The U.N. High Seas Treaty, With Esther Brimmer

LINSDAY:

Welcome to The President's Inbox, a CFR podcast about the foreign policy challenges facing the United States. I'm Jim Lindsay, director of Studies at the Council on Foreign Relations. This week's topic is the High Seas Treaty.

With me to discuss the Biodiversity Beyond National Jurisdiction agreement that was struck last month at the United Nations is Esther Brimmer. Esther is the James H. Binger Senior Fellow in Global Governance here at CFR. She has had a distinguished career in both government and think tank world. From 2009 to 2013, she served as Assistant Secretary of State for International Organization Affairs. She has written extensively on international organizations and trans-Atlantic relations over the course of her career. Esther, thank you for joining me.

BRIMMER:

Thank you very much. I'm delighted to talk with you today.

LINSDAY:

Esther, I want to begin, if we could, with sort of a 40,000-foot view of this new agreement. I'm just going to call it the High Seas Treaty because its formal name is so long and cumbersome. What does it purport to do?

BRIMMER:

The High Seas Treaty is very interesting for many different reasons. First, the name, as you suggest, High Seas, gives a sense of the romanticism of the oceans. And indeed, this is an agreement to deal with the largest space on Earth. Although we call it the planet Earth, 70 percent of our earth is oceans. And of that, most of it is what's called the high seas, known technically as the areas beyond national jurisdiction.

Let me take a moment and tell you where we're talking about. If you were to walk out onto the beach, you'd walk out and you would see the territorial waters of the United States. That's twelve miles of territorial waters, the air above, and the soil below. If you were to go 200 miles out from there, most countries recognize an exclusive economic zone.

LINSDAY:

That's the EEZ.

BRIMMER:

That's the EEZ. But beyond that, the open ocean, that belongs to all of us. And so what this agreement does is to try to create a framework for managing the vast oceans of the earth. So it's really monumental. We've never had a single treaty that tries to manage the oceans. We have many individual treaties. This treaty tries to set up agreements and rules about how we will manage resources and access to this great area, whether it's the fish in the sea or, even more importantly, the minerals on the soil below. And it's taken twenty years to do it.

LINSDAY:

Okay, let's drill down a little bit. I get that the high seas are a big portion of our oceans. I think, actually, if you do it by volume, the number I see is it's 95 percent of the ocean is high seas. Why was there a need to negotiate this agreement? What are the threats it's dealing with?

BRIMMER:

There are several different types of threats facing the ocean. The most important is the one that's facing all of us, is climate change, that, actually, the oceans absorb much of the heat that is generated. It's also, they absorb much of the carbon. And even rainfall brings in pollutants into the ocean, so the ocean is now much more acidic than it's been before. So that means that the oceans themselves are crucial to the management of climate change. It also means that the sea life in the oceans, sometimes referred to by the very fancy name of biodiversity, but that means the living things in the ocean are deeply affected by climate change and by the ocean being more acidic. And that means that it's, for example, harder to find the fish that maybe you live on. And more than half the world's population relies on the bounty of the sea for its protein.

So oceans are crucial and they're affected by climate change, but then there's an additional aspect as well, that because of important technological changes, the oceans, which have always been crucial to human life, are even more important. Ironically, in order to build some of the great technologies that will help us address climate change, such as electric vehicles, we need key and very special minerals that are available on land, but are also available in the oceans.

LINSDAY:

So we're talking deep sea mining.

BRIMMER:

Deep sea mining. And interestingly enough, now that there are technologies that may make it possible to engage in types of mining we couldn't do before. Yet, this area is full of life and full of creatures we probably don't even know exist yet because many parts of the ocean are so deep that there has not been the discovery and understanding of the types of sea life that is there.

So there's both a great interest and access to minerals that'll help create new technology to deal with climate change. Yet, ironically, that in order to deal with climate change, we need healthy oceans, including the life in them. So we have both the importance of the climate change issues and the technological progress, yet technological change, that create a much greater need for managing the high seas.

LINSDAY:

My sense also is there's a concern about overfishing in the high seas, that these are, in a sense, global commons, and that some national fishing fleets are essentially strip mining them.

BRIMMER:

Mass overfishing has had a huge impact, again, as I mentioned, that many people on this earth get their protein from sea life. And so we're seeing huge overfishing. We also have, there's another phrase, IUU, again, which means illegal under-reported and under-regulated fishing. It goes by this funny acronym, IUU, but it's extremely important because the overfishing is having a huge impact on the food needs of people around the world directly related to food security for many people around the world in some of the richest and some of the poorest countries on our earth.

LINSDAY:

I know, Esther. I've seen a statistic that over the last fifty years, the number of sharks and rays found in the open seas, the high seas, has plummeted by something on the order of 70 percent as a warning that, in essence, we are ruining the fishing stocks that we have. I want to sort of drill down on this. Aren't there already existing agreements that govern the seas?

BRIMMER:

There are agreements that govern different aspects of the seas, and there are issues with both. First, to say that the overall framework governing the seas is the United Nations Convention on the Law of the Sea. Again, it goes by an acronym, UNCLOS, but we'll just call it the Convention on the Law of the Sea. This is the global agreement that went into force finally in 1994 on managing the seas. Now, one of the immediate challenges for the United States is the United States is not a party to this convention. Therefore, for the United States' participation, one of the questions will be, in what global mechanisms will the United States participate? So that's one of the first issues.

But then the second issue is that on some of the more specific aspects of management of fishing or management of other resources, there either are not regulations or they cover specific areas. What the High Seas Treaty does is create a global mechanism, a single mechanism, for managing the oceans as a whole.

LINSDAY:

Okay, so a deal was struck on the treaty in early March. That garnered a lot of attention because most people had bet that these negotiations were going to prove fruitless, that the different parties couldn't come to agreement. So before we talk about what the parties agreed to, maybe you could sort of sketch out for us what the divisions were, the big issues, that separated the various parties to this agreement.

BRIMMER:

Indeed, as you indicate, there was a reason to be pessimistic. Previous efforts at negotiation had not been successful. This time, you had several elements. One, I'll say again, is that although the United States is not a party to the Convention on the Law of the Sea and is not a member, therefore, of the International Seabed Authority, which was actually a part of conducting these negotiations, the United States has been very supportive and, indeed, the Biden administration was very supportive of the negotiations, and meant that although the United States is an observer, not a member state, once it enters the field, it can also help contribute to diplomatic resolution.

That said, let's look at some of the issues that are wrapped up in here. One is the ability to come to an agreement about how to manage resources. As we said, we're talking about oceans that are beyond national jurisdiction, and one of the longstanding debates has always been, to what extent do the proceeds of the resources need to be shared? So for example, if you were to be operating in the high seas and you were to discover a new creature, and that new creature secretes some item that would be useful for medicine, who gets to benefit from that? And so how that was going to be managed was crucial. And so within the treaty provides for a provision of sharing these resources. It does have a mechanism for doing so. It also creates a new body for managing that.

But this crux of how you manage resources has always been a highly controversial issue, and highly delicate, and always a challenge because it relates to economic benefits. It also relates to the question of access to technology that wealthy countries have, concerns from less developed countries of will they also benefit from the resources that are found in areas that, again, are considered to be owned by all of us, shared in common by everybody? So that I think I would say is one of the most important issues and probably the last one to be resolved as part of these negotiations.

There are other aspects. So, for example, the treaty creates the need for environmental impact assessments. So again, how that was going to be worded was going to be an issue. It also sets up a new international organization to manage this process. That, of course, all these take important diplomatic issues, but I'd say the resources issue is one of the particularly important ones.

LINSDAY:

Okay, so the negotiator surprised everybody. They stayed an extra few days, they went the extra mile, they struck an agreement. Can you give me a sense of what this agreement actually provides for? I take it there's going to be a new organization whose acronym we'll have to learn and add to our data bank of acronyms, but sort of how do you see the main accomplishments of this agreement that I will note that Greenpeace called a "monumental win for ocean protection"?

BRIMMER:

I think the biggest win for ocean protection here is creating a single regime which both highlights the need for protecting biodiversity, therefore, having rules about how we exploit resources in these particular spaces. Which is particularly important because there are species we don't even know exist that are found in this area that is no longer, for those who sign for the treaty, possible just to continue to draw on those resources without being part of the larger framework. And this brings us to another area, where there will be continued controversy, will be what rules should govern the access to these minerals? Again, these rules are central to this agreement.

So we could take a moment and then, if I may, say that we have both the importance of protecting biodiversity, creating rules for access to minerals. That intersects with an ongoing controversy as well, that we now have, as I say, a long-term diplomatic effort to manage these spaces and an immediate diplomatic controversy. And the two are intersecting this year, making it particularly interesting to look at this and why this is becoming an issue of high diplomacy.

So, currently, the International Seabed Authority is an organization that is part of the Convention on the Law of the Sea. It has a governing council and, like most international bodies, has a secretary general that helps provide the executive support for this organization. Under existing law, if a member state asks, it can appeal to the International Seabed Authority and say, "We would like to mine in a certain area; therefore, we ask that you create the rules and regulations to allow us to mine in a particular area." That starts a two-year clock to create the regulations allowing for mining or certain activities in a particular area. So we had, in 2021, the Pacific Island nation of Nauru request that the International Seabed Authority create rules allowing for deep sea mining in a certain part of the Pacific. Since it was in 2022, the timeline runs out in June of this year.

Now, on one hand you have a national government calling for these regulations to be created; however, that national government is actually sponsoring a organization based in Nauru; however, it's wholly owned by The Metals Company, which is a Canadian company. And the question here is that you have a national government and a large private company working together in order to request these regulations.

That said, many other members of the Convention on the Law of the Sea and the International Seabed Authority, including Germany, France, and Costa Rica, countries all over the world, have said they would like a pause because the regulations will not be done on time. Nauru argues that they should should be able to go ahead even without these rules, and many countries have said that there should be a pause in what, in diplomatic land is very dramatic, there's actually been a public exchange of letters. So just last month, in March, you saw a national government and you saw a head of an international organization exchange letters publicly. I mean, diplomatic letters don't usually end up in the New York Times. And with the German environment team saying that they felt that there should be a pause, as did many other countries, until there was a much greater understanding of the biodiversity in the oceans and raising concerns about the impartiality of the secretary-general. The secretary-general in turn said that he was fully in its rights as the executive to be and that he was proceeding in an inappropriate manner.

You rarely see this kind of thing. Even in our personal lives, you don't usually necessarily see letters published in the paper, and so this was really quite dramatic. And it plays into this question of how the oceans are managed, what degree of trust there is, and a concern that, if significant economic activity begins in the oceans when we do not yet have a deep understanding of the biology of the oceans, that irreparable harm could occur.

LINSDAY:

It also, I would imagine, could set precedents that other countries would say, "Nauru got to do this, so we should be allowed to do this. You can't have different rules for different countries."

BRIMMER:

Indeed, indeed. And there's a concern that the particular country may be acting in the interest of the private sector again, so that is seen as controversial. The further controversy is that the particular area in question is an area in the Pacific, and the Pacific is very large, but between Hawaii and Mexico. And there's a larger, and there's then a debate. Again, I won't comment on the merits of the debate, but I'll say there is a debate as to whether the particular company had opportunity to see important documents that helped them identify an area which was going to be particularly fruitful for economic exploitation. So again, not to comment on that specifically, but to say that that's also part of it.

So there's this element of fundamental issues related to the health of the oceans, questions of economic development and equity amongst countries, and important economic benefits and controversy. So it's quite an unusual mix. We don't usually see this necessarily in multilateral diplomacy.

LINSDAY:

Well, there's something else that's going on here, Esther, and that is that the agreement provides for the creation of what are called marine protected areas, MPAs. Sometimes MPAs are referred to as "National Parks of the Sea." We actually do have one MPA that already exists, and that's in Antarctica's Ross Ice Shelf. Many countries have MPAs within their own territorial waters. I think the United States has nearly a 1,000 if you include MPAs that are in the Great Lakes. Tell me a little bit about the MPA aspect of this agreement.

BRIMMER:

Indeed, as you mentioned, that one of the crucial things it does is create marine protected areas, which means creating zones where there's not economic activity, but instead are that you're prioritizing the life and restoration, often of marine life, in a particular zone.

A couple different reflections of that. The first is that those countries that become signatories and eventually ratify the High Seas Treaty will be able to participate in the process of designating future marine protected areas. So that means if you want to be part of that process, you need to actually be part of the High Seas Treaty.

I'll just take a moment, as you mentioned, the United States has many zones of its own that are either within its national waters and has worked in the past through international organizations to try to find international support for our own protected zones. If I may share a personal reflection, I had an opportunity myself to go and visit one in the Pacific, in an area called Papahānaumokuākea, which is outside of Hawaii. It's about 1,200 miles from Honolulu. Many people will be familiar with Midway Island, of course, of great historic fame, but that area around it is actually was declared a national area of historic significance and was actually declared an area for preservation, importantly over multiple administrations, as bipartisan effort.

And then the United States, when we were still members of the United Nations Educational, Scientific and Cultural Organization, actually again, across administrations and with support with the State of Hawaii, went and achieved world heritage status, again, a multi-year, multi-administration effort, for this particular zone because of the endangered species in this area, remarkable history. Interestingly enough, it's one of the few places where the United States appealed for world heritage status, both on geographical significance and cultural significance to the people of the State of Hawaii. And I had the honor of going out there with international representatives in 2010 to actually bring the international community to acknowledge the creation of this marine protected area.

So that's my way of saying that the importance of culture, heritage, and nature is found deep within the United States as well. And the United States has, in many ways, been a leader in these areas and has recognized the importance of maritime protection to both international relations and to human wellbeing.

LINSDAY:

And I should note, the United States signed off on a UN agreement last year, I think in December, that the world should seek to protect something on the order of 30 percent of the planet's oceans by the end of this decade. And so, I would imagine MPAs would be a building block in trying to reach that goal. And one thing in particular would be to try to protect spawning grounds for fisheries, to make sure those are not destroyed, because obviously that could disrupt fisheries. And many people, as you noted earlier, depend upon fish as a major source of protein.

BRIMMER:

And the other just to mention is that you also have migratory fish stocks. While we often think about protection in national waters, that there are also important marine animals that move across the oceans. They cross-

LINSDAY:

They don't pay attention to boundaries, they don't take out visas, they just migrate.

BRIMMER:

Indeed, indeed.

LINSDAY:

So how effective do you think this agreement is going to be, Esther, given, as you point out, a lot of the details have yet to be written? We're already seeing arguments over it. I saw one of the members of the negotiating team refer to the handiwork as "an exercise in constructive ambiguity". Now, one person's constructive ambiguity can be someone else's emptiness. Do you really see this as a significant move forward?

BRIMMER:

I think it is a significant move forward, but, as is the case with any international agreement, it's up to the parties to actually abide by it and give the agreement life. Therefore, it is the national governments who will be adopting the principles. They were the ones both who will be active in the diplomacy at the new organization, but also active in the enforcement of the management of marine protected areas and the other aspects of this agreement.

Even if we look at the current situation now, we think about even national fishing rights. Again, we all recognize them, but many countries are not able to protect national fishing rights on their own. So just to give an example of one of the things that the United States does is working with many of its partners across the Pacific is something called the Ship Rider program. And so that United States Coast Guard cutters, so again, non-military, but with assets-

LINSDAY:

Shout out to our Coasties in the audience.

BRIMMER:

Absolutely.

... That you see the Coast Guard working with many smaller countries to help them defend their own national maritime areas and to defend their own national waters.

So there again, you have to be able to then help implement and reinforce the agreements. And I think that's where there will be a challenge. Again, oceans, as we have said, this is a very large part of the planet. That said, we're seeing some interesting areas of cooperation. So for example, we talked earlier about the challenges of illegal, unregulated, and under-reported fishing. And indeed, we are seeing various criminal activities and others in terms of overfishing. Interestingly, you could argue that this may be an area where you might see some great power cooperation, you might see some great power competition, but multiple countries are actually interested in trying to manage illegal behavior on the oceans. And indeed, recently, one U.S. official commented that illegal fishing was becoming "a much bigger problem than traditional piracy". And so there you might see some degree of cooperation to try to manage this. Again, these are very large spaces, so enforcement is going to be key.

LINSDAY:

Well, you have to be able to surveil to find out that ships are fishing where perhaps they shouldn't be fishing or are taking in bigger catches or using fishing techniques that perhaps they shouldn't. But I'm struck by your point about the potential for global cooperation, or great power cooperations, as you note, also potential for great power competition or conflict. My sense is the Chinese have been reluctant to go along with efforts to crack down on IUU in part because Chinese fishing fleets have been some of the biggest defenders on this score, not just in the South China Sea, but also off the coast of South America.

BRIMMER:

Indeed, indeed. And that amongst the various activities there leading to tensions between the U.S. and China, this is one. That said, there may also be an argument for deepening conversations on this point and saying, in the long run, that for China as well, a depletion of the oceans is a long-term disadvantage. And as China is increasingly playing a larger role in the United Nations' system as a whole, there may be a space for beginning to talk about the importance of enforcement by taking a longer view on this. That's not something that happens tomorrow, but that may be a longer-term view.

LINSDAY:

Understood. I think it's also important to stress that it won't necessarily be a simple China versus the rest of the world. There are a number of nations that depend upon fishing, Iceland comes to mind, which, on some of these issues, finds themselves in the same camp as the Chinese. And for those people who've sort of followed the issue of moratorium on whaling know how bitter some of those diplomatic debates have been over the last thirty years. Countries like Japan have a very different view of what should be permitted when it comes to whaling than many of its close allies, friends, and partners.

But obviously, Esther, we have a treaty. And in the United States' system, a treaty has to go and get the advice and consent of the United States Senate. What are the prospects that the U.S. Senate is going to embrace the High Seas Treaty? And I should also ask, can the United States be a party to the High Seas Treaty when it is not a party to the overarching agreement on the Convention on the Law of the Sea?

BRIMMER:

This is a really fundamental challenge for the United States because, first off, that indeed, of course, under our constitution, that treaties must receive the advice and consent of the Senate. And at this point, it is not seen as a high priority. This is not top of the list for members of the Senate. Passage would be extremely difficult, extremely difficult.

LINSDAY:

You have to get sixty-seven votes.

BRIMMER:

You have to get sixty-seven votes, and, at this point, this is not an issue that is immediately seen as a direct national interest by many senators. The second issue is the United States is not a party of the Convention on the Law of the Sea. There have been decades of efforts to try to ratify it and acrimonious debates about it, despite efforts by multiple administrations, including at both parties'-

LINSDAY:

With the support of the United States Navy, which would very much like to have the United States become a member of the Convention on the Law of the Sea.

BRIMMER:

Indeed, very much so, very much so. And it's interesting to see both military and diplomatic support for the Convention on the Law of the Sea. And indeed, for a large part, the United States follows many of the elements, recognizing that these are actually beneficial for the U.S. as well. So the history means that this does not start off as an uncontroversial topic, and so that makes it very difficult.

And then the second question is, since we are not parties of the Convention on the Law of the Sea, there's a question of will we have to go ahead and ratify? And there's no chance of the United States ratifying the actual convention. That is just not on.

LINSDAY:

Okay, but then we're in a situation which we could have an agreement which goes into effect. It has to get sixty states to ratify.

BRIMMER:

Right, to... Right. That's right.

LINSDAY:

Once that happens, I think 120 days later, the treaty goes into force.

But the United States will be on the outside looking in as the rules are being written, and these are rules that could, I think likely will, affect Americans, American industry, and what have you. So the United States is at a disadvantage, I take it.

BRIMMER:

The United States would be at a disadvantage because the rest of the world would be planning and setting up the rules for creation of the new mechanisms to manage the high seas. Because indeed, although the treaty creates a framework, it is the actual actions of states that will actually give life to the actual treaty. And indeed, that the United States would be outside this process. Now, it has many friends and allies who are closely involved, but that's not the same as being at the seat of the table and having a vote.

LINSDAY:

And your friends and allies can have different interests or different conclusions about what the right regulatory framework would look like or how to strike a balance between competing imperatives.

BRIMMER:

Indeed. And your friends and allies will come in with very different economic structures, very different economic interests, and very different legal structures as well. And so it's interesting, if you look at, for example, U.S. and its close friends in the European Union. That, interestingly enough, as you look at the text of the treaty itself, it does mention that states and regional economic integration organizations can sign, but clearly members of the European Union may have different economic structures and may have very different interests than the United States.

And then, individual countries will have their own interests. I mean, first, if we take a close ally like France. The United States has the longest coastline in the world. France is the second longest, because they have a lot of islands in the Pacific and those all count as sovereign territory, and they will have their own set of interests. So indeed, again, and this takes us to a large question about governance issues generally, that when the United States stays outside of an agreement, it means that it cannot set the rules and it cannot ultimately defend its own interests. As to say, in any body where voting matters, that if you don't have a vote, you're always ultimately outside of the conversation.

LINSDAY:

What is that old saying, if you're not at the table, you're on the menu?

BRIMMER:

Well said.

LINSDAY:

Just a final question on this, Esther. As you look at this broader issue of how to deal with the global commons that are increasingly coming under stress, whether we're talking about the oceans, whether we're talking about the Arctic... And I should note that you were recently a guest on another CFR podcast, Why It Matters, talking about the Arctic, which is increasingly becoming open.

... Whether we talk about space, we're in a situation in which more and more people are competing in using and potentially abusing the global commons, but the United States has really been reluctant to embrace these multinational negotiations and frameworks, UNCLOS sort of going to the top of the list, how do you see U.S. foreign policy playing out in that context?

BRIMMER:

I think this is one of the most interesting questions of our time, that for the United States to continue to thrive, it needs to be part of and continue to have access to the great global commons. Indeed, for well over a century, the United States has talked about the importance of air power, sea power. It's understood that whatever was the global commons at the time was important to be able to access and use the benefits of those areas.

And I would say now what we're seeing are new rules and changes in the major commons at the same time. We've been talking about oceans, and we've talked particularly about oceans and biodiversity. We could also be talking about navigation and debates about freedom of navigation. When we look at areas like the Arctic, which is both a national territory, again, the United States says the State of Alaska, which has half of the United States' coastline is in Alaska, it is directly related to a territory of the United States. It's also where you have NATO countries, perhaps soon-to-be NATO countries, and the Russian Federation all in one place. And at the center, of course, you have the Arctic Ocean, which is actually territory beyond national jurisdiction. So that we look at the Arctic, we're seeing both the concerns about strategic security from the NATO angle, the challenges with the Russian Federation, particularly after its invasion of Ukraine, so high political issues there, and the increased interest of China and many other countries in access to the Arctic, which, of course, is changing as the ice melts because of climate change.

So there are challenges in the Arctic, there are challenges in the ocean, and we're even seeing in outer space in particularly, our understanding of the various topics we've been talking about, whether it's biodiversity, movement of fish, movement of other assets, depends on satellites. And those satellites are in low Earth orbit, which is getting very crowded as well. Over 80 countries have access to space.

So at this point, the Arctic, outer space, and the oceans are all global commons where there are increasing activity and challenges to the role of the United States. And the United States needs to see that its wellbeing is also based on access to these global areas, and that these areas in particular are beyond national jurisdiction. You have to work with other countries and you have to be part of the international frameworks governing these spaces in order to be a player. And the United States never wants to be out of the game.

LINSDAY:

On that note, I'll close up The President's Inbox for this week. My guest has been Esther Brimmer, the James H. Binger Senior Fellow in Global Governance here at the Council on Foreign Relations. Esther, thank you for joining me.

BRIMMER:

Thank you very much.

LINSDAY:

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As always, opinions expressed in The President's Inbox are solely those of the host or our guests, not of CFR, which takes no institutional positions on matters of policy. Today's episode was produced by Markus Zakaria with Director of Podcasting Gabrielle Sierra. Special thanks both to Michelle Kurilla and Emily Pace for their assistance. This is Jim Lindsay. Thanks for listening.