# The Core Latin American Members (CLAM) in BBNJ negotiations: A case of rule-making influence from the South on the ocean regime

Kevin Parthenay, Carina Oliveira, Ana Flávia Barros-Platiau

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Kevin Parthenay, Carina Oliveira, Ana Flávia Barros-Platiau. The Core Latin American Members (CLAM) in BBNJ negotiations: A case of rule-making influence from the South on the ocean regime. Marine Policy, 2025, 183, pp.106920. 10.1016/j.marpol.2025.106920. hal-05291844

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# The Core Latin American Members (CLAM) in BBNJ negotiations: A case of rule-making influence from the South on the ocean regime

Kevin Parthenay<sup>a, *,</sup> , Carina C. de Oliveira<sup>b</sup> , Ana Flávia Barros-Platiau<sup>c</sup>

ARTICLE INFO

Keywords:

CLAM

BBNJ

Rule-making

Multilateral negotiations

Coalition politics

Latin America

A B S T R A C T

The legally binding International Agreement on the Conservation and Sustainable Use of Marine Biodiversity Beyond Areas of National Jurisdiction (known as the “BBNJ Agreement”) is the result of almost twenty years of a multilateral debates (2004–2023). This treaty-making process has revealed, as with many others, the complex relationships between the Global North and Global South, and between Southern States. For the duration of the last Intergovernmental Conferences for the BBNJ agreement (IGC, 2019–2023), Latin America States have become closer, and have exerted rule-making influence in this multilateral process. Some Latin American States (LAS) quickly formed an *ad hoc* coalition called “Core Latin American Members” (CLAM), which played a decisive role in developing diplomatic strategies of rule entrepreneurship. How has CLAM been influential in the multilateral negotiation of the BBNJ Agreement and for what outcomes? To answer this question, the article will explore two dimensions: first, how this *ad hoc* coalition was created and how it has operated during the negotiations, including its alignment with other groups; second, what has been the CLAM’s rule-making contribution in the agreement-making process. To carry out the empirical examination, the article used a wide range of qualitative methods, from participant observation (in the IGC 4 and 5) to digital observation (IGC 1–5bis), from semi-structured interviews (with delegates and CLAM members) to process-tracing based on official negotiation documents. This article will contribute to understanding the strategic and relevant continent’s role in the BBNJ negotiations.

1. Introduction

The Intergovernmental Conference on an International Legally Binding Instrument relating to the United Nations Convention on the Law of the Sea and Concerning the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, better known as the “BBNJ” negotiations, opened on September 4, 2018, in New York. At the end of the sixth negotiating session (up to “IGC 5th Resumed”), while only four sessions had been initially scheduled by the United Nations General Assembly (UNGA), a consensus was finally reached. In this multilateral process, several groups or coalitions have been influential: the European Group (EU and other like-minded countries, such as Iceland); the G77 +China; the Caribbean Community (CARICOM), as well as the African Group and the Core Latin American Members (CLAM).

While most of these groups are well known to multilateral

practitioners and observers, specifically for environmental negotiations, it is not the case for the new group of Latin American States (LAS), which was created during the IGCs. Latin American States have a longstanding history of engagement in marine multilateral and regional negotiations [1]. As a consequence, not only have they exerted influence on the design of international agreements, but also played a significant role in shaping ocean-related legal regimes [2]. During the negotiations of UNCLOS III (Third United Nations Conference) and the 1994 Part XI Agreement, Latin American and Caribbean States negotiated collectively on key issues, including maritime delimitation [3], the principle of the common heritage of humankind [4], and the establishment of the Enterprise in the context of deep seabed activities [5]. This historical background demonstrates that their law-making influence is not recent and highlights the importance of analyzing its evolution over time. The GRULAC (Group of Latin American and Caribbean States) is traditionally the formal group that represents the Latin American and Caribbean

<footnote><sup>a</sup> University of Tours and University Institute of France, France</footnote>

<footnote><sup>b</sup> University of Brasília, Brazil</footnote>

<footnote><sup>c</sup> University of Brasília and at the Superior Defense College, Brazil</footnote>

<footnote>* Corresponding author.</footnote>

<footnote>E-mail address: kevin.parthenay@univ-tours.fr (K. Parthenay).</footnote>
States (which comprises 33 States), but mostly for geographical representation within the UN system. Yet, GRULAC was not operative during the BBNJ negotiations as an active issue-coalition, as it is mostly devoted to UN electoral processes. LAS negotiated mainly as CLAM (except for the *Alianza Bolivariana para los Pueblos de Nuestra América* – ALBA composed of Venezuela; Bolivia; Cuba; Nicaragua) and Caribbean States negotiated mainly as CARICOM or SIDS (Small Islands Developing States).

In this context, the main aim of this paper is to analyse how the CLAM, composed of fourteen states (Argentina, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, México, Panama, Paraguay, Peru and Uruguay), came to existence and exerted rule-making influence on the BBNJ process. Borrowing from a literature on international “norm-making”, rule-making influence is a concept that can refer to the idea of rule creation [6], rule entrepreneurship [7] and rule shaping [8]. In this paper, rule-making is understood as a means of utilizing the lawmaking process to incorporate substantive content, shifting from a formalistic approach toward one that is more rights-based [9].

To understand the complex BBNJ negotiations, the issues addressed, the processes that led to the formulation of a final version of the agreement, and the influence of the CLAM, we analysed three rounds: 1) a first sequence on an *Ad Hoc Open-Ended Informal Working Group* (2004–2016) (*Working Group*); 2) a second round on a Preparatory Committee (“PrepCom”) (2016–2017); and 3) a third round on the sessions of the intergovernmental conferences (commonly referred to as the “IGC”) (2018–2023). CLAM is still an active group in the 2025 early debates of the Preparatory Commission for the entry into force of the BBNJ Agreement and its first COP, but we left this new sequence for further research.

In this complex and long process, we ask *how has CLAM been influential in the rule-making and consensus-building processes?* We answered this question mindful of the fact that CLAM had some shortcomings: political, because of the Latin American fragmentation; institutional, as CLAM does not exist in any other multilateral negotiations; and thematic, as CLAM’s activism has varied depending upon the issues at stake, and as it has been less active on Environmental Impact Assessment (EIA), mainly because of discrepancies among CLAM members. Notwithstanding these limits, the group was representative of a wide variety of interests regarding the high seas - with landlocked states, states that are not signatories to UNCLOS, states with islands, states with maritime territorial disputes - and was in the end legitimate to position itself as an actor in the negotiations [10]. Our analysis will contribute to describing how LAS gained more agency in a case of the contemporary treaty-making, specifically on the marine biodiversity beyond national jurisdiction, which consist of the high seas and the Area (international seabed).

The article will be organized as follows: the first section will present a brief historical perspective on CLAM’s genesis and contribution to the BBNJ negotiations; the second section will present the analytical framework and how this article assesses the rule-making influence. Section three will delve into CLAM’s active participation, and section four into CLAM’s rule-making entrepreneurship. A final section will conclude and provide elements for further research.

## A brief history of CLAM’s genesis and contribution to the BBNJ negotiations

### 1.1. CLAM’s coalition-building and the origins of its influence

CLAM is a coalition built specifically for the BBNJ negotiations composed of fifteen LAS (see table below), that results from a long incubation process.

In 2004, when discussions began on the regulation of marine biodiversity beyond national jurisdiction, several LAS played an active role, as ocean issues were important for the region. Indeed, the countries of Latin America and the Caribbean (LAC) are directly exposed to and

affected by changes in marine biodiversity and the overall health of the oceans. In fact, 23 of the 33 countries in the region have more marine areas than land areas (the sea accounts for 60 % of sovereign rights under States jurisdiction). Approximately 2.3 million people depend directly or indirectly on fishing activities, and 27 % of the population lives in coastal areas. Furthermore, 47 of the world’s 258 marine ecoregions are located in LAC (ECLAC 2020). The importance and centrality of the oceans for the states in the region therefore justify their involvement in these negotiations, given their vulnerability to overfishing, pollution, and seabed mining. At that time, however, the LASs’ voices were scattered due to the manifold interests at stake, as states are diverse (coastal states and landlocked countries; parties and non-parties to UNCLOS, etc.). During this phase, the debates took place in an Ad hoc Open-Ended Working Group (OEWG). Despite many discrepancies among LAS yet, a gradual convergence was on the will of promoting a new international legally binding instrument (ILBI) and not reviewing existing instruments (only Bolivia among LAS had this stand). Beyond Latin America, the predominant vision in the OEWG was aiming at adapting the existing instruments (Japan, Russia, United States, Norway, in particular). The Ad Hoc OEWG has held sessions from 2004 to 2015 and in this long period, some states were asserting leadership. First, Mexico (with New Zealand) as promoter of a new legally binding agreement. In recognition of their effort, those two countries were appointed by the Working Group co-chairs as “co-facilitators” to steer an Informal Working Group (2015) that was focused on future negotiations and tasked with preparing a working document.

At the end of this initial process, some stronger convergences started to emerge among LAS, but initially with other states or regional groups. A former Costa Rican delegate explains that “a group of like-minded people was formed, consisting of the European Union and 19 or 20 other countries (Singapore, Monaco, etc.). We met in Costa Rica, which invited all of us who seemed to have, let’s say, broad similarities, and (...) we spent four days working on what we thought, what we wanted, and what our common ground was” [11]. In this early like-minded group, Guatemala, Uruguay, Argentina, México and Costa Rica were the LAS members. A group of *Like-Minded Latin American States* has consolidated progressively, around fourteen states (see Table 1) when it was decided to move toward an ILBI and that a Preparatory Committee (PrepCom) was set up in 2016 for four sessions. Brazil imprinted a positive dynamic as its ambassador (Carlos Duarte) was nominated Chair of the PrepCom (after the resignation of the first Chair Eden Charles) and who drew up the very first outline of an agreement. Costa Rica was also an active and useful member of the Bureau for Latin

<table><caption>**Table 1**
LAS and CLAM members over time.</caption><thead><tr><th>Latin American States (LAS°)</th><th>Like-minded LAS</th><th>CLAM members</th></tr></thead><tbody><tr><td>1. Argentina</td><td>1. Argentina</td><td>1. Argentina</td></tr><tr><td>2. Bolivia</td><td>2. Brazil</td><td>2. Brazil</td></tr><tr><td>3. Brazil</td><td>3. Chile</td><td>3. Chile</td></tr><tr><td>4. Chile</td><td>4. Colombia</td><td>4. Colombia</td></tr><tr><td>5. Colombia</td><td>5. Costa Rica</td><td>5. Costa Rica</td></tr><tr><td>6. Costa Rica</td><td>6. Dominican Republic</td><td>6. Dominican Republic</td></tr><tr><td>7. Cuba</td><td>7. El Salvador</td><td>7. Ecuador**</td></tr><tr><td>8. Dominican Republic</td><td>8. Guatemala</td><td>8. El Salvador</td></tr><tr><td>9. Ecuador</td><td>9. Honduras</td><td>9. Guatemala</td></tr><tr><td>10. El Salvador</td><td>10. México</td><td>10. Honduras</td></tr><tr><td>11. Guatemala</td><td>11. Panama</td><td>11. México</td></tr><tr><td>12. Honduras</td><td>12. Paraguay</td><td>12. Panama</td></tr><tr><td>13. Mexico</td><td>13. Peru</td><td>13. Paraguay</td></tr><tr><td>14. Nicaragua</td><td>14. Uruguay</td><td>14. Peru</td></tr><tr><td>15. Panama</td><td></td><td>15. Uruguay</td></tr><tr><td>16. Paraguay</td><td></td><td></td></tr><tr><td>17. Peru</td><td></td><td></td></tr><tr><td>18. Uruguay</td><td></td><td></td></tr><tr><td>19. Venezuela</td><td></td><td></td></tr></tbody></table>

<footnote>**Ecuador joined the group in 2021. Source: authors.</footnote>

<footnote>* Definition of UN GRULAC without CARICOM member states.</footnote>
<table><caption>**Table 2**
Evolution of the BBNJ process and the coalition formation process.</caption><thead><tr><th></th><th>Coalition formation</th><th>Leadership</th></tr></thead><tbody><tr><td>OEWG (2004–2015)</td><td>None</td><td>Mexico</td></tr><tr><td>PrepCom (2016–2017)</td><td>Like-minded Latin American States</td><td>Brasil, Costa Rica</td></tr><tr><td>IGCs 1–2 (2018–2019)</td><td>Like-minded Latin American States</td><td>Mexico</td></tr><tr><td>IGC 3–5 resumed (2019–2023)</td><td>Core Latin American Members</td><td>Mexico, Chile</td></tr></tbody></table>

Source: authors.

American delegations through daily reports on the progress and tasks ahead. The BBNJ negotiations started in 2018, with the first IGC, and the LAS voices were again scattered.

One possible reason why this group emerged is that GRULAC (Group of Latin American and Caribbean States) did not negotiate jointly during BBNJ negotiations, due to the consolidation of CARICOM and other island coalitions, such as the SIDS. GRULAC is one of the five regional groups recognized within the United Nations system. It comprises 33 Member States from Latin America and the Caribbean and functions primarily as a coordination mechanism for regional representation in multilateral forums, including the allocation of seats in various UN bodies and committees. GRULAC is a formal group created to assure regional participation within the UN framework. Based on the fact that GRULAC is too big and too diverse, CLAM can be considered a small part of GRULAC that decided to join forces. In addition, it is noteworthy that CLAM has members that are part of different organizations in the Atlantic and in the Pacific – all bringing together southern states - and they have been negotiating in these arenas such as: Zone of Peace in the South Atlantic; South Pacific Regional Fisheries Management Organization (SPRFO); Inter-American Tropical Tuna Commission (IATTC); Permanent Commission for the South Pacific (CPPS); Latin American Organization for Fisheries Development (OLDEPESCA).

On 19th August 2019, at the beginning of IGC3, a new group of negotiation declared its existence, the CLAM (for “Core Latin American Members”). As an extension of the Like-minded LAS, this group was created because there was no other regional group or group of negotiation operating. Many LAS felt their individual weakness and the increasing strength of coalitions; therefore, it was useful for some to gain access to resources (to information, access to the presidency) as well as it was necessary to gain leverage in the negotiation. As underlined by the Mexican delegate: “the difference is that it has positioned us as a player in the negotiations. We are asked to form bilateral groups with CLAM, the presidency meets in bilateral meetings with CLAM, CLAM has position papers, CLAM holds coordination meetings” [12]. This CLAM was initially spurred by Latin American representatives from the UNGA’s Sixth Committee (dealing with legal affairs), thus diplomats not necessarily familiar with environmental issues or negotiations. Mexico held the logistical and strategic coordination of CLAM in New York [13]. In coordinating the group, Mexico put its multilateral proficiency and long expertise on the issue of marine biodiversity to the service of its regional group and had the double reward of asserting a regional leadership and reaching its main goal of a legally binding agreement. Nonetheless, the coalition logic generated dissatisfaction for some, who felt frustrated at not being able to express national positions or perceived a loss of individual visibility (for instance, Costa Rica or Chile). That is why, thematic coordination positions have been distributed when IGCs started: 1) MGRs (Brazil, Panama); 2) ABMTs (Costa Rica, Argentina); 3) CBTMT (El Salvador, Honduras); 4) EIAs (Guatemala, Uruguay and Peru); cross-cutting issues (Colombia, Mexico and Ecuador).

The pause imposed by the Covid-19 pandemic (between IGC 3 and IGC 4) enabled the capitals to better assess the relevance of the CLAM, with the coordination of their ministries. Nevertheless, Mexico maintained its leadership in coordinating the group, acting as spokesperson at the fourth session (it was Uruguay for the third IGC), and representing

CLAM (along with Chile and Colombia) at bilateral meetings between the group and the IGC President, Rena Lee. For the last round of negotiations, IGC-5 and 5 resumed, CLAM continued to act with the same countries, but Brazil for instance became more vocal in specific agendas, such as MGRs, benefit-sharing, digital sequencing information (DSI) and the principle of common heritage of humankind (see written proposal on the Preamble sent 1st March 2023). Regarding other issues, such as EIAs, various LAS expressed their positions in their national capacity. However, the tensions of the final hours between the Europeans and the African Group, particularly on the principle of common heritage of humankind, enabled the diplomats in New York to revive the CLAM’s strength. The group contributed substantially to the debates in this final stage of the drafting exercise submitting for instance 19 written proposals and 5 joint proposals in IGC5 and 5 resumed.

**Outlining the analytical framework for assessing CLAM’s rule-making influence in BBNJ negotiations.**

Many scholars have delved into the study and measurement of influence in multilateral negotiations [14]. Treaty-making, rule-making, and lawmaking are perspectives that can be used to assess this influence. While treaty-making focuses on the capacity to reach a consensus on a text and its formalization, rule-making focuses on the capacity to influence the wording, language and formulation of the texts (articles, chapters, principles, etc.). Our objective is not to review the vast and lengthy legal and IR literature that deals with rule-making influence in multilateral negotiations. We nonetheless refer to rule-making influence as the capacity to make and shape international rules. The rule-making process can follow two paths [15]: 1) to specify or introduce a general rule (creator); 2) to advocate for the adoption or institutionalization of a rule (entrepreneur). Each rule-making path requires in any case for a group to be active in the negotiations processes, at different possible stages and through different strategies or tactics. Being active can be understood in different ways. In an examination of the LAS’s role in the Bretton Woods negotiations, Eric Helleiner developed a three-dimensional approach to measuring the influence of States in multilateral negotiations: experimentation [16], audience [17] and participation [18]. He demonstrates that, by experimenting with international public loan schemes, by constituting a privileged audience (enabling them to comment on and amend early versions of the agreements) and by actively participating in strategic negotiating spaces, LAS had a direct contribution in determining the contours of the 20th century international economic order. Those vectors of influence are not limited to economic negotiations, and they have been observed in other multilateral policy areas such as human rights [19] or in many environmental negotiations [20].

In this article, we will focus mainly on “active participation”, that refers to the diplomatic commitment of the LAS and their desire to contribute directly to rule-making. Active participation was measured through the commitment of state delegations and their representatives. First, we undertook a quantitative assessment of LAS oral statements and written proposals. A database was set up to track the content of CLAM’s proposals and thus identify the major issues on which the group positions itself such as principles, obligations and means of implementation put forward. Second, a more substantial empirical examination of the contributions made by LAS through the CLAM was provided. We observed specifically the impact of written proposals, oral statements, and actions taken in the framework of the official negotiation process (2019–2023). The outcome document of the negotiation, the BBNJ agreement, served as a basis to assess this rule-making influence. It was systematically compared to and with the different drafts of the agreement and the written proposals and oral statements made by CLAM during the negotiation sessions. This data analysis aimed at identifying what, when and how CLAM made legal contributions.

To carry out this study, three methods of data collection were mobilized. Firstly, we gathered information via the compilation of official documents of the negotiation on the UN websites (UN Division for Ocean Affairs and the Law of the Sea [21]), the official website of the
intergovernmental conference [22], but also from secondary literature on ocean regulation, information communicated via social networks by identified state representatives or non-state actors involved in the negotiations. We also used the daily reports produced by *Earth Negotiations Bulletins (ENB)*, which detail the speeches and offer a very comprehensive summary of the debates, and the statistical data from an ERC project MARIPOLDATA [23], which compiled information on official statements and speaking times associated with the themes developed during the first three negotiation sessions.

Furthermore, fourteen semi-structured interviews were conducted between 2022 and 2024, with members of the Latin American and European delegations, the G77 + China presidency, members of the CARICOM, and the DOALOS Secretariat. The objective was to question the actions promoted, their objectives and the meaning of some initiatives (written proposals, oral statement) as well as how all this went through the regional coalition. Finally, participant observation was carried out as part of the Brazilian delegation to the first IGC session (IGC-1) in 2019 and the penultimate Intergovernmental Conference (ICG-5), with expert status. Two authors were able to attend plenary sessions as well as the cross-cutting, EIA, and ABMT negotiation groups. Participant observation is helpful to understand the logic of compromise and the impetus for ideas and suggestions, and to clarify and refine the analysis of the influence beyond the written texts, which provide a useful but static perspective [24].

## 2. Assessing CLAM's active participation in the BBNJ negotiations

In this section, we first elaborate on a quantitative and second on a qualitative assessment of CLAM's active participation in order to build our analysis of the rule-making influence on the agreement.

### 2.1. *A quantitative assessment of CLAM's active participation*

Written proposals are strategic ways to intervene in a specific debate to suggest new ideas, amendments, or express a disagreement regarding a specific article or point. The proposals considered range from IGC4 to IGC5 resumed, when discussions on the text of the agreement became more advanced and in-depth. They make a substantial contribution to the content of the debates. They have been collected from an online public platform managed by DOALOS during the negotiation [25]. Despite being a newborn regional group which remained “informal” up to IGC3, CLAM has been the coalition which, just behind the EU, submitted the biggest number of “written proposals” to amend the drafts submitted up to the final IGC5-Resumed.

Fig. 1 presents CLAM's written proposals during IGC 4th, 5th, and 5th resumed. It must be highlighted that written proposals at that stage of the negotiation confer a greater role in rule-making. These proposals are suggestions of new articles, amendments to existing articles, or requests for deletion or restructuring of parts of the text. As such, they serve as key instruments of influence in the rule-making process. Again, the accumulated data of the written proposals made during IGC4, 5, and 5 resumed, positions CLAM as the second most “suggesting” group behind the EU. It locates far ahead of traditional participative groups such as AOSIS, PSIDS, and CARICOM. Therefore, CLAM assumed a central role in that multilateral negotiation process.

Fig. 2 shows the thematic distribution of those proposals using the formal structuration of the negotiating agreement in Parts. CLAM submitted most proposals on four issues: on Part 1 (general provisions and cross-cutting issues), on Part 2 (MGRs), on Part 3 (ABMTs), and on Part 5 (CBTMT). In contrast to the EU, CLAM adopted a minimal stance on the issue of Environmental Impact Assessments (EIAs), mainly due to the wide dispersion of interests on this issue. When some LAS intervened on EIAs, such as Brazil, they did so in their national capacity.

### 2.2. *A qualitative assessment of CLAM's active participation*

We develop this assessment focusing on three case studies: general provisions and cross-cutting issues with a focus on a procedural and on a substantive content of the agreement; the marine genetic resources (MGRs); and the capacity-building and transfer of marine technology (CBTMT).

**Case 1. General provisions and cross-cutting issues.**

Cross-cutting issues are addressed in both the initial and final sections of the Agreement. Part I includes provisions on definitions, general objectives, scope of application, exceptions, the treaty's relationship with other relevant legal and institutional frameworks, principles and approaches, and international cooperation. We focus on one key provision that illustrates CLAM's impact: the principle of the common heritage of humankind (CHH).

The inclusion in the agreement of the principle of the “common heritage of humankind” represented a major challenge for the CLAM states as well as for G77 + China. This principle echoes a long tradition of international legal struggle going back to the Outer Space Treaty (1959) [26], to the Declaration of Seabed Principles (1970, and then to the UNCLOS III negotiations, being rooted in the general idea of equitable sharing of natural resources [27]). Its articulation with another principle, that of “high seas freedom”, was a major difficulty in the negotiations [28]. These freedoms are enshrined in the Convention on the Law of the

<figure><img src="image_3.png" /><figcaption>**Fig. 1.** Total written proposals by groups and coalitions (IGC4, IGC5, IGC5-Resumed aggregated).</figcaption></figure>

Source: Authors
<figure><img src="image_4.png" /><figcaption>Fig. 2. Written proposals by coalition and parts of the BBNJ Agreement (IGC4, 5 and 5-Resumed aggregated).</figcaption></figure>

Source: Authors

Sea (Article 87) and constitute an intrinsic limitation on the application of the principle of CHH, which implies extensive protection of resources and sharing of benefits. In this field, a battle has been waged between the developing nations and the developed ones (European Union, United States, Japan, among others), the latter defending mainly that the CHH principle should be placed only in the Preamble of the Agreement (deprived of legal nature) and not in Article 5 of the draft Agreement (“further refreshed draft”, August 2022), along with the other principles (“principle and approaches” ended up being in Article 7 of the final agreement).

As developing states, CLAM members have prioritized the inclusion of this principle in the agreement a strategic objective, although they were not the sole proponents of its promotion (for instance, G77 +China, the African Group). The principle was advanced not only through oral statements, but above all through written proposals in the small groups. A detailed textual proposal from CLAM at IGC5 made the CHH principle inclusion a priority: “it is fundamental that the principle of common heritage of humankind guides the interpretation and application of the BBNJ instrument and is explicitly established in the text. This regardless of the fact that the characteristics that give content to this principle are already mentioned in the body of the text. For developing countries, the inclusion of this principle was fundamental” [29].

While the CHH had been introduced early in the initial preparatory versions of the agreement, the principle of freedom of the high seas (FHS) was introduced later, in the very last hours of the negotiations during the IGC5 resumed [30] and was the subject of intense attention right up to the end of the discussions. Seeing the principle of “freedom of the seas” inserted in the draft agreement, notably a preparatory version circulated at the end of the first week of IGC5 resumed negotiations, Brazil, along with Indonesia, Palestine, Bangladesh and Nepal, submitted a counterproposal seeking to remove this FHS principle from the

body of the text, in particular Article 5, and refer it to the Preamble [31]. These delegations justified their submission as follows: “we view that the placement of the freedom of the high seas should be included in the preamble of the convention as it entails general provision. Thus, it should not be included in article 5 [Article 7 in the final agreement], related to the principles and approaches that will guide Parties in achieving the objects of the agreement, such as the common heritage of humankind” [32].

This reflects the foundation of a legal strategy mobilizing specific interpretations of international law frequently employed by LAS, in this case Brazil with other states of the Global South. Earlier, CLAM had specified its interpretation of a distinction between “principles” and “approaches”, to confer a legal status on the CHH (in accordance with Article 38.1 of the Statute of the International Court of Justice) and not merely a political commitment [33].

At the end of the negotiations, the LAS won a partial victory because they succeeded in maintaining the principle in an operable part of the final text, using, for instance, article 64 (on voting rules) as a bargaining chip with the EU. However, it was partially a victory, as in the final version of the agreement, the principle of CHH coexists with that of Freedom of the High Seas (FHS) in Article 7. This juxtaposition may impact the interpretation of the CHH principle. As explained by the Jamaican co-facilitator, Kurt Davis, who took the lead in drafting the final version of the article, maintaining an ambiguous link between the CHH and the Law of the Sea Convention (with the absence of a comma between the two) allows the CHH to be given greater force in the BBNJ agreement [34]. It is worth mentioning that the Spanish translations retained a comma, which may create further uncertainty in interpretation.

## Case 2. Marine Genetic Resources (MGRs).
The issue of “marine genetic resources” (MGRs) is one of the focal points of Latin American investment in these negotiations. During the first three sessions, 13 references were made to MGRs in oral statements, representing 33 % of the speaking time of the region’s delegates grouped within CLAM [35]. From a strategic point of view, it was at IGC5 and IGC5-Resumed that CLAM members sought to influence this issue through numerous written proposals, covering almost all the articles of Part 2 of the agreement. Since the opening of the IGC (and even before, in the Preparatory Committee and Working Group), this topic had been facilitated by the Belize representative, Janine Elizabeth Coye-Felson. At IGC5, a small working group on Article 8 (“Applications”) was facilitated by CARICOM, in conjunction with Australia. All other restricted groups dealing with the other articles of Part 2 of the agreement were coordinated by the Belizean representative.

The issues at stake essentially concerned the uses and benefits that can be derived from the exploitation of marine genetic resources. Since such exploitation often requires advanced technologies, asymmetries in technological development constitute a source of inequality [36]. Intense discussions were therefore held on the question of “benefits sharing”. In this respect, CLAM worked intensely with other groups (African Group, CARICOM, PSIDS), insofar as Part 2 (MGRs) puts forward criteria for differentiated attention to the needs and interests of specific categories of states (LDC, LLDC, geographically disadvantaged States, SIDS, Coastal African States, and Less Developed countries). These criteria were incorporated directly into article 14(2 f) of the final agreement: “Capacity-building, including by financing research programs, and partnership opportunities, particularly directly relevant and substantial ones, for scientists and researchers, as well as dedicated initiatives, in particular for developing States, taking into account the special circumstances of small island developing States and of least developed countries” [37]. The cross-regional strategy established by CLAM, through a proposal called the “super pack” [38], with the other geographical and thematic groups to introduce a differentiated consideration of the interests and needs of less developed States must here be noted.

Brazil represented CLAM throughout the entire negotiation process concerning this Part and intensively during IGC5, as articulated by the Brazilian diplomat Philippe Raposo [39]. Brazil has extensive experience in this area, gained through multilateral negotiations, including the Nagoya Process (2009), and national negotiations that led to the adoption of the 2015 national framework on access to genetic resources, protection and access to associated traditional knowledge, and the fair and equitable sharing of benefits arising from the conservation and sustainable use of biodiversity [40]. The issue of benefit-sharing was the final thread running through the negotiations, and the reason why the delegations had to extend the negotiations for a further 38 h. This diplomatic confrontation epitomizes the enduring North–South divide, reflecting market-oriented power asymmetries and the broader consequences of entrenched hierarchies within the international order. The attention paid to the subject of MGRs and the distribution of the benefits linked to their exploitation links up with other strategic areas of focus, the part of the agreement dealing with “capacity-building and the transfer of marine technology” (Part V) and the part dealing with “Financial resources and mechanism” (Part VII).

**Case 3.** *Capacity-building and transfer of marine technology (CBTMT).*

Part 5 of the Agreement has been central to CLAM. Although there were fewer references to CBTMT by CLAM in the first three ICGs (relative to the other Parties), the engagement intensified over the next three sessions, with detailed written proposals prior to IGC4 (feeding into the zero draft) and then at IGC5. In terms of diplomatic strategy, exchanges in this area were coordinated by the CLAM and CARICOM states. They sometimes worked hand in hand to advance proposals. At IGC5, a small group was coordinated by Honduras and El Salvador, on behalf of CLAM, on article 44 paragraphs 1 and 2 (August 23, 2022), then a second group coordinated by CLAM and CARICOM on article 44

paragraph 4 (August 23, 2022), and finally, two groups on article 47 coordinated by the Bahamas on behalf of CARICOM (August 26, 2022). Three other groups were coordinated by the G77 +China, which includes the majority of CLAM states (articles 43.3, 45.4, state listing cross-cutting issue). During IGC5 Resumed, three meetings in restricted groups took place under the coordination of El Salvador’s (on behalf of CLAM), Ligia Soto Flores, on all the articles of the Party, on February 22, 23, and 27, 2023.

At IGC5 CLAM members sought to make strong contributions to ensure that developed countries would make a firm commitment to developing states on issues of capacity building and technology transfer. These incentives are as much about the financial aspects as they are about the scientific knowledge that lies at the root of capacity building. CLAM and CARICOM submitted an initial proposal that stated that “capacity-building is critical and should not be undermined. Additionally, both groups consider that adding references to the financial capabilities as well as the development and strengthening of human and financial resources are key elements that safeguard a coherent and interrelated approach with the funding mechanism to be determined in cross-cutting issues, so the wording suggested in this article meets the necessary coherence with other parts of the Agreement”. While funding and other means of implementation have been recurrently demanded by Southern groups in multilateral negotiations, they have a more relevant meaning within the BBNJ negotiations because of the absence of funding and the abyssal gap in capacities, comparable to the climate change regime when it comes to island developing states and least developed ones. This addition of funding aspects forms an integral part of the final agreement, in Article 46. This joint CLAM and CARICOM proposal was thus positively received and adopted in the documents emanating from IGC5, then maintained throughout the IGC 5-Resumed session. Financial issues relating to marine technology transfer and capacity-building are also reflected in the financing of the mechanisms provided for under the agreement. These aspects, located in Part VII (Financial resources and mechanisms), have also been the subject of constant proposals from CLAM member states (IGC5 and IGC5 resumed). First of all, the CLAM sought to inscribe article 52 in the logic that "Developed States Parties should provide to developing States Parties financial resources in respect of those activities that are intended to achieve the objectives of this Agreement" [41], but the final wording retained is as follows: "Each Party shall provide, within its capabilities" [42], which reduces the commitments. This is an example of a relative failure to guarantee, via a financial mechanism, a distribution of resources from developed to developing States. Instead, the outcome of the negotiations emphasizes equality of principle in this distribution, with each of the Parties to the treaty able to contribute.

A second textual proposal was also submitted concerning scientific research: “With regards to paragraph ‘e’ of article 46, CLAM and CARICOM deem necessary to add the reference of ‘marine scientific research’ because many developing countries have limited or no capacity to independently conduct marine scientific research, so it is important to re-insert language in the chapeau of paragraph ‘e’, in order to provide support to developing States Parties in this matter. Concerning paragraph ‘e’, numeral (iii), it is important not only to focus on the conduct and evaluation of the Environmental Impact Assessments, but to also support building local and national research capabilities in order to effectively implement this provision”. Similarly, this point is made in the final agreement in Annex II, which lists the initiatives subject to capacity building and marine technology transfer.

At the end of the resumed IGC5, the final agreement included wording incorporating proposals submitted by CLAM, CARICOM, and other thematic groups. CLAM paid particular attention to several elements of articles 44 and 45, and its influence is asserted in the final wording. More than a simple influence on the wording, the ideas advanced are largely favourable to mitigate asymmetrical power relations between North and South. The specification and prioritization of developing States is requested (“in particular developing states parties”)
in a CLAM proposal and is incorporated into the final agreement: "Parties shall cooperate, directly or through relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies, to assist Parties, in particular developing States Parties". In addition, the final agreement contains the following commitment in Article 42 (1): "Parties, within their capabilities, shall ensure capacity-building for developing States Parties and shall cooperate to achieve the transfer of marine technology, in particular to developing States Parties that need and request it, taking into account the special circumstances of small island developing States and of least developed countries, in accordance with the provisions of this Agreement" [43]. The formulations "shall ensure" and "shall cooperate" are recurrent elements put forward by CLAM to encourage stronger language, incentives and commitments from developed states. The following justification is given for a proposal made at the IGC5: "however, the language still needs to be reinforced, particularly when referring to the delivery of CBTMT. In this regard, a stronger language needs to be inserted to ensure access without separating the capacity-building component from the transfer of marine technology. Concerning paragraph 2, there was a legal discussion regarding the scope and effect of the terminology "undertake to provide" with the conclusion that it does not provide clarity nor certainty which are two key elements for this provision to be effective. Therefore, the groups consider "shall provide" as a clear robust language to strengthen the implementation of the provisions of this article" [44].

## 2.3. CLAM's rule entrepreneurship in the BBNJ negotiations

Following Jinnah's framework, we can assert that CLAM has played a role of rule-making entrepreneur in the BBNJ negotiation. Case 1 shows that CLAM has advocated for the institutionalization of a principle that makes marine biodiversity, and all marine resources, a common heritage of humankind, something that must be preserved for future generations, to be used sustainably and whose benefits must be shared equitably. The battle over retaining the CHH principle in the text and ensuring its inclusion in an operational article of the final agreement exemplifies CLAM's rule-making engagement. CLAM served as a bridge between the EU/developed countries, the African Group and G77 +China, notably when the negotiations were blocked on the issue of CHH as a principle, until the last hours of negotiation. Case 2 has demonstrated that CLAM advocated for the adoption and institutionalization of rules that consisted in the respect of a differentiated treatment of some States mindful of their different level of development (see the language on "specific circumstances" and "least developed countries"). This strategy on the MGRs refers to the promotion of a more general international rule on the equitable benefit-sharing in the use and exploitation of marine biodiversity resources, as aforementioned. Finally, Case 3 has shown that CLAM advocated for the adoption and institutionalization of financial mechanisms and the specific attention to developing States to support building local and national research capabilities (marine scientific research). Wordings and ideas advanced by the CLAM intended to balance the asymmetrical power relations between North and South.

This being said, CLAM has not been a lonesome "rule entrepreneur" as many of its successful contributions in the BBNJ negotiations came through "shared rule entrepreneurship". For instance, on CBTMT, they have worked in close relationship with CARICOM, with joint written proposals. On MGRs, CLAM's advocacy went through a "superpack" that gathered the CARICOM, the African Group and the PSIDS. Regarding the CHH principle, CLAM worked hand in hand with G77 +China and other developing States groups. Based on interviews with diplomats from CLAM's members, we know that CLAM and CARICOM have worked closely together, but they remain as two different groups, to keep their identity and participation tracks. On bilateral talks, CLAM held meetings with the USA, the UK, Canada, SIDS, G77, African Group, Australia, China and others during the negotiations. In the end, due to this intense effort of dialogue with all the groups and relevant stakeholders, CLAM has functioned like a bridge between the EU/USA and groups from

developing countries and islands. In all IGC negotiations in 2023, diplomats from the CLAM group tried to create issue-based synergies with Caribbean representatives, those from the African Group, the G77 and SIDS. Based on our participatory observation in 2023, we consider the most successful ones were related to MGRs, access and benefit-sharing, the inclusion of the CHH principle, CBTMT, and the broader promotion of equity.

## 3. Conclusion

This article aimed at describing how a new Latin American group was formed and succeeded in being influential in a multilateral negotiation devoted to the crafting of the BBNJ regime. It explained how this group, the CLAM, directly contributed to the adoption and institutionalization of multilateral rules for the BBNJ Agreement. Doing so, this paper enriches the ongoing research program on Latin America's contribution to the development of international rules. It documents the practical rule-making engagement of Latin American delegations in a complex multilateral negotiation. As an extension of other works on UNCLOS III, this paper enriches the bigger story of the Latin American lawmaking contribution to the consolidation of the ocean regime.

We have analysed the paths of Latin American active participation in the BBNJ negotiation: through the examination of written proposals, tactics (coalition building), on different dimensions (procedural and substantive contents), and issues (MGRs, CBTMT, ABMTs, cross-cutting issues). Forging an ad hoc coalition has been key to inserting specific provisions, defending general principles, and to soft-balancing other coalitions' interests to reach consensus. More specifically, the group's main contribution went through the capacity to hold a close dialogue with other groups and coalitions from the South and mediating their interests with the so-called "partners" (developed nations and other more specific cases, like China and Russia).

Beyond the diplomatic strategies put in place, we have seen through our exploration of three specific topics (MGRs, CBTMT, and cross-cutting issues) that Latin American States has intended to promote international rules related to equity and fairness to equalize the benefits that could be extracted from further explorations and exploitations of marine biodiversity. As they have done in the past with regard to natural resources in the marine environment or in outer-space [45], Latin American states have promoted equity through a legal-based approach to anticipate future technological or scientific breakthroughs that could have important economic effects. They have promoted approaches that considered specific circumstances and/or differentiated levels of development, as well as the necessity to transfer marine technologies and to build capacity to reduce the asymmetries between states regarding the potential benefits extracted from the high seas. The voice of CLAM may be considered a prominent example of the Global South's influence in recent multilateral negotiations. Future research is necessary to explore to what extent CLAM's participation in the construction of the BBNJ regime creates synergies with the other Global South members and leaders.

The CLAM experiment highlights the necessity of a further research agenda on the role of regional coalitions in the BBNJ negotiations [46]. Other researchers could trace the influence of other coalitions and that would contribute to decentre the understanding of the multilateral negotiations' outcomes and to review the idea that those are only outcomes of the most powerful actors. Finally, further works and observations will also be necessary to trace the persistence and influence of CLAM in the Preparatory Commission of the Agreement and in the occasion of the upcoming BBNJ Conferences of Parties (COPs).

## Author statement

The three authors participated equally in each stage of the production of this article (from conceptualization to research, writing, and editing).
## Acknowledgments

The authors would like to express their sincere gratitude to the reviewers for their comments on earlier versions of this manuscript, as well as the participants of the webinar “Brazil, Latin American and the contemporary multilateralism”, held at the University of Tours (13rd February 2025). This work was supported by (1) the University Institute of France (IUF, LAT-GLOB project - 32nd promotion 2022-2027) and (2) CNPq Pq grants for Carina Oliveira and Ana Flávia Barros as well as CAPES: PDPG-REMAR, Process: 88881.714741/2022-01 and PRODEFESA V 88887.958919/2024-00; CNPq, n. 18/2021, Process: 404153/2021-6 and 312604/2021-1; CNRS IRP-ALCOM Project.

## Data availability

The data that has been used is confidential.

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[35] Raposo, P., 2023. The High Seas Treaty and Latin American Diplomacy. *Latinoamérica21*, 17 August. Available at: <https://latinamerica21.com/pt-br-o-t-ratado-do-alto-mar-e-a-diplomacia-latino-americana/> [Accessed 20 January 2025].

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[37] Interview with Kurt Davis, Permanent Representative of Jamaica to the United Nations, delegate for Jamaica in the BBNJ negotiations and facilitator of "cross-cutting issues", conducted via Zoom, 2nd May 2023.

[38] G.R.B. Galindo, M.D.S. Schmitz, R.C. Barenho, P.M.P. Sloboda, P.C.R. Raposo, A.P. S. Santos, O dia de 37 horas: as negociações finais do tratado do Alto-Mar (BBNJ), Rev. Juca XI (2023) 104-111.

[39] Raposo, P., 2023. The High Seas Treaty and Latin American Diplomacy. *Latinoamérica21*, 17 August. Available at: <https://latinamerica21.com/pt-br-o-t-ratado-do-alto-mar-e-a-diplomacia-latino-americana/> [Accessed 20 January 2025].
[40] IGC5 Resumed, Brazil, Indonesia, Palestine, Bangladesh and Nepal's proposal, March 1, 2023, on the Preamble.

[41] IGC5, CLAM's proposal, August 20, 2022, concerning article 5.

[42] Interview with Kurt Davis, Permanent Representative of Jamaica to the United Nations, delegate for Jamaica in the BBNJ negotiations and facilitator of "cross-cutting issues", conducted via Zoom, 2nd May 2023. MARIPOLDATA, 2021.

[43] R. Derrig, C. Grainger, K. Hassanali, F. Bateh, Protecting the ocean in the contemporary international order: Capacity-building and technology transfer from the Stockholm declaration to the BBNJ agreement, Int. J. Mar. Coast. Law 39 (3) (2024) 571-582.

[44] "Draft agreement 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", 12 June 2023, A/CONF.232/2023/L.3.

[45] Interview with a delegate from Mexico's Permanent Representation to the United Nations, conducted via Zoom, 4th May 2022.

[46] Coelho, L.F. "How Brazil Helped to Shape a Critical New Law to Protect Marine Biodiversity", Available at: (https://www.sei.org/features/how-brazil-shaped-a-critical-new-law-to-protect-marine-biodiversity/). Accessed on 7 February 2025.

Further reading

[1] Interview with three members of Mexico's Permanent Representation to the United Nations (and delegates for Mexico in the BBNJ negotiation), conducted via Zoom, 4th May 2022.

[2] Lei n.º 13.123, de 20 de maio de 2015. "Access to Genetic Resources, Protection and Access to Associated Traditional Knowledge, and the Fair and Equitable Sharing of Benefits for Conservation and Sustainable Use of Biodiversity", Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13123.htm. Accessed on 7 February 2025.

[3] "Draft agreement 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", 12 June 2023, A/CONF.232/2023/L.3.

[4] "Draft agreement 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", 12 June 2023, A/CONF.232/2023/L.3.

[5] "Draft agreement 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", 12 June 2023, A/CONF.232/2023/L.3.

[6] IGC 5, CLAM & CARICOM's proposal, August 16, 2022, relating to article 44.

[7] Parthenay K., Mesquita R., (2025), Latin America and the outer space regime: an assessment based on a new chronology of UN negotiations, *unpublished manuscript*.

[8] Kahlil Hassanali, "Approaching the implementing agreement to UNCLOS on biodiversity in ABNJ: exploring favorable outcomes for CARICOM.". Marine Policy 98, December 2018, pp. 92-96, https://doi.org/10.1016/j.marpol.2018.09.030.

[9] Mendenhall, Elizabeth. "Regional Coalitions at the 'Biodiversity Beyond National Jurisdiction' Negotiations." In OCEANS 2023 - Limerick, 1-4. Limerick, Ireland: IEEE, 2023.