the continued development of many such economic activities requires clear and functional legal frameworks, not least in international waters. This is, however, far from reality at present. In considering the current lack of such a framework for marine genetic resources during a side event on BBNJ, the German Minister for the Environment Steffi Lemke described the situation as ‘similar to the wild west’, pointing to the urgency of the High Ambition Coalition to finalise the BBNJ treaty by August 2022.

The momentum that emerged during UNOC 2022 is indeed needed to overcome the remaining issues in the BBNJ negotiations – marine genetic resources being the most challenging element left on the table. MARIPOLDATA made a graph that visualises positions of various States on the treaty elements as based on their statements during IGC-4 (see graph ‘BBNJ IGC-4 positions’). As the graph shows, members of the High Ambition Coalition want to limit regulation to the ‘collection’ of genetic materials while leaving later uses of genetic sequence data (‘access’ to genetic resources) untouched. This essentially means that commercial activities that follow up on basic research and intellectual property rights will remain outside the treaty. Other countries and groups (particularly developing countries) emphasised the need to cover both collection and access, as well as to share both monetary and non-monetary benefits derived from marine genetic resources.

Graph: ‘BBNJ IGC-4 positions’ (Colours according to whether states showed support (green), opposition (red) or flexibility (yellow); see interactive version; see Appendix for the underlying methodology).

What we heard from different sources in the sidelines of UNOC 2022 is that there is currently a lack of concrete ideas to help States overcome their differences in their positions on marine genetic resources in the BBNJ context. In this regard, the recent proposal made by the DSI Scientific Network in the Nagoya Protocol context, which includes a decoupling of access and benefit-sharing, combined with a ‘flat-rate’ biodiversity use fee resulting from the commercialization of genetic resources (see also this interview), is relevant. Instead of introducing bureaucratic burdens on scientists or closing open-access databases, this approach constitutes an alternative solution designed to overcome persistent divides, also for the BBNJ context. Finding a practical solution for marine genetic resources that is applicable in both the BBNJ and the Convention of Biological Diversity context would have additional advantages in terms of reducing institutional complexity.

Looking forward to IGC-5, we are confident that States can draw on these and other expert voices to find a solution that promotes the equitable and sustainable use of genetic resources while also setting a clear regulatory framework for the continued conduct of research in areas beyond national jurisdiction.

Anchoring the ambitious commitments on capacity building and transfer of marine technology in the BBNJ treaty

Participants at UNOC 2022 often viewed the implementation of SDG 14 as critically dependent on the involvement of the entire global community of States, and emphasised that this has to be based on a fair distribution of marine research and benefits from blue economies. Hence, the importance of sharing knowledge, training, data and technologies was not addressed during a number of side events, but also in an interactive dialogue on June 28th. UNOC 2022 participants also witnessed the launch of a declaration by the Alliance of Small Island States (AOSIS) on the enhancement of marine scientific knowledge, research capacity and transfer of technology (CBTMT in BBNJ terms). During this session, marine biologist Dr. Diva Amon made the important remark that the human capacity to research and understand marine ecosystems already exists in many parts of the world, but that the technological equipment to benefit from these capacities is often still lacking. While human-centred training programmes remain important, the transfer of up-to-date marine technologies may become more central in the future. Existing training programmes also need to be improved in light of various forms of discrimation that scientists from developing countries currently have to face in this process.

Many States used the stage UNOC 2022 to emphasise the crucial role of CBTMT for the sustainable use of the ocean and made voluntary commitments in this regard. However, when looking at the graph ‘BBNJ IGC-4 positions’, we see that many States of the High Ambition Coalition were unwilling to accept language that creates legal obligations (‘shall ensure’) in the CBTMT Chapter, and instead preferred to remain vague. We hope that the ambitious commitments on CBTMT voiced during the conference can translate into negotiation positions for BBNJ IGC-5, taking the needs of developing countries seriously and addressing them as concretely as possible.

Deep seabed mining moratorium and the return of the precautionary principle

Deep seabed mining was arguably the most controversial topic during UNOC 2022. As the International Seabed Authority currently prepares for the potential adoption of a mining code during its next council and assembly meetings at the end of July/beginning of August, the governments of Palau, Samoa, Fiji, Guam and 57 parliamentarians from around the world used the stage of UNOC 2022 to announce a global call for a moratorium on deep seabed mining. This call follows a long-standing demand from various States, researchers and civil society organisations to halt deep seabed mining until its environmental impact is better understood. Interestingly, French president Emmanuel Macron also called for a legal framework to ban deep seabed mining during his visit at the conference, adding momentum to the initiative.

At the core of the argument against deep seabed mining is the so-called precautionary principle (see also IUCN’s call for a moratorium), which entails that decision-makers avoid authorising human activities as long as there is not sufficient knowledge about the potential environmental impact of these activities (see IISD definition). This principle has hovered around international environmental treaty-making since the 1992 Rio declaration. During the BBNJ negotiations, it has caused continuous disagreement between those States that want to see it included in the process of identifying marine protected areas, and others that favour the weaker ‘precautionary approach’ (or the ‘application of precaution’, as formulated in the draft from May 2022; see also the MARIPOLDATA Blog on this issue).

The publicly voiced support for the moratorium from the highest political levels thus indicates some momentum for a return to the precautionary principle. During the BBNJ negotiations, we see that many States, that are part of the High Ambition Coalition and have adopted critical stances against deep seabed mining, actually oppose the inclusion of this principle in the area-based management tools chapter (ABMT chapter; see graph ‘BBNJ IGC-4 positions’). If highly ambitious States consider this principle important enough to use it to prevent potentially damaging activities in the seabed, it may be worth also including it in the governance of biodiversity in the water column. While the support of many States and other stakeholders for the 30×30 target on defining (marine) protected areas is an important and welcome step, the adopted legal principles behind these areas also need to be sufficiently ambitious in order to accomplish a treaty that warrants the label of being ‘highly ambitious’.

Ensuring a strong mandate for BBNJ decision-making bodies

The High Ambition Coalition, aims to ‘secure a strong international legal framework, based on science, setting additional legal obligations and environmental tools for effective action’ (Declaration High Ambition Coalition). Its declaration addresses the question of how strong the future institutions of the BBNJ agreement should be. The answer of the ‘highly ambitious’ is: strong. Similarly, the final declaration of UNOC 2022 recognizes the importance of ‘strong governance’ tools for achieving ocean sustainability. As several State representatives from the High Ambition Coalition indicated in Lisbon, the BBNJ conference of parties (COP) should have the mandate to define and implement marine protected areas. At the same time, open questions about decision-making powers remain for other treaty elements. For example, the mandate of the BBNJ COP can still be strengthened in relation to environmental impact assessments.

As MARIPOLDATA’s research from IGC-4 shows (see graph ‘BBNJ IGC-4 positions’), States of the High Ambition Coalition opposed or neglected a cross-regional proposal from CARICOM & PSIDS that aimed to find a compromise while giving the BBNJ COP important competences to critically review activities that endanger the environment. If the High Ambition Coalition wants to change the status quo of unsustainable ocean governance, as German Minister for the Environment Steffi Lemke stated in Lisbon, the coalition members should give the BBNJ COP the mandate and sufficient competencies to review, and, if necessary, prevent harmful activities.

Establishing an effective implementation and compliance committee

In order for the BBNJ treaty to change the status quo of (the lack of) regulation for high seas marine biodiversity and serve as a solid framework to conserve and sustainably use marine biodiversity, it will need to be implemented effectively and States will have to comply with its regulations. Ensuring compliance with international agreements on the high seas is challenging. Therefore, sessions at UNOC 2022 addressed the need to foster institutional partnerships, for example to better control illegal, unreported and unregulated (IUU) fishing.

Effective implementation and compliance of the law of the sea was also an important issue at BBNJ IGC-4, where a cross-regional proposal by CLAM and PSIDS to establish an implementation and compliance committee was welcomed by many delegations. In this case, the graph on BBNJ positions shows how most countries, and specifically those from the High Ambition Coalition supported this proposal. This should encourage negotiators to continue drafting an effective implementation and compliance committee for the BBNJ instrument.

Moving towards BBNJ IGC-5

Even though the BBNJ agreement is often portrayed as the main instrument to ‘better balance the conservation and sustainable use of marine resources’, advancing discussions on it was not at the centre stage at UNOC 2022. Nonetheless, the events and informal exchanges held in Lisbon have the potential to contribute significantly to the successful conclusion of a strong BBNJ instrument.

Both members and non-members of the High Ambition Coalition still have substantial ground to cover to achieve a truly ambitious BBNJ treaty. High ambition cannot be limited to the fast conclusion of the negotiations, but should be reflected in the substance of the agreement. In the case of marine genetic resources, we pointed to a recent proposal by the DSI Scientific Network for a flat-rate approach to benefit sharing that could help overcome the existing divides in the negotiation. Finding a workable solution that establishes legal clarity and contributes to more equitable participation will be crucial for current and future genetic resource users to engage in ocean-related science. The BBNJ treaty has many implications for the ‘blue economy’ in this regard.

In regards to area-based management tools, the bodies of the BBNJ instrument should not only have a mandate to establish marine protected areas but also to develop and oversee implementation and management plans. Only if given such competences, the BBNJ instrument can make a real difference in protecting sensitive ocean areas. It is similarly important to give the COP of the BBNJ instrument powers to critically deliberate on environmental impact assessments. Finally, if all future parties to the treaty concur that CBTMT is a key element of ocean governance, anchoring concrete CBTMT obligations in the treaty text can help to cement financial predictability and thus gather support among developing countries. Having said that, we are confidently looking towards IGC-5 and the conclusion of this highly important treaty for sustainable and equitable ocean governance.

Systematic data collection by MARIPOLDATA researchers during UNOC 2022. Source: own image.

Appendix: Graph on BBNJ positions

The graph shows the detailed positions of States and alliances on individual provisions of the BBNJ treaty draft text during IGC-4. Due to the prevailing Chatham House rules, we cannot name the individual States but categorise States and alliances either as members of the High Ambition Coalition or as ‘other’. The data was collected by the MARIPOLDATA project during IGC-4, where we traced whether States voiced their support (green), opposition (red) or showed flexibility (yellow) towards some of the key provisions of the BBNJ agreement. The displayed provisions correspond to articles in the revised draft text of November 2019. As we discuss in this blog post, we consider these provisions as crucial to an assessment on how ambitious the BBNJ treaty will actually turn out to be.

Maripoldata Blog

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Finalizing an Ocean Treaty: Drowning in detail or sailing towards compromise?

‘We are the Ocean’ (Miguel de Serpa Soares, UNDOALOS) – Will highly ambitious statements from the UN Ocean Conference 2022 translate into a highly ambitious BBNJ treaty?

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