ALAN EVANS, HEAD OF MARINE POLICY AT NATIONAL OCEANOGRAPHY CENTRE – WRITTEN EVIDENCE (BBN0002)

 

 

Introduction

 

1.       The UK’s National Oceanography Centre (NOC) is the UK’s largest ocean research charity and one of the world’s leading oceanographic institutions, delivering ground-breaking strategic research and technology innovation from the coast to deep ocean. We operate two of the UK’s fleet of oceanographic research vessels and Europe’s largest fleet of marine autonomous underwater vehicles in the Marine Robotics Innovation Centre based in Southampton.

 

2.       NOC welcomes the opportunity to provide evidence to the inquiry. Whilst working as an independent research organisation, NOC also works closely with government departments, such as the Foreign, Commonwealth and Development Office (FCDO), offering expertise, guidance and advice. The views expressed below represent those of NOC, and not government departments in which the organisation has, and continues to, work closely on this and related issues.

 

Executive summary

 

3.       The signing of the marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ) is a significant moment for the future of the ocean. It is important for the Committee to recognise the following:

 


Discovery and RRS James Cook, managed by NOC, and RRS Sir David Attenborough, managed by the British Antarctic Survey (BAS), all of which are capable of supporting scientific research in the waters covered by the Agreement. UKRI-NERC also funds some, but not all, sample collections which include current and historical material which does or could contain genetic material collected from waters beyond national jurisdictions.

 

Through its long experience of funding, conducting and enabling MSR in areas beyond national jurisdiction, UKRI-NERC, its National Capability delivery partners and its wider scientific community have already developed many good practices which should place UKRI-NERC and its science community in a relatively good position to comply with new requirements of the Agreement that have not previously been obligatory to consider, however the obligations under the new Agreement will place additional responsibilities on the scientific community.

 

The main practical concern that the scientific community has had about the Agreement is that, depending on how its implemented, it risks unintentionally having a ‘chilling effect’ on the ability to conduct marine biological research in the open ocean and deep sea. The latter would indeed be unintended and counter- productive in terms of the spirit of UNCLOS which recognises MSR as fundamental to sustainable management of the ocean and so it provisions, to great lengths, to promote, encourage and enable it. Consequently, the UK Government should work with the scientific community to ensure the UK’s implementation of the Agreement - including through any proposed domestic legislation - does not have unintended or disproportional impacts on open ocean and deep-sea biological research.

 

What in your view is the main significance of the BBNJ Agreement?

 

4.       The legally binding implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ) is an important and welcome strengthening of international ocean governance and a major victory for multilateral diplomacy.

 

5.       Whilst the Agreement will not replace or take precedence over other ocean agreements, whether global frameworks or regional organisations with a mandate and competence to deliver certain components of the Agreement, it does address important gaps that have been identified in existing provisions that are relevant to existing and emerging issues.

 

6.       For example, it provides the legal basis for the declaration and management of Marine Protected Areas (MPAs) in areas beyond national jurisdiction, a critical element in meeting UK Government aspirations of protecting 30% of the ocean by 2030. Whilst it is possible to establish MPAs through regional organisations, such as OSPAR1, the obligations therein are only obligatory on the members of those organisations. Decisions under the new Treaty are subject to all member States being party to the Agreement and as such provides a global governance framework.

 


1 the unified Oslo Paris Conventions

 


7.       The Agreement delivers a level playing field with respect to the potential benefits from the exploitation of marine genetic resources, aligning these with the management of non-living resources as already captured in Part XI of UNCLOS.

 

8.       The Agreement entails important opportunities for the UK marine science community, including:

 

Do you consider that overall compromise reached in the negotiations is a good one?

 

9.       It would not have been possible to achieve agreement on a text in absence of compromise, partly reflected in a need for an additional Intergovernmental Conference (IGC). This relates in particular to Part II on Marine Genetic Resources (MGR), where monetary benefits were a significant motivator for the Agreement, but can also been seen throughout all other substantive Parts (Part III, IV and V).

 

10.   It was evident that at the time of negotiating there was no recognisable income that will come from the exploitation of MGR in the immediate future. However, it was clear that some form of monetary benefits would be required in order to appease a number of developing States and their respective Regional Groups. These were recognised through payments by developed States2 to a Special Fund that will be used to support developing States build their capacity such that they too can contribute to global governance of the world’s ocean, as well as developing their capacity in relation to exploitation of MGR. The principle of providing funding for such capacity development activities aligns with the UK’s commitment to deliver overseas development assistance (ODA) as captured in the International Development (Official Development Assistance Target) Act 2015.

 

11.   Recognising the potential for future income, in parallel to annual payments, the Agreement allows for the Conference of the Parties (COP) to decide, at a future date, the modalities for the sharing of monetary benefits from the utilization, and commercialisation, of MGR3 as and when it takes place. This approach was accepted by those pursuing monetary benefits and seen as a pragmatic compromise. The UK was instrumental in developing the idea and in encouraging Regional Groups with developing country members in particular to adopt.

 

12.   With respect to other Parts, the insistence for a two-step approach for determining whether Environmental Impact Assessments (EIAs) are required, which includes a lower threshold than that included in UNCLOS, was a deviation from a position where as an implementing agreement of UNCLOS there shouldn’t be a different process. However, given there is


2 Article 14(6)

3 Article 14(7)

 


precedence for a multi-step approach in the Antarctic Treaty System (ATS), and that the ultimate threshold as to whether an EIA is required is as included in UNCLOS, it was an acceptable compromise.

 

13.   Similarly, the UK supported the principle that capacity development, as included in Part V, was for the benefit of developing States only (whereas the transfer of marine technology is open to all). With some negotiating reluctance by some developed countries, eventual acceptance of this position was recognised as a significant motivator in Part V being the first Part to be agreed. This was an important sign to developing states negotiating other Parts, which helped ensure that certain aspects of those Parts that were of UK interest were secured. For example, ensuring that MPAs have a different objective that prioritises conservation, compared to other Area Based Management Tools (ABMTs) that recognise conservation and sustainable use in equal measure, and that decisions relating to EIAs are made by the State rather than the COP.

 

14.   Furthermore, the UK’s prominent role as good officer paved the way to ensuring other UK priority areas were secured, including, ensuring sovereign immunity for UK Navy vessels and protecting the integrity of the Antarctic Treaty.

 

Do you think the Agreement will meet its stated objectives and do you consider that it has any major defects?

 

15.   With a general objective to ensure the conservation and sustainable use of marine biological diversity the Agreement goes some way to ensuring that future exploitation of MGR and use of areas of the ocean which are beyond national jurisdiction are now done so with greater oversight. However, achieving the balance between the two will be difficult. The open ocean is a vast, poorly understood environment so conserving what we don’t yet understand will take time. Similarly, the sustainable use of MGR is yet another unknown, as experience to date suggests that it is unlikely that there’ll be vast hoovering-up of species from the ocean, but more likely the use of a small number of samples for genetic engineering.

 

16.   This is not to say the challenges should not be addressed directly. Some may advocate for using the precautionary principle or precautionary approach, as appropriate, and promote a narrative that uses of the High Sea and it resources should not be encouraged. However, at a time of diverging opinions and an uncertain geopolitical outlook, achieving an agreed text was a demonstration that multilateralism can still deliver (potential) global scale change. We must therefore caution against any stifling, restricting or limiting of the implementation of the Agreement, as this would be seen by developing States in particular as a recoiling of developed States’ commitment to achieving another of the Agreement’s main purposes, that of realization of a just and equitable international economic order which takes into account the interests and needs of humankind as a whole and, in particular, the special interests and needs of developing States.

 

17.   It is also important to keep in mind the principle that the Agreement will not undermine relevant legal instruments and frameworks and relevant global, regional, sub-regional and sectoral bodies. In which case the Agreement will not directly affect shipping, which falls under the mandate of the International Maritime Organisation (IMO), or protect areas of the seafloor which fall under the mandate of the International Seabed Authority (ISA), or be used to manage fish stocks, which are the responsibility of Regional Fisheries Organizations (RFMOs). Collectively these three institutions alone cover the entire global ocean with a mandate to undertake a number of the provisions included in the Agreement. Where the new Agreement will come into its own is when new and emerging industries move further off-

 


shore, which can use the Agreement as the foundation for developing their own frameworks and best practices.

 

18.   Provisions that enable transparency4 and accountability (through traceability) relating to the exploitation of MGR and the inclusion of a framework where monetary and non-monetary benefits are shared, should deliver on the objective to fair and equitable sharing of benefits arising from activities with respect to MGR and digital sequence information (DSI). Something that would not have been possible previously. The Agreement will also bring far greater visibility of activities that take place in areas beyond national jurisdiction (ABNJ). In particular this could open opportunities for developing States to get involved, whether by participating in consultations on MPAs or understanding how different countries undertake EIAs and how their decisions are made.

 

19.   A significant potential non-monetary benefit comes with increased visibility of marine scientific research (MSR). There are only a small number of countries that have the capability to undertake MSR on the High Seas, the UK being one. The Agreement will provide opportunities to advance developing States’ scientific and technological capabilities through participation in scientific programmes and projects. This is a clear Objective in Part II, Part III, Part IV and is the only purpose of Part V.

 

20.   Another Objective that is commonplace throughout the Agreement is that of strengthening cooperation and coordination. It is fair to say that governance of the world’s ocean is fragmented. If the Agreement can foster a behaviour change where Member States of various frameworks ensure they promote a common approach as guided by the new Agreement this would be useful. Likewise, many countries and institutes deliver capacity building. However, there is no overarching understanding of who is doing what. This leads to duplication and wasteful use of financial and human resource. If the Agreement can encourage greater coherency this would lead to improved, comprehensive and impactful ocean governance, delivering universal participation with significant societal benefit.

 

Do you think that the Agreement’s compliance mechanisms will be effective?

 

21.   The establishment of an Implementation and Compliance Committee with a mandate that promotes compliance, rather than enforce it, is a welcome decision. There are separate settlement procedures that can facilitate disputes where one State Party believes another is not fulfilling its obligations under the Agreement.

 

22.   The promotion of transparency and of sharing information will soon bring to light evidence of non-compliance. And whilst in some cases this may be deliberate, it is also very likely that it will be down to a lack of capacity and understanding. As such any enforcement mechanism would have seemed somewhat heavy handed and could also easily be politicised. This once again re-enforces the importance of developing the capability, both institutional and human, of States with limited capacity.

 

23.   However, it is not only developing countries that find reporting on global initiatives challenging. If the UK is to be seen as an exemplar in adhering to the principle of transparency and information sharing, then it must also demonstrate these values. There are several requirements in the Agreement where State Parties shall report on different aspects. The use

 


4 Article 15, 16, 48, 51, 52

 


of the verb shall is not by accident, as it’s recognised that in absence of an obligation information sharing would likely not happen.

 

24.   To which end investment will be required to ensure that reporting can take place, not only for UK Government Departments and agencies, but those involved in implementing the various components of the Agreement. For example, those who manage repositories and databases of MGR and who must provide reports to UK Government who then aggregate for submission to the Access and benefit-sharing Committee5, or those who will need to provide detail on the utilization of MGR which must then be deposited to the Clearing-House Mechanism6.

 

What challenges do you foresee in the implementation of the Agreement and how can they be overcome?

 

25.   There are many components of the Agreement that the UK already undertakes that can be upscaled to comply with the Agreement. Such examples can be seen in the requirement to provide notifications of activities relating to the collection of MGR in ABNJ, where the UK already does this for areas within national jurisdiction for any type of MSR. Similarly, there are already processes in place that review the requirements for EIAs for MSR and commercial initiatives. Such experiences can be adapted as well as being adopted by emerging sectors. The UK also has a significant pool of experts that can support the implementation of CBTMT.

 

26.   However, whilst the UK has the capability to support a number of the expectations under the new Agreement, we do not currently have effective monitoring or reporting frameworks. If we consider the provision of capacity building, there are a plethora of agencies delivering a whole range of support to developing countries. However, whilst some are more readily identifiable, for example those delivered through dedicated ODA funding managed by UKRI- NERC, many other activities are not widely promoted and as such are unknown to most. This not only creates a vacuum of information but also leads to duplication of effort, both within the UK and with international providers.

 

27.   Similarly, whilst the Clearing House Mechanism will provide a Batch Identifier relating to the collection of MGR7, that should then be correlated with any utilisation of that MGR, it is not yet clear how this would work in practice. For example, if a UK registered vessel is used to collect MGR, the Batch Identifier will be attributed to the UK. However, if a scientist from another country participating on a UK registered vessel brings the MGR samples back to their country it is unclear how the UK can ensure compliance through monitoring of the utilisation through the use of the Batch identifier.

 

28.   Neither is there a coordinated UK wide system whereby MGR collected by UK researchers and stored and curated in UK repositories are managed conjointly. The absence of which means that management of MGR subject to the Agreement is fragmented and sometimes ad-hoc. Investment in a national repository, or network of repositories with a centralised management system, would address the obligatory reporting on access8 and utilization9 of MGR and the objective to support the fair and equitable sharing of benefits10.

 


5 Article 12(7)

6 Article 12(8(a))

7 Article 12(3)

8 Article 12(7)

9 Article 12(8)

10 Article 14

 


29.   Many issues will no doubt be addressed as the COP establishes its working practices and develops guidelines. To this end the UK must ensure it has representation in the development of such guidelines and working practices, both at the Preparatory Committees, that will take place prior to the first COP, as well as members of the new Boards and Committees that will be established under the new Agreement. The inclusion of UK expertise in High Seas research and marine governance and regulation will help establish rational ways of working, and in doing so help prevent the influence of extreme views.

 

30.   However, whilst some aspects of implementation will require additional resource and dedicated effort, some, in theory, can be readily achieved, but these could also raise challenges. One area of particular interest to the UK is in establishing MPAs in ABNJ to deliver the Kunming-Montreal Global Biodiversity Framework and helping to achieve the target of protecting 30% of the ocean by 2030. Such a target is equivalent to protecting 80% of the total land area of planet Earth. The process to achieve this cannot be sped-up and each proposal will take time to work its way through the procedure outlined in Part III. This, and the anticipated timing of the new Agreement coming into force is likely to result in a key UK Government aspiration not being achieved in the time expected. That said timely adoption of domestic legislation subject to Parliamentary timetables will be useful in enabling the UK to ratify and implement the Agreement as soon as possible.

 

Is there specific action which the UK Government should take in relation to the implementation of the Agreement?

 

31.   We recommend the following actions:

 

Do you have any other comments?

 

32.   There is no doubt that the Agreement is a welcome addition to governance of the world’s ocean and that its aspiration to deliver more inclusivity is welcome. The UK was instrumental during the negotiations in fostering common ground and should continue to play a significant role in preparing for it coming into force and its implementation. The UK should also be mindful that many civil society groups will use the Agreement to achieve their own goals, and do so through engagement with States who may feel under resourced or underrepresented. The UK should play an active role in engaging with such States to ensure implementation is carried out as intended in the spirit of the negotiations.

 

 

 

17 November 2023