The High Seas Treaty

A deep dive into the new United Nation's Treaty on the High Seas (officially Biodiversity Beyond National Jurisdiction or BBNJ) and how this  groundbreaking agreement will protect biodiversity through the establishment of marine protected areas, but also assist us all as we look to fight Climate Change & the ongoing climate crisis.

Transcript

This is So2D and I am your host Brian Barnes. It is so good to have you with us today on the only podcast dedicated to bringing unfiltered scientific research to the forefront of the climate conversation. As you’ve likely heard, there have been some incredible moves around ocean conservation recently culminating in a new but complex treaty - and that is where we will spend our time today. So my friends, once more into the fray.

Welcome back to the show & I have to tell you, I’m so excited not only for today but also for what’s soon to be coming along with the next several shows. The South of 2 Degrees team has been hard at work on a bunch of projects. From a complete website revamp based on feedback from YOU to make accessing the scientific research you want easier and a relaunch of the blog along with the POTENTIAL for a newsletter (let us know if you want that) to some incredible interviews in the pipeline - well, let me just say I truly believe we are working to make ourselves better FOR YOU every day.

So who are these interviews that will be coming later this spring? Well I’m not gonna give anything away, but one is with one of the world’s foremost glaciologists and science communicators and another is a media name we all know that has been reporting on climate change well before most people outside of the scientific community gave it any thought. Sprinkle in some episodes on the latest research as well as a full breakdown of the IPCC AR6 Synthesis Report and it just makes me smile. 

Now before we begin today, a quick shoutout to a few of our new listeners in Seoul S. Korea, Billings, Montana & Neu-Ulm, Germany. We appreciate you and hope you feel more empowered to go out and have the conversations we so desperately need to have. 

Ok, now all over the news the last three weeks has been a buzz around a specific new U.N. Treaty on the High Seas. From a technical perspective it’s called “An 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“. In less fancy language and in the policy world its simply referred to as Biodiversity Beyond National Jurisdiction or BBNJ. To the press and everyone else, it’s simply called The High Seas Treaty.

To start, let’s back off a bit and make sure we all understand what we mean by the high seas. As a long time blue water sailor, this is the area of the planet that speaks directly to my soul. To the landlubber - wait I’m sorry. Does anyone actually use that term? You see, this is exactly what happens when I riff on a subject - sometimes some things just come out.

Stop laughing - like you have never been there! Maybe I should script this - today however, you get me on total stream of consciousness.

Anyway, what I meant to say is that to those of you that haven’t ventured in the ocean beyond where you can still see the shore, the high seas is an area beyond any one country’s jurisdiction. You see, we are good at recognizing the lines we draw on land to delineate between sovereign nations, but where is that in the water? Well in it’s simplest terms, think about it like this. Imagine a 5 year old drew you an overhead picture of a beach with four different crayon colors of blue. I say crayons, because anyone who has ever watched a 5 year old knows you don’t give them markers…EVER! Anyway, you have this nice picture of a light brown beach touching the first color of blue. This blue stripe follows the shore and extends 12 nautical miles from the coast. This is referred to as territorial waters. A nation has complete rights over this space - in the air, on the water and extending down through the sea floor. The second blue band extends out another 12NM (usually) and is referred to as the contiguous zone and is where a State Party has limited rights to exert dominion over. Your third blue stripe continues from 24NM to 200NM - This band, in conjunction with the former two make up a country’s economic exclusive zone. It is from the shore to the edge of this band that a coastal country has exclusive rights to all economic resources. Now it’s the 4th crayon stripe of blue on our 5 year old’s picture that concerns us today. Beginning at the 200NM mark is where the high seas begin. 

To put this in perspective, the high seas encompass 64% of the world’s oceans or looked at another way, just a mere 40% of the surface of our planet. Now I can just hear Dr. Sylvia Earle yelling at me “Brian LOOK DOWN” and she’s right - to someone who has never been out there, the surface of the high seas can look like a lifeless blue desert - but underneath it is teeming with the full richness of life. 

In short, the high seas are a massive area that no one nation has rights over. And as the world looks to implement a 30 by 30 plan (Thank you COP15) it is imperative that we discuss how to protect the rich biodiversity that calls the high seas home. Enter the new HIGH SEAS TREATY.

Now the first question you may be asking yourself is “Brian, this can’t be the first time humanity has looked at the high seas is it?” That’s a great question and the answer is no it isn’t. To get there we need a quick history lesson.

In 1609 a Dutch philosopher by the name of Hugo Grotius first proposed Mare Liberum or Freedom of the Seas. Now to be fair, this is the European history (as is most of what the english speaking world is taught - in Asia this concept existed well before ol’ Hugo. The funny bit is during this period the rights of a nation only extended only about 3 miles from shore - what was referred to as cannon shot rule. …and I have to say as someone looking back on history this cracks me up. I mean seriously - only humans would say my rights extend as far as I can blow something up. Now, fast forward to WW1 and U.S. President Woodrow Wilson said in his 14 point speech to Congress:

“Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants”

The League of Nations called a convention on the subject in 1930 but no agreement was reached. Then in 1945 U.S. President Harry Truman claimed the resources exclusive to the US extended out to America’s continental shelf. This started a water grab and a lot of countries followed suit - notably Peru & Chile who both extended their nations water’s 200NM offshore in order to cover the fishing grounds in the Humboldt Current. By 1967, eight countries had set a 200NM claim, 66 had extended to 12NM and only 25 continued to use the 3NM standard.

In 1958 however, the UN held it’s first Conference on the Law of the Sea or UNCLOS. This resulted in 4 treaties that I won’t dig into today to save you from boredom save to say the 3rd one was the Convention on the High Seas. This was superseded by UNCLOS III in 1982 (which didn’t come into force until 1994) which introduced Economic Exclusion Zones among other things. Now Part XI of that treaty established the International Seabed Authority which was to oversee mining rights and operations as well as the distribution of royalties. Because of this, the United States (of course) refused to ratify it - despite the fact that 167 other countries have. 

Fast forward once again this time nearly 30 years to present day and we FINALLY have agreed as an international community on wording to cover gaps left from UNCLOS III as well as the now recognized by the industrial world need to protect the world’s biodiversity. I say industrialized world because indigenous peoples have long known the need for and practiced ocean and biodiversity conservation. We are just catching up.

Now, it was on March 4th that BBNJ president Rena Lee announced “The ship has reached the shore” upon the late night final agreement. 

..and this is where the details really begin. But before I run through the juicy details a quick aside - I have to say what made me laugh is the number of news agencies and individuals that heralded the new agreement before ever reading it. How do I know, well the text was not released for two days after it was made and that is why almost everyone’s report repeated the same thing. As someone that spends everyday examining language and science papers, this annoyed me - to say the very least. If you are gonna speak around me, you damn well better have citable sources as well as you facts straight - it’s a pet peeve I know, but all the same thats just who I am. Okay, on to the treaty.

As we dive in, we need to clarify a few items. First, what was agreed upon was the language. The agreement itself will not enter into force until 60 parties or signatory bodies of the UN sign it. This could take years. I wish I could tell you differently as we are not at a moment in history where we can move slowly on these matters, but in reality it may be a few years before the high seas treaty actually enters into force. For perspective, the Paris Accord took 11 months to enter into force. The Montreal Protocol took 2 years - from 1987-1989 and the Kyoto Protocol took 7 years and 3 months - from 1997 to 2005. 

To make this easier, I’m going to break this into 5 parts - it’s purpose, principles, institutional arrangements, benefit-sharing & conservation measures.

So let’s start with it’s purpose. The stated objective of the BBNJ is:

"to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination"

In other words, there is a global recognition that these areas are vulnerable to human activities and in the face of anthropogenic Climate Change and as such, urgent action to protect them is needed. Further the agreement, as mentioned previously, seeks to fill the gaps in current international legal frameworks for the management of marine biodiversity.

As for principles, There are three guiding ones in the agreement that are paramount and in my mind should be applied in nearly EVERY situation. They are the precautionary approach, the ecosystem approach, and the principle of humankind’s common heritage. Now let’s touch on each briefly. 

The precautionary approach or more commonly referred to in the scientific world as the precautionary principle is a guideline in environmental decision making that involves 4 points - Namely:

1.) Taking preventive action in the face of uncertainty; 

2.) Shifting the burden of proof to the proponents of an activity; 

3.) Exploring a wide range of alternatives to possibly harmful actions; and 

4.) Increasing public participation in decision making.

Now why is the precautionary principle used both in the scientific realm as well as here in the new Ocean Treaty? To quote a wonderful paper on this 

“It is important to clearly distinguish between the development of scientific information about an issue and the setting of policy, but in practice, there is not always an unambiguous demarcation. Policy makers set agendas that determine the questions asked of scientists; scientists formulate hypotheses in ways limited by their tools and their imaginations; thus, the information they provide to the policy makers is limited and to a degree socially determined.”

All that to say it’s essentially approach issues thoughtfully and do no harm.

Now after the precautionary approach, the second one highlighted in the BBNJ is the ecosystem approach. This takes into account both the complexity and the inter connectivity of marine ecosystems. Think of this as applying a systems approach to both high seas biomes and biological diversity to manage them in an integrated and holistic manner.

Finally the third principle of the BBNJ is wonderful to see and that is the principle of humankind’s common heritage. Now before someone decides to beat me up over saying we all have a common heritage, let me explain what the Treaty means by this. It is the idea that the ocean, its biodiversity, and all of its resources are a shared global asset that should be managed for the benefit OF ALL.

Ok, now I need you to stick with me as while this next bit is somewhat tedious, it’s critically important to know and understand. Under the agreement a new Conference of Parties is created (so if you are already confused between COP 26 & COP 15, be prepared for COP 1 to enter the picture soon. Along with that a Secretariat will be selected to lead it. Within this COP there are new institutional arrangements - specifically 4 new bodies are created and two new mechanisms and we’ll run through each briefly …I said briefly so don’t hit the skip forward button (I don’t need you falling asleep at the wheel). 

The first and most significant is the Scientific & Technical Body. This group will provide scientific advice to decision makers on both the sustainable use of marine resources (including oversight of environmental impact studies) as well as the conservation of marine biodiversity. 

The second is an Implementation and Compliance body and is …well… exactly what it sounds like and doesn’t need further explanation.

The third body in the Capacity-building & Transfer of Marine Technology Committee. No we this is a big one that is layer out in extensive detail in the BBNJ taking up the entirety of Part 5 of the agreement with Articles 42, 43, 44, 45 46, and 47 all addressing this topic. Oh, stop groaning, I said I’d be brief so in short It’s their job to help all countries - especially developing and land locked states develop and share marine technology and assist in building scientific research capability across all parties to the agreement.

The forth and final body is the Access & Benefit-Sharing Committee. This is one of the more important aspects yet is one of the two points in the BBNJ that makes me the most concerned. You see, this committee - made up of 15 individuals - is charged with making sure the monetary benefits of both marine genetic resources and digital sequence information is shared along with determining the appropriate rates and mechanisms for doing so. If there is one thing life has taught me, it’s that money can make the closest of allies turn on each other and I truly hope this body is able to conduct itself such that this whole agreement doesn’t fall apart. 

Finally I said there were two mechanisms created as well. The first is the financial mechanism for funding this whole operation. This SHOULD be cut and dry, but as nearly every environmental fund where rich countries are supposed to support developing ones is underserved so let’s just say I hold hope that this one will operate at equitable levels.

The second mechanism is one of my favorite parts of this agreement and that is the development of a clearing house mechanism. Now the reason I like this is because it echos the fundamentals at my very core - your see part of the birth of South of 2 Degrees came from the idea that you shouldn’t have to pay to access scientific information on climate change and biodiversity loss. So many papers are hidden behind paywalls that we created this podcast specifically to help disseminate that information as access to this critical information we need to act should NOT be limited to only those who can pay. The clearing house mechanism of the BBNJ does just this. ALL and I repeat ALL information from meeting transcripts to conservation efforts to operations extracting marine resources along with there updates and environmental assessments will be publicly available. Just as we believe at So2D, so does the committee that laid out the new high seas treaty that information should be accessible and free… period!

A quick aside on the information sharing, while set to be free there is a wonderful caveat with regard to traditional and indigenous knowledge in that it shall ONLY be accessible with prior and informed consent. While this information may be made available under the clearing house mechanism, it will only be done soon on mutually agreed upon terms with the appropriate indigenous peoples and communities. This prevents cultural appropriation in a way such that traditional knowledge can be used, quoted, and applied knowing that the traditional holders of this knowledge have agreed to share it publicly. 

Now the 4th part of the treaty focuses on benefit sharing which we have touched on just a minute ago under the new committees. The idea of benefit sharing is so entrenched in this agreement it just makes me smile. Essentially the BBNJ recognizes the challenges developing countries face and circles back to the third of its core principles in that the ocean is a shared global asset to be used respectfully. In fact the treaty goes to great lengths to highlight in particular the least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States, archipelagic States and developing middle-income countries squarely putting climate justice at its core.

The 5th part of the new High Seas Treaty is what most of the environmental world celebrated (and why I saved it for last). This part covers conservation measures. There are three main points under the conservation subject in the BBNJ and the first is by far the best of the whole agreement. In Part III, Article 14,c it lays out the reason behind the establishment on new marine protected areas as: "Protect, preserve, restore and maintain biodiversity & ecosystems, including with a view to enhancing their productivity and health, and strengthen resilience to stressors, including those related to climate change, ocean acidification and marine pollution". As someone who has spent the better part of my life on or working within and fighting to protect the maritime environment, if this part were the only thing that made up the treaty, I’d still be happy. However, the establishment of marine protected areas (or MPAs) isn’t the only subject under conservation. Area based measures and management tools are given a prime focus to manage human activities in a way such that they minimize impact on marine biodiversity. These go beyond just regulations and open up the development of both zoning and spatial planning as well. The last bit under conservation we touched on under the committees earlier as well and that is the development and heavy use of scientifically peer reviewed environmental impact studies. I don’t think I need to say more here save for they will be the core of guidance in how to proceed with any human activity.

Now I know I do my best to keep my option out of this podcast, but the question I get asked all the time when I go and speak somewhere is “Well, what do youI think Brian” so I’ll break with the norm and mention some highlights and pitfalls before we wrap up for the day. 

As for the bad bits I see three that stick out. I’m sure as we move towards implementation they will be better addressed but for now, this is where the treaty can crack:

1. Under the agreement, parties are allowed to self monitor and assess activities.
2. No new legal teeth exist within the agreement and it’s left up to current laws. And
3. The potential for violation without any real repercussions exists. 

Now the best bits:

1. Climate justice is at the agreement’s core
2. The international agreement that MPAs on the high seas should not only exist, but thrive and be shared by all
3. Transparency rules the day - yes you as an average citizen of the world can, under the agreement, ask permission to attend attend future meetings as an observer
4. Well this is the icing on the cake in my mind. In article 20 Sec 6 it states that just because a Party refuses to sign the Agreement does NOT discharge it from the obligation to cooperate in accordance with it. Yup, you heard me - if a country decides it doesn’t want to be a signatory of the agreement, thats cool, but it still has to abide by it out of deference to the countries that do. This means MPAs will be enforceable no matter if you sign or not.

And on that note, that wraps up another episode of South of 2 Degrees. just a reminder to check out the new website over at southof2degrees.org and if your want to see anything specifically there, be sure to shoot us a note. Also, if you have a moment, be sure to leave a review on your favorite podcast platform as this helps more people find this show and broadens the Now aside from checking out the latest information on the website, blog, Meta, linkedin, twitter, & instagram - do this for me. Tell one other person about this show in the next week, Have at least one conversation about climate change with someone else and above all, keep it south of 2 degrees.