Marine science and technology have long been recognized as key issues to enable states to implement the 1982 United Nations Convention on the Law of the Sea (UNCLOS).Footnote ¹ Scientific capacity development and technology transfer are cross-cutting issues in the development of a new international legally binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction under UNCLOS.Footnote ² The acquisition, exchange, and application of scientific knowledge are critical issues in the development of the ILBI.

Scientific knowledge is needed for all elements of the ILBI, including to: provide baseline for environmental impact assessments; designate and monitor area-based management measures; and access, utilize, and share benefits from marine genetic resources. Enhanced ocean observations will be crucial to fill gaps in scientific knowledge of biodiversity beyond national jurisdiction.

However, few states possess the scientific and technical resources to undertake biodiversity research in areas beyond national jurisdiction. Capacity limitations could constrain the ability of many states to participate. One of the questions facing the development of the ILBI is therefore how to strengthen the implementation of the UNCLOS framework provisions for marine scientific research and the development and transfer of marine technology.

Scientific capacity development and technology transfer are interlinked under the UNCLOS framework for marine technology transfer and marine scientific research.Footnote ³ For example, the development of technological infrastructure and the development of human resources through training and education are among the basic objectives of technology transfer articulated in UNCLOS Article 268. The acquisition, evaluation, and dissemination of marine scientific and technological knowledge, information, and data is one of the modalities of technology development and transfer identified in UNCLOS Article 277. In addition, international scientific collaboration (including scientist exchanges and conferences) and regional scientific capacity development (including the establishment of national and regional marine scientific and technological centers) are identified as modalities of technology transfer in UNCLOS Articles 269, 274, and 277. However, ambiguities and weaknesses in the UNCLOS framework constrain implementation.

The terms “technology” and “technology transfer” are not defined in UNCLOS. As such, the definition and scope of technology transfer for biodiversity beyond national jurisdiction is unclear. The definition offered by the Intergovernmental Oceanographic Commission of UNESCO in the Criteria and Guidelines on the Transfer of Marine TechnologyFootnote ⁴ includes: information and data; expertise, knowledge, skills, and methods; equipment; computer software, models, and modeling techniques; and manuals, guidelines, criteria, standards, and reference materials. This broad definition of technology has the benefit of capturing the multidisciplinary nature of biodiversity beyond national jurisdiction research and the range of scientific and technology tools that could be required—at sea and on shore.

Scientific capacity development activities could take place at bilateral or multilateral levels. Forms of capacity development could include: scientific, educational, and technical assistance; training; research cooperation; exchange programs and collaborative research; access to equipment and data; and strengthening regional and national marine science and technology centers. Stronger coherence and coordination between existing activities of intergovernmental organizations (such as the International Seabed Authority, the International Oceanographic Commission (IOC), and the UN Food and Agricultural Organization) could support scientific capacity development for biodiversity beyond national jurisdiction.

For capacity development and technology transfer to meet national and regional needs, those needs must first be identified. UNCLOS Articles 266 and 275 provide that technology transfer should be provided to states that “need and request” technology, including to promote the development of marine scientific and technological capacity and establish national marine scientific and technological centers. Assistance for states to assess scientific capacity development and technology transfer needs, as well as identify opportunities for those needs to be met, could be useful.

A clearinghouse mechanism could provide a tool to support capacity development and technology transfer, including to enable access to information about capacity development opportunities and to enable knowledge exchange. Questions remain, however, about the types of information that would be included and how it could be managed. A clearinghouse would require sustained resources and stakeholder engagement (especially from scientific communities) to ensure that quality information was made available to users. Building on the strengths of existing mechanisms, such as the Ocean Biogeographic Information System of the IOC, would be important.

Funding and implementation mechanisms are crucial for capacity development initiatives to be sustained in the long term. There are various questions that remain, including whether technology transfer should be voluntary or mandatory, and how intellectual property issues could be addressed. UNCLOS provides that the development and transfer of marine technology should be conducted on fair and reasonable terms and conditions (UNCLOS Articles 266(1) and 269(b)). Given the many different forms of technology and the breadth of technology transfer possibilities, there is unlikely to be a “one-size-fits-all” approach.

A useful focus in the development of the ILBI could be to create an enabling international environment for scientific exchange and capacity development. Three focus areas could include: international scientific collaboration to conduct marine scientific research and acquire knowledge of biodiversity beyond national jurisdiction; technological infrastructure to exchange knowledge internationally; and regional capacity development to enable scientific knowledge to be interpreted and applied for conservation and sustainable use of biodiversity beyond national jurisdiction. These three priorities echo the 1970 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, in addition to other international instruments concerning international spaces, such as the 1959 Antarctic Treaty and 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.

The UNCLOS framework provisions could be further implemented and strengthened under the ILBI through measures such as: enhancing data-sharing infrastructure, formalizing a clearinghouse mechanism for knowledge exchange, a strengthened institutional framework for international coordination, and innovative funding models to foster international scientific collaborations and regional capacity development. Improving the international framework for marine data and information exchange, for example, could build on the internationalization of science and open data. Technological innovation and enabling technologies could enable new forms of scientific collaborations and “virtual” participation, driving a new paradigm of scientific capacity development and a shift in focus from technology transfer as a form of bilateral hardware donation to international knowledge exchange. Building on strengths of existing initiatives will be crucial to avoid duplication and ensure meaningful, sustainable, and long-term capacity development and technology transfer that meets national needs and delivers benefits for both providers and recipients. Ultimately, however, the successful implementation of capacity development and technology transfer will rest on the adequacy of the funding and institutional mechanisms in place.

In accordance with General Assembly Resolution 69/292, the Preparatory Committee for the development of the ILBI will report to the United Nations General Assembly on its progress by the end of 2017. Many questions remain for capacity development and technology transfer issues in the future development of the ILBI, including whether they should be treated as stand-alone or cross-cutting. However, the advancement, sharing, and application of scientific knowledge through international cooperation in marine scientific research could provide a unifying focus for this historic new development in the international law of the sea.