A submarine forest of kelp. Photo: NOAA.
Conserving the Great Blue - a new Law of the Sea to protect our oceans
11th February 2015
The rapid deterioration of the world's oceans and the life they contain calls for a breakthrough in their governance, writes Deborah Wright. The seas must be protected, respected and policed as the common heritage of all mankind, and of all generations present and future.
Let's imagine that we take the dominant paradigm of over-exploitation and turn it completely around, so that respect for the sea and its wildlife becomes the norm, not the exception.
In today's back-to-front world those wanting to safeguard seas and oceans are struggling to do so.
The conservationist has to justify protecting a critical global resource, even though healthy seas sustain us all. Those who empty them, pollute them and profit from them can often do so unchallenged and uncontrolled.
Common sense says it should be the other way around; that all seas and oceans are protected from the outset. We should expect them to be unspoiled and unpolluted. We should assume that marine life is properly valued.
Accountability and responsibility then passes from the defender to the exploiter and the integrity of nature is always put before the importance of profit.
Many marine species are now on the verge of extinction due to commercial fishing, pollution and ocean acidification. Millions of birds and mammals are killed by nets, lines and debris of all kinds. Plastic waste covers hundreds of thousands of square kilometres.
Coral reefs are trashed by fishing gear and weakened by global warming. Mining, oil and fishing companies are making excessive profits whilst impoverishing coastal communities. Industry is getting away with blue murder, and on a vast scale.
A new thinking is needed
The existing system isn't working because the thinking behind it is flawed. We need to develop a very different perception of the natural world and a true understanding of how we fit into it. Indeed the very concept of 'ocean management' is ... peculiar.
We cannot 'manage' oceans. We cannot 'manage' Earth's chemical and biological systems: they do that unaided and have done so for millions of years. We need only to manage ourselves and our activities in a way that doesn't diminish nature's largesse. While the processes of nature, its wildlife and its beauty, are secured as a given.
With the well-being of the sea always coming first, commercial use will then only be possible if it is rational and truly sustainable. Industry will no longer have the right to ransack. Misuse will be a criminal act.
Working together, governments must become accountable to the people they represent, who want clean and vibrant seas. All marine industries will be strictly regulated, compelling them to practice in ways that are neither harmful nor unsustainable.
Damaging land-based activities must also be addressed, such as excessive fossil fuel emissions and the proliferation of plastic waste. Over-fishing and destructive mining will become a thing of the past; pollution and plastic waste will diminish and eventually disappear; wildlife will flourish - in coastal waters, ocean depths and on the high seas.
The sea will provide employment for millions of people and yield a never-ending supply of food and renewable resources.
These principles are already enshrined in law
Does that sound unrealistic? Too idealistic? It shouldn't. Not when you realize that the world's seas and oceans are already protected by international law; by treaty law and by customary law.
The United Nations Convention on the Law of the Sea (which 178 states have signed and 166 have ratified) obliges nations to co-operate on a global basis to protect the marine environment and to prevent, reduce and control pollution.
It also stipulates the preservation of rare or fragile ecosystems as well as the habitats of depleted, threatened or endangered species and other forms of marine life.
Also relevant is the Convention on Biological Diversity (CBD), which covers the conservation of all ecosystems and species using the precautionary approach - giving nature the benefit of the doubt when there is sketchy scientific data.
There is also the Public Trust Doctrine - the principle dating back to the Roman Emperor Justinian that requires governments to manage shared natural resources in the best interests of present and future citizens - including the global commons, those areas and resources beyond national jurisdiction such as the high seas and atmosphere.
Its key principles are wise resource management, government accountability and responsibility to future generations, and these provide a clear-cut legal basis for conserving marine environments and the rest of the natural world.
Also applicable is the Common Heritage of Mankind principle, which asserts that the commons should not be exploited by individual nations or corporations but held in trust for the benefit of all and for future generations.
Indeed it has specific application to the high seas. Article 136 of the UNCLOS Treaty explicitly declares the "seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction" to be the "Common Heritage of Mankind".
So what's the problem?
Firstly, the Law of the Sea needs to be modernized. It came into force in 1994 and was drawn up over 12 years before that. There have been many technological and environmental developments since then which are not accounted for in the treaty, such as the ease with which vessels can now track and capture fish. Big issues like ocean acidification and the great Pacific garbage patch were unknown at the time.
Most importantly though, protective legislation; the Law of the Sea, the CBD, the Public Trust Doctrine and the Common Heritage of Humankind principle are not properly enforced, and in many areas - notably the high seas - they are rarely enforced at all.
And yet today's technology makes law enforcement possible across the globe. With GPS and vessel monitoring systems, ships can be under surveillance everywhere.
Other actions to combat over-fishing will include a massive reduction in global fishing capacity in line with stocks, revoking the licenses of vessels fishing unsustainably, and preventing illegally caught fish from entering the market.
Enforcement can be financed by revenue from responsibly managed activities such as mining and fishing, from individual nation's contributions based on GDP, and from benevolent subsidies.
Reform is necessary, urgent - and achievable!
The way in which humankind despoils our watery world is depressing indeed. And even more depressing is the failure of governments to react. Those who we elect, who we empower and we pay for, are failing us and they are failing the natural world.
They are allowing the cruel and unnecessary slaughter of millions of sea creatures and the ruin of undersea habitats. Some governments are making the problem even worse by subsidizing unviable and damaging commercial fishing.
Now let's imagine a different scenario - that we take the dominant paradigm of over-exploitation and turn it completely around, so that respect for the sea and its wildlife becomes the norm, not the exception.
Marine governance can be transformed so that seas and oceans are valued as they should be. When governments co-operate they can deliver the big picture legislation so urgently needed to bring our attitude out of the Dark Ages and into the 21st century.
With the urgent reform of the UN Law of the Sea, the entire marine environment becomes protected as a universal principle rooted in law, upheld by all nations as a shared heritage. Seas and oceans will be unpolluted, with clear waters, teeming with life, for good.
The concept is simple. It is logical. It is achievable. The legal framework for it is already largely in place. And as with many of society's steps forward, it is essentially about ending what is wrong and replacing it with what is right.
We invite you to help bring this proposal to fruition!
Action: The first step is to create a United Nations Sustainable Development Goal (SDG) specifically for oceans. Pledge your support and the Terramar Project will automatically send a message to the UN urging them to properly protect seas and oceans.
Also on The Ecologist: 'UN talks begin on a new law to save our oceans'.
Deborah Wright has worked with Marinet since 2009. Her publication The Ocean Planet reviews the serious challenges which our seas and oceans now face and outlines proposals for fundamental changes in marine management to solve this crisis using an ecosystem-based approach.
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