Maripoldata Blog

My experience as an intern at MARIPOLDATA – “Science is more than just physics and mathematics”

6. July 2022/in General /by MARIPOLDATA Team

By Anook Garden

Anook Garden is a 16-year-old student at a Viennese school and stayed with the MARIPOLDATA team for a one-week-long internship in June 2022. In this blog entry, she reflects on her time spent in the project and writes about her experiences, impressions, and learnings.

I heard about MARIPOLDATA through a teacher at my school and decided it was the perfect place to do my internship. I love science and find politics and intergovernmental discussions fascinating, and MARIPOLDATA relates to those subjects. Although I must admit I wasn’t too excited going in, the various subjects and work involved was enticing once I started.

The people working here are very welcoming and uplifting, encouraging you to work to the best of your abilities, and helping you when you’re stuck. You don’t feel as if you spent hours working by the end of the day, because each task done feels rewarding and like an accomplishment. The MARIPOLDATA team works together to produce the best work while maintaining a healthy work environment, where you get along with the people you work with. Lunches and coffee breaks are often spent together which allows the team to get to know each other better and create better work relationships.

After meeting most of the team members here at MARIPOLDATA, I spent the first day understanding the coding and technical part behind the final product. Cleanly putting together the useful ethnographic data acquired to then write reports and texts. I observed one of the previous sessions of an international conference for a new treaty and put the information I collected into an Excel spreadsheet called “Matrix”, to then learn how R studio works and do a bit of coding using my spreadsheet.

On the second day, I attended a 3-hour long conference online in real-time which was part of the working group meeting on the Post-2020 Global Biodiversity Framework of the Convention on Biological Diversity (CBD). Here I learned how the ethnographic data is collected and put into the “Matrix”. I also learned about the structure of a scientific article, and read one published by MARIPOLDATA named: “Who owns marine biodiversity? Contesting the world order through the `common heritage of mankind ́ principle.” Then I answered some questions given to me about the topic at hand.

I spent the third day transcribing an oral history interview with a marine scientist and then learning about how information about other scientists is collected and charted (using “Matrix”). This is done by immersing oneself into the scientists’ work to have a clear understanding of what they do (by reading their reports and looking at their project website and by meeting and interviewing them, which is when the prior knowledge becomes useful). By the end, MARIPOLDATA will have enough information collected to compare three cases: US, France/Eu, Brazil.

I started off the fourth day by reading a team member’s blog article called “An ocean of possibilities: Marine Biodiversity in the Post-2020 Global Biodiversity Framework”, which helped me to understand the action-oriented targets in the framework to be achieved by 2030 in order to be on track for the 2050 goals. It explains the points argued and discussed by states during the conference in Geneva in March 2022. I then read an article on Multilateralism, Science, and the protection of the ocean (“Multilateralismus, Wissenschaft und der Schutz der Ozeane”). We finished the day by having a team meeting where we talked about what we did during the week. One team member, a student assistant, presented the research synopsis of her master’s thesis, which focuses on introducing Indigenous knowledge in the BBNJ negotiations.

Friday, the last day of my internship was spent writing this blog for the MARIPOLDATA website, and attending a university class at Vienna University about International environmental politics as a research object and career path.
Going into this internship I had the impression that it was entirely centered around biology. It was however much less focused on natural sciences than I had foreseen and instead groups several specialties and subjects together making a research group. These subjects include coding, politics/diplomacy (e.g. global environmental and international politics, science and environmental policies, international ocean protection, multilateral diplomacy, international relations, political ecology …), biology (e.g. biodiversity, bio marine life, socioecology, marine genetics …), and finance.

I thoroughly enjoyed my internship here as well as the welcoming work environment, and hope to, in the future, work in similar conditions. This experience has truly opened my eyes to the wide range of possibilities that exist in terms of what my future entails and was a reminder that science is more than just physics and mathematics. All in all, this was an experience I will always remember and carry with me. Wanting to make the best of this experience I worked hard and was pleasantly surprised with the outcome. I learned a lot, thanks to the amazing team that welcomed me and showed me the ropes.

An Ocean of Possibilities: Marine Biodiversity in the Post-2020 Global Biodiversity Framework

10. June 2022/in General /by Silvia Ruiz

The Post-2020 Global Biodiversity Framework (GBF) is an “ambitious plan” (first draft GBF, Annex, para. 1) to ensure that “biodiversity is used sustainably in order to meet people’s needs” (first draft GBF, Annex, para. 6). The framework has 21 action-oriented targets that should be achieved by 2030 in order to reach the four long-term goals for 2050 and it should be adopted by the 15^th Conference of the Parties (COP) of the Convention on Biological Diversity (CBD).

States have negotiated the GBF in the corresponding Open-Ended Working Group (WG2020), which held its first and second meetings in person in 2019 and 2020, and its third meeting in two parts: an online part in 2021 and a hybrid part in 2022. In this blog post, we focus on marine issues discussed in the second part of the third meeting (WG2020-3), which we attended in person and online at the same time.

Inside the venue: CICG – The International Conference Center Geneva. Source: own image/ethnographic data

Hybrid meetings and the study thereof

The meetings of the second part of the WG2020-3 were hybrid: state delegates could give statements and text proposals on-site or online, as well as support or contest interventions of other states and NGOs online in real time if they had to isolate for 5 days because their daily COVID test was positive. This was also the case of delegations that could not attend the meetings in person due to travel restrictions or that could attend some meetings in person and others online.

In case the daily COVID test of a non-state actor was positive, the corresponding delegate could observe the negotiations in real time through the digital platform used by the CBD (Interactio) but could not provide statements. Non-state actor’s participation in hybrid meetings was then meaningful if they were on-site to provide statements and lobby. In sum, hybrid meetings turned negotiations into a more participatory process for states but not for non-state actors.

Two team members observed the meetings on-site and online simultaneously to study marine governance in practice (see Campbell et al., 2014; Vadrot et al., 2021). As registered observers, we had access to the face-to-face meetings and the online platform where these were live-streamed. This enabled us to observe the proceedings in real time both in Geneva and from home (Vienna).

Our seat in the WG2020-3. Source: own image/ethnographic data

Marine Issues in the Post-2020 Global Biodiversity Framework

Marine issues in general are part of the long-term goals for 2050 and of targets 1-9, 11, 12, and 18-20. In this blog post, however, we focus on the discussions related to marine conservation and sustainable use: We address goals A and B, as well as targets 1-8.

Goals A and B: ecosystems and cultural values

Goal A aims to achieve the conservation of ecosystems, species and genetic diversity. States of the Global North and South supported to enhance the connectivity and integrity of all ecosystems (Argentina, Australia, Costa Rica, Egypt, Perú, South Africa, UK). However, Colombia and the EU supported to enhance ‘managed ecosystems’ as well, which are ecosystems altered and overseen by humans (Antle & Capalbo, 2002) like those embedded in aquaculture. A possible explanation for this proposal lies on that incorporating managed ecosystems would facilitate states’ compliance with the GBF as they could focus on conserving economically exploited ecosystems, such as fisheries. Additionally, Costa Rica and Egypt proposed to include marine ecosystems. This might be due to that the CBD has historically focused on terrestrial biodiversity, leaving marine issues aside as exemplified by the short time allocated to marine discussions in the second part of the 24^th meeting of the Subsidiary Body on Scientific, Technic and Technological Advice of the CBD (ENB, 2022).

Aquaculture pond. Source: https://www.flickr.com/photos/theworldfishcenter/8491852388

Goal B pursues to achieve the sustainable use of biodiversity. Disagreements in these discussions focused on whether to include cultural values attached to nature by keeping the concept of ‘nature’s contributions to people,’ which considers cultural values, or replacing it with ‘ecosystem services,’ which fails to consider cultural values attached to nature.

States supporting the recognition of such values included Australia, Bolivia, Japan, Namibia, New Zealand, Norway, Palestine, and Saint Lucia. All of these states have Indigenous People and Local Communities (see Cobb, 2020; FAO, 2020; Harden-Davies et al., 2020; IWGIA, 2022; Mulalap et al., 2020; Murray, 1996; Nursey-Bray & Jacobson, 2014). States avoiding the recognition of cultural values attached to nature included China, Costa Rica, Ecuador, EU, Iran, Mexico, the Russian Federation, and Switzerland. This might be due to that states pursue to protect economic interests. In the spirit of compromise, Chile proposed to add “nature’s contributions to people, including ecosystem services,” enabling the accommodation of diverging interests.

Scope of targets 1 and 3

States did not seem to agree on whether targets 1 and 3 would apply to both national and international waters. Target 1 aims to ensure that states implement management plans for human activities in land and sea areas; and target 3 pursues to guarantee that at least 30% of land and sea areas are conserved through terrestrial or marine protected areas by 2030.

With regards to target 1, the United Kingdom (UK), for instance, indicated that the target would apply to both national and international waters, while Brazil highlighted that the target would only apply to 50% of national waters. Regarding target 3, the UK and Turkey indicated that the target would apply to both national and international waters, while Brazil highlighted that the target would only apply to national waters.

On the one hand, recognizing that the CBD can regulate activities in international waters would facilitate states’ compliance with both targets. States could protect less than 30% of their national waters if the targets apply to international waters as well, enabling continuous fishing in over 70% of national waters. On the other hand, limiting the scope of the targets to national waters would limit the influence of the GBF in the ongoing negotiations for an agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, where states discuss the implementation of marine protected areas (MPAs).

Map of national and international waters. National waters are white and international waters are colored blue. Source: https://commons.wikimedia.org/wiki/File:Internationalwaters.png

Type of spatial measure in target 3

State actors from the Global North (Canada, EU) and Global South (Argentina, Armenia, Jordan, Philippines, South Africa, and Turkey) supported the inclusion of MPAs and other effective area-based conservation measures (OECMs), which aim at the long-term in situ conservation of ecosystems while also safeguarding socioeconomic activities (CBD COP dec. 14.8, para. 2). Namibia, for its part, opposed the inclusion of OECMs as these could undermine the target. This might be due to the protection of socioeconomic activities in OECMs.

Global map of MPAs. Source: https://commons.wikimedia.org/wiki/File:GlobalMPAs_logo_2020.jpg

What species should we protect under targets 4, 5 and 6?

While target 4 focuses on the recovery and conservation of species, states failed to agree on what specific species the target would address. India proposed to focus on “wild species,” Gabon on “threatened species,” and Jordan on “wild and threatened species.” A potential explanation for these differing preferences might lie in the capacities of these states to ensure the recovery and conservation of threatened species by 2030. According to the website Animalia, Gabon and Jordan have 37 and 31 threatened species respectively (Animalia, n.d.a; n.d.b), while India has 280 (Animalia, n.d.c).

Leatherback sea turtle: one of the threatened species in Gabon according to Animalia. Source: https://commons.wikimedia.org/wiki/File:Leatherback_Sea_Turtle_%2817665415746%29.jpg

Ecuador and Indigenous Peoples and Local Communities proposed to focus on “wild and domesticated species”; while Brazil, Colombia and Korea preferred to focus on “native species and domesticated species.” A focus on wild species might enable state and non-state actors to perform practices for recovering and conserving all animals. A focus on native species would enable state actors to avoid protecting wild and alien species, such as particular species of fish. In other words, both preferences represent opportunities for states to avoid incurring in obligations that firstly, they cannot fulfil due to lack of capacity or secondly, they are not willing to fulfil due to economic interests.

The sustainable harvesting, trade and use of wild species, however, is addressed in target 5. Argentina, Australia, Canada and New Zealand proposed to include fisheries and coastal and marine biodiversity in this target, while the EU opposed the inclusion of marine species. As explained above, the need to refer to marine biodiversity explicitly might be due to that the CBD has focused on terrestrial biodiversity mainly. A potential explanation for the EU’s behavior might be that its member states have different positions with regards to including marine species in target 5, in which case a reference to wild species in general would accommodate the diverging interests inside the EU.

Jordan, Sri Lanka and Sudan proposed to include “wild species harvesting,” “capture breeding” and “wildlife trade” in target 5. These activities constitute established economic practices in these countries. A focus on sustainable wildlife business would support their economies and simultaneously help achieve this target. Additionally, New Zealand and Fiji proposed to refer to “all species.” This might be due to that a broader focus would give states the possibility to accommodate their interests by enabling them to determine on their own what species they will manage sustainably.

Container with eels – a wild species. Source: https://www.rawpixel.com/search/eel?page=1&sort=curated

Similar to targets 4 and 5, states failed to agree on what species they would manage under target 6. On the one hand, the EU and UK proposed that this target tackled “alien species” in general, instead of “invasive alien species.” Invasive alien species are “species that are introduced, accidentally or intentionally, outside of their natural geographic range and that become problematic” (IUCN, n.d.) as they are “one of the main drivers of biodiversity loss, due to their ability to disperse and cause negative effects on native species and the environment” (NOBANIS, 2015, p. 7). The elimination of the word “invasive” could derive in the interpretation of alien species as those species that are foreign to a particular ecosystem and do not contribute to biodiversity loss. Such interpretation would enable the EU and UK to implement policies that fail to differentiate between the invasive and non-invasive character of alien species.

On the other hand, Colombia indicated that the target could focus on “species with high invasive potential” and South Africa proposed to concentrate on “harmful species.” Such species classifications would enable countries to determine on their own what species they would manage, according to their interests and capabilities.

Lionfish: Invasive alien species in the Atlantic and Caribbean according to the World Resources Institute (n.d.). Source: https://commons.wikimedia.org/wiki/File:Red_lionfish_near_Gilli_Banta_Island.JPG

Furthermore, India proposed to add freshwater and marine species to this target. Aquatic ecosystems in India have the highest number of invasive alien species compared to other ecosystems according to a publication of the Indian Centre for Biodiversity Policy and Law (Sandilyan et al., 2019). A potential explanation of India’s proposal could be that the country might be implementing policies to manage aquatic invasive alien species. Thus, India might be trying to export national policies to the international level, facilitating its own compliance with target 6.

Numeric figures

Goal A and targets 2, 3, 6, 7, and 8 contained numeric figures over which states provided divergent views. In general, Global North actors supported the use of numeric elements in order to measure progress towards the targets; while Global South actors opposed numeric components arguing that they could not measure progress in those terms. The discussions about target 6 exemplify this divide. Global North actors (EU, Israel, Norway, and UK) preferred to reduce the introduction and establishment of invasive alien species “by at least 50 percent”; while Global South actors (Argentina, Bolivia, Brazil, Colombia, Gabon, and United Arab Emirates) preferred to delete this numeric figure.

Chinese mitten crab (Eriocheir sinensis): Invasive alien species in the European Union according to the European Commission (2021). Source: https://commons.wikimedia.org/wiki/File:Zoo_K%C3%B6ln_Eriocheir_sinensis_31122014_1_bis.jpg

As an alternative, Argentina, Dominican Republic, Guatemala, and Korea proposed to replace the percentage with “significantly decrease.” This qualitative evaluation of progress towards the target could accommodate diverging preferences by enabling states to measure progress on their own terms. It also implies that states can decide how much they can achieve, independently of whether this effectively increases the well-being of ecosystems.

Discussions about target 3 provide another example of diverging views with regards to numeric figures. States provided wide support for protecting 30% of land and ocean by 2030 through spatial measures due to the scientific evidence presented by the High Ambition Coalition. States supporting this numeric figure included Armenia, Canada, Colombia, Costa Rica, Egypt, India, Namibia, and Perú. Other countries, such as Cameroon, Paraguay and South Africa supported a qualitative assessment of their contributions to achieving target 3, while Turkey and Jordan opposed the numeric figure. A possible explanation for such a qualitative assessment or opposition to the numeric figure might lie in that these countries pursued to avoid being overburdened with the costs of environmental protection as they might lack the capacities to achieve the target by 2030.

What concepts should we apply in target 8?

States debated about what concepts to include in target 8: ‘ecosystem-based approach’ or ‘nature-based solutions’. On the one hand, ‘ecosystem-based approach’ lacks a definition provided by a legally-binding instrument (Kirkfeldt, 2019, p. 2). According to a technical report of the CBD (2016), ‘ecosystem-based approach’ is the use of biodiversity and nature as part of adaptation strategies to climate change. On the other hand, ‘nature-based solutions’ was recently defined by a resolution of the United Nations Environment Assembly (UNEA) as the protection and sustainable use terrestrial and aquatic ecosystems, which “address social, economic and environmental challenges effectively and adaptively, while simultaneously providing human well-being, ecosystem services, resilience and biodiversity benefits” (UNEP/EA.5/Res. 5, para. 1).

Brazil, Ecuador, and India supported the inclusion of the ‘ecosystem-based approach,’ which might be due to that its non-binding definition enables states to apply it on their own terms to facilitate their own compliance, for instance, by including aquaculture as an adaptation measure.

A wide range of Global North and South state actors (Australia, Colombia, Costa Rica, EU, Ghana, Indonesia, Korea, Mexico, New Zealand, Norway, Sri Lanka, and United Arab Emirates) supported the reference to ‘nature-based solutions.’ Although the resolution that defines this concept is most likely not legally-binding, it represents the general opinion of the highest United Nations (UN) body on environmental issues (UNEP, n.d.; see UN, 2022) and therefore has ‘more weight’ than a concept defined in a technical report, such as ‘ecosystem-based approach’. This ‘weight’ could explain the wide support provided for including ‘nature-based solutions’ in target 8.

Another potential explanation could be that ‘nature-based solutions’ is flexible enough for states to accommodate their diverging interests and facilitate compliance. Additionally, the concept is consistent with the 2030 Agenda for Sustainable Development, which the GBF is supposed to complement and support (first draft GBF, Annex, para. 8).

What is left for the fourth meeting of the WG2020 in Nairobi?

Delegates will face one main challenge across the whole GBF discussions: work together in the spirit of compromise in order to reach consensus on the goals and targets. This implies that states must be willing to reshape their preferences so that there is a general agreement on the obligations they will incur to conserve and sustainably use biodiversity. Core issues include the measurement towards progress, the level of ambition, and the different economic and technological capacities of states, as well as alternative understandings of biodiversity, among others.

In how far would the GBF protect nature if it is not ambitious enough? Or how would the GBF protect nature if it is so ambitious that states cannot comply with it? Delegates in Nairobi have the opportunity to shape our engagement with nature for a better future for both terrestrial and marine biodiversity. The world is in their hands.

Walk to the United Nations Office in Nairobi. Source: https://commons.wikimedia.org/wiki/File:UN_Headquarters,_Nairobi.JPG

References

Antle, J.M., Capalbo, S.M. (2002). Agriculture as a Managed Ecosystem: Implications for Econometric Analysis of Production Risk. In: Just, R.E., Pope, R.D. (eds) A Comprehensive Assessment of the Role of Risk in U.S. Agriculture. Natural Resource Management and Policy, vol 23 (pp. 243-263). Springer. https://doi.org/10.1007/978-1-4757-3583-3_12

Animalia. (n.d.a). Threatened Species of Gabon. https://animalia.bio/lists/country/threatened-species-of-gabon?page=1.

Animalia. (n.d.b). Threatened Species of Jordan. https://animalia.bio/lists/country/threatened-species-of-jordan?page=1

Animalia. (n.d.c). Threatened Species of India. https://animalia.bio/lists/country/threatened-species-of-india?page=1.

Campbell, L. M., Corson, C., Gray, N. J., MacDonald, K. I., & Brosius, J. P. (2014). Studying global environmental meetings to understand global environmental governance: Collaborative event ethnography at the tenth conference of the parties to the convention on biological diversity. Global Environmental Politics, 14(3), 1-20.

CBD Dec. 14.8, Protected areas and other effective area-based conservation measures (Nov. 30, 2018).

CBD. (2021). First Draft of the Post-2020 Global Biodiversity Framework. (CBD/WG2020/3/3). https://www.cbd.int/doc/c/914a/eca3/24ad42235033f031badf61b1/wg2020-03-03-en.pdf

Cobb, E. (2020). Japan’s forgotten indigenous people. BBC. https://www.bbc.com/travel/article/20200519-japans-forgotten-indigenous-people

Convention on Biological Diversity, Jun. 5, 1992, 1760 U.N.T.S. 79.

ENB. (2022). Geneva Biodiversity Conference Highlights: Friday, 25 March 2022. International Institute for Sustainable Development. https://enb.iisd.org/sites/default/files/2022-03/enb09771e.pdf

European Commission (2021). Report from the Commission to the European Parliament and the Council on the Review of the Application of Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the Prevention and Management of the Introduction and Spread of Invasive Alien Species. European Union. https://ec.europa.eu/environment/pdf/nature/invasive_alien_species_implementation_report.pdf

FAO. (2020). WECAFC Fishery Resources Report 2020. Saint Lucia Flyingfish fishery. FIRMS Reports. In: Fisheries and Resources Monitoring System (FIRMS) [online]. Updated [Cited 31 May 2022]. http://firms.fao.org/firms/fishery/906/en

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

IUCN. (n.d.). Invasive Alien Species. Retrieved June 3, 2022, from https://www.iucn.org/regions/europe/our-work/biodiversity-conservation/invasive-alien-species?msclkid=28bac60cd0f211ec8246d9df83c67bdd.

IWGIA. (2022). The Indigenous World 2022 (M. Dwayne, Hrsg.; 36th Aufl.).

Kirkfeldt, T. S. (2019). An ocean of concepts: Why choosing between ecosystem-based management, ecosystem-based approach and ecosystem approach makes a difference. Marine Policy, 106, 103541. https://doi.org/10.1016/j.marpol.2019.103541

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

Murray, P. A. (1996). The fisheries of St. Lucia, West Indies. NAGA, 19(1), 41–44.

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

NOBANIS. (2015). Invasive Alien Species: Pathway Analysis and Horizon Scanning for Countries in Northern Europe. TemaNord 2015:517.

Sandilyan, S., Meenakumari, B., Babu, C. R., & Mandal, R. (2019). Invasive Alien Species of india. National Biodiversity Authority, Chennai. http://nbaindia.org/cebpol/pub/iaslist.pdf

(2022, March 23). Are UN resolutions binding?. Dag Hammarskjöld Library. https://ask.un.org/faq/15010

UNEP. (n.d). About the United Nations Environment Assembly. https://www.unep.org/environmentassembly/about-united-nations-environment-assembly#:~:text=The%20United%20Nations%20Environment%20Assembly%20was%20created%20in,on%20Sustainable%20Development%2C%20also%20referred%20to%20as%20RIO%2B20.

UNEP. Environmental Assembly. Res. 5, Nature-based solutions for supporting sustainable development (Mar. 2, 2022).

Vadrot, A. B. M. Langlet, A., Tessnow-von Wysocki, I. (2021a). Who owns marine biodiversity? Contesting the world order through the `common heritage of humankind´ principle. Environmental Politics, 31(2), 226-250. https://doi.org/10.1080/09644016.2021.1911442

World Resources Institute. (n.d.). Atlantic and Caribbean: Lionfish Invasion Threatens Reefs. https://www.wri.org/research/reefs-risk-revisited/atlantic-and-caribbean-lionfish-invasion-threatens-reefs

Not the only Treaty in the Sea: Linking the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the future BBNJ agreement

16. May 2022/in General /by Arne Langlet

This contribution is part of a MARIPOLDATA blog series on current developments and discussions about the negotiations towards an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). In this series, the team publishes updates on the four package items under the BBNJ Agreement: Marine Genetic Resources (MGRs), Area Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and Technology Transfer (CB&TT). Due to the COVID-19 pandemic, the planned-to-be final intergovernmental conference (IGC) was again postponed and is now planned for 2022. In the meantime, informal exchanges among state and non-state actors are taking place [1]. The MARIPOLDATA blog series include developments from the online Intersessional Work organized by the UN Secretariat since September 2020, the virtual High Seas Treaty Dialogues, taking place under Chatham House rules, organized by 3 states and a number of NGOs, and the MARIPOLDATA Ocean Seminar Series in which scholars and practitioners present and discuss current issues of ocean governance. For this blog, we would like to thank Daniel Kachelriess for his valuable feedback and input.

[1] See more information: Intersessional Work organized by UNDOALOS: https://www.un.org/bbnj/content/Intersessional-work and BBNJ Informal Intersessional Dialogues: https://highseasdialogues.org/.

Key arguments

CITES has a mandate to regulate certain activities with regard to marine species listed under the Convention
The activities regulated by CITES include activities in ABNJ, leading to the possibility that CITES and the BBNJ treaties may overlap
A positive formulation of the “not undermining” clause could enhance cooperation
Implementation of CITES and the BBNJ agreement both requires intensive capacity building efforts (e.g. in ports)

A New Agreement on Marine Biodiversity

The establishment of coherent legal framework for the management and conservation of biodiversity in the High Seas is one objective of the currently ongoing negotiations for a new treaty on marine Biodiversity Beyond National Jurisdiction (BBNJ Treaty) under the United Nations Convention on the Law of the Sea (UNCLOS) (Kulovesi, Mehling, & Morgera, 2019)(Kulovesi, Mehling, & Morgera, 2019). The current draft text for the instrument includes provisions on Marine Genetic Resources (MGRs), Area-Based Management Tools (ABMTs), including Marine Protected Areas (MPAs), Environmental Impact Assessments (EIAs), and Capacity Building and Marine Technology Transfer (CBTT), as well as Cross-cutting issues. At the same time, delegates as well as observers constantly highlight that the BBNJ Treaty will have close linkages to other treaties that sectionally or regionally regulate matters related to marine biodiversity. One of these treaties is arguably the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which entered into force in 1975.

CITES

CITES regulates the international trade of endangered species listed on one of its appendices. Appendix 1 includes the most endangered species – threatened with extinction; Appendix 2 includes species that may be threatened with extinction if trade is not closely controlled; and Appendix 3 includes species in need of international trade controls. The Conference of the Parties (COP) to CITES, which takes place every three years, decides upon enlisting new species on their appendices.

Although CITES initially was largely concerned with terrestrial species, by now, out “of the approximately 39 thousand species currently listed in the CITES Appendices, 2 392 were considered to be marine species” (Pavitt et al., p. 11). With the increasing listing of marine species under CITES, the reported number of trade transactions of marine species has constantly increased as well (Figure 1).

Figure 1: From (Pavitt et al, p.15).

The increasing role CITES plays in relation to marine species is shown in a report recently published by the FAO which presents numbers and trends on trade of commercially exploited CITES-listed marine species. CITES documents and regulates all international trade of listed marine species. By CITES’ definition this includes Introduction from Sea (IFS). “ (the others are import, export, and re-export). IFS is defined in Article 1 of the Convention as transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State.” This addresses areas beyond national jurisdiction (ABNJ) – which is the same geographical scope that the BBNJ treaty aims to cover. Although, this provision was initially not operationalized, partially due to the limited number of marine species listed under CITES, COP 16 in 2013 adopted guidance in Resolution Conf. 14.6 (Rev CoP16) that specified for different scenarios when an IFS certificate or other type of permit that allows the further trade of this species is required.

Controlling the flow of MGRs

As observed by Kachelriess, Cremers and Wright in the recent blog post of IDDRI, “the current BBNJ draft agreement shares many characteristics with IFS”, particularly in the MGR part. In fact, CITES could already now regulate the access and trade of MGRs in ABNJ when they stem from a species under Appendix 1 or 2 of CITES. The similarities can be seen in Figure 2. The depicted process for MGR registration and access is largely simplified and summarizes some states’ ideas presented by the CITES secretariat in a flowchart in spring 2021. Indeed, MGRs under BBNJ and the IFS share similarities in that both systems come into action when a specimen is taken from ABNJ. One large unresolved question in the BBNJ system is who would be the responsible authority to register the MGR sample and ensure access and a potential tracking mechanism for benefit sharing. The IFS system can bring some clarity to the BBNJ negotiations because it operationalizes the location of the authority to implement regulations in cases when there is no state authority to “provide” the specimen.

It specifies that the national authority of the vessel at hand carrying the MGRs needs to issue an IFS certificate if the vessels lands in its flag state. When the landing state (where the vessels enter into harbor after the capture) differs from the flag state, the landing state needs to issue an import permit and the flag state under which the vessels operates, needs to issue an export permit. Both scenarios involve a “Scientific Authority” to issue a non-detriment finding if the specimen is listed under appendix 1 or 2 of CITES. A non-detriment finding under CITES is a document, issued by a Scientific Authority that specifies that the transaction is not to the detriment of the specimen based on population status; distribution; population trend; harvest; other biological and ecological factors; and trade information. The issuing of this document requires scientific knowledge on the indicated factors and an Scientific Authority that can document these.

Hence, CITES establishes that parties to the convention need to have a Scientific Authority that is in the position to scientifically assess the condition of the population from which the specimen was landed by a vessel and identification at the port of entry to determine if the specimen at hand is listed under appendix 1 or 2 of CITES. The notion of an authority (e.g. fisheries or port inspectors) with some level of scientific knowledge that assesses what was landed and how to handle it in terms of international regulation may be interesting for BBNJ purposes as well. Although, not specifically termed “Scientific Authority” there has been debate in the ongoing BBNJ negotiations on who would have to report and register the MGRs at hand to the CHM and/or the secretariat of the BBNJ.

Figure 2: Author´s worked, based on https://cites.org/eng/prog/ifs.php and on flowchart handed out by BBNJ secretariat on 16.03.2021

CITES Introduction From Sea clause BBNJ Marine Genetic Resources monitoring draft

How to proceed with two “not undermining” clauses

In order not to undermine existing agreements, the current BBNJ treaty draft pursues to regulate the “Relationship between this Agreement and the Convention and relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies” (Revised Draft of November 27, 2019, art. 4). In this Article, it is specified that “this Agreement shall be interpreted and applied in a manner that [respects the competences of and] does not undermine relevant legal instruments and frameworks” (Revised Draft of November 27, 2019, art. 4, para. 3).

Similarly, CITES makes clear that nothing in the text of its Convention “shall prejudice the codification and development of” UNCLOS (art. 14). As the BBNJ agreement is negotiated as an implementing agreement of UNCLOS, CITES provisions may not infringe or overrule the BBNJ treaty. Depending on how these two mirroring provisions are interpreted, it may mean that CITES may not be applicable if relevant law exists under UNCLOS. This may come as a surprise as negotiators in BBNJ aim to carefully avoid to undermine any other legal instrument. Depending on the exact formulation of these provisions, there is the danger that both agreements leave species from ABNJ less protected than they currently are out of a fear to undermine an existing agreement. In fact, having a clause not to undermine other agreements is common in international treaty making. Nevertheless, this should not be a reason for negotiators to cut down on ambition in the new treaty. On the opposite, it has been shown how international agreements can also act in a cross-supportive way through cooperation or deference when their competences touch and, in this way, strengthen compliance (Downie, 2021; Pratt, 2018).

CITES was negotiated prior to the current international framework for fisheries management in ABNJ, the 1995 fish stocks agreement and most of the RFMOs, being established. This had changed by 2013, when the IFS provision was operationalized and these treaties and bodies already existed. However, RFMOs and their state parties did not oppose the operationalization of the IFS clause out of fear to undermine RFMOs. In fact, the initiative to make the IFS clause operable came from a Fábio Hazin who had ample experience in fishery bodies (ICCAT). Instead of fearing mutual undermining, representatives realized the potential of synergies between RFMOs and CITES. The UN Fish Stocks Agreement foresees in Article 8.6 that competences may be shared, actively allowing for interinstitutional cooperation (Caddell, 2019). This means that CITES was able to complement the existing institutional framework and to play a supportive role for the protection of fish.

Having this in mind, the relative minor role that CITES has played in the ongoing BBNJ negotiations seems surprising. Few states have referred to the importance of CITES in relation to the BBNJ (Algeria, Mauritius and Israel) but the experience from CITES could teach delegates negotiating the BBNJ agreement not to refrain from strong protective provisions in the fear to undermine another international treaty. This was highlighted by different non-governmental actors during the long intersessional period of the BBNJ negotiations. During this period, non-state actors emphasized how CITES and Regional Fisheries Management Organizations complement each others’ mandates and successfully share competences for conservation of fish stocks in different regions. In light of these insights, we highlight that a mutual ‘not undermining’ should not be formulated negatively but rather in a positive, proactive manner, strengthening the protective measures put in place under CITES.

BBNJ and CITES share a focus on capacity building

Instead of concentrating on ‘not undermining’ it could be worthwhile to look at common areas that could be strengthened by both instruments cooperatively. Similarly to CITES, the BBNJ agreement will have to be implemented through national legislation and national authorities (Kachelriess, Cremers and Wright, year). This means, that the implementation of some of the BBNJ provisions (on MGRs for example) could build on the same state authorities and scientific authorities that already have a role under CITES. When the discussions on CBTT in the BBNJ negotiations move towards who will be the beneficiary of capacity building measures, it seems worthy to understand concretely what kind of institutions and authorities are needed to implement the foreseen measures. Negotiators do not have to re-invent the wheel but a look at CITES can give insights into what national (scientific) authorities are required. The experience with CITES can also teach BBNJ implementation about potential challenges in capacity building needs. It would be mutually beneficial if BBNJ acknowledges the role of these authorities and strengthens them through increased capacity building instead of identifying new actors and institutions on the national level that are expected to enforce treaty provisions.

As shown in the previous workflow on MGRs and IFS, national authorities that are present in the ports and scientific authorities that control the origin and type of species are needed to implement both CITES and BBNJ. Capacity building in the BBNJ agreement could thus simultaneously strengthen the same national capacities to monitor and assess high seas biodiversity that have been supported by CITES. Understanding the implementation of CITES, BBNJ could similarly pursue a collaborative, non-adversarial implementation approach through national laws and support for national authorities.

Conclusion

The Introduction from Sea (IFS) clause lay dormant in CITES’ mandate from 1973 until Parties agreed on guidance how to implement it in 2013. The increased attention by CITES Parties to list marine species under CITES was in response to a significant and dangerous gap in regulation of endangered marine species. Since then the number of CITES regulated marine species and the amount of registered transaction has constantly increased. Because the future BBNJ agreement also aims to conserve marine species, both treaties may end up overlapping in their mandate. In order to prevent conflicts of competences and legal inaccuracies, the BBNJ agreement possesses an “not undermining” clause which specifies that the Treaty shall not undermine other relevant instruments. However, also CITES (and many other agreement) possesses such a clause. This may lead to mutual inaction out of fear to “undermine” each other. Therefore, this blog suggests that the “not undermining” clause could be reformulated into positive language that enhances cooperation between the agreements to support mutual implementation. For a successful implementation of the BBNJ agreement, a look at CITES could help. For example, the IFS work-flow to check whether an organism falls under the IFS clause shows similarities to a potential MGR work-flow controlling the applicability of the MGR provisions. Further, the key actors to monitor IFS (and potentially MGR) provisions will be authorities in ports where vessels from ABNJ land. These require robust scientific knowledge in order to effectively monitor these provisions. The chances for capacity building to support implementation of both – CITES and BBNJ – should be highlighted and used.

References

Caddell, R. (2019). International Fisheries Law and Interactions with Global Regimes and Processes. In R. Caddell & E. J. Molenaar (Eds.), Strengthening International Fisheries Law in an Era of Changing Oceans (pp. 133-163): Hart.

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

Kulovesi, K., Mehling, M., & Morgera, E. (2019). Global Environmental Law: Context and Theory, Challenge and Promise. Transnational Environmental Law, 8(3), 405-435. doi:10.1017/S2047102519000347

Pratt, T. (2018). Deference and Hierarchy in International Regime Complexes. International organization, 72(3), 561-590. doi:10.1017/S0020818318000164

CITES (n.d.). Introduction from the Sea. Retrieved from https://cites.org/eng/prog/ifs.php

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