The oceans of the world are bearing much of the brunt of mankind’s hunt for resources and burning of fossil fuels. The damage being inflicted on the Oceans is out of sight and out of mind for most people, but when it is looked for, the evidence of environmental damage and our collective failure to address a myriad of serious problems is stark and overwhelming.
The topic of the State of the Oceans formed the first debate in the second series of Castle Debates which took place in London on November 1st 2011. These debates are organised by Pamela Castle and Sykes Environmental LLP with support from the Law Society and the ENDS Journal.
The event was chaired by Pamela Castle and the speakers were: Sir Crispin Tickell (diplomat and environmentalist), Kate Harrison of Harrison Grant Solicitors, and David Baldock of the Institute for European Environmental policy. For information about the Debates and booking details for upcoming debates, please go to:www.lawsociety.org.uk/events
The topics considered in the Debate were as follows:
1) Global warming
This phenomenon is set to wreak havoc in the coming decades on land and at sea.
The ecosystems of the Arctic and Antartic will suffer the greatest impact because that is where the warming will be greatest.
As sea levels rise there will be serious consequences for hundreds of millions of people living in coastal communities and cities, from Shanghai to Amsterdam and London. See – ‘Global Warming Confirmed by Independent Study’: http://www.bbc.co.uk/news/science-environment-15373071
2) Mining
The search for minerals and metals under the seabed in places like the Southern Indian Ocean looks set to grow in the future.
These deep-water activities carry the potential for serious marine pollution and international attrition as countries compete for scarce resources off their shores. See ‘The unplumbed riches of the deep’http://www.economist.com/node/13649273
3) Oil and Gas
Oil and gas exploration, production and transportation carry their own environmental and health and safety risks. These risks have been etched into most people’s awareness from a lengthy roll call of incidents including the Amoco Cadiz, Brent Spa, Exxon Valdez, Piper Alpha, Sea Empress, Torrey Canyon and, more recently, the oil spills in the Niger Delta at Ogoniland (estimated at twice the size of the Deepwater Horizon spill).
In addition, as with any industry, oil and gas creates an environmental legacy – including redundant infrastructure. Thousands of old, near derelict, oil rigs and platforms require decommissioning around the world.
More locally, the oil rich waters to the west of the Shetland Islands could represent up to 17% of the UK’s remaining oil and gas reserves. This area is attracting interest and activity from oil majors.
Ecosystems in sensitive, oil-rich locations merit, but do not always receive, a high level of environmental protection.
That said, oil majors are aware that environmental incidents can bring a heavy cost in terms of lives, ecosystems, share prices and market capitalisation, corporate reputation and the careers of senior executives.
4) Fishing
Some forms of fishing – particularly dragnet and trawl fishing – can inflict extensive damage as nets are hauled along the sea floor.
Over-fishing is rife. Cod supplies off Newfoundland, for instance, have been fished almost to extinction. Only 0.3% of the natural level of supply remains in this area. See: ‘Fully Protected Marine Reserves: A Guide’ by Professor Callum Roberts (2003).
This pattern is widespread and worsening as a hungry global population now exceeds 7 billion, having grown by 1 billion in the last 12 years.
Pollution from ships – especially from plastics – is another increasing worry. Great garbage patches are located in the Atlantic and Pacific Oceans, comprising thousands if not several million square miles of marine debris and plastic particles suspended below the surface of the sea, blocking sunlight and impacting the marine ecosystem.
5) Other threats to our oceans include:
• Acidification – carbonic acid is being created in the oceans from the dissolution of man–made carbon dioxide due to the burning fossil fuels. The acidity of the seas has reduced from a PH of 8.2 to 8.1 over the past 250 years. A 2009 report concluded that the increase in ocean acidification is “100 times faster than any change in acidity experienced in the marine environment over the last 20 million years, giving little time for evolutionary adaptation within biological systems.” See:http://www.unep.org/climatechange/News/PressRelease/tabid/416/language/en-US/Default.aspx?DocumentId=606&ArticleId=6417
• Nutrification – discharges of nutrients from activities such as agriculture stimulate algae blooms in the oceans. These blooms block out the sunlight, damage coral reefs and compete with other forms of sea flora.
The plethora of these and other environmental challenges in our oceans is far from adequately addressed by current treaties, regulations and agreements.
The United Nations Convention on the Law of the Sea (UNCLOS) is the principal international agreement setting out the rights and responsibilities of countries in respect of their use of the world’s oceans and the management and protection of marine resources. UNCLOS was ratified in 1994. It covers, amongst other things, mineral resource exploitation, ownership and safeguarding of the marine environment.
The shortcomings of UNCLOS include:
• Climate Change (Probably?) Not Addressed. It is not at all clear whether the Convention covers the biggest threat of all – climate change. As one critic has observed: “There is little indication from either the text of UNCLOS or historical accounts of the negotiations that climate change per se was on the minds of negotiators at the time the Convention was developed” (reference).
• Proliferation of Administrative Bodies. UNCLOS created four administrative bodies: The Commission, International Seabed Authority, The Assembly and The Council. Some commentators take the view that this is an overly complex structure when added to national and local regulations and regulatory bodies.
• Legal Uncertainty. The Convention gives rise to many uncertainties which reduce its effectiveness. Questions include who can bring a claim for damage to the marine environment due to climate change? To what standard would a Party be held? What remedies would apply – e.g. an order to reduce greenhouse gas emissions, or an award of damages?
• Implementation. UNCLOS relies on national legislation for its provisions to be implemented. If the country in question does not view such legislation as a priority, then implementation breaks down.
It does not help matters that several prominent countries have either not signed it, or have signed but not ratified it. These countries include the United States which regards some aspects of the Treaty, especially the allocation of the rewards from deep sea mining, as running contrary to free market capitalism and hence being politically unacceptable.
It is not all doom and gloom though. There are a few encouraging signs:
• Better regulatory protection. On a national level, England and Wales are leading the way with the creation of Marine Conservation Zone (MCZ) some fresh thinking (see the Marine and Coastal Access Act 2008). These are essentially ‘safe havens’ where marine wildlife can be nurtured and where special marine habitats and geology can be designated. Lundy Island is the UK’s first MCZ, designated in January 2010. See:http://www.defra.gov.uk/environment/marine/protect/mcz/
• Fresh thinking. This is coming from a range of bodies and individuals. Ecocide, for example, is being championed at the UN by British lawyer Polly Higgins. Ecocide, if supported, would be treated as a fifth crime against peace, sitting alongside Genocide, Crimes Against Humanity, Crimes of Aggression and War Crimes. The proposed definition of ecocide is: “The extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.” See:http://www.guardian.co.uk/environment/2010/apr/09/ecocide-crime-genocide-un-environmental-damage
• Specialist Help and Support. The shipping sector, for example, is getting a better understanding as to its environmental impacts due, in part, to the services of specialist maritime environmental consultancies such asRoxburgh Environmental which the writer chairs. Roxburgh is helping shipowners to take their environmental responsibilities seriously, e.g. to decommission their vessels safely and responsibly; to buy and sell vessels with appropriate environmental information.
• Energy. Maritime countries are looking to the sea for cleaner energy whether in the form of tidal barrages, wave turbines or as a location for marine wind turbines. Specialist environmental consultancies such as Sustainable Direction Limited (www.sustainabledirection.com) provide services in this area – e.g. helping businesses to develop large scale marine energy facilities. This is set to be a major industry for the UK in particular over the coming decades, and one which will assist with the de-carbonisation of the economy.
In summary, the State of the Oceans is a cause for deepening concern. The question is what can be done about it? Here are three suggestions:
• UNCLOS looks ripe for review to ensure that the international law framework is up-to-date and addresses the emergence of new and serious environmental threats such as climate change, acidification and nitrification.
• Extractive industries (oil and gas and mining) need to be well regulated. That means having laws which are clear and relatively easy to understand and enforce, and regulators who are well trained and well resourced.
• For the sake of our seas and all who use them, we also need to ensure that there is greater visibility as to the problems that persist – out of sight should no longer equate to out of mind. Public awareness can be a powerful force for the good of the environment – and the seas and oceans clearly need as much help as land and air.
