This blog post was published simultaneously by the One Ocean Hub and the ERC Project MARIPOLDATA. It is a collaborative effort by the two projects following the BBNJ process in their capacity as researchers from different scientific disciplines and as advocates for an inclusive and transparent BBNJ process.  The aim of this post is to reflect on the problematic nature of these restrictions from the following inter-linked perspectives: 1) environmental justice and equitable participation; 2) legitimacy and good practices in other multilateral negotiations; 3) international human rights law; and 4) research practices that focus on, and benefit, the BBNJ negotiations. The blog post will conclude with a few pragmatic recommendations on how participation should be enhanced at the next session of this process (IGC 5), which is expected to be organised from 15th to 26th of August 2022.

Some background

The United Nations (UN) negotiations on an international legally binding instrument under the UN Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) resumed, from 7-18 March 2022 at UN Headquarters in New York. This marked the fourth session of the Intergovernmental Conference (IGC 4) mandated by the UN General Assembly (UNGA). Three former sessions were held in September 2018 (IGC 1), March-April 2019 (IGC 2) and August 2019 (IGC 3). Due to COVID-19 restrictions, IGC 4- initially scheduled for March 2020- was postponed many times, which is why great hopes were pinned on IGC 4, although it was clear from the beginning that no great leaps could be achieved after a two-year pause. Still, according to the Earth Negotiations Bulletin, “[f}or the first time, delegations prepared and submitted textual proposals, many times jointly,” and made “unprecedented progress.”

Despite the progress made, the meeting had its downsides, and the lack of equitable participation puts into question the significance of this progress. Only two weeks before the start of IGC 4, the president of the negotiations announced that non-state actors and observers would not be allowed to participate in the physical meeting due to COVID-19 restrictions on-site and would only have the option to follow the negotiations online without any possibility to make statements or interventions. While governments could only send 1+1 delegate into the conference room, non-state actors and observers were not even allowed to access the UN building, at least for the first week.  During the second week, “Three silent observers were allowed to enter into the conference room each day.” These restrictions were considered problematic by both state and non-state actors, which became very clear “[d]uring the closing plenary, [when] many states called for observers to be accorded full participation rights at the next session” (Earth Negotiations Bulletin).

Reflections from an environmental justice perspective

Environmental justice often has a plurality of meanings and encapsulates:

• distributive justice, referring to fair and equitable distribution of environmental harms and benefits;
• recognitional justice, referring to recognition of and respect for marginalised groups, perspectives, and ways of knowing; and
• representational justice, referring to procedures to ensure representation of diverse perspectives in decision-making (Blue et al., 2021; Suiseeya, 2014).

In this post, we focus on representational justice which is the fair treatment and meaningful involvement of all, independent of class, race, national origin, language, income, place of birth, gender, sexuality and ability, in the development, implementation and enactment of regulations, laws and policies regarding the environment (Environmental Protection Agency, 1998). Principle 10 of the Rio Declaration on Environment and Development specifically states citizens’ rights to participation, “appropriate access to information” and that States shall provide each individual “the opportunity to participate in decision-making processes” regarding environmental issues (UNEP 1992).

Meaningful involvement is understood in this post as a process that goes beyond mere consultation or information sessions, where individuals have influence, opportunities to engage, provide inputs and where the learning and knowledge sharing process is a two-way process (Dyer et al., 2014). Meaningful involvement therefore necessitates appropriate access to adequate and accessible information and platforms that encourage fair and open dialogue, inclusive and adequate representation and transparency (Stewart and Sinclair, 2007; Reed, 2008; Dyer et al., 2014). Fair and equitable participation is in this blog post referring to mechanisms that ensure equal opportunity for engaging as well as the necessary support, contextualised approaches and empowerment to access these equal opportunities for participation (Kapoor, 2001; Reed, 2008). This might include non-online engagement, or support to access online engagements, translation into different languages and approaching environmental challenges from different points of view (Stone, 2002; Hargittai and Jennrich, 2016).

The BBNJ negotiations, by limiting UN Member States to only two delegates, are not facilitating fair and equal access to participation, and run risks of environmental injustice. Although a video link was provided for individuals beyond the two UN Member State delegates, the link did not allow concerned parties to make any interventions – unlike what was made possible in the Convention on Biological Diversity meetings. The “informal informals” approach at IGC 4 meant that the negotiations were not broadcasted through the official UN webcast and only registered observers could silently follow the negotiations through Webex. In addition, with regard to in-person participation, due to COVID-19 related regulations, only two representatives of civil society were allowed in the room during the second week (of those who had travelled to New York even without the prospect of access) and these representatives were not able to make statements until all states had made their closing remarks on the last day. And non-state actors could not make any statement as the “informal informals” format only foresees state interventions.

By not allowing any participation beyond the physical presence of two delegates per UN Member State except from registered and invited observers in the second week, the BBNJ negotiations are not upholding fair treatment of all. The negotiations are rather directly contradicting the concepts of meaningful involvement and fair and equitable participation. By strictly limiting the opportunity to participate, as well as the means to participate, the IGC 4 can only be categorised as an information session at best, and as purposive exclusion of civil society and non-state actors at worst, from an environmental justice perspective.

Information and process transparency

Transparency is a key topic in global marine governance. Institutions tasked with the governance of different aspects of marine management and protection are normally expected to transparently inform about their activities, decisions and relevant data. This need for institutions of marine governance to be transparent stems from an overall expectation that international institutions are transparent in order to have legitimacy as well as from the experience that much of what happens on the high seas remains hidden to observers on land – therefore institutions governing this aspect should be particularly transparent. However, many institutions have not managed to live up to the transparency expectations. Ardron et al. (2014) after reviewing 2 decades of marine governance find that there is still much to be done to improve the transparency of international marine governance.

The authors distinguish three aspects of transparency (in marine governance institutions), information, process and results:

• information transparency relates to the timely availability of information used as inputs to decision‐making to members and the public;
• process relates to the ability of the public to observe or participate in meetings and to review materials produced during the progression of decision‐making processes; and
• output is the access to outputs of decision‐making, including findings on compliance via compliance reviews and performance assessments (Ardron et al., 2014). 

This distinction is important because being able to read relevant documents (information transparency) does not give equal opportunity for the public (civil society organisations) to monitor and influence the process (process transparency) as participation does. Many marine governance institutions score particularly badly in relation to process transparency, which is mirrored by the many calls of non-governmental organisations (NGOs) that criticise being left out of important decision-making processes (e.g. in the International Seabed Authority).

The BBNJ negotiations run the risk of disregarding this important dimension of transparency by not letting civil society organisations’ (CSO) observers into the negotiation room. While the information transparency is largely given (access to documents and the webcast available for CSOs), one delegate mentioned that documents shall be made available because “we didn’t think we were in a secret meeting”, meaning that issues of process transparency were not adequately addressed.

This appears particularly surprising as the participation of CSOs is a fairly established principle in global governance in general and environmental governance in particular. The Convention on Access to Information, Public Participation in Decision‐Making and Access to Justice in Environmental Matters (Aarhus Convention) to which not only most of the states negotiating the BBNJ agreement are parties but which also was mentioned during the intersessionals, online dialogues and during IGC 4 by state delegates, conveys that the ability of the public to observe or participate in meetings and to review materials produced during the progression of decision‐making processes is a core aspect of transparency (Aarhus Convention, art. 3). While a recent survey indicates that BBNJ stakeholders generally view on site negotiations as more inclusive than online formats (see MARIPOLDATA Report), the exclusion of civil society from IGC 4 seems to be in direct opposition to the principle of “process transparency,” which finds reflection in the Aarhus Convention. Although reference to the Aarhus Convention was made by one state during the informal informals, a number of states (only the UK during the plenary meeting and the UK, Costa Rica, Argentina, Canada, New Zealand, Australia, US, and Micronesia during informal informals) expressed their unhappiness over the non-participation of CSO in the negotiation room.

Nevertheless, transparency vis-a-vis non-state actors remained limited throughout the whole IGC 4, supposedly justified by COVID-19 measures, which seems even stricter when compared to other international meetings that had been convened in the last months. For example, during the fifth session of the United Nations Environment Assembly from 28 February to 2 March in Nairobi, Kenya, access for civil society was granted under normal conditions. The meetings in preparation of the COP of the Convention on Biological Diversity, which took place in Geneva from 13 to 29 March allowed two members per observer organisation and 6 per state party. However, participants were given green and yellow badges and only holders of green badges were admitted to the plenary meetings while holders of yellow badges could follow the live stream in the overflow room. At the UN Climate COP in Glasgow (November 2021), observer accreditation was limited to four slots per organisation. But only one person from each party as well as IGOs and NGOs were allowed in any room simultaneously and a live stream was provided in overflow rooms.

International human rights perspective

This section will clarify that the observations made in the previous sections chime with relevant international human rights standards, with a view to underlining that we are not only underscoring justice and good practice issues, but matters that are addressed in international legally binding law that is relevant to this process and applies to States that are parties to underlying international treaties. Biodiversity has been increasingly recognised as a matter of international human rights law: how we protect biodiversity has an impact on a variety of basic human rights (life, health, food, water, culture), hence we need to take into account the implications for human rights of our decisions on biodiversity. In addition, international human rights standards are expected to be applied to decision-making processes on biodiversity, as they are expected to support the consideration and participation of relevant human rights-holders (A/HRC/34/49). This is also true for marine biodiversity of areas beyond national jurisdiction, as specifically underscored by the UN Special Rapporteur on Human Rights and the Environment in 2020 (A/75/161). In effect, to give a prominent example the COVID test relies on an enzyme derived from an organism found at deep sea hydrothermal vents and freshwater hot springs.

These considerations are based on a combined reading of States’ obligations under human rights treaties to which they are party, and their obligations under the UN Convention on the Law of the Sea and the Convention on Biological Diversity. The same international human rights treaties are also relevant for States in pursuing the Sustainable Development Goals, as underscored by the Human Rights Council (The implementation of Agenda 2030 must be consistent with States’ obligations under international human rights law: A/HRC/RES/37/24; A/HRC/RES/37/25.) While we tend to think of these as obligations that relate to decisions and actions within national jurisdiction, it has been clarified that they apply also to international cooperation, including intergovernmental negotiations (A/HRC/37/59, 2018, Principle 13).

From a procedural perspective, these obligations provide clear minimum standards of transparency and public participation that should be followed in the BBNJ negotiations:

• ensure affordable, effective, objective, understandable and timely access to information that should enable people to understand how environmental harm may undermine their rights to life and health & support the exercise of participation rights;
• facilitate participation in decision-making, that should be open to all members of the public who may be affected, should give adequate opportunity for the public to express views, and should occur early in decision-making process;
• take public views into account, which entails an obligation to explain the justificationfor decisions to the public, and;
• take additional steps to facilitate participation of marginalised communities, women and children (A/HRC/37/59; A/HRC/37/59).

The last point would certainly be the case of Indigenous peoples and local knowledge holders, given the references to Indigenous and local knowledge in the draft, which would rely on the specific international obligations related to indigenous peoples’ rights. This could draw inspiration from practices at the Intergovernmental Science-Policy Panel on Biodiversity and Ecosystem Services, the International Indigenous Forum on Biodiversity under the Convention on Biological Diversity and the Local Communities and Indigenous Peoples Platform under the UNFCCC.

Furthermore, given that the “discussions of future generations [must] take into account the rights of the children who are constantly arriving, or have already arrived, on this planet” and children are the most vulnerable to environmental harm because they are still developing (A/HRC/37/58), discussions on inter-generational equity and the importance for humankind of BBNJ must include the perspectives and interests of children. There is a need for children-friendly information and modalities to consider children’s viewson long-term environmental challenges that will shape the world in which they will spend their lives. This will involve further consideration of the linkages between climate change and BBNJ. Increased scrutiny by international human rights bodies from the perspective of children’s human rights is likely to increase as new UN guidance is being developed on children’s rights to a healthy environment, and the BBNJ negotiations have the opportunity to spearhead this work.

These procedural requirements on public participation are crucial in and of themselves for environmental justice and transparency purposes. But they should also be understood for their functional relation to substantive human rights obligations that are relevant in the BBNJ negotiations. States, individually and collectively, should ensure that these procedural standards contribute to preventing unjustified, foreseeable infringements of human rights arising from biodiversity loss (A/HRC/34/49), which requires consideration of:

• public interventions that may infringe human rights dependent on marine ecosystems (for examples related to the human right to health, see here);
• the regulation of businesses so as to prevent them from violating human rights in the context of extractives and conservation
• the best interests of the child as a primary consideration.

These are considerations that would be relevant across all the elements of the treaty, notably environmental impact assessments and strategic impact assessments, as well as the role of precaution in area-based management tools, bio-based innovation, capacity building and technology transfer. 

In addition to these general international human rights law bases for transparency and public participation in the BBNJ negotiations, certain States have specific obligations under the:

• Escazú Convention, Art 7(12): Each Party shall promote, where appropriate and in accordance with domestic legislation, public participation in international forums and negotiations on environmental matters or with an environmental impact, in accordance with the procedural rules on participation of each forum.
• Aarhus Convention, Art. 3(7): Parties should promote the application of the principles of the Convention in international environmental decision-making processes and within the framework of international organisations in matters relating to the environment.

In particular, under the Aarhus Convention, the Almaty Guidelines were adopted to provide more clarity on what Art. 3(7) entails. The Guidelines call for adjustments to international processes to allow for appropriate public participation, such as the following ones:

13. There may be need to adapt and structure international processes and mechanisms in order to ensure meaningful and equitable international access.

14. In any structuring of international access, care should be taken to make or keep the processes open, in principle, to the public at large.

15. Where members of the public have differentiated capacity, resources, socio-cultural circumstances or economic or political influence, special measures should be taken to ensure a balanced and equitable process. Processes and mechanisms for international access should be designed to promote transparency, minimize inequality, avoid the exercise of undue economic or political influence, and facilitate the participation of those constituencies that are most directly affected and might not have the means for participation without encouragement and support.

17. Capacity-building may be important to facilitate international access for the public concerned, in particular NGOs promoting environmental protection, and especially in developing countries and in countries with economies in transition.

18. Enhancing international access may imply investment of resources. If necessary, resources should, in relevant cases, be made available in the appropriate form and according to modalities to be agreed upon in each international forum concerned, in order to facilitate meaningful and equitable international access.

As discussed also in the context of the International Seabed Authority, the growing understanding, from a scientific and legal perspective, of the inter-dependence of human rights and marine biodiversity requires visible and effective changes to current practices in intergovernmental negotiations to ensure that all the relevant interests and knowledge systems are taken into account in State cooperation, including with regard to marine areas beyond national jurisdiction.

Impact on (ethnographic) study of the negotiation

The BBNJ IGCs are not only important avenues for non-state actors seeking to inform or influence the treaty negotiations. They are also sites of study for ethnographic research and scholars interested in the making of the BBNJ treaty (Vadrot, 2020). From the second IGC onwards, the MARIPOLDATA research team (funded by the European Research Council) has conducted collaborative event ethnography on-site with the aim to collect data that would allow us to understand struggle between different actors and how these have shaped the final treaty text. For instance, they have observed tensions regarding the inclusion of the Common Heritage of Humankind principle while being on-site in New York and used their ethnographic data to reconstruct and analyse state positions in favour or against the concept (Vadrot et al., 2021). Ethnographers rely on fieldwork in their attempts to study and describe the culture of a specific community- in the BBNJ case the state and nonstate actors shaping the future agreement within the highly structured and restrained setting of multilateral environmental diplomacy.

Thus, the decision to restrict access to IGC 4, has also impacted ethnographic studies of the BBNJ process in both methodological and analytical terms. It meant that researchers did not have access to the field site and potential interview partners. Like other non-state actors, researchers learned about the restrictions only two weeks before the start of the negotiations. Registered under the International Studies Association (ISA) approximately 20 researchers from all over the world – many of them PhD students and early career researchers – only got the possibility to follow the negotiations online, which significantly limited the scope and depths of the observations they could potentially make.

Due to the fact that the MARIPOLDATA team already had to adapt their methodology in 2020, when IGC 4 was indefinitely postponed and several informal online dialogues launched, they could quickly adapt to denied access and collect data on the basis of digital ethnography (Vadrot et al., 2021). Applying digital ethnography to IGC 4 allowed them to collect data, which they also used to publish a blog after the first week of negotiations to increase transparency of the process. This was important, as the largest part of IGC 4 was using the “informal informals” negotiating format, as mentioned above . During “informal informals” on-site, only a limited number of non-state actors and observers have permission to enter the negotiation room. During IGC 3, for instance, non-state actors had to negotiate among their group, who will occupy the 5 seats reserved for observers. And even if a researcher manages to get into the room, they are asked not to link the recorded statements to individual state actors, which significantly reduces the usability of data.

However, the online negotiation room of IGC 4 blurred the line between the different formats. While one could say that it was potentially more inclusive, it also created ambiguity, where boundaries between different negotiation formats and rules for data collection and use were blurred. Researchers watched the proceedings in some cases without even noticing that they passed from one negotiation format to another. We saw the same room with the same people performing the same diplomatic practices that we would normally observe during informal working group meetings and plenaries.

However, depending on the negotiation format researchers must follow different ethical standards and rules. The IGC 4 online format was challenging in this regard and confirms that our research object is in constant motion and is shaped by internal and external forces that we need to consider during our research. The stakes in the BBNJ negotiations are high and it is thus our duty as researchers to be as reflexive and transparent as we can regarding both the methodological and ethical stakes of studying negotiations (Hughes et al., 2021).

Conclusions

As delegates at IGC 4 “requested IGC President Rena Lee to take the necessary steps to obtain a UN General Assembly decision to convene a fifth session in August 2022,” we would like to draw together a few recommendations on enhancing participation at IGC 5 that will bring together the findings from the different perspectives represented in this blog:

• opportunities for non-state actor representatives to meaningfully engage at IGC 5 should be clear and communicated at least a month in advance, and ideally three months in advance, with a view to enabling them to understand how these negotiations may affect them (and their human rights);

• equal opportunity for meaningful engagement needs to be specifically addressed, taking into account different issues in in-person and online engagement;

• as a general rule, non-state actors should be allowed to observe and participate in the negotiating sessions;

• any restrictions to participation should be seen as exceptional, clearly motivated and accompanied by measures to ensure continued minimum levels of transparency and opportunities for non-state actors to make contributions; and

• specific steps should be taken to facilitate the participation of representatives of Indigenous peoples and other knowledge-holding communities, women and children.

The same blog post has been published on Maripoldata’s website.