Maripoldata Blog

Participation at BBNJ negotiations matters

13. April 2022/in General /by MARIPOLDATA Team

By: Elisa Morgera, Bernadette Snow and Mia Strand, One Ocean Hub; Alice Vadrot, Arne Langlet and Silvia Ruiz Rodríguez, University of Vienna, ERC Project MARIPOLDATA

This blog post was published simultaneously by the One Ocean Hub and the ERC Project MARIPOLDATA. It is a collaborative effort by the two projects following the BBNJ process in their capacity as researchers from different scientific disciplines and as advocates for an inclusive and transparent BBNJ process. The aim of this post is to reflect on the problematic nature of these restrictions from the following inter-linked perspectives: 1) environmental justice and equitable participation; 2) legitimacy and good practices in other multilateral negotiations; 3) international human rights law; and 4) research practices that focus on, and benefit, the BBNJ negotiations. The blog post will conclude with a few pragmatic recommendations on how participation should be enhanced at the next session of this process (IGC 5), which is expected to be organised from 15th to 26th of August 2022.

Some background

The United Nations (UN) negotiations on an international legally binding instrument under the UN Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) resumed, from 7-18 March 2022 at UN Headquarters in New York. This marked the fourth session of the Intergovernmental Conference (IGC 4) mandated by the UN General Assembly (UNGA). Three former sessions were held in September 2018 (IGC 1), March-April 2019 (IGC 2) and August 2019 (IGC 3). Due to COVID-19 restrictions, IGC 4- initially scheduled for March 2020- was postponed many times, which is why great hopes were pinned on IGC 4, although it was clear from the beginning that no great leaps could be achieved after a two-year pause. Still, according to the Earth Negotiations Bulletin, “[f}or the first time, delegations prepared and submitted textual proposals, many times jointly,” and made “unprecedented progress.”

Despite the progress made, the meeting had its downsides, and the lack of equitable participation puts into question the significance of this progress. Only two weeks before the start of IGC 4, the president of the negotiations announced that non-state actors and observers would not be allowed to participate in the physical meeting due to COVID-19 restrictions on-site and would only have the option to follow the negotiations online without any possibility to make statements or interventions. While governments could only send 1+1 delegate into the conference room, non-state actors and observers were not even allowed to access the UN building, at least for the first week. During the second week, “Three silent observers were allowed to enter into the conference room each day.” These restrictions were considered problematic by both state and non-state actors, which became very clear “[d]uring the closing plenary, [when] many states called for observers to be accorded full participation rights at the next session” (Earth Negotiations Bulletin).

Reflections from an environmental justice perspective

Environmental justice often has a plurality of meanings and encapsulates:

distributive justice, referring to fair and equitable distribution of environmental harms and benefits;
recognitional justice, referring to recognition of and respect for marginalised groups, perspectives, and ways of knowing; and
representational justice, referring to procedures to ensure representation of diverse perspectives in decision-making (Blue et al., 2021; Suiseeya, 2014).

In this Post, we focus on representational justice which is the fair treatment and meaningful involvement of all, independent of class, race, national origin, language, income, place of birth, gender, sexuality and ability, in the development, implementation and enactment of regulations, laws and policies regarding the environment (Environmental Protection Agency, 1998). Principle 10 of the Rio Declaration on Environment and Development specifically states citizens’ rights to participation, “appropriate access to information” and that States shall provide each individual “the opportunity to participate in decision-making processes” regarding environmental issues (UNEP 1992).

Meaningful involvement is understood in this post as a process that goes beyond mere consultation or information sessions, where individuals have influence, opportunities to engage, provide inputs and where the learning and knowledge sharing process is a two-way process (Dyer et al., 2014). Meaningful involvement therefore necessitates appropriate access to adequate and accessible information and platforms that encourage fair and open dialogue, inclusive and adequate representation and transparency (Stewart and Sinclair, 2007; Reed, 2008; Dyer et al., 2014). Fair and equitable participation is in this blog post referring to mechanisms that ensure equal opportunity for engaging as well as the necessary support, contextualised approaches and empowerment to access these equal opportunities for participation (Kapoor, 2001; Reed, 2008). This might include non-online engagement, or support to access online engagements, translation into different languages and approaching environmental challenges from different points of view (Stone, 2002; Hargittai and Jennrich, 2016).

The BBNJ negotiations, by limiting UN Member States to only two delegates, are not facilitating fair and equal access to participation, and run risks of environmental injustice. Although a video link was provided for individuals beyond the two UN Member State delegates, the link did not allow concerned parties to make any interventions – unlike what was made possible in the Convention on Biological Diversity meetings. The “informal informals” approach at IGC 4 meant that the negotiations were not broadcasted through the official UN webcast and only registered observers could silently follow the negotiations through Webex. In addition, with regard to in-person participation, due to COVID-19 related regulations, only two representatives of civil society were allowed in the room during the second week (of those who had travelled to New York even without the prospect of access) and these representatives were not able to make statements until all states had made their closing remarks on the last day. And non-state actors could not make any statement as the “informal informals” format only foresees state interventions.

By not allowing any participation beyond the physical presence of two delegates per UN Member State except from registered and invited observers in the second week, the BBNJ negotiations are not upholding fair treatment of all. The negotiations are rather directly contradicting the concepts of meaningful involvement and fair and equitable participation. By strictly limiting the opportunity to participate, as well as the means to participate, the IGC 4 can only be categorised as an information session at best, and as purposive exclusion of civil society and non-state actors at worst, from an environmental justice perspective.

Information and process transparency

Transparency is a key topic in global marine governance. Institutions tasked with the governance of different aspects of marine management and protection are normally expected to transparently inform about their activities, decisions and relevant data. This need for institutions of marine governance to be transparent stems from an overall expectation that international institutions are transparent in order to have legitimacy as well as from the experience that much of what happens on the high seas remains hidden to observers on land – therefore institutions governing this aspect should be particularly transparent. However, many institutions have not managed to live up to the transparency expectations. Ardron et al. (2014) after reviewing 2 decades of marine governance find that there is still much to be done to improve the transparency of international marine governance.

The authors distinguish three aspects of transparency (in marine governance institutions),information, process and results:

information transparency relates to the timely availability of information used as inputs to decision‐making to members and the public;
process relates to the ability of the public to observe or participate in meetings and to review materials produced during the progression of decision‐making processes; and
output is the access to outputs of decision‐making, including findings on compliance via compliance reviews and performance assessments (Ardron et al., 2014).

This distinction is important because being able to read relevant documents (information transparency) does not give equal opportunity for the public (civil society organisations) to monitor and influence the process (process transparency) as participation does. Many marine governance institutions score particularly badly in relation to process transparency, which is mirrored by the many calls of NGOs that criticise being left out of important decision-making processes (e.g. in the International Seabed Authority – ISA).

The BBNJ negotiations run the risk of disregarding this important dimension of transparency by not letting civil society organisations’ (CSO) observers into the negotiation room. While the information transparency is largely given (access to documents and the webcast available for CSOs), one delegate mentioned that documents shall be made available because “we didn’t think we were in a secret meeting”, meaning that issues of process transparency were not adequately addressed.

This appears particularly surprising as the participation of CSOs is a fairly established principle in global governance in general and environmental governance in particular. The Convention on Access to Information, Public Participation in Decision‐Making and Access to Justice in Environmental Matters (Aarhus Convention) to which not only most of the states negotiating the BBNJ agreement are parties but which also was mentioned during the intersessionals, online dialogues and during IGC 4 by state delegates, conveys that the ability of the public to observe or participate in meetings and to review materials produced during the progression of decision‐making processes is a core aspect of transparency (Aarhus Convention, art. 3). While a recent survey indicates that BBNJ stakeholders generally view on site negotiations as more inclusive than online formats (see MARIPOLDATA Report), the exclusion of civil society from IGC 4 seems to be in direct opposition to the principle of “process transparency,” which finds reflection in the Aarhus Convention. Although reference to the Aarhus Convention was made by one state during the informal informals, a number of states (only the UK during the plenary meeting and the UK, Costa Rica, Argentina, Canada, New Zealand, Australia, US, and Micronesia during informal informals) expressed their unhappiness over the non-participation of CSO in the negotiation room.

Nevertheless, transparency vis-a-vis non-state actors remained limited throughout the whole IGC 4, supposedly justified by COVID-19 measures, which seems even stricter when compared to other international meetings that had been convened in the last months. For example, during the fifth session of the United Nations Environment Assembly from 28 February to 2 March in Nairobi, Kenya, access for civil society was granted under normal conditions. The meetings in preparation of the COP of the Convention on Biological Diversity, which took place in Geneva from 13 to 29 March allowed two members per observer organisation and 6 per state party. However, participants were given green and yellow badges and only holders of green badges were admitted to the plenary meetings while holders of yellow badges could follow the live stream in the overflow room. At the UN Climate COP in Glasgow (November 2021), observer accreditation was limited to four slots per organisation. But only one person from each party as well as IGOs and NGOs were allowed in any room simultaneously and a live stream was provided in overflow rooms.

International human rights perspective

This section will clarify that the observations made in the previous sections chime with relevant international human rights standards, with a view to underlining that we are not only underscoring justice and good practice issues, but matters that are addressed in international legally binding law that is relevant to this process and applies to States that are parties to underlying international treaties. Biodiversity has been increasingly recognised as a matter of international human rights law: how we protect biodiversity has an impact on a variety of basic human rights (life, health, food, water, culture), hence we need to take into account the implications for human rights of our decisions on biodiversity. In addition, international human rights standards are expected to be applied to decision-making processes on biodiversity, as they are expected to support the consideration and participation of relevant human rights-holders (A/HRC/34/49). This is also true for marine biodiversity of areas beyond national jurisdiction, as specifically underscored by the UN Special Rapporteur on Human Rights and the Environment in 2020 (A/75/161). In effect, to give a prominent example the COVID test relies on an enzyme derived from an organism found at deep sea hydrothermal vents and freshwater hot springs.

These considerations are based on a combined reading of States’ obligations under human rights treaties to which they are party, and their obligations under the UN Convention on the Law of the Sea and the Convention on Biological Diversity. The same international human rights treaties are also relevant for States in pursuing the Sustainable Development Goals, as underscored by the Human Rights Council (The implementation of Agenda 2030 must be consistent with States’ obligations under international human rights law: A/HRC/RES/37/24; A/HRC/RES/37/25.) While we tend to think of these as obligations that relate to decisions and actions within national jurisdiction, it has been clarified that they apply also to international cooperation, including intergovernmental negotiations (A/HRC/37/59, 2018, Principle 13).

From a procedural perspective, these obligations provide clear minimum standards of transparency and public participation that should be followed in the BBNJ negotiations:

ensure affordable, effective, objective, understandable and timely access to information that should enable people to understand how environmental harm may undermine their rights to life and health & support the exercise of participation rights;
facilitate participation in decision-making, that should be open to all members of the public who may be affected, should give adequate opportunity for the public to express views, and should occur early in decision-making process;
take public views into account, which entails an obligation to explain the justification for decisions to the public, and;
take additional steps to facilitate participation of marginalised communities, women and children (A/HRC/37/59; A/HRC/37/59).

The last point would certainly be the case of Indigenous peoples and local knowledge holders, given the references to Indigenous and local knowledge in the draft, which would rely on the specific international obligations related to indigenous peoples’ rights. This could draw inspiration from practices at the Intergovernmental Science-Policy Panel on Biodiversity and Ecosystem Services, the International Indigenous Forum on Biodiversity under the Convention on Biological Diversity and the Local Communities and Indigenous Peoples Platform under the UNFCCC.

Furthermore, given that the “discussions of future generations [must] take into account the rights of the children who are constantly arriving, or have already arrived, on this planet” and children are the most vulnerable to environmental harm because they are still developing (A/HRC/37/58), discussions on inter-generational equity and the importance for humankind of BBNJ must include the perspectives and interests of children. There is a need for children-friendly information and modalities to consider children’s views on long-term environmental challenges that will shape the world in which they will spend their lives. This will involve further consideration of the linkages between climate change and BBNJ. Increased scrutiny by international human rights bodies from the perspective of children’s human rights is likely to increase as new UN guidance is being developed on children’s rights to a healthy environment, and the BBNJ negotiations have the opportunity to spearhead this work.

These procedural requirements on public participation are crucial in and of themselves for environmental justice and transparency purposes. But they should also be understood for their functional relation to substantive human rights obligations that are relevant in the BBNJ negotiations. States, individually and collectively, should ensure that these procedural standards contribute to preventing unjustified, foreseeable infringements of human rights arising from biodiversity loss (A/HRC/34/49), which requires consideration of:

public interventions that may infringe human rights dependent on marine ecosystems (for examples related to the human right to health, see here);
the regulation of businesses so as to prevent them from violating human rights in the context of extractives and conservation
the best interests of the child as a primary consideration.

These are considerations that would be relevant across all the elements of the treaty, notably environmental impact assessments and strategic impact assessments, as well as the role of precaution in area-based management tools, bio-based innovation, capacity building and technology transfer.

In addition to these general international human rights law bases for transparency and public participation in the BBNJ negotiations, certain States have specific obligations under the:

Escazú Convention, Art 7(12): Each Party shall promote, where appropriate and in accordance with domestic legislation, public participation in international forums and negotiations on environmental matters or with an environmental impact, in accordance with the procedural rules on participation of each forum.
Aarhus Convention, Art. 3(7): Parties should promote the application of the principles of the Convention in international environmental decision-making processes and within the framework of international organisations in matters relating to the environment.

In particular, under the Aarhus Convention, the Almaty Guidelines were adopted to provide more clarity on what Art. 3(7) entails. The Guidelines call for adjustments to international processes to allow for appropriate public participation, such as the following ones:

As discussed also in the context of the International Seabed Authority, the growing understanding, from a scientific and legal perspective, of the inter-dependence of human rights and marine biodiversity requires visible and effective changes to current practices in intergovernmental negotiations to ensure that all the relevant interests and knowledge systems are taken into account in State cooperation, including with regard to marine areas beyond national jurisdiction.

Impact on (ethnographic) study of the negotiation

The BBNJ IGCs are not only important avenues for non-state actors seeking to inform or influence the treaty negotiations. They are also sites of study for ethnographic research and scholars interested in the making of the BBNJ treaty (Vadrot, 2020). From the second IGC onwards, the MARIPOLDATA research team (funded by the European Research Council) has conducted collaborative event ethnography on-site with the aim to collect data that would allow us to understand struggle between different actors and how these have shaped the final treaty text. For instance, they have observed tensions regarding the inclusion of the Common Heritage of Humankind principle while being on-site in New York and used their ethnographic data to reconstruct and analyse state positions in favour or against the concept (Vadrot et al., 2021). Ethnographers rely on fieldwork in their attempts to study and describe the culture of a specific community- in the BBNJ case the state and nonstate actors shaping the future agreement within the highly structured and restrained setting of multilateral environmental diplomacy.

Thus, the decision to restrict access to IGC 4, has also impacted ethnographic studies of the BBNJ process in both methodological and analytical terms. It meant that researchers did not have access to the field site and potential interview partners. Like other non-state actors, researchers learned about the restrictions only two weeks before the start of the negotiations. Registered under the International Studies Association (ISA) approximately 20 researchers from all over the world – many of them PhD students and early career researchers – only got the possibility to follow the negotiations online, which significantly limited the scope and depths of the observations they could potentially make.

Due to the fact that the MARIPOLDATA team already had to adapt their methodology in 2020, when IGC 4 was indefinitely postponed and several informal online dialogues launched, they could quickly adapt to denied access and collect data on the basis of digital ethnography (Vadrot et al., 2021). Applying digital ethnography to IGC 4 allowed them to collect data, which they also used to publish a blog after the first week of negotiations to increase transparency of the process. This was important, as the largest part of IGC 4 was using the “informal informals” negotiating format, as mentioned above . During “informal informals” on-site, only a limited number of non-state actors and observers have permission to enter the negotiation room. During IGC 3, for instance, non-state actors had to negotiate among their group, who will occupy the 5 seats reserved for observers. And even if a researcher manages to get into the room, they are asked not to link the recorded statements to individual state actors, which significantly reduces the usability of data.

However, the online negotiation room of IGC 4 blurred the line between the different formats. While one could say that it was potentially more inclusive, it also created ambiguity, where boundaries between different negotiation formats and rules for data collection and use were blurred. Researchers watched the proceedings in some cases without even noticing that they passed from one negotiation format to another. We saw the same room with the same people performing the same diplomatic practices that we would normally observe during informal working group meetings and plenaries.

However, depending on the negotiation format researchers must follow different ethical standards and rules. The IGC 4 online format was challenging in this regard and confirms that our research object is in constant motion and is shaped by internal and external forces that we need to consider during our research. The stakes in the BBNJ negotiations are high and it is thus our duty as researchers to be as reflexive and transparent as we can regarding both the methodological and ethical stakes of studying negotiations (Hughes et al., 2021).

Conclusions

As delegates at IGC 4 “requested IGC President Rena Lee to take the necessary steps to obtain a UN General Assembly decision to convene a fifth session in August 2022,” we would like to draw together a few recommendations on enhancing participation at IGC 5 that will bring together the findings from the different perspectives represented in this blog:

opportunities for non-state actor representatives to meaningfully engage at IGC 5 should be clear and communicated at least a month in advance, and ideally three months in advance, with a view to enabling them to understand how these negotiations may affect them (and their human rights);
equal opportunity for meaningful engagement needs to be specifically addressed, taking into account different issues in in-person and online engagement;
as a general rule, non-state actors should be allowed to observe and participate in the negotiating sessions;
any restrictions to participation should be seen as exceptional, clearly motivated and accompanied by measures to ensure continued minimum levels of transparency and opportunities for non-state actors to make contributions; and
specific steps should be taken to facilitate the participation of representatives of Indigenous peoples and other knowledge-holding communities, women and children.

Where did the last negotiation round for a High Seas Treaty take us?

4. April 2022/in General /by MARIPOLDATA Team

By Arne Langlet, Ina Tessnow-von Wysocki and Alice Vadrot

After two weeks of negotiations, the planned-to-be final intergovernmental conference (IGC) for a new instrument to govern marine biodiversity beyond national jurisdiction did not end with a treaty but with the decision to reconvene in August 2022 for a fifth IGC. In our MARIPOLDATA Blog on the first negotiation week, we analyzed state preferences regarding the package elements Capacity-building and Transfer of Marine Technology (CBTMT), Marine Genetic Resources (MGRs) and Area-based management Tools (ABMTs), including Marine Protected Areas (MPAs). This blog summarizes outcomes of the second week of negotiations.

Where is the often cited “common BBNJ canoe” going?

Recap of second week:

Overall discussions during IGC 4 were less polarized and general flexibility made the negotiations progress faster in comparison with previous sessions. There seems to be agreement that the Conference of the Parties (COP) – the future decision-making body of the new instrument, should be empowered to establish Marine Protected Areas (MPAs) in the High Seas and that a dedicated secretariat would be the best option to implement the future Treaty. Although governments did not have time to discuss all text passages and intersessional work will be highly needed, IGC 4 gives hope that states are committed enough to finalize the treaty text at the next and final negotiation round in August 2022.

After a brief recap by the facilitators on the topics discussed in the first week, the second week started with Crosscutting issues (CCI) from Monday until Wednesday morning. Wednesday and Thursday were used to negotiate the EIA chapter. On Thursday afternoon the substantive negotiations concluded with discussions on the use of terms under Crosscutting issues. On Friday – the last day of the conference – delegates and facilitators took stock of the progress made, decided on a way forward and delivered closing statements expressing their committment to finalizing the BBNJ Treaty.

When looking at the netto talking time for each of the package items, we see that Crosscutting Issues took up most of the time, whereas the EIA Chapter was the least discussed during the whole two weeks – although the EIA Chapter is the longest in terms of text and individual provisions.

Graph 1 – speaking time of state delegates per package

Crosscutting Issues:

Under the crosscutting issues chapter the negotiations addressed Article 48 (Conference of the Parties – COP), 49 (Scientific and Technical Body – STB), 50 (Secretariat), 51 (Clearing-House Mechanism – CHM), 52 (Funding), 53 (Implementation and Compliance), and 54 and 55 (Settlement of Disputes). On Wednesday and Thursday, the discussions moved to the EIA Chapter before turning back to Crosscutting Issues on Thursday afternoon to discuss remaining issues under the Settlement of Disputes Provisions and Chapter 1 on the Use of Terms.

Rapidly, consensus on some general issues could be found. For instance there was broad support to establish a COP as the main decision-making body of the treaty. There was also overall support for review and assessment by the COP. While there was general agreement by delegations to make reports and decisions of the COP publicly available, some delegations stated that it would not be necessary to mention it in the text, as ”this is not a secret meeting”. Further, there was agreement that the COP should adopt its rules of procedure and may establish subsidiary bodies if deemed necessary for the implementation of the Treaty, but parties disagreed on the need of a list of subsidiary bodies to be mentioned in the text, which would guarantee their timely establishment independently of COP decisions in the future.

On the modalities (Art. 48. 3) of decision-making in the COP, disagreement was voiced. While some states insisted on consensus to decide on any matters – which would give any party a veto right – many other delegates pointed to the need to have the possibility of majority voting in case COP decisions get blocked, making the COP unable to act. The possibility of opt-out provisions were discussed, mainly in regards to ABMTs, including MPAs to achieve a higher number of signatories to the agreement, but was cautioned against by others, questioning the overall effectiveness of conservation measures with such an option to “pick-and-choose”.

The future Scientific and Ttechnical Body (STB)

While there seems to be no question that science and knowledge is needed to inform global policy-making and to effectively support the implementation of the new BBNJ agreement, detailed characteristics of how such a body should look like, what its powers and functions ought to be and which experts would need to be represented – needless to say how to select them – has gotten very little attention throughout the BBNJ process. Informal discussions during the intersessional period touched on this topic by asking very specific questions on how many experts the delegations envisage for such a body, and what this body should be tasked with. In the actual negotiations, however, this important topic has only received little time on the agenda as one of many institutional arrangements to be discussed.

Overall, delegations largely agreed that the STB would have an advisory function, operating under guidance of the COP (Art. 49. 4). While it should focus on the scientific and technical (and technological) advice, the COP can further elaborate on its functions. In this regard, the intersessional period will be key to discuss these details, if one wants to avoid to leave essential elements to be delayed to later COP decisions.The MARIPOLDATA Team will contribute to this discussion by looking into research from different scientific and technical advice institutions for global governance (Panel on Scientific and Technical Advice for Global Governance).

BBNJ Secretariat

Regarding the functions of a secretariat laid out Article 51 of the draft text, delegation’s views converged to streamline Paragraph 4 and 8 (a and m) and delete details in the provision which can be accommodated elsewhere. While delegations quickly agreed to the need for and overall functions of the secretariat, different views were expressed on whether a new secretariat should be established, or an existing institution could take over this task. Some delegations suggested exploring the possibility of UNDOALOS becoming the secretariat of the BBNJ Treaty. It was clear that UNDOALOS would require significant strengthening of structure and resources to fulfill the new functions. In any case, it was noted that if a new secretariat was to be established, UNDOALOS could operate as the interim secretariat.

Clearing House Mechanism

Similar to discussions for the STB, also for the Clearing House Mechanism (CHM), there was no question about its indispensable role for implementation, but the specifics were not agreed on and detailed language on the modalities was preferred to be deleted in the draft text (Art 51) and for the COP to decide.

There was some support to have either the future secretariat or the existing IOC-UNESCO (Paragraph 6) manage the CHM, or to also to leave this open for further debate in the COP. Some delegations addressed the issue of confidentiality for the work of the CHM as its main task is open data sharing. It was largely preferred to include an additional provision in Paragraph 7 to avoid conflicts between these principles. What remains clear up to this point is that the CHM needs “a human element”, an administration with staff going beyond a mere database which can be accessed via a website. It was highlighted that the CHM needs to be able to show initiative, for example in establishing partnerships across the world regions as to future-proof the agreement.

Funding for the High Seas Treaty

Throughout the discussions, three main streams emerged for funding to happen within the BBNJ agreement 1) funding for developing states’ representatives to participate further meetings (e.g. in the COP); 2) funding to make effective implementation of the agreement possible for states with capacity needs through CBTMT and benefit-sharing; and 3) funding for the institutional framework of the BBNJ treaty.

While developed countries made it clear that they are not willing to commit to mandatory funding in the first two streams, they rather supported mandatory funding for setting up the necessary institutions including a financial mechanism. The financial mechanism (Art.52) was seen as another main pillar of the institutional framework of the new Treaty but views diverged regarding the desirable sources:

Proposals were made for a voluntary trust fund (Para 4) and a special fund (Para 5), or to task the Global Environmental Facility (GEF) as core funding body under direction of the COP. A representative of the GEF was given the word to explore the possibility of the GEF becoming the financial mechanism of the BBNJ Treaty. While this was welcomed in general, the text as it currently stands in the draft would need to be re-formulated to enable further engagement with the GEF. In relation to funding it was highlighted that the GEF already contains a number of financing streams for ocean management. One delegation noted that a comprehensive overview of the current landscape of ocean funding would be useful. This demand was well-received by the presidency of the conference who offered to prepare information in this regard.

How to be prepared for potential disputes that arise about the High Seas?

International agreements generally have a provision about dispute settlement, to address potentially arising conflicts about the subject matter. In negotiations about the dispute settlement for BBNJ, there is up until now no agreement on how this should look like. UNCLOS parties see the provision on dispute settlement of the convention as a good basis to be translated into the BBNJ agreement, as it was done previously in the case of the United Nations Fish Stock Agreement (UNFSA). However, non-parties to UNCLOS raised their voices against such an approach with the concern to be somehow bound to UNCLOS obligations. They categorize the BBNJ agreement as an “environmental treaty”, and propose to take environmental treaties as a drafting example instead. A proposal was made to submit joint disputes, like in the UNFSA, or to establish an additional chamber in the International Tribunal on the Law of the Seas (ITLOS) for disputes arising from the BBNJ Treaty. It was noted that it would not be necessary to enshrine this in the BBNJ Treaty as ITLOS can decide to establish such a chamber itself. A number of states proposed to authorize the COP to request an advisory opinion by ITLOS, which was however also met with opposition by others.

How to make words come into action?

States showed general support for Article 53 on implementation and compliance, stating that states shall take the necessary legislative measures to ensure implementation. A cross-regional proposal for an implementation and compliance committee was welcomed by many. States highlighted that such a committee would act in a non-adversarial, non-confrontational way. It was agreed to consider best practice examples for compliance committees of other agreements to see the value of such a mechanism.

Defining what is being negotiated…

At the end of the conference, delegates embarked on discussing the use of terms (Art. 1). Although this agenda item was kept until the last day of the conference still, at this stage, a number of delegates referred to this discussion being premature, as first, the substantive parts would have to be agreed on. And indeed, the disagreements over how to define MGRs and ABMTs reflected to a large extent the divides that were expressed in the substantive parts when delegates discussed the content of the respective chapters. Hence, no significant progress on defining the use of terms was made.

Evaluating activities on the High Seas through EIAs:

As the last package item, EIAs were discussed on Wednesday and Thursday. The facilitator decided to put the individual provisions into clusters in which many different provisions were discussed jointly. Under the first cluster, delegates were invited to discuss the criteria and threshold for EIAs, addressing Art. 24 (Thresholds and Criteria), Art. 27 (Areas identified as ecologically or biologically significant or vulnerable), Art. 29 (List of Activities). Under the second cluster, the internationalization of EIAs was discussed, addressing the question to what extent the bodies of the BBNJ instrument or states should oversee the conduct and evaluation (Art. 30 (Screening), Art. 37 (Consideration and Review)) of an EIA and who can ultimately decide on going ahead with an activity (Art. 38 (Decision-making)), as well as how the activity and its impacts shall be observed and communicated (Art. 39 (Monitoring), Art. 40 (Reporting), Art. 41 (Review)) and how it sits within the EIA processes of existing IFBs (Art. 23 (Relationship to other IFBs)). The EIA Chapter was concluded with discussions on Art. 28 (Strategic Environmental Assessments) on Thursday afternoon.

A cross-regional group of states presented a proposal to have a tiered approach for assessing an activity based on the threshold used in the Madrid Protocol on the Environmental Protection to the Antarctic Treaty for triggering an EIA. This cross-regional proposal of the tiered approach foresees that a state should firstly screen whether a proposed activity is “likely to have more than a minor or transitory effect on the marine environment”. If this threshold is reached, an EIA under the BBNJ agreement will be necessary and different levels of internationalization throughout the EIA process are envisaged. In terms of decision-making, the COP would be responsible for determining whether the activity at hand may proceed, which remained a contested provision in the draft agreement. Many states however, largely from the global North, opposed this proposal and showed unwillingness to go beyond the threshold of UNCLOS which states that an EIA is required “when States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment”. These delegations also fiercely opposed the proposal to let the COP decide whether an activity may proceed and stated that the EIA process should be purely state-led and also decided by the state under whose control the activity should take place. This would leave the BBNJ instrument with virtually no power to evaluate EIAs or prevent any harmful activities from taking place. Arguments that the state which sponsors the activity under assessment may encounter a conflict of interest assessing said activity itself or be inclined to conduct a rather “complaisant” EIA were ignored.

Discussions also addressed whether areas that have already been identified as vulnerable (ecologically and biologically sensitive areas – EBSAs) would make an EIA compulsory, where some delegations noted that a specific provision addressing EBSAs was not necessary as activities in these areas would automatically meet the threshold.

Main points of divergence

While some progress was made during the two-week negotiations, and delegations showed arguably more flexibility than in previous sessions, deep divergences remained over some of the main issues. In the following Figure 1, we show the disagreement among and flexibility of delegations over one provision from each package item which represent key points of divergence. The states are shown as circles that support (green arrow), oppose (red arrow) or are flexible (yellow arrow) towards the key Treaty provisions.

In the MGR package item, delegations mainly disagreed over what should fall under the definition of MGRs and how to regulate access and benefit-sharing thereof (see MARIPOLDATA Blog). This divide over how to approach the regulation of MGRs was represented in the positions towards the brackets in the draft text under Article 10.1. where many developing countries preferred the wording of “access” to MGRs whereas many industrialized countries supported the more narrow wording “collection of” MGRs. When referring to “access”, developing countries sought to include marine genetic resources in any form – going beyond the physical sample, also including genetic sequence data, digital sequence information and derivatives – whereas the formulation “collection of” refers exclusively to the moment when a sample is taken from the High Seas and leaves possible other forms of MGRs unregulated. This division was particularly contentious regarding benefit-sharing of MGRs.

In the ABMT/MPA chapter, countries disagreed over how broad the mandate of the BBNJ Treaty should be to designate MPAs. While this divide was voiced throughout many different provisions, it can be clearly seen in the diverging positions on whether the instrument shall apply the precautionary principle. Enshrining this principle in the ABMT/MPA Chapter would mean that the BBNJ instrument could identify and propose areas that require protection more progressively, particularly in situations of uncertainty. The precautionary principle states that conservationist action shall be taken immediately because waiting for compelling evidence of harm may be too costly for the environment (see IUCN Guideline).

Main disagreements also concern how the new BBNJ agreement can complement existing measures undertaken by other IFBs. Proponents of leaving the designation and management of MPAs solely in the hands of existing IBFs, such as regional fisheries management organizations (RFMOs) also oppose the inclusion of the precautionary principle in the text. As seen in the use of terms discussions, actors additionally disagree on the definitions of ABMTs and MPAs and whether or not to include – apart from conservation – also sustainable use objectives.

In the EIA chapter, the main division among delegations was in defining the threshold (see above) and the role of the future BBNJ institutions (Scientific and technical body and COP) in decision-making (Art. 38) on approving planned activities for which EIAs were conducted. While the cross-regional proposal (mainly by developing states) suggested that the COP should have decision-making power, regarding the approval of activities of a certain scale, this BBNJ-decision-making was met with fierce opposition by many developed states who preferred unilateral decision-making powers by the state proposing the activity.

In the CBTMT chapter, divergence persisted over whether capacity building and transfer of marine technology should be mandatory or voluntary. This conflict was expressed in the wording of Article 44. 1 where developing countries wanted strong language (states “shall ensure” capacity building) and industrialized opposed this strong wording and supported “shall promote” instead.

Figure 1 – The disagreement in 4 key provisions visualized. States are represented by the small grey circles and their position towards four key provisions is shown by the coloured arrows. Red -> opposition, green -> support and yellow -> flexibility. Because of the “informal informals” negotiation format we cannot name the states that expressed these positions.

Figure 1 shows that generally, the core of the disagreements and the division between developing and developed world in each of the package items has remained the same since IGC 1. Click here to have a detailed and interactive look at the key disagreements of Figure 1.

Closing remarks and Outlook

In the final round of statements on Friday, 18th March, many states used the opportunity to highlight the negotiating progress that was made and to emphasize the key positions for their delegations. Many statements highlighted the need to protect the ocean and to regard biodiversity in areas beyond national jurisdiction as common heritage of humankind. For the first time in IGC 4, also NGOs were finally invited to give statements and they expressed their availability to facilitate discussions during the upcoming intersessional period in order to advance the exchange on key issues. The proposal to plan the next IGC in August 2022 was agreed upon. While some remained skeptical that the pending issues can be resolved in the next conference session with less than 4 months of intersessional period after the new draft text will be released in May – many expressed the ambition to finish the agreement in the upcoming session.

In light of the urgency to act, as one delegate stated it “while we are negotiating, the stressors on the ocean continue” – there will be the need for a strong and meaningful agreement that can guarantee the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. If one sentence can stick with the delegates when they are traveling home which might loosen up existing struggles from the past 14 years of discussions about BBNJ it would be – while both objectives of conservation and sustainable use are to be achieved with the agreement, one needs to remember, as one state delegate put it: “without conservation there will not be sustainable use”.

Light on the Horizon? Negotiations to complete a new Marine Biodiversity Treaty resume

14. March 2022/in General /by MARIPOLDATA Team

By Ina Tessnow-von Wysocki, Arne Langlet and Alice Vadrot

Please cite as: Tessnow-von Wysocki, I., Langlet, A., Vadrot, A. (2022). Light on the Horizon? Negotiations to complete a new Marine Biodiversity Treaty resume. MARIPOLDATA Blog post. DOI:10.25365/phaidra.331. Retrieved from https://www.maripoldata.eu/light-on-the-horizon-negotiations-to-complete-a-new-marine-biodiversity-treaty-resume/

The negotiations for the legally binding agreement on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) go into the next round. The fourth Intergovernmental Conference (IGC) had been postponed over 2 years, due to the Covid-19 pandemic. Last week, negotiators from around the world could finally get back together to formally pick up their work on the BBNJ Treaty. MARIPOLDATA is following the discussions online, as access to the UN premises was not granted to observers.

Jumping right into negotiation mode – and into cold water

Some efforts have been made to keep momentum throughout the 2 years of intersessional period (High Seas Treaty Dialogues and the Virtual intersessional work). However, no formal progress could be made with the “informal” conversations not being formally recognised as negotiations and, thus, not transferred into new proposals for legal text.

On March 7^th, therefore, negotiators went back to the draft text from November 2019, and skipping opening statements, to “jump right into negotiation mode”. Almost. The terrible developments in Ukraine did not go by the BBNJ negotiations and caused many delegates to show solidarity with Ukraine before they turned their attention to the negotiation agenda and procedures.

Initial confusion about how to access the conference room papers and new procedures to submit textual proposals could quickly be overcome. But there was something else different this time: Observers were not allowed in the room. Due to Covid-19 regulations, the number of representatives per delegation was reduced to two per state delegation, leaving observers excluded from the conference room.

Observers include intergovernmental organisations, such as regional fisheries management organisations, the United Nations Environment Program, the International Seabed Authority, or the Convention on Biological Diversity- actors that have previously been present in the room and actively engaged in the discussions. Moreover, observers consist of representatives from media, industry and environmental non-governmental organisations – including an alliance of more than 40 NGOs (the High Seas Alliance) which have been contributing significantly to the exchange among governments during the intersessional period. Last but not least, the whole academic community from research institutes and universities, representing the social and natural marine science communities from around the world, including DOSI (the deep ocean stewardship initiative) or the International Studies Association were – despite their successful registration – not allowed to access UN premises. Registered observers could follow the negotiations online and email their statements to the Secretariat for publication on the Conference Website but not attend and intervene in the sessions, which was criticised by several state delegations.

The MARIPOLDATA Team members Ina Tessnow-von Wysocki and Arne Langlet are following the negotiations from the office in Vienna.

Half- way into the negotiations: How was the time used?

Taking stock of the progress of the first week of negotiations, the package elements Capacity-building and Transfer of Marine Technology (CBTMT), Marine Genetic Resources (MGRs) and Area-based management Tools (ABMTs), including Marine Protected Areas (MPAs) were addressed by negotiators. Using our systematic fieldnotes taken on the basis of ethnographic data collection- MARIPOLDATA can display the net speaking time of delegates on the different articles of the draft text, as illustrated in Figure 1.

Figure 1 – Discussion Time by Topic

Whereas on the ABMTs/MPAs, speaking time was relatively equally divided among the three articles under discussion (identification of areas, decision-making and international cooperation and coordination), the most negotiation time on both MGRs and CBTMTs focused on a single article. In the MGR chapter, the article Collection of and Access to MGRs and in the CBTMT Chapter the article Modalities (with the link to the article on additional modalities) took up considerably more time to discuss than the remaining issues.

While delegates spent slightly more time discussing the chapters Negotiation of MGRs and CBTMT chapters were characterized by lengthier discussions and significantly more interaction between state delegates (see table 1) indicating that these were the more controversial topics in the first week. In the following sections we give an overview of the topics discussed and identify areas of convergence and divergence of views.

Table 1 – Recorded Number of Statements per Package Item

How to build capacity and transfer marine technology?

Technology (CBTMT). Main discussion points were whether CBTMT should be country-driven or needs-driven. While there was general convergence of views that duplication should be avoided when it comes to research projects and funding, opinions were raised that a positive phrasing might be more appropriate, along the lines of “building on existing”, to avoid complicated discussions around the definition of “duplication”. Another main point was to what extent modalities of CBTMT needed to be specified in the BBNJ treaty text as opposed to tasking the COP with the development of such. The IOC criteria and guidelines on the transfer of marine technology were repeatedly mentioned as best practice and valuable guidance to the COP. The main complication remained with the question whether or not CBTMT needed to be an obligation or voluntary. Japan and UK expressed concern that unless the voluntary vs. mandatory question was settled, it would be difficult to decide on concrete provisions in this article. Proposals were raised to merge Art. 43 and 44; or 44 and 45 by several delegations.

The second day started right where delegated left off the day before: A possible indicative, non-exhaustive list of types of CBTMT was discussed under Art. 46 to which states voiced contrary positions (Table 2). Meaningful for most developing countries, developed countries were skeptical of the usefulness of such a list in the treaty text and mentioned their concern over difficulties in amending it over time. The discussions ended with the three options: a) list in the draft text(Art. 46 1; Art. 46 2) and/or annex ii, b) no list c) list in official report of the conference but not in the agreement as such.

Table 2 – Contentious Articles in the CBTMT Chapter

Other contentious topics regarding the Article on modalities were whether the agreement shall ensure or promote the access to CBTMT (Art.44 (1)), and potential obligations for the COP to develop detailed modalities (Art. 44 (5)) (see Table 2). Delegations needed to sit together after the end of the sessions to develop some creative language in finding a middle ground between the strong and mandatory language of “shall ensure” and the loose language on the other end of “shall promote” and consider the different tasks that the COP should be covering in light of the whole agreement.

Table 3 – Articles with most flexible positions in CBTMT Chapter

When monitoring and review (Art. 47) in the section of CBTMT was discussed, some voices raised the call for having a single article on monitoring and review to cover the whole agreement, rather than in each section. Discussions surrounded whether subsidiary bodies should be mentioned in the article or left for the COP to establish if needed in the future. There was also some discussion on the term relevant actors vs. relevant stakeholders (Art. 47 (4)) regarding the scope of inclusion (e.g. the private sector). The Alliance of Pacific Small Island States (PSIDS) and the Caribbean Community (CARICOM) stressed the importance of monitoring control and surveillance to be taken up – possibly also in a different part of the agreement, which will be considered by the EU. Generally, states showed flexibility on the topic of monitoring (Art. 47), whether to have an article on types of capacity building (Art. 46) and on the objectives of CBTMT (Art. 42) (Table 3). Except for contrary voices from Russia and China, there was also agreement on including Strategic Environmental Assessments (SEAs). Despite some disagreements on the inclusion of a list of countries, there was overall support for reporting of CBTMT (Art. 47 (5)).

The negotiation room from the “online” perspective with only two representatives per delegation allowed in the room.

All agree that sharing is caring – But what and how, with whom, when?

After concluding the session on CBTMT, delegations had a short “switch over”- to exchange the responsible delegates from CBTMT to the Marine Genetic Resources (MGR) experts, as only two representatives were allowed in the room. Facilitation of the session was again guided by the president of the conference Rena Lee.

The discussion immediately showed the discrepancy between views on whether to talk about collection of or access to MGRs (Art. 10 (1 & 6), calling into the minds the deep divergence of views regarding access and benefit sharing (ABS) schemes. When discussions delved into the topic of how to set up a system for the collection/access to MGRs: two broad options were a) a notification and b) permit/license system. Broad agreement could be settled on a notification system– meaning that with a notification, the research cruise/collection/access activity could be undertaken and no prior permission needs to be issued. However, as there is a myriad of ways of such as notification scheme can look like, whether or not it would entail pre-cruise, post-cruise notification or both, the timeframes when those needed to be done and what should be notified, considering issues of confidentiality.

While delegations could agree on some sort of mandatory benefit sharing mechanism, the usual disagreement between whether or not benefit sharing would include only non-monetary or also monetary benefits came up under Art. 11 (2) (See Table 4) and was not resolved. The EU offered a suggestion to include financing of research projects as monetary benefit sharing. However, developed countries did not agree to the sharing of monetary benefits of products that derived from MGRs in ABNJ. Overall, disagreement on the inclusion of in silico digital sequence information and genetic sequence data could not be settled.

Table 4 – Contentious Articles in the MGR Chapter

Article 10, paragraph 5 caused disagreement on two issues: whether it is necessary to specify that state parties shall take the necessary legislative, administrative and policy measures to ensure the application of the MGR chapter in particular, or sufficient to have such a provision in general for the whole instrument. The heavier disagreement however was on the question whether adjacent coastal states should have particular rights to be notified and consulted when activities in relation to MGRs are undertaken in areas adjacent to their waters (See Table 4), a conflict which was responded to with the idea of an automatic system to notify all states.

Despite the differences, there were moments of efforts for approaching agreement. If we had not heard the facilitator giving Iceland the floor, one could have thought the facilitator had spoken the words of encouraging “solutions that the majority of us can accept, maybe not what we had in mind when we first joined the table, but what accommodate most. […] creative ways to accommodate everybody’s interests” (MARIPOLDATA Fieldnotes, March, 7^th, 2022, 4:11 pm EST).

Discussions went on into the next day (day 4), where is became clear that developed countries were not supportive of the term “monitoring” and rather opted for “transparency”. Brazil on behalf of the Core American Country Group (CLAM) presented a proposal for an access and benefit-sharing (ABS)scheme based on the idea to track and trace the use of MGRs, and the EU proposed an ABS scheme with a focus on transparency. A number of delegations expressed their flexibility in regards to the EU proposal. Delegations also showed flexibility to include the Article 10bis which was proposed by the PSIDS on the rights of traditional and indigenous knowledge holders in relation to MGRs.

Table 5 – Articles with most flexible positions in MGRs Chapter

The next difficult conversation evolved around whether or not and to what extent the agreement should apply to fish or fishing activities (Art. 8 (1)). No state delegation wanted fishing or fisheries to be regulated by the new agreement, however – apart from some few exceptions – there was strong support for fish to be covered in the agreement, as it is part of biodiversity.

When water turns into ice: Negotiations in ABMT session freeze

Without reaching agreement on the key issues of which kinds of benefits to be shared and whether or not to include monetary benefits, the agenda moved on to Area-based Management Tools (ABMTs), including Marine Protected Areas (MPAs). The atmosphere in the room changed completely, and convergence on a range of issues could be found. There was general agreement on taking precaution and a potential indicative list of criteria was debated. All delegations speaking in favour of the need for science-based criteria and including a reference to traditional knowledge of Indigenous Peoples and Local Communities. Some drafting and merging of provisions from Art. 16 (4) with Art. 17 were discussed and the session ended early and with friendly laughs among colleagues as if they were all representing the same delegation.

As lovely the previous session had ended, as cold and confrontative negotiations started the next morning with the statement by Russia that – while some convergence might have happened – no consensus was reached on the previous ABMTs session. Delegates and observers knew that the provisions on the relationship with existing instruments was a topic of confrontation (Art. 15), which was yet to come. Our analysis shows states expressed contrary positions particularly in Article 15, paragraph 3 on whether states shall make arrangements for consultation and coordination with other instruments (See Table 6). Several delegates circulated in the debate about the definition of (not) undermining, while some were referring to undermining institutions and others stressing that this discussion should focus on not undermining mandates and the effectiveness of measures. Confusion about the definition of complementarity was responded to with useful examples and best practices from cooperation between NEAFC and OSPAR. The difference between relevant and competent global, regional, subregional and sectoral institutions, frameworks and bodies (IFBs) was highlighted by Monaco, who preferred the term relevant (incorporating a larger number of stakeholders) in the consultation process for ABMTs, including MPAs, and competent IBFs when it comes to the issue of undermining. There was also disagreement whether the title of Article 16 should read “Identification of areas” or “Identification of areas requiring protection” and whether to refer to a list of criteria in annex 1 (Table 6).

Table 6 – Contentious Articles in the ABMTs/MPAs Chapter

The change of atmosphere in the room was visible, but then some states showed almost surprising flexibility – notably Iceland – no longer holding onto their traditional position in the negotiations (of a strict regional approach), introducing constructive proposals. “We have been on a more regional approach [refers to Art. 19, Alt.2], but the time of binary is over” (MARIPOLDATA Fieldnotes, Iceland, March 11, 2022, 4:08 pm EST). These sparks of hope for consensus brought light into the otherwise split discussions. Some states showed flexibility in regards to the general inclusion of Articles 15 and 16, and indicated that the second sentence in Art. 16 – referring to the best available science – could potentially be a way forward (Table 7).

Table 7 – Articles with most flexible positions in ABMTs/MPAs Chapter

Diving into the second week of negotiations

Delegates showed some flexibility on certain issues and negotiations started removing brackets in the draft text – meaning to progress the text towards consensus. At the same time, however, it became clear that initial divergence on key issues – such as the nature of benefits to be shared and its process, whether to protect biodiversity from impacts of activities in general or just from high seas activities or how to situate BBNJ in the landscape of existing instruments – could not be resolved in the lengthy intersessional period and remain until this day. Without anyone daring to say it out loud, it is in everybody’s minds – in order to have agreement on these issues, one more week seems to be too little time.

The week starting from the 14^th of March, 2022 will cover the remaining package element of Environmental Impact Assessments, as well as cross-cutting issues and will allow time for stock-taking. What else will be new? After continuous pressure from the High Seas Alliance and statements by state delegates, calling for civil society participation, three representatives of observers will now be allowed in the room.

Observations of the first week of negotiations show that the contrasting views of the past continue to divide current state positions. For example, the eternal and profound divide between supporters of the common heritage of mankind principle and their opposition is still present when delegates discussed the MGR topic. The hardened position of much of the developing world on the MGR and related CBTMT topic can be attributed to the deep mistrust that has built since the entry into force of UNCLOS. As the delegate of Bangladesh eloquently expressed: developing countries are disappointed that even though capacity building is foreseen in UNCLOS, it has not materialized since its entry into force 40 years ago (MARIPOLDATA Fieldnotes, Bangladesh, March 7, 2022, 4:23 pm EST). This may explain why developing countries insist on a great level of detail in the CBTMT chapter combined with obligatory language. However, one may also recall that the conservation of marine biodiversity is one of the main goals of this treaty. Discussions on the establishment of ABMTs, including MPAs and the conduct of EIAs, essential to achieve this aim however, have been taken a backseat in the first week of negotiations. The BBNJ Treaty presents a unique opportunity to establish a global network of MPAs that are globally recognised and in the best case jointly monitored by regional and global institutions. Therefore, it is regrettable that advances in the negotiations are held back by disagreements over the exploitation and allocation of resources, rather than focusing on a holistic solution for ocean protection.

This is now the time for delegations to approach one another with more flexibility and the realisation that this agreement is at the end of the day not for one country alone, but in the joint interest of all and future generations to come. This means that countries should acknowledge the deep material inequalities that exist between the developed and the developing world in exploring, exploiting and protecting the ocean. This instrument can address these – to the benefit of all. At the same time, while discussions on MGRs and potential benefit-sharing as well as the monitoring of such efforts are important, countries should not lose sight of one of the main objectives of this negotiation process, namely the conservation of marine biodiversity. We saw also that, although some states indicated to be flexible about certain provisions, there is much room for improvement in making “flexible our new favorite word” as the President of the conference Rena Lee suggested to delegations.

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