Oceans cover approximately 71 % of Earth’s surface and comprise the greatest preponderance of its hydrosphere. While all the seas of the world share certain obvious characteristics, many have unique attributes. For example, shipping lanes and straits are used more intensively than other parts of the ocean for navigation, making accidents and spills there more likely; some areas of the sea are more ecologically fragile than others; some seas such as the Mediterranean and the Baltic, are semi-closed, inhibiting the exchange of their waters with those of the rest of the ocean and thus slowing the process of self-purification; and some parts of the ocean are utilized more intensively by humans than others, resulting in more pollution, both chronic and accidental.
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The world’s oceans are under stress from over-fishing, climate change, invasive species and marine pollution. United Nations Environmental Programme Ocean Atlas define pollution sources that exist through the world as leading to a state of “silent collapse”. The stresses are particularly acute in coastal areas. In addition to ocean dumping and spills, intensive shore development funnels oil and toxic pollutants into coastal waters. Nutrient run – off from farm and yard fertilizers cause algae blooms which threaten coral reefs and sea grass beds.
In this project, the various aspects related to the protection of marine ecosystems have been analyzed in detail. Also, the particular problems of the conservation of marine ecosystemand marine biodiversity and the threats with which they are confronted have been examined. Finally, the international regime for the protection of marine ecosystem has been discussed in detail with special reference to UNCLOS. Also, the international regime for the protection of marine ecosystem components has been discussed in brief.
WHAT IS MARINE ECOSYSTEM?
The problems of addressing the conservation of marine ecosystems and the maintenance of biodiversity in the oceans are qualitatively different from those of terrestrial systems. Because mankind is a terrestrial creature, there is, perhaps, inevitably a terrestrial bias in understanding of species and of ecosystem as well as the means which have been developed for their protection. This bias is reflected in the Convention on Biological Diversity itself.Article 2 of the Convention defines “biological diversity” to include “variability amongst living organisms from all sources including…marine and other aquatic ecosystems and the ecological complexes of which they are a part”, however it goes on to specify that “this includes diversity within the species, between species and of ecosystems.” Nowhere else in the Convention is specific reference made to the protection of marine biodiversity although Article 22(2) does specifically provide that contracting States “shall implement the Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea”. In fact the whole approach of the Convention – directed as it is to the biotechnology issues and, arguably a concept of national ownership of resources based on assumptions about endemic species – bypasses some of the key issues of marine biodiversity conservation.
Awareness of the importance of ecosystems or of ecosystem conservation and management is relatively new in international arena. Few international instruments rarely use this precise terminology.
MARINE BIODIVERSITY: WHY IS IT IMPORTANT AND HOW IS IT THREATENED?
The oceans cover 70% of the planet yet far less is known about the marine environment than the terrestrial; 80% of all the known species are terrestrial; only sixteen of the 6,691 species officially classified as endangered are marine and fourteen of these are mammals and turtles – creatures which have some affinity with the terrestrial creatures. Because of the fluid nature of the marine environment scientists suggest that there has been less opportunity or need for speciation in marine organisms, as there has been in land organisms in which species and subspecies have developed as they have become separated from each other by physical forces. This does not mean however that, oceans are single amorphous system. Apart from the obvious variations in the oceans at different latitudes or depths, the existence of closed or semi-closed seas and of major currents, confluences and gyres in the open system means that there is a wide variety of different ecosystems in the marine environment. However, these bear little relation to the various legal jurisdictional zones established by customary international law and now to be found codified in the 1982 Law of the Sea Convention.
As seen from the definition of biodiversity given in CBD, the common practice of terrestrial biologists of assessing biological diversity or richness in terms of number of species and subspecies in a particular ecosystem, especially number of those who are unique or endemic. However, as far as marine biodiversity is concerned speciation is low and endemism uncommon. In oceans there is far greater variety of organisms amongst the higher taxonomic orders than species or subspecies. In the last few years entirely new life-forms which thrive in the boiling waters around deep ocean thermal vents have been discovered which offer exciting opportunities for development of medical and industrial processes.
Marine and coastal systems provide important food sources, and marine creatures offer a multitude of different substances which may be of significance to the medical and chemical industry. It is well established that oceans play a key role as sinks for greenhouse gases, but also, and perhaps more significantly, there is increasing evidence that marine biota play an important role in global chemical processes which may affect the climate change. Thorne Miller and Catena suggest that the concentration on genetic, species and ecological diversity reflected in the work of terrestrial biologists (and strongly represented in the 1992 Convention) overshadows what has been termed functional diversity – which reflect biological complexity of an ecosystem. In their words:
“In the face of environmental change, the loss of genetic diversity weakens a population’s ability to adapt; the loss of species diversity weakens a community’s ability to adapt; the loss of functional diversity weakens an ecosystem’s ability to adapt; and the loss of ecological diversity weakens the whole biosphere’s ability to adapt.”
The evidence suggest that marine ecosystems are rich in functional diversity, and that there are therefore dangers in transferring to the marine environment concerns about lower order diversity and about protection of rarity which have been developed in a terrestrial context.
There are threats to the very maintenance of ecosystems. The most significant threats are posed by marine pollution from a variety of sources and activities, from over-exploitation or indiscriminate exploitation of marine species, as well as the destruction of the coastal habitats. A large proportion of sea creatures depend on the inshore or coastal areas for an important part of their breeding or life-cycles. The destruction or degradation of coastal habitats or the degradation of coastal water quality therefore has a major impact on a widespread of marine `life. This does suggest that protection of rare and endangered species and of key and representative ecosystems may also be appropriate to certain aspects of marine biodiversity conservation. These protected areas cannot in themselves provide protection from marine pollution. It must also be said that despite the fact that 1982 UNCLOS specifically recognizes that “the problems of ocean space are closely inter-related and need to be considered as a whole.” Also, the maritime jurisdictional zones recognized by UNCLOS, inevitably make arbitrary decisions in ocean ecosystems, do not assist a holistic approach to management of these issues.
The recognition by international environmental law of the importance of ecosystem management is relatively of recent origin. The earlier environmental treaties related simply to species protection. It is possible to group the general classes of relevant international obligations. Firstly, those that address specific threats to marine environment and therefore to marine ecosystem.Secondly, those obligations that address the conservation what might be called ecosystems components and finally those obligations that require conservation of marine ecosystems per se. Such a classification may serve to identify the strengths as well as defects and lacunae in the current legal regimes.
CONSERVATION OF MARINE ECOSYSTEMS
The recognition of importance of management of ecosystems, rather than simply those of their components which maybe of immediate significance to mankind, is a relatively recent phenomenon. Crucial steps in development were the 1972 Stockholm Declaration and the 1980 IUCN World Conservation Strategy which formed the basis of the 1982 UN General Assembly World Charter for Nature, and which popularized the concept of, as well as the term, “life support systems” and which stressed the interrelationship of these with other ecological processes and genetic diversity.
INTERNATIONAL REGIME FOR THE PROTECTION OF MARINE ECOSYSTEM
UNITED NATIONS CONVENTION ON THE LAW OF SEA, 1982 (UNCLOS)
In order to seek an answer to a wider question of whether there is a general obligation on all States to conserve marine ecosystem, it is necessary to look beyond the specific treaty obligations at customary international law. The starting point of this assessment is UNCLOS which came into force only in November, 1994 but which is widely recognized as reflective of customary law. Customary law recognizes the division of ocean into a series of juridical regimes which reflect criteria related to Coastal States’ sovereignty and resource exploitation rather than considerations of ecosystem integrity. The nature of the obligations which the customary international law, and now the 1982 UNCLOS, imposes on the States in relation to the marine environment does to a large extent depend upon the juridical nature of the particular waters under consideration, consequently these jurisdictional divisions can create a major obstacle to the rational management of ecosystems or species which cross or straddle more than one zone. Broadly, the oceans are divided into the following maritime zones: internal waters – behind the coastal state baseline; a belt of territorial waters up to 12 nautical miles in breadth, a 24 nm contiguous zone with restricted enforcement jurisdiction, a 200 nm exclusive economic zone or fishing zone, and the high seas beyond these limits. Within each of these zones, the Convention envisages a different balance of rights and duties between the coastal states and other states.
UNCLOS contains a number of provisions of general significance for the protection of marine ecosystems. Nevertheless, it would probably be a mistake to think this was a conscious drafting objective per se. It is certainly possible to read into the provisions of Part XII of the Convention endorsement for a marine ecosystem approach to marine conservation, although these obligations are even less precise than those relating to pollution control. Article 192 of UNCLOS recognizes a general obligation to “protect and preserve marine environment”. In so far as this goes beyond simple protection, it can be interpreted as being an obligation to behave in a precautionary way.
Article 194(5) specifically requires that “measures taken in accordance with this Part shall include those necessary to protect and preserve rare and fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” As this provision is located within general provisions of Part XII this requires all States to protect these special ecosystems and habitats form the effects of pollution originating from all sources in addition to other general conservation measures.
Article 196 requires the States to take all measures to prevent, reduce and control pollution from “the use of technologies” under either their jurisdiction or control. This could be mean to read biotechnology or any other polluting technology. The rest of the paragraph requires the states to prevent, reduce and control the “incidental or accidental introduction of species, alien or new, to a particular part of marine environment which may cause significant or harmful changes thereto”.
However, the definition of pollution adopted by UNCLOS does not make explicit reference to impacts on marine ecosystems. This defect has been remedied by in some regional conventions.
In the Exclusive Economic Zone (EEZ) (Part V) coastal States are obliged to ensure “through proper conservation and management measures that the maintenance of living resources is not endangered by over-exploitation”, taking into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. Similar provisions apply to such species in high sea fisheries. But these provisions “only aim to maintain the viability of such species, and …..[not] to protect their role within the food web or the functioning of the marine ecosystem as a whole.
1980 CANBERRA CONVENTION ON THE CONSERVATION OF ANTARTIC MARINE LIVING RESOURCES
This is arguably the first convention to be centered on ecosystem approach to conservation and has been described as “a model of ecological approach.” Even the geographical scope of the treaty itself is unique, in that it is designed around the Antarctic ecosystem. Under Article 1, the Convention applies “to the Antarctic marine resources of the area south of 60 degrees South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form a part of Antarctic marine ecosystem.” The Antarctic ecosystem is then defined by Article 1(3) as “the complex of relationships fop Antarctic marine living resources with each other and with their physical environment.”
The sole objective of the Convention is declared to be “the conservation of Antarctic marine living resources;” conservation however is defined to include “rational use”. To achieve this end any harvesting or associated activities has to be conducted in accordan.ce with declared principles.
These objectives, which clearly relate to the maintenance of the ecosystem rather than its exploitation, are implemented by the Commission for Conservation of Antarctic Marine Living Resources (CCAMLR) which coordinates research on Antarctic marine living resources and adopts appropriate conservation and management measures.
A further formal step in the protection of Antarctic Ecosystem was taken with the conclusion of the 1991 Madrid Protocol to the Antarctic Treaty on Environmental Protection.
1985 ASEAN CONVENTION ON CONSERVATION OF NATURE AND NATURAL RESOURCES
Another treaty of major potential significance but, unfortunately, still not in force after a decade is the 1985 ASEAN Convention on Conservation of Nature and Natural Resources. This Convention reflects in its wording the concepts contained in the 1980 IUCN World Conservation Strategy, embracing a clear ecosystem approach to conservation. Kiss and Shelton describe this Treaty at “the most comprehensive approach to viewing conservation problems that exist today.
The Convention recognizes “the interdependence of living resources, between them and other natural resources, within the ecosystems of which they are a part.” It is divided into eight chapters.
It is tempting to observe that the major treaties calling for marine ecosystem conservation considered thus far are either limited in geographical scope, or not yet in force, or both.
GENERAL CUSTOMARY INTERNATIONAL LAW
There is a general obligation first promulgated by Principle 21 of Stockholm Declaration and now to be found in Principle 2 of Rio Declaration to ensure that “activities within their jurisdiction or control do not cause damage to the environment of other States or to areas beyond the limits of national jurisdiction. This obligation not to cause damage extends not simply to activities physically located within the State territory but also to activities within the State jurisdiction.
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Customary international law would impose responsibility on States under this principle for a range of activities which impact on marine ecosystems whether such activities take place within the areas of national jurisdiction or outside or straddling such areas.Activities which could be argued to cause damage to marine ecosystems and to fall foul of this principle would include marine pollution – particularly that emanating from land based sources and activities; it could also be extended to fishing and related activities which impact upon rare and endangered marine species or their habitat.
REGIMES FOR THE CONSERVATION OF MARINE ECOSYSTEM COMPONENTS
Historically, the two main techniques which have been utilized by international conventions for the conservation of marine species are derived from those taken for terrestrial species, namely, the regulation or prohibition of the taking of designated species and the protection of habitat by designation of protection areas.
PROTECTION OF SPECIES
The protection of designated species has habitually been addressed by the imposition of restrictions and prohibitions on the harvesting, taking or killing of target species. The approach was taken by the 1946 Whaling Convention, by the various seal hunting regulatory agreements and by the 1973 Polar Bears Agreement. Such a strategy is still maintained as a part of approach adopted by more modern generic or regional protected species treaties such as the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals and the regional treaties concluded under UNEP Regional Seas Programme.
PROTECTED AREAS
The second key technique, often used in combination with protection of species and in modern treaties increasingly merge with it, is the establishment of protected areas either to protect the habitats of specific species or as representative examples of ecosystems or habitats. These may be important isolated areas or take their place within a systematic network permitting for example transnational migration.
In the terrestrial environment between 5-8% of the total world land mass now lies in protected areas. Despite the fact the sea covers more than two and a half times the land area, marine protected areas may cover an area less than half that of terrestrial protected areas.
REGULATION OF TRADE IN WILD SPECIES
One of the major threats to marine species such as sea turtles is the commercial trade in products such as turtle shell. Other well known threats to marine ecosystems are posed by over exploitation of shells and corals for the tourist souvenir trade and of reef fish for the aquarium trade. CITES provides the main regulation of such trade, although a number of treaties provide independent proscriptions or regulation of such trade.
CONCLUSION
It is paradoxical that although the particular problems of conservation of many marine creatures, particularly pelagic creatures, make them particularly suitable to regulation at an international level under a treaty on biological diversity, in fact the most important discussions concerning conservation of marine biological diversity are currently taking place in the context of other forums – those relating to land based resources, straddling fish stocks or at a regional or sectoral level.
The recognition by the 1992 Convention on Biological Diversity of the issue of the “conservation of biological diversity as a matter of common concern of humankind” implies that all states have a legal interest in the issue as well as positive responsibility to safeguard it. However, this “common concern” still requires a more obvious focus than national actions or diverse regional or sectoral actions, for much of the attention has to be taken in international waters as well in coastal waters or in ways that will reflect natural ecosystem boundaries rather than national maritime jurisdictional boundaries.
It can thus, be concluded that there is an existence of a substantial body of treaty law which seeks to address one or more aspects of marine ecosystem conservation. Although, a few treaties actually commit themselves to this, it is clear that a large number of treaty regimes are developing an ecosystem approach through their parties interpretation of their existing treaty obligations. UNCLOS can be seen as a most positive force in the crystallization of the general obligations of States to protect the marine environment. Nevertheless, important though the obligations of Part XII are in this respect, they too require further substantial elaboration and implementation.
A protocol on the conservation of marine biodiversity in context of protection of marine ecosystems would be an obvious way of seeking to remedy the lacunae of existing regimes and refocusing attention on this crucial, but somewhat neglected, aspect of biodiversity debate.
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