Trick or treaty: the high seas agreement

The high seas treaty aims to protect 30% of the open ocean by 2030. But is this realistic?
21 March 2023
Presented by Chris Smith, Will Tingle
Production by Will Tingle.


A breaking wave on the ocean


The UN high seas treaty hopes to turn the tide on the biodiversity crisis in the ocean. Will it work, and will protecting 30% of the high seas be sufficient?

In this episode

Kelp underwater

00:50 - What is the UN high seas treaty?

What does the recently passed high seas treaty hope to achieve?

What is the UN high seas treaty?
Liberty Denman

Described as an ‘Historic deal, an extraordinary diplomatic achievement’, The high seas treaty, which aims to conserve 30% of the open ocean by 2030, was recently signed by 193 UN states after two weeks of round the clock talks in New York. If successfully implemented, it could turn the tide in the fight to conserve ocean biodiversity by alleviating some of the stress brought about by practices such as intensive fishing and deep sea mining. But while this treaty is a much needed win for ocean ecology, are its ambitions too lofty? With so many countries involved, how can we be certain that everyone will play by the rules, and how do we look after species that stray from these protected areas? But before that, it is important to understand what kinds of oceanic issues the treaty hopes to address, as well as what the treaty actually involves. Marine scientist and commentator Liberty Denman....

Liberty - There are lots of challenges that the ocean faces. There is a lot of compounding threats as a result of anthropogenic pressure. But if I were to pick, say the top three, I'd say climate change, overfishing and habitat degradation. They all affect the ecosystem in lots of different ways and all of these are quite interlinked. So climate change causes ocean acidification and that means there's more CO2 in the ocean which affects lots of animals across the board really. It affects the temperature, affects how they function. For example, crabs and crustaceans. They struggle to create their shells and maintain the shells with calcium because of the chemical changes in the ocean. Overfishing and habitat degradation are also hugely linked to climate change, but also issues in their own right. So obviously overfishing, if you're continuously taking more than the populations can keep up with, after a while you end up with nothing left and they all naturally rely on their habitats. So when that is degraded, you are also impacting their ability for the ecosystem to be resilient.

Will - And now we have this high seas treaty to try and remediate some of these issues. But before we get into what it does, what are the high seas?

Liberty - The high seas are the waters extending beyond a nation's economic exclusive zone, which is typically 200 nautical miles offshore. This comprises approximately two thirds of the ocean and yet only one to 1.2% of it is protected currently, which obviously is not a great statistic.

Will - And we're trying to get that number up to 30% from 1%.

Liberty - Yes. So we have higher than 1% across the entire ocean. That's obviously just within the high seas. But the high seas treaty that's now seen 193 signatures from the UN member states, which is amazing, establishes a legal framework that will finally allow countries to designate international waters MPAs if agreed by consensus. So this is particularly groundbreaking as from previous negotiations. We have set the target coined 30 by 30, which you just mentioned. Naturally a huge amount of that responsibility comes under those waters and we need to be able to protect what lies within the high seas. So this allows us to actually begin to implement this, which is really exciting.

Will - Are there particular areas of the high seas that this treaty is gonna focus on conserving?

Liberty - Rather than conserving specific locations per se, the high seas treaty establishes a legal framework for the protection and management of biodiversity beyond national jurisdiction, what's called BBNJ. These fall under four main categories that we're focusing on. So that is capacity building, the sharing and transfer of marine technology and other resources, genetic resources and access to that and how we use it for other areas. Then there's area-based managements for things like MPAs that we've just been talking about and also environmental impact assessments which are particularly relevant in the deep sea, whether it is for mining fisheries or any other extractive activities

Will -  So is that saying we're conserving 30% of the ocean, but it's not one specific place that we're trying to conserve?

Liberty - No, ultimately we need to identify exactly where we are going to conserve based off of those qualities. So all of these particularly key areas that come under the BBNJ, we are going to be focusing our efforts based off of that and there will be particular areas that fall into that. So there may be magnesium nodules in the deep sea and while they're very, very desired, we also need to protect them because they're a very key environment and we don't know how that's going to affect the entire ecosystem because the deep sea has been functioning for, well, for longer than we can possibly fathom. So for us to now go in and change it at the rate we are, we need to understand these systems before we can exploit them because we don't know the ramifications that's going to have.

Will - So that's step one is it, finding out where best to conserve?

Liberty - Yes, and also the other thing is time is naturally of the essence. So we can't spend all our time just understanding, naturally we do actually need to implement these rules and these obligations, but we don't have sort of set places that we are going 'Right. The High Seas treaty says here, here and here will be designated', it will be based off of the discussions that have been around the BBNJ.

Will - These areas that are going to be turned into MPAs. Are they a complete no-go zone or are there sort of tiers to which fishing vessels or mining vessels can enter?

Liberty - This is where marine protection and marine protected areas are particularly complex and it's also very difficult for someone who isn't necessarily in the space to follow because a headline will say, yes, we've protected this area, but what does that actually mean? It doesn't always mean nothing is happening there. And that is the goal. So at this point we do need site-based protection. So we need to use an area-based approach, which will actually protect the whole area from the surface to the sea floor. And that is really important because otherwise you end up with allowing some things and not others and it may not actually be protecting that part of the ocean as effectively as it needs to.

Will - Why did it take 15 years to implement this?

Liberty - So one of the main reasons why the negotiations took so long was the divergent interests of coastal and landlocked states. So they had very different perspectives on the extent of coastal state jurisdiction, the allocation of resources in the ocean. And another big challenge was the need to balance economic development with environmental protection, particularly with the exploitation of delivering resources. So fisheries is obviously a very key one here. So ultimately when you have 193 states trying to agree on something, it's not going to be a speedy process.

Will - So you've got sort of island nations who rely quite heavily on fish being told they suddenly can't fish. Is that why they're having issues with it?

Liberty - Possibly not quite as simple as that, but there has definitely been a divide between the global north and the global south. In the global north we are probably a little bit more distanced from the natural environment and how closely we rely on it, whereas the global south is probably a little bit more in touch with that reality that we rely on it so heavily. And so there's also gonna be an imbalance there in perhaps our appreciation of it and where all these resources actually come from.

Will - So this does sound great, this treaty, but surely we aren't going from an unregulated disaster to an ocean paradise. Is this as a straightforward win as it sounds?

Liberty - So it is a really nice easy hack to answer science questions - It depends <laugh>. It always depends. I think it's important that we celebrate this as a win, as it is a monumental moment in history for marine policy. I mean, it's taken us 15 years to get here, so I think we do need to take the win. However, it is also really important for everyone to know that this 59 page document doesn't magically make all of our worries go away. It still needs to be adopted and implemented. So there is still a lot of collaborative work that needs to be done here. So we can't just say, 'yeah, box ticked, that's finished now'. We still need to work with this. But it's a very good starting point to have.

An underwater view of the ocean surface.

08:11 - Can we protect transient marine species?

How do we look after marine organisms that migrate outside of marine protected areas?

Can we protect transient marine species?
Kirsten Thompson, University of Exeter

The idea of turning 30% of the high seas into MPAs - that’s marine protected areas - is all well and good, but as we heard from Liberty the exact definition of an MPA is not uniform across the planet. And not only that, but it is also important to recognise just how transient many of our most vulnerable species are. The ocean doesn’t stay still, nor does it respect the legal borders that we put up. So how do we continue to conserve organisms that stray out of these MPAs, and is there anything to prevent the more nefarious fishing regimes from just waiting outside the protected zones, or ignoring them completely? Kirsten Thompson, from Exeter University, spoke about how we might protect our more transient species, and what an ideal MPA might look like.

Kirsten - We would hope that the protection would be a strong level of protection. So more like a marine reserve or a 'no take' zone where you can't necessarily do any fishing or you could not extract oil and gas or create lots of noise pollution. So we would hope that this network would give these areas an ability to recover so that those fish stocks can improve. Where they can be safe havens for breeding animals, say sharks, whales, dolphins. We really want those areas to be reserves so that those populations can increase over time because we've actually exploited the oceans already quite significantly. And those areas need time to recover.

Chris - Are the areas contiguous? Because just listening to what you were saying there, if I were, say, a whale shark that spends some of its life off the coast of Western Australia and then it migrates and takes a massive journey almost all the way around the globe going from A to B, if it doesn't remain continuously in a marine protected area, then it's vulnerable when it's not.

Kirsten - So we are really looking at a network of protected areas. So they need to be large enough to support the species that are within these particular areas, but also they need to be connected and well connected so that those migratory species can pass right across the oceans and will have some level of protection throughout their migrations. And that's really important for many of these species that undergo these really long and large scale migrations right across ocean basins.

Chris - I'm minded of research, which it's almost smacks, one Australian researcher put it to me, research into the blinking obvious. But when one looks at the graph of how much land area is apportioned to, say, pandas in China, people are saying, 'look, they've got lots of space to live in, so why are there numbers in decline?' And it took somebody else to then say, 'well let's look at how well connected those bits of land are.' In fact, they're tiny morsels of land with human encroachment separating them all. So the amount of free roaming those animals can do is relatively minimal. And are we not in danger of it looking good from far this 30% of the world's oceans is a good starting point, but if they're not in the right places and joined up in the right way, they're not going to deliver?

Kirsten - Yeah, exactly. It needs to be effective protection and for it to be effective, they need to be well connected and there needs to be a high level of protection within these areas. And of course they need to be designed so that they're in the right place. And so it might take a bit of time and monitoring to see whether when we first put these areas together and draw these lines on the map, we might need to monitor their efficacy over time to make sure that we've got it right.

Chris - Who's going to do that, do you think? And will this come down to individual countries or will there be some kind of overarching organization that will have some kind of ability to give sanction or some teeth if you like, to make sure that this is done appropriately and consistently? Because one of the other things we've seen with other initiatives, especially environmental and conservation initiatives, is if the power's in the wrong hands and there's no way to predate miscreants, then standard slip.

Kirsten - Yeah. And I think that's gonna be key moving forward. And I think those are all the details that I think we'll see being formalized over the next 10 to 20 years. Really, how is this going to work and who's going to enforce these protections? Because these are areas that are quite inaccessible and far out to sea. So that's the detail we really need to get to grips with.

Chris - When scientists are sitting down to say, 'these are the crucial targets we must go for first,' what's at the top of our pecking order?

Kirsten - I don't think that we know enough about the oceans and I think it's difficult to know what species or habitats you would try and protect up the hierarchy, which ones are worth more than the other. I don't think we can really ask that question because to be honest. For a good functioning ecosystem, we need as many as these areas protected as possible. And all at once, we need this to be done quite urgently. So I don't think we could really have some sort of hierarchy or idea of what's most important because to be honest. It's all important.

Chris - You can never do an interview like this without considering the impact of climate change, which is all too obvious in terms of its manifestations around the planet. Has that been taken into account in terms of what we want to protect? Because it's clear that some areas are gonna change dramatically in the next five decades and we may end up conserving what becomes a desert and that's of value to nobody. So are people trying to sort of future proof this by anticipating where climate change is likely to put places under pressure, but may create the next wonderful place to conserve, which isn't at the moment because that's where the animals go when their current home becomes inhospitable.

Kirsten - We are really looking at more of the sort of dynamic approach to protection. So that's going to involve thinking ahead, being responsive to the data that we get back from monitoring and actually making changes in the future if we know that those species need to be protected, be protected in those areas. So it's much more of a dynamic global approach and that's why a network of marine protected areas is gonna be much more valuable to us for protection than just this idea of the static individual MPAs that aren't connected to other places.

fishing nets

14:57 - Will the high seas treaty actually work?

Is the high seas treaty really the win that is being touted?

Will the high seas treaty actually work?
Guy Standing, SOAS

Now that the treaty exists, and the groundwork is laid, what happens next? The reaction to the treaty has been an almost uniform one of ‘this is a good start but a lot more needs to be done.’ This lone announcement is absolutely not a cure for all of the ocean’s ills. Indeed, it’s not just an ecological issue but an economic one as well. The value of the ecosystem services of the open ocean amounts to tens of trillions of dollars. In carbon terms alone, since 1870 the value of carbon captured by the deep ocean is close to $30 trillion. So how do we balance the protection of these areas with the economic needs of fishing, mining and carbon capture? And what about the industries and economies that already have existing vested interests in the very same parts of the ocean? Guy Standing, author of ‘The Blue Commons: Rescuing the economy of the sea...’

Guy - Well, I think the euphoria of the new treaty is slightly overdone. We are not at the beginning of a process. The United Nations Convention on the Law of the Sea, which is called UNCLOS, was drawn up in 1982 and regarded by the Secretary General of the United Nations at the time as the most significant legal document of the 20th century. And that convention only came into effect 12 years later when sufficient countries had ratified it. And 28 years after that, they still haven't agreed on a sharing mechanism for the benefits or a mining code in the deep sea. And that, I think, is the context in which we have to be addressing this new treaty.

Chris - So if we've got that treaty, why do we need a new one?

Guy - Well, the strange thing is that UNCLOS effectively gave countries of the world, coastal countries 138 million square kilometers of seabed in what are called exclusive economic zones. And within those areas, we now have a variety of marine protected areas. The new treaty addresses the high seas outside the exclusive economic zones. And although it's a very large area, most fishing actually takes place within the exclusive economic zones, over 90%. So really we should be thinking of improving the mechanisms at national level. And here, one of the biggest problems has been over the years that overfishing and ridiculous amounts of mining has been helped by governments giving vast subsidies, huge subsidies, over 40 billion a year are given in subsidies. Without those subsidies, we would not have high seas fishing at all because the costs of fuel subsidies are sufficient that they wouldn't be doing it.

Chris - If we've got a country and it's got a significant vested interest in an area exploiting it through mining, subsidy, mining or whatever, what happens to that industry with this new treaty?

Guy - Well, I don't think the mining question is going to be helped by this new treaty at all if I'm honest, because essentially the International Seabed Authority, which was set up un by UNCLOS, which only came to effect in 1994 in Kingston, Jamaica, is meant to be drawing up a code of practice for deep sea mining. And it has failed to do so in 28 years. And there's no real prospect. And we're going to see a wild west bonanza frenzy of deep sea mining starting in July this year as I've written about. The problem with the deep sea mining frenzy is that a little country called Nauru backed by a Canadian mining company, noticed a clause in the UNCLOS, which said that if a country applies to start deep sea mining, it has precisely two years to draw up a code. Otherwise they will go ahead. And the problem is now applied in June, 2021 and in June this year, because there's no prospect of such a mining code, they'll be able to go ahead unless somehow we're going to get an international moratorium. But that has not been addressed by the Ocean's Treaty and it is a huge problem on the horizon.

Chris - And so what will be the consequences then? This is basically open season for anyone who wants to get out there and prospect on the seafloor.

Guy - It's going to be ecologically catastrophic because we're talking about disturbing the seabed at vast depths, with vast noise, with vast machinery and so on. And they're absolutely right to be really scared on our behalf and on nature's behalf about the damage that this can do. So we are facing an ecological challenge this year that is truly frightening.

Chris - Let's pretend I wave a magic wand and suddenly it's active. What happens to all these ventures once the treaty kicks in and they're on someone's turf that's covered by the treaty,

Guy - You've got to realize that everything takes time. And first of all, you've got to get countries, governments of member countries to sign to ratify. That's the first process. And you've got to get a sufficient number to ratify. Most of these treaties require 60 or more countries to ratify. So that's the first process. The second thing, you've got to then set up an institutional mechanism, a body to put into effect the commitments that have been made in this fairly long and rather abstract treaty 59 pages. And that's, that'll also take time. Then you go to appoint the officials, then you've got to get the budget, then you've got to decide on the mechanisms for doing it. So the process takes years. I'm afraid.

Chris - With any kind of agreement, there has to be a funding model and there also has to be a policing model. So my question to you is, who is going to fund this and who's going to police it? And will that policing actually have teeth? So perhaps through the funding mechanism, they can actually do something?

Guy - The biggest problem of all in this regard is the country that could fund it very easily will be the one country that will not ratify the ocean treaty. And that's the United States. The United States still has not ratified the UNCLOS. It has a practice of being thinking it's exceptional and therefore it doesn't ratify international treaties because it doesn't think that the small governments and poor countries should have control over their national policy. And, it is a very unfortunate reality that the United States has not ratified the major convention. This new treaty in a sense is an offshoot of the UN convention and it's a good offshoot potentially. But if your major country, which is involved in many of these mining problems and so on, stays out of the process, do you think the Russians or the Chinese will adhere to rules? Think again. So we have a reality check here. I think the real challenge for all of us is that we must put much more pressure on our national governments to fund it under austerity. In Britain, they've slashed the budget for the marine management organization. Now imagine we have sea area 27 times the land area and we have precisely 12 Coast guard vessels that are allocated to monitoring and policing all that sea. This is a bad joke. And, and when, when an MP proposed an amendment to the fisheries bill in 2020 that there should be a ban on all industrial fishing in our marine protected areas, the government vetoed that. They vetoed that. So we don't have a serious commitment. We have a rhetorical commitment, but not a serious one. Our biggest marine protected area is Tristan da Cunha. It's 700,000 square kilometers. Do you think we have the capacity to monitor and police that area? It's just not a realistic thing, but they use the terms of marine protection. But really it's a fraudulent claim and I think we must expose that. And I'm very glad your program is doing that to a certain extent. But we must realize that most of the solutions to our sea area lies within our own jurisdiction, our political process, and so on. And we must put pressure on the politicians to be more serious about it.

A humpback whale and its calf

24:33 - Learning to speak whale

Could machine learning be used to decode the language of marine mammals?

Learning to speak whale
Tom Mustill

With all the talk being focused on how humans can work together to preserve the natural world, but what if we could ask the affected animals themselves? Admittedly, this sounds like something from Dr Doolittle, but with the remarkable leaps forward in machine learning and artificial intelligence, is it as ridiculous as it seems?

Will - The author Mary Anne Evans, perhaps better known as George Elliott, once wrote 'animals are such agreeable friends, they ask no questions, they pass no criticisms'. And for the longest time we assumed that animals have lacked a properly complex language with which to communicate with one another. But is this actually the case? Well, who better to ask than the author of 'How to Speak Whale', Tom Mustill, starting with the obvious question - is it even possible to define a language that isn't human?

Tom - It's extremely difficult because most research into language-like behavior in other species has been focused on trying to see if they have language exactly like ours. Can a captive chimpanzee or a dolphin understand human English spoken language? But those aren't ways of finding languages that have evolved in other minds and other ways of perceiving the world. How do you step back and think about what language could be in other species? What could whale speak be? It's been very, very hard for a long time essentially to research this. And most research has been aimed at trying to decode the most simple animal communications like alarm calls in prairie dogs. So we've been a bit stuck really. We've got human senses, human brains, human concepts of language, human lifespans, and especially with whales and dolphins, you can't even go in the sea and listen to them very easily. But now we have recording devices like the one that you are recording me on now, and you can make them waterproof and you can dump them in the sea and leave them there for years recording loads of conversations if they are conversations between animals and you can start to gather what is called 'big data'.

Will - Big data is a term that has become attached to some unnerving parts of our lives. It has famously been associated with intensive and sometimes nefarious targeted ad campaigns. But the term big data actually just refers to data that is big, which is to say data sets so large that special algorithms are needed in order to process it. And yes, this can go through all of your internet history and find your favorite shampoo, but it can also do some startling things. When it comes to decoding language...

Tom - Big data is necessary for machine translation of human languages. You might have used Google Translate. Google Translate works by taking big data as in huge, like millions if not billions of data points and communication like transcriptions of human conversations and finding patterns within these that are invisible to humans. There's a process called embedding where the AI program essentially notices the relationships between all the words in the millions of conversations you've given it and plots them as in a sort of galaxy map of words or other elements of the language, like a sort of huge star chart but in thousands of dimensions. So something that no human brain can do. And what was fascinating about this process was that when the computer scientist who developed this got the AIs to do it, they could match the patterns of one human language with another human language and that the natural language processing machines were able to translate between human languages without being told that they were dealing with the language without being given any rules of the language or any instruction and without being given a bidirectional dictionary. So if you're trying to crack the code of another language, this is a really exciting and promising tool. So that where we're at with other species in the sea, marine mammals like whales and dolphins, is that the scientists are now trying to get data sets big enough to be able to apply these machine translation systems that find hidden patterns in human language and see what patterns they find in the communications of animals in the sea. This doesn't mean they have a language, but they live long lives. They communicate with what appears to be great complexity and great importance and they use those communications to coordinate really sophisticated behaviors. So it's quite promising that within the communications that we can hear, there is something like a language. Is it something like a language like our language? Who knows. How would you ask a sperm whale if it was wet? What if they have a totally different idea for group cohesion where there's no such thing as an individual? There's no real material culture in the sea where everything washes around all the time and you can't make fire and if you haven't got any hands, how do you explain the sort of possessions and things you might make? So maybe we could discover things that seem like languages, but they have such different patterns in them that there's no way of translating between them and our languages. But this is just the beginning.

Will - So by exposing the right machine learning algorithm to billions of bytes of audio data, we might be able to spot the links in communications that form the groundwork of a language. But if this is a success, does the question then shift from how do we speak to whales to why should we speak to whales? Could opening a dialogue with these organisms help us to help them?

Tom - Yes, I think it really could. And that's the reason a lot of these scientists are doing this work is that they believe that we protect what we relate to. And being able to express your emotions and talk is something humans really prize. And we think it's quite special to us if we see other animals that can do that, it makes it so explicit that they have inner worlds. If we could understand the kinds of things they're talking about, not only would we feel potentially more empathetic towards them and care more about them, but it might also lead us to things that we don't realize are problems for them. We have to just guess at what human activities make life hard for in other species at the moment. But maybe there are things we could do to help that they could help us discover. I think there's only another element to this as well and why this treaty is of such importance. Now we spend billions upon billions of dollars trying to look for life in space, trying to travel to other planets or our own moon. We spend billions of dollars on things like particle accelerators and telescopes looking for sub-atomic particles that might or might not exist or planets, and solar systems that might or might not exist. None of the things that they are investigating have a chance of going extinct within our lifetimes. The moon's going to be there, Mars is going to be there. Subatomic particles, whether or not they exist, are going to be there distant galaxies that have actually expired before the birth of our own. That is not going to change whether they're there. But swimming alongside us, we're in London right now. A few miles from here are potentially the only other conscious entities in the universe that we might ever have a chance of having a conversation with. And they are being hammered by the way we are treating them. So this is of the utmost importance. We might go to other solar systems, we might go to Mars. There is no evidence we're going to find somebody we could talk to. These are our cousins, our relatives here on Earth. And without treaties like this, we will live alongside them. They might go extinct and only in the future will we realize what we'd lost.


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