Policy Positions #8: Africa, the Champion of the Common Heritage of Humankind

A “new” global ocean agreement can change not only the fate of international environmental efforts, but also the Global South’s if Africa continues to lead a principled fight for equity and justice.

By Jeremy Raguain

Pollution, climate change, unsustainable fishing and increasingly more commercial activities like deep seabed mining, are placing our ocean and its ecosystems under unprecedented pressure. A quick Google search will show plastic killing marine wildlife, rising ocean temperatures and pH levels bleaching and dissolving coral reefs. Species of fish, marine mammals and reptiles as well as seabirds have been driven to extinction due to human greed and callousness. As a Seychellois, an African islander who has worked on remote protected areas with my community and at the global level (to understand and protect our ocean for its own sake as well as our own) I know what actions we take now will make the greatest difference for how current and future generations live.

Over two-thirds of our waning global ocean is international waters. This part of the ocean starts at two hundred nautical miles from a country’s shoreline. This no person’s water, existing largely outside the reach of the law, is also known as the high seas or Areas Beyond National Jurisdiction (ABNJ). The ABNJ accounts for over 40% of the Earth’s surface and belongs to no state, while also belonging to all humans through the principle of the Common Heritage of [Hu]Mankind (CHH) as set out in Article 136 of the United Nations Convention on the Law of the Sea (UNCLOS). While the ABNJ is a global commons, only a few, predominantly Global North, states navigate and exploit its waters and are thus primarily responsible for the deplorable state of affairs. Yet, as I often notice, these powerful states rarely admit fault.

A NEW HOPE FOR OUR OCEAN

However, the agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of ABNJ, also known as the Biodiversity Beyond National Jurisdiction (BBNJ Agreement hereafter) presents an opportunity to not only change our ocean’s depressing trajectory but also Africa’s destiny. The BBNJ Agreement is UNCLOS's third implementing agreement and the first to address the ABNJ’s biodiversity crisis. While UNCLOS, known as the ocean’s constitution, provides an international framework for state rights and responsibilities vis a vis the ocean, including the conservation, management and protection of marine resources, it has largely only benefited the interests of a minority of States, largely Global North, while leaving the ABNJ’s biodiversity vulnerable to unsustainable practices.

Accordingly, over two decades, states and NGOs have been negotiating the BBNJ Agreement with two explicit purposes in mind: 1) conservation and 2) sustainable use of biological resources in the ABNJ. The challenging process of bringing 193 States to an agreement was not only complicated by the need to ensure the Agreement did not undermine existing regimes such as the “1994 Agreement” which deals with deep seabed mining or and the UN Fish Stocks Agreement, but was also disrupted by the COVID-19 pandemic. These issues, along with Russia’s invasion of Ukraine and China/US rivalry made it more impressive that on March 4, 2023 at the Resumed Fifth Intergovernmental Conference (IGC) following 36 hours of unrelenting negotiations, an agreement on the text was finally made. I can attest as one of the exhausted negotiators supporting the Seychelles delegation, Africa Group and Alliance of Small Island States (AOSIS) that reaching an agreement (after two weeks of late nights and three days of almost no sleep) that this was a historic moment. Several months later the United Nations General Assembly adopted the agreement's final text by consensus on 19 June 2023.

(Source: Photo by IISD/ENB | Mike Muzurakis)

As of August 2024, 91 States have signed the BBNJ Agreement and eight have ratified. 60 States must ratify the agreeemnt for it to enter into force however, Multilateral Environmental Agreements (MEAs) on average take four and half years to enter into force, with ocean-focused MEAs taking over seven years on average. Among the first to ratify are two African Small Island Developing States (SIDS), Seychelles and Mauritius who played decisive roles throughout negotiations. These African SIDS and Big Ocean States (BOS), with ocean territory hundreds of times the size of their landmasses, are not only dependent on a healthy ocean for their sustainable development and border the ABNJ, but also have advanced expertise in Marine Spatial Planning and together administer the world’s largest jointly managed maritime zone. Such states are a part of Africa’s diverse family of nations, which include Least Developed Countries (LDC), Landlocked Developing Countries (LLDC) and Middle-Income Countries (MIC). Such diversity may at times complicate the Africa Group’s position but also strengthens its capacity to represent and lead the Global South as well as fight for an agreement that is as ambitious as it is inclusive.

The BBNJ Agreement and negotiations are divided into five thematic areas: Cross-Cutting Issues (CCI) and institutional arrangements, Marine Genetic Resources (MGR) including the Fair and Equitable Sharing of Benefits, Measures such as Area-Based Management Tools (ABMTs) including Marine Protected Areas (MPAs), Environmental Impact Assessment (EIA) and Capacity Building and Transfer of Marine Technology (CBTMT). The CCI and institutional arrangements establish the agreement's general procedures and structures, such as what principles apply, voting thresholds, the responsibilities of subsidiary bodies, the composition of committees and the decisions its Conference of the Parties (COP) will take among many other important items. The other four areas focus on how the agreement’s aims of conservation and sustainable use will be implemented. The ABMT component enables states who ratify the agreement to create MPAs in the ABNJ and cooperate in their management. The MGR component, arguably the agreement's most controversial and divisive, sets out how potential monetary and non-monetary benefits derived from pharmaceuticals and other products generated from scientific discoveries are shared among parties to the Agreement. Lastly, the CBTMT component empowers the effective participation by all parties to the agreement, by training individuals to conduct technical and scientific work on the ABNJ and providing access to marine equipment and technology. The African Group, actively negotiated across all these areas and on many occasions, but especially within the MGR arena, protected its interests and held ground for the Global South against some of the world’s powerful states and interests. But what is Africa’s posture, major interests and concerns?

AFRICA'S POSITION AND PRIORITIES WITHIN THE BBNJ AGREEMENT

Although Africa is a continent of 38 coastal states, including seven island nations, individual countries ability to manage their ocean territory, let alone what lies beyond it, is limited by a lack of technical and financial resources that must vie with many other competing priorities. For instance, Seychelles’s situation is one in which the country has an ocean territory the size of South Africa and have designated about a third of it, an area equivalent to the size of Germany as protected. As a country of just over 100,000 people, Seychelles lacks the resources to prevent illegal activities that include fishing and drug trade. Although other African states may not have the same structural issues, the question of how can we help better govern the ABNJ when our own waters need help arises. Moreover, Africa’s access and capability to benefit from the ABNJ is constrained by external powers, who control most of the world’s technical and scientific capacities and are primarily interested in geopolitical gain or increasing shareholder value.

While the African Union (AU) estimates that the continent’s Blue Economy generated almost US$300 billion and accounted for forty-nine million jobs in 2018, Africans are marginalized from ocean-based activities and impacted by the ongoing environmental degradation, while being particularly vulnerable to climate change’s effects which the ocean currently mitigates. Add to this Africa’s complex history with the ocean—tarnished by the legacies of slavery and colonialism—and a subject worth deeper introspection than this piece can provide. Nevertheless, understanding Africa’s substantial role within the BBNJ Agreement’s past and future negotiations is crucial to understanding how much the BBNJ Agreement will be able to achieve its goals. With over a quarter of the UN Membership and a growing population, set to surpass four billion by 2100, Africa can be a rousing blue giant. If it continues to be strategic and principled in MEA such as the BBNJ Agreement, the continent will not only contribute to the protection and restoration of our ocean but also lead the Global South in breaking neo-colonial dependencies for a more equal world that benefits from an increasingly productive and resilient ocean. But how exactly can Africa achieve this? And why would Africans, who barely access the ANBJ, want to risk their limited resources to yet another MEA as Global North states fail to meet their existing promises?

The answers to these questions can be found in lessons learned from past negotiations and in the enduring merits of the Africa Group’s approach to negotiating the BBNJ Agreement. Ultimately, the time between now and its first formal COP is a critical window of opportunity for strategic decision-making. 1) Africa should continue to champion the CHH principle, keeping it central to its approach to negotiations 2) To succeed, Africa should leverage its diversity and the expertise of all its states, as well as empower the voices of its most ocean-focused states 3) Working closely with state and non-state partners, Africa can leverage this period to secure resources to build national capacity to effectively manage its waters and contribute to an agreement that is future-proof, fair, equitable, implementable and universal.

Policy recommendations

At this critical juncture, as states ratify the agreement and have recently agreed on the organization of the BBNJ Agreement’s Preparatory Commission for entry into force, whereby decisions with far-reaching ramifications will be made, the Africa Group as well as its state and NGO allies who seek a meaningful agreement can consider the following policy recommendations:

1) Africa should continue to champion the CHH principle, keeping it central to its approach to future negotiations. Past experiences, well demonstrated throughout the IGCs prove that this approach can be effective in delivering the African Group’s goals. However, for this approach to pay dividends it can not be abandoned and should be rather invested in for the long haul. As a continent that encompasses LDCs, LLDC, MICs, High-Income Countries and SIDS, the African Group weighs the interests, redlines and hopes of a representative sample of not only the Global South but also an often trampled voice of the world’s most vulnerable and marginalized, whether they are Global North or South citizens. Consequently, Africa not only has a structural claim to be the Champion of the CHH but as discussed above has fought for this mantle. It's the privilege and responsibility of those who support and lead the Africa Group to ensure that knowledge of how and why this principle was championed wis exchanged and that human capital that understands this approach is retained and grown so that this latest UNCLOS implementing agreement helps Africa and the world equitably conserve and sustainably benefit from the ABNJ.

2) To succeed, Africa should leverage the diversity and expertise of all its states as well as empower the voices of its most ocean-focused states. To be an effective and impactful CHH Champion the continent must leverage its structural gifts. Making up 28% of the UN members, Africa has the largest share of UN membership. With a unified mandate coordinated through the AU and excellent leadership by the African Group’s lead negotiators, Africa was able to strategically use its weight. The Group not only influenced G77+China’s calculus but also had the ears of the U.S.A. and other powerful states through the final IGCs. This influence is not unique to this MEA and neither is the fact that Africa is made up of varying states at different stages of development and possessing various special circumstances, like SIDS and LDCs, which inform its approach. However, what is distinct for the BBNJ Agreement, is that the Africa Group can rely on states that overwhelmingly depend on a healthy ocean. SIDS like Seychelles and Mauritius provides experts in EIA and ABMTs as well as scientific understanding in debating technical aspects of how the equitable sharing of the benefits of MGRs can take place. As AOSIS was only given a mandate to negotiate as a group on CBTMT and the special circumstances of SIDS, African SIDS joined the African Group, strengthening its capacity with marine expertise and creating a bridge between AOSIS and the group. Effective coordination of decisions between Africa and other groups at the Preparatory Commission meetings and voting at the first COP which sets the BBNJ Agreement’s implementation trajectory will be a hard task. But past successes show it's a worthwhile pursuit. Ultimately, having active BOS like Seychelles and Mauritius, in the Africa Group strengthens the group’s collective understanding and legitimacy to be the CHH Champion. By empowering SIDS to leverage their ocean connection, as well as ensuring that other categories of States have their interests understood and protected, the African Group can hold a perspective that usually only the G77+China has. However, in being unified, the African Group avoids the risks of States breaking ranks as it happens within the G77+China and can remain principled to be a North Star for the Global South.

3) Working closely with state and non-state partners, Africa can leverage this ratification period to secure resources to build national capacity to effectively manage its waters and contribute to an agreement that is future-proof, fair, equitable, implementable, and universal. While I admit some potential for bias in this post, Seychelles and Mauritius have shown ocean leadership in ratifying the BBNJ Agreement less than a year after it was adopted. In the coming months, other African states will join the Agreement until the threshold of sixty states is reached. It's uncertain when the 60th ratification will happen. It's also unclear how many Global North states will be among the first 60. However, these two uncertainties will determine the BBNJ’s potential to fulfill its purpose. With these uncertainties, African states must ensure that their legislatures, ABNJ stakeholders, and leaders understand the risks, costs, and benefits of joining the BBNJ Agreement and in doing so communicate clearly to partners their needs so that they can be adequately assisted. NGOs are particularly enthusiastic to see states run a race to ratification. However, with competing interests and scarce resources, African decision-makers and negotiators must secure technical, financial, and legal support that aids the continent's ability to meet the agreement's obligations and build its capacity so it is not dependent on external powers. The road to a future-proof, fair, equitable, implementable, and universal agreement is one better walked than run and as we know to go far its best to run together than alone. I believe that Africa and other Global South states should not be rushed into ratification and must protect their sovereignty so that progress on conservation and sustainable use is matched so that the agreement fulfills its aims. African states should only ratify when they have had the opportunity to assimilate the agreemeent's implications. The Africa Group can coordinate to ensure that this marathon of a process does not leave the weakest behind and that all states that seek to ratify have the necessary resources to effectively implement.

CONCLUSION

In this desk post, I offer African decision-makers and concerned citizens some of my views on the latest MEA, the position of the Africa Group and my suggestions as how to continue moving forward. Ultimately, our ocean’s health is central to hundreds of millions lives and livelihoods. I believe that if the story of humanity’s relationship with the ocean does not change for the better, this entity that regulates the climate will crash. It has the potential to trigger a cascade of tipping points that may accelerate the climate and ecological crisis and cause irrevocable loss and damage. The BBNJ Agreement is imbued with many of the properties essential to rewriting our ocean tragedy so that its ending is not apocalyptic. The CHH principle is a keystone but only if it helps BBNJ Agreement parties navigate the uncharted waters of an MEA that in several decades could mirror the scale of the climate treaties, but hopefully deliver more. I hope that this posts encourages more Africans with ocean interests and expertise to further understand and participate in the BBNJ Agreement process be it through the national, regional or international initiatives that are starting to take place. Ultimately, this desk post’s summary and recommendations are only a start to a much larger conversation that we must have as Africans engaged with the world’s future.

Declaration of Competing Interest - The author is a negotiator for the Seychelles delegation, serving both the AOSIS and Africa Group in the BBNJ Agreement negotiations. The author has written this piece in his personal capacity and the views expressed may not necessarily reflect the views of Seychelles, AOSIS or the Africa Group.

Jeremy Raguain holds a Masters of Public Administration in Environmental Science and Policy from Columbia University and a Bachelor of Social Science in Enviornmental Georgraphical Science and International Relations from the University of Cape Town.

Editor: Temi Ibirogba

This article is part of The Africa Center’s Policy Positions series, the recurring publications will offer thoughtful engagement with contemporary policy and governance issues related to the African continent. Policy Positions are submitted by members of The Africa Center’s community of thought leaders from across Africa and the African Diaspora. Follow @theafricacenter on Twitter, Instagram and LinkedIn to stay informed of new posts, and reach out to the editor to submit an idea for consideration.