International Marine Environmental Law and Policy

Daud Hassan, Saiful Karim, Daud Hassan, Saiful Karim

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317230465
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Several disturbing issues pose a threat to the marine environment and its wellbeing, among them marine environmental pollution and degradation of marine biodiversity. Most troubling is that these issues are overwhelmingly caused by human activities which are sometimes transboundary, and their consequences will become more severe and complicated if not properly curbed. Thus, these activities require comprehensive policies, laws, and principles to manage them effectively. Linked to these solutions is the need for responsibilities, cooperation and commitments at local, national, regional and international levels.

Contemporary Marine Environmental Law and Policy presents a thorough appraisal of the main issues, actors and institutions engaged in the legal aspects of marine environmental conservation. With contributions from an international range of authors, the book provides a concise account of the legal and policy framework underlying international marine environmental issues, and of the fundamental concepts and strategies that are important to the protection of the marine environment. Some of the topics explored include: the prevention of marine pollution caused by land based activities, ships, and offshore hydrocarbon and mineral resources exploration; the conservation and management of marine living resources; the marine environment in the polar regions; and the settlement of marine environmental disputes.

This book provides a solid foundation for anyone studying International Environmental Law and the Law of the Sea. It will also appeal to anyone seeking to gain a deeper understanding of this hugely important subject.

Part I

Introduction and general framework for the international marine environmental law

1
Contemporary issues in the protection and conservation of the marine environment

An overview

Sandya Nishanthi Gunasekara and Md Saiful Karim

Introduction

The protection and conservation of the ocean warrant increased attention from the global community. Several disturbing issues pose a threat to the marine environment and its well-being (Von Heland, Clifton & Olsson, 2014, pp. 4470–4496), among them are marine environmental pollution and the degradation of marine biodiversity – two well-known challenges that must be overcome. Combined, they are striking challenges to the marine environment. Moreover, most troubling is that they are caused by an overwhelming level of human activities (von Heland, Clifton & Olsson, 2014), which are sometimes transboundary, and whose consequences will become more severe and complicated if not properly curbed. Thus, it is common knowledge that these activities require comprehensive policies, laws and principles to manage them effectively. Linked to these solutions is the need for responsibilities, cooperation and commitments at local, national, regional and international levels. Altogether, the actions required for the protection of the ocean from human activities in responsible ways has become a necessity rather than an option. However, despite the challenges becoming more acute, and the use of the ocean less sustainable and more harmful, a durable solution to reverse these impacts is unlikely.

Considering these issues, this chapter lays the foundation for subsequent chapters by describing why and how ocean-related issues should be addressed responsibly, immediately and systematically, and how and why ocean pollution and threats to marine biodiversity are challenges to overcome. The exploration in this chapter guides the discussion in the subsequent chapters, which critically examine the current legal and institutional frameworks governing different issues of marine environmental protection and conservation.

Responsible ocean governance

Ocean governance is a complex and highly technical sub-discipline of international law (Kotze, 2008, pp. 11–30). The contemporary notion of ocean governance supports stronger initiatives towards the responsible use of the ocean (Pyć, 2016, pp. 159–162), and it has now been established as a collective process of decision-making, underpinned by the necessity to strengthen the ecosystem structure and sustain its functions (Rochette et al., 2015). Consequently, there has been a development of ocean policies (Bateman, 2000, pp. 5–11) through legal and institutional mechanisms and through local, national, regional and international levels of implementation (Bailet, 2002; Houghton & Rochette, 2014, pp. 81–84). As a result, the contemporary notion of ocean governance supports stronger initiatives towards the responsible use of the ocean.

According to the United Nations Convention on the Law of the Sea (UNCLOS), protection of the marine environment is an obligation of State parties. For example, such responsible efforts are highlighted in the 1992 Rio Declaration, Chapter 17 of Agenda 21, the 2002 Johannesburg Declaration, a number of International Maritime Organization (IMO) legal instruments, regional seas conventions and other marine environment–related international legal instruments.

The structure of the ocean governance framework is heavily influenced by the key objective of sustainable development (Cicin-Sain, 1993, pp. 11–43; Ittekkot, 2015, pp. 46–49; Mitchell & Hinds, 1999, pp. 235–244; Visbeck et al., 2013). The framework covers both maritime areas under the jurisdiction of the coastal States and in areas beyond national jurisdictions (ABNJ) (Bhatia et al., 2017). Similarly, collective engagement in ABNJ – high seawater columns and the deep seabed area, which cover almost 60% of the global ocean – should be designated a high level of importance in international marine conservation and environmental-based management (Drankier et al., 2012, pp. 375–433; Jørem & Tvedt, 2014, pp. 321–343; Narula, 2016, pp. 65–78).

Avoiding harm to the ocean through marine pollution and protecting marine biodiversity from a plethora of dangers calls for more attention and responsibilities. The following discussion attempts to reassess these impacts on the ocean.

Unsustainable use of marine living resources

Studies focusing on the sustainability of marine resources have made the illegal, unreported and unregulated (IUU) fishing (Agnew & Barnes, 2004, pp. 169–200; Baird, 2006; Karim, 2011, pp. 101–127; Miller, 2010, pp. 75–100; Schmidt, 2005, pp. 479–507), and overfishing or over-exploitation of fish (Perissi et al., 2017, pp. 285–292; Rosenberg, 2003, pp. 102–106), a constitutive part of their analyses. These activities are detrimental to marine biodiversity, which is a composition of ‘the living resources that compose it and the ecological processes that sustain it’ (Coll et al., 2008). Both IUU fishing and the over-exploitation of fish constitute ‘unsustainable fishing’, thus contradicting the spirit of UNLOCS, and can be treated as an unacceptable pattern of fishing (Food and Agriculture Organisation of the United Nations, 2009). These activities are also ‘leading to long-term losses in the biological and economic productivity, biological diversity, or impacting ecosystem structure in a way that impairs functioning of the exploited system across several generations’ (Food and Agriculture Organisation of the United Nations, 2009). Unsustainable fishing poses a severe threat to the world’s future food security, denies the use of sustainable fishing practices and undermines existing environmental regulations and national, regional and international agreements, resulting in significant losses for national economies (Agnew et al., 2009; Sodik, 2008, pp. 129–164).

IUU fishing may represent ‘26 million tonnes of fish a year, or more than 15 percent of the world’s total annual capture fisheries output’ (FAO, 2016). Illegal fishing¹ is carried out by national or foreign vessels violating national legal provisions, regional fisheries management measures or international obligations (Food and Agriculture Organization of the United Nations, 2001). It has been outlined that, each year, between USD11 and USD23.5 billion is lost to illegal fishing (de Coning & Witbooi, 2015, pp. 208–215). Unreported fishing has adverse effects on economies when fish harvests are not recorded systematically or are misreported. The damage inflicted by IUU fishing activities is of major concern because, apart from the economic damage, ‘such practices can threaten local biodiversity and food security in many countries’ (Food and Agriculture Organisation of the United Nations, 2016). Altogether, IUU fishing denotes unsustainable fisheries’ practices, endangering marine biodiversity in the ocean.

A consequence of unsustainable fishing practices is over-exploitation of fish, which directly affects the marine biodiversity, causing depletion and excessive mortalities of targeted fish populations as well as non-targeted fish populations (Coll et al., 2008), and which in practice remains a serious challenge to the conservation of marine living resources (Ahmad, 2011; Tanaka, 2011, pp. 291–330). According to the FAO Code of Conduct, overfishing of marine resources, resulting in habitat loss, is an irresponsible activity. Because of the unsustainable use of marine resources, more than 90% of global fish stocks have been exploited or overfished, either to the limits of sustainability (Federal Ministry for Economic Cooperation and Development, 2016) or to an extent that is higher than the carrying capacity of the marine system (Perissi et al., 2017, pp. 285–292). Another report indicated that almost a quarter of all the fish caught never reach the market and that 27 million tonnes of fish caught are thrown back dead into the ocean (Giuliani et al., 2004).

Such destructive fishing practices are harmful for marine biodiversity, especially when conducted using bottom trawling (Chuenpagdee et al., 2003, pp. 517–524), a method that inflicts damage to the seafloor (Giuliani et al., 2004). Watling and Norse (1998, pp. 1180–1197) revealed that bottom trawling gear scrapes approximately 14.8 million square kilometres of ocean bed annually. These unregulated practices lead to a significantly negative aftermath for marine biodiversity (Morgan & Chuenpagdee, 2003), including the capturing of non-targeted marine animals (Stiles et al., 2010), and eventually leading to habitat destruction. Non-targeted fish, or ‘by-catch’, which are caught and released later show a very low rate of survival (Morgan & Chuenpagdee, 2003); moreover, the majority of these unwanted fish are juvenile (Harrington, Myers & Rosenberg, 2005, pp. 350–361). Fish comprising by-catch are also vulnerable to damage caused by bottom trawlers (Morgan et al., 2005). The pressure exerted by fishing vessels on marine biodiversity in ABNJ is significant, and more profound given the slow reproductive rates and considerably low growth rates (Morgan et al., 2005).

Seabed habitat disturbances due to bottom trawling are well documented. Trawling endangers the lives of seabed habitats of coral reefs, rocks, seagrasses and seamounts, which protect fish and other species from predators, and provide them with food and refuge (Auster et al., 1996, pp. 185–202; Hourigan, 2009, pp. 333–340; Roberts et al., 2005). Thus, these seabed habitats are extremely vulnerable to destructive fishing activities (Fosså, Mortensen & Furevik, 2002, pp. 1–12; Hall et al., 2002, pp. 507–511).

The growing extent worldwide of unsustainable fishing exerts a considerable pressure for change in international legal and normative frameworks. Such international legal and normative initiatives for combatting unsustainable fishing activities in the aftermath of the UNCLOS have been epitomised in the introduction of a series of binding and non-binding global fisheries instruments. Simultaneously, there is a parallel development of regional and national scale actions and efforts to combat irresponsible fishing. Nevertheless, an examination of these frameworks is critical regarding the extent to which marine biodiversity is addressed as a challenge and counter measures provided.

Impacts of climate change

Climate change presents overwhelming challenges to the ocean ecosystems (Howden et al., 2003). There is strong evidence that climate change leads to unprecedented shifts in marine environment conditions. These shifts, which often result from human activities, contribute significantly to global warming, ocean acidification, coral bleaching, changes in species distribution and other biological changes to the sea (Bijma et al., 2013, pp. 495–505; Pörtner et al., 2014, pp. 411–484). Moreover, international legal and institutional frameworks implemented to overcome these challenges are inadequate (Galland, Harrould-Kolieb & Herr, 2012, pp. 764–771). Despite a reference to the ocean in the Paris Agreement, a significant gulf exists between scientific and government understanding (Gallo, Victor & Levin, 2017, pp. 833–838; Magnan et al., 2016, pp. 770–780), which will create bottlenecks in existing governance regimes (Brandt & Kronbak, 2010, pp. 11–19; Galaz et al., 2012, pp. 21–32).

Ocean acidification places the marine environment and its biodiversity in danger (Doney et al., 2009, pp. 169–192; Gattuso & Hansson, 2011). The ocean’s healthy absorption of carbon dioxide plays a key role in ensuring a fair chemical balance; however, this balance is vulnerable to change when the ocean is no longer able to fully absorb carbon dioxide (Harrould-Kolieb, Huelsenbeck & Selz, 2010). Thus, the changing acidity of the ocean instigates changes in the balance of ocean chemistry upon which marine living resources depend. Corals, shellfish and plants take the brunt of these chan...