UN Ocean Conference: can the law protect our ocean ecosystems?
by Elizabeth A Kirk*
There are lots of treaties in the world designed to moderate the impact of humans on the oceans. These treaties cover issues as diverse as the management fishing effort, the control of pollutants and the protection of biological diversity. Their geographical coverage ranges from the coastal waters of States to the high seas and the deep seabed. Despite this, marine ecosystem resilience is challenged by, for example, growing islands of plastics, coral bleaching and over fishing – all topics on the agenda at next week’s UN Ocean Conference in New York.
Awareness is growing of the problems our ocean ecosystems face. Images of plastic waste in the oceans, including the islands of plastics and other rubbish that grow in the Pacific and Atlantic Ocean gyres are now well known, so too is the phenomenon of coral bleaching. Less well known may be that “31.4 percent of fish stocks were estimated (in 2013) as fished at a biologically unsustainable level and therefore overfished.”
In part these problems are caused by a lack of understanding. We have only recently come to understand the way large marine mammals move through the oceans facilitates recycling of nutrients on which plankton feed. In part the problems our oceans face are linked to gaps in the law. These include significant gaps in relation to enforcement.
The key issue, however, is that some, if not all of these problems cause stress to ecosystems, weakening their resilience. For example, it was recently reported that 90% of the Great Barrier Reef has experienced coral bleaching this year. While the coral may be able to recover from this type of bleaching event if it rarely occurs, where such events are repeated it becomes harder for them to recover. If the coral dies then the ecosystem of which it is a key component will likely also die. With it the ecosystem services, such as providing a nursery for fish and coastal protection from storms, will be lost.
The Law – what does it do for ocean ecosystems?
So what does law do to promote the resilience of ecosystems? The answer is a bit mixed.
There are a myriad of laws in place to prevent, reduce and control pollution and to address issues such as sustainable fisheries and conservation of biodiversity.
The United Nations Convention on the Law of the Sea provides the overarching framework addressing a range of issues from fisheries, to the control of pollution, but its primary focus is the jurisdictional rights of States. That is, it addresses the powers that States have to make and enforce law in particular geographical locations.
Other treaties address single issues. The Convention on Biological Diversity addresses, as you might anticipate, the conservation and sustainable use of biodiversity. Regional fisheries regimes, including the North-East Atlantic Fisheries Convention, addresses management of fisheries in particular regions.
The management of certain tuna species is addressed by treaties such as the International Convention for the Conservation of Atlantic Tuna. The Minimata Convention addresses pollution from mercury and the Stockholm Convention addresses pollution from Persistent Organic Pollutants.
At the heart of these laws is that the rights and obligations to conserve and manage the marine environment rest on individual States.
Some notable successes, but failures too
Undoubtedly this approach has had some success. Coastal States are motivated to protect their fish stocks for future use and update their laws as understanding develops.
For example, the European Union relatively recently began requiring its member States to implement a ban on discards. That is, they were required to stop fishing vessels throwing away fish they had caught but did not want to land either because it was a) not covered by their fishing permit or b) not thought to be of high value.
Relying on States to act in their own self-interest as a means to protect the resilience of marine ecosystems is, however, flawed. The law is not focussed on ecosystem resilience. It is largely focussed on protecting State interests.
Where those align with the needs of ecosystems the ecosystem will be protected. Where the perceived State interests lies in, for example, extracting minerals or oil and gas, or in capture fisheries designed for global markets, the ecosystem is unlikely to receive the protection it requires.
In addition, the maritime boundaries between States do not match ecosystem boundaries. Nor, for that matter can the oceans be neatly divided into distinct ecosystems, separate from each other. Instead State maritime boundaries cut across ecosystems and problems such as coral bleaching and islands of plastic waste have diffuse sources.
Where next for law?
The story so far paints a fairly gloomy picture of law’s role in ecosystem resilience. We need laws, however, to help prevent behaviour that causes long term harm to the oceans. Without laws in place, the oceans would be like the wild west. The strongest would take all the resources, leaving nothing for others. For that reason, the picture so far painted also raises lots of questions:
- What is the fit between current international law and ecosystems?
- Are there any marine ecosystems protected by a comprehensive set of international laws?
- What does a comprehensive system of laws look like?
- How do we ensure that the governance systems managing the implementation of these laws interact in ways that promote ecological resilience?
Perhaps the biggest question of all is: can we devise a legal system that promotes ecological resilience given that doing so may require us to place the ecosystem at the heart of decision making? This may challenge our understandings of the concept of property. It may also require us to change the way we conduct business.
We also need to consider the extent to which our legal system is able to respond to new uses of the oceans. When proposals to fertilise the oceans to increase the ability of phytoplankton to lock carbon dioxide away were first floated, the international community did respond promptly with new regulations. We need to know to what extent this is, or can this be true of other activities.
It is also possible that laws will not work as anticipated – they may not be sufficient to protect a particular area, for example. Alternatively, protecting one area of the ocean may lead to overfishing elsewhere.
We need therefore to design a legal system able to monitor all the effects that laws have and to ensure adaptation where their implementation has a negative impact on the environment. Particularly where that impact is unintended. Until we understand these issues and others like them we are unlikely to resolve the problems seen in the world oceans.
Innovative approaches are desperately needed!
There are examples of innovative models of marine managements that can be drawn upon. The remits of some new organisations, including the Sargasso Sea Commission, are shaped by ecosystem requirements.
The Commission aims to ensure holistic approaches to regulation of the ecosystem by cooperation with inter-governmental organisations such as the International Maritime Organisation.
The work of the UN Development Programme and Global Environment Facility in supporting the assessment of large marine ecosystems and creation of management systems based on those assessments also provides a potential model for future development.
The Centre for Marine Ecological Resilience and Geological Resources (MERGeR) has been established to provide a forum in which the challenges of marine ecological resilience can be addressed. Headed by this author and David Ong, MERGeR investigates how the law promotes or hinders resilience in the face of threats and challenges.
MERGeR aims to lead the development of understanding in the role of law and lawyers in supporting marine ecological resilience and participate in debates on law reform and policy development on these vital issues.
We await with interest the outcomes of next week’s UN Ocean Conference. The international will is clearly there to tackle key problems from systematic over-fishing to uncontrolled ocean plastic pollution, which existing maritime law has been unable to tackle.
But to develop new legal instruments and practical initiatives that can fill the gaping holes in ocean governance, while winning the necessary concensus of support will present a formidable challenge.
*Elizabeth A Kirk is Professor of International Environmental Law at Nottingham Law School, Nottingham Trent University, Director of MERGeR, Deputy-Chair of the Board of the IUCN Academy of Environmental Law, a Member of the Board of the European Environmental Law Forum and a member of the editorial boards of a number of legal journals.