This chapter explains that international governance of highly migratory fish species, such as sharks, billfish and tuna, has proved largely ineffective – for various reasons. Against the backdrop of such failure, it is argued that a valuable role could be played by private, industry-driven management initiatives. By way of introduction it is explained that private actors have historically played important roles in protecting marine biodiversity, but that existing governance structures for the extraction of global commons marine fisheries resources are currently largely found within the ambit of public authorities. A specific case study is considered: the International Seafood Sustainability Foundation (ISSF), with examples of successes and failures being given. Potential lessons are then drawn as to how such private initiatives might be used to supplement, if not replace, international management regimes. It is argued in conclusion that the interaction between public and private governance efforts may in the years to come require a more active response from public actors; and that perhaps, in spite of the legitimacy associated with public governance, which is less apparent in private governance initiatives, states should be following the lead of the ISSF to articulate mandatory policies that support all industry conservation efforts that are as protective or more protective of marine resources than existing public governance efforts.
The Role of Law
Edited by Ed Couzens, Alexander Paterson, Sophie Riley and Yanti Fristikawati
This chapter is a jurisprudential/philosophical consideration of exactly why biological diversity should be protected through a consideration of how the different ‘interest groups’ involved might value biodiversity. These interest groups are identified as biospheres, which have to date received limited attention in international law as ‘entities’ deserving of protection; threatened species, whose ‘direct interests’ in the protection of biodiversity have similarly received little attention; individual members of threatened species, which tend to be valued proportionately to their usefulness to humans and not to be accorded any interests deserving of protection if they are neither ‘useful’ nor ‘native’; the Earth itself, which receives scant direct attention in international instruments; and humanity, which arguably is the most highly valued species but perhaps not justifiably so. The chapter then weighs up different values, before applying its findings to the ‘moral considerateness’ of species labelled as ‘pests’, and whether such a classification automatically leads to such species losing their status as morally considerate beings. The argument is made that moral considerateness imposes limitations on how society regulates all species, including unwanted ones. There is then consideration of how different interests might be reconciled through the medium of justice in a national legal system – the particular case of New Zealand with the particular species of the ‘alien’ possum is used as an example.
Ed Couzens, Alexander Paterson and Sophie Riley
This chapter begins with an explanation of the various threats facing, first, marine biodiversity and, second, biodiversity in forests. Both suffer from numerous threats and from the increased cumulative impact of these threats. The chapter then considers the legal framework for governance of marine biodiversity, explaining that there have been four major documents or instruments which have driven this legal development more than have any others: Huig de Groot’s pamphlet Mare Liberum, published in 1609; the judgment in 1898 of the arbitral tribunal in the Bering Sea Fur Seals Arbitration; the Proclamation by US President Truman in 1945 of a ‘Policy with Respect to Coastal Fisheries in Certain Areas of the High Seas’; and finally the United Nations Convention on the Law of the Sea (UNCLOS) (adopted 1982, entered into force 1994). A fifth may soon be adopted – if current efforts toward a global convention on the protection of biodiversity in areas beyond national jurisdiction are successful. In addition to these, there are hundreds of relevant international instruments, of global, regional and bilateral scope. In contrast, it is explained, there is little international regulation of forests, with many of the most relevant instruments being of a non-binding nature, such as the Forest Principles of 1992. In the face of this absence of regulatory instruments, recourse must be had to instruments of a more general nature. In conclusion, similarities and differences are highlighted between the regulatory regimes for forests and the marine environment, and it is noted that while one is arguably over-, and the other under-, regulated, neither is having the desired effect, and biodiversity is declining in both. That neither approach is working effectively is instructive, and a topic worth further study.
Lin Heng Lye and Sallie Chia-Wei Yang
This chapter focuses specifically on one legal response to dealing with conserving species, namely regulating the international trade in endangered species in the face of illegal international trade in wild animal species, and the devastating effects of this on biological diversity. Examples are given of the current situation in Southeast Asia. The chapter considers (in fact, re-examines) the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES) and its implementation, with particular focus on Southeast Asia and its regional centre for combating wildlife trade, the ASEAN Wildlife Enforcement Network (ASEAN-WEN). Examples are given of successes and failures. Recognition of illegal wildlife trade as a transnational environmental crime is called for and there is examination of the UN Convention against Transnational Organized Crime 2003 (UNTOC); the UN Convention against Corruption 2003 (UNCAC); the ASEAN Mutual Legal Assistance Treaty on Criminal Matters 2004 (MLAT); International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation 2012 (FATF); and the London Declaration on Wildlife Trade 2014. The chapter finally canvasses various possible solutions, and makes recommendations for more effective policing and enforcement in the context of ASEAN and East Asia.
Violeta S. Radovich
This chapter considers the adverse effects on marine biodiversity from the exploration for, and exploitation of, oil and gas in the marine environment. Reference is made to the Montara and Deepwater Horizon accidents. It is argued that if appropriate environmental law tools are not applied at appropriate stages, then environmental damage will likely ensue, raising issues of liability and reparation for environmental damage. Currently, there is no convention or fund related to civil liability arising from pollution by offshore oil and gas exploration and exploitation. There is also no global international convention devoted to the governance of marine installations. The chapter canvasses the history of the development of draft international legal regimes – and the adoption of various relevant, but non-specific, international legal instruments found in the law of the sea, in maritime law and in general environmental law instruments. The ‘Offshore Protocol’ to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean 1976 (the ‘Barcelona Convention’) is considered as a possible turning point as the first instrument integrally devoted to the subject. In the conclusion the argument is made that the development of a new convention to deal specifically with the exploration for, and exploitation of, marine oil and gas would be valuable.
This chapter considers the relatively recent but large-scale expansion of investment into foreign, especially developing. countries by China. This expansion (if not controlled and sustainably managed) has implications, potentially negative, both for the conservation of forest biodiversity and for the reputation of the enterprises responsible for negative consequences. The rise of the concept of corporate social responsibility is considered. Suggestions are made as to how such investment initiatives might be sustainably managed through requirements that environmental consideration be made a compulsory part of the investment process – and through the strengthening of corporate social responsibility and corporate accountability, and the adoption of socially (and environmentally) responsible business practices. It is concluded that the emergence of multinationals as a political force, the advent of the new international economic order, and growing concerns about the environment and biodiversity currently provide international law with an opportunity to evolve to suit global needs. Finally, it is suggested that, as an important partner and stakeholder in global environmental governance, China could be a central force in adopting resolutions and establishing codes of conduct.
The Role of Law
Nicholas A. Robinson
The issue raised in this chapter is that of the danger to, and the need for protection of, peat. The chapter considers the vexed issue of preserving the Earth’s peat reserves, which, it is argued, are central to any successful global efforts to cap the rise in Earth’s temperatures to 2 degrees Celsius. The nature and importance of and threats posed to peat stocks are then outlined, highlighting that there are available alternatives for virtually every use of peat, that there is no way effectively to use peat ‘sustainably’, and that remaining peat should accordingly be preserved in parks or other protected areas, and left intact underground, wherever it is already buried or will be covered with coastal waters as sea levels rise. The chapter then proceeds to survey the historic role of law in preserving peat, concluding that environmental law still largely ignores peat. This leads to the conclusion that there is a compelling argument for environmental policy-makers to take a fresh look at peat and forge workable legal frameworks to preserve it. With a view to providing necessary future guidance to policy-makers in this regard, the chapter traverses the international legal frameworks of relevance to peat, distils key legal principles underlining any future legal framework governing peat, and finally, through a case study of Indonesia, distils a set of elements that should be considered in drafting new peat legislation, whether by local, national or regional authorities. The experiences of numerous countries are considered, with some intensive case studies being offered. Issues of financing and international cooperation are considered before suggestions are made as to how appropriate national legislation might be framed.
Carina Costa de Oliveira and Sandrine Maljean-Dubois
‘Global public goods’, ‘common heritage’ and the ‘global commons’ are concepts used to describe elements of the political and legal regime concerning marine resources. In this chapter it is explained, however, that these concepts are limited when it comes to determining the obligations of states and of international organizations regarding marine resources conservation. The question of whether a duty of cooperation to protect the marine environment exists or not is considered; and limitations on the different concepts are discussed. It is then averred that – even if the intrinsic purpose of the concepts discussed can be questioned – these concepts currently dominate the debate on marine resources. Their existence, whether scientifically useful or not, can therefore not be denied or ignored. It is argued that, to understand what they can concretely offer to the legal discussions on marine resources, these concepts must be articulated with the more precise legal obligations such as the ‘obligation to cooperate’ and the ‘duty of due diligence’, as applied to marine resources. Accordingly, this chapter concludes by considering how these concepts could be combined and related to more concrete obligations in order to be made more effective.
The Role of Law
Amber Prasad Pant
The chapter analyses recent policies and legal frameworks dealing with climate change and sustainable forest management in Nepal and draws the conclusion that climate change is increasing, and having serious impacts, at all of the global, regional and national levels. The health and vitality of forest ecosystems are adversely affected by climatic as well as land use changes. The role of forest management, and the legal control thereof, in adapting to and mitigating the impact of climate change has become a global concern. Nepal has a climate change policy and has taken various legislative steps. The various national legislative and policy instruments relevant to climate change in Nepal are canvassed; and then Nepal’s position within various international fora is considered. While Nepal’s own greenhouse gas emissions are negligible, the country faces significant problems with the effects on its forests from emissions from developed countries and its large neighbours China and India. Finally, suggestions are made as to future reform.