Sea Control - Sea Control 435 - The High Seas Treaty with Gabrielle Carmine

Episode Date: June 11, 2023

Link: Agreement Reached to Advance High Seas Treaty, The High Seas Alliance, March 4, 2023. 

Hey, folks, it's Jared. Gabrielle Carmine joins us for this podcast to provide a firsthand account of the signing of the High Seas Treaty. This episode was edited and produced by David Zahida. He has one more episode in the can with us, so to speak. But that'll be it as he is moving on to some bigger and better things. David's been a pro's pro for us for the last couple of years. We want to say a very public thank you to him. We've also said a very recent goodbye to the excellent Joshua Groover.

So what does all that mean? We're looking for editors again. so if you're interested in learning how we put these podcasts together and think you're able to learn our basic editing skills, we'll teach you. Drop us a note at ccontrol at simsec.org. I'd like to pause here to highlight our local chapters, whether you're in South Korea, Egypt, Singapore, France, New York, India, or the Caribbean. Chances are there's a SimSec local chapter near you.

You can find a full listing of local chapters and contact information on our website, simsec.org, so if you're interested, please reach out and get involved. Finally, I want to take the opportunity to recommend our partners in the SimSec Podcast Network, The Bilge Pumps. You can find Alex, Jamie, Drack, and a pile of Iron Brew bottles wherever you download your podcasts. And with that, Kimber's Mountain. You're listening to Sea Control, hosted by the Center for International and American History. Aloha, shipmates, and welcome back aboard Sea Control. My guest today is Gabrielle Carmine, a Ph.D. candidate at Duke University, and we're going to discuss the recent passing of the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, better known as the BBNJ or High Seas Treaty.

And after I've flubbed it, you can kind of see why we use the better known. Gabby, welcome. Could you tell the audience a little bit about yourself, and do you have a preference for BBNJ or High Seas Treaty as we refer to it throughout the podcast? Yeah, thank you for having me. I think there's definitely a preference for BB&J. Hopefully it doesn't become too much alphabet soup. Nothing will be worse than reading that entire thing the first time. So BB&J, we got it. The title is rough, for sure.

It wasn't created by a marketing team. That's clear. It was created by lawyers. But, yeah, so BB&J. So I'm a fourth year PhD candidate in marine science and conservation at the Duke Marine Lab, and I'm in the Marine Geospatial Ecology Lab. So my work is focused on high seas conservation and management as it relates to fisheries. So what I look at is beneficial ownership of the high seas fishing fleet, which for listeners that aren't clear what that is, That is the actual beneficiary, owner, corporate actor of a fishing vessel, which is often hidden from the public and hidden even from fisheries management organizations.

So I look at my first chapters published in One Earth looking at who the high seas fishing fleet is. And that uses a lot of satellite data. So I rely heavily on quantitative methods and satellite data to do my dissertation work. And then I also focus on management and policy of high seas fishing and conservation. So this BBNJ treaty is right up my alley for all research and ocean conservation purposes, for sure. So what problem or problems is the treaty supposed to address? To get to this, I think it's important to think about what's going on in the high seas. So this implementing agreement is a treaty that would protect and preserve the marine environment in the high seas and move away from unsustainable industry extraction and move towards sustainable use. The high seas have not been treated with respect, I think it's fair to say, respect for the habitats, the ecosystems, the migratory species.

if we start with the ecological issue and marine animals in the water column so when i say that that's fish megafauna like sharks and whales and dolphins that are highly migratory so they bounce between national waters and areas beyond national jurisdiction so during the mid 20th century fisheries expanded really rapidly into the high seas and led to a lot of degradation of high seas biodiversities so if you look at all high seas fish stocks that are managed three quarters of them are considered depleted or overfished that along with a decreased relative abundance of species and shrunken spatial range of target and non-target species leaves these ecosystems leaves the high seas environment vulnerable to things like climate change to

ecosystem collapse, because something we know is a biodiverse ecosystem is a resilient ecosystem. And even if an animal isn't targeted by fishing, a really big problem is bycatch. So that's the unintended catch or incidental catch of non-target species. And that has had really catastrophic impacts on the open ocean. So 75% of all oceanic shark and ray species are threatened with extinction. And a lot of that is because sharks sort of overlap with a lot of the fishing vessel activity. So they have sort of because of their high mobility. It's estimated that 300,000 marine mammals every year are killed because of bycatch. And this is all for what? This is for fish caught on the high seas that people all over the world eat. But these fish on the high seas that are

caught are negligible for global food security. And almost all of them go to high-end markets. Thank your tunas and Chilean sea bass and things like that. And now if we go to the deep sea, which is a place of incredible biodiversity, and we know so little about it. So we know more about the surface of the moon than we do the seafloor on earth. If you think about what the fishing industry has done to the deep sea one thing is bottom trawling so a super destructive fishing method it's basically where they take a really large net with weights and pull up everything from the seafloor this gets a lot of you know demersal and benthic fish species can you explain the terms demersal and benthic yeah no so demersal and benthic just mean

animals that live on the seafloor or just above it. So think like flounders, like all those flat fish, things like that. And in these areas that are on the high seas, you have cold water and deep sea coral systems that are really unique. You also have seamounts, hydrothermal vents, and these deep sea corals grow really slowly, about like five millimeters per year. So if you pull that up through bottom trawling, it could take centuries or decades, you know, decades or centuries to regrow. And it's estimated that 95% of coral cover of seamounts has been lost as a result of bottom trawling. And that's all over. But if we think about the high seas, it's really critical because there is high seas bottom trawling. And then the last ecological issue

on the high seas or potential one is the potential of deep sea mining, which hasn't happened yet. But it hasn't happened successfully. And this is not my area of expertise, but my advisor, Pat Halpin, is an expert in this area. So deep sea mining is the potential mining for manganese, nickel or cobalt or these polymetallic nodules that are used for like solar panels and electric vehicles. And it's rigorously opposed to. States have called for a moratorium like France has. And some companies have said they're not going to use deep sea mined materials like BMW, Samsung and Google. But many states and companies are eager to mine. So this is all happening in a place that is unregulated. This is a lot going on. It has felt the brunt of 50 years, at least, of pretty intensive extraction. And this treaty is supposed to make this unmanaged space managed in a multilateral agreement.

So how long has the treaty been in the works? And can you explain the quote unquote history of its evolution prior to the last two weeks? After that, we can talk about sort of how the last two weeks went. I think there is like a 36 hour sprint that you were part of that we can go deeper into with what that looks like. I could literally watch it unfold on my Twitter timeline, but I want to talk about sort of the history of the treaty prior to this last two weeks. Yes. It was closer to a 40-hour sprint. It was pretty intense. But yes, so I'll try and keep it snippy, but this treaty has been in motion for 21 years, which is incredibly long. It's a big chunk. I know, but for me, for a lot of people like PhD students... More than half my lifetime, this treaty has been in work.

Yes, exactly. This is a big chunk of a lot of people's careers. So formally, though, it started in 2004 with the UN General Assembly adopting a resolution that created an informal working group to study issues relating to the conservation and sustainable use of the high seas. So this working group, an ad hoc working group, talked through a lot of these issues, a lot of the issues that I had previously stated about overfishing and habitat destruction and things like that, and potentials for new destructive industry. And then that working group led to an adoption in 2011 for recommendations to start a legal framework governing biodiversity in the high seas. that working group then led to thinking about, okay, we need a legal framework for how to manage the high seas. And then a preparatory committee met four times for these BBNJ negotiations between 2016 and 2017 to sort of plan what would happen at the formal negotiations, what priorities are. And then at the end of that, in 2017, the U.N. General Assembly approved a resolution that sets up these intergovernmental conferences and it set up four of them. So and it also during that time set up the four main topic areas of this treaty, which are marine genetic resources and the including the sharing of benefits from these resources.

Do you want me to explain what each means now? Yeah, go ahead. So this is also where we got the four big sections of the treaty, which is marine genetic resources, which includes the sharing of benefits of these resources. I have a, which means monetary benefits, you know, how to share like the money from what is found there and non-monetary. So I have a professor at Duke Law School, Steve Rohde, who always says, who gets the crab that cures cancer, right? Because there are so many discovery in the deep sea, in the high seas, and there are so many discoveries in the ocean generally. So that is what that section is trying to figure out. The next section is my area of expertise, which is area-based management tools, which includes marine protected areas.

otherwise known as MPAs. So if I say MPA at any point, I'm always I always mean room protected area to explain area based management tools that just creates protected areas and the how to propose one, the consultation of it, the implementation of it, all the nitty gritty legal things that go around with that. The next section was environmental impact assessments. So that I think is pretty self-explanatory. I think definitely for your viewers. But environmental impact assessments are sort of thinking about, OK, if an industry is coming in and wants to do something, how do we understand what impact that will have? What impact will that have on the environment, on the ecosystem, on various cascading impacts through the food web? And then the last one is capacity building and technology transfer. So how do we make sure in this multilateral agreement that everyone is on an even foot, that everyone has access to the technology needed in this space and everyone has the capacity to make this treaty work in real time and in the real world?

And so these four conferences then had dates. So the first one was in 2018. Then there were two more in 2019. And it was supposed to conclude in the fourth one in March of 2020. How'd that go? What happened? So that didn't happen, obviously. I think it's fair to say my personal opinion is that momentum is law was lost. And in these situations, momentum is everything. When you're discussing these issues, you're negotiating these issues, you're writing papers on these issues, it's in the forefront of everyone's mind. And when you lose that momentum, that's a big loss. So I think when it was that

fourth intergovernmental conference was then rescheduled for March of 2022, I think a lot of people knew that wasn't going to be the last one, because there was no momentum anymore. There were sort of side, you know, meetings and things like that, but it's not the same. well that's how you wind up with like a 40-hour negotiating session right nobody wants to push back from the table because you can all sense it and like no the finish line it's right there we can all see it it's like just keep going exactly yeah exactly tell me about the 40 hours there was also so this previous negotiation was the resumed fifth intergovernmental conference so there was the fifth one was actually in the August, which I was there for as well. And it got so close to

the end. So close. Like we were there till like 11 o'clock, many of the nights that second week. And that last day, we didn't leave until one in the morning. And there was, you know, there were people crying when they were like when different states were giving their speeches, there were a lot of really, you know, intense feelings that it had failed, right? And that we couldn't get over that finish line. So coming into this resumed fifth conference, hopes were high. I think the feeling was if it's either going to happen now or it's not going to happen. These issues are too insurmountable. But so it's two weeks long. The first week, I think, moved a little slower than expected. I think people were getting into the rhythm. You know, people were bringing in

new text to this discussion and people were bringing up old issues that had already been resolved, which so that first week could be frustrating. The second week, that's when the later nights started. So we were there till midnight, a lot of the nights. And then that last day, it was supposed to end Friday. We got there at 9 a.m. And the first plenary started at 10. And we said, OK, let's go. Let's get this by six o'clock. It was supposed to be all wrapped up. Six o'clock came and went. And a lot of these negotiations on the last day were happening behind closed doors. So as an observer, it was really important that I had created these relationships with delegates so I could understand what's happening in the rooms. And also with my

fellow observers who also have relationships with delegates, because my role is, if I'm speaking to a delegate, they ask me as a PhD student, as an expert in this, they ask me what I think, and I have to be ready to share that and sort of help them think through a lot of these scientific issues because a lot of them are lawyers six o'clock came and went we kept on thinking that we would get new texts or be called back into plenary and that happened we got called back into plenary around eight and there was some filibustering and it was really frustrating and I think that last day there was probably six or seven issues that could have like totally tanked the treaty and everyone I was like oh this is not going to happen and then they found a

compromise and I was like oh thank god we're gonna have a treaty and then the next one came so it was an emotional roller coaster we got an updated text at 1 30 in the morning and we were waiting to see because like every hour we were like it's gonna happen we're gonna find out that they agreed to everything or things like that or and then we got that the new text at 1 30 and it was covered in brackets and in this scenario brackets mean that there is an agreement on a word so there were like two options for a word and they're both in brackets and delegates have to pick one so the more brackets the less consensus and there were hundreds of brackets hundreds at 1 30 in the morning and that's sort of when we knew we were in for a long night we kept on waiting we're talking

to other delegates about their thoughts i think a lot of folks were like this treaty is not going to happen at you know 1 32 or 3 in the morning and then around four we found out it was probably going to go well into the next day. So some of us slept on the floor of the United Nations lounge for two hours, including myself. Many of us did. I think there's definitely some pictures on Twitter of that. We woke up at six and we just kept going. And then delegates were negotiating in a small windowless conference room. It was a Saturday at the UN and model UN was there. So I want to say like hundreds of 16 year olds were flying into this space where we had are still in the clothes that we were wearing the day before. Do you think you scared them off from transitioning

from model to actual UN? I hope we didn't deter them too much. I think if anything, I think if I was them, I would think it was cool to see them. But I really think they were 16 year old. I think they didn't even look at us too much. They sort of like walked right by us. There were a couple times I thought I was going to get run down by them. So you mentioned all the brackets. I mean, Can you sum up what the main sort of sticking points were and how those were overcome? So there were a lot of issues that were sticking points. But as we think about this, it's important to think of these four sections. So one of the sticking points, there were, I could say, like three or four really big final sticking points where the core issue was the same.

And that core issue is a deep disagreement between states. about this right to fish in the high seas that it is a common space for everyone to extract what they want what they need or what they think they need with this feeling that you want to protect the high seas and you want to create mpas and you want to close off areas of the ice high seas to fishing or create these area-based management tools sort of this push pull between the right to for country to do whatever they want in there or for everyone to equally do what they want there, even though it's very expensive to get to the high seas and fish there. So compromises had to happen. Because a big section of this is to create MPAs.

That's a point of this treaty. And that inherently does mean you cannot fish everywhere in the high seas. So one compromise that, to be honest, I was disappointed about was the opt out agreement. And that then led to a lot of discussions about how that agreement would look in reality. What are the sort of guardrails on it to make sure it doesn't get out of control? So that means if, let's say, an MPA is proposed and they pass the consultation process, it's voted on, it exists, done, that it passed all these big hurdles, a party or a state, which means a state, can make an objection to this MPA. and by making that objection they don't engage with that like they don't have to that mpa is no longer relevant for them once they make this formal objection there are guardrails so that there's a big process on how to do that and additionally one thing that i think a bunch of

folks we were pretty happy got in there they have to adopt alternative measures that in effect get to the same decision that the MPA proposed was trying to do. And they can't take action that undermines the effectiveness of the MPA. And this is where we get into the issue of this is a legal text. And I don't know what a lot of this will mean in practice. But that was one compromise. Another compromise was making sure that the definition of MPA included the words long-term biodiversity, that that is the point of a marine protected area,

to protect long-term biodiversity. So that core issue of the right to fish versus protecting biodiversity, which is the name of the treaty, was a big issue and very frustrating because that was the whole point of this treaty. So it shouldn't have been such a core sticking point. Another big problem or a big sticking point and actually was the final sticking point than at the end. So at around 8 p.m., we all thought we were called back into plenary 8 p.m. that Saturday. We all thought the treaty was over, done, because states could not come to an agreement on including the common heritage of humankind. And that is this idea from the UN Convention on the Law of the Sea, that everything in the high seas is the common

heritage of all humankind it is this really core fundamental part of the convention of the law of the sea that is pretty grounded in equity and almost unexpected now to think that it was something that was so firm in the 80s and that was a really big sticking point for a lot of large developed nations. Spoiler, it did stay in, which is great. But this is an issue for marine genetic resources, right? Because a lot of states that have a lot of patents, right? This gets into the issue of patent law. States don't necessarily want to share the monetary benefits of the patent of the cure for cancer if they find it, or the non-monetary benefits like patent like there's a lot of issues with like patent law that is going to come up

with the future discussions but we could talk about this for like three hours but the point is the decision came to fair and equitable monetary and non-monetary sharing of benefits and access so that was great uh that it got in there there's a lot of sticky things that will come up. Another big issue was voting and decision-making. Some states wanted consensus voting, which would make it very easy for one state who didn't like something to make sure nothing ever got done in protecting the high seas. Most people wanted a two-thirds majority, and this sort of fell in different places. But there is nothing that has to be done by consensus only. So most of these things, they have to try and reach consensus. And then if they don't reach

consensus for protected areas, for MPAs, they have to take a three-quarter vote that says that they could not reach consensus. And then they take a two-third majority vote in order to have any decision-making processes and to implement and adopt area-based management tool. But generally, it became two-thirds. Great. Another big issue, which I think your listeners might be interested in was disputed areas in the high seas this was i thought was going to break the whole treaty uh and this started like the morning after i think this was when i was probably the closest to tears and i was like this is i had this happen again we're not going to have a treaty which could have been exhaustion too but this is about areas that are in dispute

with whether or not they are international waters or they belong to a state so when we talk about this you have to think about the south china sea for example and what's going on in the south china sea if an area is in dispute of being a high seas area or if it's being part of a sovereign state so this sort of got worked out by in a couple places so one of them is article four this a lot of these article numbers are going to change but sort of this agreement and like the decisions about this agreement it says and acts or measures or activities undertaken in are done without prejudice and shall not be relied upon as a basis for asserting or denying any claims to sovereignty, sovereign rights, or jurisdiction, including in respect of any disputes

relating thereto. So a lot of disputed areas are sort of taken off the table for high seas protection. As someone who wants to see a lot of high seas MPAs, that's not the biggest win, but I think in any multilateral agreement, if everyone's a little upset, that probably means compromised happened so disputed areas was an issue and then for the creation of marine protected areas the area of application is in article 15 so like where it can be applied to it says it again the establishment of area-based management tools can't include any areas within national jurisdiction and shall not be relied upon as a basis for asserting or denying any claims to sovereignty, sovereign rights, or jurisdiction, including in respect of any disputes relating

thereto. So that is pretty solidly in there. So disputed areas are likely not included for creating marine protected areas and things like that. And there is an option to request for the tribunal for the law of the sea for an opinion on the disputed area, and that's in Article 48. So there is an option. Again, this is a legal framework. So what's written versus what happens are probably going to be two different things. But, yeah, I think those are some of the bigger issues. How does the treaty address the issue of enforcement in an area that's ungoverned? So who's going to actually enforce the MPAs that we're talking about? We don't really know. Like there are some legal frameworks to help set this up.

I could take a guess, but I'm not sure. Right. So we know the legal framework. It's just hard to know what states are going to do for sure. When it gets to the conference of the parties and it's time to start implementing. So Article 55 talks about dispute settlements. So like how to settle disputes between parties, like if a party is not respecting an MPA and didn't opt out. so they have to find common ground and if they can't it goes to the international court of justice or the tribunal for the law of the sea if they're a party to the un convention of the law of the sea but like the u.s is not which is a fun fact the u.s is not and uh the you know the

country probably most affected by this is just set aside one of those rulings that it didn't like so I'm real curious about the practical application. And I'm not sure what this will look like, but I think a big section for thinking through how to operationalize this legal framework is going to be that capacity building section, because it is a framework to assist the development and implementation and enforcement of policies created here at the national level, international level, sub-regional, and regional level. That is potentially a really great tool in this toolkit, it. Another potential tool is the fund, like the financial monetary fund that is set up for the BB&J agreement. Because I'm sure your listeners know, enforcement is expensive. So having a fund

is really important, making sure people are giving money to that fund. There are organizations that give to that fund. But the best answer I have is sort of a disappointing one, which is we'll see what happens. A lot of this is going to be decided at the conference of the parties where they adopt rules of procedure. And it's important to keep this in mind that a lot is up in the air because we can't say, oh, it's done, right? We need to keep this momentum up for this first meeting and push delegates and push states to support things that encourage biodiversity protection and encourage the enforcement of the measures that are put in, like to put these guardrails in as we think through what happens next. It'll be real interesting to see because the capacity

question is one that i've talked about with an awful lot of guests and like most of these states that would share quote unquote a border if you will with these high seas do not even have the capacity to patrol like their territorial waters like the 12 mile line forget about the exclusive economic zone that they have difficulty just inside that 12 mile mile so the funding for that and then generating the capacity for that. There are new tools coming online all the time. Like drones, you can do a lot of surveillance with the drones, but you still need someone operating a watercraft then to show up at the location and do it.

So this will be interesting to see how it evolves. I know it's already taken decades to get here, but it's probably decades more before you see the full operationalization of this. what are the next steps for the treaty to enter into force what happened was the text was agreed to so all the issues were sort of agreed to that's why if you look at the BBNJ website you and you download the advanced unedited text draft agreement there's like grammar mistakes and there are things like that so the main text was agreed to so now a big part is they have to translate it into six languages so the amazing un translators are translating it into six languages

and fixing any renumbering because like a lot of these articles four articles were deleted it goes from 12 to 17 you got to sort of make that work then there are like two article 48 like 48 or 48 this because when you're editing it you don't want to have to like renumber it the whole time that's too cumbersome so they would just throw something in it made it easier for the negotiations and then so after it's translated into six languages and any errors are sort of taken out the states meet to approve it and discuss any translation issues which is expected it to be a formality, right? Because agreeing to what the content of the text is, is the hardest part. So then it'll meet for approval, then it's opened for signature. That is the time that states

are encouraged to sign it, as many states as possible. But until this agreement reaches 60 signatures, it is not in force. So the goal is to get to 60 signatures. There are things like the EU is 27 signatures, right? The EU is 27 states. So that's why it was agreed to be 60 states instead of 30. And then once the 60th state signs it, it enters into force 30 days later. And it's sort of provisionally applied until then. And then the first conference of the parties happens a year later. And that conference of the parties is where a lot of these issues are going to be ironed out. What is the rules of procedure? Sort of creating the science and technical body and the access body and the compliance body, right? I guess that's also another point to thinking about

how does the treaty address enforcement? There is a compliance body that will get to a lot of those issues figuring out who should be on there states nominate so the implementation and compliance committee members of the compliance committee have to be nominated by parties and then elected by this conference of the parties and then we'll have a cop so if you've ever heard in any article they're like this is you know cop 15 or cop 22 or whatever those are the conference of the parties for other things, right? For climate change or for biodiversity. So this will be the BB&J COP. So COP doesn't actually mean anything besides conference of the party. So we just throw a COP into the mix. And then that's when we get to work. Well, unfortunately, that's all that we have

time for today. I'd like to thank my guest, Gabrielle Carmine. Gabby, where can we find you online and what are you working on next? So you can find me on Twitter. You can also find me, I'll share my website and then, but I am happy to chat with anyone as well over email about some of these issues. So I'm a fourth year PhD student. So I'm wrapping up my second chapter, which is a performance review of regional fisheries management organizations, which are the 17 patchwork fisheries management bodies that are sort of spread across the high seas that will overlap with this agreement. So I looked at across 10 criteria where their strengths are, where their weaknesses are,

what does their stock status look like? I also looked at AIS data to look at fishing effort in each convention area. So how does the intensity of their fishing effort add up with the conservation and management measures they're implementing? And how does all that add up with the status of the stocks they're managing? Well, that sounds fascinating. If you're going to publish on that, please let us know. I'd love to have you back to talk about it.

But thank you again for joining us. To listeners, thanks for tuning in. We'll see you next time. Thank you so much for having me. © transcript Emily Beynon I'm going to be out of here for the rest of my life.