terrestrial and marine environment into legal goods worthy of safeguarding. Law,
taken as a behavior-shaping tool, is an important motivating variable to shape human
action.
41 Regardless of its limitations, UNCLOS has contributed to marine environmental protection by establishing a jurisdictional framework for the enactment and
implementation of national measures aimed at protecting the marine environment,
thus helping to raise awareness towards marine environmental issues. As noted by
the Canadian delegation approaching the closure of the Third Conference,
[t]he Third Committee had registered a signal achievement of historic importance. At the
beginning of the Conference, there had been no international law on the marine environment
but, as a result of the Committee’s work, the principle of the preservation of the marine
environment had been accepted and a number of practical draft provisions prepared (emphasis added).
42
7.1.2 Marine Environmental Protection
and the Consolidation of the Ecosystem Approach
States, international organizations, NGOs and other stakeholders have realized that
ocean-use regulation is not straightforward nor linear. The interdependence between
numerous marine ecosystems and functions, if not taken into account during national
planning and decision-making processes, may render national measures useless or
even worse to the overall management and quality of the oceans. In other words,
stakeholders have learned that the relations between ocean management/regulation
and human interactions is most complex and instable, in such a way that measures
aimed at protecting a specific threatened species may cause a disbalance in the food
chain of the ecosystem of the protected species, that protective measures may
unjustifiably interfere with other human uses of the oceans. Possible consequences
and different scenarios need be weighed and thoroughly debated prior to the
domestic decision-making.
43 To this comprehensive, integrated management of
human activities based on best scientific evidences available about the ecosystems
and their dynamics,
44 international scholarship refers as “ecosystem approach”.
41 Such conception of law as a shaping tool is formulated, among others, by Anne van Aaken in her
critique to Posner and Goldsmith’s work on the limits of international law. According to van Aaken,
law both reflects and shapes the values and interests of those it governs. See Van Aaken (2006),
p. 291. A rather skeptical view on the extent of UNCLOS’ influence in shaping states’ behavior
towards the environment is held by Robin Churchill, to whom such an influence is not clear. See
Churchill (2015), p. 30.
42 A/CONF.62/SR.113, 113th Plenary meeting, para 35.
43 Public participation in decision-making processes is, in fact, a fundamental principle of public
policies’ studies and public administrative theories. For more on public participation, the expansion
of the public sphere and the communicative action between governments and citizens. See generally
Habermas (1981).
44 Official Statement of the First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions, Bremen, 25–26 June 2003.
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
199
taken as a behavior-shaping tool, is an important motivating variable to shape human
action.
41 Regardless of its limitations, UNCLOS has contributed to marine environmental protection by establishing a jurisdictional framework for the enactment and
implementation of national measures aimed at protecting the marine environment,
thus helping to raise awareness towards marine environmental issues. As noted by
the Canadian delegation approaching the closure of the Third Conference,
[t]he Third Committee had registered a signal achievement of historic importance. At the
beginning of the Conference, there had been no international law on the marine environment
but, as a result of the Committee’s work, the principle of the preservation of the marine
environment had been accepted and a number of practical draft provisions prepared (emphasis added).
42
7.1.2 Marine Environmental Protection
and the Consolidation of the Ecosystem Approach
States, international organizations, NGOs and other stakeholders have realized that
ocean-use regulation is not straightforward nor linear. The interdependence between
numerous marine ecosystems and functions, if not taken into account during national
planning and decision-making processes, may render national measures useless or
even worse to the overall management and quality of the oceans. In other words,
stakeholders have learned that the relations between ocean management/regulation
and human interactions is most complex and instable, in such a way that measures
aimed at protecting a specific threatened species may cause a disbalance in the food
chain of the ecosystem of the protected species, that protective measures may
unjustifiably interfere with other human uses of the oceans. Possible consequences
and different scenarios need be weighed and thoroughly debated prior to the
domestic decision-making.
43 To this comprehensive, integrated management of
human activities based on best scientific evidences available about the ecosystems
and their dynamics,
44 international scholarship refers as “ecosystem approach”.
41 Such conception of law as a shaping tool is formulated, among others, by Anne van Aaken in her
critique to Posner and Goldsmith’s work on the limits of international law. According to van Aaken,
law both reflects and shapes the values and interests of those it governs. See Van Aaken (2006),
p. 291. A rather skeptical view on the extent of UNCLOS’ influence in shaping states’ behavior
towards the environment is held by Robin Churchill, to whom such an influence is not clear. See
Churchill (2015), p. 30.
42 A/CONF.62/SR.113, 113th Plenary meeting, para 35.
43 Public participation in decision-making processes is, in fact, a fundamental principle of public
policies’ studies and public administrative theories. For more on public participation, the expansion
of the public sphere and the communicative action between governments and citizens. See generally
Habermas (1981).
44 Official Statement of the First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions, Bremen, 25–26 June 2003.
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
199