Statement

Agreement on the conservation and sustainable
use of marine biological diversity of areas beyond
national jurisdiction
Statement of the Permanent Senate Commission on Fundamental
Issues of Biological Diversity (SKBV) of the DFG on the revised draft
text of the Agreement
Helmut Hillebrand (Carl von Ossietzky University Oldenburg), Saskia Brix (Senckenberg,
Hamburg), Stefan Hain (Alfred-Wegener-Institute, Helmholtz Centre for Polar and Marine
Research, Bremerhaven), Michal Kucera (University Bremen), Pedro Martinez Arbizu(Senckenberg, Wilhelmshaven), Sabine Schlacke (University Greifswald), Sebastian Unger(IASS Potsdam), Alice Vadrot (University Wien)

February 2022

Deutsche Forschungsgemeinschaft
Kennedyallee 40 ∙ 53175 Bonn ∙ Deutschland
Telefon: + 49 228 885-1 ∙ Fax: + 49 228 885-2777 ∙ postmaster@dfg.de ∙ www.dfg.de

DFG

Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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The Permanent Senate Commission on Fundamental Issues of Biological Diversity is
an interdisciplinary, independent body of experts in biodiversity research, which
evaluates selected topics on the basis of scientific findings with regard to their socialand political significance and advises various bodies of the German Research
Foundation (DFG, Deutsche Forschungsgemeinschaft) as well as national andinternational governments and policymakers.
By studying the ocean and its role in the Earth system, marine scientific research makes
important contributions to understanding global matter cycles, the climate system andthe diversity of life on Earth. Climate change and biodiversity loss represent global
economic, political, and societal challenges that can only be addressed through a
global scientific effort. Marine scientists play a central role in intergovernmental
scientific expert bodies such as the Intergovernmental Panel on Climate Change(IPCC), World Ocean Assessment (WOA) and the Intergovernmental Science-Policy
Platform on Biodiversity and Ecosystem Services (IPBES), as strategies for theprotection of marine ecosystems and for their sustainable use must be developed
based on best available scientific knowledge. The high seas and the deep seabed posea particular challenge, as they can only be researched at great expenses in terms oftime and technology and, due to the lack of national sovereignty, are only protected byinternational law, in particular international treaties such as the United Nations
Convention on the Law of the Sea (UNCLOS).
Integrating the current state of science and our scientific expertise, we take thefollowing position on the revised draft text (document A/CONF.232/2020/3, dated 18
November 2019) of an Agreement under UNCLOS on the conservation andsustainable use of marine biological diversity of areas beyond national jurisdiction(BBNJ). We then present specific proposals for improving the draft text.
Acknowledge the role of non-commercial knowledge-driven research for BBNJ
Non-commercial research is the essential source of knowledge needed for thedevelopment of effective protection and sustainable management of marine systems.
The design of area-based management and the monitoring of environmental impacts,
thus two main aspects of the Agreement, ultimately rely on non-commercial research.
This research is often collaborative by nature and offers a wide range of options forStatement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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capacity building, technological transfer, and other non-monetary benefits. Thus, theAgreement should be designed in a way that enhances and does not impede noncommercial research. The framework in which non-commercial research operates
should not be restricted by, for example, a high administrative load or costly
procedures. Wherever possible, simplified procedures should be offered for noncommercial research. Moreover, the Agreement touches upon many important aspectsof science, inter alia with respect to intellectual property rights, publication of findings
and data, use of databases, as well as “open data” or “open science” policies. A failure
to acknowledge these aspects jeopardizes non-commercial research in the ocean atits core and thereby undermines the important role this research plays for achieving
the goals of the BBNJ Agreement.
In this context it is very important to note that the publication of data and findings is the
key currency for scientists and science funding. For funding and publication, ideas of“open data” and “open science” are promoted. Especially the ongoing debate on digital
sequence information (DSI) under the Nagoya Protocol is highly critical from a noncommercial research perspective. If such data would be restricted, e.g. not free foraccess and use by third parties, publications in agreement with well-establishedscientific standards would not be possible anymore. The ultimate consequence is thatthe respective research would no longer take place in the future.
We therefore strongly encourage the negotiators not to lose sight of the noncommercial research framework conditions when discussing all paragraphs of theAgreement. In the detailed comments we address some of these conditions.
Further, we acknowledge that a definition of “marine scientific research” is hardly
possible. Beyond research fields easily identified as “marine scientific research”,
research on marine genetic resources often is in areas that are less intuitively capturedby this term, e.g. fundamental biochemical or genetic research across groups oforganisms which also includes marine samples. Thus, we would argue for using theterm “non-commercial research” or “non-commercial knowledge-driven research”. For
the remainder of the text, and for brevity, we will use “non-commercial research”.

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Task the COP with the details
In several places, the draft BBNJ Agreement text provides alternatives, i.e. aparagraph with detailed requirements, criteria etc. for state parties to apply or comply
with, and an alternative paragraph saying that these requirements, criteria will be
developed and agreed by the COP. In general, it would be good for the text of theAgreement to provide at least a framework. However, if this becomes too detailed it
might cause lengthy negotiations, especially on complex and controversial issues.
There is a risk that in order to achieve progress towards consensus, the negotiations
will result in a very weak text. In these circumstances, it might be better to task the
COP with establishing the detailed requirements, criteria etc.
If the details are established afterwards, there is also a better chance for expert
scientific involvement in the establishment process.

Formulate advice and regulations on how to deal with confidential data
The current draft BBNJ Agreement text provides no or hardly any advice andregulations on how to deal with confidential data, especially in the context of Part I(MGR) and Part III (EIA). There might be a need to address the confidentiality issue
under these Parts and/or in an overarching paragraph at the beginning of theAgreement text. Here a balance between the commercial interests of companies
investing and the public interest in these data needs to be found.

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Specific comments and proposals for the further development of the draft text
The table only presents sections from the revised draft text in which changes are proposed.

Part I: General provisions
Article 1 Use of terms[1.
“Access” means, in relation to marine genetic resources, the collectionof marine genetic resources [, including marine genetic resources accessedin situ, ex situ [and in silico] [[and] [as digital sequence information] [as genetic
sequence data]]].]How digital sequence information (DSI) is to be addressed under the Nagoya
Protocol and the CBD is currently under negotiation. We recommend thatBBNJ should not pre-empt or pre-judge these very difficult discussions.
Moreover, access is here equalized to collection, which we recommend toclarify. In the EU-Nagoya Protocol Regulation “Access” means the acquisitionof genetic resources or of traditional knowledge associated with genetic
resources in a Party to the NP (Article 3(3) Regulation (EU) No 511/2014).
Acquisition includes commercial retrieval of material or data and is thus
different from collection. In the same context, to publish sequence data is anecessary need to non-monetary scientific benefit and reputation of the
publishing scientist. Free access to data is a mandate for science and“access” to scientifically generated sequence data is already organized in
online platforms like “GenBank” or others.
[7. Alt. 1.
“Environmental impact assessment” means a process toevaluate the environmental impact of an activity [to be carried out in areas
beyond national jurisdiction [, with an effect on areas within or beyond
national jurisdiction]] [, taking into account [, inter alia,] interrelated[socioeconomic] [social and economic], cultural and human health impacts,
both beneficial and adverse].]We recommend that EIA requirements under the BBNJ Agreement should
also consider activities, which are taking place in areas under national
jurisdiction but have likely a significant adverse environmental impact onareas beyond national jurisdiction.
[9. Alt. 1.
“Marine genetic resources” means any material of marine plant,
animal, microbial or other origin, [found in or] originating from areas beyond
national jurisdiction and containing functional units of heredity with actual or
potential value of their genetic and biochemical properties.]

Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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“Marine genetic resources” means marine genetic material of
actual or potential value.]
We support a definition that reduces overlap to the CBD and EU Nagoya
Protocol regulations as stated in Alt. 1. We see major problems with the term
“originating”, as this is sometimes not (or no longer) known. The term
“potential value” is insufficiently defined and should be narrowed to actual or
potential commercial value.
[15. “Utilization of marine genetic resources” means to conduct researchand development on the genetic and/or biochemical composition of marine
genetic resources [, as well as the exploitation thereof].]This is a definition very similar to the one in the Nagoya Protocol. Critical is“and” in the term “research and development”. In the Nagoya Protocol this ismeant as “and/or”, which keeps non-commercial research (without
development) in the scope. What does this “and” mean here? This needs to
be clarified, since this determines if non-commercial research is affected ornot.
Article 3 Application
2.
This Agreement does not apply to any warship, naval auxiliary, othervessels or aircraft owned or operated by a State and used, for the time being,
only on government non-commercial service. However, each State Party
shall ensure, by the adoption of appropriate measures not impairing theoperations or operational capabilities of such vessels or aircraft owned or
operated by it, that such vessels or aircraft act in a manner consistent, so far
as is reasonable and practicable, with this Agreement.
Based on this formulation there could easily be a difference between states
on whether and how they apply the BBNJ requirements to their state owned
or operated research vessels.
Article 5 General [principles] [and] [approaches]
In order to achieve the objective of this Agreement, States Parties shall be
guided by the following:[(a)

The principle of non-regression;](b)[The polluter pays principle] [The endeavour to promote theinternalization of environmental costs and the use of economic instruments,
taking into account the approach that the polluter should [, in principle,] bear
the cost of pollution, with due regard to the public interest and without
distorting international trade and investment];[(c)

The principle of the common heritage of mankind;]Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity[(d)

The principle of equity;](e)

The precautionary [principle] [approach];(f)

An ecosystem approach;[(g)

An integrated approach;]

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An approach that builds ecosystem resilience to the adverse
effects of climate change and ocean acidification and restores ecosystem
integrity;(i)
The use of the best available [science] [scientific information
and relevant traditional knowledge of indigenous peoples and local
communities];(j)
The non-transfer, directly or indirectly, of damage or hazards
from one area to another and the non-transformation of one type of pollution
into another.
We recommend avoiding references to approaches and principles that havevery divergent and often ambiguous definitions. For example, resilience has
a plethora of definitions, is not congruent with restoration, and is difficult toquantify. Since there is no single, universally accepted understanding
between states of what some of the above mentioned principles (e.g. theprecautionary principle) actually mean and how they are to be implemented
in practical terms, they need to be used with caution. If included, their
meaning in the BBNJ context needs to be discussed by the scientific andtechnical body and clarified in a transparent COP process.
Part II: Marine genetic resources, including questions on the sharing of benefits
Article 7 Objectives
The objectives of this Part are to:[(a) Promote the [fair and equitable] sharing of benefits arising from [thecollection of] [access to] [the utilization of] marine genetic resources of areas
beyond national jurisdiction;]
Benefit sharing can only be based on the utilization of MGR. Benefits do notarise when collecting material (e.g., during an expedition) or accessing MGR
information. Imposing the need to demonstrate the absence of benefits at thecollection or access stage burdens non-commercial research unnecessarily
with high administrative workloads.
[(b) Build the capacity of developing States Parties, in particular least
developed countries, landlocked developing countries, geographicallydisadvantaged States, small island developing States, coastal African States

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and developing middle-income countries, to [collect] [access] and utilize
marine genetic resources of areas beyond national jurisdiction;]
As detailed in the general comments, non-commercial research plays anactive and important role in capacity building.
Article 8 Application[1.

The provisions of this [Part] [Agreement][(a) Marine genetic resources, insofar as they are collected for the
purpose of conducting research into their genetic properties;](b) Marine genetic resources [collected] [accessed] in situ, [and][accessed] ex situ [and in silico] [[and] [as digital sequence
information] [as genetic sequence data]] [and their utilization];[(c)

Derivatives.]]

Firstly, different sections of this paragraph are inconsistent in their logic. As
formulated, 1(a) suggests development is not in the scope of the Agreement,
only research, as this is the stage of collections. Development would only be
included if the term “utilization” would be used / added. Paragraph 1(b) bycontrast discusses whether ex situ and in silico are included, but offers
collection and access as alternatives. Utilization is only mentioned in one
bracket. Derivatives (1c) are mentioned without discussing their origin ex situ
or in silico.
Secondly, the term “derivates” needs to be defined. We recommend to use adefinition as in the Nagoya Protocol, where derivative means “a naturally
occurring biochemical compound resulting from the genetic expression or
metabolism of biological or genetic resources, even if it does not containfunctional units of heredity (Article 2(e) NP).”[2.

The provisions of this [Part] [Agreement] shall not apply to:[(a)

The use of fish and other biological resources as a commodity.]

As formulated, the sentence bears the risk to make the entire Agreement
obsolete with respect to development. If restricted to this Part (first squaredbracket) the term “fish and other biological resources” is so broad that it
includes all MGR as a commodity. The formulation as stated here would
exclude all commercial use of biological resources from the entire Part andnon-commercial research (as it lacks commodity) would be the only aspect
falling under this Part. If this statement would even be extended to the entire
Agreement (second squared bracket), the major environmental impacts offisheries and use of other biological resources would be exempted from theStatement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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EIA Part, as well as the relationships between fisheries and area-based
management in MPA establishment.
[(b) Marine genetic resources accessed ex situ [or in silico] [[and][as digital sequence information] [as genetic sequence data]] [andtheir utilization];][(c)

Derivatives;]

We note that these exemptions are exact opposite of Paragraph 1 b-c in this
Article.
[(d)Marine scientific research.]]We anticipate that this exclusion will not be part of the final Agreement.
However, we strongly encourage that the text and measures in theAgreement do not hinder the development of non-commercial scientificresearch (see general comments). It should be considered whether noncommercial research (basic research without any commercial interest andintent) could be treated and regulated differently to research carried out withcommercial purposes. This requires a differentiation between “commercial”
and “non-commercial” research. We are aware that such a differentiation is
non-trivial.
Legal scholars tend to use the term marine scientific research (MSR) to
designate Legal scholars tend to use the term marine scientific research(MSR) to designate any scientific investigation, which has the marine
environment as its object. UNCLOS includes provisions on MSR, but it does
not provide a legal definition; neither does it list activities that fall under this
term.
[3.
The provisions of this Agreement shall apply to marine genetic
resources [collected] [accessed] in situ, [and] [accessed] ex situ [and in silico][[and] [as digital sequence information] [as genetic sequence data]] [and theirutilization] after its entry into force, including those resources [collected][accessed] in situ before its entry into force, but accessed ex situ or [in silico][[and] [as digital sequence information] [as genetic sequence data]] [orutilized] after it.]
Depending on the formulation, this section implies that all regulations apply
to MGR from material collected prior to the entry into force of the BBNJ
Agreement but used afterwards ex situ or in silico. This is not feasible asneeded information on origin and timing of sampling is not always available.
It would also impede research on many if not all historical samples. “In silico”
would mean that sequence data from such samples would be no longer
available and would have to be deleted from databases (since the database
policies prohibit the storage of data with restricted usage rights). “Ex situ”
would imply that using museum and collection material would fall underStatement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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restrictions impeding (instead of promoting) research. We strongly
recommend to avoid the half sentence starting with “, including…”.
[Article 9 Activities with respect to marine genetic resources of areas beyond
national jurisdiction][2.
In cases where marine genetic resources of areas beyond national
jurisdiction are also found in areas within national jurisdiction, activities withrespect to those resources shall be conducted with due regard for the rights
and legitimate interests of any coastal State under the jurisdiction of whichsuch resources are found.]This paragraph is potentially highly critical and unfeasible, threatening
research and the goals of this Agreement. First, the question whether MGR
that are found in ABNJ are also found in areas under national jurisdiction
cannot conclusively been answered with the knowledge we have on the
distribution of species and their migration. Due to the high connectivity ofmarine habitats, organisms and material containing MGR drifts often fromABNJ into national waters, which means that the number of countries thatwould need to be involved cannot be estimated. For other large parts of themarine ecosystem, such as plankton, they are known to actually or potentiallyoccur everywhere in the ocean (or in large parts of it). Depending who would
be responsible for documenting this occurrence or its absence would delay
any scientific activity.
Second, even if the knowledge was there, paragraph 2 basically means that
if the marine genetic resource occurs both in national waters and beyond,researchers would have to follow the procedures of the coastal state, even if
you access the resource outside of national waters. This becomes impossible
as marine organisms can occur in national marine waters of more than one
coastal state, which would mean receiving a permit from each of thesecoastal states.
We strongly recommend to delete this paragraph.
[Article 10 [Collection of] [and] [Access to] marine genetic resources of areas
beyond national jurisdiction]
According to the definition in Art 1.1 ““Access” means, in relation to marine
genetic resources, the collection of marine genetic resources”. The title of thisarticle would thus be a duplication if both brackets are used. We recommend
to use “access to”.
[1.
In situ [collection of] [access to] marine genetic resources within thescope of this Part shall be subject to [Alt. 1. [prior] [and] [post-cruise]notification to the secretariat [, which shall include an indication of the location

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and date of [collection] [access], the resources to be [collected] [accessed],
the purposes for which the resources will be utilized and the entity that will[collect] [access] the resources] [of [collection of] [access to] marine genetic
resources of areas beyond national jurisdiction].]If a comprehensive EIA system is established for BBNJ (e.g. similar to the
Antarctic Treaty system), it makes no sense to have a separate system(consisting of application, EIA and permit system) for MGR. We therefore
recommend to have this aspect only under EIA.
[Alt. 2. a [permit] [licence] issued in the manner and under the terms andconditions set forth in paragraph 2.]]
We strongly recommend not to have permit and license requirements, but toestablish a notification system for non-commercial research as a simplified
procedure. Permits are not feasible within the established cycles of marine
research, e.g. with respect to funding decisions and project durations. Here,the periods between application, notification of funding and conduction ofresearch are in the order of months, a permit or licence system that is notable to respond in this time frame undermines the science needed forachieving the goals of this Agreement. It also impedes capacity building as
the time to permit is not included in the education time span of early career
scientists, which would be the core group to be included in the capacity
building. This regulation seems moreover to contradict UNCLOS Article 238
Right to conduct marine scientific research “All States, irrespective of theirgeographical location, and competent international organizations have theright to conduct marine scientific research subject to the rights and duties ofother States as provided for in this Convention.”[5.
States Parties shall take the necessary legislative, administrative or
policy measures, as appropriate, to ensure that activities with respect tomarine genetic resources of areas beyond national jurisdiction that may resultin the utilization of marine genetic resources found in areas both within andbeyond national jurisdiction are subject to the prior notification andconsultation of the coastal States [and any other relevant State] concerned,
with a view to avoiding infringement of the rights and legitimate interests of[that] [those] State[s].]We recommend to delete this paragraph in concordance with a previous
comment. As detailed above, this regulation is not feasible in marine systems
as it will not be possible to conclude on or preclude the use of MGR in areas
both within and outside national areas. To show the impracticability, consider
a research project addressing plankton, that due to its small size and drift
potential can potentially occur in all coastal waters. This project would
accordingly need a notification from all countries with a coastline.

Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

Page 12 of 27[6.
States Parties shall take the necessary legislative, administrative or
policy measures, as appropriate, to ensure that marine genetic resources ofareas beyond national jurisdiction utilized within their jurisdiction have been[collected] [and] [accessed] in accordance with this Part.]
Article 9 requires State Parties to implement the MGR requirements under
the new BBNJ treaty similar to the Nagoya Protocol. To avoid that this isinterpreted and implemented by all states differently, we recommend that theAgreement promotes coherence and a level playing field for all counties,
which needs to be guided by the COP.
[Article 10bis Access to traditional knowledge of indigenous peoples and local
communities associated with marine genetic resources [collected] [accessed] inareas beyond national jurisdiction][States Parties shall take legislative, administrative or policy measures, as
appropriate, with the aim of ensuring that traditional knowledge associatedwith marine genetic resources [collected] [accessed] in areas beyond national
jurisdiction that is held by indigenous peoples and local communities shall
only be accessed with the prior and informed consent or approval andinvolvement of these indigenous peoples and local communities. The
clearing-house mechanism may act as an intermediary to facilitate access tosuch traditional knowledge. Access to such traditional knowledge shall be on
mutually agreed terms.]
We acknowledge the importance of traditional knowledge, but recommend
careful consideration of a scale issue. For the Nagoya Protocol, traditional
knowledge by definition has a regional, often clearly area-based context.
However, as stated here, the Agreement offers local, indigenous knowledge
a potentially unrestricted global relevance for all ABNJ.
[Article 11 [Fair and equitable] sharing of benefits][2.

Benefits [shall] [may] include [monetary and] non-monetary benefits.]

From a research perspective, it would be desirable that benefit sharing is
restricted to non-monetary. Here, we see a lot of convergence. The fair andtransparent sharing of information and data is a cornerstone of open,
reproducible science. Monetary benefits should only be considered (if at all)upon commercialization of a product.
If monetary benefits cannot be avoided, an unduly amount of restrictions to
non-commercial research needs to be avoided, e.g. regarding the effort
needed to document benefits. Basic research does not create commercial

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benefits directly and cannot foresee whether potential benefits will arise fromits results in the future.
[3.
Benefits arising from [the collection of] [access to] [the utilization of]marine genetic resources of areas beyond national jurisdiction [shall] [may]be shared at different stages, in accordance with the following provisions:[(a) Monetary benefits [shall] [may] be shared against an embargo
period for [marine genetic resources in silico] [digital sequence information][genetic sequence data] or upon the commercialization of products that are
based on marine genetic resources of areas beyond national jurisdiction [inthe form of milestone payments]. The rate of payments of monetary benefits
shall be determined by the Conference of the Parties. [Payments shall bemade to the special fund];][(b) Non-monetary benefits [, such as access to samples andsample collections, sharing of information, such as pre-cruise or pre-research
information, post-cruise or post-research notification, transfer of technology
and capacity-building,] [shall] [may] be shared upon [the collection of] [accessto] [the utilization of] marine genetic resources of areas beyond national
jurisdiction. Samples, data and related information [shall] [may] be madeavailable in open access [through the clearing-house mechanism [upon[collection] [access] [after […] years]]]. [[Marine genetic resources in silico][Digital sequence information] [Genetic sequence data] related to marine
genetic resources of areas beyond national jurisdiction [shall] [may] bepublished and used taking into account current international practice in thefield.]][4.

Benefits shared in accordance with this Part shall be used:[(a) To contribute to the conservation and sustainable use of marine
biological diversity of areas beyond national jurisdiction;][(b) To promote scientific research and facilitate [the collection of][access to] marine genetic resources of areas beyond national jurisdiction;][(c)
To build capacity to [collect] [access] and utilize marine genetic
resources of areas beyond national jurisdiction [, including through common
funding or pool funding for research cruises and collaboration in sample
collection and data access where adjacent coastal States [shall] [may] beinvited to participate, taking into account the varying economic circumstancesof States that wish to participate];]We recommend the terminology of (b) regarding the promotion of scientificresearch and collaboration. This is already implemented in international calls
for collaborative research, association of third party countries to EU-wide andinternational research calls, etc. A mandatory statement, that presently isStatement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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possible in (c) by using “shall”, is dysfunctional and potentially harmful toscience. Many systems already exist to foster participation in cruises andresearch campaigns, share technology and build capacity. A participation of
one or several coastal state representatives on research expeditions ininternational waters is not possible in all cases. A mandatory statement could
be interpreted in a way that any coastal state could claim that they want an
observer on board.
[Article 12 Intellectual property rights][1.
States Parties shall cooperate to ensure that intellectual property rights
are supportive of and do not run counter to the objectives of this Agreement[, and that no action is taken in the context of intellectual property rights thatwould undermine benefit-sharing and the traceability of marine genetic
resources of areas beyond national jurisdiction].]In this article, all formulations need to be carefully considered how each ofthem interacts with requirements of research. For example, scientificpublishing requires the transfer of copyright or selection of a Creative
Common license that is not fully free to transform and change. The need ofearly career researchers to complete their theses with the data collected isanother area of concern. Intellectual property rights are so integral for noncommercial research that massive collateral damage can derive from too
broad or restrictive formulations.
[2.
[Marine genetic resources [collected] [accessed] [utilized] inaccordance with this Agreement shall not be subject to patents except wheresuch resources are modified by human intervention resulting in a productcapable of industrial application.] [Unless otherwise stated in a patentapplication or other official filing or recognized public registry, the origin ofmarine genetic resources utilized in patented applications shall be presumed
to be of areas beyond national jurisdiction.]][Article 13 Monitoring][1.
The Conference of the Parties shall adopt appropriate rules, guidelines
or a code of conduct for the utilization of marine genetic resources of areas
beyond national jurisdiction.]
In order to avoid a Nagoya Protocol situation, it is absolutely vital that the
COP provides clear measures, rules and guidance on how the MGR
requirements in the BBNJ Agreement are to be implemented by states.
[3.
States Parties shall take the necessary legislative, administrative or
policy measures, as appropriate, to ensure that:

Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

Page 15 of 27[(a) An identifier is assigned to marine genetic resources [collected][accessed] in situ. In the case of marine genetic resources accessed ex situ
[and in silico] [[and] [as digital sequence information] [as genetic sequencedata]], such an identifier shall be assigned when databases, repositories andgene banks submit the list mentioned in article 51 (3) (b) to the clearing-housemechanism;]
The option "[and in silico]" is impossible to implement, as it requires identifiers
for all billions of sequences derived from a single sample of seawater. Modern
technologies such as metabarcoding, eDNA or BLAST searches would
potentially magnify the amount of identifiers needed. We recommend to put
identifiers to samples based on the notification procedure above.
[(b) Databases, repositories and gene banks within their jurisdiction
are required to [notify the [clearing-house mechanism] [Scientific andTechnical Body]] [send a notification through the obligatory prior electronic
notification system managed by the secretariat and mandated existing
international institutions set forth in Part […]] when marine genetic resourcesof areas beyond national jurisdiction, including derivatives, are accessed;]This suggestion is not feasible. First, the clearing-house mechanism will be
flooded by thousands or millions of notifications every time a sequence on
GenBank is accessed in a Blast search (to determine the identity of an
unknown sequences, it is compared to all sequences deposited, including all
sequences derived from marine life). Second, it is possible to upload genetic
data to set local bioinformatic pipelines (to increase speed), in which case no
notification of subsequent uses is possible.
[(c) Proponents of marine scientific research in areas beyond
national jurisdiction submit periodic status reports [to the clearing-housemechanism] [to the Scientific and Technical Body] [through the obligatory
prior electronic notification system managed by the secretariat and mandated
existing international institutions set forth in Part […]], as well as researchfindings, including data collected and all associated documentation.]]Here we recommend that no additional reporting pressure is placed uponnon-commercial research. This research normally already has a reporting
cycle. We recommend that the provisions in paragraph 3 (a), (b) and (c) wouldby adopted by the COP in form of measures, rules or guidance.
Part III: Measures such as area-based management tools, including marine
protected areas
We acknowledge and welcome the need to define and implement ABMT including
MPAs. Nevertheless, other aspects of conservation of BBNJ and management toolsthat are not area-based are also broadly discussed in many regional and global

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frameworks (e.g. species conservation under CITES). Any holistic approach to BBNJ
needs to consider multiple approaches, including non-area-based management.
Article 14 General Objectives
The objectives of this Part are to:…
[(d) Establish a system of ecologically representative marine
protected areas that are connected [and effectively and equitably managed];]This is a key provision, however, instead of “systems” the term used here
should be “network” (as in the CBD). Unfortunately, so far no process forestablishing such as network has been proposed. Individual MPAs, however,will not be able to achieve coherence representativity. We therefore
recommend the development of a coherent process. Moreover, we suggest
to replace “Establish” by “Establish and manage”, as without effective
management, MPAs often have little use. Developing management concepts
and providing the baseline information (point g) and foster international
cooperation (Article 15) are at the core of non-commercial research activities.
Thus, research is fundamental for achieving the general objectives formulate
in this Part.
…
[(g)Create scientific reference areas for baseline research;]

Article 15 International cooperation and coordination[2. Alt. to para. 1. (b) (ii) Where there is no relevant legal instrument orframework or relevant global, regional, subregional or sectoral body toestablish area-based management tools, including marine protected areas,
States Parties shall cooperate to establish such an instrument, framework or
body and shall participate in its work to ensure the conservation andsustainable use of marine biological diversity of areas beyond national
jurisdiction.]
3.
States Parties shall make arrangements for consultation andcoordination to enhance cooperation with and among relevant legal
instruments and frameworks and relevant global, regional, subregional andsectoral bodies with regard to area-based management tools, including
marine protected areas, as well as coordination among associatedconservation and [management] [sustainable use] measures adopted undersuch instruments and frameworks and by such bodies.

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5.
In cases where an area-based management tool, including a marine
protected area, established under this Part subsequently falls under thenational jurisdiction of a coastal State, either wholly or in part, it shall be
adapted to cover any remaining area beyond national jurisdiction or otherwise
cease to be in force.
Article 16 Identification of areas [requiring protection]
A key question is whether and what action can be taken under the BBNJ
Agreement in areas, where there is a relevant global, regional, subregional,or sectoral body, but this body is not willing or able to adopt area-based
management tools, including MPAs or vice-versa where a regional bodyagrees on a spatial measures but the global instrument does not follow.
Article 17 Proposals[2.
States Parties may collaborate with relevant stakeholders in thedevelopment of proposals.]
It should be considered if proposals could also be made by the Scientific andTechnical body (with subsequent sponsoring by (a) State(s)). This might beparticular important to move towards the 30x30 goals and ensure ecologicalcoherence of future MPA networks.
4.

Proposals shall include, at a minimum, the following elements:…

(i)
Information on any consultations undertaken with adjacentcoastal States and/or relevant global, regional, subregional and sectoral
bodies.
Article 18 Consultation on and assessment of proposals
The requirements of Art.18 Para. 2-6 are quite detailed. If the IGC does notreach consensus it could be considered to task the COP upon advice by the
Scientific and Technical Body to find a technical agreement.
Article 19 Decision-making
The Conference of the Parties [shall] [may] take decisions on matters related
to area-based management tools, including marine protected areas, withrespect to:[(a) Objectives, criteria, modalities and requirements, as provided
for under articles 14, 16, 17 and 18;]

Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

Page 18 of 27[Alt. 1(b)
Proposals submitted under this Part, on a case-by-case basis
and taking into account the scientific advice or recommendations and thecontributions received during the consultation and assessment process,including in relation to:(i)

The identification of areas requiring protection;(ii)
The establishment of area-based management tools, including
marine protected areas, and related conservation and [management][sustainable use] measures to be adopted to achieve the specified objectives,
taking into account existing measures under relevant legal instruments andframeworks and relevant global, regional and sectoral bodies, as appropriate;(c)Where there are relevant legal instruments or frameworks or
relevant global, regional or sectoral bodies:(i)
Whether to recommend that States Parties to this Agreement
promote the adoption of relevant conservation and [management][sustainable use] measures through such instruments, frameworks andbodies, in accordance with their respective mandates;(ii)
Whether to adopt conservation and [management] [sustainableuse] measures complementary to those adopted under such instruments,
frameworks and bodies;(d)Where there are no relevant legal instruments or frameworks or
relevant global, regional or sectoral bodies, the adoption of conservation and[management] [sustainable use] measures.][Alt. 2(b)Matters related to identifying potential area-based management
tools, including marine protected areas;(c)
Recommendations relating to the implementation of related
management measures, while recognizing the primary authority for the
adoption of such measures within the respective mandates of relevant legal
instruments and frameworks and relevant global, regional and sectoral
bodies.]We suggest to opt for Alt.1; Alt.2 is very weak and non-descriptive.
Article 20 Implementation
2.
Nothing in this Agreement shall prevent a State Party from adopting
more stringent measures with respect to its vessels or with regard to activities
under its jurisdiction or control in addition to those adopted under this Part, inconformity with international law.

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It is not clear why this is here specifically set out for the area-based
management part – to our understanding, this applies to the whole BBNJ
Agreement.
Article 21 Monitoring and review
4.
Following the review, the Conference of the Parties shall, as
necessary, take decisions on the amendment or revocation of area-based
management tools, including marine protected areas, including any
associated conservation and [management] [sustainable use] measures, [aswell as the extension of time-bound area-based management tools, including
marine protected areas, that would otherwise automatically expire,] on thebasis of an adaptive management approach and taking into account the best
available [science] [scientific information and knowledge, including relevant
traditional knowledge of indigenous peoples and local communities], theprecautionary [approach] [principle] and an ecosystem approach.
5.
The relevant legal instruments and frameworks and relevant global,
regional, subregional and sectoral bodies [shall] [may] be invited to report to
the Conference of the Parties on the implementation of measures that they
have established.
Monitoring and review is very important. Part of the non-monetary benefit
exchange can be that expeditions that take samples in MPAs also deliver
data for the monitoring program. It would be important also to review thecoherence and representativeness of the MPA network established under the
Agreement; the global 30x30 goal has set a numerical objective but there is
no assessment foreseen whether the “right” areas have been protected andwhat follow-up process is foreseen to close the gaps (who should take action– individual States who feel inclined or could the COP and its Science body
propose areas?).
Part IV: Environmental impact assessments
Article 22 Obligation to conduct environmental impact assessments
3.
The requirement in this Part to conduct an environmental impact
assessment applies [only to activities conducted in areas beyond national
jurisdiction] [to all activities that have an impact in areas beyond national
jurisdiction].
The latter option is ill defined. Firstly, who decides what activity has an
impact? Secondly, nearly every activity has ultimately an impact, be it verysmall, in ABNJ. Consideration of all activities would increase the number of
EIAs considerably.

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Article 23 Relationship between this Agreement and environmental impact
assessment processes under other relevant legal instruments and frameworks
and relevant global, regional, subregional and sectoral bodies[2. Alt. 1.
The Scientific and Technical Body shall consult and/or
coordinate with relevant legal instruments and frameworks and relevant
global, regional, subregional and sectoral bodies with a mandate to regulate
activities [with impacts] in areas beyond national jurisdiction or to protect themarine environment. [Procedures for consultation and/or coordination shall
include the establishment of an ad hoc inter-agency working group or theparticipation of representatives of the scientific and technical bodies of thoseorganizations in meetings of the Scientific and Technical Body].][2. Alt. 2.
State Parties shall cooperate in promoting the use ofenvironmental impact assessments in relevant legal instruments andframeworks and relevant global, regional, subregional and sectoral bodies forplanned activities that meet or exceed the threshold contained in thisAgreement.][3. Alt. 1.
[Global minimum standards] [and] [guidelines] for the conductof environmental impact assessments [under relevant legal instruments andframeworks and relevant global, regional, subregional and sectoral bodies]shall be developed [by the Scientific and Technical Body] [throughconsultation or collaboration with relevant legal instruments and frameworks
and relevant global, regional, subregional and sectoral bodies]. [These [global
minimum standards] [and] [guidelines] shall be set out in an annex to thisAgreement and shall be updated periodically].][3. Alt. 2.
The provisions of this Part constitute global minimum standards
for environmental impact assessments for areas beyond national jurisdiction.]
We promote Alt. 1 over Alt 2, but the standards and/or guidelines should not
be attached to the Agreement and instead be adopted as measures by the
COP. This makes it easier to review and revise them.
[4. Alt. 4.
Where a planned activity under the jurisdiction or control of aState Party [with impacts] in areas beyond national jurisdiction is alreadycovered by existing environmental impact assessment obligations andagreements, it is not necessary to conduct another environmental impact
assessment of that activity under this Agreement [, provided that the [State
with jurisdiction or control over the planned activity] [body set forth in Part […]][, following consultation with relevant legal instruments and frameworks andrelevant global, regional, subregional and sectoral bodies,] determines that:

Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

Page 21 of 27[(a) The outcome of the environmental impact assessment underthose obligations or agreements is effectively implemented;][(b) The environmental impact assessment already undertaken is[[functionally] [substantively] equivalent to the one required under this Part][comparably comprehensive, including with regard to such elements as theassessment of cumulative impacts];][(c)
The threshold for the conduct of environmental impact
assessments meets or exceeds the threshold set out in this Part.]]Article 24 Thresholds and criteria for environmental impact assessments
In Art. 24 only activities which cause substantial pollution, significant andharmful changes or more than minor and transitory effects are mentioned.
This means that (unlike to the EIA requirements under the Antarctic Treaty
System) there is no EIA requirement for all activities. Although the terms /criteria used are subject to interpretation, this would mean that most marine
scientific research activities would not require an EIA. Art. 24 also indirectly
sets out that all activities would have to be notified to a national competentauthority.
If an EIA requirement covering all activities in ABNJ is to be considered, we
agree with such a classification into less than minor/transient, minor/transientand larger than minor/transient impacts as of the Antarctic Treaty.
Article 25 Cumulative impacts[2. Alt. 1.
Guidelines for assessing cumulative impacts in areas beyond
national jurisdiction and how those impacts will be taken into account in theenvironmental impact assessment process for planned activities shall be
developed by the Conference of the Parties.][2. Alt. 2.
In determining cumulative impacts, the incremental effect of aplanned activity under the jurisdiction or control of a State Party, when added
to the effects of past, present and reasonably foreseeable future activities,
shall be examined regardless of whether the State Party exercises jurisdiction
or control over those other activities.]
The inclusion of cumulative impacts is an important role for the new
Agreement that is not taken into account in the current sectoral legal andinstitutional approach taken in ABNJ.
The COP and its Technical and Scientific Body is best placed to establish
such guidelines (Para. 2 Alt. 1) rather than to try and come up with aregulation text in the Agreement itself (Para. 2 Alt. 2).

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Article 30 Screening
1.
A State Party shall determine whether an environmental impact
assessment is required in respect of a planned activity under its jurisdiction
or control.
This is a crucial Part of the overall EIA process. To determine whether or nota planned activity requires an EIA, a notification procedure has to be put inplace in each member state. At the end of Para. 1 a cross-reference to thecriteria in Art. 24 would be good. General or specific assessment frameworks
established under other international bodies (e.g. under the London
Convention for marine geoengineering activities) should also be considered.
[2.
The initial screening of activities shall consider the characteristics ofthe area where the planned activity under the jurisdiction or control of a State
Party is intended to take place, as well as where the potential effects aregoing to be felt. Should such planned activity take place in or adjacent to anarea that has been identified for its significance or vulnerability, regardless ofwhether the impacts are expected to be minimal or not, an environmental
impact assessment shall be required.]Para. 2 qualifies the criteria in Art. 24.
There should be a cross-reference to Art. 27 inserted in this paragraph.
[3.
If a State Party determines that an environmental impact assessment
is not required for a planned activity under its jurisdiction or control, [theapproval of the Scientific and Technical Body must be obtained] [it must
provide information to support that conclusion]. [The Scientific and Technical
Body shall verify that the information provided by the State Party satisfies therequirements in this Part.]]Here a cross-reference to Art. 29 should be inserted, as activities identified
as not requiring an EIA should be put on the negative list. The involvement of
the Scientific and Technical Body in the process is welcomed. However,workload for this body might become large, so rather than approval, the latterverification option might therefore be better.
Article 31 Scoping[1.
States Parties shall establish procedures to define the scope of theenvironmental impact assessments that shall be conducted [under theprovisions of this Part].]To leave the establishment of scoping procedures to State Parties will create
differences and inconsistencies. These scoping procedures have to beestablished by the COP, at least in form of guidelines.

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Article 33 Mitigation, prevention and management of potential adverse effects[States Parties shall establish procedures for the prevention, mitigation andmanagement of potential adverse effects of [authorized] activities under theirjurisdiction or control. Such procedures shall include the identification ofalternatives to the planned activity under their jurisdiction or control.]
Again, COP should at least provide a general framework or guidance forthese procedures to ensure international consistency.
Article 34 Public notification and consultation
The information on some planned activities might contain confidential
information. There might be a need for a separate Article with respect to how
confidential information will be handled in the EIA process.
1.
States Parties shall ensure early notification to stakeholders aboutplanned activities under their jurisdiction or control and effective, time-boundopportunities for stakeholder participation throughout the environmental
impact assessment process, including through the submission of comments,
before a decision is made as to whether to proceed with the activity.
Art. 34 Para. 1 should start with "If a planned activity has been identified as
requiring an EIA, ..."
[6.
Procedures may be developed by the Conference of the Parties tofacilitate consultation at the international level.]
Article 38 Decision-making[1. Alt. 1.
Where a planned activity is under the jurisdiction or control of aState Party, that State shall be responsible for determining whether theplanned activity under its jurisdiction or control may proceed.][1. Alt. 2.
The Conference of the Parties shall be responsible fordetermining whether a planned activity under the jurisdiction or control of aState Party may proceed, in accordance with the following procedural
requirements:(a)
The environmental impact assessment report shall be
submitted to the Scientific and Technical Body for review, which shall, having
regard to the inputs received during public consultation, review the report andmake a recommendation to the Conference of the Parties on whether theplanned activity under the jurisdiction or control of a State Party should
proceed[;][(b) A revised environmental impact assessment report may besubmitted to the panel of experts, appointed by the Scientific and TechnicalStatement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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Body, for reconsideration where the Scientific and Technical Body has
recommended that the planned activity under the jurisdiction or control of aState Party should not proceed.]]We recommend Para. 1 Alt. 2 over Para. 1 Alt. 1.
Article 39 Monitoring
In accordance with articles 204 to 206 of the Convention, States Parties
shall [[continuously] monitor the effects of authorized activities] [ensure thatthe environmental impacts of the authorized activity are [continuously]
monitored [and supervised]] [, in accordance with the conditions set out inthe approval of the activity].
There is a need for monitoring, but it is not possible to carry out excessive
and lengthy pre- and post-monitoring in ABNJ. This would jeopardize a large
range of non-commercial research. There is also a need to insert anotherparagraph under Art. 39 to stipulate that the COP, upon advice by the
Scientific and Technical Body, will prepare guidance for this monitoring.
Article 41 Review[2.
A [non-adversarial consultation] process shall be established toresolve [controversies] [differences] [disagreements] in respect ofmonitoring [, without recourse to judicial or non-judicial bodies].]Para. 2 belongs to Art. 39.
[3.
[All States and, in particular] Adjacent coastal States [, including small
island developing States,] shall be [kept informed of] [consulted actively [,as appropriate,] on] the monitoring, reporting and review processes inrespect of [an activity approved under this Agreement] [activities in areas
beyond national jurisdiction].]This will be very difficult to achieve in praxis.
Part V: Capacity-building and transfer of marine technology
Article 44 Modalities for capacity-building and the transfer of marine technology[5.
Detailed modalities, procedures and guidelines for capacity-building
and the transfer of marine technology [may] [shall] be developed andadopted by the Conference of the Parties.]
The German marine research offers capacity building and transfer throughjoint cruises and programs. There is a need for these detailed modalities
procedures and guidelines to be developed – the text of the BBNJ

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Agreement, together with UNCLOS itself, can only provide the overarchingframe for capacity building.
Part VI: Institutional arrangements
Article 48 Conference of the parties[3bis. As a general rule, the decisions of the Conference of the Parties shallbe taken by consensus. If all efforts to reach consensus have been
exhausted, the procedure established in the rules of procedure adopted by
the Conference shall apply.]
This is very important. If consensus cannot be reached, it should be possible
to make a majority (e.g. 2/3) decision. The reservations of those members,
who cannot support a decision, should be reviewed periodically by the COP
to see whether they have changed their position over time. Within the
OSPAR Convention such a reservations review procedure is being
implemented very effectively.
4.
The Conference of the Parties shall [monitor and] keep under review
the implementation of this Agreement and, for this purpose, shall:(d)Establish such subsidiary bodies as deemed necessary for the
implementation of this Agreement [, which may include:
The first subsidiary body on the following list should be a Scientific andTechnical Committee with a reference to Art. 49.
[(i)

An access and benefit-sharing mechanism;][(ii)
A capacity-building and transfer of marine technology
committee;][(iii)

An implementation and compliance committee;]Experience in other international organisations (e.g. in CCAMLR), that suchan implementation and compliance body is important but can also cause
extremely difficult discussions and controversy.
Article 50 Secretariat[1. Alt. 1.

A secretariat is hereby established.][1. Alt. 2.
The Conference of the Parties shall [, at its first ordinary
meeting,] designate the secretariat from among those existing competentinternational organizations that have signified their willingness to carry out
the secretariat functions under this Agreement.]

Statement of the Permanent Senate Commission on Fundamental Issues of Biological Diversity

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The secretariat functions for this Agreement shall be
performed by the Division for Ocean Affairs and the Law of the Sea of the
Office of Legal Affairs of the United Nations.]
Para. 1 Alt. 3 might be the most appropriate to ensure consistency with
UNCLOS.
Article 51 Clearing-house mechanism
1.

A clearing-house mechanism is hereby established.

Taking into account the amount of different material and information to be
included in the clearing house mechanism, it might be better to establish 4
clearing house mechanisms (i.e. one for each main BBNJ Agreement Part).
[6.
The clearing-house mechanism shall be managed by [the secretariat][the Intergovernmental Oceanographic Commission of the United Nations
Educational, Scientific and Cultural Organization, in association with
relevant organizations, including the International Seabed Authority and theInternational Maritime Organization, and shall be informed by theIntergovernmental Oceanographic Commission Criteria and Guidelines on
the Transfer of Marine Technology].]
We recommend that the clearing house mechanism(s) should be managed
by the Secretariat, which then can ask / cooperate with other relevantinternational organizations as appropriate.
Annex II: Types of capacity-building and transfer of marine technology[Under this Agreement, capacity-building and the transfer of marine
technology initiatives may include, and are not limited to:…
(e)
The development and strengthening of human resources andtechnical expertise through exchanges, research collaboration, technicalsupport, education and training and the transfer of technology, such as:(i)Collaboration and cooperation in marine science, including
through data collection, technical exchange, scientific research projects andprogrammes, and the development of joint scientific research projects incooperation with institutions in developing States;
It should be avoided that developing countries require that their national
scientists / experts have to be a partner in marine scientific research projects
or have to participate on a research cruise. This can be done where
possible, but should not become a mandatory requirement (as some States

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require under the Nagoya Protocol for research carried out in the national
waters).