Maripoldata Blog

When Science meets Policy to talk about Marine Biodiversity: Bringing together Academics and Practitioners in a Conversation about the Marine Biodiversity Negotiations

20. December 2021/in General /by Ina Tessnow-von Wysocki

MARIPOLDATA gathered scientists and policy-makers in the Intersessional Period of the new BBNJ agreement at the Earth System Governance in an Innovative Session: United Nations Negotiations for the Future of Marine Biodiversity: A conversation among Academics and Practitioners on the BBNJ Negotiations, chaired by Assoc. Prof. Dr. Alice Vadrot and Ina Tessnow-von Wysocki.

A recording of the panel is now available here:

In the framework of the innovative panel, scientists met with national delegates, as well as representatives of non-governmental organisations that are participating in the negotiations to:

discuss the current stage of the BBNJ negotiations, the potential final agreement, and the role of the intersessional work;
share their expert knowledge and experiences on the current state and development of the BBNJ negotiations; and
reflect on new findings of BBNJ research and current political developments within the BBNJ process.

Keeping the Momentum for Marine Biodiversity Negotiations

What is happening while Marine Biodiversity Negotiations are being postponed?

The United Nations are currently negotiating a new 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). The new treaty is expected to set new regulations for marine genetic resources (MGRs), area-based management tools (ABMTs), including marine protected areas (MPAs), environmental impact assessments (EIAs) and capacity building and the transfer of marine technology (CB&TT) (Tessnow-von Wysocki & Vadrot, 2020). Originally, the aim was to terminate negotiations in March 2020, but due to the Covid-19 pandemic, negotiations were postponed continuously and the next tentative date is March 7^th-18^th 2022.

There are several initiatives happening in the intersessional period – the time in between the conferences – to keep the momentum. The most prominent initiatives include the Intersessional Work[1], organised by the UN Secretariat as an online platform for BBNJ participants to exchange views on package elements, and guiding questions that have been formulated by the facilitators of the conference and provide virtual webinars on BBNJ topics. Moreover, the governments of Belgium, Costa Rica, Monaco and a number of non-governmental organisations (NGOs) (the High Seas Alliance) have organised High Seas Online Dialogues[2], in which BBNJ participants can interactively engage verbally in 3-hour-long sessions on selected topics.

The MARIPOLDATA team facilitated an inter- and transdisciplinary dialogue among the scientific community and fostered the science-policy interfaces for BBNJ by introducing a number of outputs to inform the negotiations and keep the momentum (See: MARIPOLDATA Ocean Seminars; MARIPOLDATA BBNJ Governance Database ; MARIPOLDATA Country Dashboard).

As part of the Earth System Governance (ESG) Conference on September 7^th 2021, the MARIPOLDATA team brought together 10 scientists and practitioners on BBNJ to discuss recent developments in the BBNJ negotiations, to identify key areas still to be negotiated in each of the package elements and cross cutting issues and point to how research can contribute to the BBNJ agreement. This innovative panel brought together the different groups engaging in the BBNJ process, including social and natural scientists researching on BBNJ, as well as practitioners who are actively engaged within the negotiation process. It provided an opportunity for a fruitful exchange on different perspectives to existing research and new linkages of research findings among diverse disciplines.

Recent BBNJ Research Findings and Ongoing Projects

Scientists from the fields of Law, Political Science, International Relations, Ocean and Coastal Governance, Environmental Studies and Deep-Sea Biology were invited to join the panel and share their most recent scientific findings related to the BBNJ process.

Researching the Deep-Sea

The deep-sea biologist Dr. Georgios Kazanidis shared experiences from the iAtlantic project, an EU-funded, multidisciplinary research programme seeking to assess the health of deep-sea and open-ocean ecosystems across the full span of the Atlantic Ocean. iAtlantic undertakes ocean observation, ocean mapping, ecosystem assessment, capacity building, and sustainable management of deep-sea and open ocean ecosystems in the North and South Atlantic Ocean.

He particularly emphasised the need to collaborate among different disciplines and geographical regions, include early career researchers in marine scientific research[3], and organise joint workshops among scientists, industry, NGOs and policy-makers.

Following the panel, he shared his co-authored study on a common assessment framework for areas beyond national jurisdiction (ABNJ) that would enable comparable environmental assessments and facilitate monitoring (Orejas et al., 2020), which can contribute to ABNJ governance in the future. iAtlantic’s policy briefs communicate research findings in an accessible way, such as the ATLAS and iAtlantic Policy Brief – Changing Ocean State and its Impact on Natural Capital, explaining how ocean currents are impacting the climate, as well as locations and abundances of marine biodiversity at the surface and in the deep-sea (Spooner et al., 2020). The policy brief has also highlighted that continued observations and improved biological understanding are both needed to assess oceanographic change and its ecological implications.

The Design of the New Agreement

In the making of the new legally binding instrument for governing marine biodiversity in ABNJ, ongoing research surrounds questions on the design of the BBNJ agreement. Assistant Professor Dr. Elizabeth Mendenhall and Prof. Rachel Tiller are, with their research team colleagues, Elizabeth Nyman, and Elizabeth de Santo, particularly interested in what explains the final design of the BBNJ agreement. Prof. Mendenhall presented on the ambiguous definition of “areas beyond national jurisdiction” as regards the undecided extended continental shelf question, leaving the boundaries of ABNJ unclear. Moreover, while coastal states have sovereign rights over their continental shelves and their resources, there is legal uncertainty on the sovereignty over resources on the extended continental shelves. This includes the question of sedentary species but also on the access and use of marine genetic resources (MGRs) in these areas. The definition of sedentary species as “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil” (UNCLOS, Art.77) is identified as quite ambiguous and could trigger further conflicts over the sovereignty over living resources on the extended continental shelf. If this is not addressed in the BBNJ agreement, the ambiguous definition of Art.77 would apply. Mendenhall could imagine a moratorium on the exploitation of MGRs in these ambiguous areas as one option to achieve legal clarity. She points to the fact that so far, there have been 88 submissions for the extended continental shelf, leaving many potential coastal states submissions for the future to define and the boundary of ABNJ ambiguous. Mendenhall suggests discussing this issue within the BBNJ negotiations to prevent misinterpretations over governance responsibilities and whether BBNJ governance will be different regarding the “Area” and the extended continental shelf, in the years and decades to come. Prof. Dr. Rachel Tiller shared her research on the Arctic and BBNJ and pointed to potential conflicts regarding resources in the Arctic ABNJ, including oil, gas or MGRs.

Prof. Dr. DG Webster and Associate Prof. Dr. Leandra Goncalves co-lead the Taskforce on Ocean Governance, a new collaboration of researchers on marine issues within the Earth System Governance Community. Their research focus lies on the institutional design of the BBNJ agreement, pointing to the threat of creating “panaceas” out of well-intentioned provisions. Some issues can be interpreted differently among actors, which on the one hand is an opportunity for compromise, but on the other hand guards the threat of leading to ineffective governance. This can be seen in the case of establishing ABMTs in areas of little economic activity to enhance political willingness and implementation. Prof. Webster cautions that some actors might be interested in ambiguous language to prevent specific rules and regulations and continue to use the ocean’s resources as the status quo currently allows the exploitation of MGRs without further details in regulation. Assoc. Prof. Goncalves focuses on the case of Brazil and political, economic intentions behind its foreign policy within the BBNJ negotiations. She is observing the role of Brazil and the influence of the current government within the negotiations and regional groups, namely the Core Latin American Countries (CLAM) and the Group of 77 and China.

Providing Capacity for Implementation

Ensuring that all states have the capacity to implement the BBNJ agreement requires capacity building and the transfer of marine technology (CB&TT). Dr. Harriet Harden-Davies, Nippon Foundation Ocean Nexus postdoctoral research fellow at the Australian National Centre for Ocean Resources and Security at the University of Wollongong, focuses her research on Capacity building and Technology Transfer concerning the BBNJ agreement.

While UNCLOS lays out regulations for the transfer of marine technology, technical capacities for conducting ocean science are still unequally shared among countries and regions. Capacity building and technology transfer includes access to data, training courses, time at sea, research cruise and cooperation. While these are in general very useful initiatives, however, Harriet stresses that they do not work well as a “one way donation”. Harriet emphasises the need for genuine, collaborative two-way partnerships, designed to meet the needs for ocean-dependent people from the start. Within the BBNJ draft, she applauds the envisaged multi-way partnerships and the references to needs assessments, meeting self-determined priorities of ocean-dependent states (Art. 44 and 46). She also highlights the importance of the Clearing House Mechanism (Art. 51), Funding (Art. 52) and Monitoring and Evaluating the long-term outcomes of capacity building, instead of individual outputs.

What is the State of the BBNJ negotiations? – Where are we now?

With more than 2 years of intersessional period, there has been some progress in the negotiations on a number of issues, thanks to the online discussions, online webinars and workshops and bilateral and multilateral meetings on national, regional and international levels.

Despite progress on some issues, many are still unresolved that will need to be discussed – ideally before the final round of negotiations in New York next March. With experts from governmental, former UN agencies and non-governmental actors, who have been actively involved in the political discussions since the early beginnings of the BBNJ negotiations, the panel identified main areas of divergence in the negotiations that yet need to be resolved.

We invited Gabriele Goettsche-Wanli, former Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs and Sophie Mirgaux, Belgium’s Special Envoy for the Ocean, who are both actively involved in moderating and organising the High Seas Treaty Dialogues, an important informal exchange between BBNJ stakeholders in the intersessional period. Moreover, we invited Kahlil Hassanali, a negotiator in the BBNJ negotiations for the regional group Caribbean Community (CARICOM) and Julian Jackson, a non-state actor, representing The Pew Charitable Trusts in the BBNJ process.

Using and Sharing the Riches of the Ocean

If you are new to the negotiations and you are looking at the outstanding issues of the package element of marine genetic resources (MGRs), you might wonder whether this topic has not been included so far in discussions. We asked Gabriele Goettsche-Wanli, former Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, to summarise outstanding issues of this package element. The very key questions of whether, if so how, when and by whom, benefits from MGRs will be shared and whether this will be voluntary or mandatory are not yet agreed upon. This is largely due to the long entrenched conflict between the supporters of the principle of common heritage of humankind, and the proponents of the principle of the High Seas for the governance of MGRs in areas beyond national jurisdiction (ABNJ) (Vadrot et al., 2021).

The discussion whether benefits from MGRs that originate from areas beyond national jurisdiction have been present since the very beginnings of the negotiations and are to date not resolved (Vadrot et al., 2021). Global commons are resources that do not belong to anyone, but need to be jointly shared and protected, while at the same time, UNCLOS sets out general rights and obligations for activities on the High Seas. In this regard, there are opposing views whether MGRs should fall under the Common Heritage of Humankind or the Freedom of the High Seas Principle.

Further contentious points regard what will ultimately fall under MGRs – will this be only marine genetic material that is found in the ocean (in situ), or does it also include samples stored elsewhere in collections (ex situ), and data on these resources in digital form and their genetic sequences (digital sequence information – DSI) and derivatives?

Regarding traditional knowledge of Indigenous Peoples and Local Communities, the discussions are still ongoing how this knowledge can be accessed, if at all – will it need to be based on the free, prior and informed consent of the traditional knowledge holders and how will it be shared ethically if the traditions of passing on knowledge are inherently different to our technological ways of sharing data online?

Open questions also regard how the agreement will trace MGRs (Humphries et al., 2021) and whether and if so how intellectual property rights be addressed in the new agreement.

Limiting Exploitation of the Ocean

The panel also talked about the package element of Area-Based Management Tools (ABMTs), including Marine Protected Areas (MPAs). This provision seeks to protect certain areas from (unsustainable) human activities. There is already a patchwork of biodiversity governance existent with mandates to establish areas for conservation and sustainable use in different geographical regions and issue areas[4].

Therefore, political discussions often include a divergence of views on the relationship between the new BBNJ agreement and already existing instruments, bodies and frameworks that are governing marine biodiversity under specific regional and sectoral mandates. Fear of duplication and competition of mandates triggers arguments to “not undermine” existing efforts (Ardron et al., 2014; Friedman, 2019; Scanlon, 2018). In light of the connection of the ocean, it is evident that an effective conservation and sustainable use of marine biodiversity requires synergies to existing agreements. What state representatives in BBNJ exactly understand under “not undermining” is an ongoing discussion. Sophie Mirgaux, Special Envoy for the Ocean for the Belgian Ministry of Environment, clarifies that existing frameworks will not be wiped away by the BBNJ agreement, but that the new agreement can indeed have an effect on the existing:

She quotes Dire Tladi (Professor of International Law and SARChI Chair in International Constitutional Law at the University of Pretoria) in explaining that it is a basic rule in international law that states can adhere to more stringent rules in new agreements, which does not mean they are undermining another agreement they have signed in the past.

During the BBNJ negotiations, it is yet to be determined what role the Conference of the Parties (COP) will play – whether it should make recommendations, or ultimately decide on the establishment of ABMTs, including MPAs, and their management plans. Another outstanding question concerns the decision-making procedures. She cautions against taking decisions exclusively by consensus, as this bears the risk for inaction.

Living sustainably with the Sea

Another part of the new agreement regards Environmental Impact Assessments (EIAs) in areas beyond national jurisdiction. How will states agree to live sustainably alongside biodiversity without leaving a footprint that stays forever? In the package element regarding EIAs, there are still many issues to be agreed upon by BBNJ negotiators. Kahlil Hassanali, lead coordinator for EIAs for the Caribbean Community negotiating bloc (CARICOM), identifies three major unresolved areas that will determine the effectiveness of the EIA process in ABNJ in the future:

Firstly, the degree to which the BBNJ agreement will be internationalised has not been agreed on. This regards the question how to ensure genuine participation of all stakeholders, including marginalised or affected groups, as well as interested public. Moreover, internationalisation also concerns the discussion whether there should be global oversight over decision-making. This is particularly relevant as areas beyond national jurisdiction are a global common. He asserts that some developed countries would like to see this process to be “state-led”, meaning that the states proposing activities would be the ones ultimately deciding on whether the activity can take place. In light of the fact that the ocean is a global common and developing countries simply do not have the same capacities as developed countries to undertake activities in international waters, he suggests to introduce some sort of global oversight to ensure inclusive decision-making to permit activities.

Secondly, it is still unclear whether activities that are undertaken exclusively in ABNJ or whether all activities with an impact on ABNJ would be considered for the BBNJ EIA process. This discussion is delicate as states have certain rights within their territorial waters and exclusive economic zones.

Thirdly, questions remain on how the BBNJ agreement will interact with other existing processes (See not undermining discussion in previous section).

Sharing Knowledge with the World

There are global controversies regarding capacity constraints and uneven capacities to undertake research, including to access MGRs, designate and monitor ABMTs, including MPAs and to evaluate EIAs. The package element of Capacity Building and Transfer of Marine Technology (CB&TT) seeks to address this challenge; however, there are various outstanding issues still to be resolved.

Key issues concern the questions whether capacity building will be only voluntary or additionally include a mandatory component, who would benefit from CB&TT and whether it would be provided on mutually agreed terms and the inclusion of different types of CB&TT.

How to identify the needs of parties and who to benefit and what kind of CB&TT would be required. This triggers the question of whether there should be a list of CB&TT, the possibility of a potential CB&TT committee and whether a financial mechanism could provide funding covering CB&TT issues.

Further outstanding issues regard how the package element of CB&TT relates to cross-cutting issues, for instance, the clearing house mechanism. How would this data-sharing platform most effectively support the CB&TT package element?

The Devil in the Detail

It is yet to be seen if the BBNJ agreement will be ambitious. What this essentially means is: Now is the drafting stage of the agreement, what goes into the agreement now, will be carved into the marvel of international law. Not to say, that this will be set in stone, but it will set the guidance for how humans will govern areas of the ocean that are so far away from our shores where one may not feel connected to this part of the planet but in reality, is the soul of our existence.

Civil society actors are involved in the BBNJ negotiations, represented through a number of different NGOs, including The PEW Charitable Trusts. They have an important role in strengthening transparency and accountability of the process. By observing the discussion, they can provide information for other NGOs that are not able to attend, which is done through their publications, as well as the High Seas Alliance Treaty Tracker. In this way, momentum can be kept among negotiators and in society; and political pressure be built. Civil society organisations also take part in actively supporting the process through capacity building in form of providing basic background for newly joining delegates in the BBNJ process.

Julian Jackson explains the important details of the agreement that need to be understood and closely considered to ensure an ambitious treaty for the ocean: For an ambitious treaty, the precautionary approach and a robust mechanism for environmental impact assessments are important for The PEW Charitable Trusts.

He points to the possibility of exclusions in international law, meaning that states can identify different parts of the agreement, to which they would not need to adhere to, inherently decreasing the ambition and potentially also the effectiveness of the agreement. He emphasises the importance of no exclusions. He is particularly concerned about the discussion among negotiators to exclude fish from the agreement. This is closely connected to the “not undermining” discussion, and would mean that fish would not be regarded as marine biodiversity to be conserved and sustainably used. He stresses the need for the BBNJ agreement to complement Regional Fisheries Management Organisations, but also the relationship to other issues related to marine biodiversity, such as shipping and deep-sea mining.

Another unresolved issue is under which condition the agreement should enter into force. There are several options of how this could look like, e.g. certain number of signatories. However, it is important to balance between an early entry into force vs. a larger number of signatories (up to universality of the agreement). While it is necessary to have a legally binding agreement on this issue as soon as possible, it also needs to have a meaningful number of parties as signatories.

Identified main areas of divergence in the negotiations also include compliance and dispute settlement and the role of the clearing house mechanism for each of the package elements. There is also an ongoing concern of non-parties to UNCLOS about their status in the BBNJ agreement that would have to be solved.

How can Research contribute to the BBNJ process?

The BBNJ process has contributed from research by multiple fields and continues to be informed by new knowledge. Political momentum and targets can be created on the basis of scientific findings, such as in the case of the 30×30 campaign which aims to protect 30% of the Ocean by 2030[5]. Practitioners emphasised the importance of science for the BBNJ negotiations, throughout the BBNJ process and beyond. If you are a scientist working on or planning to work on marine biodiversity, here are some ideas from the practitioners that would be needed in the BBNJ process:

Social Science

Integration of traditional knowledge of indigenous Peoples and Local Communities (and other forms) into the different BBNJ package elements
(Under-) representation of stakeholder groups in the BBNJ process, how they can engage and their voices be heard
Role of Coastal States; marginalised groups, indigenous Peoples and Local Communities

Natural Science:

Climate change science (Climate- Ocean Nexus)
Research on mesopelagic fish and impact on carbon cycle
Biological research
Recent scientific development of handling samples (of MGRs)
Information on scientific practices concerning the access and use of MGRs
Scientific capacities and needs in different regions

Social & Natural Science:

Connection between ABNJ and Coastal Waters: effects on a) (marine) ecosystems; b) coastal states and other actors
Science-policy interfaces and how can they be improved
Research on human-ocean relationship
Effective management measures for MPAs
Research on the technical side: monitoring, control and surveillance options (e.g. non-human drones)

Sometimes, getting the information the policy-makers seems to be a hindrance, with a myriad of information out there. Science-policy interactions, such as organised meetings among scientists and policy-makers are valuable instances of exchange and mutual learning. Sophie Mirgaux emphasised the openness of the Belgium government and the EU to new scientific findings and encouraged scientists working on these issues that have not had direct contact with policy-makers to contact the ministries directly. These will forward requests to the responsible department. Participant lists are available for the BBNJ negotiations (and other negotiations) where names of state delegates can be found to direct the email to. Julian Jackson stressed the importance for scientists to inspire others and “get people excited about the deep sea”.

What can you do?

You are a scientist? Explain and communicate your research to policy-makers and society; reach out online/on site at conferences; show why your research matters to you; talk to other scientists; participate in panels and meetings and workshops.

You are a policy-maker? Take time to understand the relevance of research in your issue area (for you and others); identify links to other agreements; be open to innovative thoughts from scientific communities; participate in panels, meetings and workshops; think outside of the box.

You are a world citizen? Be interested and informed about what is happening in BBNJ; use the High Seas Alliance Treaty Tracker; Earth Negotiation Bulletin; get involved.

You are all of the above? Bring them together; share your knowledge; engage.

Overwhelmed?

Take the first step into unknown waters…

Helpful information links on BBNJ:

United Nations Website on BBNJ; – Formal Website with all documents and dates

BBNJ Informal Intersessional Dialogues (High Seas Treaty Dialogues) Informal Exchanges in Intersessional Period

MARIPOLDATA BBNJ Governance Database; Overview of the Science on BBNJ Governance

MARIPOLDATA Country Dashboard; Information on Actors and Topics in BBNJ

MARIPOLDATA Ocean Seminars; Monthly discussions with experts on Ocean Science and Governance

High Seas Alliance Treaty Tracker; Summaries and Analyses of Positions in BBNJ

Earth Negotiation Bulletin; Daily BBNJ News during Conferences

Newsletters/ Events:

MARIPOLDATA

DOSI

IDDRI

References

Ardron, J. A., Rayfuse, R., Gjerde, K., & Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Marine Policy, 49, 98-108. doi:10.1016/j.marpol.2014.02.011

Barros-Platiau, A.F., Søndergaard, N., & Prantl, J. (2019). Policy networks in global environmental governance: connecting the Blue Amazon to Antarctica and the Biodiversity Beyond National Jurisdiction (BBNJ) agendas. Revista Brasileira de Política Internacional, 62. Retrieved from http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0034-73292019000200206&nrm=iso

Blasiak, R., Pittman, J., Yagi, N., & Sugino, H. (2016). Negotiating the Use of Biodiversity in Marine Areas beyond National Jurisdiction. Frontiers in Marine Science, 3. doi:10.3389/fmars.2016.00224

Clark, N.A. (2020). Institutional arrangements for the new BBNJ agreement: Moving beyond global, regional, and hybrid. Marine Policy, 104143. doi:https://doi.org/10.1016/j.marpol.2020.104143

De Santo, Ásgeirsdóttir, Á., Barros-Platiau, A., Biermann, F., Dryzek, J., Gonçalves, L.R., . . . Young, O. (2019). Protecting biodiversity in areas beyond national jurisdiction: An earth system governance perspective. Earth System Governance, 2, 100029. doi:https://doi.org/10.1016/j.esg.2019.100029

Friedman, A. (2019). Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction. ICES Journal of Marine Science, 76(2), 452-456. doi:10.1093/icesjms/fsy192

Gjerde, K., Clark, N., & Harden-Davies, H. (2019). Building a Platform for the Future: the Relationship of the Expected New Agreement for Marine Biodiversity in Areas beyond National Jurisdiction and the UN Convention on the Law of the Sea. Ocean Yearbook, 33, 1-44. doi:10.1163/9789004395633_002

Hassanali, K. (2021). Internationalization of EIA in a new marine biodiversity agreement under the Law of the Sea Convention: A proposal for a tiered approach to review and decision-making. Environmental Impact Assessment Review, 87, 106554. doi:https://doi.org/10.1016/j.eiar.2021.106554

Humphries, F., & Harden-Davies, H. (2020). Practical policy solutions for the final stage of BBNJ treaty negotiations. Marine Policy, 104214. doi:10.1016/j.marpol.2020.104214

Humphries, F., Rabone, M., & Jaspars, M. (2021). Traceability Approaches for Marine Genetic Resources Under the Proposed Ocean (BBNJ) Treaty. Frontiers in Marine Science, 8, 430. Retrieved from https://www.frontiersin.org/article/10.3389/fmars.2021.661313

Mossop, J. (2018). The relationship between the continental shelf regime and a new international instrument for protecting marine biodiversity in areas beyond national jurisdiction. ICES Journal of Marine Science, 75, 450. doi:10.1093/icesjms/fsx111

Orejas, C., Kenchington, E., Rice, J., Kazanidis, G., Palialexis, A., Johnson, D., . . . Roberts, J. M. (2020). Towards a common approach to the assessment of the environmental status of deep-sea ecosystems in areas beyond national jurisdiction. Marine Policy, 121, 104182. doi:https://doi.org/10.1016/j.marpol.2020.104182

Payne, C. (2020). Negotiation and Dispute Prevention in Global Cooperative Institutions: International Community Interests, IUU Fishing, and the Biodiversity Beyond National Jurisdiction Negotiation. International Community Law Review, 22(3-4), 428-438. doi:https://doi.org/10.1163/18719732-12341439

Scanlon, Z. (2018). The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES Journal of Marine Science, 75(1), 405-416. doi:10.1093/icesjms/fsx209

Spooner P., Thornalley D., Cunningham S., & Roberts J.M. (2020). ATLAS Policy Brief – Changing Ocean State and its Impact on Natural Capital. https://doi.org/10.5281/zenodo.3946683

Tessnow-von Wysocki, I., & Vadrot, A.B.M. (2020). The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review. Frontiers in Marine Science, 7(1044). doi:10.3389/fmars.2020.614282

Warner, R. (2018). Oceans in transition: Incorporating climate-change impacts into environmental impact assessment for marine areas beyond national jurisdiction. Ecology Law Quarterly, 45, 31-51. doi:10.15779/Z38M61BQ0J

Wright, G., & Rochette, J. (2017). Regional Management of Areas beyond National Jurisdiction in the Western Indian Ocean: State of Play and Possible Ways Forward. The International Journal of Marine and Coastal Law, 32(4), 765-796. doi:https://doi.org/10.1163/15718085-13204020

Vadrot, A. B. M., Langlet, A., & Tessnow-von Wysocki, I. (2021). Who owns marine biodiversity? Contesting the world order through the ‘common heritage of humankind’ principle. Environmental Politics, 1-25. doi:10.1080/09644016.2021.1911442

[1] More information on the Virtual Intersessional Work: https://www.un.org/bbnj/content/Intersessional-work

[2] More information on these Informal Intersessional Dialogues: https://highseasdialogues.org/

[3] Information on the iAtlantic Fellow Scheme: https://www.atlanticfellows.org/

[4] See Figure in Tessnow-von Wysocki & Vadrot, 2020: https://www.frontiersin.org/files/Articles/614282/fmars-07-614282-HTML/image_m/fmars-07-614282-g001.jpg

[5] 30 x 30 initiative, See more information: https://www.oceanunite.org/30-x-30/

Assessing the human’s footprint on Ocean Biodiversity

8. October 2021/in General /by Ina Tessnow-von Wysocki

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. 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.

A New Agreement to Conserve and Sustainably Use Marine Biodiversity

Currently, states are negotiating a new legally binding agreement at the United Nations with the aim to conserve and sustainably use marine biodiversity beyond national jurisdiction (BBNJ). The new legal document seeks to fill regulatory gaps concerning the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction in the overarching ocean governance framework (the United Nations Convention of the Law of the Sea (UNCLOS)).

Negotiations at the UN level offer an opportunity to regulate so-called “global commons”- resources that cannot be owned by one state alone, but rather have to be shared amongst all for the greater good (Kok, 2011). Global commons include the atmosphere, outer space, Antarctica and the ocean – areas that need to be protected and regulated through international negotiations. In this regard, it is important to consider that decisions about the governance of these areas do not only concern the current human population, but also future generations and other living beings that depend on these areas. With this in mind, there is a huge responsibility that rests on the negotiators and the organizing Secretariat (The United Nations Division for Ocean Affairs and the Law of the Sea, UNDOALOS) of finalising an ambitious agreement in due time.

Assessing human impacts on Ocean Biodiversity

One pillar of the new agreement is to establish a process for conducting environmental impact assessments (EIAs) to ensure the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) (Tessnow-von Wysocki & Vadrot, 2020).

Environmental impact assessments evaluate, mitigate and monitor the impact of proposed and ongoing activities on the (marine) environment. In this way, environmental impact assessments serve to predict, reduce and prevent the adverse impacts of human activities (Durussel et al., 2017). Scientists have pointed out shortcomings of the current governance framework (Doelle & Sander, 2020; Durussel et al., 2017; Ma et al., 2016; Warner, 2018). A global, standardized procedure for EIAs is therefore needed, permitting or prohibiting activities in ABNJ, to effectively prevent negative impacts on the marine environment and protect the global commons. Large scale activities are envisaged or already planned that might have an adverse impact on the environment, such as building cities in the ocean – not to speak of the activities in the far future, that we cannot even imagine with our highest technology today.

There are already broad international guidelines in place regarding environmental impact assessments. The United Nations Convention of the Law of the Sea (UNCLOS), adopted in 1982, is regarded as “the Constitution of the Ocean”[1]. UNCLOS Art. 192 establishes the “general obligation for states to protect and preserve the marine environment”. To reduce and prevent environmental damage by human activities, UNCLOS already sets a broad framework for monitoring and environmental assessment (Part XII, Section 4).

UNCLOS Art. 204 requires that States evaluate the risks or effects of pollution of the marine environment and keep under surveillance the effects of any activities which they permit or in which they engage in. Art. 205 further specifies that reports need to be published at appropriate intervals and made available to all States. Art. 206 emphasizes the obligation for states to assess adverse impacts of their planned activities.

The Process of Environmental Impact Assessments under the new BBNJ Agreement

In order to implement the provisions of UNCLOS, the new BBNJ agreement seeks to set out the EIA process in more detail. Throughout the ongoing BBNJ negotiations, a draft text[2] has been developed which is a working document that will ultimately be decided on to become the legal text for the BBNJ Agreement. The section on EIAs is the longest in the draft text and covers the envisaged procedure for EIAs in ABNJ once the treaty enters into force. While an overall procedure is agreed on, important details lack consensus that will ultimately determine the ambition and effectiveness of assessing the impacts of human activities on marine biodiversity in the future. In the following, crucial issues of divergence are described in each of the steps of the EIA process:

EIA process envisaged in BBNJ, Source: Author

Assessment of what?

The first step of the EIA process is the “Screening” (Art.30) on which basis, it will be determined if an EIA needs to be conducted. There is agreement that the respective state will undertake the screening for activities taking place under its national jurisdiction or control. It is clear that EIAs assess negative impacts on the environment. However, policy-makers have not yet agreed on where to draw the line between impacts that are acceptable – in which case activities can go ahead without the need for an EIA – and the impacts that are potentially harmful so that the planned activity needs to undergo an EIA. As the current draft text stands, there are several options for thresholds when an EIA should be undertaken (Art. 24): The first option is that activities that “may cause substantial pollution of or significant and harmful changes to the marine environment” need to undergo an EIA. The second option that the policy-makers are discussing is much more ambitious, as it calls for an EIA to be undertaken already when the activities “are likely to have more than a minor or transitory effect on the marine environment”[3]. The latter is supported by the regional groups of the Caribbean Community (CARICOM), the Pacific Small Island Developing States (PSIDS), the African Group and a number of NGOs (Intersessional Work, 2020, own observation; High Seas Alliance, 2020). A point of divergence is also whether the approval of the Scientific and Technical Body must be obtained and whether information should be provided in case the state concludes that an EIA will not be necessary (Art.30 (3)). Also, still under discussion is whether screening of activities will consider the characteristics of the area where the planned activity is taking place or where its effects will be felt. This is particularly relevant regarding the connectivity between the high seas and coastal waters (Livingstone & Jose, 2021) and whether the assessments should be exclusively dealing with impacts that arise from activities that take place in Areas Beyond National Jurisdiction– or also considers impacts of any activities (including those within national jurisdiction) that have an impact on ABNJ. The regional groups African group, and PSIDS, for instance, are strong supporters of the latter option (Intersessional Work, own observations, 2020). Possibly, an EIA will be required for areas of significance or vulnerability, even if impacts are expected to be minimal (Art. 30 (2)).

Also under discussion is the scope of EIAs- namely what kind of impacts are supposed to be assessed (Art. 31). The question here would be if there are other impacts, apart from environmental impacts, that would need to be considered, such as social, economic or cultural ones, which is already EIA best practice (CBD, 2010). Scientific literature emphasizes the need to account for cumulative impacts and climate change in EIAs and Strategic Environmental Assessments (SEAs) (Gjerde et al., 2016; Marciniak, 2017; Sander, 2016)). More recent literature also calls for additional regional environmental assessments (REAs) and the need for the new EIA regime to set out a comprehensive approach of REAs, SEAs and EIAs (Doelle & Sander, 2020). Despite the calls from the scientific community, the question on how to take into account cumulative impacts for environmental impact assessments is still under discussion in the ongoing negotiations (Art. 21bis). Negotiators have until the last round of discussions not agreed on the question how to operationalise Strategic Environmental Assessments (Art. 21bis; Art. 28), and whether or not to include a list of activities that would be exempted from or require an EIA (Art. 29).

How to assess and evaluate impacts?

One part of the draft text considers who would undertake the assessments and on which basis (scientific knowledge, other forms of knowledge, e.g. traditional knowledge of indigenous peoples and local communities). In this regard, differing capacities of states to undertake EIAs need to be considered and adequate expert advice be guaranteed (Art. 32). It remains to be seen to what extent science advice can be guaranteed through the BBNJ agreement – such as in the form of a pool of experts under the Scientific and Technical Body (Art. 32 (4)). Assessment could also regard prevention, mitigation and management of adverse effects, considering the development of alternative activities to the ones previously planned (Art. 33).

Who should be kept in the loop?

When activities are planned in ABNJ, the question arises of who should be notified of these plans and included in the EIA process. There are discussions about the inclusion of potentially affected states, relevant bodies, NGOs, and other stakeholders, such as indigenous peoples and local communities, academia and the general public (Art.34). The inclusion of stakeholders, other than the states, that are planning the activity is crucially important for the transparency and legitimacy of the process. However, there is no consensus yet on how participation and consultation of other stakeholders should look like.

EIA Reports: How to prepare, where to publish?

While there is general agreement that states would be the ones preparing EIA reports (Art. 35) and ensuring that they are published (Art. 36), discussions are still evolving around their contents (Art. 35) and means of publication (Art. 36). Ideas include publishing EIA reports through the BBNJ “Clearing House Mechanism”, a data-sharing platform, which will be established through the BBNJ agreement, but whose characteristics are still undecided. Making EIA reports public – for the Secretariat, the Scientific and Technical Body, other states, intergovernmental organizations (IGOs), NGOs and civil society at large – is important to ensure transparency. A review of the reports by e.g. the Scientific and Technical Body will be necessary for legitimate decisions on whether the proposed activities can go ahead.

How to decide on the approval of an activity?

The draft text of the future agreement lays out the possibility to establish a review of the EIA reports (Art. 37). Similar to the imbalance in capacities to conduct EIAs, not all states have the same capacity to review EIA reports. Review by the Scientific and Technical Body is currently under discussion within the negotiations. After the preparation of EIA reports, the decision whether or not to allow the proposed activity needs to be taken. In this particular question, views are not aligned and contrasting options are on the table, ranging from unilateral decisions (the state who proposed the activity) to global decisions (the Conference of the Parties (COP)) and a potential role of the Scientific and Technical Body (Art. 38).

How to check on impacts of authorized activities?

Final considerations in the EIA process regard the monitoring (Art. 39), reporting (Art. 40) and review (Art. 41) of the impacts of authorized activities. Monitoring of authorized activities refers to continuous checks whether the activities that have been authorized do not exceed the threshold of impacts on the environment. While the value of such monitoring, as well as reporting on these findings and their review has been recognized, details are also yet to be decided on.

Key Considerations for BBNJ

There are a number of overarching issues that are not agreed yet but are of paramount importance as they will decide on the future of EIAs for the ocean and its ecosystems.

Relationship to other bodies

The ocean is currently regulated through a fragmentation of different instruments, frameworks and bodies on sectoral, global, regional and subregional levels that cannot comprehensively ensure the conservation and sustainable use of marine biodiversity (Tessnow-von Wysocki & Vadrot, 2020). The relationship between the EIA process established under BBNJ with existing EIA processes under other relevant legal Instruments and Frameworks and relevant global, regional, subregional and sectoral Bodies (IFBs), is not resolved yet (Art. 23). When it comes to conserving and sustainably using marine biodiversity, splitting the governance of the ocean into different regimes for the seafloor and the water column above it, assigns governance capacity over the ocean to different organisations but does not make sense from an ecological perspective (O’Leary & Roberts, 2018). There are separate entities governing activities in areas beyond national jurisdiction regarding the seafloor (i.e. the International Seabed Authority (ISA)) and the water column (several IFBs). The new BBNJ agreement will be responsible for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction and thus provides an opportunity to comprehensively align the efforts by other IFBs.

There is the argument, that BBNJ cannot “undermine” other bodies and frameworks, which can be interpreted differently (Ardron et al., 2014; O’Leary and Roberts, 2017; Quirk and Harden-Davies, 2017; Scanlon, 2018; Friedman, 2019). It is important to note, however, that if a comprehensive framework is the aim, then a coordinated way of governing the conservation and sustainable use needs to be found – in conjunction with the already existing instruments, frameworks and bodies. In this way, mandates will not be undermined, but rather complemented. An idea in this regard is the proposition of joint environmental impact assessments (REAs and data sharing) with potentially affected coastal states, flag states, as well as existing IFBs with decision-making responsibility in ABNJ, including regionally with Regional Fisheries Management Organisations and Regional Seas organisations, and different sectors, with, for example, the International Maritime Organisation (Doelle & Sander, 2020) or the ISA.

There is a large part of the ocean where not all issues are covered under the respective mandates of existing bodies. Therefore, some actors stress the importance for the EIA section being broad enough to consider fish and fishing, as it would otherwise mean that for areas or species that are not covered under existing instruments, frameworks and bodies, there would be no responsible governing entity (Crespo et al., 2019).

Who will govern human impacts on the ocean in the years, decades and centuries to come..?

The main question about EIAs in international waters comes down to who can ultimately take the decision whether or not activities can take place in the global commons. Participation and inclusion of stakeholders in all steps of the EIA process are therefore critical. As mentioned above, in each of the steps, there is a divergence of views of the BBNJ policy-makers who should be notified about proposed activities and final reports and decisions, who should be actively included in the assessment process (assessing, evaluating, reviewing reports), and who should ultimately have the final say whether or not the proposed activity can take place in ABNJ.

While there is agreement that a “Scientific and Technical Body” needs to be established under the BBNJ agreement, the role of such a body for the EIA process is not clear, even though assessing ecological impacts is an inherently scientific question. Theoretically, there would be the possibility to task a global body of stakeholders or the Scientific and Technical Body with a) identifying whether or not an assessment is necessary; b) conducting the assessments; c) reviewing assessment reports and d) deciding whether or not an activity can take place. As elaborated earlier, the negotiations have put a preference on states deciding whether or not EIAs should take place (Screening & Scoping), undertaking the assessments, and taking (unilaterally or multilaterally) the decision whether or not to allow the activity. The discussions include the options for a) the state who is proposing the activity, and b) the Conference of the Parties (COP) – all states collectively – to make the ultimate decision over whether or not the activity can take place. To what extent the Scientific and Technical Body will be able to support countries with a lack of scientific means to conduct EIAs, and to review assessments before decision-making, remains to be seen. Other impacts that might need to be assessed, including social and cultural ones, would additionally require the inclusion of other stakeholders in the process and ideally in all stages of the EIA process.

It needs to be remembered that the ocean is a global common. Areas beyond national jurisdiction is a shared space, and by definition not under the jurisdiction of states. It is rather a space that is home to prestigious marine ecosystems and inevitable for the health of the blue planet. Safeguarding this space is crucial in order to ensure current and future generations’ access to the ocean’s services that we take for granted today. But beyond that, humanity has a responsibility to protect the ocean for its own right and intrinsic value. Some questions should therefore be reflected on during the negotiations for the creation of a new framework that will govern human activities in this shared space that is inevitable for nature and human well-being: Can it be the right of a state to take a decision over activities in areas that belong to everyone and no-one at the same time? Or do we have a collective responsibility as humanity to make sure that our activities do not harm the marine environment and threaten future generations, living beings and their habitats on the planet? Posing these questions can only improve the course of action as we go through this very important process of setting the rules for future use and protection of the ocean.

The international community should be taking joint decisions on how we as humans use and protect this space. While a few governments demand unilateral decision-making over the global commons, a number of state governments have spoken up for a more global approach in the EIA process. Through “internationalizing” the EIA process, it is hoped by some actors that transparency, fairness, accountability and the collective governance of global commons can be achieved. Internationalization can be defined differently by different actors, including the notification of proposed activities and publication of assessment reports and decisions to all interested stakeholders; participation and inclusion of these stakeholders in the process; collective review; up to joint decision-making. Quite some actors would prefer an internationalized process, with the inclusion of a range of stakeholders in the participation and consultation (including indigenous peoples and local communities, particularly relevant in the Arctic region (Doelle & Sander 2020)), a larger role of the Scientific and Technical Body in the review of reports and global decision-making by the COP whether or not activities can take place.

Timely and public access to information on assessments and how decisions were made can ensure transparency and accountability (Doelle & Sander 2020). Links have been made to the Escazú Agreement as a best practice example on requirements for reasoned decision, responding to comments and relying on evidence and to include the option for “a notice of particular interest” to the Scientific and Technical Body, which would allow stakeholders to make their concerns with a planned activity heard (IUCN, Intersessional Work on EIAs, own observation, 2020). Internationalization of the EIA process is a heated debate in the BBNJ negotiations and will ultimately determine the effectiveness of EIAs and the health of the ocean and its ecosystems in the future.

Formal discussions in the BBNJ negotiations have so far not focused on the possibility of a liability fund, which would be important to include into the agreement (Hassanali, 2021). Such a fund would particularly be relevant to cover compensation costs, in the case of court trials requiring time to be resolved and identify responsible actors for pollution/accidents (Tessnow- von Wysocki, 2021).

Setting Priorities for the Planet

While some stakeholders might want to see more focus on conservation (preserving the marine environment), others prioritize sustainable use (the sustainable exploitation of the marine environment for human benefit). How can a balance be achieved in the agreement when the ocean is already largely exploited and little protected (Karan, 2020)? Environmental Impact Assessments are one important aspect of conservation, as they can prevent environmental damage if a strong framework is in place (Tessnow-von Wysocki & Vadrot, 2020). They are also an important pillar for sustainable use of the ocean to allow activities that are not causing harm to the marine environment and still benefit us as humans. Why not use science to evaluate which activities are bearable for the ocean and the organisms that call the ocean their home? And why not re-think activities that turn out to have an adverse effect on the marine environment? The benefits of rejecting harmful activities on the ocean might mean a short-term financial loss – but it also promises a long-term environmental gain. Maybe it would now be the time to see the ocean as part of the planet we live in, rather than an infinite pool of “resources” for us to use? This is the time to set the priorities for the planet and take the first step towards a more sustainable future- with the priority of conserving our planet, rather than exploiting it against the calls of scientists (IPBES, 2019). Future generations will thank us if we take this turn. The protection of the global commons is in everyone’s interest. A fair and effective assessment of human impacts on ocean biodiversity and the decision-making over whether or not to allow activities, require – apart from states – also the inclusion of scientists, non-state actors and interested civil society along the process.

References

Ardron, J. A., Rayfuse, R., Gjerde, K. M., and Warner, R. (2014). The sustainable use and conservation of biodiversity in ABNJ: what can be achieved using existing international agreements? Mar. Policy 985, 98–108. doi: 10.1016/j.marpol.2014.02.011

CBD. 2010. What is Impact Assessment? Retrieved from: https://www.cbd.int/impact/whatis.shtml

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

Doelle, M., & Sander, G. (2020). Next Generation Environmental Assessment in the Emerging High Seas Regime? An Evaluation of the State of the Negotiations. The International Journal of Marine and Coastal Law, 35(3), 498-532

Durussel, C., Soto Oyarzún, E., & Urrutia S, O. (2017). Strengthening the Legal and Institutional Frame-work of the Southeast Pacific: Focus on the bbnj Package Elements. The International Journal of Marine and Coastal Law, 32, 671. https://doi.org/10.1163/15718085-12324051

Friedman, A. (2019). Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction. J. Mar. Sci. 76, 452–456. doi: 10.1093/icesjms/fsy192

Gjerde, K. M., Reeve, L. L. N., Harden-Davies, H., Ardron, J., Dolan, R., Durussel, C., Earle, S., Jimenez, J. A., Kalas, P., Laffoley, D., Oral, N., Page, R., Ribeiro, M. C., Rochette, J., Spadone, A., Thiele, T., Thomas, H. L., Wagner, D., Warner, R., Wilhelm, A., & Wright, G. (2016, 2016/09/01). Protecting Earth’s last conservation frontier: scientific, management and legal priorities for MPAs beyond national boundaries [https://doi.org/10.1002/aqc.2646]. Aquatic Conservation: Marine and Freshwater Ecosystems, 26(S2), 45-60. https://doi.org/https://doi.org/10.1002/aqc.2646

Hassanali, K. (2021, 2021/03/01/). Internationalization of EIA in a new marine biodiversity agreement under the Law of the Sea Convention: A proposal for a tiered approach to review and decision-making. Environmental Impact Assessment Review, 87, 106554. https://doi.org/https://doi.org/10.1016/j.eiar.2021.106554

High Seas Alliance. (2020). Consistency with the Madrid Protocol Thresholds with UNCLOS EIA Provisions. Why the BBNJ Agreement should adopt the Madrid Protocol Threshold and Tiering Approach. Retrieved from: http://www.highseasalliance.org/wp-content/uploads/2020/09/FInal-Brief-Consistency-of-Madrid-Protocol-Thresholds-with-UNCLOS-9.9.20.pdf

IPBES (2019). Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. Retrieved from. doi: 10.5281/zenodo.3553579

Karan, L. (2020). A Path to Creating the First Generation of High Seas Protected Areas: Science-based method highlights 10 sites that would help safeguard biodiversity beyond national waters. https://www.pewtrusts.org/en/research-and-analysis/reports/2020/03/a-path-to-creating-the-first-generation-of-high-seas-protected-areas

Kok, M., Brons,J., & Witmer, M. (2011). A global public-goods perspective on the environment and poverty reduction: Implications for Dutch Foreign Policy

Livingstone & Jose, (2021). Connectivity of the High Seas to Coastal Waters Retrieved from: http://www.highseasalliance.org/2021/05/21/connectivity-of-the-high-seas-to-coastal-waters/

Ma, D., Fang, Q., & Guan, S. (2016). Current legal regime for environmental impact assessment in areas beyond national jurisdiction and its future approaches. Environmental Impact Assessment Review, 56, 30. https://doi.org/10.1016/j.eiar.2015.08.009

Marciniak, K. J. (2017). New implementing agreement under UNCLOS: A threat or an opportunity for fisheries governance? Marine Policy, 84, 326. https://doi.org/10.1016/j.marpol.2017.06.035

O’Leary, B. C., and Roberts, C. M. (2017). The structuring role of marine life in open ocean habitat: importance to international policy. Front. Mar. Sci. 4:268. doi: 10.3389/fmars.2017.00268

O’Leary, B. C., and Roberts, C. M. (2018). Ecological connectivity across ocean depths: implications for protected area design. Glob. Ecol. Conserv. 15:e00431. doi: 10.1016/j.gecco.2018.e00431

Sander, G. (2016). International Legal Obligations for Environmental Impact Assessment and Strategic Environmental Assessment in the Arctic Ocean. The International Journal of Marine and Coastal Law, 31(1), 88-119. https://doi.org/https://doi.org/10.1163/15718085-12341385

Scanlon, Z. (2018). The art of “not undermining”: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES J. Mar. Sci. 75, 405–416. doi: 10.1093/icesjms/fsx209

Tessnow- von Wysocki, I. (2021). Developing countries in the BBNJ – CARICOM interests from a blue economy perspective and a proposed approach to EIAs, MARIPOLDATA Ocean Seminar Summary. https://www.maripoldata.eu/wp-content/uploads/2021/08/Summary_MARIPOLDATA-Ocean-Seminar_Caricom_slides1.pdf

Tessnow-von Wysocki, I., & Vadrot, A. B. M. (2020). The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review [Systematic Review]. Frontiers in Marine Science, 7(1044). https://doi.org/10.3389/fmars.2020.614282

Warner, R. (2018, 01/01). Oceans in transition: Incorporating climate-change impacts into environmental impact assessment for marine areas beyond national jurisdiction. Ecology Law Quarterly, 45, 31-51. https://doi.org/10.15779/Z38M61BQ0J

Quirk, G. C., and Harden-Davies, H. (2017). Cooperation, competence and coherence: the role of regional ocean governance in the south west pacific for the conservation and sustainable use of biodiversity beyond national jurisdiction. Int. J. Mar. Coastal Law 32, 672–708. doi: 10.1163/15718085-13204022

Footnotes:

[1] UNCLOS legal text: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

[2] Revised draft text of an agreement 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, See: https://undocs.org/en/a/conf.232/2020/3

[3] The threshold of impact that triggers an EIA, established in the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

The MARIPOLDATA Marine Biodiversity Country Dashboard – An innovative way to inform about the BBNJ negotiations

7. September 2021/in General /by Arne Langlet

MARIPOLDATA has now published a new Marine Biodiversity Country Dashboard which presents some of the ethnographic and bibliometric data collected by the project at and on the ongoing intergovernmental negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). The data is organized by country and the user can interactively select the country of interest as well as compare different countries.

This interactive dashboard serves to inform the user about a variety of indicators from the ongoing process of international negotiations as well as from the bibliometric sample of marine biodiversity-related scientific publications since 1990, as presented in the paper by Tolochko & Vadrot (2021). The dashboard maps the behavior of governmental delegations in the BBNJ negotiations as well as the global distribution of marine biodiversity science by giving data on the scientific output and cooperation of a country as well as data from the ongoing negotiations such as talking time and the mentioning of core concepts.

It can be a helpful tool for researchers interested in the study of BBNJ, governmental and non-governmental actors involved in the BBNJ negotiations, and the general public. By making this data publicly accessible, we hope to both inform the ongoing BBNJ negotiations throughout the intersessional period and making the BBNJ negotiations more transparent to the public. The user can click through the dashboard to find relevant data for the country of interest, making the use of the dashboard intuitive and interactive.

Key contributions

Making research data openly accessible
Presenting ethnographic data from BBNJ negotiations on a country-level
Connecting ethnographic and bibliometric data
Strengthening engagement with the BBNJ process

Informing the BBNJ negotiations

While the world´s oceans, their ecosystems, and marine biodiversity face threats from various sources, scientific and technological innovations have constantly increased the reach of humanity to access and potentially exploit the most remote areas of the high seas. To conserve marine biodiversity and regulate areas beyond national jurisdictions, the UN General Assembly has decided to develop a new legally binding treaty under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (resolution 69/292 of 19 June 2015), called the BBNJ agreement.

Since 2018, over one hundred governments are negotiating a new legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ). The new agreement is organized into four different package items: marine genetic resources (MGRs); area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessments (EIAs); and capacity building and the transfer of marine technology (CB&TT). For an overview of the ongoing negotiations, please refer to the paper by Tessnow-von Wysocki & Vadrot (2020) and Vadrot et al. (2021) or our previous blogposts. Since the beginning of the COVID-19 pandemic, however, intergovernmental negotiations have been postponed and states and stakeholders engage online in informal dialogues.

Innovative ways of engagement

After almost two years of online intersessional period, it is particularly important to maintain momentum and engagement in the BBNJ negotiation process. Further, it is crucial to make negotiations publicly understandable and increasingly transparent – also to the public that is not directly involved with the negotiations.

By making country-level data about marine biodiversity publicly available now, we aim to create novel ways for the public to engage with the BBNJ negotiations. Using the open-source R shiny app, we programmed this dashboard for researchers, policy-makers, non-governmental actors, and other stakeholders or the general public that wish to stay updated on several aspects of the BBNJ process. We hope that the dashboard can trigger continuous engagement with the BBNJ negotiations, particularly during the prolonged intersessional period, and in this way support the intergovernmental efforts to come to an agreement.

Being published simultaneously to the innovative panel “United Nations Negotiations for the Future of Marine Biodiversity. A Conversation among Academics and Practitioners on the BBNJ Negotiations” at this year´s Earth System Governance conference, it aims to highlight innovative ways to stimulate discussion and engagement and to contribute to an inter- and transdisciplinary dialogue on the BBNJ negotiations. This dashboard supports the panel which brings together researchers and practitioners by providing new data and analyses.

Thus, we invite scholars and national delegates, as well as representatives of intergovernmental- and non-governmental organizations and everyone else to explore the dashboard and in this way stay informed about the BBNJ process.

The MARIPOLDATA approach – a new methodology to analyze negotiation data

Marine biodiversity data and research play a central role in negotiating and implementing the treaty and delegates continuously emphasize the importance of science-based decisions making. But the capacities to conduct marine scientific research, and develop and use data infrastructures are unequally distributed. There are also significant disbalances in the intensity of scientific collaboration among countries as well as primary research topics (Tolochko & Vadrot, 2021). Despite broad recognition of these disbalances, the political aspects of marine biodiversity research remain understudied.

The central objective of MARIPOLDATA is to overcome these shortcomings by developing and applying a new methodology for the analysis of science-policy interrelations. To research the science-policy interrelations, the MARIPOLDATA team has applied a set of qualitative and quantitative methods to collect data within the BBNJ negotiations as well as online in the Web of Science database.

The research team notes that the collection of ethnographic data at international negotiations and its subsequent management and publication has posed a challenge to researchers in the past. Concerning ethnographic data, it has been particularly challenging to make such data publicly accessible and understandable beyond the researcher that collected it. This dashboard was developed as an answer to these challenges. By making ethnographic data from the negotiations and bibliometric data from the web of science publicly accessible, the research team moves forward on this central objective of the project to understand science-policy interrelations and identify new forms of power in global environmental politics as well as develop the methodologies to do so.

Maripoldata Blog

When Science meets Policy to talk about Marine Biodiversity: Bringing together Academics and Practitioners in a Conversation about the Marine Biodiversity Negotiations

Assessing the human’s footprint on Ocean Biodiversity

The MARIPOLDATA Marine Biodiversity Country Dashboard – An innovative way to inform about the BBNJ negotiations

Contact

Where to find us?