Kristina Gjerde: Making law on the high seas

About this talk

Kristina Gjerde studies the law of the high seas -- the 64 percent of our ocean that isn't protected by any national law at all. Gorgeous photos show the hidden worlds that Gjerde and other lawyers are working to protect from trawling and trash-dumping, through smart policymaking and a healthy dose of PR.







Today I'm going to take you on a voyage to some place so deep, so dark, so unexplored that we know less about it than we know about the dark side of the moon. It's a place of myth and legend. It's a place marked on ancient maps as "Here be monsters." It is a place where each new voyage of exploration brings back new discoveries of creatures so wondrous and strange that our forefathers would have considered them monstrous indeed. Instead, they just make me green with envy that my colleague from IUCN was able to go on this journey to the south of Madagascar seamounts to actually take photographs and to see these wondrous creatures of the deep.

We are talking about the high seas. The high seas is a legal term, but in fact, it covers 50 percent of the planet. With an average depth of the oceans of 4,000 meters, in fact, the high seas covers and provides nearly 90 percent of the habitat for life on this Earth. It is, in theory, the global commons, belonging to us all. But in reality, it is managed by and for those who have the resources to go out and exploit it. So today I'm going to take you on a voyage to cast light on some of the outdated myths and legends and assumptions that have kept us as the true stake holders in the high seas in the dark. We're going to voyage to some of these special places that we've been discovering in the past few years to show why we really need to care. And then finally we're going to try to develop and pioneer a new perspective on high seas governance that's rooted in ocean basin-wide conservation, but framed in an arena of global norms of precaution and respect.

So here is a picture of the high seas as seen from above -- that area in the darker blue. To me as an international lawyer, this scared me far more than any of the creatures or the monsters we may have seen, for it belies the notion that you can actually protect the ocean, the global ocean, that provides us all with carbon storage, with heat storage, with oxygen, if you can only protect 36 percent. This is indeed the true heart of the planet. Some of the problems we have to confront are that the current international laws -- for example, shipping -- provide more protection to the areas closest to shore. For example, garbage discharge, something you would think just simple goes away, but the laws regulating ship discharge of garbage actually get weaker the farther you are from shore. As a result, we have garbage patches twice the size of Texas. It's unbelievable. We used to think the solution to pollution was dilution, but that has proved to be no longer the case.

So what we have learned from social scientists and economists like Elinor Ostrom, who are studying the phenomenon of management of the commons on a local scale, is that there are certain prerequisites that you can put into place that enable you to manage and access open space for the good of one and all. And these include a sense of shared responsibility, common norms that bind people together as a community. Conditional access: you can invite people in, but they have to be able to play by the rules. And of course, if you want people to play by the rules, you still need an effective system of monitoring and enforcement, for as we've discovered, you can trust, but you also need to verify.

What I'd also like to convey is that it is not all doom and gloom that we are seeing on the high seas. For a group of very dedicated individuals -- scientists, conservationists, photographers and states -- were able to actually change a tragic trajectory that was destroying fragile seascapes such as this coral garden that you see in front of you. That is, we're able to save it from a fate of deep-sea bottom trawling. And how did we do that? Well as I said, we had a group of photographers that went out on board ships and actually photographed the activities in process. But we also spent many hours in the basements of the United Nations, trying to work with governments to make them understand what was going on so far away from land that few of us had ever even imagined that these creatures existed.

So within three years, from 2003 to 2006, we were able to get norm in place that actually changed the paradigm of how fishers went about deep-sea bottom trawling. Instead of go anywhere, do anything you want, we actually created a regime that required prior assessment of where you're going and a duty to prevent significant harm. In 20009 when the U.N. reviewed progress, they discovered that almost 100 million square kilometers of seabed had been protected. This does not mean that it's the final solution, or that this even provides permanent protection, but what it does mean is that a group of individuals can form a community to actually shape the way high seas age governed, to create a new regime. So I'm looking optimistically at our opportunities for creating a true blue perspective for this beautiful planet. Sylvia's wish provides us with that leverage, that access, to the heart of human beings, you might say, who have rarely seen places beyond their own toes, but are now hopefully going to become interested in the full life-cycle of creatures like these sea turtles, who indeed spend most of their time in the high seas.

Today we're just going to voyage to a small sampling of some of these special areas, just to give you an idea of the flavor of the riches and wonders they do contain. The Sargasso Sea, for example, is not a sea bounded by coastlines, but it is bounded by oceanic currents that contain and envelope this wealth of sargassum that grows and aggregates there. It's also known as the spawning ground for eels from Northern European and Northern American rivers that are now so dwindling in numbers that they've actually stopped showing up in Stockholm. And five showed up in the U.K. just recently.

But the Sargasso Sea, the same way it aggregates sargassum weed, actually is pulling in the plastic from throughout the region. This picture doesn't exactly show the plastics that I would like it to show, because I haven't been out there myself. But there has just been a study that was released in February that showed there are 200,000 pieces of plastic per square kilometer now floating on the surface of the Sargasso Sea, and that is affecting the habitat for the many species in their juvenile stages who come to the Sargasso Sea for its protection and its food. The Sargasso Sea is also a wondrous place for the aggregation of these unique species that have developed to mimic the sargassum habitat. It also provides a special habitat for these flying fish to lay their eggs. But what I'd like to get from this picture is that we truly do have an opportunity to launch a global initiative for protection. Thus the government of Bermuda has recognized the need and its responsibility as having some of the Sargasso Sea within its national jurisdiction -- but the vast majority is beyond -- to help spearhead a movement to achieve protection for this vital area.

Spinning down to someplace a little bit cooler than here right now, the Ross Sea in the Southern Ocean. It's actually a bay. It's considered high seas, because the continent has been put off limits to territorial claims, so anything in the water is treated as if it's the high seas. But what makes the Ross Sea important is the vast sea of pack ice that in the spring and summer provides a wealth of phytoplankton and krill that supports what, til recently, has been a virtually intact near-shore ecosystem. But unfortunately CAMLAR, the regional commission in charge of conserving and managing fish stocks and other living marine resources, is unfortunately starting to give in to fishing interests and has authorized the expansion of toothfish fisheries in the region. The captain of a New Zealand vessel who was just down there is reporting a significant decline in the number of the Ross Sea killer whales, who are directly dependent on the Antarctic toothfish as their main source of food. So what we need to do is to stand up boldly, singly and together, to push governments, to push regional fisheries management organizations, to declare our right to declare certain areas off limits to high seas fishing, so that the freedom to fish no longer means the freedom to fish anywhere and anytime.

Coming closer to here, the Costa Rica Dome is a recently discovered area -- potentially year-round habitat for blue whales. There's enough food there to last them the summer and the winter long. But what's unusual about the Costa Rica Dome is, in fact, it's not a permanent place. It's an oceanographic phenomenon that shifts in time and space on a seasonal basis. So in fact, it's not permanently in the high seas. It's not permanently in the exclusive economic zones of these five Central American countries, but it moves with the season. As such, it does create a challenge to protect, but we also have a challenge protecting the species that move along with it. We can use the same technologies that fishers use to identify where the species are, in order to close the area when it's most vulnerable, which may, in some cases, be year-round.

Getting closer to shore, where we are, this was in fact taken in the Galapagos. many species are headed through this region, which is why there's been so much attention put into conservation of the Eastern Tropical Pacific Seascape. This is the initiative that's been coordinated by Conservation International with a variety of partners and governments to actually try to bring integrated management regime throughout the area. That's, it provides a wonderful example of where you can go with a real regional initiative. It's protecting five World Heritage sites. Unfortunately, the World Heritage Convention does not recognize the need to protect areas beyond national jurisdiction, at present. So a place like the Costa Rica Dome could not technically qualify the time it's in the high seas. So what we've been suggesting is that we either need to amend the World Heritage Convention, so that it can adopt and urge universal protection of these world heritage sites, or we need to change the name and call it Half the World Heritage Convention. But we also know is that species like these sea turtles do not stay put in the Eastern Tropical Pacific Seascape. These happen to go down to a vast South Pacific gyre, where they spend most of their time and often end up getting hooked like this, or as bycatch.

So what I'd really like to suggest is that we need to scale-up. We need to work locally, but we also need to work ocean basin-wide. We have the tools and technologies now to enable us to take a broader ocean basin-wide initiative. We've heard about the Tagging of Pacific Predators project, one of the 17 Census of Marine Life projects. It's provided us data like this, of tiny, little sooty shearwaters that make the entire ocean basin their home. They fly 65,000 km in less than a year. So we have the tools and treasures coming from the Census of Marine Life. And its culminating year that's going to be launched in October. So stay tuned for further information. What I find so exciting is that the Census of Marine Life has looked at more than the tagging of pacific predators, it's also looked in the really unexplored mid-water column, where creatures like this this flying sea cucumber have been found. And fortunately, we've been able, as IUCN, to team up with the Census of Marine Life and many of the scientists working there to actually try to translate much of this information to policymakers. We have the support of governments now behind us. We've been revealing this information through technical workshops. And the exciting thing is that we do have sufficient information to move ahead to protect some of these significant hope spots, hot spots. At the same time we're saying, "Yes, we need more. We need to move forward."

But many of you have said, if you get these marine protected areas, or a reasonable regime for high seas fisheries management in place, how are you going to enforce it? Which leads me to my second passion besides ocean science, which is outer space technology. I wanted to be an astronaut, so I've constantly followed what are the tools available to monitor Earth from outer space -- and that we have incredible tools like we've been learning about, in terms of being able to follow tagged species throughout their life-cycles in the open ocean. We can also tag and track fishing vessels. Many already have transponders on board that allow us to find out where they are and even what they're doing. But not all the vessels have those to date. It does not take too much rocket science to actually try to create new laws to mandate, if you're going to have the privilege of accessing our high seas resources, we need to know -- someone needs to know -- where you are and what you're doing.

So it brings me to my main take-home message, which is we can avert a tragedy of the commons. We can stop the collision course of 50 percent of the planet with the high seas. But we need to think broad scale. We need to think globally. We need to change how we actually go about managing these resources. We need to get the new paradigm of caution and respect. At the same time, we need to think locally, which is the joy and marvel of Sylvia's hope spot wish, is we can shine a spotlight on many of these previously unknown areas, and to bring people to the table -- if you will -- to actually make them feel part of this community that truly has a stake in their future management. And third is that we need to look at ocean basin-wide management. Out species are ocean basin-wide. Many of the deep sea communities have genetic distribution that goes ocean basin-wide. We need to understand, but we also need to start to manage and protect. And in order to do that, you also need ocean basin management regimes. That's, we have regional management regimes within the exclusive economic zone, but we need to scale these up, we need to build their capacity, so their like the Southern Ocean, where they do have the two-pronged fisheries and conservation organization.

So with that, I would just like to sincerely thank and honor Sylvia Earle for her wish, for it is helping us to put a face on the high seas and the deep seas beyond national jurisdiction. It's helping to bring an incredible group of talented people together to really try to solve and penetrate these problems that have created our obstacles to management and rational use of this area that was once so far away and remote.

So on this tour, I hope I provided you with a new perspective of the high seas, one, that it is our home too, and that we need to work together if we are to make this a sustainable ocean future for us all.

Thank you.

(Applause)