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

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

Key arguments

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

A New Agreement on Marine Biodiversity

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

CITES

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

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

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

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

Controlling the flow of MGRs

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

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

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

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

CITES Introduction From Sea clause                                                                                                                     BBNJ Marine Genetic Resources monitoring draft

 

 

How to proceed with two “not undermining” clauses

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

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

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

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

BBNJ and CITES share a focus on capacity building

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

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

Conclusion

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

 

References

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

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

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

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

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

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.

 

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. 

 

 

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 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”.

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/

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 has now published a new literature database covering scientific publications on the ongoing intergovernmental negotiations for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). Providing a continuously updated overview of scientific BBNJ governance publications, the database can serve as a point of information for both researchers interested in the study of BBNJ and governmental and non-governmental actors involved in the BBNJ negotiations. We hope that the database encourages inter- and transdisciplinary debate within and beyond the scientific community and serves to inform the ongoing BBNJ negotiations throughout the intersessional period.

Background on the BBNJ negotiations

Negotiations on a new legally binding instrument for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) are ongoing. After pre-negotiations in form of Ad-Hoc Open-ended Informal Working Group and Preparatory Committee Meetings, four intergovernmental conferences were planned to finalise a new agreement. As the last session, planned for Spring 2020, has been postponed due to the Covid-19 pandemic, formal negotiations have paused and discussions continue as informal exchanges on online platforms[1]. There is general agreement that the new instrument should be based on science, among other forms of knowledge, to inform policy-making and meet societal goals.

The MARIPOLDATA Database on BBNJ Governance Literature

Our database is a comprehensive collection of peer-reviewed scientific literature, published in English language on the BBNJ negotiations. Based on the sample and methodology of the systematic literature review “The Voice of Science on marine biodiversity negotiations” (Tessnow-von Wysocki and Vadrot 2020)  published in Frontiers in Marine Science, the database incorporates articles on the topic from 2004 until 2021 and will be continuously updated.

The database provides an overview of all academic literature published on or in relation to the BBNJ treaty (negotiations), by authors from diverse scientific disciplines and regions. We facilitate navigation through the publications with filters for topics, years and keywords and provide abstracts, which serves users to quickly grasp the topics and contents of individual articles. A statistics section shows the distribution of the publications by topic, year, region, and source. Additionally, we provide access to official United Nations global assessments and reports, as well as to the draft texts of the BBNJ agreement.

We designed this tool for both researchers interested in the BBNJ process and policy-makers, non-governmental actors, and other stakeholders that wish to keep up-to-date with the latest scientific publications on several aspects of the BBNJ process. As the BBNJ negotiations have been put on hold due to the Covid-19 pandemic, we hope that the database will constitute an important pillar during the intersessional period by making existing research more visible and bridging the gap between science and policy until the next intergovernmental conference takes place.

[1] Including the Virtual Intersessional Work, organized by UNDOALOS and the BBNJ Informal Intersessional Dialogues, organized by Belgium, Costa Rica, Monaco and several NGOs.

To get to the literature database click on this picture: