subjects of the international community ought to cooperate in several fronts and
define rules and standards that nudge behavior towards the rational management of
the marine environment.
For decades, law has served a number of functions in protecting environmental
goods,
21 among which: a distributive function, in which law allocates ownership
over or access to marine resources; a conservatory one, in which legal norms leave
specific resources untouched or allows only for a limited and non-predatory exploitation; a proscriptive, as law stimulates or prohibits particular methods and forms of
exploitation of a given resource; and a judicial function, which offers the possibility
of referring disputes on abusive or wrongful state behavior to competent international courts and tribunals.
22
Belief in law’s contribution to the protection of nature was corollary to the birth
and rapid maturation of an environmental awareness that changed the way in which
industrialized societies valued risks to the (marine) environment. This shift paved the
way for a normative boom of environment-related soft- and hard law instruments. In
fact, the prise de conscience environmentale
23 prompted the emergence of new
ethics and ethos towards the environment, a turn especially felt from the 1972
Stockholm Declaration on the Human Environment and the creation of the United
Nations Environmental Programme (UNEP).
24
International collective efforts to tackle ecosystem degradation followed suit with
a specific change in the modus operandi of international negotiations. Sovereign
states were deprived from monopoly in deliberating and deciding on environmentally sensitive matters, as civil society movements became increasingly interested in
the outcomes of such negotiations—classical examples of which are the creation of
the World-Wide Fund for Nature (WWF) in 1961, Switzerland; and the Greenpeace,
founded in 1971 in Canada. Hence, the public international sphere of debate
witnessed an enlargement of its participants: international organizations,
non-governmental organizations and local communities were, to a greater or lesser
21 A major problem, though, is that law usually comes as a reaction to events perceived and valued
as negative by a certain society in a specific time. For instance, interest in protecting marine natural
resources, particularly fisheries, was only perceived to be relevant once there were alarming levels
of overexploitation, failure of stocks and concrete danger of extinction. It was so with salmon and
whales. Until the red light started to blink, overexploitation was not socially constructed as problem
and, therefore, did not deserve conservation efforts on the international stage. In the case of whales,
the most relevant treaties to initiate this trend, and show that uni- or bilateral regulating efforts were
not sufficient to effectively conserve the migratory mammals, were the 1882 North Sea Overfishing
Convention, and the 1885 Convention for the Uniform Regulation of Fishing in the Rhine. See
Marine Mammal Commission, Compendium of Selected Treaties, 2nd update, 475. There followed
several conventions and non-binding documents aiming at regulating abusive fishing practices and
conserving particular threatened stocks, so that all those who fish may prolong access to such
resources.
22 Birnie et al. (2009), p. 594.
23 Kiss (2005), p. 115.
24 Declaration of the United Nations Conference on the Human Environment, 11 ILM 1416, 1972.
194
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
define rules and standards that nudge behavior towards the rational management of
the marine environment.
For decades, law has served a number of functions in protecting environmental
goods,
21 among which: a distributive function, in which law allocates ownership
over or access to marine resources; a conservatory one, in which legal norms leave
specific resources untouched or allows only for a limited and non-predatory exploitation; a proscriptive, as law stimulates or prohibits particular methods and forms of
exploitation of a given resource; and a judicial function, which offers the possibility
of referring disputes on abusive or wrongful state behavior to competent international courts and tribunals.
22
Belief in law’s contribution to the protection of nature was corollary to the birth
and rapid maturation of an environmental awareness that changed the way in which
industrialized societies valued risks to the (marine) environment. This shift paved the
way for a normative boom of environment-related soft- and hard law instruments. In
fact, the prise de conscience environmentale
23 prompted the emergence of new
ethics and ethos towards the environment, a turn especially felt from the 1972
Stockholm Declaration on the Human Environment and the creation of the United
Nations Environmental Programme (UNEP).
24
International collective efforts to tackle ecosystem degradation followed suit with
a specific change in the modus operandi of international negotiations. Sovereign
states were deprived from monopoly in deliberating and deciding on environmentally sensitive matters, as civil society movements became increasingly interested in
the outcomes of such negotiations—classical examples of which are the creation of
the World-Wide Fund for Nature (WWF) in 1961, Switzerland; and the Greenpeace,
founded in 1971 in Canada. Hence, the public international sphere of debate
witnessed an enlargement of its participants: international organizations,
non-governmental organizations and local communities were, to a greater or lesser
21 A major problem, though, is that law usually comes as a reaction to events perceived and valued
as negative by a certain society in a specific time. For instance, interest in protecting marine natural
resources, particularly fisheries, was only perceived to be relevant once there were alarming levels
of overexploitation, failure of stocks and concrete danger of extinction. It was so with salmon and
whales. Until the red light started to blink, overexploitation was not socially constructed as problem
and, therefore, did not deserve conservation efforts on the international stage. In the case of whales,
the most relevant treaties to initiate this trend, and show that uni- or bilateral regulating efforts were
not sufficient to effectively conserve the migratory mammals, were the 1882 North Sea Overfishing
Convention, and the 1885 Convention for the Uniform Regulation of Fishing in the Rhine. See
Marine Mammal Commission, Compendium of Selected Treaties, 2nd update, 475. There followed
several conventions and non-binding documents aiming at regulating abusive fishing practices and
conserving particular threatened stocks, so that all those who fish may prolong access to such
resources.
22 Birnie et al. (2009), p. 594.
23 Kiss (2005), p. 115.
24 Declaration of the United Nations Conference on the Human Environment, 11 ILM 1416, 1972.
194
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...