Elizabeth Mendenhall: This is sort of the in my mind, the big story of this treaty that it has written into it–and it was sort of an agreement before the negotiations began–that the new treaty, quote, should not undermine existing global and regional instruments, frameworks, and bodies. There’s sort of a long phrase that’s kind of capturing everything that’s already out there. So, this agreement can’t undermine what the fisheries management organizations are doing or the Seabed Authority or the International Maritime Organization. It has to coordinate between and work with, create interfaces between itself and those organizations. But it can’t tell them what to do.

Mike DiGirolamo (narration): Welcome to the Mongabay Newscast. I’m your cohost Mike DiGirolamo. Bringing you weekly conversations with experts, authors, scientists, and activists, working on the front lines of conservation, shining a light on some of the most pressing issues facing our planet and holding people in power to account. This podcast is edited on Gadigal land. Today on the Newscast we speak with Elizabeth Mendenhall. An associate professor in the Department of Marine Affairs at the University of Rhode Island. And in this conversation with co-host Rachel Donald, Mendenhall unpacks, what is being referred to as the ‘high seas’ treaty. Originally and still known as the biodiversity beyond national jurisdiction agreement. In her original commentary with Fuad Bateh, both argue that the name ‘high seas’ is inaccurate and does not account for what they say the treaty was originally meant to address. In the literal sense, biodiversity that is beyond national jurisdictions of states. Mendenhall outlines specifically what the various zones of the ocean encompass from a geopolitical and governance perspective. And also, how there is a critical lack of coordination, between the international organizations that govern the various sectors that use the ocean. The original BBNJ agreement, which is the third agreement under the United Nations Convention on the Law of the Sea, took nearly two decades to debate and reach an agreement on. And while many experts agree it was a landmark moment, Mendenhall stresses the risk and potential for business-as-usual exploitation, and damage to biodiversity depending on how states interpret and implement it in the years to come.

Rachel Donald: Elizabeth. Thank you so much for joining us on the Mongabay Newscast.

Elizabeth: My pleasure. Thanks for the invitation.

Rachel: You are here to discuss the ‘High Seas Treaty’, which is what it has become known. But before we get into that, I think it would be good to get an overview of the oceans and their biodiversity and how they’re currently governed. So, to begin with, how biodiverse are our oceans? It

Elizabeth: Extremely biodiverse. I mean, I’m a political scientist, so this isn’t my area of expertise, but the ocean is, you know, we think of it as as one place because it is contiguous connected because creatures move around throughout, you know, really large scales in the ocean, but there’s also a lot of particular places in the ocean, particular environmental characteristics and particular ecosystem characteristics that need sort of special consideration about what they bring to the larger picture of biodiversity. So, the ocean offers a lot to us in terms of knowledge, resources, experiences. And I think until the last 50 years or so, we really didn’t have a full understanding of how important the ocean was to our human world.

Rachel: Hmm. It is something that is now coming up increasingly in the news, like, that if you want to go back down the chain as far as you can, what is the source of life? It is the oceans.

Elizabeth: Yeah. And I think, you know, most of us grew up learning in school, the idea of life beginning in the oceans and then that first slimy fish creature theoretically, you know, crawling out and starting land based, you know, communities of life. But since the seventies, we’ve been learning more about um, creatures at the base of the food chain autotrophs that make their own food. That make their own food, not using the sun, not using photosynthesis. And so the discovery of hydrothermal vents, these areas in the ocean that shoot out very hot, mineral rich water, we’ve discovered have very unique ecosystems around them that include creatures that do chemosynthesis that make their own food using chemical reactions, and the sun isn’t a part of it at all. And so that’s causing scientists to kind of rethink how life might have started on the planet in the first place, because we had sort of all these assumptions about the necessity of the sun to the beginning of life that now we have to rethink. And we, that’s a new discovery from the late 1970s. That we’re still sort of wrapping our collective heads around.

Rachel: Oh, I feel like 2024 and all of the years to come and in the past are the years of trying to wrap our head around what is going on in the big picture.

Elizabeth: Will we ever get there? No, we will not because the ocean is always changing too.

Rachel: So, let’s talk about the state of the oceans. They’re incredibly biodiverse, they’re incredibly important. I believe 90 percent of the world’s biodiversity is in the oceans

Mike (narration): Just a tiny note here on numbers, they can vary by source, and various estimates say around 80 to 86% of all life on earth is in the ocean. And more than 90% of the biosphere is supported by it as noted by the convention on biological diversity.,

Rachel: But how at risk are they currently with regards to extractive policies or even climate change more broadly?

Elizabeth: It depends on who you ask and it depends on what part of the ocean you’re focusing on, but you’ve asked me and I’m thinking about the ocean as a whole and I think very at risk in large part because our governance institutions and our approaches to managing activities in the ocean sort of assume a species focus or an individual ecosystem focus, and we’re trying to shift to a broader scale perspective that thinks about biodiversity as a whole, but our approaches to governance aren’t really suited to large scale changes associated with climate change, like ocean warming, ocean acidification, sea level rise, changes in the ocean environment at a scale larger than we were ever really thinking about until the 21st century. So, if you look, for example, at the Framework Convention for Ocean Governance (the law of the sea convention), it was really innovative and it was very exciting in that it included obligations to preserve and protect the marine environment. But if you look into that part of the treaty, it’s very focused on marine pollution, like oil spills or runoff from from coastal areas, but it’s not really ready for ocean acidification or even plastic pollution because it sort of reflects an outdated idea of what the major threats to the ocean are. So not only are there all these large-scale changes that threaten, you know, things we like about the ocean and ways we want the ocean to be, but our governance institutions aren’t really designed to account for and address that scale of threat and that’s that scale of change.

Rachel: How are the oceans governed? Given that most of them are outside the 200-mile nautical boundary that relates to national jurisdiction.

Elizabeth: Yeah, that that is more of a dissertation of a question answer. But how are the oceans governed? Well, first of all, the ocean is divided into zones. And each set of zones has a set of rights and duties attached to it. And depending on who you are, you might have different rights and different duties in different zones. So, in general, there are coastal zones. Where the coastal state has extra rights of control, extra jurisdictions. So, you mentioned 200 nautical miles. That’s the exclusive economic zone. Our coastal states have the exclusive right to explore, exploit, conserve and manage living resources. They also have exclusive control over structures. They have to give permission for scientific research, so there’s sort of a set of rights associated with that coastal zone, but there’s also freedoms of navigation, so it’s not all like states expanding their territory out into the ocean, sort of like little extensions in certain areas. The seafloor actually has a whole different set of zones attached to it, where the continental shelf also includes specific rights for the coastal state, especially over mineral resources. But there’s this really interesting thing where the continental shelf claim of a coastal state can actually go beyond 200 nautical miles. So, people tend to conflate these two things and they think, oh, there’s just the exclusive economic zone. It’s just 200 nautical miles. But there’s actually situations where a coastal state has control over the seafloor beyond the control they have in the water column. But out in the middle of the ocean, when you’re talking about the water, it’s called the ‘high seas’. And when you’re talking about the seafloor it’s unfortunately named ‘The Area’ with a capital A. It’s a term my students have a really hard time remembering. I think of it as the international seabed. Those two spaces, we collectively call the areas beyond national jurisdiction. And they actually cover the majority of ocean space. They are governed by regional and sectoral organizations. So, intergovernmental or international organizations that cover one specific region in the high seas or in the seabed and/or one specific sector. So, you’ve got one organization for shipping, one organization for mining, a handful of, well, a couple of handfuls of organizations for fishing, one organization for whaling. So, it’s sort of depending on the part beyond national jurisdiction that you’re talking about. And depending on the resource or the sector, you might be working in a different international organization to make the rules. So basically, the closer you are to the coastline, the more control the coastal state has to make its own rules for ocean use activities. But when you’re in the middle of the ocean, states have to work together, and they do so region by region and sector by sector.

Rachel: I’m hearing a lot of um, the rights of nature, usage, resources uh, how many of these organizations are dedicated to the preservation and conservation of our oceans?

Elizabeth: In terms of intergovernmental organizations preservation is probably a bridge too far. If you’re thinking of preservation as protection for the sake of the thing you’re trying to preserve, like for its intrinsic value, for example, I think it’s much more common that intergovernmental organizations are interested in conservation and sustainable use. And so, it’s sort of conservation to enable use that is sustainable. And so, if you look into any of the founding documents, the treaties that created, you know, the basic scheme of ocean governance, that’s the law of the sea convention, or that deal with a specific region or a specific sector. Kind of written in there is the goal of being able to use ocean spaces and ocean resources for human purposes. So, you do hear and read a lot of ideas about, you know, the rights of nature, the intrinsic value of certain creatures, the need to preserve areas that are relatively untouched. Those ideas are out there. But from my perspective, as a scholar of ocean governance, those ideas aren’t really driving our approaches to collective management of the ocean. It’s more about how can we use this in a way that allows us to keep using it, the

Rachel: So are those ideas of the intrinsic value of a thing in the founding comments or goals of these documents? Or is conservation for sustainable use there?

Elizabeth: The latter. I mean, so I think there’s one really illustrative example, which is the International Whaling Commission. So, this is the organization that manages use activities associated with whales, especially whaling, like targeting whales, hunting whales to use them either for subsistence reasons or for commercial reasons, you know, selling the products that you get. The International Whaling Commission was set up in the 1940s, and the goal written into the founding document is the orderly development of the whaling industry. The goal was to promote whaling. In the 70s, our ideas about whales on sort of the global scale took a big shift with the environmental movement. A subset of that was the Save the Whales movement or idea. And so, over a period of, you know, 20 years, it became unthinkable for a lot of global society to continue hunting whales. We started to like whales and identify with them and learn about how they’re social and, and whale songs. And so, there was a cultural shift that led to a prohibition on commercial scale, whaling or commercial whaling, whaling for the purposes of selling whale products. However, there are kind of outliers to this set of rules. There are states like Norway, Japan, and Iceland who say, this is a part of our national culture, we should be able to continue doing commercial whaling. And there’s a category of Aboriginal subsistence whaling of Indigenous communities, primarily in the Arctic, that say, hey, this is an important part of our cultural practices, we should be able to continue whaling. And so, the regime is sort of creates or allows space for countries or groups that do not kind of agree with that large scale cultural shift around whales to continue that activity. And so that’s, for me, that’s the closest example that I see of a shift in thinking about the values that drive governance. But that example demonstrates, number one, that the shift in thinking isn’t universal around the world. And number two, that sometimes our shifts and thinking about how we value the ocean do come from a particular cultural perspective. In this case, you might say a Western perspective. And so, you know, rights of nature, intrinsic value to creatures. The ideas are out there, but I wouldn’t say that they are universally adopted and accepted and it is easy to trace them back to particular cultural origins, not just Western, you know, the world is very diverse in terms of interest, but also values related to the ocean. And so, I think that what countries kind of have in common is the desire to use the ocean in an organized way.

Rachel: Sure, but countries typically have a different set of goals than the peoples that they govern and the resources that they govern in the natural world that they govern, right? Because economic growth is predicated on continued extraction, and there are hard limits to that.

Elizabeth: Yeah, my discipline is international relations. And so, I’m always thinking from the perspective of the state, which is the term of art we use for country. And states want national security and economic growth. They pursue other things, but their sort of primary imperatives are national security and economic growth. And it’s a competitive international landscape. So, it’s not just growth of my economy, but growth and our market share compared to other economies that we’re in competition with. And so when you have a cultural value shift happening at the societal level, that does not automatically translate into a shift in the approach to governance taken by states trying to cooperate and managing shared spaces in the ocean. It can happen, but it takes a very long time, I would say.

Mike (narration): Hey there. Thank you. As always for tuning in and listening to the Mongabay Newscast. Question. Have you subscribed to Mongabay’s newsletter yet? That’s a trick question because we have six different curated options for you. We have our traditional newsletter with all the Mongabay highlights. But if you want to get more specific, we have separate options for reforestation webinars, videos, Mongabay Kids, and thoughts from our leadership team. So, if you haven’t picked your favorite newsletter yet, or several. Find all options by clicking the subscribe button located in the upper right-hand corner of the landing page at mongabay.com. That’s all for now. Let’s dive back into the treaty.

Rachel: The thing I’m particularly curious about with these different regions and different sectors and the fact that most of these organizations sound like they are essentially attached to industry or they’re to help regulate or support industrial extraction or commercial purposes is does that mean that they make, each of them makes their own rules about how to conserve and sustainably use their part?

Elizabeth: Each organization you mean?

Rachel: Yeah.

Elizabeth: Yes, yes. There is, there is no hierarchy. There is no organization. That coordinates between the fisheries management organizations and the International Maritime Organization that manages shipping and the International Seabed Authority that manages seabed mining. There’s no top-down view that says, “Hey, we’re protecting this area from mining. So, let’s also not fish there. And let’s also have the ship slow down or avoid that area.” And so that kind of impulse or like the desire for coordination has led to the effort for this new ocean governance treaty that you mentioned at the top of the recording that I call it the BB& J treaty, Biodiversity Beyond National Jurisdiction, because it, it seems inefficient to not have coordination between these sectoral based organizations. And there is also that risk of, well, it’s a fisheries management organization. And it’s a collection of states with fishing interests.

Rachel: Well, exactly. Hmm.

Elizabeth: Who do the states send to the negotiations for the next set of rules? Fisheries experts who may have been from the fishing industry. So, there’s this whole idea of regulatory capture. A colloquial American way of putting it is the fox guarding the hen house. Um, and my favorite authors on this topic are Samuel Barkin and Elizabeth DeSombre. They have a really great book called Fish that has a whole chapter called Regulatory Capture that details kind of this line of thinking or this argument that sectoral based management is more likely to represent industry interests than shared global interests like protection of biodiversity.

Rachel: Let’s go in then to talking about this treaty. If I’m to understand correctly, was that a proposal to create a more global framework about how to manage biodiversity in our oceans?

Elizabeth: Yes. And also, we needed a new treaty to cover new ocean use activities, specifically bioprospecting. Which is the verb that is attached to the noun marine genetic resources. So, looking for genetic material that has commercially valuable properties, especially in the pharmaceutical industry. So that’s sort of a new activity that we didn’t have any rules for. We wanted to create some rules for that, but also this regional and sectoral based management, as we’ve been discussing it, it has this challenge or this problem of not being coordinated to protect larger shared interests, like maintaining biodiversity. I think some states went into the process and the negotiations with the desire to create a more hierarchical organization that would require coordination among the regional and sectoral management organizations. But what we ended up with is a new treaty that ideally will enter into force and there will be organizations associated with that treaty. It doesn’t have a overview. Or like hierarchical relationship to these other organizations, but it is supposed to coordinate between them. And so, this is sort of the in my mind, the big story of this treaty that it has written into it–and it was sort of an agreement before the negotiations began–that the new treaty, quote, should not undermine existing global and regional instruments, frameworks, and bodies. There’s sort of a long phrase that’s kind of capturing everything that’s already out there. So, this agreement can’t undermine what the fisheries management organizations are doing or the Seabed Authority or the International Maritime Organization. It has to coordinate between and work with, create interfaces between itself and those organizations. But it can’t tell them what to do.

Rachel: Well,

Elizabeth: And so new treaty, the new treaty can create marine protected areas. But those marine protected areas cannot regulate fishing, shipping, or mining directly. The BBNJ organizations have to get those other sectoral bodies to make complimentary restrictions. So that’s what I mean by the—

Rachel: –sorry, sorry. I have to stop you. Does that, does that mean that this this new organization could essentially declare and protect one part of it with regards to whatever it is that they have jurisdiction over, but there could still be mining and there could still be fishing and there could still be everything else. So–

Elizabeth: Correct

Rachel: –it could be quite, well, that’s an incredibly superficial understanding of the word protected.

Elizabeth: Yes. And I think that. Everyone involved in the negotiations sort of understood that, that it’s not full protection, but states are very hesitant to delegate any kind of decision-making authority to a third-party body. They don’t want to agree to a treaty now that is going to require them to follow rules later that they haven’t agreed to now. And so, states kind of like the regional fisheries management system and the IMO, the International Maritime Organization and the ISA, like those existing organizations are working for them in a way that they’re not really willing to give up. And this was a massive misunderstanding of this treaty. The night the negotiations ended; a lot of observers took quick screenshots of a BBC news article about the end of the negotiations. And the sort of subtitle was “New treaty creates marine protected areas to regulate fishing, shipping and mining” like it was exactly wrong and I think a lot of the reason is the desire for optimism and hope and a feeling of achievement, which is a totally understandable thing, but the reality of the ‘should-not-undermine’ restriction is such that this treaty has a process for designating protected areas, but if those areas are going to restrict activities that already have governance institutions, those other institutions are going to have to work to have consistent and complementary restrictions in that particular area. So, we could end up with a very uncoordinated system, but it all depends, as always, on the actions of states. So, it’s possible that you have, you know, 20 states that get together, they designate an MPA through the new process, marine protected areas, then they go to the fisheries management organizations that they are members of and they vote to restrict fishing in that same area. And then they go to the International Maritime Organization, and they propose and persuade and sort of push forward restrictions on shipping in that same area. And then they go to the International Seabed Authority and do the same thing for seabed mining. That’s possible. That’s how coordination will have to happen. And, and in the treaty, this new treaty for Biodiversity Beyond National Jurisdiction, there’s sort of three ways that the, this new treaty can kind of reach out and have a coordinating role. The first I’ve already described. That states that join this new treaty, they’re obligated to pursue that treaty’s goals in other organizations that they’re members of. The second is that this new treaty will eventually have a conference of parties, so all the states that ratify it will get together on an annual basis, and that conference of parties can create mechanisms to consult and communicate with other management bodies. And number three is that the Biodiversity Beyond National Jurisdiction, their process for designating marine protected areas, it can sort of look outside of itself and acknowledge and recognize areas where there are spatial based restrictions on fishing, shipping, or mining that they could kind of build on and themselves designate as a protected area and restrict other activities. So, there are sort of built into the treaty kind of three ways for coordination to happen, but it is not a hierarchy.

Rachel: But could it be that they could designate a marine protected area? And not achieve any persuasion or pleading with any of the other organizations. And so to the public, that could look like a marine protected area, but they’ve had no say whatsoever. Or fishing, mining, whatever, has not been impacted at all by the designation of that being a protected area.

Elizabeth: Absolutely. And I that is a risk we need be on the lookout for. There’s a great article I assign in class by Radoslav. It’s called Empty Environmental Institutions,

Mike (narration): The full name of the journal article is empty institutions in global environmental politics. You can find a link to it in the show notes.

Elizabeth: And it’s an academic, you know, peer reviewed scholarly article, and he uses a series of examples to show that oftentimes–not often, but certainly it happens–sometimes states will negotiate an agreement that is purely about looking like something has been done, but actually doing nothing because there’s domestic political benefit to that. And again, people want to feel good and hopeful, and so they’ll sort of eat up that idea that, well, there are now, you know, this big network of marine protected areas. So, it’s a risk that we need to be on the lookout for. And that’s why I was really kind of frustrated by all the celebration when negotiations ended. Cause it’s like, actually, this is just the end of the beginning. Like there’s a lot do. And also, the treaty design that we ended up with and from my perspective is not really suited to achieve what it is we, we say we want to do, which is to create a big network of marine protected areas that’s effective in terms of protecting biodiversity. And, you know, I’m, I’m not trying to be a negative Nancy all the time, but I feel like I’m, I’m pushing back against too much idealism about what the treaty does.

Rachel: There was a change at the final hour, wasn’t there, in the treaty in which the language shifted. So, it was the, from what I understand, the G77 plus a host of other countries, which we can understand as the majority world, essentially. We’re very happy with the common heritage of humankind principle being used in the language throughout the treaty. And then at the last moment developed quote unquote countries from the Global North stepped in and wanted to reframe and rebrand the treaty as the ‘High Seas Treaty’. And in an article that you wrote for Mongabay with your coauthor, you detailed how this shift to the high seas has a historical and cultural and political lineage, which is about the protection of private resources above the protection of the ocean. Could you expand on that?

Elizabeth: Absolutely. Thanks for the question. This treaty is being called by many the ‘High Seas Treaty.’ That is not a neutral, objective term. That term carries with it a particular perspective that is biased in favor of the interests of developed, maritime, advanced countries. And I’ll, I’ll unpack that claim, but that’s the claim that we make in the article. So, we’ve already established that this new treaty covers two areas beyond national jurisdiction. The high seas, which is water and the area, the international seabed, which is, you know, the sea floor, those kind of legal zones were created by the law of the sea convention in the seventies. So they’re sort of like a foundation that the new treaty builds upon the high seas is sort of underlined by the principle of freedom of the seas, the idea that everyone has a right to access and use ocean resources in the high seas. It’s a sort of permissive principle that yeah, you can come use it. You’ve got to be involved in management and helping with the rules. You know, we don’t want over exploitation, but the kind of foundation of the idea is access and use is the goal. In contrast, the International Seabed, the principle that underlies it, is the common heritage (we used to say ‘mankind’ in the 70s, but this treaty shifted it to ‘humankind,’ which is a great development). That’s a much stronger principle. That contains the idea that the International Seabed is collectively owned by all humanity. And the key part of common heritage is the idea of equitable benefit sharing. So, there’s a lot of minerals, and there’s a lot of interesting creatures on the seafloor, and because that’s a common heritage area, we all are supposed to benefit equitably from those resources. So, there are two different principles, two different approaches to governance. This new Biodiversity Beyond National Jurisdiction, the BBNJ Treaty, which is the more official term, by the way, the UN website is UN.org/BBNJ this treaty covers both of those areas. To call it the ‘High Seas Treaty’ absolutely ignores that it applies to the international seabed. , and also kind of changes how we think about the treaty as a freedom of the seas type of approach to governance. So, the high seas carries with it this principle of freedom of the seas. That’s not, you know, Beth Mendenhall’s argument. That’s written into the law of the sea convention, the so-called constitution for the oceans. And so, deemphasizing the one half of what the treaty covers, the international seabed as common heritage is really, not good for developing countries and the group of 77 in particular, who really fought very hard for the portions of the treaty that do create a form of equitable benefit sharing, especially attached to genetic resources on the sea floor. So, it’s a choice that’s being made to basically make you focus on one part of the treaty instead of the other parts, and therefore think of it as a freedom of the seas type approach as opposed to a common heritage approach. And it may seem like this is just, you know, a discursive difference that it’s just a matter of framing. But this treaty, like most treaties, has a lot still to be worked out. Like, there are a lot of areas where there’s sort of vague language or the, they’ve sort of kicked the can down the road of we’re going to decide the rules of procedure for this, you know, subset, subsidiary body later. Like, there’s a lot of decisions to still be made. And so, if we think of them as, okay, this decision is about achieving equitable benefit sharing, it’s a common heritage type idea, versus this decision is about ensuring access and use for maritime users who want to exploit this resource. That’s a freedom of the seas type way of thinking, you know, it makes a difference in how this treaty will actually be implemented And I would like to say that I rarely heard it called the ‘High Seas Treaty’ at the negotiations I started seeing it a lot when the High Seas Alliance this group of non-governmental organizations produced a lot of great promotional marketing persuasive type material to try and encourage ratification of this treaty I think it’s a good thing I just wish they had gone with the name Biodiversity Beyond National Jurisdiction instead of making this choice to promote the idea of the ‘High Seas Treaty’.

Rachel: You put a really interesting point in your article that there are plenty of studies now to show that the public understands the term biodiversity and the ‘High Seas Treaty’ to me as a member of the public doesn’t mean anything. Does not mean a thing. But if you have a biodiversity of the ocean or biodiversity beyond national jurisdiction, that might’ve pushed a couple of people as well, but biodiversity and seas, biodiversity and ocean people know exactly the purpose of it. And it does seem a sort of shameful missed opportunity to invite the public in on this conversation and allow them to have say it’s about how this moves forward because people won’t pay attention to it as much now.

Elizabeth: I absolutely agree, and I like the word “beyond” too. It sounds, you know very grand. Biodiversity beyond the jurisdiction of nations. And you know, like you said, the public has an idea of biodiversity. They might have some thoughts associated with high seas. You know, I’m thinking of like adventure, Pirates of the Caribbean, you know, like spaces. Yeah. Really far out where the laws don’t really operate. Like those ideas aren’t, aren’t quite right. But also, if, if they need to learn about high seas, also, like, it’s not necessarily more accessible, and that’s the argument that I’ve heard from people using the ‘High Seas Treaty’ phrase. Their main argument is that it’s more accessible to the public, and I just don’t, I’d like to hear some more support of that argument because the High Seas Alliance, you know, high seas is in their name. They’re doing a great job pushing for ratification, doing kind of public education campaigns, helping to host informal gatherings of government representatives that are trying to prepare for the implementation of this treaty. They have a lot of influence over how people are talking and thinking about this treaty. And so, promoting it as a ‘High Seas Treaty’, has a lot of effect and that’s why Fuad and I wrote the piece we did for Mongabay. We were just really increasingly frustrated with seeing more and more people adopt ‘High Seas Treaty’ and I think it’s very notable that the UN Division on Ocean Affairs and Law of the Sea , DOALIS, who helps to coordinate the negotiations, who will be the secretariat for the treaty in an interim capacity, they are not using the term ‘High Seas Treaty’ at all.

Rachel: Elizabeth, I’m aware I have to let you go. Thank you so much for your time today.

Elizabeth: Thank you. Really appreciate the opportunity

Mike: Let’s go back to that whole undermine clause that Elizabeth brought up. It’s under article 5. 2. And it says the agreements application it shall be interpreted and applied in a manner that does not undermine relevant. Existing agreements, which are all the things that. She was talking about and the text here in this IUCN brief says, while this provision carries the potential risk of significant limitations for the use of the BBNJ agreement, where other relevant agreements exist, it is unclear from the text, what constitutes quote unquote, undermining and further guidance from the conference of parties and state practice will help shape the implementation of this provision over time. That being said, Elizabeth did. Mentioned in her commentary about how the words high seas put an implicit bias for people to interpret this to favor, the freedom of the high seas over the common heritage. But I did read in this brief that that whole common heritage agreement is part of the BBNJ agreement. So that is in there. It’s just not clear how, parties will interpret that specific, not undermine clause, which obviously is a concern.

Rachel: Huge concern. I mean, this is what I reacted to twice when recording that episode with Elizabeth was, but what do you mean these marine protected areas will also be in zones that are used for other things like resource extraction? It just doesn’t seem to make sense. How can you be protecting a thing if you’re still extracting from it? And I think that when people. Talk about the necessity of figuring out how to sustainably extract Earth’s resources because human civilization still needs to find a way to, to support itself. I don’t disagree with that, but we’re not in a place where We can just move to the sustainable, uh, extraction necessary. Now we need to dramatically reduce the extractions that we can give the planet time to recover from the excess waste and the excess pollution and the excess depletion, the over depletion of its resources before sustainable management levels can go back up to what is still, you know, quite high essentially for the natural world. So yeah, I was, I was totally astounded by that and was really grateful that she went into so much detail on that because it reveals how all of these legal tools are still being used in some ways as a mechanism to interpret just continue doing what you’re doing.

Mike: I will just echo your sentiments here, Rachel, that I have a lot of unanswered questions as well, and things are not quite as clear as I would like them to be. Even reading through the policy brief that the IUCN outlined. There’s a lot of questions on how this will be interpreted and it seems like that’s going to be unfolding in the years to come and how that will apply in various circumstances and situations will set precedents for how it’s followed. And obviously that could go in ways that don’t protect. Biodiversity. Something I did wanna point out that’s pretty helpful in this policy brief I found from the IUCN, there’s a really good little graph that illustrates all these zones that Rachel and Elizabeth talked about. For anyone that’s curious to see, like a visual, like a basic one that shows like what the area is area with a capital A versus what the exclusive economic zone is. And then also the overlap. I might actually put that in the summary of this show, but I don’t have much more to add on this other that this deserves ongoing coverage and scrutiny to see how it’s going to go.

Rachel: Yeah, totally. And huge thanks to academics like Elizabeth who are holding policymakers feet to the fire and can understand essentially all of these things and then relate to media. I think it’s a very nice. Example of a good relationship between one institution and the media to try and ensure that nature’s wellbeing is protected in international treaties.

Mike: All right. Thank you so much for speaking with me, Rachel, and I’ll see you on the next one.

Rachel: Pleasure. Thank you, Mike.

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