MARINE BIODIVERSITY CONSERVATION: THE INTERNATIONAL LEGAL FRAMEWORK AND CHALLENGES.

• Author: Qureshi, Waseem Ahmad

ABSTRACT

The conservation of marine biological diversity and ecosystems is a major current global issue. Marine biological diversity is threatened by sea pollution, overfishing, deep-sea mining, oil exploratory activities, bottom trawling, and other human activities in marine areas. The protection of marine biological diversity is essential for maintaining balance in the natural food chains and ecosystems of Earth, and this can be achieved through sustainable management of marine resources and by preventing pollution, overfishing, and harmful exploitation of sea resources. In this regard, the law of the sea has provided rules and regulations for preventing harmful effects on marine biological diversity caused by human operations in the marine environment. The U.N. Convention on the Law of the Sea (UNCLOS) and the Fish Stocks Agreement have applied general obligations on coastal states not to cause pollution and other harm to marine life and resources and the marine environment. The UNCLOS and the RFMO/As also provide protective measures for marine areas beyond national jurisdictions. Furthermore, there are several other international, regional, and United Nations conventions for setting out policies, goals, and strategies for the sustainable use and protection of marine biological diversity and ecosystems. The CMS Convention, CITES, the SOLAS Convention, the London Convention, and the Convention on Biological Diversity are prominent international conventions with a core focus on preserving biological diversity and the environment in international seas. In addition, there are several other regional agreements and conventions, including the Barcelona Convention, the OSPAR Convention, and the Noumea Convention, that provide regulations for controlling marine pollution and regulating human activities in regional seas for marine environmental and biodiversity protection. In addition, several international organizations including the U.N. General Assembly, the Food and Agriculture Organization, the World Wildlife Fund, the International Maritime Organization, and several others are working to preserve marine biological diversity and ecosystems within their respective regional and global spheres. International humanitarian law, treaty law (comprising different agreements and conventions, e.g., the Geneva Conventions Additional Protocol I and the Hague Convention) and the UNCLOS define protective instruments and principles for the conservation of marine environment during armed conflicts. The United States has also made efforts to extend protection for biological diversity in its marine areas and in the high seas. However, there are still a lot of gaps and challenges in the implementation of such protective measures and principles in marine areas in regional as well as in the high seas.

Keywords: Marine biodiversity, Deep-sea mining, Marine environment, Regional fisheries management organizations and arrangements (RFMO/As).

1. INTRODUCTION II. WHAT IS BIODIVERSITY? A. Definition B. Threats to Biodiversity 1. Harmful Fishing Practices 2. Overfishing 3. Pollution 4. Deep-Sea Mining III. THE LAW OF THE SEA AND THE CONSERVATION OF MARINE BIODIVERSITY IN AREAS WITHIN STATES' JURISDICTION A. UNCLOS (U.N. Convention on the Law of the Sea). 1. Pollution in the Marine Environment 2. Shipping 3. Overfishing 4. Dumping at Sea 5. Deep-Sea Mining B. U.N. Fish Stocks Agreement IV AUXILIARY SUPPORT IN INTERNATIONAL LAW FOR MARINE BIODIVERSITY CONSERVATION A. International Conventions for Protection of Biodiversity 1. CMS Convention 2. CITES 3. Convention on Biological Diversity 4. London Convention 5. SOLAS Convention B. Regional Conventions and Agreements for Marine Biodiversity Conservation 1. Barcelona Convention 2. OSPAR Convention 3. Noumea Convention C. Global Organizations Working for Marine Biodiversity Conservation 1. United Nations General Assembly 2. International Maritime Organization 3. WWF 4. FAO 5. Other International Bodies V. THE LAW OF THE SEA & BIODIVERSITY PRESERVATION IN AREAS BEYOND NATIONAL JURISDICTION A. UNCLOS 1. Freedom of the Area 2. Environment Impact Assessment 3. Infrastructure Development in ABNJ 4. Sustainable Use 5. BBNJ WG 6. Binding Instrument B. Fisheries Management in Areas Beyond National Jurisdiction 1. RFMO/As 2. Ecosystem Approach to Fisheries C. Nonbinding Instruments VI. ARMED CONFLICTS AND BIODIVERSITY CONSERVATION A. Wars and Their Impacts on Environmental Biodiversity B. Efforts for the Protection of Environmental Biological Diversity in Wars 1. UNEP and ELI 2. International Humanitarian Law a. Law of Armed Conflict: Fundamental Principles of IHL for Environmental Protection in Wars i. The Principle of Distinction ii. The Principle of Humanity iii. The Principle of Military Necessity iv. The Principle of Proportionality 3. Treaty Law 4. The Law of the Sea VII. REGULATORY GAPS AND CHALLENGES A. Absence of Monitoring of Marine Areas beyond National Jurisdiction B. Marine Protected Areas C. Coordination Gap D. Regulatory Gaps in Wars E. Gaps Related to International Humanitarian Law VIII. THE UNITED STATES AND MARINE BIODIVERSITY CONSERVATION A. Prominent Laws Related to Marine Environmental Biodiversity Conservation 1. Marine Mammal Protection Act 1972 2. Endangered Species Act 1973 3. Magnuson-Stevens Fishery Conservation and Management Act 1976 4. Marine Protection, Research, and Sanctuaries Act 1972 5. National Environmental Policy Act 1969 6. Nuclear Waste Policy Act 1982 7. Oil Pollution Act 1990 8. Pollution Prevention Act 1990 9. Shore Protection Act 1988 B. Prominent Organizations Working for Marine Biodiversity Protection C. United States Coordination with International Agencies for Biodiversity Protection IX. CONCLUSION I. INTRODUCTION

   "Biodiversity," or "biological diversity," is defined as the occurrence of variety in species of animals, plants, and microorganisms, as well as in their genes and habitats in the marine, freshwater, and terrestrial ecosystems. (1) Biodiversity enhances the well-being of an ecosystem by maintaining its natural lifecycle, making it essential to an ecosystem's sustainability and development. (2) For instance, biodiversity regulates the oxygen and carbon dioxide balance, (3) maintains the presence of beneficial nutrients and chemicals in soil, (4) improves the fertility of land through decomposition processes instigated by a variety of microorganisms, and regulates several other natural processes on Earth. (5)

   However, natural biodiversity is currently threatened by a number of factors. (6) In particular, marine biological diversity is facing threats from certain human activities, for instance: the dumping of waste materials and hazardous industrial chemicals into the seas and other aquatic environments, overfishing, oil spills, and deep-sea mining. (7) The large-scale continuation of these activities is harmful to marine species and their habitats. (8) Therefore, particular attention must be given globally as well as regionally for the preservation of biological diversity.

   The first section of this paper will explain the term "biodiversity" and will go on to explain the potential threats to marine biodiversity. The second section sets out the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and the Fish Stocks Agreement regarding the conservation of marine biological diversity. The third section will include a discussion of the contributions made by international law in establishing international conventions and agreements for formulating rules and regulations related to the conservation of marine biological diversity and the protection of the marine environment. The functions and roles of the prominent international organizations working toward realizing this goal are also addressed. The fourth section includes an elaboration of the recommendations provided by the UNCLOS and regional fisheries management organizations and arrangements (RFMO/As) for the protection of marine areas beyond national jurisdiction.

   The fifth section of this paper addresses issues with protecting the environment and biological diversity during armed conflicts. In particular, it sets out the principles of international law, including international humanitarian law, treaty law, and the law of the sea, which provides guidelines to belligerents to ensure the environment and biological diversity are protected in areas within and beyond their jurisdiction. The sixth section includes an explanation of the gaps and challenges that are present in the implementation of the suggested guidelines for the protection of the marine environment and biological diversity in the regional as well as in areas beyond national jurisdiction. The seventh section includes a description of the efforts made by the United States in ensuring protection of the marine environment and biological diversity in its seas as well as beyond its national jurisdiction. At the end of this paper, inferences are drawn and presented with fair analysis.

2. WHAT IS BIODIVERSITY?

   1. Definition

      The Convention on Biological Diversity (CBD) defines "biodiversity" as:

      [T]he variability among living organisms from all sources including, inter alia, marine and other aquatic ecosystem and the ecological complexes of which they are part: this includes the diversity within species, between species and of ecosystems. (9) This variety includes all types of living beings, whether in the animal, microorganism, or plant kingdoms. (10) Variety defines the differences and relationships of species in the natural ecosystem. This variety or biodiversity, has a key position and importance in the sustenance and preservation of natural lifecycles on Earth. (11)

   2. Threats to Biodiversity

      Despite endeavors by the international community for the preservation of natural habitats and biodiversity, there are countless threats to marine and land-based biodiversity. (12) Some of the prominent threats to marine...