Authors: Prakash Sharma and Partha Pratim Mitra*
The rampant consumption of Earth for its resources has caused massive alterations to its responsive ecosystem. Humans desires have separated themselves from the mutual well-being of the other living and non-living entities of the planet. Human needs following various generations of industrial revolution has only resulted in accumulation of piles and piles of waste and pollution. The inefficient development model has invaded the ecological habitats of “others”.
Every year June 08 is celebrated as World Ocean Day. During the 1992 Earth’s submit, Canada proposed the concept of a World Ocean Day. Since then, there have been remarkable measures adopted to this project of Ocean protection. The focus of this year’s Ocean Day celebration centers around the spirit of “together we can”. humanity finds itself confronting with many issues including COVID-19 pandemic, climate change and poisoned plastic. The rise of contagious diseases like COVID-19, SARS, MERS, Zika virus, Ebola etc. are all result of self-consuming model. Perhaps, it reveals the manner in which development has only resulted in manipulating animals and plants, with no integrity or care for their health. In fact, the response during pandemic is no different. For plastic industry, pandemic is seen as an advantage to push suspensions or rollbacks of hard-won environmental measures of reducing plastic pollution. The argument is to follow caution and ensure that the pandemic does not results in epidemic. It in these lines the present writeup outlines various legal instruments entered amongst nation-states; and thereby argues for re-evaluating existing human practices to ensure crucial changes to the health and sustenance of marine ecosystem.
Early Initiative: Convention on Fishing and Conservation of Living Resources of the High Seas, 1958
The Convention of Fishing and Conservation of Living Resources of the High Seas, 1958 is an agreement that was designed to solve through international cooperation the problems involved in the conservation of high seas, considering that because of the development of modern technology some of these resources are in danger of being overexploited. The Convention took place at Geneva on April 29, 1958 under the auspices of United Nations forproblems involved in the conservation of the living resources of the high seas due to development of modern techniques for the exploitation of the living resources of the sea and man’s ability to meet the need of the world’s expanding population for food which has exposed some of these resources to the danger of being over-exploited. The original convention consisting 22 Articles mainly restricting fishing activities of member countries within their territorial seas. It entered into force on 20 March 1966 and at present there are 38 signatories to the convention.
Conventions for Prevention of Marine Pollution during 1970s
The legal framework was also structured to control the marine pollution and conserve the wildlife in marine ecosystem during the period of 1970s. The marine pollution awareness generated after the industrial development in the western countries and mainly after the disasters of Torrey Canyon, a Liberian oil vessel, caused huge damage in marine life of British coasts in 1967, and Santa Barbara near California suffered a huge ecological loss after a blow out of an oil well in 1969. People realized the necessity of strict provision to control oil pollution to protect the marine life and Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircrafts, 1974(Oslo Convention)was introduced to cope with marine pollution in international level. It modified previous Convention for Prevention of the Pollution of the Sea by Oil, 1954and subsequent international efforts were often triggered by major oil spills such as the accidents involving the Torrey Canyon in 1967, the Amoco Cadiz in 1978, the Exxon Valdez in 1989 and the Prestige in 2002.
The Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, was originally signed in 1974,for the protection of the Baltic Sea from all sources of pollution from land, air and sea and also to take measures on conserving habitats and biological diversity and for the sustainable use of marine resources. The original Convention was signed by Denmark, Finland, the German Democratic Republic, the Federal Republic of Germany, Poland, Sweden and the Union of Soviet Socialist Republics, and subsequently was updated in 1992 by Estonia, the European Union, Germany, Latvia, Lithuania, Poland, Russia and Sweden.
Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution, 1976and came into force in 1978, was the legal framework implemented through the Mediterranean Action Plan (MAP), which aims to protect the Mediterranean Sea basin. Three additional legal instruments i.e. Protocol on pollution from land-based sources, 1980, Protocol concerning Specifically Protected Areas, 1982 and Offshore Protocol, 1994 were adopted by this convention. The contracting parties to the Barcelona Convention included measures to prevent the deterioration of the Mediterranean coast in 1995 and now it is known as Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean came into force on July 9, 2004.
Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 1979 (CMS) assumes relevance in the context of marine migratory species and its Tenth Meeting of the Conference of the Parties, adopted about “marine debris” on 2011 Bergen, Norway. Here, marine debris negatively impacts substantial numbers of migratory marine wildlife, including many species of birds, turtles, sharks and marine mammals that are threatened with extinction;
Major pollution accidents in the recent past have created another exception to the exclusiveness of flag State jurisdiction on the high seas, in favour of States whose coastline is threatened with serious pollution damage from a foreign shipping casualty. This right gained rapid recognition after the British action against the American tanker, the Torrey Canyon in 1967 which led to the adoption of the International Convention on Intervention on the High Seas, 1969 in case of Oil Pollution Damage, and ultimately found entry into theLaw of the Sea Convention, 1982 (UNCLOS).
The ship borne wastes generated during normal operation are regulated bytheOslo Convention. But this Convention is not globally applicable and is limited essentially to the North-East Atlantic area. The banned dumping wastes cannot be regulated by the Basel Convention for Transboundary movement of Hazardous Wastes, 1989. In this regard, the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters, 1972 (London Convention), is an important international instrument for protection of marine resources and marine biodiversity against the disposal of wastes into the seas.
In 1983, Pacific Island nations proposed an immediate ban on the dumping of nuclear waste into the sea. They made their proposal before the authority established under the London Convention for regulating the sea pollution caused by dumping. The London Convention is a global Convention and is wider than the Oslo Convention. After the 1996 London Protocol, the dumping of all wastes are prohibited and it completely prohibits incineration at sea and the dumping of industrial wastes.
UN Convention on the Law of Sea, 1982
The UNCLOS is the foundation for the modern law relating to international fisheries.It conferred on the nationals of all states the right to engage in fishing on the high seas but this right is subject to their treaty obligations and the rights and duties as well as the interests of the coastal states. All states have the duty to take or to cooperate with other states in taking measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.
The UNCLOS specifically addresses some categories like highly migratory species, namely tuna, marlin, sailfish, swordfish, dolphin, shark and cetacea listed in Annex I. Then marine mammal’s category includes 12 species including great whales which were previously hunted near extinction, as well as small cetaceans, dolphins, porpoises, seals, dugongs and marine otters. Next categories, Anadromous species which are spawned in freshwater rivers but spend the major part of their lives at sea passing through territorial sea, Exclusive Economic Zone and High Seas and Catadromous species are spawned at sea and send major part of their lives in rivers and lakes.
In particular, the UNCLOS attributes jurisdiction over conservation and use of marine living resources within the various marine zones, and also sets forth certain basic conservation principles applicable therein, within the territorial sea, states have traditionally enjoyed exclusive rights to fisheries as part of the exercise of sovereignty there. In Section 2 of Part IX (Articles 116 to 120) deals with the provisions relating to ‘Management and Conservation of Living Resources of the High Seas’ and Part XII (Articles 192 to 237) totally deal with ‘Protection and Preservation of the Marine Environment’ including Enforcement, Safeguard and International rules to prevent and control marine environment pollution.
Initiatives during 1990’s and onwards
In a ministerial meeting in September 1992, representatives of Oslo Convention and Paris Convention on the Prevention of Marine Pollution from Land-based Sources, 1974 adopted a new Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 also known as OSPAR Convention.
Likewise, the Washington Declaration on Protection of the Marine Environment from Land-based Activities held on November 1995 for affirming the need and will to protect and preserve the marine environment for present and future generations and also reaffirming the relevant provisions of Agenda 21 and the Rio Declaration on Environment and Development, 1992. This process included among others a week-long meeting of government designated experts, focusing on the Montreal Guidelines for the Protection of the Marine Environment from Land-Based Sources of Pollution, 1985.
Recently, International Maritime Organization amended the Annexure V of International Convention for the Prevention of Pollution from Ships (MARPOL) dealing with “Prevention of Pollution by Garbage from Ships” which will prohibit the discharge of all garbage from ships into the sea from January 1, 2013.In March 2019, The United Nations Environment Programme (UNEP) adopted Protection of the Marine Environment from Land-Based Activities, Nairobi for retaining the high quality of the coastal and marine environment for ecosystem functions and services in support of the 2030 Agenda for Sustainable Development Goals to conserve and sustainably use oceans, seas, and marine resources. It has the plan to implement Bali Declaration, 2018 and Manila Declaration, 2012 for the Protection of the Marine Environment from Land-based Activities which identified nutrient, wastewater and marine litter as priority source categories of marine pollution.
Indian Position on Prevention of Marine Pollution
There is no specific regional convention for South Asian Seas among India, Bangladesh, Pakistan, Sri Lanka, Maldives. The UNCLOS is the only primary legal instrument for guidance. But India ratified various marine safety conventions and has amended the Merchant Shipping Act, 1958 several times to develop and maintain Indian shipping law in the line of international mercantile marine law and Part XB deals with ‘Civil liability for oil pollution damage’.The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 under section 15(2)(e) has vested the power to the Central Government to make rules preservation and protection of the marine environment and prevention and control of marine pollution for the purposes of this Act.The Coastal Regulation Zone Notification, 2018 has also provision for prevention of coastal pollution.
Marine Pollution: Concerns for our Oceans
The United Nation estimates that 13 million tons of plastic are dumped in the sea each year and that half of the plastic produced globally is for single-use items. According to a WWF Report, “if just 1% of the masks were disposed of incorrectly and dispersed in nature, this would result in as many as 10 million mask per month polluting the environment.” The Report further stipulates that “considering that the weight of each mask is about 4 grams, this would result in the dispersion of more than 40 thousand kilograms of plastic in nature.”
Does it mean the biodegradable plastic would act as the better solution? Many suggests that more than plastic solutions, there is a greater need for all waste to be disposed of properly. It is argued that the exposure of biodegradable plastic to different environments showed that “some items disappeared quickly, while you could still shop in some of these bags after four years in the sea. By the time they get to the sea, it’s too late.”
Ocean for time immemorial is the source of human prosperity and development through navigation, research, fishing and many others. Protection of oceanic resources and marine ecosystems are very necessary for human’s own survival. As the world is engulfed with unmindful response to COVID-19 pandemic, one could fairly assume that there will be ‘still talks’ and ‘no response’. Earths capacity to support human desires are limited and the talks of nature’s response are somewhat misdirected. For instance, for all the development in science and awareness formed against use of plastic, the COVID-19 pandemic experience only puts us back to square one. It yet again proved that we depend on plastic. Can world afford to move backwards? Present times have conveyed us that there is a greater need for collective efforts in order to bring sustainable alternatives. Yes, ‘together we can’, but, if we are serious and want to take thoughtful actions ‘it is now’!
*The author has written three books on environmental laws.
A Healthy Environment is Now a Universal Human Right: But What Does the Recognition Mean?
On July 28, 2022, the United Nations General Assembly (UNGA) adopted a resolution that “recognizes the right to a clean, healthy and sustainable environment as a human right” and emphasizes its connection with “other rights and existing international law”. The resolution also calls upon “states, international organizations, business enterprises and other relevant stakeholders” to “scale up efforts” to pursue this new human right.
The resolution is based on a similar text adopted in October of last year by the UN Human Rights Council (UNHRC), a group of 47 UN member states, which equally called upon states, international organizations, and business enterprises to scale up efforts to ensure a healthy environment for all. The recent UNGA resolution has been praised as a “landslide vote”, as “historic”, and as a “victory for the environment”. Yet, UNGA resolutions, even though they become part and parcel of international law, are not legally binding for any member states – a typical UN paradox.
Humanity faces a “wicked” crisis
UN Secretary-General António Guterres welcomed the UNGA decision as a milestone in the “collective fight” against what he called “the triple planetary crisis of climate change, biodiversity loss, and pollution”. However, while this statement was well-intentioned, it may not entirely reflect the true nature and extent of the “wicked” crisis humanity finds itself in just two decades into the 21st century.
Firstly, even the term “quintuple crisis” would not do justice to the perfect storm of planetary disturbances and destruction that 200 years of intense extractive capitalism and 50 years of largely unregulated economic globalization have brought to Earth and mankind. In addition to the three crises mentioned by Guterres, the oceans, freshwater resources, soils, and land cover are all under attack, and pandemics, food, and energy crises are on the rise.
Secondly, if there really was a “collective fight” against this perfect storm, we would notice it and, among other things, see a tangible decline in annual carbon emissions, biodiversity loss rates, or amounts of plastic found in the oceans. But rather, we are yet to see measurable improvement in any of the many alarming trends and trajectories of global environmental pollution and destruction – because most nations still do not fight against these trends. They do too little too late, or nothing at all, or prefer lip service and downright disinformation over real action.
The elevation of environmental health and sustainability to the international legal status of a “universal human right” by many of Earth’s worst polluters also raises the question of how well human rights are actually being respected, observed, and implemented these days and what is being done to sanction trespassers. The UN adopted the Universal Declaration of Human Rights in response to World War II and the Holocaust in 1948. The entire set of UN human rights has never been legally binding and so depended on national governments and courts at various levels to litigate and sanction human rights violations.
The exercise of universal rights is in crisis, too
In recent decades, the list of human rights has been expanded, now including the rights of children, indigenous peoples, and persons with disabilities among others. In 2010, access to clean water also became a universal human right. But does the codification of these “rights” by the UN actually guarantee real and measurable freedoms, dignity, and safety for all? Unfortunately not, as the list of obvious violations of the UN Declaration of Human Rights and the International Bill of Rights by countries that have signed and ratified these treaties is shockingly long.
Too often, individuals are detained and prosecuted for exercising free speech, free expression, or even academic freedom. Recently, the UN High Commissioner for Human Rights formally stated that China’s treatment of the Uighur minority may constitute a “crime against humanity”. Similar statements were made after the recent coup in Myanmar. And Russia’s brutal illegal war against Ukraine is in gross violation of a whole set of human rights. Sadly, all too often despots and perpetrators are getting away with their violations and crimes despite international human rights law and its institutions.
So, does the mere existence of a new universal human right on environmental health and sustainability mean that all countries that voted for it in the UN, actually respect, ensure, and defend it? Likely, no. In a way, this latest resolution of the UNGA might rather be more cause for concern than relief. Too often in recent years and decades has the UN system been misused by its own members as a talk shop deluxe, a place of hollow announcements and declarations – usually after lengthy and tough negotiations – with little action or measurable progress on the promises made. For example, seven years after the adoption of the much-revered Paris Agreement, greenhouse gas emissions are still on the rise and the 2022 UN conference for the protection of the oceans ended without a decision. Governments and corporations spend huge amounts of money for PR campaigns and lobbying – only to cover up their inaction.
Global crises need a new type of action
The science is clear that the world is fast running out of time to act on climate change. There is literally no time left for more of the same endless conference cycles, hollow statements, and watered-down compromise declarations, and symbolic “rights” that are not enforced with hard sanctions. This is the time for civil society to stand up where governments fail to act responsibly, and businesses keep profiting from extraction and pollution. We need a worldwide movement, a global alliance of “citizens of Earth” leading to a new social contract on planetary boundaries, limits to growth, and respect for nature and other species, to transform the age of extraction into a new age of renewable, sustainable stewardship. It is unclear whether the UN is still an effective venue for the much necessary action in the face of environmental crises since, despite the move to engage nine “Major Groups” in processes related to sustainable development, it remains a closed club of nation-state governments, a majority of whom are not elected by their people. Rather, in the age of #MeToo, #BlackLivesMatter, or #FreePalestine, global social movements show that real change is possible.
The Ravages Of Earth: Natural And Man-Made
Italy has suffered a terrible drought, and its longest river, the Po, ran dry. It is about 400 miles in length and flows east from the Cottian Alps. Not in anyone’s living memory has it been that parched in the region.
It never rains but it pours they say, and it describes Italy’s weather perfectly for when the drought finally broke, the storms were so fierce as to result in massive flooding.
Several thousand miles east, past Greece, past Turkey, Iraq, Iran and Afghanistan lies Pakistan, a nation of over 200 million, which is now also devastated by heavy rain and floods. President Biden has called for a $2.9 billion international aid package for a country a third under water to revive itself; also for people, who lost everything when their homes and crops were washed away, to be restored to some kind of normalcy.
As often happens with flooding, water-borne diseases follow and in Pakistan they include malaria that is deadly for young children.
The ravages of the planet do not end there for in the Antarctic, a large chunk of what is sometimes referred to as the doomsday glacier, has sheared off and fallen into the sea. One can guess the name implies a catastrophe, that is if all of it melted, it would raise sea levels enough to cause chaos on earth.
Then there are man-made ravages and foremost among them is war. Ukraine’s President Volodymyr Zelenskyy has made another fiery speech. Recorded earlier in Ukraine, it was replayed at the UN where the new session is underway. He claims victories and seizure of some 5000 square miles of territory. Despite his tendency to exaggerate, it is clear Russia has suffered a setback. Putin has ordered a mobilization — the first since the Second World War — and has called up reserves and army retirees. He says he needs more troops to man the now 600 mile front line. So far he has avoided inexperienced general conscripts who are known to suffer higher casualties.
It’s pointless to go back in detail to the early days of an independent Ukraine, of the coup organized by the U.S. against an elected president, of the famous “F— the EU” remark by Victoria Nuland, who was running the show and could not obtain EU support, and of the off-again-on-again civil war that ensued and continues. But the result has been tens of thousands of refugees and internally displaced persons, thousands dead and no peace in sight.
What Zelenskyy has been crowing about seems pretty small potatoes in comparison. And how Biden can talk about freedom for Ukraine is the sort of hypocrisy only politicians can muster. Remember Boris Johnson, the British PM, flying to Ukraine to meet Zelenskyy and express the UK’s solidarity with the Ukrainian people. Boris was in trouble back home and looking for favorable headlines. The ploy didn’t work. He is now out.
In a couple of months, the US will be having a midterm election. It is not unusual for the opposition to do well in such an election, but given the razor thin majority a couple of seats lost by the Democrats could flip the senate. That would place Biden’s aid package for Ukraine in jeopardy for the armaments have to be contracted, built and shipped.
Mr. Zelenskyy appears to be a high-wire act without a safety net. And most unfortunately, our climate ravaged earth is not equipped with one.
Forests for Climate: Scaling up Forest Conservation to Reach Net Zero
The role of forests in the global carbon cycle is fundamental. Unless tropical deforestation is halted, there can be no solution to the climate crisis.
While deforestation is responsible for nearly 15% of global CO₂ emissions, conserving existing forests offers as much as nine times more low-cost carbon abatement as planting new trees. If we do not halt deforestation by 2030 at the latest, it will not be possible to limit global warming to a 1.5°C pathway. In a new report, Forests for Climate: Scaling up Forest Conservation to Reach Net Zero, published today by the World Economic Forum, the case is made for private-sector investment in entire landscape approaches to protect forests.
“There is no tackling climate change without forests. Deforestation alone is responsible for nearly 15% of global CO₂ emissions. Conversely, nature-based solutions can provide one-third of the mitigation needed to limit global warming to 1.5°C,” says Nicole Schwab, Co-Director, Nature-based Solutions, World Economic Forum.
Reversing global deforestation is a complex challenge – but at its heart lie four simple conditions: scale, funding, integrity and inclusion. The report analyses an approach known as “jurisdictional REDD+” that channels results-based payments to forest governments and communities that avoid deforestation across entire landscapes. This approach builds on an existing UN initiative (“Reducing Emissions from Deforestation and forest Degradation” or “REDD”) but scales it up from a project basis to programmes at national or sub-national scales.
Inclusion is a critical part of this new approach. For example, almost half of the intact forests in the Amazon are in Indigenous territories – and deforestation rates in these areas are three-to-four times lower than in equivalent lands not held by Indigenous people. The inclusion of both local communities and state governments or jurisdictions enhances the integrity of the programmes and helps avoid some of the risks associated with earlier attempts to reverse deforestation.
While “jurisdictional REDD+” addresses issues of scale, integrity and inclusion, the vital missing piece is funding. Current investments in nature-based solutions amount to $133 billion per year, of which the private sector contributes just $18 billion, according to estimates published in 2021 by the UN Environment Programme. Nature-based solutions, which include forest conservation and restoration, can deliver one-third of the mitigation needed to keep the planet on a 1.5°C trajectory, but funding for these solutions needs to triple to $400 billion by 2030.
The private sector has a key role to play in preserving the world’s forests while ridding their own supply chains of deforestation. Companies can access “jurisdictional REDD+” programmes through voluntary carbon market initiatives such as the LEAF Coalition that uses the rigorous new “ART TREES” standard for monitoring, reporting and verification. In 2021, the LEAF Coalition mobilized $1 billion in financing, kicking off the largest-ever public-private effort to protect tropical forests in countries such as Costa Rica, Ecuador, Ghana, Nepal and Viet Nam. To maintain the integrity of its carbon credits, the LEAF Coalition requires participating companies to use purchased credits in addition to, and not as a substitute for, deep cuts in their own emissions and those of their suppliers.
“The urgent priority is protecting tropical forests, even above planting new trees (which is also important), because the world loses tropical forests at the rate of 10 million hectares per year – equivalent to about one Central Park every 15 minutes. We need billions of dollars of investment in climate finance to protect the world’s forests. We are working on initiatives like the LEAF Coalition and Green Gigaton Challenge as we believe jurisdictional-scale action is the way to do this,” says Eron Bloomgarden, Founder and Chief Executive Officer of Emergent, a non-profit intermediary acting between tropical forest countries and the private sector.
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