 So welcome everyone. Thank you for figuring out the technology and joining us tonight. Just a couple of protocols. As we go through this evening, if you have questions, please feel free to put them in the chat or under your reactions, you can also raise your virtual hand and that will put you at the top of the gallery and our moderators can see that you have a question. Also, I would like to acknowledge as is our tradition that Delhousey and many of us on the call this evening sit on the unseated and ancestral territory of the Mi'kmaq and Malaseek people. We are all treaty people under the peace and friendship treaties of 1752. We also acknowledge the histories, contributions and legacies of the African Nova Scotian people who and communities who have been here for over 400 years. So I would now like to introduce David Bandisway who is the director of the Marine and Environmental Law Institute at Delhousey. Thanks, Deborah. Before introducing our speaker, just a few words about Douglas M. Johnston who we honor every year with the Memorial Lecture. Professor Johnston received his doctorate of law from Yale University came to Delhousey way back in 1972 where he spent 15 years here at the campus and he laid the foundations for the leadership in Marine environmental law that we still enjoy today. He founded the Marine environmental law teaching program way back in 1974 and that still lives on of course with Delhousey being, I think the only law school in the world that offers specialization programs in both Marine law and environmental law. And he also of course was a leading world scholar in many areas of law, the sea, international fisheries, ocean boundary making, international environmental law. And again, that supported eventually our establishing of the Marine Environmental Law Institute in 2004 as a center of research excellence in ocean law and governance. Professor Johnston went on to teach at the University of Victoria and National University of Singapore. And his last book, The Historical Foundations of World Order, The Tower and the Arena was published post-humansly in 2008 and received an outstanding publication award from the American Society of International Law. And that book by the way is still a classic. If you haven't read it, you should. And it really talks about the need for rule of law and promoting global peace and security and environmental and social justice around the world. Unfortunately, Douglas Johnson passed away in 2006 at the age of 75. So we're great to have this further annual lecture. And now let me introduce our speaker for this evening. Simi Payne is a associate professor at Rutgers School of Law. She chairs the IUCN World Commission on Environmental Law specialist group on ocean law. She's been leading the IUCN's legal team in negotiations in New York for a new treaty on the conservation, sustainable use of marine biodiversity beyond national jurisdiction. The topic of tonight's lecture talk. She has been basically a legal counsel in two cases before the International Tribunal for the Law of the Sea and served as an expert before the International Court of Justice on the topic of environmental damages. How do you assess environmental damages? She holds an MA from Fletcher School of Diplomacy and JD from University of California, Berkeley. And we're very pleased that she's joined us then to share her thoughts, her views, whether a new BB&J agreement will support a sustainable future for marine biodiversity beyond national jurisdiction. Where are the negotiations at? What are the big issues? Will this vast area of ocean space come under the rule of law as it should? You know, over 60% of our oceans, over 40% of our planet. So I'll turn it over to Simi. We thank you so much. We wish you were here in person. Rutgers isn't that far away if you fly, I guess about an hour and a half. And we wish you were here, not New Jersey, but up here, but we're so glad you will join us. So I'll turn it over to Simi and do put your questions in the chat box during the lecture if you'd like to get ahead of the queue. Thank you. Well, thank you, David. And thank you to the other sponsors for this talk. It is such an honor to be asked to speak in this lecture series in honor of Douglas Johnston. And the only person in the room who wishes that I were there more than you, David, is me. As you know, I've been just dying to get up the Halifax and so maybe we'll get better weather and I'll be able to come in the spring. I think it's really appropriate that I'll be talking today about an effort to, quote, convert the language of global environmental ethics into more specifically operational ideas that can be implemented at national and regional levels, which is a quotation from a paper that Douglas Johnston wrote about planning of environmental security zones in the ocean. My topic today is the international cooperation to operationalize the concepts conservation and sustainable use in the global ocean. If it's successful, the international agreement will need to be implemented in national law and in regional bodies. But before I take you out onto the ocean with me, I want to acknowledge the Lenny Lenape, the traditional people of the land where I am today, people who had a close relationship with the sea. I pay respect to Lenape people's past, present and future and their continuing presence in the homeland and throughout the Lenape diaspora. So let me share some images with you as I talk. So I'd like to tell you a bit about and this environmental agreement that covers half of the earth. It covers the ocean. This image is a meeting of diplomats at the United Nations, people coming from Canada, from Russia, from China, from the United States, from small island developing states like Micronesia, South Africa, Algeria, Colombia, the European Union, even from landlocked Switzerland and occasionally Nepal is represented there, another landlocked country, but a developing one. Along with members of international organizations and civil society. And the question is why are they there? Why are they meeting? In answering that question and a second question of how do they propose to solve the problems that they look so concerned about, we'll explore the ocean far offshore. We'll consider how people are finding many new ways to use the ocean for industry and commerce. We'll see that ocean governance is fragmented and insufficient and we'll explore the solutions that are being proposed by these people who will be traveling back to United Nations headquarters in New York City this March, COVID willing to negotiate the text of a new treaty for the conservation and sustainable use of marine biological diversity. So to start with, why? Why does this matter? For most of us, the ocean is a flyover zone. You might glance out the window of your airplane as I have here and you'll see this nice blue gray color and you probably won't see much else and you might see a lot of clouds, but it is not a blank space. It's a shared space. I'm gonna go back one of my slides. There we go. Well, we're making discoveries of life at every depth. So this map shows the ocean as it truly is, one connected body of water that dominates the surface of the planet. It's 70% of the surface of the planet with complex canyons, abysses, planes, sloping up to shallower zones near the continents and I'm sure you've all recognized that the continents are the areas in black. The ocean is the blue. The open ocean is connected vertically from the air above down through the water column's twilight zone and into the subsea floor sediments. These are some of the creatures that comprise the new stone living at the interface where air meets water. They're really neither air-dwelling nor sea-dwelling but they're right at the edge. The high seas are connected across the oceans to coasts through fisheries and rivers where salmon and eel migrate back and forth. The leatherback turtles here visit 32 countries. The great white shark and the Pacific bluefin tuna roam across the seas and many birds either migrate across the ocean while some even spend much of their life on the high seas like this Laysan albatross that's reported in this particular paper. That means that many different countries need to cooperate in conservation. Ocean life forms are also connected to deep time. Many deep sea creatures grow slowly and live long, blue whales can live to be 90 years old and some life forms are believed to be hundreds of years old. There's still more to discover. We're still mapping the ocean floor. They say the moon is better mapped than the seabed. The ocean encompasses 95% of the space on earth where life can exist and we're still discovering new life forms there. This is a short story from the BBC that was posted yesterday that I wanna share with you. It might be to date one of the largest coral reefs in the world that actually dies at that sort of depth of more than 30 meters. So from that perspective, this is opening a new insight in science. This could suggest that we have many more large reefs in our ocean at that depth beyond 30 meters, which we simply do not know about. So we as humans have interests in the ocean, most obviously breathing. Yeah, we like to breathe. 50% of earth's oxygen is produced by ocean plankton. We like to eat fish and while high seas fisheries are significantly targeting tuna and allowing the more fortunate of us to indulge in Chilean sea bass, about half the world relies on other forms of seafood for its main source of protein. And emotionally and culturally, we have feelings for the great whales and dolphins, sea turtles and the beautiful denizens of the deep ocean like the Casper octopus, the vampire squid, the frilled shark. The ocean absorbs heat and about 26% of the anthropogenic carbon dioxide emitted each year into the atmosphere. And from the genetic information in life forms adapted to survive extreme pressure, extreme heat and cold, lack of light and other conditions found in the deep ocean, we may be able to make new discoveries for pharmaceuticals and for other useful products that can help us live better lives. This beauty and these essential ecosystem services depend on ocean life, on ocean biodiversity. Humans also use the ocean in other ways which can conflict with its ecological processes and also with each other. For example, this is a rather old fashioned looking map but it's a very modern map showing submarine cables. These are fiber optic cables that carry 95% of our international internet communications and provide an essential communications link for countries like Australia, New Zealand and small island states. Tango, which was so seriously harmed by the recent tsunami and volcano in part lost its communications because of disruptions in its submarine cables. Unfortunately, these extensive networks of cables are vulnerable to damage from ship's anchors and from trawlers fishing for bottom dwelling species. This is a snapshot of global marine traffic based on data gathered from a network of coastal stations supplemented by satellite receivers using the automatic tracking system that ships are required to carry. So this is actually kind of, I'll share the slides afterwards and if you click on this slide it'll take you to the website for this. It's a really terrific site because you can see real time the ship traffic that as it's being reported and analyzed and you can click on individual ships and see the ship's name and what their trip has looked like but they're obviously not to scale still. It gives you a good sense of how dense the ship traffic is. And I'll just to kind of highlight that. So this is the United States. This is Florida down here and where there's this incredibly dense traffic there's also a very sensitive, very special ecosystem called the Sargasso Sea which is a floating body of Sargasso weed with a unique ecology that also is closely linked to our continental ecologies because we now know that sea turtles and eels use that place as part of their life cycle and then they come to our beaches and up our rivers in another part of their life cycle. So we use the oceans for transportation and that can be in conflict with the ecology of the ocean and our land-based activities cause greenhouse gas pollution which is a three-fold threat for the ocean, warming of the ocean which changes habitats and causes species to migrate or to perish if they're unable to. Acidification which can destroy the bodies of essential life farms, deoxygenation which can cause catastrophic food web collapse. And overall this will have effects on human health, food supplies and potentially lead to conflict over resources. Our land-based activities also are one thing but we're also expanding out into the deep ocean and deep seabed mining is a new way of exploiting the ocean that is just beginning. In the part of the ocean that lies beyond national waters it has not yet commenced in part because the regulations are still being worked out but the small island state that's sponsoring a mining company has triggered the so-called two-year rule which would require mining permits to be issued whether or not adequate environmental safeguard rules are in place. They argue that the new energy economy will need the metals they will dredge from the sea floor. Scientists and others concerned that mining would destroy ecosystems that have not yet been studied that may be unique and that are known to be very slow to recover are asking for a precautionary pause on seabed mining. We also have possibly new geo-engineering industries which are also interested in exploiting the ocean with various techniques to store carbon or to reflect solar radiation which have carried out at sufficiently large scale to be effective would likely have detrimental impacts on ocean ecosystems. This explains why the diplomats are gathering to work out ways to better manage our activities in the ocean. It's rich in life and essential systems and yet it has a number of threats. In 2009 this paper proposed the concept of a safe operating space for humanity. The idea of these authors was that there are boundaries. The points at which our impacts on the earth push it outside the stable environment that nurtured humans for the last 10,000 years. Roughly the period through which we developed agriculture and eventually industrialized. Each of the nine wedges of this pie and this graph is a different critical planetary system. The inner green color represents the safe level the red represents what they believe to be the authors. The paper believed to be the current state of the planet. And as you can see one of the boundaries down here in the lower left corner that they believe we have exceeded is a safe level of biodiversity. So how do we manage the ocean now? Well, in 1973 a conference was convened to codify existing law of the sea and to develop it further in some respects. The spirit of that effort was captured in this plea by the distinguished international law scholar Lewis Hinkin. He said in 1971 just before the conference began now the uses of the sea are many and interdependent. Now the fears and interests of coastal and other states are many and legitimate. Now happily military force cannot be readily used to protect most of the interests at stake. International law then has to move quickly in the sea. The seas, all the seas cry for regulation as a veritable race communists omnium. And for those of you who haven't been spending time boning up on your Latin that last expression is essentially saying as a real global commons as a shared space that all humanity has an interest in. At the conclusion of that negotiation the nations of the world had agreed to extend their sovereign rights to the seas 200 miles from their shores and even beyond in some cases. The dark blue that you see here is that extension the exclusive economic zone which is defined by the 1982 convention on the law of the sea. The light blue is our shared ocean global commons were no nation can claim sovereignty. This is the area beyond national jurisdiction that the new treaty will apply to. So why is this important? Well, it covers two thirds of the ocean that light blue area and it's about half the planet. So it's the largest habitat for life on earth by volume and yet only 1% is protected. Now think about on land we have parks we have wildlife refuges we have various ways of protecting valuable ecologies. This part of the ocean despite its importance to us does not have that. Why not? Well, in legal terms we call that area of the high seas and the high seas are common areas where all states have rights to fish to traverse with ships to lake submarine cables and pipelines. Another legal concept. Now that concept of common areas that can be used by different countries more or less unregulated is a very old one. A more modern concept is common concern and common concern is amongst other things the basis for protecting biodiversity under international law and the convention on biological diversity it's referenced. It's a legal principle that is fairly specific to international environmental law and it's also we consider a climate the atmosphere to be a common concern. They're distinct from other kinds of environmental resources because they're shared they're not within the terrestrial the territory of states. And so they can't be handled by a particular state. You know, the United States can protect this part of its country. Canada can protect that part of Canada but we have to work together to protect the oceans and the atmosphere. There's a third concept that was declared in the convention of common heritage. So the law of the sea convention declared the resources of the sea bed and its subsoil to be the common heritage of mankind and established an administrative framework for deep sea bed mining to extract those resources. That is fairly unique and there's a question or the issue has been raised that perhaps the genetic resources of the ocean should also be considered the common heritage. The idea there was that towards the end of the last century developed countries were developing the technology to go out and actually collect these metals and minerals lying on the sea bed and that developing countries would once again be left behind. And yet since these things weren't part of the national territory of those developed countries, that wasn't just. So it would be equitable to have some framework for sharing. That becomes an issue for the treaty as we'll see when it comes to the genetic resources. It's also worth mentioning while we're talking about commons concepts that in economic terms, the ocean is an open access commons where governance and sustainable use will be very difficult to implement. So the law of the sea convention is considered now somewhat outdated in some senses or at least by some people. The negotiators back in the 1970s didn't realize that there was rich life in the deep ocean and they didn't realize that human technology could deplete the fisheries and other marine resources at the rate that they have although there was certainly a motivation to be concerned at the time. So this is article 87 of the Ewing Convention on the Law of the Sea which declares the freedoms of the seas. This is the open access notion that the high seas are open to all states. But even though there weren't the kind of protections and restrictions that we might look for today for the environmental protection, then drafters did include general principles of protection. They stated that the freedom of the seas was to be exercised with due regard for the interests of other states and they mentioned in several places in the convention that states had to be concerned about environmental protection in the ocean although they tended to focus more on pollution issues than on resource extraction problems. Still, there's widespread agreement that the ocean should be protected and managed in some way. For example, goal 14 of the UN Sustainable Development Goals adopted by the UN General Assembly in 2015 is to conserve and sustainably use the oceans, seas and marine resources. However, the governance regime is fragmented with hundreds of bilateral and multilateral agreements that fail to address the need for earth systems governance. Now, these two maps show the jurisdiction of the several fisheries management organizations. At the top, you can see the organizations for managing tuna and other species that roam the oceans, the highly migratory and on the bottom, the organizations for species that are more regional in their distribution. And what you'll notice is that there's both overlap between these bodies, but also if you consider that the regional fisheries organizations are not covering all parts of the globe nor do they cover all species and they don't necessarily do much to think about the protection and management of non-target species, the species that they aren't actually fishing for. There's a final concern which is that although they're meant to be managed on us, the basis of scientific information, there's evidence from recent research that they don't often listen to their scientific bodies in allocating catch. So despite the existence of these bodies, overfishing and destructive fishing are the greatest immediate threats to ocean life, which brings us back to this room. The recognition that ocean biodiversity is at risk and that our current approach is inadequate led the United Nations member states to begin negotiation of a new treaty on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. In September 2018, and its abbreviation is BB&J but biodiversity beyond national jurisdiction. So you'll hear that. Getting there was the result of many years work driven forward by continuous scientific discovery the efforts of civil society experts and advocates, including the Intergovernmental Organization that I work with the International Union for Conservation of Nature. And I do wanna mention that Professor Van Der Swag was my predecessor as leader of the ocean law group there and did a lot of distinguished work in relation to IUCN. So the treaty negotiation was delayed by COVID. It should have concluded a year ago this past August. How will this agreement provide for conservation and sustainable use? Well, it has these four elements. It's got environmental assessment, area-based management tools including marine protected areas, dealing with marine genetic resources and capacity building and technology transfer. So what does all that mean? So this is the copy of the UN General Assembly resolution that authorized the negotiation. And you can see it's got this very specific language about what's gonna be in the package. Now, I have to say that when I first came to work on this, I thought, wow, marine biological diversity of this huge part of the planet, that's gotta be massive. And there have to be all kinds of tools and techniques that are gonna be used to deal with that. And then I learned that there were only four things and that two of them were somewhat peripherally related to actual conservation and I was quite baffled. I'd like to explain to you what eventually became more clear to me. So you may have already seen this in the context of climate change adaptation that a climate change strategy includes on the one hand mitigation, so reducing emissions, reducing the harmful thing, right? And certainly that's part of the strategy here. The other part of the strategy is to reduce not just the harmful thing, but by reducing some of the harms to make the things that you can't change less damaging. So that's more of an adaptation strategy. Now, let's take a look. So this is just some nice pictures so that you can get a sense of what we might be taught, where we might be talking about. We've got a nice map here that shows a number of areas that have been proposed as potential conservation zones. Here you can see the Sargasso Sea is one of them. The Gacal Ridge up here in the north is something that some of you may be more familiar with. So there's a number of them around the world that have been pointed out as places that are either especially rich in life, especially vulnerable. And if we could develop some tools that would control the impacts, so this is gonna increase the ecological resilience to withstand impacts from greenhouse gas pollution and other harms that can't be reduced directly. Think about this as an analogy to your health. So if you haven't had enough sleep and you haven't been eating a healthy diet, you might be more susceptible to catching a cold if you're exposed to a virus. And remember I said that studies show that fish populations are already shifting to other parts of the ocean as the water temperature heats up due to climate change. Now we can't deal with the greenhouse gas emissions directly through this treaty that's being done elsewhere. What can we do here? Well, one of the problems would be that animals that prey on these fish that are moving, fish populations that are moving may have to travel further to find food. If we can't control that, let's try reducing fishing effort by humans on the populations of fish that they can access. And let's consider diverting ships around the region where they are so that they're not subject to mortality from ship strikes or from pollution from ships. That may make them more resilient. This is another nice map showing areas of ecologically, biologically significant marine areas. These are zones that might be declared to be protected areas. Now one strategy could be there's a zone here off of Costa Rica called the Costa Rica Thermal Dome. It's, remember I mentioned that earlier that the ocean is very connected. It's also very dynamic. The Costa Rica Thermal Dome is a phenomenon. It's an upwelling phenomenon that has to do with the temperature gradient in the ocean and the transport of nutrients. So it becomes a very biologically rich place. It's good for fishing, but it's also good for the critters that live there that we don't eat. And so if we wanna protect that zone, it turns out there's only certain times of the year when it would be important to do so. Now that happens to also be the zone where a lot of ships that go through the Panama Canal traverse that area. You could have area-based management tools that are specific to the times and locations that are crucial for the protection of the ecosystems that depend on this upwelling phenomenon. And that might even move around a little bit. They wouldn't be a fixed location. National parks have fixed boundaries. This might not have an absolutely fixed boundary because it's not always found in the same location every year. So that would be one strategy. I'm gonna back up there, okay. A second strategy that the treaty is going to use is to subject activities that might cause significant harm to an environmental impact assessment. So how does this work? When a project that might have an impact is planned, the location, the scope, the timeframe and specific activities have to be described. The best information that can be obtained about how the activities would affect the environments presented and analyzed. And that should include cumulative impacts. So for example, if there's another activity that's also affecting the same environment, their impacts should be studied together. Climate change is an important factor. Projections of warming, acidification, deoxygenation, relocation of species, shifting ocean currents, freshening of seawater as sea ice melts that was reported recently in the news. And other factors need to be considered when a project is being proposed. All of this information will be shared with the rest of the world through an online clearing house. And then other governments, scientists and civil society will be able to provide additional information and their views on the project. And that may lead even to revising the project. It's a process that is widely done. Canada does environmental assessment on a regular basis and extensively. And in fact, it's considered so common now that it's considered a general principle of international law that some kind of environmental impact assessment is required whenever an activity might have a trans-boundary effect. So that's generally accepted by the negotiators as wide agreement on this basic procedure. There are however, still significant differences between governments on two issues. And those are the ones highlighted on this slide. So one of those issues is whether any activity that might have a significant effect on areas beyond national jurisdiction, wherever they occur are covered. All, virtually all governments agree that yes, there should be environmental impact assessment if a government is sponsoring an activity or it's the host to an industry or an individual that plans to do an activity on the high seas. In that area, that's more than 200 miles offshore. But many governments are much more reluctant to allow that kind of an international requirement for activities that take place either on land or in their national waters. So that is a difficult issue. There's certainly lots of activities that could take place that could have a very serious impact on the environment, on the high seas that would be occurring within national jurisdiction. And I'll give you an example. You'll recollect that the tsunami that damaged the nuclear power plant in Fukushima, Japan led to these long-term consequences. And at the power plant, they've been storing radioactive water that's part of the cooling and recovery of the plant. And Japan has notified countries in the region that they intend to release that water into the ocean. So that's an action that's being taken within the areas that are subject to Japanese jurisdiction, but it's going to affect the ocean that is part of the high seas. So should an activity like that be subject to that requirement is gonna be, one of the issues still hasn't been resolved. And a second issue, it has a similar concern where governments may be hesitant, although they have hopes for achieving a treaty that will truly provide conservation and sustainable use of the ocean. They have a concern with extending the rule of international law so far that the conference of the parties would decide whether if an environmental impact assessment shows that an activity might have a harm or will definitely have a harmful impact on the biodiversity of the high seas that the conference of the parties could say you can't do that activity. A number of states wanna reserve the right to make that decision to themselves. So that's gonna be another difficult negotiation that still has to be done before the treaty can go forward. So we have those two measures. I should probably mention also that within the area-based management tools and protected areas issue is the question of what industrial sectors are included in the agreement. I mentioned that fishing is currently the most damaging industry for the environment of the high seas. And seabed mining, if it gets going at scale in the next few years will also be that. Shipping is another major problem. So those three industries have all said that they don't believe they should be included in the scope of the treaty. In that case, when these areas of protected areas are proclaimed, what does that mean that they won't agree to not conduct their activities there? So that's another issue that is a sticky one that remains to be seen. So a third approach that the treaty takes is capacity building and technology transfer. Now, if you're used to looking at international environmental agreements you'll see lots of capacity building and technology transfer. It's pretty standard now. And that is not a highly controversial topic in the way the others are. It doesn't so much go to a tension about sharing sovereignty or intrusion on sovereignty. It's really just the question of how much money might be transferred and how technology might be transferred getting really good commitments. The idea is that this kind of capacity building and technology transfer will do two things. It will both support the ability of developing states to participate in the treaty's activities and to do their share in protecting the environment. But also that it should allow them to fully participate and in particular there's an interest in their being able to fully participate in the development of marine genetic resources. So this is the fourth element and the most contentious element of the agreement. So I mentioned that as we've learned more about the deep ocean, we've learned that there is an incredible array of life forms from the microscopic to the macro level that have found ways of living in these environments where the image here with these crabs and clams is one taken where there's no natural light. An incredible pressure at great cold. The genetic adaptations that these creatures have developed are potentially very rich for genetic research and biotechnology. And as with the deep seabed mining concerns that led to the declaration that the seabed was the common heritage of humankind in the 1982 convention on the law of the sea. So too, developing countries wanted for marine genetic resources to be considered common heritage of humankind. The negotiation has gone in the direction of not making that commitment. It's unlikely that that will be the outcome. And instead, the focus has been more on access and benefit sharing. And there's two kinds of access and benefit sharing or two kinds of benefit sharing. One is to actually say, well, companies will come in like the German company, BASF currently holds most, the vast majority of the patents that have been taken out on marine genetic resources. So they collect the material, they do the research, they then get a product eventually that they can market and those profits have to be shared to some extent with the rest of the world. That's one approach to benefit sharing. That's monetary benefit sharing. That's not likely to be agreed, but is still being discussed. More likely is other kinds, non-monetary benefits, which could be access to the products, particularly of interest and raising equitable issues if the products are pharmaceuticals, for instance, but also access to the technology, training people from many countries in the technology of developing these genetic resources so that they can independently benefit and develop national programs in it. So that's how the intellectual property will be handled is both a difficult issue technically, legally, because there's a lot of novel issues that arise at the international level and as a matter of interests, of national interests. So international lawmaking is different from international, sorry, international environmental lawmaking is different from international lawmaking in general because its practitioners have to deal with the great scientific uncertainty about the reality cause and extent of the problem. Management of ecosystems that adapts to changing conditions due to climate change, human interventions and other phenomena adds a further level of complexity. So one of the challenges for the BB&J negotiators is to design scientific advisory bodies to ensure that the best science is available and that it's used. We generally believe that democratic legitimacy is preserved when independent scientists advise political decision makers. That way policy should reflect both knowledge and social preferences. And this is where we've seen some problems. This is in this recent study of two international tuna fishery management organizations. They found that policymakers followed the advice of their scientists only 39% of the time for one organization and a startling 17% of the time for the other. The consequence is that fisheries and related ecosystems collapse. Many of us are familiar with how difficult regulation and dispute settlement are when we're dealing with science that's complex and sparse. So recognizing all this, the BB&J negotiators are for the most part in favor of a scientific advisory body and gradually the shape of that is evolving. So I think the last question is, can we do this? During the course of the negotiation, states have acted out of their national interest. For example, strongly supporting the negotiation process but protecting their domestic fishing industries by opposing inclusion of fisheries management in the agreement. States have acted altruistically proposing strong environmental impact assessment measures. States could say, that's far away, it's out of sight, out of mind, we have more urgent problems. They might even say, we should take the minerals before others do, we should take the fish before others do, which I've heard argued by lawyers for one of the mining companies. Or they could take the position that they can cooperate in the interests of young people alive today in future generations. They can plan activities across all sectors, including fishing, mining, shipping, to consider their cumulative effects on sensitive ecosystems. They could take a precautionary approach by restraining exploitation and pollution until we know what is there and we can develop technologies that will allow the most valuable uses while respecting the life forms. We've done this before. At the planetary level, countries work together through an international treaty, the Montreal Protocol, to act on scientific information and stop the use of industrial chemicals that were destroying the protective stratospheric ozone layer that filters dangerous cancer-causing ultraviolet light. In the marine environment, the Central Arctic Ocean Agreement put in place a fairly long-term moratorium on fishing. The bottom trawling and drift net fishing resolutions by the UN General Assembly are another example of cooperation in the interests of good ecosystem management. Environmental problems like this, like climate change, require concerted action. And at least the major contributors to the problem present and future need to be parties to the regime. So for the BB&J negotiation, there's wide participation in the discussions, including the major maritime states, the U.S., China, South Korea, the European Union, Japan. Not all major fishing nations, however, are at the table, although fishing, again, is one of the most damaging ocean activities. For example, Taiwan's fleet is second only to China with 12% of the world's high seas fishing catch, yet it does not have a seat at the United Nations and therefore could not participate in the negotiation if it wished to. The eventual ability to arrive at an agreement with enough parties to make it functional will depend on whether states see cooperation on these issues as sufficiently beneficial to their national interests. And a hurdle to get over is that it's clear that the U.S. and other states, including Russia, are moving away from multilateralism and toward bilateralism or even isolationism. To choose the path of cooperation, we need public understanding of the value of the open ocean and its life and support for a treaty with strong rules, precautionary principles. In 1991, writing about the very different, much more focused problem of regulating chemicals that cause the ozone hole in the atmosphere, David Karen said, in negotiations concerning environmental matters, there is the added and quite different task of the parties seeking to discover precisely what the environment requires. In this sense, the environment is an unobtrusive but central presence in the negotiations. It is a party that does not volunteer information but may answer questions if asked correctly. It is also a party that refuses to negotiate. So thank you for your attention and I look forward to your comments and questions. Well, thanks to me for that great overview and fantastic complex issue that you're dealing with. And so thanks to all the beautiful pictures as well. So let's begin with our question and answer. I see a hand up from David Mosher. David. Thank you. Thanks very much for that talk. I'm a commissioner with the commission on the limits of the continental shelf at the UN nominated by Canada. And so I have some experience with related topics but in that context, I'm a bit surprised that you referred to the sovereignty of a state out to 200 miles and not to the limits of the extended continental shelf. So I guess my question relates to the perhaps the eventual treaty of a BBNJ and the overlap with UNCLOS and how that would be managed particularly under article 76 with the extended continental shelf of a coastal state but then article 77, which says the coastal state has the sovereign rights over that area even if it's not defined. And so when you start asking about environmental assessments as an example, the state may weigh in with its sovereign authority. And so there'll be a conflict as it were between the two treaties. I guess my question is how is that being considered in this context? Thanks, that's a great question. And I didn't wanna get too deep in the weeds about the convention. So I said 200 nautical miles and sometimes further and that was my way of referencing what you're talking about. So it's this weird problem that you can have the continental shelf as the extension of the continent, imagine Canada has quite an extensive continental shelf. So picture some of the continents underwater essentially. And so if Canada is claiming an extended continental shelf past 200 nautical miles from the land from the shoreline it's just the seabed that Canada can claim. It doesn't claim the water column. And this is really one of those things that probably made sense in 1982, but with what we know now about both exploitable resources and ecosystems in the ocean, it doesn't work out particularly well to think about how you manage these split between jurisdiction. I'm sort of hesitating because I'm trying to avoid getting into too technical a discussion of it, but it is a real problem. And Joanna Masup has written on it, but in general, that's the kind of issue that has not been discussed in detail in the negotiations and how it's gonna be implemented we'll see real world answers to that. I think this is the kind of thing that would be a really fascinating, although perhaps challenging topic to write about. So this is an academic context. And I think where it becomes functional to write about it is if you can come up with a realistic scenario, find a specific extended continental shelf. I mean, this isn't for you, David. This is for the students in the audience who are looking for paper topics or PhDs. Look for a location, see what's realistic there and then start proposing solutions and questions. But it is an important issue. I think it comes up in other places too, like there was a delineation of maritime boundaries where in the Bay of Bengal, where there's a split between the seabed and the water column. And then there's another issue, which is my own hobby horse, but that in fact, airspace above the ocean is addressed by the law of the sea convention. And that's not addressed at all in the treaty discussions. Everyone's kind of like, well, yeah, we'll work it out. Just a comment, if I may, in context of your, I like you very much, of course, as a scientist. I like your idea of establishing a scientific advisory body and serving on one at the UN. I could offer some, a lot of advice on what works and what doesn't work. So if one eventually does get to that stage, make sure you consult with the existing ones. Cause in our case, it was set up, presumably it was to be a short-term commission and it's now in its 24th year, 23rd year. And so a lot of the infrastructure doesn't exist to support the commission, but those are issues that I'd love to talk about. Well, we should engage separately, but those are important design issues, right? And there's the question also that that raises. So there's different kinds of scientific advisory bodies. The commission on the continental shelf is experts and they're subject matter experts like you. The scientific and technical body for a climate change is not. Those are political appointees who may or may not have the technical expertise. That creates a very different kind of capacity for the body and a different set of positions. So those are design issues that need to be worked out. And if they aren't gonna be technical experts, then how do they get paid? How does this work for their careers if they're academics who need to be writing papers and not sitting on commissions? Then how do their careers advance? There's a lot of sort of practical things like that. So thanks, those are great questions. I'll take a look at the chat, but do you wanna feed me a question, David? I'll look at the chat, a number of questions there. I'll go to mine or Duels first. I wonder if you could speak to the extent to which to manage the high seas under the emerging BB&J regime will be global. To what extent management may be regional? This question of global versus regional. Yeah, so that is, it's one of the debates that's going on within the negotiation. It's kind of a meta issue, but it'll play out in how the text is written. There's one of the slides that I skipped over was the language that is part of the mandate for the negotiation. And I'll just read it to you. It says, this process and its results should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. So sectoral bodies there means industry sectors like fisheries, fishing is an industry sector and has fisheries agreements. So there's this question about whether it's better to have a very centralized, very international body. For example, proposing area-based management tools and marine protected areas. Or should that be done on a regional basis? Do the people in the North Atlantic or in the Pacific know best what should be done in their region? And will they do it in the interest of the international community? So it's a trade-off and there has been a strong push for more regionalization. I think there's a sense that not only is there more political support for it, but that it may be more operable than trying to have everything at the international level. That's a good question. Another question from Charlotte Connelly. Could you elaborate on the potential relationship between the BB&J agreement and the ISA, the International Seabed Authorities Regime for Seabed Mining, including the EIA requirement? Yeah. So the environmental impact assessment requirements for the BB&J have been being developed independently of what's happening at the International Seabed Authority. The International Seabed Authority has been developing its regulations for actual mining rather than just exploration and prospecting. And that's been kind of bogged down. And I mentioned that they now have this pressure to accelerate. So I guess the short answer is you'd think that it would make sense to do those two things together and come up with a strong consistent standard. But that hasn't been the case. Another question from Marjorie McGraw, sorry. Just what my person is left here. Let's go back to Rachel's question. Who has the power to enforce international fishing agreements concerning fish caught in the high seas? So basically the, you can answer this better than I can, David. This would come under the fisheries organizations that are regulating that particular fishery if there is one and enforced through the flag state. So that was another set of slides that I skipped through. But under the law of the sea convention, the every ship is meant to be registered to a country, one country. And that country then is responsible for having an appropriate legal framework to implement international obligations and to apply that legal framework and force it for ships that it flags. So that's essentially how it's meant to work. There's also, so that and that technically is, I think the limits for your question. There's also a whole array of other things that are happening, for instance, monitoring by satellites from organizations that are non-governmental and that report where ships are apparently fishing illegally. There's also, can get a little more complicated because coastal states have authority within their waters, within their EEZ, within that 200 nautical mile zone. So that's partial answer. Thank you, I see Wendell Sanford has a hand ups. Wendell, welcome, I think you're muted there, Wendell. Trying to find the right button to get unmuted. Okay, thank you, David. And thank you for organizing this, you and yours. And I do, the first thing I wanna say, and I will be brief, but nonetheless, I'm one of Douglas Johnson's many, many thousands of students. He taught me law of the sea in 1974 at DAL, it was just great. And I was just thinking, and he was an amazing man in that he was the true polymath. He was an excellent teacher. He was obviously a world-class scholar. And you know, he came back and worked with us in the Canadian government again and again on projects throughout the many years of his practice. And also I see Edgar here tonight, good evening Edgar. Edgar Gold and Douglas Johnson were a team that for example, invented something called the Southeast Asia Program on ocean law and management spectacular. I just wanted to say one thing on the question of when you're dealing with deep seabed mining, that's been, you know, that's a problem which dates from the law of the sea, the third law of the sea convention. And the text that you see is a complicated negotiation in order to get the developing states to sign on to the convention at all. And I know, because I worked on that for the Canadian federal government, 85, 86, we were negotiating with countries to start the seabed mining. And the reason we were doing it was because Nickel was thought to be in very scarce supply. And then the world changed. And the answer was Voices Bay and Labrador and New Caledonia. So that meant huge land-based resources of Nickel. So suddenly deep seabed nodules, they just weren't relevant. They're only coming back again now. I see as the world changes. And I noticed that one of your areas that you want to set aside is the Clipperton zone. And that is a high priority area for anyone who's interested in deep seabed mining. So you'll have a very hard time getting anyone to agree to exclude that zone. And the last one, at least the question that I wanted to ask a professor is who is going to, assuming you get a BBNJ, who is going to enforce the rules when by definition it's quote, beyond national jurisdiction? That's, thank you very much for the comments. That's very, very interesting. And it's hard to imagine, I'm constantly trying to communicate to my students what it was like to be thinking about these things back in the 1970s, when there were very different contexts, very different circumstances, driving the discussions. Although the common heritage discussion is, yeah, recalls some of that. Compliance is an issue, of course. It's as, so what we might refer to as a nice example is the whaling convention and the Australian case against Japan. So Japan, there's a whaling convention that was originally more about managing hunting whales, but eventually evolved into a moratorium on hunting the Great Whales. And Japan was using a special part of that to say it was doing scientific work and killing thousands of whales as part of that, or hundreds anyway. So Australia brought a case to the International Court of Justice. It's the same problem, right? The whale is in areas beyond national jurisdiction. It's swimming through the high seas. The whale doesn't belong to any country. No country can say, well, that's my whale you're herding. So what do you do? You can try to impose political pain, as the United States did when it said to Japan, oh, you're gonna hunt humpback whales, you can't fish in our waters, or you can go use the rule of law and say as a party to this treaty, I'm gonna bring a dispute against you. I'm gonna say that you're violating the treaty. And so that's what happened. So those are the tools that we have at the international level are limited. They're potentially various kinds of political pressure, diplomatic pressure, potentially trade sanctions. There's no intent to have trade sanctions authorized in this convention or countermeasures. But really the main thrust here is to think about compliance through a more modern lens of managerial, facilitative compliance. And that's based on the idea that most countries, that this was something that the Chase and Chase wrote about now quite a number of years ago, that most countries, if they're gonna go to the trouble of negotiating a treaty, are gonna support it. But there will be differences in understanding the treaty and an ability. So let's have countries report so we can see we're transparent and let's have them, if they're having trouble complying, let's try to help them to comply. So if you have willful non-compliance, there's limitations on what can be done. Thanks, Simmy. I see Edgar Gold has a question. Also, I wanna say hello to Edgar. He is actually also one of the founders of the environmental law program as close associate with Douglas. So Edgar, I assume you're probably in Australia yet and so glad to see you. And I hope you have a good question. One of the advantages of the pandemic is that we can do this now because I've never been able to attend a Johnson lecture before because the tyranny of distance, 15, 14, 15 hours, prevents it. But this time, it's nine o'clock in the morning or 10 o'clock now here in Brisbane on a beautiful summer day, 33 degrees today. And it's very, very nice to see a number of very familiar faces. As David already indicated, and hello to you, David. I'm of course, one of the old John Stonians. In fact, I was Douglas's research assistant when I was still a law student. And we took, we went on from there. He became of course, a colleague, a very close friends, co-conspirator and planner and plotter for many, many years. And I see now some of the people around the table here are of course, further down their line products. Dr. Payne, thank you very much for a very interesting lecture. Some of it was familiar, but at least for an old guy like me at the other end of the world, you also brought things a little bit up to date, which I really appreciate. The only thing I wanted to mention is, as many of you know, I've been involved in the shipping industry all my life. And even though long retired, I still keep a little bit up to date. Now on the environmental side, Siamese, I think it has to be noted that the industry is a hell of a lot cleaner than it ever has been. Not that they're necessarily very altruistic about the environment, but mainly because it's good for business. Cleaner fuels, better engine systems and so on have to a great extent prevented a lot of marine pollution these days, particularly on the major trade routes. It's a very big differences difference from the days when I sailed on the tanker, when we were trailing oil behind us as we were cleaning tanks. That doesn't happen anymore today because even today, sludge, which is pumped out in ports fetches a very good price. So the industry is really trying to clean up exact. There are of course still some fly-by-night ships which unfortunately are slipping through the cracks, particularly in developing areas of the world where the controls are not as strict. But even the controls are extended. The International Maritime Organization is now funding better port state control in some of the poorer parts of the world. So I think that part I think you can be assured is being taken much better care of, certainly a lot better than land-based pollution, particularly which is coming out of the big cities today. But it seems to be a lot easier to go after the ships which are belong to rich ship owners which are conveniently foreign, which are easier to assess than major cities. And that seems to be a problem we had at the Law of the Sea in 1973. And I think to some extent, it is something I think you alerted us to, you still have to struggle with. But thank you again for a very enlightened lecture. Well, thank you very much for coming and for sharing your comments too in that experience. Yeah, I think the International Maritime Organization in many ways is very professional and very effective. We have the opportunity to meet them and discuss with them at the UN during the negotiations. And I guess my view is it just their willingness to engage and now I'm talking about the truly excellent lawyers who work there to get them to engage and agree to work with the goals of the convention, I think would be very valuable. But thanks for those reflections. Thank you. I had a comment that please ask students more of the questions. So I wanna make sure I get them involved. So I have two questions on the chat box that I see also Rebecca. So let's go to the chat box. No asks this question, is the science behind conservation generally agreed upon amongst countries or is there still varying opinions between the different nations? Great question. I can't actually tell you that. I don't have experience in the negotiations of hearing debates over the conservation science. I think you see that, for instance, classically in some of the fishing disputes where the health of fishing populations, of fish populations might be debated between competing fishing nations. But I haven't heard that in this negotiation. That's not to say that those differences aren't there that I just am not aware of. I have a question from Fiona. And then we'll come back to Rebecca. Regarding the use of environmental impact assessments, how often do you actually stop in action as harmful to the environment? And she says, you know, there's a lot of examples at the domestic level, for example, where it seems to be like a rubber stamp. Do you see EIs becoming more impactful, you know, more enforceable maybe at the global level? Yeah, probably not is the short answer. In the United States also, EIA is a process. It's not a decision. So if you are doing a project and you do an environmental impact statement on the project and it turns out that an endangered species is gonna be affected, the Endangered Species Act becomes the law that controls the decision on the project. I think that's most likely what's gonna happen in this context just because I think that's what the major states do. I've looked a little bit comparatively and for instance, some of the Caribbean countries have very weak environmental, they have environmental impact assessment laws, but they tend to be quite weak and sort of minimal in terms of the depth of the analysis. So I think that what we'll get is something that will develop more information. It'll, to my mind, this is my own view. I think that having the information that the activity is gonna take place and about the scope of it and so on is can trigger other kinds of interventions that might control it. But no, I don't expect the EIA process to directly limit what states can do. Thank you. We started about three minutes late. So I hope we can go under a couple of minutes yet. And Rebecca, I see you have your hand up for a while. So thanks for your patience. Sure, thank you so much. That was amazing. So thank you so much. Thank you for the Neustin shout out too. That was like so exciting to see. You know I'm a fan. It's so cool. I loved it. I was texting Nicola Clark like, oh my God, this is amazing. So hello and thank you. I was taking like copious notes. And I was just wondering, you know, from the science perspective, maybe if you could shed some light on the issue of ocean plastics for me, especially things like ghost nets, how it might relate to the instance you mentioned with Fukushima and land-based origins, high seas impacts, ghost nets in particular, because these are things that are being disposed of on the high seas. Is there any room for, you know, even the tiny smidge of that to be in this or, you know, has this ship sailed? So to speak. My short answer is I don't know enough about the whole process of how ghost nets get there to be able to answer. I don't see an obvious route, but one of the things that the Oceanless Specialist Group is I planning to develop as a project on plastics. So please join us as our scientific advisor on that. Absolutely, I would love that so much. So yes, let's talk more. That would be amazing. Thank you. Any other final hands? And I can maybe go to one more chat box and they'll have to be up because of time. Basically, Ken Wong asked this kind of query, bottom fishing causes extensive damage to the seabed, in fact, clear-cutting in some cases and on the extended continental shells in particular, cold water corals, sponges, shelfless crustaceans and plants are all considered bycatch in the past, these areas were thought of as bare and lifeless areas, you know, better now. Do you see any movement correcting this situation? And I guess it may be raised that question. What is this new agreement? Will it somehow also affect the extended continental shelf jurisdiction conservation at all? Yeah, I think I'd have to refer back to my earlier comment to David Mosher about the extended continental shelf issue has not been developed here. And I think it's almost like a third rail, you know, and something that would be better developed in the context of facts. Sorry, I got distracted by that part of the question. David, what remind me what the first part was? Well, just the fact that there's a lot of potential damage done by fishing on extended continental shelves. The question comes back is, you know, will the new BB&J agreement come in to address that at all or is that simply left under the coastal state jurisdiction? So, well, this is the kind of problem. There's several of the issues that I raised that would come into play here. The first one is, yeah, are fisheries going to be included? They certainly should be to my mind. I don't see the point of doing the agreement if they're not, but that's a question. Assuming fisheries are included, if these are, if it's bottom trawling on the extended continental shelf, then in theory, the state has the right to do that, but it clearly has, especially since the distinction between sedentary species and non-sedentary species is a little, as far as I understand it, kind of shaky. This is sort of back to the scientists, but, you know, how you need that analysis to figure out the answer, you need the situation and then really pick apart what the intent of the convention was and whether the convention can be rationally interpreted. I don't see this convention as playing as important a role as the law of the sea convention itself. Sorry, this agreement, this protocol, whatever, implementing agreement. As the law of the sea convention itself on that question. If the person who asked it, though, wants to discuss it further, I think it's really interesting and important. So I'm happy to talk to you more about it. Well, thanks, Simi. So I think we're gonna have to cut off the presentation at this point and I just wanna again kind of apologize to a few question answers. Questioners that didn't get your questions put forward. Again, you can contact maybe Simi individually if you wanna follow up. And then thanks, Simi, for this cover this vast topic, very important topic. Surprise is not more in the news, actually, when you look at the vastness of our planet and then how much has been impacted with the governance regime that, you know, it's kind of a sessions like this where people get educated about it, but it's kind of disappointing the way we don't see more of a spotlight on it. But thanks for putting the spotlight on it and the need for the rule of law. And so maybe we all give a clap hands here thumbs up. And again, I just wanna thanks for all, everyone to stay here, 160 people or so late in the evening in Halifax. And also thanks again for College of Sustainability to Matt McCacken Institute, Marine Affairs Program for their sponsorship. And again, we hope that there'll be success in March. And if not, maybe we'll have you back again next year, Simi to do the next negotiation session, what's gonna happen there. So let's cross our fingers that there will be success and we do get an international global agreement. Thank you. The rule of law will prevail eventually. Thank you. Thank you. Bye bye. Good night, everyone. Thank you so much for coming.