Innovating Trade | Harvard International Law Journal

AI-Powered Ocean Protection and Sustainable Trade: The Galapagos Islands as a Case Study

May 5, 2024 | Innovating Trade, Online Scholarship

*Editor’s Note: This article is part of HILJ’s collaboration with the Georgetown Journal of International Law (“GJIL”) and the Georgetown Center on Inclusive Trade and Development on Innovating Trade: The Intersection of Emerging Technologies, Climate Initiatives, and International Law. HILJ and GJIL each edited and published different articles in the collaboration. Articles published by GJIL are available on the GJIL website.

*María Isabel Ortiz Nuques

I. Introduction

The sea and nearby areas have served as a vital supply of resources and a trading hub for hundreds of years. Food security and the impact of ocean activities on the right to a clean, healthy, and sustainable environment are complex issues that interact with trade. In times where change is urgently needed, trade must adapt to environmental protection in a world shaken by the climate crisis. In this context, fishing activities would benefit from artificial intelligence (“AI”)-powered tools to manage resources and understand fish populations amidst the transformations expected due to climate change.

This piece will focus on the Galapagos Islands as a case study. First, it will briefly illustrate how protecting marine environments has implications for human right protections. Second, it will provide an overview of the challenges the Galapagos Islands’ marine ecosystem faces regarding overfishing and unsustainable fishing practices. Third, this piece will exemplify how AI can create complex models that better reflect the state of fisheries under the pressures of climate change, which can be a helpful tool to prevent overfishing and protect fish stocks. Fourth, it will explore how AI-powered models may become a key tool for the application of international trade instruments in the future.

II. Climate change, the right to a clean, healthy, and sustainable environment and the Galápagos Fisheries

The rapid deterioration of ecosystems due to climate change and biodiversity loss creates serious consequences for areas such as human rights and trade. These crises affect the rights to life, health, food, water, and adequate standard of living of human beings around the world, including those belonging to vulnerable groups, which may be disproportionally affected. The consequences of environmental degradation are alarming and deeply connected to the universal need for a clean, healthy, and sustainable environment, which has been recognized as a human right by the United Nations Human Rights Council.

One of the world’s most sensitive ecosystems is the Galapagos Islands, around 900 kilometers (560 miles) west of the Ecuadorian coast. Its population mainly relies on tourism, fishing, and agriculture as economic activities, all of which would be deeply affected by the climate emergency. Climate change thus directly threatens Galapagos Islanders’ livelihoods. The waters surrounding the Galapagos Islands are rich and ecologically diverse. This diversity made them a target for illegal, unreported, and unregulated (IUU) fishing, which has put iconic species such as the scalloped hammerhead shark at great risk.

The Galapagos area’s biological richness has also been affected by overfishing, as exemplified by the brown sea cucumber populations in the area. The sea cucumber serve an important ecological function by consuming debris and sediment. However, sea cucumber have been intensely fished for consumption to the point where fishing bans have had to be implemented for several years in the islands. In 2021, the sea cucumber fishery in the Galapagos Islands was reopened, only for it to be closed again two weeks later. While sea cucumber, by law, can only be fished inside the Galapagos exclusive economic zone (“EEZ”) using artisanal methods, the fact that 90 percent of the total catch goes to Asian countries shows how important trade is to sea cucumber preservation.

At the same time, marine resources outside of EEZs are available for fishing by international ships under the United Nations Convention on the Law of the Sea. This has resulted in several instances where fishing fleets – mostly comprised of Chinese vessels – line up just outside the Ecuadorian EEZ around the Galapagos Islands. Some of these ships have resorted to turning off tracking devices to avoid recognition. In FAO Fishing Area 87, where the Galapagos Islands are located, Chinese distant water fleet (“DWF”) vessels reported losses even after ample subsidies from the Chinese government. These losses suggest that some vessels could be participating in IUU fishing to remain profitable. Fisheries’ subsidies allow unprecedented and usually unsustainable fishing operations and remain one of the main causes of overfishing. Specifically, around the Galapagos Islands, fishing for large-scale Chinese DWF fleets is unprofitable without such aid.

III. Climate change and AI as a tool to anticipate the unknown

The practices conducted by fishing fleets around the Galapagos Islands are not an isolated phenomenon. Around the world, similar dynamics arise between countries with rich fish stocks and countries with ample fishing demand and considerable subsidies to the fishing industry. The rapid pace at which fish stocks are depleting globally is concerning. These pressures are only worsened by climate change, which is expected to shift the dynamics of marine ecosystems and affect the abundance, migratory patterns, and locations of fish stocks. Plenty of uncertainty remains about the impact of climate change on fisheries. However, AI can be a helpful tool in reducing this uncertainty, as powerful models of physical processes can be created to reflect the complex dynamics related to climate change.

AI can process enormous volumes of data. This allows humanity to better understand what the future behavior of fisheries may look like, and provides forecasts of fish stock abundance and distribution that can change and improve in accuracy as more data is introduced. Moreover, AI models can identify patterns and relationships that may be missed by human analysts. This competence is useful because some processes related to climate change are not yet completely understood. More accurate projections of fish stocks could be attained despite changing circumstances. If the results obtained from these AI models were to be taken into consideration for marine resource governance, they could contribute to the preservation of a clean, healthy, and sustainable environment, and the protection of food security for future generations.

IV. An environmental shift for international trade law and its impact on human rights

Placing an emphasis on what the future may look like for fish populations in the context of climate change is an important tool to create policy that prioritizes responsible fishing and the sustainable trade of existing fish stocks. AI-generated models can comply with international law as it shifts towards environmental considerations. In 2022, the World Trade Organization (“WTO”) members adopted the Agreement on Fisheries Subsidies to end certain fisheries subsidies. The deal is the first WTO agreement to focus on the environment. Its provisions prohibit subsidies to fishing on overfished stocks like the brown sea cucumber population around the Galapagos Islands.

The Agreement on Fisheries Subsidies considers a stock to be overfished if it is recognized as such by the coastal member under whose jurisdiction the fishing is taking place or by a relevant regional fishery management organization or arrangement in areas and species under its competence. These entities must base their decisions on the best scientific evidence available according to Article 4 of the Agreement. As AI models become increasingly sophisticated and accurate, their forecasts and calculations may become some of the best scientific evidence available to detect and predict overfishing in light of climate change conditions, to the point where they could become necessary for making overfishing designations under the Agreement.

Taking emerging technologies into consideration when developing international policy is necessary to secure the human right to a clean, healthy and sustainable environment, which is intertwined with many other rights. The right to a clean, healthy, and sustainable environment holds a profound connection with food security, for example, which is increasingly threatened because of climate change. These interconnections mean that protecting our seas using the best scientific methods available is a key commitment to be adopted by states around the world. Since marine resource governance is inextricably linked with trade, international trade law must adapt to further advance environmental and sustainability goals for the future of humanity. It can do so with the help of rapidly advancing technologies.

IV. Conclusions

The links that connect humans, the sea, and trade have existed for hundreds of years. Recently, marine resource governance has become more complex as the world population grows and develops more powerful fishing systems to satisfy global needs for food. An important challenge marine ecosystems face alongside the pressures of unsustainable fishing are the transformations expected to take place because of climate change, which puts the environment and global food security at risk.

The impact of fishing activities is deeply intertwined with international trade and decisions that make fishing profitable, such as subsidies for DWF vessels. Fishing activities inside the Galapagos EEZ and around it show how some fish populations that serve an important ecological function but are highly regarded as commodities in international trade, such as the brown sea cucumber, can struggle with current fishing demands and policies.

While climate change is imminent, uncertainty remains regarding marine ecosystems. This uncertainty continues to be a major obstacle for decision-making towards better fisheries management worldwide. In this sense, AI can help better predict fish stock abundance, behavior, and location as the effects of climate change regrettably continue. AI continues to play a central role in technological developments regarding marine ecosystem management. At the same time, international trade law is moving toward an increasingly environmental approach, as shown by the WTO Agreement on Fisheries Subsidies, which in part seeks to control subsidies for overfished stocks. Determinations of overfished stocks must rely on the best scientific evidence available. Soon, ever-progressing AI models may play a crucial part in trade and environment negotiations.

*María Isabel Ortiz Nuques received her law degree with honors from the Catholic University of Santiago de Guayaquil, has a special interest in arbitration and international law, and currently works as a tribunal secretary in arbitration cases. She would like to thank the HILJ editorial team for their comments and feedback.

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Transportation Tech & Trade: Using Trade and Policy Tools to Encourage Clean Transportation Technology

May 4, 2024 | Innovating Trade

Samantha Cristol*

Whether trade is occurring across oceans or continents, the climate costs of transportation are high. In 2019, transport accounted for roughly 15% of global greenhouse gas (“GHG”) emissions. As of 2023, that number was closer to 20%. Of that 20%, around 60% came from vehicles, and 11% from shipping. Reducing the climate footprint of transportation will help to support and sustain international trade. Not only will mitigating climate change decrease the probability of severe adverse climate change impacts, but the implementation of new, sustainable technologies can both benefit trade itself and increase the resiliency of trading communities in the face of climate disasters.

The current state of climate change suggests that there is a dire need to develop and implement technology that will reduce the climate impacts of transportation. This paper will briefly review the challenges transportation sub-sectors are facing and suggest climate technology, and climate technology adjacent, solutions. Then, it will examine how countries can use a combination of policy and trade tools to implement and encourage the proposed solutions.

I. Air Transportation

Air transit is the most carbon-intensive form of transportation: in 2017, it accounted for about 1% of carbon emissions globally. Aviation also poses climate concerns beyond carbon, as the condensation trails left behind airplanes also worsen climate change.

In terms of technology to reduce aviation emissions, a 2022 World Trade Organization (“WTO”) Report recommends lowering trade barriers for electric and hybrid airline engines, and the European Union has adopted a deal that includes an estimated €1.6 billion plan to support the use of sustainable aviation fuels. Although electrification of aircraft is progressing, most electrification initiatives are still confined to the realm of small, short-haul planes. Similarly, while Sustainable Aircraft Fuel (“SAF”) is in production, it is costly and currently not approved for use on it its own without being blended with traditional jet fuel.

While enforcing limits on international air transit that does not meet electrification or renewable fuel guidelines sounds like a simple solution to enforce cleaner transit, both technological and economic factors are holding the industry back. Continued funding for research, combined with subsidies to cheapen the cost of SAF, may help to quicken the transition.

II. Land Transportation

Land transportation is primarily composed of passenger vehicles like cars and buses, trucks, and rail transport. It is, across the world, the most substantial contributor to transportation climate emissions. While the popularity of electric vehicles has increased significantly, electric truck technology is still lagging. Moreover, although short-haul electric trucks are starting to arrive in the United States, battery capacity is a major barrier for longer-haul routes.

While rail transit offers significant advantages in regard to per-passenger-per-kilometer emissions, the “last mile” involved in the delivery of goods is often reliant on vehicle transport. In the United States, “last mile” transportation is described as the final journey from warehouse to doorstep, which is often made by mail Mail delivery trucks are carbon-intensive, adding an additional layer to the challenge of decreasing transportation-related emissions.

Subsidization of electric vehicles, alongside the installation of charging stations and related infrastructure, can continue to encourage consumers to switch away from traditional vehicles. In the case of trucks, however, more research is needed. Publicly funded research and development programs, combined with progressive vehicle requirements and standards imposed on sellers, may help to drive the research needed to reduce emissions. Initiatives aimed at eliminating “last mile” transportation emissions may help as well. Consumer behavior changes may be possible, by providing incentives to consumers that opt to pick-up from a central location, or choose to wait longer for transportation, allowing for a computer program to better optimize a driver route for drop-off. Electrification of last-mile truck fleets may also be a big help in decreasing delivery-related emissions.

III. Maritime Transportation

Sea transportation makes up roughly 3 % of global GHG emissions, and 11% of transportation GHG emissions. Ninety percent of all traded goods are involved in ocean shipping. The shipping industry has already seen changes from climate change, like the opening of new year-round shipping routes through the Arctic due to reduced severity of winter weather. While these shorter routes could reduce the emissions per trip, the environmental degradation that could result from the increased use of these new passages is also worrisome. Oil or toxic substance spills could threaten the lives and sustenance of Arctic coastline communities.

While electrification of ferries has been successful, the transition for large ships faces the same problem discussed in both sections above: battery power. Battery power is not the only issue, however. To operate, batteries would need access to power infrastructure at ports. While upgrades are being made at many U.S. ports to electrify loading, docking, and tugging operations, these efforts have not yet expanded to electrification of long-haul ships themselves.

Transitioning shipping off of oil, or at least making shipping more energy efficient in its use of oil and gas, could make a significant dent in sea transportation emissions. To drive needed research and development, a model that combines public research funding with policy-based pressure may be effective. A policy that might effectively drive research and development could look like imposing fees on ships entering or exiting port. Fees could be based on factors like travel distance since last port of call or to the next port of call, engine efficiency, fuel mix being used onboard, or others. As distance between ports of call can be hard to calculate or predict, it may make more sense to instead base fees on the energy efficiency of the engine or use an equation that equalizes engine metrics with weight or amount of cargo on board.

IV. The Role of Trade

Public policy will be a large driver in implementing many of the above solutions, especially in terms of funding research and development and offering subsidy programs to incentivize the technology discussed above. These solutions, and others, like requiring carbon labels or introducing bans on products to reduce shipping amounts, become complicated when they interact with international trade law. Beyond the logistics questions, like how to calculate carbon footprints of a product prior to shipping (given reroutes, ships that stop at multiple ports, the transport that goes into component of the manufacturing process, differing last miles, etc.), and how to determine which products to ban (who makes the call on what products to ban), there is a question as to whether these actions are allowable under international trade agreements. Import bans may violate the General Agreement on Tariffs and Trade, subsidies may contravene the Agreement on Subsidies and Countervailing Measures, limiting air travel may violate the Open Skies Agreements, and parties may have a case regarding national treatment or the Technical Barriers to Trade Agreement when it comes to carbon labels.

Beyond legality, many of the current proposed solutions focus on changing consumer attitudes to try and drive corporate innovation. This is certainly helpful—especially in the case of electric vehicles. However, the major problem that arises in every sector is a lack of battery power for the big-ticket carriers like jets, trucks, and long-haul ships, which is a huge obstacle to electrification. If total electrification is out of the question for the near future, then a multi-faceted approach that drives research and development while also pushing partial electrification and low-carbon transit options is the best bet.

That is where trade tools come in. While the WTO may not be at its most effective right now, nations can take action into their own hands when negotiating regional trade agreements (RTAs). Specifically, nations should be looking to technology transfer and capacity building provisions to promote cooperative programs that drive transportation efficiency across borders. RTAs are extremely flexible, and nations can include funding mechanisms to promote joint research, development, and deployment projects in the transportation space. Technology transfer provisions may also help to encourage the faster spread of energy efficient technology.

International cooperation will also be critical in the next few years as the world grapples with energy transitions and greenhouse gas emissions. Even though the Paris Agreement does not directly mention cars or trucks, reducing transportation emissions will be key to meeting, or at least trying to meet, its goals. Similarly, the International Civil Aviation Organization’s Carbon Offsetting and Reduction Scheme for International Aviation provides a framework for participants to move toward lowering aviation emissions, as do the U.N.’s Sustainable Development Goals.

By participating in international climate and sustainable development agreements, using RTAs to their advantage, and thoughtfully implementing local policies, nations can encourage the invention and adoption of clean transportation technology.

*Samantha Leah Cristol is a third-year J.D. student at the Georgetown University Law Center, expected graduation Spring 2024. She holds a Bachelor of Science in civil engineering from the University of California, Berkeley, and is a LEED Green Associate.

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