Transcript

ACKNOWLEDGEMENT OF COUNTRY

Intro music- WAVES MUSIC  

Janine Felson:

The BBNJ Agreement is a groundbreaking agreement for ocean governance. […] This isn’t just about States. This is about all of us.

Adam McCarthy:

As a co-chair, I would just ask everyone to bear in mind also that if we don’t conclude our business successfully, no-one gets anything.

JENNIFER:

Hello and welcome back to NEGOTIATING THE OCEAN – a podcast about Ocean Equity from the Australian National Centre for Ocean Resources and Security – ANCORS.  I’m Jennifer Macey.

Ina:

And I am Ina Tessnow-von Wysocki – your co-host for the Ocean Biodiversity Episodes.

MUSIC FADE OUT

Ina:

After nearly 2 decades of negotiations – a new High Seas Treaty was finalised in 2023.

“Ladies and Gentlemen. The ship has reached the shore.” (Applause)

Today we’ll dive into this new ocean agreement which deals with Biodiversity in international waters…..those parts of the ocean which no one State has jurisdiction over but where international cooperation is needed! These international waters cover two-thirds of the surface and nearly 95 percent of the volume of the entire ocean!

JENNIFER:

So, that sounds pretty significant. And this new agreement governs the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction – so what we refer to by the acronym BBNJ.

Ina: Yes. So, this agreement will protect marine life in the high seas. And it ensures that before activities can take place in international waters, potentially harmful impacts are assessed. But this agreement also makes sure that benefits from marine genetic resources are shared fairly and equitably. And this means, that not only the wealthy countries who have the means to conduct research in the deep sea and develop products (like cosmetics or vaccines for example) will profit, but everyone will benefit! It will also strengthen ocean science around the globe and support developing States through Capacity Building and the Transfer of Marine Technology.

Montage 1 (NEWS)

After decades of discussions it took one more marathon negotiation – 36 hours! – for that ship to come in.

And emotional moment, as the United Nations Treaty to protect the High Seas is finally agreed.

The landmark deal aims to conserve marine life and biodiversity in international waters

To protect global ocean health and the socio-economic wellbeing and food security of billions of people.

JENNIFER:

So, Ina, the United Nations has agreed to this new Ocean treaty – what happens now?

Ina:

So everyone’s heard of the Climate COPS or Conference of the Parties that happen every year. It’s similar for this new Ocean Treaty: Once it enters into force, there will be regular COPs – but until then, countries gather for what’s called the Prep Coms or Preparatory Commission meetings. And we’re really lucky to have the two co-chairs of the BBNJ Prep Coms on today’s episode. Ambassador Janine Felson from Belize and Adam McCarthy from Australia.

Adam McCarthy:

Thank you very much for this opportunity. Ina. My name is Adam McCarthy. I’m the Chief Counsel and first assistant secretary legal division of the Department of Foreign Affairs and Trade, and I’m also co-chair of the BBNJ Preparatory Commission.

Janine Felson:

My name is Janine Felson. I’m an Ambassador from Belize. I’ve been engaged in the BBNJ negotiations and now the PrepCom for the full length of time, 20 years plus, I am now the co-chair of the Preparatory Commission for the entry into force of the BBNJ agreement.

Ina:

Welcome! Thank you very much. Can you share with our audience why this new treaty on marine biodiversity is so important?

Adam McCarthy:

Well, I think for a number of reasons. This will be the first regime that tries, in a very comprehensive way, to set ground rules for really one half of the world’s surface and two thirds of the oceans.

Janine Felson:

The BBNJ Agreement is a groundbreaking agreement for ocean governance, as your audience may know, the areas beyond national jurisdiction cover a significant part of our planet. It’s about two thirds of the entire ocean. The ocean itself is the life support system for our planet, and beyond that…it is the source of food. It is the source of life. It is the source of the oxygen we breathe. It is the way in which we transport cargo or shipment of trade. It’s how we communicate with each other. It is a significant and fundamental part of what it is to be a human being on planet Earth. And so it is incredibly important that we protect and conserve, as well as sustainably use this ocean and resources within it. But we know that it’s in a dire state. So, this agreement is timely. It is going to be critical to how we achieve all the very lofty goals we’ve set for our countries, with the 2030 agenda, with SDG 14, with climate change, there’s just so much that that will be necessary for this agreement to work to serve all of these great ambitions that we have. So, it’s, it’s relevant. It is, it is in our self-interest that the BBNJ agreement exists and that it comes into force soon.

Ina:

And what would you say, how can the new BBNJ agreement make a difference? And maybe also elaborate, for whom will it make a difference?

Janine Felson:

Well, that’s a very important question, because I’m from a developing country, so immediately I think it’ll make a difference for developing countries, because developing countries do not themselves have as much access to.. or have not been the first movers in in areas beyond national jurisdiction. But in fact, that’s only from a State perspective. There are so many other users of the resources, whether they’re the actual wet resources, or they’re the information that we can generate through access in resources out of the areas beyond national jurisdiction. So, it goes right down to the individual. So, scientists will be able to use that information and using that can then that generates even more benefits to a much wider community, and that’s just focusing now on marine genetic resources. But there are, of course, the instruments or the tools to protect and conserve sensitive ecosystems. Maybe we’re even dealing with species that then becomes another benefit that drives better ecosystem services for the planet. It could be something that contributes to better sources of food, or generally just ensuring that this system, the ocean, will continue to be able to offer those services for planetary sustainability that we have come to take for granted.

Adam McCarthy:

Obviously, I’d like to say it makes a difference for everyone in the world in one form or another. There’s no one whose life is not in some way tied to the high seas, from people in Alice Springs, which is in the middle of Australia, and is a long way from the oceans through people, and I think the furthest you can get from the High Seas is up in the Himalayas. But in any case, it doesn’t matter, everyone is affected. How can it make a difference? Well, there is nothing that stops what happens on the high seas from not flowing into national jurisdiction. One, there’s a high seas in and of themselves. But if you look at Australia, you know it’s not like – which we have a very large percentage of our EEZs abuts directly onto the high seas – it’s not like there is a magical sign out there that says that 200 nautical miles, whatever’s happening in the high seas, please stop, because you’re now entering Australian jurisdiction. I think there’s another point too, which is that it’s been a challenging time for multilateralism. I think everyone can acknowledge that. This is a very significant regime. It’s important to show that the international system can deliver.

Ina:

And how does the new ocean treaty deal with ocean equity and how could this treaty advance ocean equity?

Janine Felson:

So, this is one of the most innovative part of the BBNJ agreement. Equity was at the heart of the agreement, one of the rationale for BBNJ, and there are several aspects to it. First of all, of course, there are resources that, because they derive from areas beyond national jurisdiction, not many countries have been able to access it, many countries and in fact, the United Nations Convention on the Law of the Sea has designated resources beyond national jurisdiction as common heritage of mankind, and to ensure that those resources are equitably shared, the BBNJ has a fundamental component, which is part two, a component that I happen to facilitate on the access and benefit sharing of marine genetic resources. That’s one component. The second really critical component that ensures equity is the capacity building and transfer of marine technology. And that part, of course, goes hand in hand with all the other parts of the agreement. And this is very important, because it does focus on the beneficiaries, and ensuring that the beneficiaries have the agency to get the type of support that’s needed for implementation. And actually, that goes to the whole concept of ensuring that there’s meaningful participation, equitable participation, in areas beyond national jurisdiction. So that’s very important. But I would highlight that throughout the agreement where whether we’re talking about establishing area-based management tools or dealing with environmental impact assessments, the agreement focuses on consultative participatory processes, which in and of themselves will help in ensuring or entrenching equity into the agreement and the operationalization of it.

Ina:

One important issue will be that everyone is heard in the Prep Coms or in the process.  What will need to happen for everyone to be heard in the process?

Janine:

So, the organization of work that the chair, the co-chairs, will put forward, has to facilitate this. Now, we’re very conscious of the fact that delegations will vary in size, in terms of expertise, so it’s really important to organize the work in a manner in which no delegation is left out that’s on the on the party side. But there are observers, and they’re entitled to be in the room. So there are different formats for ensuring that observers can be able to participate in the discussions and and I think, you know, we’ll have to be conscious to have a proper balance between those types of open meetings where we offer the floor to observers to participate, and the more informal meetings where then it becomes more closed, they don’t get webcasted or there’s no interpretation for them. So, it’s balancing that out, and much of this will probably be organic, because it depends on how negotiations are going for us to determine, you know, do we need to change the mode of work in order to make progress here or there? So, there’s a modality to ensure that Parties are heard, but there’s also modality to ensure that observers have their say. Intersessional work has to be contemplated as another opportunity for voices to be heard. And, you know, outreach, I think outreach will have to be something that that the co-chairs contemplate moving forward.

Montage 2 (NEWS)

An historic agreement (to protect the worlds oceans) has been approved.

Called for the treaty to be ratified as quickly as possible

The seas are a crucial part, given they cover 2/3s of the world and provide the majority of the air we breathe

That’s why the United Nations has been working for almost 2 decades to form a legal framework for the protection of marine biodiversity and the fair sharing of its resources

I can safely say that this has been a learning journey of a lifetime. So, thank you very much everyone.

Jennifer:

The OCEAN treaty has now been negotiated, adopted at the international level and is now open for signature. So, Ina – what’s the difference between signing the treaty and ratifying it?

Ina:

Signing the treaty is the first step. But in order for it to enter into force or be legally binding, at least 60 nations have to also ratify the treaty. This means the treaty becomes part of those nations’ domestic law.  I asked the co-chair Janine Felson and Adam McCarthy to talk about the challenges of getting countries to ratify.

Adam McCarthy:

Well, obviously we want as many ratifications as quickly as possible. I think we have to recognize two things. One, it is a complicated treaty. It’s not an easy process to convert into domestic law. I think we also have to acknowledge that some countries’ treaty processes are more complicated. That includes my own, actually, I think, as a general rule, and speaking more as a chief counsel than as BBNJ co-chair, the treaty processes tend to be more complicated in federations like Germany and like Australia than it is in unitary states. So, I think we’ve got a lot of goodwill. It’s a technical exercise. Some treaty processes will be more complicated than others, but obviously we just want to get to that 60-state trigger point as soon as we can. But importantly, beyond! It doesn’t stop on the day we get 60 and we get to entry into force, we obviously want this as widely ratified as possible.

Janine Felson:

So, each country has their individual treaty processes. In the case of Belize, we have one that goes through the executive, but it does require consultation with and engagement with different stakeholders, not only government, but also the potential intended beneficiaries of the BBNJ agreement. So, it’s really very important to be able to do that type of raising awareness, but also getting buy-in for the agreement, which, in and of itself, again, will help with domestication of the BBNJ agreement’s different processes. Many countries have begun to share experiences with the ratification process, and many have stated that it’s really important to do an analysis, whether it’s a gap analysis, some have called it a needs assessment. You know, there are different ways to describe it, but it’s essentially to look at what do we have, what can work to support implementation? What would we need to do additionally to support implementation, and do we need these to be legislation, or can we take administrative measures to just make these things work and in a dynamic way, as the BBNJ agreement matures and becomes, enters into force and grows in terms of its universality. So, I think these are different ways. So, the consultation, the analysis, and then, you know, understand what steps need to be taken. Domestication isn’t just about law.

Ina:

And talking about the PrepComs, after the adoption of the agreement and after the first organizational meeting– where are we at?

Adam McCarthy:

We have a lot to do! And I think one of the challenges with this treaty is we have an unspecified finish line, so it will depend, obviously, the timelines in the treaty are 120 days after 60 ratifications, there’s entry into force. The first Conference of Parties, which is when the Prep Coms mandate extinguishes, needs to take place within a year of that. So, if you like, we’ve got a bundle of work. We have a finish line that we know is out there, but we don’t necessarily know where it is. I can go into the detail, but the bottom line is, we’ve got a huge amount to do. This is a very big regime to operationalize. We have the extraordinary work done in concluding the treaty itself, but this is now a very big regime to bring into life.

Janine Felson:

We are now at the point of determining what are going to be the critical issues that delegations will have to zero in on in order to have the necessary documents and recommendations for COP one that will have BBNJ implementation, really from the outset up and running. So there were three different clusters of issues that were identified as being important for consideration during a Preparatory commission. These relate to governance or institutional matters, the Clearinghouse mechanism and financial rules, and these are basically the mechanics for the BBNJ operationalization. So, in Prep Com1 we will begin the discussion on identifying and narrowing down what are those critical issues. And I think that’s where we are at present. It’ll evolve depending on how that Prep com1 goes.

JENNIFER :

So we said earlier that the treaty was adopted in 2023 but there are still unresolved issues which require negotiation. 

Adam McCarthy:

Look, I think there’s a whole range of questions. Obviously, the financial arrangements, particularly as they relate to marine genetic resources, are vital just the mechanics of getting the secretary up and running will be very important.

Ina:

Co-chair Janine Felson also talked to us about unresolved issues around ocean equity.

Janine Felson:

They’re probably quite a number of issues to deal with that are unresolved, to address equity, ensuring that there are expertise coming from a wide range of countries, fields, you know, all of that can impact how a problem is diagnosed and a solution is offered. And we see that in processes like the climate change. So that’s definitely going to be a significant issue. I think there has been a lot of focus on the Clearinghouse mechanism as an institution that, you know, if, if that isn’t..- and it wasn’t mandated for the Cop 1! – but there’s been this, you know, recognition by all that, if this clearing house mechanism, and specifically where Part Two is concerned, the standardized batch identifier is not resolved, then there’s no way that we would be able to really operationalize part two, which is one of the, something that I mentioned from the beginning, a innovation of BBNJ for equitable use of areas beyond national jurisdiction. So, so those are two areas. But also, if you think about the capacity building and transfer of marine technology, and this idea of the match-making sort of component that the clearing house mechanism is supposed to provide. That again, that’s something that’s unresolved. And if we don’t do it early, as early as Cop 1, I think there will be a risk that we delay the type of equity we want to see coming through to BBNJ. But those are only a few. There are others that I could probably, you know, interrogate and suggest as issues that need to be resolved for Cop1 or as soon as COP 1 is finished.

Ina:

There are lots of discussions happening in the so-called intersessional period. So, the period between the conference session. Where can policy makers and observers get more information on the process?

Janine Felson:

So officially information with regards to the Preparatory Commission, and any intersessional work that might be generated from, or required from, the Preparatory Commission will necessarily come from the United Nations. They have a website, and the information is going to be published on that website. There’s been a very critical focus on ensuring that observers who’ve been identified through the resolution that established a Preparatory Commission, that those observers have information, and that really translates also into the BBNJ agreement. So it’s almost beginning that practice of ensuring that we have that engagement. So, information gets circulated through the official channels, but let’s not discount the fact that there are so many different stakeholders who are already invested in BBNJ, and they too are really important sources of information, and it’s up to individual countries to determine whether or not they consider these as legitimate sources, but, but there are quite a bit out there already.

Adam McCarthy:

Well, we’ve just put out a series of papers for the first Prep Com and I would see the intersessional processes only accelerating between the first, second and third Prep Coms. I think there’s been a need to ensure that the first Prep Com provides a mandate for intersessional processes, a more structured form of international processes. We greatly welcome the fact that NGOs and individual national governments, like the government of Singapore, are hosting a range of events like they are now and then after the first Prep Com, we would expect with a mandate from the participating states to move into a more structured process of intersessionals, while still having obviously, NGOs, who are interested, States who are interested, regional groups that are interested, doing their own events.

Ina:

And how can States or other stakeholders best prepare for the conference sessions?

Adam McCarthy:

Look one thing I would say, is that there are four key pillars of the treaty, and it’s very important that every State engages with and regards itself as having interests in each of those pillars. I think if we devolve into a point where some States consider, you know, genetic resources to be their interest, and others consider area-based management tools to be their interest. We’re heading for trouble. It’s got to be the case that the States and the NGOs involved regard themselves as having interests and engagement in all four of those pillars. So, I would say to everyone, get across and prepare and think about what your interests are in the regime as a whole.

Ina:

Yeah, and what is on the agenda for this upcoming Prep Com meeting in April?

Adam McCarthy:

Effectively, all of the issues that are mandated for the first COP will be in the first Prep Com, plus some that are not in that initial group, but we will try broadly to cover most, but not all of the field. There will be some issues that will only come up in the second Prep Com, but the idea is, in particular, to have a first run through on all of those issues that are mandatory for the first COP.

Ina:

Yes, indeed, lots of work to do! But what do you expect from the upcoming Preparatory Commission meeting?

Adam McCarthy:

Something, not everything. I think it will start the process of forming, if you like, the working methods and the confidence, the identification of, if you like, for one of a better word, the low hanging fruit, the issues we can reach consensus on reasonably quickly. And then those issues that are going to be more challenging, that realistically will take several Prep Coms to knock off. So, I think the first Prep Com, like the first negotiating session for a treaty, will be, there’ll be a sense of members feeling each other out and just sort of seeing where the contours of the negotiations lie. It’s very important. We have to make progress. We only have three Prep Coms. We can’t afford to, you know, just have the first Prep Com as a statement of national positions, and that’s it. We have to get down to work. But we have three prep coms. We have a year. Not everything will be solved, but we want to make some progress in that first Prep Com.

Janine Felson:

So, there are specific documents or rules that have to be agreed, and that was mandated through the BBNJ agreement itself. We’ve already begun to prepare aids to support the discussion of some of those rules: The rules of procedure for the Conference of the Parties, the financial rules and then the MoE, the memorandum of understanding between the Global Environment Facility and the COP. So, what we would like to see is where we can capitalize or optimize the sessions. We’d like to see progress on those particular rules, but there are so many other issues that have to be addressed, where information notes have been prepared, so Secretariat arrangements, the subsidiary bodies, and what will need to be done there, and what we would want to see is an identification of what more would be helpful in order for us to get to the point where we do have text for delegations to start negotiating and actually come to a conclusion on the recommendations for the COP.

Ina:

And what would be an ideal outcome of the Prep Com 1?

Adam McCarthy:

So. I think, as I said, if everyone leaves with a strong sense of if you like the terrain, but also a strong sense of where the landing strip might be, everyone who participates will have their national interests. That’s understandable, and they’ll prosecute that national interest. But if everyone walks out of Prep Com 1 with a sense of where this the prep coms work might be landed, where the consensus outcomes are, I think that would be a good outcome.

Ina:

And is there anything else you would like our audience to take into the next Prep Com and beyond?

Adam McCarthy:
I think that NGOs and think tanks and academic institutions have an important role to play. A lot of the aspects of this treaty are quite technical, a lot are novel, a lot haven’t been done before by the international community, so I think that will be important. There’s an important role for non-states to play. And then in terms of States, as I said, everyone will come with their national positions to prosecute as they should. That is how things should work. As a co-chair, I would just ask everyone to bear in mind also that if we don’t conclude our business successfully, no one gets anything. So, it’s also important to maintain flexibility. And as I said, for people to think across the four pillars.

Janine Felson:

I think it’s important for the continued engagement of our science community, coming into Prep Com. I think it’s really, it’s been very helpful. And maybe not just science. I think it’s it goes beyond that. There have been for the intergovernmental conference itself, there have been so many different stakeholders and interest groups who, you know the ocean is near and dear to their hearts, and they really helped to sort of push this process along. And when you think of the BBNJ Preparatory Commission, and when you think of the ambition that everyone had set for the BBNJ agreement, we cannot now just say: “ Okay, thank you, stakeholders. That was great.” You know, we need that continued momentum, the champions of BBNJ. Everyone focuses on ratification by 60, but I think I’ve heard it now more than once that that’s not going to be enough. We need to go way beyond 60, and who’s going to help us get there? It’ll be a whole BBNJ community committed to the agreement, committed to seeing it come to fruition, committed to seeing equity. And I think that’s where I would want to place my emphasis. This isn’t just about States. This is about all of us.

Waves

Jennifer:

It does indeed sound like very technical and challenging negotiations, Ina, and I can imagine that if you’re from a country with less resources – just keeping up at these meetings can be challenging!

Ina:

Yes, and that is actually a big part of the ocean equity issue that we will also touch upon in our next episode: We will meet different stakeholders who travel from around the world to attend these meetings. We’ve got one delegate from a small island state, one member of civil society and a scientist.

JENNIFER:

Sounds great! So, join us for the next episode of Negotiating the Ocean!

MUSIC

Thank you to our guests on this episode: Ambassador Janine Felson from Belize and Adam McCarthy from Australia, the co-chairs of the Preparatory Commission for the entry into force of the BBNJ Agreement.

You can find all the official documents from the BBNJ negotiations in our podcast show notes where we’ll put up a link to the BBNJ page of the UN Website.

We’ll also include links to research on the BBNJ Treaty, published by our ANCORS researchers.

We’d love to hear from you so please send any comments or feedback to inatvw@uow.edu.au.

Ina:

This podcast was edited by Emily Perkins and communication was by Sunnefa Yeatman.

Thank you also to ANCORS and the Nippon Foundation for providing support for the making of this podcast.

Jennifer:

I’m Jennifer Macey

Ina:

And I’m Ina Tessnow-von Wysocki.

Both:

“Sea” you next time!