TRANSFORMATIVE ACTIONS. CONVERGENCE #50

JUNE 2024

TRANSFORMATIVE ACTIONS. CONVERGENCE #50 THE BIODIVERSITY PLAN & THE BBNJ AGREEMENT: SYNERGIES ON CAPACITY BUILDING AND TRANSFER OF MARINE TECHNOLOGY Julia Schutz Veiga

NOVA IPSI Knowledge Centre and The Nippon Foundation Ocean Voices Programme

Daniel Kachelriess

Cross-Cutting Coordinator, High Seas Alliance

Nathalie Rey

Strategy Advisor and EU coordinator, High Seas Alliance

IISD/ENB | Mike Muzurakis ©

“MARINE LIFE DOES NOT RECOGNIZE BOUNDARIES. PROMOTING SYNERGIES BETWEEN RELEVANT INTERNATIONAL BODIES SUCH AS THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD) AND THE NEW HIGH SEAS TREATY - IS ESSENTIAL TO SECURING 30% PROTECTION OF ALL SEAS BY 2030, BOTH WITHIN AND BEYOND NATIONAL WATERS. TAPPING INTO THE CBD’S THIRTY YEARS OF EXPERIENCE, AS WELL AS ITS SCIENTIFIC EXPERTISE, WILL BE OF HUGE VALUE FOR THE HIGH SEAS TREATY AS MEMBER STATES PREPARE FOR ITS SWIFT ENTRY INTO FORCE AND IMPLEMENTATION.” - Rebecca Hubbard, Director, High Seas Alliance

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To support the effective implementation of The Biodiversity Plan of the Convention on Biological Diversity (CBD) and the High Seas Treaty on conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ Agreement), synergies and complementarities between both frameworks must be highlighted. In force for over 30 years, the CBD can inform the set-up and implementation of the new BBNJ Agreement, particularly regarding capacity building and transfer of marine technology.

The negotiations of the The Biodiversity Plan,1 and the UN Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,2 referred to as the High Seas or BBNJ Agreement, had considerable temporal overlap (2018-2022 & 2017-2023) and their primary subject was the conservation and sustainable use of biodiversity. The significant cross-fertilization and exchange of ideas between the fora results in opportunities for synergies in implementation.

This article examines common elements focusing on capacity-building and the transfer of marine technology (CBTMT) and the means of implementation for these provisions. It highlights where the CBD’s experience from 30 years of implementation and shared community of practice could offer helpful learnings to the BBNJ agreement and to the operationalisation of its subsidiary bodies. It elaborates that prioritising CBTMT activities under the relevant CBD frameworks to deliver co-benefits between the CBD and the BBNJ would be highly valuable to contribute towards the objectives of both agreements.

TRANSFORMATIVE ACTIONS. — CONVERGENCE #50

1. CAPACITY BUILDING & TECHNOLOGY TRANSFER UNDER THE BBNJ Overview of key provisions As part of the “2011 package”,3 the CBTMT provisions are recognised as one of the main pillars of the Agreement. They provide a structure with both the tools and mechanisms to facilitate implementation of and compliance with the Agreement’s obligations and rights, particularly by developing states.

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The BBNJ also introduces a monitoring and review process,13 complementing the establishment of the Committee in evaluating the effectiveness of CBTMT initiatives, employing a range of vital metrics (including indicators and results-based analyses), and potentially guiding the COP in the design of strategies and policies to enhance capacity-building and facilitate marine technology access and transfer.

Another important innovation is the first legal definition of marine technology in Article 1(10)

The provisions in Part V of the BBNJ Agreement establish the legal framework for capacity-building and transfer of marine technology.4 Other pillars of the Agreement contain more specific CBTMT provisions, for example as part of non-monetary benefits being shared in the context of marine genetic resources5 and as a specific objective under the parts dealing with Area-Based Management Tools and Environmental Impact Assessments.6 This highlights the cross-cutting nature of CBTMT measures, reinforcing their role as a means for implementing the BBNJ Agreement.

© Lewis Burnett / Ocean Image Bank

1. Negotiations of the KM-GBF were launched at CBD CoP 14 in 2018 and culminated in adoption of the KM-GBF and its 23 Targets in December 2022 at CBD COP15.

2. The BBNJ negotiations were convened pursuant to UN General Assembly Resolution 72/249, of 2017 with the first session of the intergovernmental conference taking place September 2018 and the Agreement formally adopted at the further resumed 5th session in June 2023.

3. The elements of the “2011 package” formed the basis of the BBNJ and were: (i) marine genetic resources and issues of access and benefit sharing; (ii) environmental impact assessment; (iii) area-based management tools, including marine protected areas and (iv) capacity-building and transfer of marine technology. Throughout the BBNJ negotiations delegations emphasised the need to advance on these items in lock-step and maintain the overall balance of equity.

4. It is structured in seven Articles which establish (i) the objectives of Part V, (ii) the bases for cooperation, (iii) the modalities and types, (iv) the parameters for monitoring and review and (v) the institutionalisation of the CBTMT Committee.

5. See BBNJ Agreement - Part II on marine genetic resources, including the fair and equitable sharing of benefits.

6. See BBNJ Agreement – Part III on Measures such as area-based management tools including marine protected areas.

7. See BBNJ Agreement - Part V on financial resources and mechanisms.

8. See reference 4.

9. UNCLOS, entered into force in 1994, defines the rights and responsibilities of nations in their use of the world’s oceans; it establishes guidelines for businesses, the environment, and the management of marine natural resources 10. Myron Nordquist, Ronán Long, Tomas H. Heidar and John Norton Moore (editors), Law, Science and Ocean Management, Volume 11, Center for Oceans Law and Policy Series, (Leiden: Martinus Nijhoff, 2007), xviii, pp. 850. https://doi.org/10.1163/ ej.9789004162556.i-850.80

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CBTMT considerations are also reflected throughout the financial mechanism of the Agreement, namely through the Special Fund created for the occasion and the Global Environment Facility Trust Fund7 along with contributions from the monetary benefit-sharing from the marine genetic resources.8 The prominent positioning and weight given to CBTMT in the BBNJ Agreement reflects its dual nature as an objective in itself and a way to broadly advance the implementation. They represent a significant milestone in promoting ocean equity and the consequent conservation and sustainable use of marine biodiversity.

The CBTMT Committee and other ways BBNJ innovates over UNCLOS The United Nations Convention on the Law of the Sea (UNCLOS)9 recognizes the importance of technical cooperation and the development and transfer of marine technology, but legal scholars,10 among others, consider that the corresponding obligations are not well implemented. A comprehensive analysis found that although there is a legal framework for CBTMT in UNCLOS, the ambiguity of the provisions and the lack of a financial mechanism hinder its implementation to this day.11 Learning from this experience, BBNJ negotiators introduced several innovations in the Agreement. A cornerstone is the establishment of a Committee to oversee the implementation of CBTMT provisions and submit reports and recommendations to the COP. Proposed by the regional group of the Caribbean Community (CARICOM), and championed by CARICOM and the Core Latin American Group (CLAM), the final text established the Committee but left the definition of its terms of reference and operating modalities up to its first meeting.12 The CBTMT Committee stands as a beacon of hope.

It can serve as a robust legal tool for guiding international cooperation and action that ensure the conservation and sustainable use of marine biodiversity, particularly in combating climate change. It also presents an opportunity to advocate for the needs and expertise of traditional knowledge holders and scientists from developing states who are frequently marginalised in international ocean governance.

On this basis, the BBNJ Agreement has been pointed out as a practical solution to enforce the CBTMT international legal framework14 and as an opportunity to revitalise the global partnership for development.15

2. CAPACITY BUILDING AND TECHNOLOGY TRANSFER UNDER THE CBD Overview of key provisions The CBD has identified capacity-building and development as a priority for the effective implementation of its instruments, including the Nagoya Protocol on Access and Benefit-Sharing and The Biodiversity Plan. The CBD’s text includes several articles aimed at enhancing capacity building, particularly in developing countries, to support implementation including Research and Training, Access to and Transfer of Technology, Exchange of Information, Technical and Scientific Cooperation, Financial Resources and a Financial Mechanism. Moreso, three of The Biodiversity Plan’s Targets are related to capacity building: Target 19, Target 20 and Target 21.16 The CBD has learned from the lack of achievement of the 2020 Aichi Targets. The Biodiversity Plan has strong implementation measures built in through the Monitoring Framework to track implementation, identify and overcome challenges, and help accelerate efforts. In particular, there are mechanisms for planning,

THE BIODIVERSITY PLAN & THE BBNJ AGREEMENT: SYNERGIES ON CAPACITY BUILDING AND TRANSFER OF MARINE TECHNOLOGY

TRANSFORMATIVE ACTIONS. — CONVERGENCE #50

monitoring, reporting and review through a set of headline indicators that allow for consistent, standardised and scalable tracking of national, regional and global progress.

Governments are required to submit National Biodiversity Strategies and Action Plans that align with achieving the goals and targets of The Biodiversity Plan by CBD COP16. The global analysis of NBSAPs will assess progress and determine whether the efforts are on track, or if there is a need to revise them to increase ambition.

© IISD/ENB | Mike Muzurakis

11. https://www.bloomsbury.com/uk/ united-nations-convention-on-the-lawof-the-sea-9781849461924/ 12. https://view.officeapps.live.com/op/ view.aspx?src=https%3A%2F%2Fwww. un.org%2Fbbnj%2Fsites%2Fwww. un.org.

13. See BBNJ (Article 47) 14. https://www.iucn.org/sites/default/ files/2022-09/paper_ix_technology_ transfer_and_capacity_building.pdf 15. https://illuminem.com/ illuminemvoices/sdg-17-how-thenewly-adopted-bbnj-agreementcontributes-to-the-revitalization-ofthe-global-partnership-for-sustainabledevelopment 16. Target 19 on mobilising an extra $200 billion per year to help support developing countries, including from the private sector; Target 20 on strengthening capacity building, technology transfer and scientific and technical cooperation for biodiversity to meet the needs for effective implementation, particularly in developing countries; and Target 21 on ensuring that knowledge is available and accessible to help guide implementation.

17. Decision 15/8: https://www.cbd.int/ doc/decisions/cop-15/cop-15-dec-08en.pdf 18. https://www.cbd.int/soi/ 19. The relationship between the BBNJ Agreement and IFBs was a critical point of discussion in the BBNJ negotiations. The principal guidance on these interactions are that.BBNJ ‘shall be interpreted and applied in a manner that does not prejudice the relevant IFBs’ (Art. 5), counter-balanced by an obligation on Parties to the Agreement are obliged to promote the objectives of the Agreement in decision-making in other forums (Art. 8).

20. See BBNJ Art. 41.1+2 21. Decision X/29, para24 22. https://www.cbd.int/doc/c/8d72/ 2f35/9dd63ea70a7d259640a878ca/ sbstta-26-inf-08-en.pdf 23. It is worth noting that the GBF and the BBNJ agreement rely (partially in the case of BBNJ) on the Global Environment Facility (GEF) to serve as a financial mechanism to support efforts to enhance capacity building and facilitate technology transfer for biodiversity conservation.

24. A Clearing-House Mechanism is an agency or platform that “brings together seekers and providers of goods, services or information, thus matching demand with supply”, compare: https://bch.cbd.int/help/ topics/en/What_is_a_Clearing_House_ Mechanism.html

CBD COP 15 also adopted a long-term strategic framework for capacity building and development17 to support Parties’ implementation efforts determined in their NBSAPs. The Secretariat is responsible for coordinating and facilitating capacity-building support to Parties to ensure effective implementation. This includes the CBD’s Sustainable Ocean Initiative18 Global Dialogue with Regional Seas Organizations and Regional Fishery Bodies which aims to provide a platform to build partnerships and enhance capacity to conserve and sustainably use marine and coastal biodiversity in a holistic manner.

3. WHERE DO THE CBD AND THE BBNJ AGREEMENT CONVERGE ON CBTMT Furthering international cooperation and coordination is key to the implementation of the BBNJ Agreement. It is operationalised throughout the agreement,19 including through an obligation on Parties to promote its objectives in other fora, such as the CBD, expecting them to seek synergies and complementarity. This is enshrined in the CBTMT provisions of the BBNJ Agreement, which refer to cooperation through other relevant instruments, structures and bodies on CBTMT in States’ obligations.20 Although CBTMT in the BBNJ Agreement focuses on biodiversity in areas beyond national jurisdiction, there is broad scope of synergies between the two agreements given the transboundary nature of marine biodiversity and the relevance of the ecosystem approach. Many if not all types and modalities of CBTMT established in the Agreement are equally relevant to the conservation and sustainable use of marine biodiversity within and outside national jurisdictions.

The CBD COP has recognized that the Convention has “a key role in supporting the work of the General Assembly with regard to marine protected areas beyond national jurisdiction, by focusing on provision of scientific and, as appropriate, technical information and advice relating to marine biological diversity, the application of the ecosystem approach and the precautionary approach.”21 It asked the CBD Secretariat at COP15 to identify opportunities for collaboration with the BBNJ Agreement. As a result, it produced a document to inform discussions22 that identifies areas of scientific and technical work that the CBD has undertaken with regards to: + the description of ecologically or biologically significant areas, + Area-Based Management Tools, including marine protected areas and other effective conservation measures,

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+ biodiversity inclusive Environmental Impact Assessments, + the mainstreaming of biodiversity into sectors, guidance on key pressures, + access and benefit-sharing of genetic resources, digital sequence information on genetic resources, and coordination of clearing house mechanisms.

Both The Biodiversity Plan and the BBNJ Agreement emphasise capacity building and technology transfer as critical components to create a supportive environment for the conservation and sustainable use of biodiversity, including: + developing policies, legal frameworks and regulatory mechanisms; + training and education, especially for researchers, policy makers and key stakeholders; + raising awareness to foster stakeholder and community involvement and facilitating collaboration and networking among countries, institutions and stakeholders; + providing mechanisms to help access and transfer technologies, for example to monitor biodiversity, data collection, and conservation practices - and to share them among countries, particularly developing nations; encouraging joint research initiatives and development projects; + financial mechanisms23 to help fund research and development as well as the implementation of new technologies in conservation efforts; + establishing monitoring frameworks to track implementation of CBTMT provisions; + establishing clearing-house mechanisms24 to coordinate capacity building and technology transfer activities.

Another key issue lies in balancing public and private interests. In the fight against climate change and biodiversity loss, scientific consensus underscores the imperative of global collaboration and coordinated action.25 This issue has sparked extensive discussions on the role of the private sector with regards to CBTMT, also given that it largely spearheads technology and innovation development.26 Intellectual property rights are pivotal in this process, introducing complexity and additional layers to transferring marine technology. Legal scholars have actively analysed this intersection and proposed innovative solutions, including open-source licensing models27 and refocusing policies28 to navigate these challenges effectively.

“CBTMT AS ONE OF THE KEY MEANS OF IMPLEMENTATION OF THE AGREEMENT WILL CONTRIBUTE TO ENSURE A TRUE OPERATIONALIZATION OF ITS OBJECTIVES AND REDUCE EXISTING GAPS AND ASYMMETRIES BETWEEN PARTIES.” - Ligia L. Flores Soto Counselor, Permanent Mission of El Salvador to the United Nations THE QUOTATION EXPRESSED IN THIS DOCUMENT REPRESENTS THE AUTHOR’S PERSPECTIVE AS A FORMER FACILITATOR DURING THE SESSIONS OF THE INTERGOVERNMENTAL CONFERENCE.

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TRANSFORMATIVE ACTIONS. — CONVERGENCE #50

Concretely, the NBSAP process offers an opportunity for synergy with the BBNJ agreement. Taking into account the interconnectedness of the ocean and the transboundary nature of marine biodiversity the process of developing national strategies and action plans on tackling the biodiversity crisis under the CBD could include Parties’ commitment to strengthening contributions to international biodiversity initiatives and governance processes, as part of a holistic approach to tackling the ocean biodiversity crisis.

Prior to the BBNJ’s entry into force, this could include Parties’ commitment to its ratification, allocating resources to engage in BBNJ implementation efforts, as well as highlighting capacity and technology needs.

© Masayuki Agawa / Ocean Image Bank

25. https://sustainabledevelopment. un.org/futurewewant.html 26. https://brill.com/view/journals/ jwit/23/5-6/article-p947_10.xml 27. https://ssrn.com/abstract=1712289 28. https://doi.org/10.1093/jiplp/ jpad039 29. https://highseasalliance.org/wpcontent/uploads/2024/05/BriefingHSA-PrepCom.docx.pdf 30. An initial compilation of capacity needs was conducted by the interim Secretariat of the BBNJ Agreement, UN DOALOS, and the GEF and can be found here: https://www. un.org/depts/los/reference_files/

The initial development of the BBNJ’s Clearing-House Mechanism presents several concrete examples for collaboration. Once operationalised, it will play an important part in implementing the CBTMT provisions, including its potential role to facilitate needs assessment and matching capacity needs with opportunities.

It will also be a central information node for other parts of the BBNJ Agreement with strong synergies to The Biodiversity Plan, such as proposals and consultation on Areas Based Management Tools. Due to this central role, the High Seas Alliance has proposed that its early operationalisation should be included in the program of the BBNJ PrepCom that was established in April 2024 and could include a pilot-phase between the entry into force of the agreement and BBNJ COP1.29 The experience of the CBD and its protocols with the operation of Clearing-House Mechanisms, and running pilot-phases prior to their entry into force, will be very helpful for the BBNJ community. The BBNJ Agreement also foresees its Clearing-House Mechanism to connect to other relevant ones, which would likely include those established under the CBD and its protocols.

5. SPECIFIC RECOMMENDATIONS FOR CBD COP AND BBNJ PREPCOM The CBD’s 30-years experience in implementation and the fact that the BBNJ Agreement has not entered into force create opportunities to: 4POST2020BD.NET @4POST2020BD

a) leverage the CBD’s existing processes to advance joint or synergetic objectives of both agreements, particularly on CBTMT activities POST-2020 BIODIVERSITY FRAMEWORK – EU SUPPORT IS FUNDED

BY THE EUROPEAN UNION AND IMPLEMENTED BY EXPERTISE FRANCE. IT AIMS AT FACILITATING THE PROMPT IMPLEMENTATION OF A TRANSFORMATIVE POST-2020 GLOBAL BIODIVERSITY FRAMEWORK.

b) learn from the CBD’s established practices in developing the BBNJ’s operational processes.

To promote synergised efforts regarding CBTMT, at CBD COP16, Parties may consider taking steps to: 1.

2.

3.

4.

Take into account the BBNJ’s objectives and priorities30 in its prioritisation of capacity building and funding related decisions. Given that the BBNJ’s financial mechanism is not yet operational, smart bundling of BBNJ and CBD capacity building priorities in using GEF funding can help advance early operationalisation and implementation of the BBNJ. Promote and prioritise synergies in addressing capacity needs for effective implementation of both agreements CBD’s Long-Term Strategic Framework for Capacity-Building and Development.

Include BBNJ commitments in NBSAPs: commitment to ratify the BBNJ Agreement promptly, and to communicate CBTMT needs with regards to BBNJ. Consider the information document by the CBD Secretariat on potential collaboration between the BBNJ and CBD and decide on appropriate follow-up activities.

During the BBNJ preparatory process, its COP1 and beyond, BBNJ Parties may consider: 5.

6.

7.

Capitalising on the CBD Secretariat’s experience in setting up three Clearing-House Mechanisms when developing and operationalising the specific modalities of the BBNJ, including the value of a pilot phase for the Clearing-House Mechanism prior to the entry into force of the Agreement.

Learning from the CBD’s experience in collecting and analysing data to identify capacity needs and developing insightful and objective strategies.

Within BBNJ’s CBTMT Committee, ensure that financial resources will be distributed and applied to enable participation of representatives of developing states, particularly representatives of marginalised groups.

Parties to either or both Agreements may also consider: 8.

9.

Including the issue of enhancing synergies and collaboration between CBD and BBNJ as a standard agenda or sub-agenda item in relevant processes.

Organising or supporting the organisation of workshops and activities that advance joint or synergetic objectives between BBNJ and CBD, including by the respective Secretariats of both bodies.

THIS PUBLICATION IS FUNDED BY THE EUROPEAN UNION. ITS CONTENTS ARE THE SOLE RESPONSIBILITY OF THE AUTHORS AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE POST 2020 BIODIVERSITY FRAMEWORK EU SUPPORT PROJECT, EXPERTISE FRANCE, THE EUROPEAN UNION OR THE EXPERTS CONSULTED.

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THE BIODIVERSITY PLAN & THE BBNJ AGREEMENT: SYNERGIES ON CAPACITY BUILDING AND TRANSFER OF MARINE TECHNOLOGY

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4. OPPORTUNITIES FOR CONCRETE COLLABORATION ON CBTMT BETWEEN BBNJ AND CBD

JUNE 2024