After the observations of the first week of the third Intergovernmental Conference (IGC 3) on the conservation and sustainable use of marine biological diversity, the MARIPOLDATA team shares insights of the second week. This blog entry provides a summary of the topics discussed, overall progress made, as well as the challenges that remain to be resolved for the upcoming fourth Intergovernmental Conference (IGC 4) in March 2020.

Imagine all the people, sharing all the ocean

To whom belong the parts of the ocean that are shared among all states? Under the United Nations Convention of the Law of the Sea (UNCLOS), states are free to navigate the areas beyond national jurisdiction and can enjoy “the freedom of the high seas” (UNCLOS Art 87). However, does that imply that all states can collect resources in these areas, conduct research, discover new species and develop new pharmaceutical or other commercial products from the marine genetic material found in the depths of our common ocean? Marine scientific research is costly and not all states have the capacities to access marine genetic resources in areas beyond national jurisdiction. But should the ones who invest in discovering new species and developing new products not be allowed to own their “treasure”? This calls for a new regulatory framework for marine genetic resources (MGRs), which constitutes one of the four pillars of the future new legally binding instrument. The question is whether this agreement will allow for “first come – first serve” or ensure that the resources of our ocean are considered “common heritage of humankind” with access to and benefits from these resources being shared among all states, taking into consideration current and future generations, as well as the environment in itself.

Delegations negotiating the BBNJ zero draft text, while NGOs and IGOs observe from the side

The BBNJ crab dance

The second week of negotiations of the third Intergovernmental Conference (IGC 3) continued with discussions on the remaining cross-cutting issues, and the four BBNJ packages marine genetic resources (MGRs), area-based management tools (ABMTs), environmental impact assessments (EIAs) and capacity building and the transfer of marine technology (CB&TT). The conference included the two formats of the previous week, namely “Informal Working Groups” – discussions in the plenary, which were open to all participants of the conference, including non-governmental and intergovernmental organisations (NGOs and IGOs) – and so called “Informal Informals”, which were held in a smaller room, with restricted access for NGOs and without the participation of the press. The presidency had introduced the informal informals in the first week of ICG 3 to allow government representatives to negotiate text in an informal setting and eventually start developing compromised treaty language.

The MARIPOLDATA team representing the University of Vienna as a Non-Governmental Organisation (NGO)

Enthusiasm for the structure of the informal informals, however, was rather limited: On the side of the NGOs because they were only permitted restricted access and on the side of the government representatives because the dynamic was very similar to the discussions in the plenary, not allowing for informal talks on specific issues that needed further elaboration. With only a few delegates praising this format, the majority was calling for a different dynamic of the sessions, with the opportunity for more in-depth, informal conversation, as well as greater transparency. Despite the formality of all sessions, discussions progressed in the different topics. Such progress could largely be seen in textual formulations, regarding agreement on the inclusion and exclusion of certain wording, re-structuring, streamlining or adding of articles and paragraphs. Nevertheless, key issues that have divided states’ positions since the beginning of the meetings, could not be resolved at this conference. Although only one further IGC is planned, the past 2-weeks of the BBNJ process rather reflected the walking of a crab – moving sideways, not forward.

Regarding marine genetic resources (MGRs), delegates agreed that the provisions in ABNJ should only apply after entry into force of the agreement, rather than retroactively[1]. However, key definitions remained unclarified, such as “marine genetic material” or “access to” MGRs. Further elaboration will be necessary on agreeing whether access to MGRs would entail collecting the resource where found/originated, where processed, or also to include digital sequence data and derivatives. Delegations are particularly divided on the question whether fish should be included as a marine genetic resource, due to concerns of impacts on current fisheries management and the problematic definition of “fish”. Another issue that will require further discussions are intellectual property rights regarding MGRs.

Discussions on area-based management tools (ABMTs) and marine protected areas (MPAs) achieved progress in clarifying the specific steps of the process. Delegates agreed that consultation and assessment of proposals for ABMTs should be inclusive, open and transparent[2]. They identified a potential advisory role for a scientific and technical body for making these proposals, however, there is still a lack of shared understanding on definitions of ABMTs and MPAs and implications for their respective processes. There is agreement that state parties should be responsible for making the proposals for ABMTs and MPAs but delegations are still divided on the question whether a scientific and technical body should be involved in monitoring and review. Another issue that has sparked disagreement and remains unresolved is the relation between the new instrument and other legal global, regional, sub-regional and sectoral bodies, which has been slowing down progress over the past two weeks.

Delegates welcomed discussions regarding environmental impact assessments (EIAs), expressing the need for monitoring, reporting and review. However, the discussions did not give answers on thresholds or criteria to be used for EIAs and divided delegations into some supporting an “impact-oriented”, and others preferring an “activity-oriented” approach. Disagreement remains in regards to the type of impacts, including transboundary and cumulative impacts, as well as social, economic, cultural and health impacts. While governments of the Global South would like to see a reference to social, economic and cultural impacts of harmful activities in ABNJ – particularly on coastal states – governments of the Global North prefer a narrow focus on environmental impacts only. Whether to have a reference to coastal states at all remained contested and had to be postponed to future meetings. Similarly, discussions have not moved forward on identifying the role that traditional knowledge might play within the framework of an environmental impact assessment. Also the potential function of a scientific and technical body requires further elaboration, however, delegates generally preferred state parties to be the responsible entity.

Considering the limited capacity of developing countries, particularly of the least developed countries (LDCs) and small island developing states (SIDS), and capacity building and the transfer of marine technology (CB&TT) is of key importance for the G77/CHINA, the PSIDS, the African Group, as well as the Core Latin American Countries (CLAM) and the Caribbean Community (CARICOM). Discussions on CB&TT showed progress on the potential role of the Conference of the Parties (COP) in developing a list of guidelines and in undertaking monitoring and review[3]. However, there are still diverging views on whether capacity building and marine technology transfer should have a mandatory element and be complemented by voluntary efforts, or if it should solely be voluntary. Questions, moreover, remain on which countries should benefit from CB&TT.

Regarding cross-cutting issues, delegates generally agreed on the establishment of a “clearing-house mechanism” (CHM), to provide a platform for sharing information and data. Discussions included the question of which entity to be the responsible body, whether to make information publicly available, how to deal with confidential data, as well as possible functions. Ideas included the dissemination of pre-cruise information and post-cruise notification, documentation of EIAs and cooperation regarding ABMTs[4]. While there was general agreement on making data and information publicly available while ensuring that confidential information is exempted, there is so far no agreement on the type of data and information that the CHM is supposed to provide, nor which body should be responsible for managing it. Suggestions include the Intergovernmental Oceanic Commission (IOC-UNESCO) and the secretariat which will be established under the new instrument[5]. There was also overall support for the establishment of a Conference of the Parties (COP) to, among other functions, determine CB&TT types[6].

The part on the settlement of disputes could not be sufficiently discussed, even though delegates stayed longer than the interpreters were available. While there was agreement that states have an obligation to settle disputes by peaceful means, no agreement emerged on the procedures for such settlements, as positions divergence on to what extent the article should be drafted on the model of UNCLOS and what this would imply for its non-parties.

Several delegates emphasised the inclusion of the use of best available science and traditional knowledge of indigenous people and local communities, as well as additional principles, such as adjacency, transparency, the polluter pays principle, intra- and intergenerational equity, and the obligation to protect and preserve the marine environment[7][8]. The PSIDS advocated for the establishment of a scientific, technical and technological body, and the inclusion of traditional knowledge of indigenous people and local communities, as well as the recognition of the special circumstances of SIDS.

Even though delegates already started text-based negotiations, discussing specific wording, no treaty will be concluded before states agree on the key issues that still divide positions until now. Therefore – considering that there is currently only one more BBNJ conference planned – state delegations have already expressed the need for quality of the agreement, rather than finishing in time and rushing into a treaty that everyone can interpret differently, or which implementation is not realistic.

Sailing in the same “IG-sea”

When the sun set over the UN headquarters on Friday, the discussions had already ended, as progress was not to be expected on the major issues until the next IGC. As the delegate of Japan mentioned in the ending remarks: This conference laid out the different positions of delegations and their level of flexibility very well[9]. But now everyone is looking towards the next conference with expectations: With the expectation that the president compiles the discussions into a first draft and proposes a negotiation format that will give delegates with their diverging views and interests sufficient time to discuss. Simultaneously, with the expectation that the draft covers as many issues as possible and guarantees transparency and representation of the delegations in the working groups. Not an easy task, considering the contrasting requests from delegations. While some delegations request a streamlined text, others prefer to have an options-based text, with all the points and positions raised at this conference.

Delegates and representatives from non-governmental organisations would like to see the text of the first draft until the end of 2019, ideally already by October, which would give delegates time to review the different positions and prepare their statements. But rather than repeating what happened in IGC 3 – namely coming together to highlight the important issues for their own countries – IGC 4 is expected to focus on compromise of statements. Some delegates suggested to have meetings within their regions and prepare proposals already in advance of the conference. This would allow for discussions prior to IGC 4 and enable a steep start into negotiations when they get back together in March 2020.

But an equitable and fair outcome of this agreement will be hard to negotiate if limited capacity to participate, as well as to fully grasp the content of the negotiations is not guaranteed for all states. While there are some delegations with over 10 representatives, some states have no representation at all. Will this instrument be able to universally reflect the common grounds of all states even if they are disproportionately represented, and with diverse expertise and experiences? The trust fund offers the possibility to sponsor delegates from developing countries, however is highly reliant on voluntary contributions by states, intergovernmental organisations and private persons. This IGC, financial resources in the fund only allowed for five delegates from developing countries to attend the conference while others were left without funding and hence without voice, unless their position could be represented by a group of states they aligned with.

Hope was gained back, when delegations – which had the previous two weeks been insisting on their own interests – reflected the need for cooperation in their closing statements. President Rena Lee looked up to the window where curious visitors watch the negotiations from time to time and shared: “I wonder what they are thinking about us”, reminding the delegates of their important mandate. There seemed to be the realisation that “we are living in a common world and are sailing in a single sea”[10] and that while our “common canoe gets more and more vulnerable, we need to paddle even faster”[11].

Sunset over the third Intergovernmental Conference

[1] ENB Report Vol. 25 No.218, Sep 2, p. 22, retrieved from: https://enb.iisd.org/download/pdf/enb25218e.pdf.

[2] Ibid. p.10.

[3] Ibid. p, 16

[4] ENB Report, 27^th August 2019, Vol 25 No.214, p.2, retrieved from: http://enb.iisd.org/download/pdf/enb25214e.pdf.

[5] ENB Report, 28^th August, Vol 25 No 215, p.2, retrieved from: http://enb.iisd.org/download/pdf/enb25215e.pdf.

[6] ENB Report Vol. 25 No.218, Sep 2, p. 2, retrieved from: https://enb.iisd.org/download/pdf/enb25218e.pdf.

[7] Ibid. p.5

[8] BBNJ ICG 3, Closing Statement of Paraguay on behalf of AOSIS, retrieved from: http://statements.unmeetings.org/media2/21996902/paraguay-eng-.pdf

[9] Delegate of Japan, BBNJ IGC 3, Closing Statements, 30^th August, 3.45pm

[10] Delegate of the Philippines, BBNJ IGC3, Closing statements, 30^th August 4.11pm

[11] IUCN, BBNJ IGC 3, Closing statements, 30^th August, 4.30pm

The 17th Global Conference of the International Association for the Study of the Commons (IASC) from the 1^st to the 5^th of July at the Pontifical Catholic University of Peru in Lima brought together academics, practitioners and policy makers from almost 50 countries to discuss challenges, innovation and current research for the commons. Over 500 presenters shared their work from different academic disciplines. The conference highlighted the importance of the protection of the oceans as a global common and the need for dialogue between different knowledge systems. It provided an opportunity to present the research I had worked on proposing a design for a potential Plastics Treaty to eliminate marine plastic pollution.

Commons, or public goods, are defined as goods that are collectively owned by a certain group or entirely shared. This includes services to the population provided by the State, such as roads and public internet, as well as the natural environment with commonly shared land or water resources. Some of these goods are global and therefore have a particular importance. Global commons benefit all – including current and future generations – and their overexploitation in one part of the world has effects on a global level. The protection of global commons is therefore only possible with international cooperation. Examples of global commons are the atmosphere, space and our ocean.

Throughout the week, topics of the conference sessions included local and global commons, theories and history of the commons, gender balance in commons management, conflicts regarding land use between different groups and stakeholders, as well as urban commons and behavioural experiments regarding conservation practices. Various panels, multi-stakeholder dialogues, poster sessions and book presentations offered an opportunity for the participants to present and reflect on own research, exchange views with peers and develop new ideas for future projects. Regional meetings connected researchers from Europe, Latin America, Africa and Asia and encouraged further exchange and collaboration across disciplines and methodological approaches between the continents. Professional translators provided simultaneous translations in the sessions held in English and Spanish. Some discussions allowed for exchange in indigenous languages.

The conference was guided by the sense that common goods cannot be managed with a sole focus on natural science, but also need to include social and cultural dimensions. The multi-stakeholder dialogue “Negotiating a way towards consilience in managing conflicts over commons” initiated discussions among the participants to identify barriers to negotiation, namely that relations, values and needs often remain overlooked. It was also noted that identity, historical mistrust and fear of change can prevent stakeholders from coming together. In the Panel “Theory of the Commons” Yara Al Salman, PhD candidate at the Ethics Institute of Utrecht University, evaluated institutions from a moral perspective using a political philosophy approach and the theory of fair power allocation. She approached the question what people should have control over, arguing that there needs to be internal democracy, all users need to be included and exclusion has to be justified, without being the product of inequality in power or economic injustice.

One of the conference highlights was the ceremony for the Elinor Ostrom Award to acknowledge the work of practitioners, young and senior scholars involved in the field of the commons. Elinor Ostrom (1933-2012) promoted a paradigm shift in political science and economics by challenging the “Tragedy of the Commons” – the vision that self-interested individuals strive for benefit maximisation with the outcome of depleting the commons. In her work “Governing the Commons: The Evolution of Institutions for Collective Action (1990)”, she developed design principles on how to sustainably manage commons and demonstrated that cooperation is indeed possible, leading to sustainable handling of the commons, without the need for regulation by central authorities or privatization.

The conference connected science with art, recognising the importance of imagination and sensitivity of all the senses to promote mobilisation for the protection of the commons. Throughout the week, participants could attend the Ostrom film festival screenings, including documentaries and short films. The documentary “Pacificum” portrayed Peruvian settlers’ ancient relationship of respect and devotion to the marine environment, as well as the evolutionary history of our oceans. We will show this documentary as part of the MARIPOLDATA cinema.

The Ocean as a global common

Fiorenza Micheli on the social-ecological vulnerability and adaptation to a changing ocean

On day one of the conference, Keynote speaker Fiorenza Micheli, marine ecologist and conservation biologist from the Hopkins Marine Station of Stanford University and the Center for Ocean Solutions, drew attention to the importance of our oceans as a global common. She gave a talk on the social-ecological vulnerability and adaptation to a changing ocean. Emphasizing the challenges of overfishing, ocean acidification, pollution and extraction affecting our oceans, she quoted Lubchenco and Gaines (2019) that “now is the moment for more scientists to pivot from simply documenting the tragedy underway to also creating scalable solutions”. She reminded of the importance of our oceans for food production and nutrient security, suggesting that examples of successful solutions can foster positive change. In the questions and answers after her talk, her advice to Early Researchers was: “Collaborate a lot and early and be curious”. She stressed the need for interdisciplinary collaboration, incorporating multiple disciplines and methods. Micheli called for action regarding the problem of marine plastic pollution, indicated however, that there are further challenges facing our oceans which are not as visible, such as ocean acidification.

The following days of the conference also offered room for exchange on sustainable handling of our oceans. The panel “Global Commons” provided an opportunity for me to present my research on a potential design of a Global Plastics Treaty to eliminate marine plastic pollution. Current efforts to eliminate marine plastic pollution have failed so far and an internationally legally binding agreement has the potential to overcome current governance gaps. But what needs to be considered when drafting such a treaty? My master thesis was developed into the article “Plastics at Sea: Treaty design for a global solution to marine plastic pollution”, co-authored with Philippe Le Billon, Professor at the University of British Columbia. The main arguments of the paper are the importance of including a) the principle of common but differentiated responsibilities; b) an adequate scope considering land-and sea-based sources, as well as chemical additives and all stages of the lifecycle of plastics; c) issue-linkage to international plastics trade; d) a financial mechanism to support implementation measures; e) built-in flexibility to adapt to changes; f) effective monitoring, reporting and review procedures; and g) enforcement through incentivising compliance and deterring non-compliance. The audience showed great interest in the topic and raised the idea to direct this research to stakeholders in order to help its way to implementation.

Chair of the panel on Global Commons, Achim Schlüter, Professor for Social Systems and Ecological Economics, from the Leibniz Center for Tropical Marine Research (ZMT), Bremen, Germany, presented on the privatisation of the oceans, including resources, space, governance and knowledge. Actors differ in their interests and needs and act within existing power asymmetries. As motivations and drivers of such privatisation, he named overexploitation, excludability and rivalry problems, blue growth, the creation of new products and innovation incentives. Distribution efforts, however, risk excluding the ones who need it the most from the use of space and resources and key knowledge that allows for high profits could exclude the most vulnerable. Questions regarding the access to and exploitation of resources and ocean space are also the central issues that the BBNJ treaty aims to address. It can be seen that there are substantial overlaps between the challenges and opportunities of commons management in coastal areas and in Areas Beyond National Jurisdiction (ABNJ).

Conference participants in the multi-stakeholder dialogue with indigenous people

Indigenous knowledge for the protection of the commons

The importance of indigenous, traditional and local knowledge in protecting the commons was emphasised throughout the conference with several sessions, presentations, multi-stakeholder dialogues, movies and key notes. Examples of indigenous knowledge systems and science collaborations, the role of the communities in managing commons, as well as their relationship to Mother Earth shed light on the diversity of knowledge. The multi-stakeholder dialogue “How can indigenous governance models, such as Plan de Vida, help protect the commons at a time of global environmental crises?” brought conference participants in exchange with Gil Inoach (Awajún CORPI-SL), Wrays Perez (Wampis Autonomous Territorial Government) and Julio Cusurichi (Shipibo-FENAMAD), Liliana Pechene and Jeremias Tunubala (Misak local community activists and Plan de Vida practitioners).

In the session “Polycentric Governance and Cultural Resources”, Sibyl Diver from Stanford University presented on indigenous science in water governance. While indigenous knowledge is often referred to as an “alternative form of science”, she studies indigenous communities forming science networks in the Klamath River Basin, US. To understand how indigenous knowledge is increasingly included in policy making on the local and international level is helpful for the MARIPOLDATA project, regarding references to traditional and indigenous knowledge in the BBNJ negotiations. The presentation of Roger Merino, Research Professor of Public Policy and Legal Theory at the Universidad del Pacífico, in the session “Indigenous people and multilevel governance” opened some further questions: Are policy makers willing to include indigenous and traditional knowledge into current frameworks or is the reference to indigenous knowledge simply a form of legitimisation for own policy objectives?

While the majority of sessions focused on commons on the local and regional level, much can be transferred to the case of the oceans as a global common. Conflicts over access to resources, the interdependency of different stakeholders, a moral responsibility to take into account the existence of future generations and differing concepts of knowledge to manage the commons are prevalent in cases of local commons, as much as in the BBNJ negotiations. How the stakeholders with their different capacities will account for the diverse knowledge systems to be included in the negotiations will be central for the outcome of a BBNJ agreement.

From March 25 to April 5, governments met at the UN Headquarters in New York to further advance negotiations on a new legally binding instrument to protect and sustainably use marine biodiversity in areas beyond national jurisdiction (ABNJ). It is expected that by 2020, governments would agree on establishing a new treaty covering four central issues, which are currently not sufficiently regulated under existing maritime law: 1) Marine Genetics Resources (MGR), 2) Area-based Management Tools (AMBTs) as well as Marine Protected Areas (MPAs), 3) Environmental Impact Assessment (EIA), and 4) Capacity Building and Marine Technology Transfer (CB&MTT).

While the overall objective of the treaty is to create a framework to conserve and protect BBNJ, it also carries the potential to act as a vehicle to close substantial gaps between developed and developing countries in exploring and exploiting the oceans. During the first week of negotiations, we observed discrepancies between governments as wide ranging as if the principle of “Common heritage of mankind” should be applied to marine biodiversity in ABNJ or not (see MARIPOLDATA blog from 1^st of April). In the following, we will give an account of the second week of negotiations, in which we participated as observers and as part of the delegation of the International Studies Association (ISA).

The second week of negotiations

The second week started off where the first week had ended: with agenda item three Environmental Impact Assessments (EIA) and the idea that some kind of assessment of potentially harmful effects on the health of marine ecosystems and of marine biodiversity should be undertaken before a state or a company may explore, exploit or pursue any activity in ABNJ. The essence of this agenda item tackles “who” is entitled or obliged to undertake “what” kind of assessment, “how” and based on what criteria. Because an EIA would cover areas that are not under the responsibility of a nation state but may be located in close proximity to the Exclusive Economic Zones (EEZs) and national territories of a coastal state, tensions emerged as to who will conduct environmental impact assessments, how and on what.

Arne Langlet and Alice Vadrot during the 2nd week of negotiations

The potential role of a scientific body

The views of governments on the “who” question, mainly differed in relation to whether it should be a state-driven or a science-driven process. Many governments wished to retain the decision-making power to initiate and conduct EIAs to states themselves; others preferred creating a scientific body, which would receive the authority to independently perform these tasks. Some national delegations, particularly from the group of the Pacific Small Island Developing States (PSIDS) emphasized the concept of adjacency in this context. While adjacency was until now understood as the geographical proximity of a state´s EEZ to the area beyond national jurisdiction which is to be managed, PSIDS argued that, it should not only be understood in terms of geographical, but also ecological proximity. They justified their claim by referring to the concept of “ecological connectivity”.

“Ecological connectivity” can be defined as “a complex natural phenomenon linking various components of marine ecosystems in time and space” (IIED 2019). According to the International Institute for Environment and Development (IIED) “ecological connectivity” between ABNJ and coastal waters occurs via two distinct processes: (1) passive circulation-driven connectivity and (2) migratory connectivity” (ibid). It must be noted that such a definition – although widely accepted in the academic realm – is not yet in the BBNJ draft.

“Fish do not have passports”

While the understanding that animals and water masses in the ocean move and connect large parts of the planet may not sound particularly surprising, it does bring substantial difficulties for the governance of marine biodiversity in ABNJ. It is through side events, organized by NGOs, scientific communities and other stakeholders, that such debates are addressed and discussed in the framework of the BBNJ process. For example, “ecological connectivity” was addressed in more depth during a side event hosted by the International Institute for Environment and Development (IIED). According to Ekaterina Popova from the National Oceanographic Centre in Southampton UK, “ecological connectivity” is a rapidly developing research area, which highlights many aspects that should be considered by policymakers.

Understanding and acknowledging the effects of “ecological connectivity” in this way comes with consequences and questions for policymaking. How should states conserve a population of migratory species that directly crosses the Exclusive Economic Zones (EEZ) of a large number of countries as well as areas beyond national jurisdiction (ABNJ)? This issue was discussed in a side event hosted by the World Conservation Monitoring Centre of the United Nations Environment Programme (UNEP-WCMC). At this occasion Daniel Dunn from Duke University and Steven Fletcher from UNEP- WCMC introduced “Mico”, a platform allowing scientists to jointly investigate migratory connectivity and make this information accessible to everyone. Such research efforts have shown that fish stocks of high seas and in EEZs are interconnected, or as one delegate put it: “fish do not have passports”.

A redistribution of responsibility?

While recognizing “ecological connectivity” in the BBNJ process would significantly increase the scientific credibility and evidence base of a new treaty, it also comes with important consequences for how the responsibilities and duties of states would be distributed. If “ecological connectivity” is included in the instrument, adjacent states would for example play a particular role in assessing impacts of activities in ABNJ, because their EEZs and coastal zones are particularly affected by them, for the good and the bad.

Activity or Impact Based?

The concept of “ecological connectivity” was not only mentioned in the discussion about “who” should be in charge of EIAs but also played a particularly crucial role regarding questions on “what” should be assessed. The room was divided between governments that prefer an activity-based approach – evaluating which activities in ABNJs are harmful to the environment – and an impact-based approach, which would evaluate the potential impacts of any activity on the environment. Assuming that an EIA would be conducted following the impact-based approach and under full recognition of “ecological connectivity”, the regulations for pursuing economic activities on the high seas would become potentially much stricter. In such a case, the state or company would have to demonstrate that the proposed activity would not only be harmless to the area where it will be conducted, but possibly also to all connected species in national waters. In such a case, adjacent states, whose EEZ might be particularly affected would be given a special role in conducting such environmental assessments.

What is the legitimate knowledge to assess the state of our oceans?

Almost all states agreed that environmental impact assessments should be based on the “best available science”. However, there was less agreement if, and if yes to what extent EIAs should rest upon a fixed set of internationally agreed and globally applicable criteria. Should there be a minimum standard for EIAs or a flexible framework to account for already existing regional or national best practices? Or should the opportunity of a new global treaty be used to formulate ambitious criteria to be applied to all EIA on BBNJ? A list of content-requirements for EIA was part of the negotiated text, but could not be agreed upon. While some states argued for a rather thin outline, other governments- specifically from the global south- proposed to include many specific content-requirements such as socioeconomic impacts and the description of alternatives to the proposed activity. Some developing states also highlighted that “best available science” and shared criteria for EIAs also imply that the new treaty should recognize the need of developing countries to be empowered to contribute to the production of ocean science considered for EIAs, especially, if they are based on a specific set of internationally agreed ambitious criteria. Otherwise, many countries would be limited in their contributions to developing a shared scientific knowledge base for EIAs.

This brings us to the question of what counts as legitimate knowledge on biodiversity beyond national jurisdiction. Many governments from the global south, specifically from the group of the like-minded Latin American countries and the Pacific Small Island Developing States argued that traditional knowledge should be equally recognized and integrated into EIA. They highlighted the fact that local and indigenous communities living in coastal areas have developed extensive knowledge on marine biodiversity, because of their dependence on ocean ecosystems and the practices they have developed to live with and from the ocean. They hold knowledge on species diversity and other characteristics of oceans ecosystems, which has been passed from generation to generation over centuries and which therefore should be included into the body of knowledge relevant to EIAs. Those governments that supported the inclusion of TK also argued that what scientists describe by using the term “ecological connectivity” is at the core of what local and indigenous people have experienced and captured with the notion of  interconnectivity for a long time: the relation between humankind and the ocean.

Whilst there was agreement that traditional knowledge should not substitute, but complement modern science, governments had different views on how to bridge the gap between those that have advanced scientific and technical infrastructures to conduct ocean science in ABNJ and those that have not.

Capacity building or how to close technology gaps between states

Capacity building and marine technology transfer (CB & MTT) constitute key pillars of the future treaty, particularly from the perspective of developing countries. The distribution of capabilities among states to conduct scientific research in the open ocean are unequally distributed around the globe. Only a few nations such as for example the US, Japan, Australia, Canada and members of the European Union (EU) have established the necessary scientific and technological infrastructures enabling them to systematically study ABNJ and the deep sea. There are no regulations in place, which would limit access to BBNJ for scientific purposes, despite the fact that access is inseparably linked to the capacities to conduct science in these areas. According to many developing states, capacity building should be linked to questions of access in order to account for technology gaps and an unjust distribution of scientific capability. This is also why

Full Room on Wednesday April 3rd for the discussion on Institutional Settingss

developing states support the idea to include the “common heritage of mankind” into the text of the new instrument, because it would support the idea of mandatory and monetary forms of capacity building, which could account for a distribution of benefits resulting from marine scientific research on BBNJ. In contrast, many developed states preferred non-monetary forms of capacity building such as through the sharing of information on research cruises activities and of specific oceanographic data. The views on what falls under capacity building, how detailed the list of tasks should be and how such processes would look like in practice differed significantly and remain to be discussed at the next BBNJ negotiations in August.

How to institutionalize the new treaty

After governments addressed the four packages of the new treaty, they turned to issues related to the implementation and design of the new instrument, including its decision-making body, the establishment of a scientific advisory body and other matters related to the way in which the future treaty should operate. Many governments pointed to the fact that such issues can only be addressed if the content of the treaty is agreed and that duplication with other existing treaties and instruments should be avoided. Nevertheless, some governments showed more willingness to establish a robust and all-encompassing institutional setting than others. While Russia, the US and Japan opted for minimalistic arrangements, many developing states refereed to (elements of) the United National Convention on Climate Change (UNFCCC) and the Convention on Biological Diversity (CBD) as potential role models for the new treaty.

Why negotiations became political towards the end

The second intergovernmental session came slowly to an end. Governments expressed the wish to receive some kind of zero draft containing all options for which there was support during the two weeks of negations as a basis for the third intergovernmental session in August this year. Negotiations started and ended with a very positive atmosphere and despite many divergent views on a number of issues delegates and chairs kept a positive attitude, which everybody present in the room could sense.

The positive spirit was, however reversed abruptly, when a delegate from the EU took the floor on a rather formal and – at the first glance- less contentious issue introduced by the president of the negotiations towards the end: the credentials of governments, which took part in the negotiations. The delegate from the EU started her intervention by questioning the credentials of Venezuela. The room was silent, and delegates were looking at each other seemingly anticipating the reactions that this statement would cause. The delegate of the EU continued and pointed to the current situation in Venezuela, the disputed presidency of Nicolás Maduro and the EU´s support for Juan Gerardo Guaidó Márquez, who is recognized as acting President of Venezuela by 54 governments. Under these circumstances, the Venezuelan participation in these negotiations would not be legitimate. A cascade of interventions from Russia, Syria, Venezuela, Cuba and Nicaragua followed, sharply criticizing the EU for its statement, which would destroy the positive spirit of the BBNJ negotiations and the consensus-oriented process between governments so far. The EU`s statement would contradict the UN principles and the sovereignty of states, which forms a baseline for multilateralism, which the EU would perpetuate by questioning Venezuela’s credentials. It was the first time during the two weeks that Venezuela took the floor in the negotiations, pointing to the sovereignty of its country and the democratic legitimacy of its president. The EU delegate, which made the intervention, was shaking and the tension in the room was remarkable. Subsequently Peru made a statement on behalf of several Latin American countries, Canada, the Czech Republic and other governments proposing that credentials should be accepted, but that these countries share concerns over developments in Venezuela and the legitimacy of Maduro. The president proposed to accept Venezuelan credentials and the issue on credentials was thereafter closed.

While the tensions regarding Venezuela’s credentials came as a surprise for most observers, they unpleasantly reminded us that multilateralism is fragile and symbolic power not as symbolic as one would wish.

This article has been written by Alice Vadrot and Arne Langlet

From the 17^th to the 29^th of November 2018, governments met in Sharm El Sheik, Egypt, to negotiate issues related to the protection and sustainable use of biodiversity in the framework of the United Nations Convention on Biological Diversity (CBD). “Marine and Coastal Biodiversity” was on the agenda, which is why I participated in the negotiations as a representative of the University of Vienna and in my position as a Principal Investigator of MARIPOLDATA. In the following, I will give an account of the negotiations and shed light on the tensions that emerged between governments and what these tensions tell us about the place of science in international marine politics.

The venue from outside

The 14^th Conference of the Parties of the CBD was held at the International Congress Center (SHICC) of Sharm El Sheik, close to a seemingly provisional bus terminal, where buses regularly shuttled between the conference hotels, mostly located at the seaside, and the conference venue, which was rather remote. Arriving from the Airport in the middle of the night, one could sense that Egypt was more than proud to host the 14^th COP. The airport and the highways were covered by large posters welcoming delegates from all over the world, national delegates, representatives of NGOs, local and indigenous communities, business, academia and research and other UN agencies and bodies.

Place, from where I did many observations

148 governments and 3828 individuals

COP 14 belongs to the so-called “mega-event”, where high diplomacy is performed and where, for the period of two weeks, the global biodiversity community from A like African Development Bank Group to Z like Zoological Society of London met.148 governments and 3828 individuals participated in the negotiations. The size of the national delegations varied significantly. While the German delegation, for example, comprised 36 delegates, Brazil sent 66 representatives and Bolivia 4. Austria sent 25 delegates, a rather large number, which can be explained by the fact that Austria had the EU Presidency and was in charge of organising the EU position and speaking on behalf of its member states. Because of security issues, some governments did not send any representative; other governments restricted travelling of their delegates to Sharm El Sheik and Kairo.

The venue from inside

Egypt, the host of COP 14, had a very keen interest in marine issues. The longstanding representative of Egypt to CBD COPs, Moustafa Fouda, Minister Advisor on Biodiversity, is himself a marine biologist. Marine and coastal biodiversity of the red sea was present at the venue through pictures and advertisements covering the walls and rooms of the Congress Centre, which nearly gave the impression that the whole COP was actually about marine issues. Several side events addressed marine biodiversity and were used by government representatives and representatives of NGOs and academia, to discuss progress made in implementing Marin Protected Areas (MPAs), marine biodiversity monitoring programmes, technologies and practices. On Saturday, November 23rd, during the break from negotiations, a “Sustainable Ocean Day” was organised by the CBD Secretariat, in which surprisingly most of the national delegates, which took part in negotiations on marine issues, participated. Including myself.

Negotiations on “Marine and Coastal Biodiversity”

Plenary

The negotiations on item 25 “Marine and Coastal biodiversity” only stared on day 3 of the COP namely on November 20^th. The chair opened the floor for interventions on the draft text, including comments on the different options proposed. The interventions were never-ending and marine biodiversity turned very quickly into a controversial issue, which the partly opposing view of some delegations showed. Tensions emerged regarding the symbolic constraint on national sovereignty and jurisdiction, potential effects on conflicts related to disputed marine areas, and the recognition of the United Nation Convention on the Law of the Sea (UNCLOS) and its on-going efforts to establish a new legally binding instrument for marine biodiversity in areas beyond national jurisdiction. Governments, who had to call their capitals for further advice, constantly interrupted negotiations.

Why is marine biodiversity so controversial?

In 2008, CBD COP 9 decided to address the protection and sustainable use of marine biodiversity through a “purely scientific process”, particularly to avoid conflicts related to the United Nation Convention on the Law of the Sea (UNCLOS), which is not recognized by all member governments of the CBD (e.g. Turkey, Venezuela, and Columbia). The idea was to tackle the protection of marine biodiversity beyond national jurisdiction through regional workshops, where scientists could make the first move by synthesising marine biodiversity data for identifying ecologically or biologically significant marine areas (EBSAs) in need of protection in open-ocean waters and deep-sea habitats (COP IX/20). The EBSA descriptions rely on different types of data and the scientific input of experts nominated by governments and relevant organisations. In a final step, the draft descriptions as produced by the experts, including geo-locations and scientific references, are compiled into negotiation text and then adopted by governments before being entered into a digital repository. Since 2008, more than 300 EBSA were described and approved by governments. Some of them are located within national jurisdiction, others in areas beyond national jurisdiction, and some in territories of two states and in international waters and so on. However, once entered into the repository, how can the descriptions be changed and new ones added if they belong to an area already covered by a workshop?

Intergovernmental versus national processes

In other words, borders were the Pudels Kern, which is why negotiations “came close to collapsing” (ENB 2018, p. 2) . Therefore, when the chair opened the floor for intervention, almost 40 governments asked for it and made rather detailed interventions on the proposed text. They continued to the break and had to stop, because of plenary. They continued the next day when the chair had to conclude that a contact group had to be established to balance the diverging views of the different delegations. The contact group met 5 times and negotiations often progressed until midnight. The most difficult part concerned the modalities for changing EBSAs located in national waters of one state. While China, Korea, Singapore, Turkey and Japan, were in favour of establishing an intergovernmental process, the EU (mostly because of the UK and Greece), New Zealand, Argentina, Columbia and Brazil opted for a national process. Columbia in line with other governments such as Brazil and Argentina underlined the superiority of national sovereignty over national waters.

An interesting question remains why China, Korea and Japan formed –at least until the last day- a coalition to support the idea of an intergovernmental process. One could speculate that an intergovernmental process enables governments to control the behaviour over others, particularly regarding disputed marine areas. If the EBSAs already agreed on are changed through a purely national process with no reporting obligations, the descriptions might cover the territory, which is disputed. While the “purely scientific process” and the EBSA descriptions do not imply “the expression of any opinion whatsoever […] concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries” governments were concerned about potential effects of prejudicing through scientific descriptions.

The effects of new science and data (infrastructures)

A continuous process for monitoring and modifying EBSAs is crucial, for maintaining the scientific credibility of the descriptions by updating them with scientific insights and new marine biodiversity data, rapidly developing inter alia because new technologies for collecting and analysing data are applied to ever broader

and deeper areas of the oceans to explore its geography and biological diversity. New detection methods, sampling regimes, big data infrastructures, digitisation of historical data and attempts to combine remote sensing and genetics have created new approaches to safeguard marine biodiversity, enhance national biosecurity and track biodiversity monitoring and modelling into the future. Big environmental data sets and automated analysis shape expectation towards new forms of governing the oceans, which is exemplified by the debate over EBSAs and the modalities for modifying their borders. While the adoption of EBSAs over the past 10 years was rather uncontroversial, the question on how to modify them pushed diplomacy to its margins.

In the end, governments adopted the new EBSA descriptions without any controversy and decided to postpone further debate on how to modify EBSAS and add new ones to the next meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) of the CBD (see brackets and unresolved text in CBD COP 14 Decision 14/9) . It remains to be seen if an agreement can be reached at the CBD SBSTTA or at next COP, which will take place in China in 2020.