degree, brought to the decision-making table.
25 Public pressure became responsible
for a paradigmatic change from the traditional principle of permanent sovereignty
over natural resources,
26 which stimulated careless exploitation of living and
non-living resources, towards the adoption of legal obligations to conserve and
protect the environment, thus balancing economic growth with societal and ecological well-being. In legal terms, such a shift was formulated in the following way:
states have rights over their natural resources but shall not harm the environment in
exercising those rights.
27
In the period spanning from the 1970s to the 1990s, several binding and
non-binding instruments were agreed upon, which to a greater or lesser extent
inserted environmental goods under international legal protection. At that historical
moment, UNCLOS was signed, and followed by documents of the 1992 Rio
Conference on Development and the Environment: the Rio Declaration;
28 the
Agenda 21 (and the call to protect and preserve “rare or fragile ecosystems”, such
as coral reefs); the UN Framework Convention on Climate Change (UNFCCC)
29
and, most relevantly for the topic of biodiversity conservation, the Convention on
Biological Diversity (CBD).
30
Such a legislative boom, also depicted as the “transversalization” of environmental matters throughout treaties of multiple international legal regimes, quickly raised
questions as to the overall coherence of environmental concepts employed in those
treaties. Concerns with the normative inflation in environmental matters prompted
authors to ask whether “trop de loi tue la loi”.
31 Plurality and lack of harmony
among the thousands of provisions and hundreds of obligations within bi- and
multilateral environmental treaties, coupled with terminological ambiguity, cast
doubts on the effectiveness of environmental protection, especially of oceans. Yet,
despite those issues, the mainstreaming of environmental concerns has brought
along numerous benefits to the cause of protecting the marine ecosystems, and
prompted a better overture and permeability of law of the sea instruments to
environmental norms, as the next item shows.
25 For the purposes of this argument, resort is made to Habermas’ theory of rationalization of “public
sphere”, adapted to the international arena, in line with which the decision-making process profits
from the ampliation of its participants. See Habermas (1973), p. 61.
26 The principle of permanent sovereignty over natural resources under national jurisdiction evolved
during the postwar period and was explicitly recognized in United Nations General Assembly
Resolution 1803 (XVII), 1982, as well as in other international documents. According to the
original meaning of this principle, states had the right to dispose freely of their resources, in an
approach that Nele Matz-Lück and Johannes Fuchs label as “rights-based approach”. Upon the
maturing of ecological arguments, the principle was restricted, as rights were associated to duties
and obligations of an environmental matrix. See Matz-Lück and Fuchs (2015), p. 491.
27 Sands and Peel (2012), p. 235.
28 Rio Declaration on Environment and Development, 31 ILM 874, 1992.
29 United Nations Framework Convention on Climate Change, A/RES/48/189, 20 January 1994.
30 The Convention on Biological Diversity, 1760 UNTS 69, 5 June 1992.
31 Kiss (2005), p. 115.
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
195
25 Public pressure became responsible
for a paradigmatic change from the traditional principle of permanent sovereignty
over natural resources,
26 which stimulated careless exploitation of living and
non-living resources, towards the adoption of legal obligations to conserve and
protect the environment, thus balancing economic growth with societal and ecological well-being. In legal terms, such a shift was formulated in the following way:
states have rights over their natural resources but shall not harm the environment in
exercising those rights.
27
In the period spanning from the 1970s to the 1990s, several binding and
non-binding instruments were agreed upon, which to a greater or lesser extent
inserted environmental goods under international legal protection. At that historical
moment, UNCLOS was signed, and followed by documents of the 1992 Rio
Conference on Development and the Environment: the Rio Declaration;
28 the
Agenda 21 (and the call to protect and preserve “rare or fragile ecosystems”, such
as coral reefs); the UN Framework Convention on Climate Change (UNFCCC)
29
and, most relevantly for the topic of biodiversity conservation, the Convention on
Biological Diversity (CBD).
30
Such a legislative boom, also depicted as the “transversalization” of environmental matters throughout treaties of multiple international legal regimes, quickly raised
questions as to the overall coherence of environmental concepts employed in those
treaties. Concerns with the normative inflation in environmental matters prompted
authors to ask whether “trop de loi tue la loi”.
31 Plurality and lack of harmony
among the thousands of provisions and hundreds of obligations within bi- and
multilateral environmental treaties, coupled with terminological ambiguity, cast
doubts on the effectiveness of environmental protection, especially of oceans. Yet,
despite those issues, the mainstreaming of environmental concerns has brought
along numerous benefits to the cause of protecting the marine ecosystems, and
prompted a better overture and permeability of law of the sea instruments to
environmental norms, as the next item shows.
25 For the purposes of this argument, resort is made to Habermas’ theory of rationalization of “public
sphere”, adapted to the international arena, in line with which the decision-making process profits
from the ampliation of its participants. See Habermas (1973), p. 61.
26 The principle of permanent sovereignty over natural resources under national jurisdiction evolved
during the postwar period and was explicitly recognized in United Nations General Assembly
Resolution 1803 (XVII), 1982, as well as in other international documents. According to the
original meaning of this principle, states had the right to dispose freely of their resources, in an
approach that Nele Matz-Lück and Johannes Fuchs label as “rights-based approach”. Upon the
maturing of ecological arguments, the principle was restricted, as rights were associated to duties
and obligations of an environmental matrix. See Matz-Lück and Fuchs (2015), p. 491.
27 Sands and Peel (2012), p. 235.
28 Rio Declaration on Environment and Development, 31 ILM 874, 1992.
29 United Nations Framework Convention on Climate Change, A/RES/48/189, 20 January 1994.
30 The Convention on Biological Diversity, 1760 UNTS 69, 5 June 1992.
31 Kiss (2005), p. 115.
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
195