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New High Seas Treaty Could Be a Gamechanger for the Ocean

New High Seas Treaty Could Be a Gamechanger for the Ocean

Most of us have never been to the world’s immense last wilderness and never will. It’s beyond the horizon and often past the limits of our imaginations. It contains towering underwater mountain ranges, ancient corals, mysterious, unknown forms of life and the largest seagrass meadow in the world.

Yet it begins just 200 nautical miles off our shores. Technically referred to as “areas beyond national jurisdiction,” these remote expanses are known to most people simply as “the high seas.”

Their vast, dark waters encompass roughly two-thirds of the ocean and half the planet and are the last great global commons. Yet just 1 percent are protected, leaving these vital but relatively lawless expanses open to overfishing, pollution, piracy and other threats.

In 2018, after more than a decade of groundwork at the United Nations, negotiations officially began for a new treaty focused on conservation and sustainable use of marine biodiversity in the waters beyond national jurisdiction.

The proposed treaty is being developed under the U.N. Convention on the Law of the Sea, which was signed in 1982 and defined nations’ rights and responsibilities for use of the world’s oceans. The Convention itself is a landmark agreement that established many key environmental protections and policies, but over the years it’s become obvious that some gaps in its governance policy have left the ocean’s ecosystems open to ongoing and emerging threats.

Many experts hoped the fourth negotiation session, originally scheduled to begin March 23 at the U.N. headquarters in New York, would lead to the finalization of the treaty’s text, but the meetings were postponed because of the COVID-19 pandemic.

That pause gives us an opportunity to understand what’s at stake a bit better.

“This is the first time that there’s been a treaty process devoted to marine biodiversity in the high seas and the first ocean treaty really to be negotiated in over 30 years,” said Peggy Kalas, director of the High Seas Alliance, a coalition of more than 40 environmental nonprofits and the International Union for the Conservation of Nature. “It’s a big deal, and it’s been a long time coming.”

But this historic opportunity is also one that could be squandered if the treaty fails to enact protections strong enough to actually safeguard ocean life.

“It has the potential to be a gamechanger for the oceans,” said Douglas McCauley, a professor of ecology, evolution and marine biology at U.C. Santa Barbara and director of the Benioff Ocean Initiative. “But it’s still to be determined whether it will be just the treaty version of lip service.”

We’re all connected to the high seas, even if we never actually see them, says Morgan Visalli, a project scientist at Benioff Ocean Initiative at U.C. Santa Barbara. “It’s incredibly important for helping to regulate the climate, for providing oxygen, food and jobs.”

But marine ecosystems face grave threats from an onslaught of abuses: chemical, plastic and noise pollution; deep seabed mining and other kinds of resource extraction; increased shipping; overfishing and illegal fishing; and climate change, which is altering both the temperature and chemistry of the waters.

Numerous strategies are needed to tackle these problems, including the bedrock component of reducing greenhouse gases.

We know pretty well how to do this in national waters — there are more than 15,000 of them already in places like Australia’s Great Barrier Reef and the Florida Keys. But few such protected areas exist in the high seas because there is no international framework to guide the process. One such effort to establish a marine protected area in Antarctica’s Ross Sea took years of research and diplomacy to implement.

It’s simply not feasible to scale the process — especially in the time we’d need to do it. That’s why creating such a framework for marine protected areas in waters outside of national waters is a key part of the new high-seas treaty negotiations.

And that fits into a larger global vision.

The participant nations in another international treaty, the Convention on Biological Diversity, are set to convene this fall. The agenda includes a goal of enacting an international framework to protect 30% of the oceans by 2030.

It’s a goal that scientists call a bare minimum. And it’s one that may be impossible to meet without the high-seas treaty.

“The science is clear, if we’re going to sustain a healthy, functioning ocean ecosystem, we need to be protecting at least 30% of the world’s oceans,” said Liz Karan, who leads efforts to protect the high seas for Pew Charitable Trusts, a member of the High Seas Alliance.

In anticipation of the treaty’s passage, scientists like Visalli and McCauley have already started modeling how new priority areas could be identified.

The other parts of the treaty, including environmental impact assessments and genetic resources, remain vital areas of discussion, but conservation groups have stressed the importance of protected ocean reserves for protecting the planet.
“If we want the ocean to continue its role in climate adaptation and being able to absorb the excess heat that it does, we need to create areas of resilience for the ocean,” said Kalas. “And the best way to do that is marine protected areas.”

The Challenges

Of course the devil is in the details.

While thousands of marine protected areas already exist, they come with varying levels of protections — much like we see with public lands. Some can be very restrictive, like national parks, or continue to allow extractive activities, such as in national forests.

Current marine protected areas range from no-take reserves that ban all extraction to areas allowing multiple uses — the latter are more common. Not surprisingly, though, scientific studies have shown that the no-take reserves do a much better job at protecting and restoring biodiversity.

Whether the treaty will be a landmark conservation effort or enshrine the status quo has yet to be determined, said Karan. “Both potential pathways are currently reflected in the draft treaty text” at this time.

From a scientific standpoint, McCauley says, marine protected areas should actually protect the wild character of the area and that means no activities — like mining or bottom trawling — that would disturb habitat. And the protections need to extend down from the ocean’s surface, through the water column, to the seafloor.

To do that means figuring out how the new treaty would fit with a tangle of more than 20 existing governance organizations that regulate seabed mining, fisheries management and shipping regulations.

“One of our hopes is that this treaty would knit those pieces together and provide a little bit more coherence and compatibility with those issues, particularly with regards to conservation and sustainable use,” said Karan.

There would also need to be a process for scientifically evaluating areas proposed for protections, and how the established reserves would be managed, and the restrictions enforced.

“The whole process, the whole vision and opportunity to think about doing something smarter and better — for the ocean, for biodiversity, for us — ends if we don’t get strong language in the treaty and get that treaty to pass,” said McCauley. “There’s historical potential for the oceans, but we need to make sure people on the outside are watching the people on the inside [at the United Nations] in New York.”

Road Ahead

Even though official treaty negotiations are on hold awaiting a decision on rescheduling the talks, work continues among governments as they review and refine their positions on numerous proposals submitted by states and NGOs.

The United States has been a participant in the talks, but the treaty process has largely flown under the radar among the general public so far. Given President Trump’s position on environmental protections and distain for multilateralism (like the Paris climate agreement), that’s been pretty intentional on the part of environmental NGOs.

But as efforts may be nearing the finish line, this is starting to shift. Karan says there’s more interest from legislators about high seas governance and more need to have an engaged public who can advocate for strong conservation protections.

Things are complicated, though, by the fact that the United States never ratified the 1982 Law of the Sea Convention, widely considered a “Constitution” for the ocean.

There is hope from some of the participants that the United States could ratify the high seas treaty if it comes to fruition, say Karan. But no one is holding their breath for that. Kalas says the goal is that the treaty, once completed, would be widely supported, although it remains to be seen how many countries will sign on. “If only 40 countries ratify it, that wouldn’t make it as strong of an agreement as if all the United Nation’s 193 nations ratified the agreement,” she said.

But there’s a fine line between having an agreement that’s universally supported and one that establishes concrete conservation actions and protections.

“Our concern is that in trying to get everyone in the tent as it were, we’re going to wind up with a status-quo agreement,” said Karan. “As much as we want a treaty, we want one that will make concrete change on the water.”

And it’s worth remembering, we’re talking about a lot of water. When the next session convenes, she said, “states will decide the ocean’s fate.”

The green sea turtle’s range extends throughout tropical and subtropical seas around the world. Constanza S. Mora / CC BY 2.0

Reposted with permission from The Revelator.


Source:  EcoWatch




Donald Trump can unilaterally withdraw from treaties because Congress abdicated responsibility

Image: President Donald Trump addresses the United Nations General Assembly

During this administration, everyone has to be alert and watching for potential misuses or abuses of power. Unfortunately, due to decades of executive aggrandizement and congressional acquiescence — coupled with judicial timidity — the ability to unilaterally withdraw the United States from every last treaty the Senate has ever ratified has been left solely in the hands of President Donald Trump.

So one of these mornings, Trump could well get up very early, issue a series of angry tweets and then proceed to issue an order withdrawing the United States from the United Nations. And, though it took a 1945 vote in the Senate to allow President Harry Truman to ratify the U.N. Charter, the current weight of legal opinion holds that President Donald Trump has the power to withdraw the U.S. from this or any treaty without similar consultation with the legislative branch of government.

(And, if this reminds you of what has happened to our constitution’s exclusive grant to Congress of the power to declare war, you would be right.)

Due to decades of executive aggrandizement and congressional acquiescence — coupled with judicial timidity — the ability to unilaterally withdraw the United States from every last treaty the Senate has ever ratified has been left solely in the hands of President Donald Trump.

During the 20th and early 21st centuries, the view that the power to withdraw from ratified treaties rests solely within the executive branch has gradually become considered settled by too many scholars, though it seemingly contravenes the founders’ own understanding of the Constitution.

No treaty can be ratified without a two-thirds vote in the Senate. And once ratified, a treaty becomes part of the “supreme law of the land” — which should logically mean that it could only be undone by Congress and the President, or at least by a vote of the Senate.

There were few comments by the founders on the issue of withdrawal, but arguably the clearest comes via Thomas Jefferson. He wrote in his manual of parliamentary practice, which he composed while presiding over the Senate: “Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded.”

The failure to act to assert Congress’ constitutional prerogative now hands an erratic and often vengeful president the power to undo crucial international agreements.

Unfortunately, that is not what is “understood” today. When President George W. Bush unilaterally withdrew the U.S. from the Anti-Ballistic Missile Treaty in 2002, only a few members of Congress protested; Congress as a whole failed to insist on a vote. Several members of the House then sued to force a vote (an effort I was prevented from joining by the Senate Ethics Committee). That lawsuit was rejected by the courts, because Congress had failed adequately to assert its powers and because the judge ruled “issues concerning treaties are largely political questions best left to the political branches of the government, not the courts, for resolution.”

That failure to act to assert our constitutional prerogative now hands an erratic and often vengeful president the power to undo crucial international agreements.

Considering Trump’s recent outbursts at the U.N., where he threatened to “totally destroy” North Korea, and his pique over opposition to his decision to recognize Jerusalem as Israel’s capital (U.N. Ambassador Nikki Haley wrote a letter to dozens of UN member nations stating that, “The president will be watching this vote carefully and has requested I report back on those countries who voted against us”), it’s easy to imagine a scenario that could prompt him to yank us from the organization.

It doesn’t seem possible that the founders’ intent was that any subsequent president could remove us from treaties ratified by the Senate whenever he or she felt like it.

And it’s not just withdrawal from the U.N. that should concern us: the NATO Treaty (which established organization), and the New START Treaty (in which the U.S. and Russia agreed to reduce our nuclear arsenals)— just to mention two — are crucial to various aspects of the post-war American foreign policy that has helped ensure our national security and prosperity.

There have been relatively few treaties considered by Congress in recent decades, in part because executive agreements and regular legislation have become a more popular way to establish various forms of relations with other countries. And many others were negotiated by various administrations but never ratified by the Senate, largely because of the high bar for approval: The SALT II agreement (another nuclear disarmament treaty with the then-Soviet Union), the Law of the Sea Convention (which was intended to govern the use of the world’s oceans), the UN’s Convention to Eliminate All Forms of Discrimination against Women, the Convention on the Rights of Persons with Disabilities and the Kyoto Protocol (which sets greenhouse gas emissions reduction targets to mitigate climate change) have all been sidelined by partisanship.

Should any of those, or any future, treaties make it through the Senate gauntlet, it doesn’t seem possible that the founders’ intent was that any subsequent president could remove us from them whenever he or she felt like it.

A Trump pull-out from the UN may not remove us from all of our obligations and opportunities within the organization, but it would surely be detrimental to our influence within it and our standing internationally. Congress must be ready to vote in opposition to any such unilateral withdrawal and, if need be, refer the question to the Supreme Court.

Hopefully, if that happens, the justices will not shirk their responsibility to uphold the constitution. The rule of law and international stability demand nothing less.

Russell Feingold is the Martin R. Flug visiting professor in the practice of law at Yale Law School. He served as a U.S. senator from Wisconsin from 1993 to 2011, and a Wisconsin state senator from 1983 to 1993. From 2013 to 2015, he served as the United States special envoy to the Great Lakes Region of Africa and the Democratic Republic of the Congo.

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