A Big Ocean African State and Small Island Developing State introductory perspective on the BBNJ negotiations
Jeremy Raguain is a Seychellois conservationist currently participating in the Alliance of Small Island States (AOSIS) fellowship program. Jeremy is based at the Seychelles Permanent Mission to the United Nations in New York as a Climate and Ocean Advisor. He took part in the high-stakes BBNJ negotiations which ended last week without an agreement, further delaying global action. Jeremy previously worked with the Seychelles Islands Foundation and co-led the Aldabra Clean-Up Project, while volunteering with various youth NGOs. Here we interview Jeremy to find out more about these negotiations, what they are, what they mean, and how they are accomplished. It is fair to say that the outcomes of these negotiations will be felt one way or another by every person on the planet for generations to come, either by their failure or their success. Let's hope for the latter!
L-R: Marie May Jeremie Muzungaile, Jeremy Raguain, and Tamara Thomas, Seychelles delegation (Photo by IISD/ENB | Diego Noguera)
What are the BBNJ negotiations?
The biodiversity beyond national jurisdiction (BBNJ) negotiations are focused on delivering an international legally binding instrument 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. Given that mouthful, people understandably use BBNJ for short and refer to the process as negotiations for a high seas treaty. When the negotiations are completed, we expect to have a more workable title (yes, even its name is negotiable!). The biodiversity that is in focus here includes all life outside of a State’s territory such as sharks, tuna, and turtles, that migrate or reside in this area, from the smallest microscopic organism like phytoplankton to megafauna like blue whales.
How long have these negotiations been going on for?
As you can see from the High Seas Alliance’s timeline (below) these official negotiations started in 2018 after 15 years of discussions between states, civil society and other stakeholders. From 15th to 26th August 2022 the fifth intergovernmental conference (IGC) and latest attempt to agree on a treaty took place at the United Nations Headquarters in New York. The fourth IGC (IGC4), which unfolded in March this year was my first experience with the BBNJ negotiations and was also meant to be the world’s last chance at reaching an agreement after a two-year COVID-19-induced hiatus. Now that IGC5 has come and gone and a treaty has still not been delivered, many states, NGOs, and other stakeholders are anxious to see these negotiations completed.
From https://www.highseasalliance.org/high-seas-alliance-timeline/
It's important to understand that this high seas treaty would be an implementing agreement of the UNCLOS, a convention that took nine years to be negotiated and does not include every state as signatory, most notably the United States. While UNCLOS, which is known as the ocean’s constitution and turns 40 in November 2022, provides a comprehensive legal framework to regulate all ocean space, its uses and resources, it has not prevented humanity from degrading the high seas.
So the BBNJ covers what is in the high seas, but what area is covered by that?
The high seas, represented in blue on the map below, begin after a state's economic exclusive zone (EEZ; green areas), which extends 200 nautical miles from a state’s shore.
Why are these BBNJ areas so important?
This vast area accounts for 47% of the earth’s surface and two-thirds of the ocean and belongs to no state. It is as such a global commons and ‘no-man's land’ that the entire world depends on for global trade, food, climate regulation and much more.
Only a few states, the most powerful and richest, have the capacity and resources to regularly access and use this space which is also home to most of the world’s remaining wild biomass.
Many states, intergovernmental organizations and NGOs are particularly concerned about the high seas’ protection, focusing on how important it is to create marine protected areas (MPA) beyond national jurisdictions to save marine biodiversity and help tackle the ecological and climate crises. However, this is not the BBNJ’s entire purpose nor the only interests of negotiating states. Much like the Seychelles Marine Spatial Plan, the BBNJ treaty would help the world protect and manage the high seas.
What is included in the BBNJ negotiations?
In brief, the treaty aims to have all states agree on certain aspects of protection and management. To understand these complex negotiations and the treaty we hope they will produce you can divide the discussion and text into 5 thematic areas:
Area Based Management Tools (ABMTs) which include MPAs
Environmental Impact Assessment (EIA)
Marine Genetic Resources (MGR)
Capacity Building and Transfer of Marine Technology (CBTMT)
Cross Cutting Issues (CCI) (covering issues such as finance, institutional arrangements, governance and principles)
For those who want more detail…
Ultimately, as explained by a friend, Mr Thembile Joyin, who is an experienced South African diplomat, lead for the African group and IGC facilitator: “The treaty must have two strong legs to walk and stand on its own to achieve its goals. It must not limp”. The one proverbial leg focuses on the high seas' protection establishing ways in which states will designate areas for conservation and sustainable use, through the ABMTs, and agree on EIAs that may limit or allow certain activities, current, and future. The other leg ensures that the treaty can be implemented. Many states, especially Small Island Developing States (SIDS) are barely able to access and control their own EEZs, let alone the high seas. The CBTMT section would ensure more states can access and benefit from the high seas, fulfill their treaty obligations, and not be overburdened by them. The CCI section deals with how the treaty will be governed with negotiations covering what principles and definitions will be recognised, what bodies will be created, and how these procedures and the treaty’s programs and activities will be financed. Like the United Nations Framework Convention on Climate Change (UNFCCC) and Convention on Biological Diversity (CBD) it seems the BBNJ will have a conference of the parties (COP), as well as a secretariat (states negotiating now on whether a new secretariat will be created or whether it fall under the Division for Ocean Affairs and the Law of the Sea (DOALOS)), a scientific and technical body as well as a compliance, CBTMT and funding mechanisms. In fact, with costs for MPA management alone estimated to cost several billions of U.S. dollars, funding is a critical part of the CCI and the entire treaty. It is also connected to another part of the treaty, which is perhaps it's most contentious: MGRs. Like the CBD and UNFCCC and United Nations (UN) as a whole, it is expected that the BBNJ treaty will receive funding from its signatory UN member states. However, MGRs found in the high seas have the potential to change science and research (especially within the pharmaceutical industry) and be worth tens of billions of U.S. dollars annually are also seen by some states as financing sources. Needless to say, most of the powerful states that can access the high seas don't want a slice of their income reduced and shared. As such, access and benefit sharing (ABS)s is a very complex and high-tension debate within the negotiations.
Who is part of the negotiations?
As the BBNJ negotiations take place under the auspices of the UN all 193 of its member States and its two non-member observer States, the Holy See and the State of Palestine, can participate.
These member States and non-member observer States can be represented by a single person, as it is the case for many smaller and less wealthy states, or entire teams, as it is the case for larger wealthier states like the European Union (EU), US or UK.
These representatives may be technical experts flown in, especially from ‘capital’ for the negotiation or diplomats based at the UN in New York. Often larger teams prepare weeks and months in advance, not only having specially created resources but also academics and lawyers standing by to advise them as they proceed. In any case, Member States and non-Member Observer States make interventions during thematic area-specific sessions suggesting and rejecting text, while also asking questions, justifying their proposals, and trying to convince others to support their propositions.
Who else can attend?
Relevant UN/intergovernmental bodies, like the International Maritime Organization (IMO) and concerned international civil society/NGOs like Greenpeace also attend. But these non-state state actors can not make interventions or textual changes. Still, as observers and experts in the room, they can advise and lobby states while also communicating to the public what is going on. Sometimes negotiations can be closed, allowing only member and non-member observer States into the room.
Delegates from the African region
How are the negotiators organized in the room?
Like other negotiations, states can also organize themselves into regional and interest negotiating blocs. While the EU is the only regional bloc that can make legally binding agreements on behalf of its member states, other negotiating blocs exist, like the African Group, Alliance of Small Island States (AOSIS), Caribbean Community (CARICOM), Core Latin American Group (CLAM) and Pacific Small Island Developing States (PSIDS). Moreover, given the deep divisions between Global South/developing states and Global North/developed states there is also the Group 77 and China (G77 + China), which is made up of 134 developing UN Member States and one non-member observer State. The advantages of such groupings are that not only do like-minded governments and similar states band together to share resources and expertise during the IGCs, but also, as the negotiations are consensus-driven, they signal agreement amongst states and begin to narrow down the possible text suggestions from 195 to five or two options (i.e. Global South vs Global North). As such, the larger the grouping the more powerful it is. Within the G77+China the African Group is the largest with 54 member states, this is one of the groupings Seychelles negotiates within and the other being AOSIS, which includes 39 member states. However, the larger and more diverse a grouping gets, the harder it can be to create and maintain consensus, and once one state has broken from grouping due to following its own interests, or being part of another grouping or having pressure applied on it from another state, usually a larger developed state that is a trade partner or donor this can stop a grouping from intervening and proposing text. In such cases, smaller groupings or individual states may carry the baton forward.
Who runs the negotiations?
The negotiations are presided over and organised by member states. The IGC has a President, a diplomat from Singapore, and several facilitators who oversee specific thematic areas and the subsets within. The role of the president and facilitators is not only to organize and run the two weeks of negotiations into sessions and consultations but also with the help of the secretariat, which DOALOS currently serves, to record textual suggestions and produce new text for states to review.
What is your role in these proceedings?
As an AOSIS Fellow, my role is primarily to learn and understand the inner workings of how and why a piece of international environmental law is negotiated and agreed to, or not. By following several thematic areas (I enjoy following the ABMT, CCI and MGR areas the most) and using my fellowship-acquired knowledge of international law and what constitutes an obligation for a state I am able to learn the nuances of negotiation. These negotiations also allow me an unrivaled insight into the positions, tactics, and strategies of states and groupings, including my own. Then during our biweekly sessions, the other fellows and fellowship directors discuss what has taken place, analyzing the developments and drawing conclusions. In this pursuit of real-world experience, I am also granted the opportunity to support the Seychelles delegation. From tasks like helping them organize their schedule, taking notes during coordination meetings and sessions they are unable to attend as they may be in another meeting, to scanning sections of the text for changes and understanding whether we or our groupings can go along with such suggestions. Without my participation, the Seychelles delegation would only be two people and being the African Group’s ABMT lead as well as advisor for EIAs, my small contribution as an extra pair of hands and eyes can make a difference. Additionally, with Seychelles being part of two groupings, I’ve helped ensure that the African Group and AOSIS communicate well on areas of potential agreement and disagreement, so as to avoid confusion, distrust or conflict. I am happy to share that I was also able to support the groupings by providing insights from being a conservationist in Seychelles. I also take it upon myself to communicate what I see and experience.
Having now attended IGC4 and IGC5 I can see that my knowledge and confidence in navigating these fast-moving, convoluted spaces has increased, along with the ability to share my thoughts and reasoning.
Lastly, I also ensure Seychelles’ interventions, positions, reasoning, and general experience of these IGCs are captured for the Seychelles Permanent Mission to the UN records, helping to inform the next steps to come.
Michael Kanu, Sierra Leone, for the African Group
What is a typical day like at the negotiations?
Official UN work begins at 10 am and ends at 6 pm, with a break between 1 pm and 3 pm. Now before you jump to the conclusion that these diplomats have it easy during these two weeks of negotiations, you have to remember that national and group coordination, as well as bilateral meetings, need to take place. As such, most days for negotiators will begin with an 8 am G77+China coordination meeting or another grouping, with delegations needing to be in two or more rooms at the same time. These meetings are not only limited to the morning, but can, in emergencies, take place during sessions, but generally occur during lunch and late into the night. So you can expect a day at the UN to start at 8 am and for you to be only leaving well after 11 pm.
It's also the case that in the actual official negotiations the sessions often go well into lunch breaks and past the 6 pm mark. While this is expected in such an intense setting, there can certainly be logistical and budgetary limitations that affect the fairness and accessibility of the negotiations. During official working hours, the negotiations are in real-time translated into the six official languages of the UN, allowing non-English speakers to use their mother tongue or another dominant language in their country. When words, grammar, and such have so much meaning, many states are understandably unable to agree to text if they don’t fully understand. When a new text is released the secretariat does its best to send out all translated versions as soon as possible. Except for the final day of negotiations, translation ended at 6 pm, and this forced states to speak in English and constrained their ability to work as a matter of principle and substance.
How does it work in the room? We see pictures of desks with microphones, does everyone join in the discussion on each treaty point?
In the latter stage of the negotiations, the latest version of the treaty is over 50 pages and includes 70 articles as well as two annexes, it is clear that states are closer than ever to reaching an agreement. In terms of the actual ways states speak to each other, it can be said that most interventions are made by the chair or leads of particular groupings, with certain states who are not part of groupings speaking for themselves or echoing the points of their groups. For the majority of the two weeks the five main thematic areas, mentioned above, were discussed across two parallel sessions with each room focusing on several articles of one thematic area. Facilitators lead the states through the reading of these texts, pointing out places of disagreement, which are identifiable by the brackets around the words.
In many cases, the choice of specific words such as “may” or “shall” will be hotly fought over as such words either create legal obligations for states to take on or free them from responsibilities.
In other cases, entire sentences, paragraphs, and articles can be completely deleted or reformulated into another part of the treaty. There are even times that text given up by States in the spirit of compromise two or three IGCs ago, resurfaces when agreements are forgotten or broken. Additionally, while states will go line by line through the treaty, it often happens that articles and sections are drafted and proposed by two or more groupings and placed for debate for all other states and even cases where several options are placed before states to show their preference to provide their justifications and convince other states to join them. Negotiators may even be blase and ask other delegates direct questions in order to show issues or genuinely seek a better understanding, but no delegate is compelled to answer.
Therefore amongst what can be quite focused on draining and dry work, there can also be theatrics, heated exchanges, and laughter.
It's also important to realize that this is only one negotiation among many taking place at this time. In fact, as BBNJ ICG5 raged on and occupied 95% of my attention, I did notice that in the adjacent rooms our counterparts were focused on the Non-proliferation treaty. Oftentimes deals are made in the halls and other rooms of the UN, so if you ever find yourself walking through make sure to always have your ears open, you never know what you might hear, including rumors and false information! It's also the case that current affairs and geopolitics, as demonstrated by the Russian invasion of Ukraine, add another dimension of complexity to these negotiations.
While more details can be given on what takes place in these rooms, I hope what I’ve provided gives more than a glimpse. But just to end this answer, it's important to note these negotiations are similar to what is taking place for the CBD and UNFCCC as well as the newly emerging plastic treaty. For someone taking part in this fellowship from a SIDS and Global South country, it's clear that we are always outmatched by ourselves, but by making common cause with fellow states we can ensure such treaties don’t maintain the status quo or only benefit a few states.
The negotiations came to an end without a full treaty agreement, what were the main causes for this and why did negotiations have to stop?
In my view there are three ways to answer this question:
Procedural reasons: The UN and its member states agreed to this latest IGC taking place as the final one. Despite the fact that there was originally only a mandate and budget for four, they were able to find a way for this one to take place. With no mandate and budget, the IGC5 President decided to suspend the negotiations, in a period of overtime in the last hour of these negotiations. Some negotiators felt like other options were possible such as ‘stopping the clock’ or even continuing the negotiations into the weekend. Still from a logistical/practical point of view, if there is no directive or finance it is difficult for negotiations to continue, especially when many states, powerful ones too, were highlighting issues with the process in its final stages. Additionally, many states depend on a voluntary trust fund (to which any state, NGO and individual can contribute) to cover the expenses of their negotiators’ physical participation. Without funds and support, these states are unable to participate.
The nature of international negotiations: Without a hard stop or deadline, negotiations could theoretically go on forever. Ultimately, the power and pressure of the clock and a hard deadline affect how states negotiate. Compared to the first week, many states in the second week were more open and flexible to text suggestions, able to compromise and offer more reasonable and reliable proposals, especially the developed, powerful states. Many negotiators from the Global South feel that if the Global North States had started the negotiations with the same mindsets and stances as we reached mid-second week, we may have had a treaty. As such delaying tactics, divide and conquer ploys, and organizational limitations, whereby smaller delegations take more time to review text than larger and more well-resourced delegations were factors to why we did not reach consensus, even though there was much progress generally speaking and even breakthroughs on the most contentious issues.
Substantive disagreements: Through this lens, I can admit that I have a Global South bias. After studying the UNFCCC and Paris Agreement and seeing where the Global North States were able to weaken the text and their obligations to the treaty and the Global South States, it's clear that in these negotiations, many Global North States that can access and use the high seas wanted to do the same to maintain their advantages and not share potential (monetary and nonmonetary) benefits equitably. Some of these states were also hesitant to commit resources to help Global South States build and strengthen their capacities. While Global North States have some reasonable justifications for why they could not agree to certain stipulations, citing their own domestic laws and their budgetary limits. In the eyes of those negotiating for Global South States, this can come across as greed or being unwilling to compromise. With SIDS and Global South States seeing this treaty as an opportunity to better protect and manage their own EEZ and the high seas as well as increase their incomes to meet national needs, they could not accept anything less than a treaty that would be legally binding in the protection and sustainable use of the high sea and increase their capacities to access it. This division between Global North and Global South States is encapsulated by two conflicting and key UNCLOS principles of: ‘Freedom of high seas’ and ‘common heritage of mankind’, whereby, almost three hours were spent on discussing if the latter principle should be included. It is yet to be determined if this principle will be included as it has huge implications; moving states to share rather than allowing them to play ‘finders, keepers’ with the high seas and BBNJ.
Understanding this deep division and what compromises are needed to bridge it is still something holding back this treaty’s completion.
Informal discussions on EIAs Photo by (Photo by IISD/ENB | Diego Noguera)
What does this mean for the high seas? Business as normal until an agreement is met or are some parts of the treaty to be implemented even though it's not fully negotiated?
I honestly believe that a high seas treaty, one that is legally binding and meaningful, is within reach. A hard-fought and late treaty will be better than a hollow one, or one that is rushed which may be only a little better than scenarios where no treaty is produced. The fate of whether a legally binding and meaningful treaty materializes, rests on how states resume negotiations. If states return to old positions or try to take advantage of small delegation sizes or personnel changes, as is often the case, failure is a distinct possibility. If negotiations resume in good faith and with negotiators having the same mindset and willingness to reach consensus as we left off, we stand a chance at saving our ocean and significantly making headway to improving our world’s fate.
On the point of implementing parts of the treaty, I cannot see this happening. It is often stated in international negotiations: “nothing is agreed until everything is agreed”. I believe it is categorically bad and not useful if only certain parts of the treaty are agreed to while others are left hanging. It goes back to my South African friend's analogy about the treaty having two legs. Also, states will not agree to certain parts of this treaty without other parts being agreed to. There are not only fundamental connections between this treaty’s components that will allow it to succeed but also leverage for states to sway the final outcome of these negotiations. They will not willingly give up this leverage out of fear and good strategy. All in all, it commenced and was agreed to be a package deal and must end as one.
It’s also the case that once we get a treaty ‘that’s when the real work begins’. The treaty only establishes the rules of the game, it isn't the game.
States will need to sign and ratify this treaty and within time, set up the institutions and mechanisms needed to achieve its overarching goal and key objectives. it will take time to do these things and as it can be seen in the UNFCCC process, states may still not make good on their obligations and commitments. Domestic and international politics, geopolitics, and more will definitely make the implementation of this treaty harder, but if we agree to it and have maximum states sign up to it, the world will be moving in the right direction.
It's like a large container ship, one that crosses the high seas, with a large crew instead of the captain deciding which way to turn the ship. It will take a while to agree on the course. It will also take a while for the inertia to show which direction the crew has turned the ship.
Observers gather outside UN Headquarters (Photo by High Seas Alliance)
What can ocean scientists, conservationists, and the concerned public do about these negotiations?
I am reminded by my friend, Dr Asha Davos’ words: “70% of the world coastline is found in the Global South but over 90% of marine scientists come from high-income countries in Europe, North America or Oceania.” As I provide several ways you can make difference when it comes to this treaty and protecting our ocean please think of these words and also the fact that 50% of the world is under the age of 35 and 90% of these people come from the Global South.
Although a long article (I am sorry!) this is only a brief and non-neutral take on the BBNJ negotiations. If you would like to learn more please read the Earth Negotiations Bulletin updates and reports here.
Whether you are from a Global North or Global South State, ask your government where it stands on this treaty and certain issues you may be familiar with. See if they are aware of where things are and ask them to justify their positions or ask them through letters or petitions to do specific things to not only produce a treaty but one that can walk!
Both Global North and Global South universities, research institutions and producers of knowledge need to focus on helping Global South delegations in these negotiations and others. Many journal articles, research papers, masters, Phds and postdocs need to be written by the citizens of the Global South for the Global South’s benefit, with regional and national specificities as well as divergent interests considered. Such knowledge could go far in not only understanding and explaining how these negotiations take place and what tactics, reasonings, and arguments have been used, but can also inform winning strategies across environmental international law. Collaboration between institutions and individuals that cross the North-South divide to bring out the science and make the case for all states having the ability to protect and manage the high seas is crucial. Such knowledge production and as well as the ability to avail yourself to delegations as an honest expert or advisor before and during such negotiations may also be useful. It's clear who is the underdog and needs help in these fights. Your knowledge and research could go far to change things.
Lastly, you don't need to be an ‘ocean person’ to care about this or make a difference. If you're a general conservationist, student, social scientist, academic, lawyer, communication person and more, you may have the expertise or skills your national delegation lacks, by following these talks showing an interest or helping your delegation in some way could make a difference.
We would like to thank Jeremy for taking a lot of time to talk us through these complex and multi-faceted negotiations. We are grateful for changemakers like Jeremy, who go above and beyond in communicating for real and substantial change.
AOSIS Fellows current and past, with Fellowship Director at the end of negotiations (Photo credit AOSIS)