The role of international law

2  The role of international
law

1 Introduction

2 Multilateral legal responses

Independent decision-making by states does not always yield the optimal feasible outcome.1 Such outcomes may be deficient in that states collectively prefer another outcome to that which would inevitably arise through independent decision-making.² For instance, there may be common goods in relation to which states have a shared interest in ensuring their optimal provision, but which may become unsustainably utilised by one nation acting independently and driven by self-interest.³ Therefore, as Robert Keohane observes, ‘a major function of international regimes is to facilitate the making of mutually beneficial agreements among governments, so that the structural condition of anarchy does not lead to a complete “war of all against all”.’⁴

International cooperation should therefore be anticipated where there are high levels of interdependence, spillovers from independent state decision-making, uncertainty, and the possibility of mutual gains from interstate cooperation.5 Should an international regime for the conservation of coral reefs therefore be expected? Should we actually be surprised to find in the following chapters a body of international rules for the conservation of reefs? After all, Rado Dimitrov states, ‘scientists and environmental activists alike perceive the problem as primarily local in character’.⁶ Certainly there is merit in his observations as to scientific findings. The previous chapter, on the marine biology of corals and coral reef ecosystems, noted that the anthropogenic threats facing these ecosystems were primarily localised in origin and effect.

Allied to this, and suggesting that expectations for an international response should be further lowered, is the fact that within their territories, states exercise sovereignty. Whilst the concept of sovereignty is contested, it is common to note that it implies exclusive jurisdiction over a territory and its permanent population, and a duty of non-intervention in the jurisdiction of other states.⁷ Thus, states should have been able to rely upon their sovereign powers over natural resources to resist calls for international laws on the conservation of coral reefs in what Dimitrov considers a domestic matter. This, however, oversimplifies the situation by ignoring aspects of the nature of shared interests and concerns that transcend geopolitical borders and justify international responses.

Towards the end of the twentieth century, it was recognised that the earth’s atmosphere and biological diversity were confronted by grave threats that endangered the survival of present and future generations.8 The protection of such fundamental parts of life on earth needed to be recognised as a ‘common concern of humankind’ and this underpinned many of the negotiations preceding the 1992 Rio Earth Summit.⁹ Consequently, express recognition of such a principle was first included in the UN Framework Convention on Climate Change¹⁰ and the Convention on Biological Diversity (CBD)¹¹ adopted at that Summit.¹² However, the principle actually underpins earlier global wildlife and habitat protection treaties.¹³ As Alexandre Kiss describes in relation to the progressive development of the principle in these treaties,

what is at stake in all these cases is not the immediate interest of a State or States, but a more remote and more general concern: a benefit for all mankind which can be obtained only by international co-operation and the acceptance of obligations by all governments, even if they receive no immediate return.¹⁴

In substance, the common concern of humankind therefore implies a sophisticated form of cooperation. Using biological diversity as an example, it is true that individual states retain sovereignty over the habitat or species located in their territory. Such habitat and species, however, are to be regarded as held on trust; the endowed states being charged with their conservation on behalf of all humankind (both present and future generations).

Consequently, the principle demands that the endowed state accepts a partial fettering of their sovereignty through a legitimisation of international interest in that resource; a sense of standing, to use Alan Boyle’s term.15 Patricia Birnie and others have clarified the essence of this standing, stating that

what gives such obligations a real erga omnes character is not that all states have standing before the ICJ in the event of breach, but that the international community can hold individual states accountable for compliance with their obligations through institutions such as the Conference of the Parties.¹⁶

In return, and given that the value of such habitat and species is enjoyed by all humankind, other states are obliged to assist in those conservation efforts. Thus, international cooperation and assistance under the common concern of human-kind should be designed to support conservation efforts, although not so as to displace and replace them with multinational intervention.

The principle is not to be confused with the closely related concepts of ‘common property’ or the ‘common heritage of humankind’, which may equally provide a justification for international involvement in environmental policy. Common property refers to something that is not subject to the sovereign control of any one state. Thus it may be used in two instances.¹⁷ First, it describes those areas that lie outside of sovereign territory and to which all states have access, e.g. the high seas. Second, common property may describe the resources to be found in these areas, such as fish or fur seals. As these resources are found outside of sovereign territories, states are free to exploit them within the modest confines of international law.

Occasionally, however, the global community has come to the view that certain natural resources should not be open to exploitation by states simply on account of the fact that those states have the requisite money and expertise to utilise them. These resources are then thought to be the common heritage of humankind. Two occasions when this concept has been deployed can be noted, namely the 1979 Moon Treaty and the 1982 United Nations Convention on the Law of the Sea.¹⁸ In particular, under the latter convention, and in order to reflect this principle and independently manage the mineral resources therein, the International Seabed Authority was established to control the allocation of these exploitation rights and to bring about the sharing of benefits arising from such activities.¹⁹

In substance, the common concern of humankind is therefore distinct from common property and common heritage. However, Kiss rightly observes that the principle has substantive legal limitations in that it ‘does not connote specific rules and obligations, but establishes the general basis for the community concerned to act’.20 Nevertheless, the common concern of humankind can justify global action in relation to habitats, species and biodiversity, even when such natural resources amount to sovereign property and where cross-border threats may not be obvious. Furthermore, much of the law relating to the conservation of coral reefs is found under conventions based in part on the common concern of humankind. Perhaps there should be less surprise, therefore, that an apparently localised issue has generated an international legal response under the auspices of these MEAs.²¹

3 The benefits of involving the international community

Whilst the involvement of the international community in what would otherwise appear to be a domestic matter is justified under the principle of common concern of humankind, what are the practical benefits to be expected by recourse to international environmental law? As expanded upon below, for coral reefs the nature of these benefits can be viewed as relating to mobilising support and assistance from around the globe, reinforcing the status of a site and exposing the running of a site or national environmental programme to international scrutiny.22

International law can reinforce the status of an area, perhaps most obviously through the formal recognition of the importance of a marine protected area covering coral reefs. Such recognition is commonly achieved through listing or inventory mechanisms, as demonstrated by both the World Heritage Convention (WHC)23 and the Convention on Wetlands of International Importance (Ramsar Convention).²⁴

Thereafter the recognition international law accords to areas of reef may result in a number of advantages that can in turn promote improved management of the site. For example, recognition may have the knock-on effect of promoting or reinforcing the attraction of a site as a tourist destination. This can lead to increased revenues which, if channelled back into the operation and management of the site, can increase the chances of achieving conservation objectives.

International recognition may also improve management standards through reinforcing the importance of a site at national governmental level. With a listed site exposed to scrutiny from other national and international observers, grass-roots organisations and environmental ministries can make stronger representations on behalf of such protected areas. This may be when enclaves are threatened by initiatives led by other government departments, or when requesting state funding for management programmes. For example, in development versus nature-protection debates, international listing and recognition of a natural area may tip the balance in favour of protection, particularly if it might expose the government to comment from the international community in public forums such as meetings of contracting parties.²⁵

Simon Lyster aptly describes these mechanisms as being important to ‘keep parties on their toes and to make them feel that they will be publicly castigated if they do not comply with the terms of the treaty.’26 Whilst recourse to tribunals might not therefore be a desirable or realistic means to ensure that environmental obligations are met, other more subtle mechanisms used in international environmental law can still promote compliance with conservation commitments.

4 Initiatives beyond this study’s boundaries

In the light of the above, and recalling the previous chapter, which highlighted the benefits derived from coral reef ecosystems and their degradation by humans, the merits of an extended investigation into international law and the conservation of these habitats seems clear and timely. What is more, there has been very little published on the existence of international laws and coral reef conservation. In its publication Conventions and Coral Reefs,27 UNEP and WWF provided a very brief summary of the contribution of nine conventions and five non-binding initiatives towards conserving coral reefs through (variously) addressing pollution, trade, climate change and habitat protection. Before this, in 2002 Mary Davidson reviewed a select number of conventions and their implementation in the United States in order to assess their contribution to coral reef conservation.²⁸ Rajesh Sehgal completed a similar brief review in 2006, offering an international and Indian perspective on the subject.²⁹ All have their merits but also limitations as to either the conventions included or the depth of research offered. This book looks to add to these valuable contributions, whilst also offering greater coverage of the relevant MEAs involved.