Protection of Marine Life : Protecting Unattended Biodiversity Destruction And Legal Aspects

Marine life is in need of protection more than ever before. This article takes a comprehensive look at marine life protection laws and other steps taken in the direction of preserving marine biodiversity.

Introduction

Almost 70 percent of the earth is covered with oceans and seas and contains an immense amount of biological diversity. Marine life is an asset which has a huge contribution towards maintaining the environmental ecosystem as well the economic prosperity of a country but in recent years due to waste, dumping, and pollution by scientific means, lack of awareness and consciousness, marine life is in danger, especially because this is a source of income of many people who are engaged in illegal trade.[1]

I. Main Threats to the Marine Environment

Europe is covered with four major seas like the Mediterranean sea, Black sea, Baltic sea, North sea as well as the North Atlantic and Arctic ocean. As a result, almost all EU 25 countries are covered with coastal areas. According to the EU, the current threats to the marine environment are :

Overfishing: This is a common problem in Europe’s coastal area. In spite of applying management policies to protect these resources from exploitation, a number of commercial fish stocks have been lost. This excessive amount of fishing also leads to harm towards other marine life such as seals, seabirds etc.

Alien species: Deliberate entries of non-indigenous species and genetically modified organisms to the marine environment leads to an adverse effect on the natural ecosystem.

Habitat modification: Human activities such as the development of ports and harbours and tourism with a lack of awareness and consciousness towards the destruction of the marine environment are increasing day by day, which also leads to a threat to marine life.

Pollution and Climate Change: Industrial and urban discharges lead to environmental pollution, which also causes climate change. This is another reason behind the destruction of marine life.[2]

II. Status of Some Endangered Marine Species

According to the International Union for the Conservation of Nature in 2006, a red list was prepared which contains 1,500 endangered species. Some of them are:

Groupers: These are found in rocky and coral reefs of tropics and subtropics around the world. It has a high commercial trade value. According to the food and agriculture organisation, almost 250 thousand tonnes of groupers are harvested in Asia. At least 12.4% of groupers are now listed in a threatened category, and the other 14 % are near threatened, and 30 % are data deficient.

Corals: Almost 845 reef-building coral species are the essential habitat for many species. More than 27% among them are listed as threatened, and more than 20 % are near threatened.

Marine turtles: As of 2008, six of seven species of marine turtles were listed in threatened categories. Almost 4,600 sea turtles were killed in US fisheries.[3]

III. The European Marine Strategy

The Ecosystem Approach: According to the Convention on Biological Diversity, the ecosystem approach is a strategy for the integrated management of land, water living resources which promotes conservation and sustainable use in an equitable way. The marine strategy proposal is based on the ecosystem approach and focuses on the integrated management of human activities.

The Marine strategy and the new EU Maritime policy: European Commission published a green paper on 7^th June 2006 with a title “Towards a future Maritime Policy for the Union”, which aimed to fulfill the objects of the Lisbon strategy and integrate many maritime policies like transport, fisheries, aquaculture, marine research, etc.

Natura 2000 and the Marine Strategy: This aims to protect environmental status by identifying measures that need to be implemented by its member states. The Natura 2000 ecological network has been created by EU habitats and birds directives.[4]

IV. Marine Life Protection under International Law

Currently, marine life protection is one of the main concerns throughout the world. Due to industrial and scientific pollution, marine animals are in danger. Not only this, but marine life is also threatened by the overuse of the food industry, medicine, energy, transportation, commerce, etc. Several international conventions have been passed in the last few decades to protect this life.

The Stockholm Conference

This conference took place in Stockholm in the year of 1972 to provide legal attention towards environmental crises by the United Nations. According to Principle 1 of this declaration, all member states should take the responsibility to protect and improve the environment for future generations. It warns against the destruction of natural resources which also includes marine life.

Principle 7 provides the responsibility to all its member states to take necessary steps for the protection of seas and prevent pollution of the seas which may cause the immense loss of human health as well as marine life.

This Stockholm Declaration undoubtedly paved the way towards the 1982 United Nations Convention on the Law of the Sea, which is only concerned about the protection of marine life.

This convention took place in 1958 and is referred to as UNCLOS 1. It codified existing customs into four conventions like the Convention on the territorial sea and the contiguous zone, the convention on the High seas, the convention on fishing and conservation on the living resources of the High seas, and the convention on the continental shelf. Despite being accepted by quite a few states, it has proved to be a big failure.

Two years later in 1960, UNCLOS 2 took place, which also failed to reach the aim regarding the breadth of the territorial sea and resolve the maritime issue.

Then in the year of 1973, UNCLOS 3 took place, where more than 150 countries and specialized agencies took part. It lasted for nine years and gave birth to the United Nations Convention on the Law of the Sea in the year 1982. In the territorial sea, the rights enjoyed by maritime states in the territorial sea of another state is the right of innocent passage. The exclusive economic zone has the sovereign right to explore, conserve, and manage the natural resources.

According to Art 56 and 61 of UNCLOS, it permits the coastal area to make its own conservation laws and other states may not exploit the resources in the exclusive economic zone. High seas also mentioned that the state can pass laws to conserve marine life. All states are equal so they can equally enjoy the same freedoms, as mentioned under the UNCLOS, such as freedom of navigation, fishing, freedom to lay submarine cables and pipelines, freedom of scientific research. However, among all these the freedom of fishing plays a pivotal role in the protection of marine life.

No state has the right to overfishing; they do not have any jurisdiction to make laws concerning sustainable yield and the optimum utilization of High Seas. The Article 116 of UNCLOS states that if any member state is a party to one or more regional fishery treaties with UNCLOS, then high seas fishing must be exercised in accordance with those other obligations of the convention. Thus, UNCLOS has put the responsibility for marine conservation on the coastal state.

Article 194 enumerates that states individually and jointly shall take all the necessary measures consistent with this convention to prevent, reduce and control pollution of the marine environment from any source, using the best practicable means at their disposal and with their capabilities.

According to Art 194 (3), there are four sources of pollution in the sea i.e. release of toxic, harmful and noxious substances, pollution from vessels, and pollution from the installation of any devices which help in the exploration of natural resources of the seabed. Art 194 (5) mandates to take necessary steps to protect and preserve rare and fragile ecosystems.[5]

International Convention for the Prevention of Pollution from Ships (MARPOL)

This convention was adopted on 2^nd November 1973. It is the main International Convention for the prevention of pollution of the marine environment by ships.

Annex 1: Regulations for the Prevention of Pollution by Oil (2^nd October 1983): This annexure protects the marine environment from the pollution by oil spills from ships. It mandates to have double hulls for new tankers. Existing tankers should also fix the double hulls.

Annex 2: Regulations for the Control Of Pollution by Noxious Liquid Substances in Bulk (2^nd October 1983): It mandates the control of pollution by noxious liquid substances carried in bulk. Almost 250 substances were evaluated and included in the list appended to the convention. The discharge of their residues is allowed only to reception facilities until certain concentrations and conditions are complied with. If the discharge of residues does not contain the noxious substances, then it is permitted within 12 miles of the nearest land.

Annex 3: Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form (1^st July 1982): It mandates to issue a detailed standard on packing, marking, labeling, documentation, stowage, quantity limitations, etc. As per this annexure, the term “harmful substance” connotes the substances which are being used for marine pollutants under the International Maritime Dangerous Goods Code or follow Annex 3 of this Convention.

Annex 4: Prevention of Pollution by Sewage from Ships (27^th September 2003): It prohibits the discharge of sewage into the sea and control the pollution, but it excludes the situation when the ship has in operation an approved sewage treatment plant, and that sewage approved system at a distance of more than three nautical miles from the nearest land.

Annex 5: Prevention of Pollution by Garbage from Ships (31^st December 1988): This Annexure completely prohibited the disposal of all forms of plastics into the sea. [6]

V. Organisations Fighting for Marine Life Conservation

Though we have a number of International Conventions and strategies to protect marine life, there are a number of non-profit organizations that are continuously fighting for marine conservation. They organise several campaigns and other activities to protect the marine environment and also try to restore it. Some of them are:

Ocean Conservancy: This organisation is known as a leading advocacy group that works for the protection of special marine habitats. It also restores sustainable fisheries and most importantly, it is trying to protect the marine environment from human beings. It was established in the year 1971 in Washington, D.C.

It educates the public and works for policy changes to maintain the balance of the ocean ecosystem and marine lives. This Organisation is hosting the International Coastal Cleanup program for over 30 years, which brings millions of volunteers together to clean the beaches across the world.

Surfrider Foundation: This non-profit organisation works for the protection of oceans and beaches around the world. It recognises the challenges that oceans are facing due to pollution, climate change, and offshore development. It works in areas such as water quality, plastic pollution, beach access, coastal preservation, and sustaining the marine and coastal ecosystem. This California-based group tests the ocean water all year long in order to make sure that the public is educated on its local water quality.

Since its establishment on 22^nd August 1984, it is continuously trying to protect the ocean. In the year of 1987, the organisation gained public beach access to South Cardiff State Beach in San Diego. In 1989, it helped in the landmark decision to stop the development of the marina (an ocean entrance and a mile-long breakwater).

The Surfrider Foundation also worked hard to implement new environmental laws including the reauthorization of the Clean Water Act, to prevent the destruction of rivers, lakes, and coastal water. Recently, it helped to pass legislation to ban toxic chemicals oxybenzone and octinoxate in sunscreens to protect coral reefs and human health.

Oceana: This Washington D.C.-based organization was founded in the year 2001 to restore and protect oceans through policy campaigns. In the year 2013, this organisation took an initiative to “save the ocean, feed the world” and has had over 100 victories. It has also expanded its work in several new countries including Brazil, the Philippines, Peru, etc.

Ric O’Barry’s Dolphin Project: This project was funded in the year 1982 by Richard (Ric) O’ Barry who worked within the dolphin captivity industry and against it. He trained around five dolphins for the TV series Flipper, but when one of his dolphins died, he changed his mind from training to protect the dolphins against captivity. He started his dolphin project with some local partners on 5^th August 2019.[7]

VI. Cases violating Marine Laws

Despite so many attempts to protect marine life, there were still several cases that violated marine laws and continue to do so. It shows public apathy and a failure to implement laws properly.

Criminal Jurisdiction for Ship Collision and Marine Pollution in High Seas: M/V Earnest Hemingway case, 2015:

There was a collision between a Liberian Container carrier, M/V Earnest Hemingway and a Korean fishing boat which was headed towards N-5 Cemetry on 16 January 2015, about 10 miles east of Busan, South Korea, where M/V Earnest Hemingway headed towards N-5 Cemetry in Busan at 14 knots speed. At around 2 O’ clock in the direction, about 8 miles in, a Korean fishing boat Geunyang ho was operating, sailing at a speed of approximately 8 knots to 14 knots, but it was misunderstood by the M/V Hemmingway’s second officer and an able seaman. The Korean fishing boat was there and continued its sailing which led to a collision between them around 3:31.

This accident resulted in the death of the captain and a fisherman of Geunyang ho and Korean nationals due to falling into the sea. The boat was also sunk at sea, and around 600 litres of fuel oil were spilled into the sea. After that incident, M/V Earnest Hemingway cast its anchor at N-5 Cemetry in Busan, South Korea at around 4:54 and departed toward Qingdao port, China, around 11 O’ clock but it came back to Busan as per the direction given by the coast guard.

In respect to this incident, the second officer of M/V Earnest and the seaman were prosecuted by the Busan District court for not meeting the obligations to change the sailing direction or declaration to prevent the ship collision for not using the sound signals, light emission signals, and communication device as warning signs.

The ship also escaped from the place after that incident and did not help in the rescue, which violates the Act on “Aggravated punishment etc., of specific crimes, as prescribed by the Specific Crimes Act”. Further, it also violates the Marine Environment Management Act for oil spills.

The district court imposed a fine of two million on two defendants, but on the other charges, the ruling was dismissed due to the lack of jurisdiction. As per the decision of the Permanent Court of International Justice, South Korea lacks the jurisdiction under Article 97 (1) of UNCLOS.

It was because the court stated that it applies to all criminal and crew members who were liable for the collision, other navigational accidents and physical damage exercised by the flag state and the state of the alleged offender’s nationality. The exclusive jurisdiction of the flag state on high seas has a superior position to other states, so in this situation, it would be reasonable for them to exercise complementary jurisdiction if the flag state and the state of the alleged offender’s nationality did not exercise criminal jurisdiction.

UNCLOS also prescribes this if any vessel voluntarily enters into the state’s port or offshore terminal and causes marine pollution in the state’s territorial sea or EEZ.

If marine environment pollution is tried by South Korea as per the jurisdiction of the flag state of the violated vessel and UNCLOS prescribes the jurisdiction of coastal state based on the severity of pollution and damage to marine life, then it can be said that we need to implement UNCLOS more efficiently and it needs an amendment regarding this matter. [8]

US Law – Criminal prosecutions of MARPOL Violations: Case of the United States v. Lonia Management:

The appeals of the second circuit court have been joined with the appeals with fifth Circuit court to confirm that ship owners and operators may be criminally prosecuted and vicariously liable whenever there is a false entry of US water in the oil record book to hide the discharges of waste oil which results in the violation of MARPOL.

In in this particular case, a three-judge panel ruled that the Act to prevent pollution from ships, which are also known as the US version of the MARPOL Convention, imposes a positive duty on the ship to ensure that their oil record books are accurate (or at least not knowingly inaccurate) upon entering the ports and navigable waters of the United States.

In the abovementioned case, the tanker KRITON delivered oil products to various US east coast ports and Lonia was the ship manager of that tanker. During the course of the trial, it was found by jury members that the engine room crew routinely discharged waste oil on the directions of chief engineers into international waters by bypassing the oily water separator and made entries in the ORB.

It was also found by jury members that a senior engine room personnel taught his junior crew members to lie to the coast guard and also to destroy the evidence. The company was convicted with vicarious criminal liability, which means, there was no proof required that the company management was aware of the criminal activity done by that vessel.

The decision given by the fifth circuit in the matter of United States v. Jho was also followed by the second circuit court, which decided that the crime under APPS was the failure to maintain the ORB. MARPOL convention provides the flag state jurisdiction for compliance within international water whereas the court stated this because the failure of maintaining the ORB happened within the US waters and being the port state, it had the jurisdiction to prosecute the company and individuals for not having the positive duty under international law for the port state to refer the matter to the flag state.

Gard Marine and Energy Insurance has been warning about the severe penalties for the violations of MARPOL through circulars, news articles, and seminar presentations. Marine pollution is not only affecting the US but also European ports and flag states. Despite getting so many warnings from shipping associations, ship owners continue to make themselves liable by indulging in such illegal activities that are affecting the sea and marine life.

According to its convention, the oily wastewater should be processed by an oily water separator and discharges from that should be properly recorded in ORB. It was implemented in the year 1983. This convention has also been followed widely by all maritime nations as signatories, but unfortunately, no one follows it properly. [9]

Mauritius Oil Spill reveals the weakness of maritime security architecture in the Western Indian Ocean:

A Japanese owned ship MV Wakashio went to the coral reef of Mauritian reef at the end of July 2020. It spilled around 1,000 tonnes of oil, which continues to threaten the Blue Bay Marine Park (considered one of the most sensitive ecology sites and marine treasures of Mauritius). After this incident, several experts had been sent by India, Japan, and the International Maritime Organisation (IMO).

This is not the first incident. A ship got stranded at this location previously as well. It is a few miles between Asia and Cape of Good Hope, where almost thousands of ships pass by their voyage. This incident was well-known to the Mauritius authorities and they knew about the risk of any such future disaster.

The regional maritime security cooperation agreement “Djibouti Code of Conduct” was initiated by the IMO in the year 2008. It was initially focused on piracy but it was extended to cover other environmental issues in the year 2017.

The work of capacity building continued under the United Nations Environmental Programme’s Regional Seas Programme and the Nairobi Convention. A workshop was conducted by this program about a few months back, where oil spill prevention was discussed, and Mauritius gave an update on its national preparedness status.

Therefore, the proceedings started under the Djibouti Code, and the Nairobi Convention or the regional cooperation agreements could play a major role in this matter.

However, there has been no improvement in this matter. Local people have been trying their best to remove the oil from the water but it is a very difficult task. A number of marine lives and coral reefs have been destroyed. [10]

Conclusion

The author of this article considers it a gross violation of the MARPOL Convention Annex 1 which regulates the prevention of oil pollution from the ship and suggests having double hulls for new tankers as well as existing tankers. This fact was also known to Mauritius but it did not take any precautionary measures. Hence, it can be considered that the authorities were negligible and should be held responsible for the protection of marine life.

Marine life is an asset to our environment. It is our responsibility to protect and conserve it. Laws are meaningless until we implement them properly. We also need to address our lack of awareness and lack of consciousness regarding the protection of marine life. We are also not willing to protect and preserve it because we are trapped in a cycle of commerce and trade at the cost of damaging marine biodiversity.

As quoted by William Shakespeare, “Fishes live in the sea, as men do a-land; the great ones eat up the little one”[11], people are destroying the habitats of marine animals because of their greed. They don’t follow the laws and policies of states, and on the other hand, states have also failed to implement them.

However, it is important to note that several non-profit organisations are working tirelessly towards the goal of protection of marine life. Even though they are trying their best, marine life still needs the joint efforts of the public and the state. It is extremely important that we recognise our responsibility towards marine biodiversity at the earliest.

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[1] Joao Pedro Silva, Wendy Jones Et All: Life And The Marine Environment: European Commission

[2] ID Silva

[3] Beth Polidoro, Roderic Mast Et All: Status Of The World’s Marine Species: Researchgate

[4] SUPRA, Silva

[5] Howard S. Schiffman: International Law And The Protection Of The Marine Environment: Encyclopedia Of Life Support Systems (EOLSS)

[6] International Convention for the Prevention of Pollution from Ships (MARPOL), Last visited 23/9/2020 at 7:25 pm, Available Here

[7] Shamseer Mambra, 15 Brave Organisations Fighting To Save Our Oceans, Available Here

[8] Changwoo Ha, Criminal jurisdiction for ship collision and marine pollution in high seas-Focused on the 2015 judgement on M/V Ernest Hemingway case, Available Here

[9] Gard News Editor, US law – Criminal prosecutions of MARPOL violations, Available Here

[10] https://www.orfonline.org/

[11] www.seasky.org

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