This was after about 36 hours of gruelling negotiations by member States of the United Nation (UN), and agreement reached on all substantive parts of the agreed package and on the cross-cutting issues (the BBNJ Treaty) [2].  This concluded a 20-year process, with a decade of negotiations to land the BBNJ Treaty. 

Africa, negotiating within the format of the regional group at the United Nations (the African Group), played a significant role to shape the treaty, particularly in applying unorthodox pressure to bring the negotiations to a close. At the further suspension of the resumed IGC-5, the insistence of the African Group to have the principle of the Common Heritage of [Hu]mankind (CHH), reflected in the BBNJ Treaty without derogation, and the compromised reference to the ‘freedom of marine scientific research, together with other freedoms of the high seas’ will significantly impact the implementation of the treaty and international law development on the law of the sea. 

Background

The IGC is convened under the auspices of the UN, by the UN General Assembly resolution 72/249 of 24 December 2017, to consider the recommendations of the Preparatory Committee established by resolution 69/292 of 19 June 2015, to elaborate the text of a binding BBNJ Treaty. The discussions on the BBNJ Treaty started in 2004, “attracting international attention, as scientific information, albeit insufficient, reveals the richness and vulnerability of such biodiversity, particularly around seamounts, hydrothermal vents, sponges, and cold-water corals, while concerns grow about the increasing anthropogenic pressures posed by existing and emerging activities, such as fishing, mining, marine pollution, and bioprospecting in the deep sea” [3]

The UNCLOS, which is referred to as the constitution for the oceans, sets forth the rights and obligations of States regarding the use of the oceans, their resources, and the protection of the marine and coastal environment. Intriguingly the Convention does not refer expressly to marine biodiversity. However, the view prevails that the Convention is taken as the legal framework that governs all activities in the ocean. Therefore, in concluding an implementing agreement thereto, one of the key objectives was to respect the balance of rights, obligations and interests set out in the Convention. Substantively, there was the recognition of the need to address, in a coherent and cooperative manner, biodiversity loss and degradation of ocean ecosystems.

At the core of the elaboration of the BBNJ Treaty were the two objectives of conservation and sustainable use. This is the path that was chosen to address, on an urgent basis, a commitment made by governments in the Rio+20 Summit in June 2012, and the legally binding instrument is meant to fill a legal gap for the conservation of marine biological diversity of areas beyond national jurisdiction (ABNJ). It will be the third implementing agreement to the UNCLOS. The urgency and need to conclude the BBNJ Treaty were recently outlined in the Global Assessment Report on Biodiversity and Ecosystem Services by the Intergovernmental Science-Policy Platform (on Biodiversity and Ecosystem Services), which reported that over 1 million species, including 33% of reef-forming corals and one third of marine mammals, are predicted to disappear entirely over our lifetimes [4].  This informed the robust conservation objective. 

Beyond conservation, there was an attendant strong economic dimension to the negotiations which hinged on the principles that should govern the activities in relation to access and utilization of Marine Genetic Resources (MGRs) of the ABNJ. This was framed as the “Freedom of the High Seas” (FHS) versus the “principle of the Common Heritage of [Hu]mankind” contention, one area in which there were major differences between the developed and developing States. How to address sustainable use also had a major influence on the types of area-based management tools to be established, and measures to be adopted including marine protected areas (MPAs). For developing States, in particular for the African Group, access to ocean resources remained important to fight hunger, poverty and contribute to the realisation of a just and equitable international economic order, which takes into account the interests and needs of humankind as a whole and, in particular, the special interests and needs of developing States, whether coastal or landlocked. 

Concretely, the thrust of the negotiations in addition to conservation was about fairness, equity, and access to the MGRs and digital sequence information (DSI). The small number of developed States that have the capability to undertake activities in the high seas, marine scientific research, bioprospecting, but also  fishing, over-fishing, illegal, under-reported unregulated fishing, and marine pollution have left the ocean in a dire state, with the marine biodiversity crisis, but wanted the global community, including the global South, to undertake or establish conservation measures, possibly foreclosing developing States’ engagement in similar activities in the high seas, without sharing benefits, including monetary benefits in a fair and equitable way. Developed States, whether it was a matter of strategy, were not ready to further commit at an early stage to a mechanism for predictable, adequate, and sustainable finance to implement the instrument, and further agree to meaningful capacity development and transfer of technology obligations. With no commitment to share monetary benefits and finance the implementation of the treaty, the African Group at a point in time was of the view that developed States wanted to conclude a BBNJ Treaty that could possibly give a fiat to the status quo, foreclosing developing States from possible exploitation of the high seas and no meaningful benefit-sharing, capacity-building, and transfer of marine technology. 

The African Group Priorities 

By the fourth session of the BBNJ IGC, and before going into the fifth session, the African Group had developed and identified a set of overarching priorities [5],  whilst expressing commitment to conclude an effective, future proofed and implementable BBNJ Treaty that will achieve its conservation and sustainable use objectives. Fundamentally, the African Group expressed that it remained “Conscious of the importance of securing the sustainability of the oceans for present and future, generations, consistent with agenda 2030, in particular goal 14”. It stressed “the importance of preserving and ensuring equitable distribution of the benefits of the exploitation of the ABNJ while ensuring its sustainability”. The group therefore expressed “concern at the unsustainable patterns of consumption and exploitation of the ocean particularly in the ABNJ”, and “the inequitable distribution of the benefit arising from access and exploitation of resources from the high seas”.

The African Group therefore underscored its commitment “to ensuring environmentally sound management of biodiversity of the ABNJ based on scientific knowledge, including the adoption of measures for the conservation of biodiversity”. The CHH principle is and should form the basis of the governance of ABNJ, fully recognizing its five elements. These are non-appropriation, common management, sharing of benefits, peaceful use, and preservation for future generations. The group therefore believed in fair and equitable sharing of benefits, particularly to achieve the objectives of the BBNJ Treaty. The African Group expressed its willingness to welcome meaningful engagement on capacity building and the transfer of marine technology and urged for the adoption of a strong institutional framework to achieve the goals of conservation as well as sustainable and equitable use of marine biodiversity in the ABNJ. 

In addition, the African Group adopted approaches to the negotiations that guided the group’s positions. For instance, to address the issue of fragmentation in the network of measures in the high seas, the African Group called for a global governing approach for the treaty. There was merit in advancing the argument for a fair and equitable sharing of benefits, and to establish an access and benefit sharing mechanism in the part of the treaty dealing with MGRs. The African Group urged for the adoption of the strictest standards and higher thresholds in conducting environmental impact assessments (EIAs) to ensure environmentally sound management of biodiversity in the ABNJ. While the African Group was receptive to emphasising a State-led process for EIAs, it was mindful of the need not to increase burden on developing States. Throughout the negotiations, the African Group was guided by the principle of good faith, advancing reasonable positions, and seeking to be responsive to the views and concerns of other groups and delegations but staying true to the objective of a future-proofed, fair, equitable, implementable, and universal treaty.

The Fifth Session and the Foundation for Concluding the BBNJ Treaty

The fifth session of the IGC was an additional meeting, since the UN General Assembly resolution 72/249 had only mandated four sessions. After a two-year delay due to the COVID-19 pandemic, the fourth session of the IGC was finally convened in March 2022. However, delegates were unable to reach agreement and a fifth session was requested. As the fifth session was convened, it became apparent that there was a need to focus on the major points of draft treaty text, but time was spent rehashing old positions. When eventually delegates started to tackle the major issues, time became a factor. Progress was made on all the elements of the 2011 package [6], and headway was made on cross-cutting issues and institutional arrangements. Optimism was expressed that resuming the fifth session for a second round of talks may get delegates “over the finish line.”

Since there was a strong view that the conclusion of the BBNJ Treaty depended on an agreement in relation to MGRs, particularly monetary benefit sharing, it is instructive to outline the contentious aspects going into and at the end of the fifth session of the conference.  Although delegates made progress on provisions regarding application, and activities related to MGRs, including their notification, there was a concern from the African Group on the exclusion of access to existing samples and DSI, if the BBNJ Treaty were only to affect samples, the collection of samples and genetic or DSI after the BBNJ Treaty enters into force. Further, diverging views persisted on monetary benefit-sharing and the need for a provision on intellectual property rights. The African Group, the driving force to ensure fair and equitable benefit sharing (both monetary and non-monetary), submitted proposals in that regard at the end of the third session of the conference, which were resubmitted in the fourth session. The proposals were the major driving force behind the Group of 77 and China (G77 and China) regional and sub-groups, including the African Group, Caribbean Community (CARICOM), Core Latin American Group (CLAM) and Pacific Small Islands Developing States (PSIDS) (SuperPACC) joint submission to contend with the proposals from the European Union and United Kingdom on benefit-sharing, which only went far enough to postpone consideration of monetary benefit-sharing to the future. 

The President of the IGC during the fifth session circulated a revised draft text that contained two main options for the consideration of delegates. The first option referred to non-monetary benefits arising from the collection in situ of MGRs of ABNJ, a so called “enabling clause” for the sharing of monetary benefit to the effect that the Conference of the Parties (COP) “shall assess and review, at regular intervals, the issue of commercialization of products based on the utilization of marine genetic resources of areas beyond national jurisdiction. If tangible and substantial monetary benefits arise therefrom, the Conference of the Parties will explore alternatives to identify the most appropriate processes for relevant financial contributions”. This was followed by a weak transparency system instead of a robust monitoring and review mandate for the proposed access and benefit sharing committee (ABSC). 

The second model encompassed both monetary and non-monetary benefits arising from the collection in situ of MGRs of ABNJ, access and notification of access in situ, ex situ, including as DSI, and notification for the utilisation of such resources including monetary profits on commercialisation (retail sale of product), with a cascading initial rate of payment. The second model included a track and trace system that was later changed to traceability and monitoring and review system through the ABSC. The second model submitted by the SuperPACC already included concession with a change from a strict permit or license system to a notification system, and concessions were also made from a heavy track and trace to traceability, including by the African Group to accommodate views by developed States. 

The views of delegations on the two options diverged along developing and developed States perspectives. The African Group, however, underlined the importance of having a provision on the obligation to share monetary benefits in the treaty and through the financial mechanism, with the modalities to be determined by the COP, underscoring that in addition to marine scientific research, bioprospecting activities towards the commercialisation of MGRs of ABNJ must be covered to future-proof the agreement. Going into the resumed fifth session of the IGC, the key issues to resolve included how to address monetary benefit sharing including commercialisation, traceability with use of identifiers, and the treatment of DSI. The view certainly was that if these issues were resolved then the whole BBNJ treaty would be agreed as part of a domino effect. 

The pathway for the African Group to reach agreement on MGRs following the 15th Conference of Parties of the Convention on Biological Diversity [7] was as follows: first, the group was unwilling to accept any separate treatment of MGRs and DSI. For consistency in the use of terms, it urged that the BBNJ adopts the reference to MGRs and DSI as in the CBD Kunming-Montreal Global Biodiversity Framework, i.e., “[marine] genetic resources, and digital sequence information on [marine] genetic resources”. Developed States, particularly the leading State with activities in relation to MGRs of ABNJ wanted to separate the treatment of MGRs (the “wet stuff” as it was described), from that of DSI (the “dry stuff”). The African Group was resolute not to allow the BBNJ Treaty to establish a precedent which might impact negotiations within specialised fields on genetic resources and benefit sharing. The group only conceded to the modalities for monetary benefit-sharing being addressed separately, considering the work to be undertaken in the CBD context. 

As a pathway forward, the African Group was prepared to accept the upfront payment proposed by the developed States Likeminded Group to allow for immediate financing for capacity building upon entry into force of the BBNJ Treaty.  The African Group was of the view that this was not monetary benefit-sharing, but rather a source of financing built on a decoupled approach to access to MGRs and benefit sharing. The African Group, however, insisted on ensuring that the obligation to share monetary benefits, including commercialisation, was expressly provided for in the treaty, with some of the modalities outlined, with a review clause, in place of the “enabling clause” which had been proposed by the Likeminded Group of developed States. To ensure monetary benefits could be fairly and equitably shared, a system of traceability was needed. The African Group saw as a path forward, a unique/standardized identifier for traceability, and a provision for the ABSC to play a significant role in monitoring and transparency of the system. 

At the conclusion of the first part of the IGC-5, it was clear that the African Group, working with other groups within the broader Group of 77 and China, had greatly influenced the main provisions of the BBNJ Treaty. Through its participation in the streamlining group, the African Group assisted on bringing clarity and coherence to that part of the instrument that will lead to the establishment of measures, including MPAs for conservation, leaving the big substantive issues like decision-making to be further addressed in the resumed fifth session. On EIAs, the African Group moved from its initial State-centric approach to support the CARICOM and PSIDS proposals on an internationalised approach to EIAs for planned activities in ABNJ, which morphed to a tiered-approach and finally a call-in mechanism to allow for some international scrutiny of State-led EIA processes. On capacity-building and transfer of marine technology (CB & TT), there was strong leadership from the G77 and China, and the African Group provided the necessary support for the consolidation of the broader group’s positions. 

On cross-cutting issues, the African Group adopted principled positions which became fundamental to concluding the BBNJ treaty. On the provision dealing with principles and approaches, the African Group led the global South in ensuring that the CHH principle was included without any amendment or limitation in scope in the substantive part of the treaty. On the contentious issue of including the Freedom of the High Seas in the BBNJ Treaty, the African Group was strongly opposed to the inclusion of this even in the preamble, since such an inclusion was deemed to be incongruent with the objective of the BBNJ treaty. To reach an agreement, a proposal to have both the principle of CHH and FHS on equal footing in the preamble and substantive part of the treaty, although accepted to most delegations and sub-groups, was unacceptable to the African Group.  

The African Group did not view as reassuring the reference to UN General Assembly resolution 2749 (XXV) of 1870, the “Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction” given the possible limited interpretation that may be applied to the solemn declaration that the “sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the area), as well as the resources of the area, are the common heritage of mankind” [8]  The limitations may relate to the reference to a specific geographical scope as well as the material scope. To the African Group, since ABNJ covered both the seabed outside national jurisdiction, referred to as the “Area” and the adjacent water column of the high seas, and given the limited nature of the freedoms of the high seas as set out in the UNCLOS, any reference to the two principles on equal footing was unacceptable, and in essence a redline for which the group was prepared to walk away without a deal. 

To counter the unacceptable proposals, the African Group proceeded to state its final position by building on existing proposals, in which there will be the inclusion of the principle of CHH, and then a reference to the freedoms, rights and duties as set out in Part VII of the Convention. This was to ensure that there is full reference to the principle of CHH and a limited reference to matters relating to FHS. As a compromise, the African Group having driven the process to a consequential point, was flexible to accept a compromised proposal inspired by a delegate from CARICOM to have in the substantive provisions “the principle of the common heritage of humankind which is set out in the Convention” and “the freedom of marine scientific research, together with other freedoms of the high seas”. The language ensured that the CHH principle was not limited but rather explicit reference was made to it. On the other hand, the limitations with respect to the FHS were reinforced with reference to the freedom of marine scientific research, which is limited already in the Convention but supportive of the objectives of the BBNJ Treaty, highlighted together with the other freedoms of the high seas. 

Conclusion

The African Group may be considered as a major driving force behind the conclusion of the BBNJ Treaty with priorities of the developing States reflected in the Treaty, including on the principle of the CHH and on MGRs and DSI of ABNJ. The group was strong-willed in ensuring the instrument meets its intended objectives of conservation and sustainable use, limits potential loopholes, and is equitable, fair, universal, implementable, and future-proofed. A balance had to be struck, and the COP has been given several mandates to undertake relevant work to operationalise many of the provisions in the agreement. There must be a concerted effort to ensure regional balance in the signing of the agreement and the regional representation in the first COP to safeguard the balance struck in the BBNJ Treaty, and for greater legitimacy in its implementation.  It is the belief of the negotiators of the African Group that the foundation has been laid for fairer treaty-making at the international level with equity, fairness, universality and consequently legitimacy at the core. The BBNJ Treaty should not be unique in this regard, but rather ought to be representative of the future of international law making. 

Dr Michael Imran Kanu [1], SJD is Ambassador and Deputy Permanent Representative (Legal Affairs) of Sierra Leone to the United Nations in New York. He is Coordinator (Lead Negotiator) of the African Group on BBNJ and the Lead of the African Group on Part II dealing with Marine Genetic Resources.

[1]  The author expresses gratitude to the previous Coordinators of the African Group, Advocate Thembile Joyini (South Africa), who was also the lead for cross-cutting issues and Mr. Mehdi Ramaoun (Algeria); and the Leads Ms. Aahde Lahmiri (Morocco), Ms. Marie-May Jeremie (Seychelles), Ms. Tamara Thomas (Seychelles), Ms. Vreeshini Raojee (Mauritius) Dr. Mamadou Diallo (Senegal) Ambassador James Waweru (Kenya); and Advisors Prof. Babjide Alo (Nigeria) Dr. Jean Kenfack (Cameroon) and Ms. Sheena Talma (Seychelles).  
[2]  The agreed “package” of issues to be addressed as a whole in this process, namely: marine genetic resources (MGRs), including questions on benefit-sharing; area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessments (EIAs); and capacity building and the transfer of marine technology (CB&TT).
[3]  See the Summary report, 20 February – 4 March 2023, Resumed 5th Session of the Intergovernmental Conference (IGC) on BBNJ (Earth Negotiations Bulletin of the International Institute for Sustainable Development) https://enb.iisd.org/marine-biodiversity-beyond-national-jurisdiction-bbnj-igc5-resumed-summary accessed 11 March 2023. 
[4]  See IPBES (2019): Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. E. S. Brondizio, J. Settele, S. Díaz, and H. T. Ngo (editors). IPBES secretariat, Bonn, Germany. 1148 pages. https://doi.org/10.5281/zenodo.3831673 
[5]   Statement by the Republic of Sierra Leone on behalf of the African Group delivered by H.E. Mr. Alhaji Fanday Turay, Permanent Representative , at the Fourth Session of the Intergovernmental Conference on an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction under agenda item 5: General exchange of views   New York, 18th March 2022, https://www.un.org/bbnj/sites/www.un.org.bbnj/files/sierra_leone_statement_on_behalf_of_the_au_at_the_fourth_session_of_the_international_legally_binding_instrument_under_the_un_convention_on_the_law_of_the_sea_-_18_march_2022.pdf
[6]  See footnote 2 above.
[7]  For a discussion of this Conference of the Parties (COP15) on this blog see here and here.
[8]  UN General Assembly resolution 2749 (XXV) of 1870.