Reflecting on BBNJ following the IGC5.2

REFLECTING ON BBNJ

What are the final decisions in the agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction ?

What’s in the final BBNJ text ? A landmark agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) has at last been agreed. Two weeks of negotiations went in to overtime and the agreement was finalised after a 36+ hour negotiating marathon.

We break down the discussions being had during the last round of negotiations – and compare them to what ended up in the final text.

These posts will be broken down in to :

– General provisions
– Marine genetic resources
– Area based management tools
– Environmental impact assessments
– Capacity building
– Institutional arrangements

Marine Genetic Resources (MGRs)

Will the digital sequences information and their commercialization be added to the activities related to marine genetic resources which are already composed of collection of in situ samples and access to samples in collection ?

Will the agreement concerned only the MGR collected after the entry into force or will it be extended to the MGR collected before it ?

Fair and equitable sharing of benefits related to the MGR will be established. Non-monetary benefit shall be shared (samples collection, transfer of technology, capacity building, open access to scientific data, cooperation). However, the question related to monetary benefit sharing is still in discussion and if monetary benefit sharing is kept, under which mechanism it will happen ?

Finally, the digital sequence information was added all along the Part II on marine genetic resources with the fair and equitable sharing of benefits even added in the title of this part.

The final text concerns the activities with respect to MGRs and digital sequence information (DSI) on MGRs collected and generated after the entry into force of the Agreement and shall extend to the utilization of MGRs and DSI on MGRs collected or generated BEFORE. However, it will be possible for a Party to the Agreement to request an exception for the MGRs and DSI on MGRs collected or generated BEFORE the entry into force of the Agreement.

The activities with respect to MGRs will be done in the interest of all States and for the benefit of all humanity. Moreover, they shall be carried out exclusively for peaceful purposes. The benefits arising from those activities shall be shared in a fair and equitable manner and contribute to the conservation and sustainable use of marine biological diversity. This will be done in the form of non-monetary benefits through capacity building AND monetary benefits from the utilization of MGRs and DSI on MGRs. The monetary benefits shall be shared fairly and equitably through a financial mechanism: i) after the entry into force of the Agreement, developed States Parties shall make annual contribution to a special fund (the rate will be defined by the COP) and ii) the COP will decide the modalities for the sharing of monetary benefits from the utilization of MGRs and DSI on MGRs.

Area-based Management Tools (ABMTs), including Marine Protected Areas (MPAs)

The pending core issue for Area-Based Management Tool (ABMT) under BBNJ is still “decision-making”. One delegation has clearly stated her preference for consensus as the only rule to create ABMT. Others have worked on an “opt-out” rule which would be applied as follow: if there is no consensus reached, it has to be stated by a 2/3 majority vote. Then, an ABMT could be created by a 3/4 majority vote. An opposed Party to this creation could oppose it by writing to the COP, and justifying this opposition on the following grounds: unconformity with the agreement, discrimination against the Party or incapacity to fulfil the ABMT objectives (article 19bis).

The article 19 tackles the potential process of recognition, by the COP, of preexisting AMBT, or AMBT that would be created after the agreement enters into force. This issue is still highly debated, as one regional delegation has expressed its opposition to the concept of recognition itself.

Some debates are to be found here as in this entire treaty: precautionary approach could be preferred in the article 17 over application of precaution, which seems more binding. The threshold – adverse impacts or serious or irreversible harm – is also to be discussed (article 20 ante), as well as an entire paragraph on the support to “least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States, archipelagic States and developing middle-income countries” (article 14).

For the decision-making process related to proposal of ABMTs including MPAs, the general rule is the consensus. However, if the consensus is not reached after every effort was don to do so, a vote will be done with a threshold of three-quarter majority for accepting the proposal. The decision shall be binding on all Parties. However, the possibility for a Party to make an objection is kept in the text (opt-out). In this case, the Party shall provide the explanation of the ground for its objection which shall be based on one or more of the following grounds: unconformity with the Agreement, discrimination against the Party or incapacity to fulfil the ABMT objectives.

The concept of recognition of preexisting ABMTs was finally kept in the text. However, it was let to the COP to may consider and then may decide to develop a mechanism regarding existing ABMTs including MPAs.

The proposals for ABMTs including MPA shall be formulated taking into account the precautionary approach and an ecosystem approach. In the objectives of the Part III on ABMTs, the inclusion of the support to developing States was kept underscoring in particular the least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States, archipelagic States and developing middle-income countries, taking into account the special circumstances of small island developing States. Concerning the article on emergency measures (art. 20 ante), the threshold to adopt such measures was fix as “when a natural phenomenon or human-caused disaster has caused, or is likely to cause, serious or irreversible harm to marine biological diversity”.

The mention of a specific “burden” that should not bear the small island developing States, is still in brackets, which indicates a balance is still to be found there between justice and environmental protection – the benefit-sharing issues are probably going to be decisive as for the voluntary dismissal of this mention.

Environmental Impact Assessments (EIAs)

The main frictional issue is still the threshold, article 24. 2 options are on the table: sticking to the UNCLOS threshold (article 206), “substantial pollution of or significant and harmful changes to the marine environment” (option B), or adopting a more protective threshold, at least for the screening, “more than a minor or transitory effect” (option A).

The inclusion of social, economic and cultural factors in the scoping process (article 30) still are on the edge of being adopted, as some delegations have argued against their inclusion in favor of a restrictive approach of environmental assessment.

Any party could trigger an assessment process by expressing its concerns: this paragraph is still entirely into brackets (article 30, §4), as it may offer opportunities of control to any Party, including non-coastal States, or parties that are not concerned by a project of the challenged State.

As for the notification, the emphasis “on the most affected States” is still debated, as it might create a hierarchy between those States and the others (article 34).

The decision-making process is quite central too (article 38). The State whose responsibility is at stake might be the only one to determine if the assessment shall proceed (option A), while this power would be conceded to the State only if the “proposed activity” is “likely to have equal to or less than a minor or transitory impact”; if the activity has a stronger impact, the COP is entitled to proceed to an assessment process ‘in accordance with this Party” (option B). The threshold is key to the decision-making process too.

In the final text of the Agreement, the threshold adopted for the screening is for activity that may have “more than a minor or transitory effect” or the effects of the activity are “unknown or poorly understood”. If, at the end of the screening, it is determined that the activity may cause “substantial pollution of or significant and harmful changes” to the marine environment (UNCLOS threshold, art. 206), an environmental impact assessment (EIA) shall be conducted.

During the process for environmental impact assessments (EIAs), Parties shall ensure that “key environmental impacts, such as economic, social, cultural and human health impacts” are identified. The more restrictive approach for EIAs was not chosen.

The option for a Party to register its concerns on the potential impacts of a planned activity on which a determination has been made by another Party. In this case, the Party will register is view with the Party that mad the determination and the Scientific and Technical Body. In the final text, this was placed under Article 30 §1a for concerns related to a planned activity. The same option was chosen for the authorized activity under Article 41 §4.

Concerning the public notification and consultation related to EIAs, the emphasize on “the most affected States” has been kept in the text with the word “potentially” added in front of it. Moreover, information on how to determine the “potentially most affected States” has been give in Article 34 §2.

In the decision-making process for EIA (art. 38), the first option was kept meaning the State whose responsibility is at stake will be the only one to determine if the assessment shall proceed. This is balanced by the fact that another Party can register its concerns on the potential impacts of a planned activity on which a determination has been made by another Party (art. 30 §1a).

At last, the COP power to “halt activity” in case of significant impacts has become optional in this new version (article 41).

Capacity Building & Marine Technology Transfer (CB&TMT)

Will the transfer of marine technology include the development of technology ?

Will the modalities of transfer of technology be different for technology subject to patent and the one not subject to patent ?

The mention of marine technology in the CB&TMT part of this Agreement includes the development of such technology. Moreover, the definition of “marine technology” includes biotechnology.

The modalities for the transfer of marine technology have been defined for all types of technology without separation between the one with patent and the one without it. The transfer of marine technology shall take place on fair and most favorable terms and in accordance with mutually agreed terms. However, it shall take into account all rights over such technologies and be carried out with dur regard for all legitimates interests.

Cross-cutting issues

GENERAL PROVISIONS

To balance the concept of “not undermining” the mandate of other legal instruments, frameworks and bodies (IFBs), without creating a hierarchy between BBNJ and other IFBs, the agreement calls for coherence and coordination with other IFBs. Some countries asked to add “mutual support” for stronger interaction between regimes to support conservation goals. It is still in brackets (art. 4). The same for “parties to BBNJ agreement shall promote the objectives of BBNJ when participating in decision-making under other IFBs” (art. 6). Still in brackets. Here to the wish to balance the “not undermine” against the fear to place BBNJ, and conservation, above other instruments of international cooperation.

The mention of the concept of the common heritage of mankind (CHM) in the general principles and approaches (art.5) has been vigorously defended by many groups and delegation forming a large majority of UN member states referred to as a “superpack”. Opponents strongly argued for either taking out the reference to CHM in the agreement or for recalling the principle of the freedom of the sea, a key principle under the UNCLOS. This with the claim that it will balance the reference to CHM and the clear objective to weaken it.

The ecosystem approach and the integrated approach are not contested. But the mention of the precaution, precaution approach or precaution principle is questioned. An alternative attempt to merge the three concepts, precaution, ecosystem approach and integration, dangerously restricts their application to “permitting activities to be conducted with respect of utilization of resources”. Will shipping sector or pollution generated from land fall under this definition ?

The principle of the common heritage of mankind is kept as a general principle (art. 5). However, the addition of “which is set out in the Convention” was added to it including also “with the freedom of marine scientific research, together with other freedoms of the high seas”.

Both precautionary principle and precautionary approach were et in the text. One of the other will be applied “as appropriate”. In Part III related to ABMTs, the precautionary approach was chosen. Indeed, the ecosystem approach and integrated approach to ocean management were kept in the final text with the addition of “an approach that builds ecosystem resilience, including to adverse effect of climate change and ocean acidification, and also maintains and restores ecosystem integrity, including the carbon cycling services that underpin the ocean’s tole in climate”. This final addition put the accent on the strong link between climate and biodiversity and also reaffirms the role of the ocean as a buffer of climate change.

INSTITUTIONAL ARRANGEMENTS

The spirit of the agreement is that decision by the Conference of the Parties (COP) should be taken by consensus. But the provision for a majority rule remains when all means to obtain the consensus have been exhausted. The threshold is still open for discussion: 2 thirds, 3 fourths or 4 fifths. Although one delegation has questioned the need for a scientific and technical body, this, and its multidisciplinary nature, is confirmed. Social sciences are mentioned as part of the multidisciplinary though only in the annexes. Still two options on the table as for the secretariat. Either an independent secretariat for which the choice of location would be left to the first COP, or performed by the Secretary-General of the UN, trough DOALOS.

The clearing house mechanism, namely an information platform that will ensure transparency and access to all information related to the implementation of the various parts of the agreement, is a key component of the institutional arrangements. Funding is another one. In the refresh text is seems that developing state will be exempted from having to pay mandatory contributions. Three funds are envisaged. A voluntary trust fund for least developed or landlocked countries wishing to contribute. A special fund to receive mandatory contributions from developed state and from the utilization of marine genetic resources as well as voluntary contributions from any other kind of donors. And a trust fund under the Global Environment Facility (GEF).

Mirroring the decision by COP27 of the UN convention on climate change to recognize liability for damage or loss, a group of countries has put on the table the principle of compensation for damage or loss arising from activities taking place in areas beyond national jurisdiction (art. VIIIbis). We shall see by the end of the week if there is enough consistence for this amendment to survive the second week of negotiation.

The COP shall make every effort to adopt decisions and recommendations by consensus. If all efforts to reach consensus have been exhausted, decisions and recommendations on questions of substance shall be adopted by a two-third majority and decisions on questions of procedure shall be adopted by a majority of the Parties. A new secretariat will be established. The COP, at its first meeting, shall make arrangements for the functioning of the secretariat, including deciding on its seat. Until such time, the Secretary-General of the UN, trough DOALOS sall perform the secretariat functions.

Each party shall provide, within its capabilities, resources. A mechanism for the provision of adequate, accessible, new and additional and predictable financial resources is established. The mechanism will assist developing States Parties in implementing this Agreement. The mechanism includes: i) a voluntary trust fund, ii) a special fund funded by annual contributions related to MGRs (art 11 §5bis ante), payments related to the utilization of MGRs (art 11 §5 bis) and additional contributions from Parties and private entities, and iii) the Global Environment Facility trust fund.

Mirroring the decision by COP27 of the UN convention on climate change to recognize liability for damage or loss, a group of countries had put on the table the principle of compensation for damage or loss arising from activities taking place in areas beyond national jurisdiction (part VIII bis). It was finally decided to not keep this part in the Agreement.