Decentralising COP28: Marine Environmental Negotiations You’ve Never Heard Of

Marie Bret

Image Credits: Highlights and images for 20 June 2023 (iisd.org) The “family picture” of the BBNJ’s team, 20th June 2023

As COP28 unfolded in Dubai, reporters and pundits around the world touted a daunting narrative, portraying the diplomatic conference as “our last chance” before a climate breakdown. However, environmental diplomacy has never been limited to one summit a year, and as we speak, dozens of negotiations are taking place to build an international legal network on the environment, piece by piece. Their scopes are far wider than just climate change, encompassing biodiversity loss and pollution, which are all interlinked. Relying on the Earth Negotiations Bulletin (ENB), let’s take a look at the archives of green diplomacy, with the example of two “blue” treaties that teach us more about how environmental treaties come about, providing an alternative point of view on the efficacy of environmental negotiations.

The Earth Negotiations Bulletin

The ENB is an initiative, by the International Institute for Sustainable Development, that provides fact-based reports on United Nations environmental negotiations. Their team of researchers, academics and experts attend diplomatic conferences worldwide to summarise them for all their subscribers for free. They administer two other newsletters: 1) on the global implementation of the Sustainable Development Goals and 2) on jobs in climate change-related careers. This makes the ENB a useful tool for any student interested in following the current trends in green diplomacy.

What are “Blue” Treaties?

Blue Treaties encompass all agreements that cover the management of our oceans, seas, rivers etc. around the globe. Blue ecosystems have always been an important feature of international negotiations as they underlie the functioning of our economies, with more than 80% of world trade being transported by maritime shipping and approximately 10% of the global population living in coastal areas, dependent on the littoral economy. Moreover, marine ecosystems are crucial for biodiversity preservation, as they represent over 95% of our biosphere. They are also essential in mitigating climate change, with Earth’s oceans absorbing 25% of all CO2 emissions and capturing 90% of the excess energy generated by greenhouse gas.

Furthermore, these blue ecosystems cover more than 70% of the Earth’ surface and are key elements of the Nine Planetary Boundaries. Established in 2009 by Johan Rockström and a team of scientists, these are boundaries to the Earth’s system which humanity must uphold in order to ensure our planet’s sustainability. These boundaries are all interlinked and more than half rely on marine areas: biosphere integrity, freshwater change (which deals with the equilibrium of the water cycle), climate change, novel entities and ocean acidification.

Among the blue treaties studied by the ENB, two treatises best represent the evolution of environmental negotiations since 1945: the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (FSA) adopted in 1995; and the legally binding international agreement on Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction (BBNJ) adopted in June 2023.

The FSA & What We Can Learn From It

The FSA first convened in 1993 right after the United Nations Conference on Environment and Development (UNCED) in 1992, which defined the UN’s environmental priorities for the end of the century. The UNCED laid the groundwork for the FSA which aimed to settle arguments over the management of straddling and highly migratory fish stocks, complementing both the UNCED and the 1982 Law of the Sea (UNCLOS). These types of fish are characterised by their overlapping of more than two countries’ Exclusive Economic Zones (EEZ). Reports had shown that with the boom of globalisation and intensive fishing in the 1980s, their stocks were being over-exploited and depleting fast.

The FSA included 105 countries along with representatives from NGOs and international organisations. The procedure of the FSA differed from the COPs. It included several meetings: first, an organisational committee to agree on etiquette and the chair’s bureau followed by several negotiation sessions. Substantive topics were then reserved for plenary sessions while several working groups dealt with specific issues. These negotiations are interesting to look back on as they show problems that are still (wistfully) recurrent in environmental negotiations. For example, the first sessions were marked by the differences between the Coastal States suffering the most from overfishing and calling for “quick and sometimes radical action”, and the other fishing states, prioritising the protection of their industry. Although the conflict was less marked along the lines of North versus South, the fight between the most affected and most responsible states continues today.

For the FSA, conflicts were largely resolved through extensive reliance on informal consultations and plenaries - a similar functioning to the second week of COP28 as the parties involved dived into the most conflictual issues in unofficial meetings. Furthermore, at that time, many conversations were held behind closed doors and the active participation of NGOs, first formalised in the Rio Conference of 1992, was still in its infancy. It did allow negotiations to be swifter than they may be today, but at the cost of overlooking the voices of many.

A key challenge of this conference was the harmonisation of national management regimes which involved a fragmental loss of state sovereignty to comply with international regulations. The agreement’s success was a stepping stone that allowed following accords, such as the Kyoto Protocol, to have a basis of anterior, minor consensus to build on. It is part of the reason why the Paris Agreement also succeeded and why each year, COPs manage to gather more and more people around the table.

Lastly, the FSA highlighted and tried to push for more regulation on the high seas, an important issue regarding the conservation of marine ecosystems as they cover two-thirds of the ocean and 50% of the Earth. The ongoing question of preserving these spaces, left unresolved by the narrow scope of the FSA, drove the organisation of the BBNJ.

The BBNJ & What We Can Learn From It

While the FSA teaches us a bit on how negotiations succeed, the BBNJ highlights how environmental diplomacy is particularly technical, and the steps necessary for discussing an acceptable scope for international law.

The resolution that started the BBNJ Conference was different than for the FSA: while the FSA had a clear negotiation mandate, the first task for the BBNJ was to establish what was there to be discussed when speaking about endangered marine biodiversity. A working group therefore first convened in 2006. This groundwork stage is essential in environmental negotiations, which rely heavily on scientific knowledge and expertise. Furthermore, as the quintessential diplomat would concur, “ the informal setting and non-negotiated outcome facilitat[e] a frank exchange of views”.

The first meeting of the BBNJ working group offered a first interesting evolution: NGOs became members of the negotiations, with Greenpeace at the head of a coalition proposing recommendations. This complicated negotiations but heightened its transparency, notably allowing scientists to publicly comment on the measures put forward and on their strength given the biodiversity crisis. Due to the lengthening of the process, the disagreements between parties, and their reluctance to sovereignty loss, it took ten years to reach a consensus on the legally binding nature of this agreement. Consensus reached in other negotiations, notably the Paris Agreement in 2015, helped convince delegates.

Afterwards, the discussions went forward to the Preparatory Committee (PrepCom). The working group had devised the themes of the conference and the nature of the future agreement, and now the PrepCom would clarify the measures to be discussed. This phase was characterised by an enlargement of the delegations and, in line with other events such as the COP, transparency procedures were heightened to allow NGOs and IGOs to contribute more effectively.

Over this period, the complexities of international laws and processes also deepened. This led to the lengthening of negotiations: “over the ten years it took the BBNJ process to formalise into a PrepCom, several international bodies ha[d] given birth to guidelines, tools and practices that relate to each element of the package. These developments complicate[d] the task of not “undermining” existing instruments and bodies in moving forward with negotiations”. In 2018, after two years of discussions, the UN General Assembly decided to

step up the process by convening an Intergovernmental Conference (IGC) to begin elaborating the treaty’s text. After the PrepCom had delineated the scope of the agreement, the IGC truly started the hardcore negotiations over the treaty’s text. The treaty was finally signed in June 2023 seventeen years after the first summon.

These exemplify the long technical sequence before a treaty is adopted, illustrating why it is difficult to judge the success of the COP based on a two-week summit and the media frenzy. The COP represents a full year of technical negotiations happening on all five continents. The declaration that goes out at the end is important but it is not a legally binding treaty – only the Paris Agreement is – and it hides the other consensuses reached or disagreements left postponed.

Conclusion

Being disappointed by the result of the COP28 can be justified, but the FSA and the BBNJ teach us that this annual event does not represent the arduous efforts of green diplomacy, hidden from public opinion. These blue treaties were precursors in establishing the first principles in green diplomacy, as well as complementing the broad agreements that led to today’s COP28. Moreover, to advance the Paris Agreement agenda of limiting global warming “well under 2°C” around the 1.5°C, we need precise, concrete, and sectoral agreements with all stakeholders. The FSA and the BBNJ are some of these essential treaties.

January, 2024.