Improving governance

10   Improving governance

1 Conservation of coral reefs: a non-regime?

Conserving the environment remains one of the most important and emotive issues of modern times, featuring prominently in newspapers, political manifestos and popular entertainment. Certain elements of the natural world have always attracted more public support and attention than others within western societies; from the rainforests to whales and elephants. Tropical coral reefs fall into this category, in large part due to their aesthetic beauty and association with tropical idylls. More importantly, over the last 25 years a deeper global understanding has developed of the importance of these complex ecosystems in sustaining life on earth – including humankind – as well as the problems they are facing and the action needed to conserve them. Yet before this book, stake-holders, conservationists, academics, and marine environment regulators and managers have had few resources at their disposal assessing in-depth the international environmental law response for supporting the conservation of these ecosystems.

International environmental law can offer a number of benefits. It can aid conservation efforts through the provision of resources, financial support and information exchange. Further, the commitment of governments to such efforts can be improved through the additional visibility of (in)activity made possible by commitments and mechanisms introduced under treaties. This might involve centrally maintained inventories of protected areas or committees reacting to official or public reports. The conservation of habitats like coral reefs can also be enhanced through international recognition and ‘branding’, which can empower pressure groups and environmental ministries. These groups may then be able to slant decisions towards favouring conservation when conflicts arise with development. Such international recognition is also important in terms of raising awareness within local communities about the importance and fragility of such ecosystems.

Many may therefore be concerned by Rado Dimitrov’s assertion that an international treaty on coral reefs does not exist and is not even on the agenda; coral reefs are a non-regime according to him since there exists little or uncertain scientific evidence on the socio-economic impacts of coral reef degradation, particularly as to any cross-border negative consequences.1 In fact, this assertion is dangerous given its potential to mislead. First, Dimitrov’s belief in cross-border economic consequences as a catalyst for international legal responses for the conservation of ecosystems can be questioned as both unnecessary2 and undesirable.3 Second, Dimitrov’s assertion must be considered within the context of his conception of an international legal regime. International regimes have been defined as ‘sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations’.4 Dimitrov observes that regime analysis has tended to focus on state centric regimes and binding treaties.5 He elects to follow suit in his work and focuses on legal regimes. Dimitrov therefore defines legal regimes as ‘a formal treaty or a set of treaties that regulate state practices in a given issue area and involve binding commitments to address a problem’.6 A search on this footing for a single formal treaty dedicated to the conservation of coral reefs would be in vain as none exists. Nor has such a treaty been pursued. In that narrow sense, Dimitrov is correct to declare coral reef management to be a non-regime. Whether he is also correct to regard ‘a formal . . . set of treaties that regulate state practice’ in this particular issue area as missing, is harder to support.

As has been revealed in the preceding chapters, there exists a body of international law that, by increment, addresses the majority of problems faced by coral reefs. What is more, action is being taken under some of these legal initiatives explicitly to improve the conservation of coral reefs. Indeed, in some respects (notably the promotion of MPAs), the extent of the law is such that lawyers are more likely to encounter replication of efforts under separate regimes, rather than lacunae in the system. It is impossible to deny the existence of this body of law, which has sustained the existing scholarship and this book.

2 Current international agreements: adequate for purpose?

Perhaps the reality is, therefore, that states have not undertaken the time-consuming and difficult process of negotiating a bespoke treaty, as they regard existing legal regimes to be adequate for the purpose. If so, the survey of agreements conducted in Part II of this book actually creates a mixed picture as to the adequacy of international legal responses to the various threats posed to coral reefs.

2.1 A single solution

Whilst there is no dedicated treaty for the conservation of reefs, a few could claim to offer a single solution given their wide jurisdictions in the field of wildlife and habitat protection. For instance, the Convention on Biological Diversity has succeeded in garnering the support of a large number of coral reef states for a treaty charged with a comprehensive agenda for conserving biodiversity and ensuring the sustainable use of its components, including corals and the other components that make up the ecosystem. However, this broad jurisdiction leads to problems. Obligations remain broadly defined, with few quantifiable commitments. What is more, the broad jurisdiction also leads to insufficient focus upon single threats and ecosystems. This initially resulted in a predominantly descriptive, policy formulation, approach. There have been recent efforts to move on from that stage with the introduction of soft-law quantifiable targets for biodiversity conservation. Such targets will, however, be difficult to monitor and enforce in a regime averse to international monitoring, and lacking many compliance tools. Consequently major concerns exists that the conservation of coral reefs can get lost in the welter of other agenda items and in the face of stretched resources and limited monitoring.

The Ramsar Convention on Wetlands offered a system in which coral reefs were far more prominent conservation subjects. Arguably the wise use obligation could be interpreted to demand action from state parties with respect to almost all of the threats facing coral reefs, such as controlling extractive use and the development of tourism. The wise use obligation could even be deployed to question the utilisation of marine waters as receptors of land-sourced pollution. Of course, the extent to which the Ramsar Convention can be regarded as a ‘one-stop-shop’ for reef conservation also depends upon the definition of ‘wetlands’ being wide enough to capture all reefs including those with no parts lying within 6m depth of water. However, a far greater barrier to the convention being an adequate single solution is that the obligation to use wetlands wisely is largely inchoate; the provisions of the treaty delivering no extra detail or measurable parameters for this commitment. The majority of the effort being expended under the Ramsar Convention is still directed towards the management of wetlands of international importance, and it is with regard to MPA strategies that the convention’s real strengths are therefore to be found.

Given the largely framework nature of the Convention on the Law of the Sea’s environmental provisions, as described in Chapter 4, no single forum can be identified as adequate for handling all of the threats faced by coral reefs. The question then becomes, how adequate are the responses of international environmental law to the threats when taken in isolation? If these transpire to be sufficient, then dislocation issues could simply be remedied through appropriate coordination.

2.2 Fisheries

The regulation of reef fisheries falls under the exclusive jurisdiction of coastal states. This is a result of the 1982 Convention on the Law of the Sea, the distribution of warm-water reefs and the recognition of the EEZ under international law. Catch limits and catch methods have therefore been left to national jurisdiction. International law adds little in this regard beyond the malleable or inchoate obligations and constraints of the Convention on the Law of the Sea, the wise use obligation of the Ramsar Convention on Wetlands, and the general commitments made under the Convention on Biological Diversity. Nevertheless, fisheries managers and stakeholders will still find that international law has a significant impact on their work, given that MPAs are regarded as a key strategy for ensuring the sustainable utilisation of coral reef fisheries.

International environmental law may also have a beneficial effect given its impact upon global markets for coral reef products, but only where the survival of a particular species is put in danger by international trade. Almost 20 coral reef species are thought to be threatened in this way and their prospects turn upon finding protection under, and the effective implementation of, the Convention on International Trade in Endangered Species. As was discussed in Chapter 8, some issues persist in terms of including all of these coral reef species within the convention’s regime, whilst management capacity, and the complexities of coral identification, create significant hurdles to the implementation of the permit system. Ultimately, however, international trade remains a small threat to coral reefs in comparison to factors like land-based sources of pollution, climate change and ocean acidification.

2.2 Climate change

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