7.1 The Role of Law in Protecting Nature: Birth of an
Obligation to Protect and Preserve the Marine
Environment
It is not novel that the oceans are under strain due to anthropocentric causes.
15 A
2016 Report by the World Wide Fund for Nature shows an overall decline of 36% in
biodiversity between 1970 and 2012, and stresses that the most common threats for
marine species are overexploitation and loss or degradation of habitat.
16 The world
ocean is threatened in its roles as “climate regulator, carbon sink, source of marine
biodiversity, and as key provider of food and nutrition, ecosystem services, maritime
trade and transportation, and as an engine for sustainable economic development and
growth”.
17 In sum, the quality of the marine environment is not improving; to the
contrary, the outlook for marine biodiversity is rated as “poor and alarming”.
18 For
instance, hydrothermal vents, submarine mounts and cold-water corals are amongst
deep-sea habitats and ecosystems threatened by man-made interference.
19
Such a scenario of diffuse and human-led marine damage could eventually
suggest the absence of political and legal efforts to halt ecological aggressions to
the oceans—as if damages occurred with the connivance of public authorities.
However, that is not the case, as the international community has been resorting to
law- and policy-making to devise strategies aimed at decreasing marine pollution.
Evidence of that is the fact that marine environmental protection has gained, in the
past decades, the status of “common concern of humankind”, following the realization that ecological deterioration extrapolates the jurisdiction of multiple states and
threatens the well-being of several peoples.
20 To tackle a common concern, the
15 Coastal pollution, heavy metal and radioactivity pollution, degraded wetlands, coastal and marine
nutrients over-enrichment, eutrophication, acidification, decline and decimations of fisheries,
destroyed coral reefs, marine litter, sedimentation, beach erosion, loss of marine mammal
populations, red tides, industrial and shipping pollution are but some of the environmental concerns
related to the sea. For the purposes of this work, marine environmental pollution is the phenomenon
described in Art. 1 (4) UNCLOS as the “introduction by man, directly or indirectly, of substances or
energy into the marine environment, including estuaries, which results or is likely to result in such
deleterious effects as harm to living resources and marine life, hazards to human health, hindrance
to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for
use of sea water and reduction of amenities”.
16 The WWF adopts a methodology named “Living Planet Index” (LPI), which measures biodiversity by gathering population data of various vertebrate species and calculating an average change in
abundance over time. The global LPI is based on scientific data from 14,152 monitored populations
of 3,706 vertebrate species (mammals, birds, fishes, amphibians, reptiles) from around the world.
See WWF (2016), p. 6.
17 Zero Draft of the Call for Action “Our Ocean. Our Future”, 10 April 2017.
18 See UNEP (2010)5.
19 See OSPAR List of Threatened and/or Declining Species and Habitats (Reference Number: 20086). See also Descriptions of habitats on the OSPAR list of threatened and/or declining species and
habitats (Reference Number: 2008-07).
20 Harrison (2017), p. 2.
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
193
Obligation to Protect and Preserve the Marine
Environment
It is not novel that the oceans are under strain due to anthropocentric causes.
15 A
2016 Report by the World Wide Fund for Nature shows an overall decline of 36% in
biodiversity between 1970 and 2012, and stresses that the most common threats for
marine species are overexploitation and loss or degradation of habitat.
16 The world
ocean is threatened in its roles as “climate regulator, carbon sink, source of marine
biodiversity, and as key provider of food and nutrition, ecosystem services, maritime
trade and transportation, and as an engine for sustainable economic development and
growth”.
17 In sum, the quality of the marine environment is not improving; to the
contrary, the outlook for marine biodiversity is rated as “poor and alarming”.
18 For
instance, hydrothermal vents, submarine mounts and cold-water corals are amongst
deep-sea habitats and ecosystems threatened by man-made interference.
19
Such a scenario of diffuse and human-led marine damage could eventually
suggest the absence of political and legal efforts to halt ecological aggressions to
the oceans—as if damages occurred with the connivance of public authorities.
However, that is not the case, as the international community has been resorting to
law- and policy-making to devise strategies aimed at decreasing marine pollution.
Evidence of that is the fact that marine environmental protection has gained, in the
past decades, the status of “common concern of humankind”, following the realization that ecological deterioration extrapolates the jurisdiction of multiple states and
threatens the well-being of several peoples.
20 To tackle a common concern, the
15 Coastal pollution, heavy metal and radioactivity pollution, degraded wetlands, coastal and marine
nutrients over-enrichment, eutrophication, acidification, decline and decimations of fisheries,
destroyed coral reefs, marine litter, sedimentation, beach erosion, loss of marine mammal
populations, red tides, industrial and shipping pollution are but some of the environmental concerns
related to the sea. For the purposes of this work, marine environmental pollution is the phenomenon
described in Art. 1 (4) UNCLOS as the “introduction by man, directly or indirectly, of substances or
energy into the marine environment, including estuaries, which results or is likely to result in such
deleterious effects as harm to living resources and marine life, hazards to human health, hindrance
to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for
use of sea water and reduction of amenities”.
16 The WWF adopts a methodology named “Living Planet Index” (LPI), which measures biodiversity by gathering population data of various vertebrate species and calculating an average change in
abundance over time. The global LPI is based on scientific data from 14,152 monitored populations
of 3,706 vertebrate species (mammals, birds, fishes, amphibians, reptiles) from around the world.
See WWF (2016), p. 6.
17 Zero Draft of the Call for Action “Our Ocean. Our Future”, 10 April 2017.
18 See UNEP (2010)5.
19 See OSPAR List of Threatened and/or Declining Species and Habitats (Reference Number: 20086). See also Descriptions of habitats on the OSPAR list of threatened and/or declining species and
habitats (Reference Number: 2008-07).
20 Harrison (2017), p. 2.
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
193