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

There are oceans and seas covering over 70% of the earth's surface, including a vast array of different types of organisms. However, due to waste, dumping, and pollution caused by scientific methods, lack of understanding, and conscience, marine life has come under threat in recent years. This is especially true given that marine life is used as a source of money for many people who are involved in illegal commerce.[1]

Main Threats to the Marine Environment

European waters are bounded by four major seas, including the Mediterranean Sea and Black Sea, the Baltic Sea and the North Sea, as well as the North Atlantic Ocean and the Arctic Ocean. As a result, coastal areas may be found in practically all of the EU's 25 member states. According to the European Union, the following are the present dangers to the marine environment:

Overfishing:
Overfishing is a common problem in Europe's coastal areas, particularly in the Baltic Sea. Although management plans to preserve these resources from exploitation have been implemented, a number of commercial fish stocks have been lost as a result of overexploitation. This excessive amount of fishing also has a negative impact on other marine life such as seals, seagulls, and other sea creatures.

Alien species:
Intentional introductions of non-indigenous species and genetically modified organisms into the marine environment have a negative impact on the natural ecosystem.

Habitat modification:
Human activities such as the construction of ports and harbours, as well as tourism, are rising on a daily basis, with a lack of awareness and concern about the degradation of the marine environment, which poses a threat to marine life.

Pollution and Climate Change:
Pollution from industrial and urban discharges contributes to environmental pollution, which in turn contributes to global warming. This is another factor contributing to the extinction of marine life.[2]

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 can be found in rocky and coral reef environments across the tropics and subtropics of the planet. It has a significant monetary worth in the commercial trade market. Asia is home to almost 250 thousand tonnes of grouper harvest, according to the Food and Agriculture Organization of the United Nations. At least 12.4 percent of groupers are currently classified as threatened, with the remaining 14 percent classified as near threatened and the remaining 30 percent classified as data poor.

Corals:
Almost 845 different coral species contribute to the formation of reefs, which are critical habitat for many animals. In total, more than 27 percent of them are classified as threatened, with another 20 percent classified as near threatened.

Marine turtles:
As of 2008, six of seven species of sea turtles were classified as endangered. A total of 4,600 marine turtles were caught and killed in US fisheries in 2011.[3]

The European Marine Strategy

The Ecosystem Approach: A method for integrated management of land, water, and living resources that promotes conservation and sustainable use in an equitable manner is defined by the Convention on Biological Diversity as an ecosystem approach. The proposed marine plan is based on the ecosystem concept and emphasises the integration of human activities into the overall management of the environment.

A look at the Marine Strategy and the new European Union Maritime Policy: Towards a future Maritime Policy for the Union was the title of a green paper published by the European Commission on June 7, 2006, with the goal of achieving the objectives of the Lisbon strategy while integrating various aspects of the maritime sector such as transportation, fisheries and aquaculture, marine research, and so on.

Natura 2000 and the Marine Strategy: This attempts to safeguard the environment by defining steps that its member governments must take. Habitats and birds regulations in the EU developed the Natura 2000 natural network.[4]

Marine Life Protection under International Law

Marine life conservation is currently one of the most pressing problems in the planet. Marine creatures are endangered as a result of industrial and scientific contamination. Not only that, but abuse of the food industry, medicine, energy, transportation, commerce, and other industries endangers marine life. In the last few decades, several international accords have been enacted to safeguard this existence.

The Stockholm Conference
In the year 1972, the United Nations held a summit in Stockholm to offer legal attention to environmental concerns. All member nations should take responsibility for protecting and improving the environment for future generations, according to Principle 1 of this proclamation. It expresses concern over the depletion of natural resources, including marine life.

Principle 7 assigns all member states the duty for taking the required efforts to safeguard the oceans and avoid pollution, which might result in massive loss of human health and marine life.

The Stockholm Declaration surely cleared the way for the 1982 United Nations Convention on the Law of the Sea, which focuses only on marine life preservation.

The United Nations Convention on the Law of the Sea (UNCLOS 1) was signed in 1958. 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 the fact that it was recognised by a number of states, it has proven to be a huge failure.

UNCLOS 2 was held two years later in 1960, however it failed to achieve the goal of defining the territorial sea's breadth and resolving the maritime question.

Then, in 1973, UNCLOS 3 was held, with over 150 nations and specialised bodies participating. It lasted nine years and culminated in the 1982 United Nations Convention on the Law of the Sea. In the territorial sea, maritime states have the right of innocent passage in the territorial sea of another state. The sovereign right to explore, conserve, and manage natural resources belongs to the exclusive economic zone.

According to UNCLOS Articles 56 and 61, the coastal area has the authority to enact its own conservation rules, and other governments are prohibited from exploiting the resources in the exclusive economic zone. High seas also said that the state can enact legislation to protect marine life. Because all governments are equal, they can enjoy the same UNCLOS-guaranteed freedoms, such as freedom of passage, fishing, laying underwater cables and pipelines, and scientific study. Among all of these, however, fishing freedom is critical to the survival of marine life.

No state has the right to overfish; they lack the authority to enact regulations governing sustainable yield and the best use of the high seas. According to UNCLOS Article 116, if a member state is a party to one or more regional fishery accords, high seas fishing must be conducted in conformity with the convention's other responsibilities. As a result of UNCLOS, the coastal state now has responsibility for marine conservation.

Article 194 stipulates that states must take all necessary steps, individually and collectively, to avoid, mitigate, and control pollution of the maritime environment from any source, using the best practical means at their disposal and within their capacities, in accordance with this convention.

There are four causes of pollution in the water, according to Art 194 (3): the emission of hazardous, dangerous, and noxious chemicals, pollution from boats, and pollution from the installation of any technologies that aid in the search of natural resources on the seabed. Art 194 (5) requires that essential measures be taken to safeguard and preserve unique and vulnerable ecosystems.[5]

International Convention for the Prevention of Pollution from Ships (MARPOL)
This convention was adopted on 2nd 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 (2nd October 1983): This annexure safeguards the marine environment against contamination caused by ship oil spills. It requires new tankers to have twin hulls. The twin hulls on existing tankers should also be repaired.

Annex 2:
Regulations for the Control Of Pollution by Noxious Liquid Substances in Bulk (2nd October 1983): It calls for the regulation of pollution caused by toxic liquid substances transported in bulk. Almost 250 compounds were reviewed and included in the convention's appendix list. Only reception facilities are allowed to dump their residues until specific concentrations and conditions are met. Within 12 miles of the nearest land, if the discharge of residues does not contain harmful compounds, it is permissible.

Annex 3:
Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form (1st July 1982): It requires the publication of a detailed standard on packing, marking, labelling, documentation, stowage, and quantity restrictions, among other things. The word "harmful substance" is used in this annexure to refer to substances that are utilised for marine pollutants under the International Maritime Dangerous Goods Code or that follow Annex 3 of this Convention.

Annex 4:
Prevention of Pollution by Sewage from Ships (27th September 2003): It forbids the release of sewage into the sea and regulates pollution, although it exempts situations in which the ship is operating an approved sewage treatment plant that is located more than three nautical miles from the nearest shore.

Annex 5:
Prevention of Pollution by Garbage from Ships (31st December 1988): This Annexure made it illegal to throw any kind of plastic into the ocean.[6]

Organisations Fighting for Marine Life Conservation

Despite the fact that there are a number of international conventions and methods in place to protect marine life, a number of non-profit groups continue to work for marine conservation. They run a number of campaigns and other initiatives to conserve and restore the maritime environment. Here are a few examples:

Ocean Conservancy:
This organisation is known as a leading advocacy group that works for the protection of special marine habitats. It also works to restore viable fisheries and, most importantly, to protect the maritime environment from human interference. It was founded in Washington, D.C. in the year 1971.

It educates the public and advocates for policy changes to keep the ocean ecology and marine life in balance. For almost 30 years, this organisation has hosted the International Coastal Cleanup programme, which brings together millions of volunteers to clean beaches all around the world.

The Surfrider Foundation:
It is a non-profit organisation dedicated to preserving oceans and beaches all around the world. It recognises the threats that pollution, climate change, and offshore development pose to oceans. Water quality, plastic pollution, beach access, coastal protection, and maintaining the marine and coastal ecology are all areas where it works. This California-based organisation examines ocean water all year to ensure that the public is informed about local water quality.

It has been working to conserve the ocean since its founding on August 22, 1984. The organisation was granted public beach access to South Cardiff State Beach in San Diego in 1987. It was instrumental in the groundbreaking decision to halt the marina's construction in 1989. (an ocean entrance and a mile-long breakwater).

The Surfrider Foundation has fought hard to put new environmental legislation in place, such as the reauthorization of the Clean Water Act, to protect rivers, lakes, and coastal waters. It recently assisted in the passage of legislation prohibiting the hazardous chemicals oxybenzone and octinoxate from being used in sunscreens in order to protect coral reefs and human health.

Oceana: It was created in 2001 in Washington, D.C., with the goal of restoring and protecting oceans through policy initiatives. This organisation began a campaign in 2013 to "rescue the ocean, feed the world," and has now won over 100 victories. It has also expanded its operations to include Brazil, the Philippines, Peru, and other countries.

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 about five dolphins for the TV show Flipper, but after one of them died, he decided to stop training and instead safeguard the dolphins from captivity. On August 5, 2019, he began his dolphin project with some local partners.[7]

Cases violating Marine Laws

Despite all of the efforts to safeguard marine life, there have been and continue to be several examples of violations of maritime legislation. It demonstrates public apathy and an inability to adequately administer legislation.

Criminal Jurisdiction for Ship Collision and Marine Pollution in High Seas: M/V Earnest Hemingway case, 2015:
On January 16, 2015, about 10 miles east of Busan, South Korea, a Liberian container carrier, M/V Earnest Hemingway, collided with a Korean fishing boat heading towards N-5 Cemetry. M/V Earnest Hemingway was heading towards N-5 Cemetry in Busan at 14 knots. A Korean fishing boat, the Geunyang ho, was working at 2 o'clock in the direction, about 8 miles in, but it was misunderstood by the M/V Hemmingway's second officer and an able seaman. The Korean fishing boat remained present and continued sailing, resulting in a collision at 3:31 p.m.

The captain and a fisherman from Geunyang ho, as well as Korean nationals, died in this disaster after falling into the water. The boat was also sunk at sea, spilling around 600 litres of fuel oil into the water. Following that event, the M/V Earnest Hemingway anchored at N-5 Cemetry in Busan, South Korea, at 4:54 a.m. and proceeded for Qingdao port, China, at 11 a.m., but returned to Busan as directed by the coast guard.

The second officer of the M/V Earnest and the seaman were charged by the Busan District Court for failing to meet their obligations to change the sailing direction or make a declaration to avoid a ship collision by failing to use sound signals, light emission signals, and communication devices as warning signs.

After the occurrence, the ship also fled the scene and refused to assist in the rescue, in violation of the Act on "Aggravated Punishment, etc., of Specific Crimes, as provided by the Specific Crimes Act." Furthermore, for oil spills, it violates the Marine Environment Management Act.

Two defendants were fined two million dollars by the district court, while the other accusations were withdrawn owing to a lack of jurisdiction. According to the Permanent Court of International Justice, South Korea does not have jurisdiction under UNCLOS Article 97 (1).

The reason for this is that the court stated that it applies to all criminals and crew members who were liable for the collision, other navigational accidents, and physical damage caused by the flag state and the state of the alleged offender's nationality. Because the flag state's exclusive jurisdiction on the high seas is superior to that of other states, it would be reasonable for them to exercise complementary jurisdiction in this situation if the flag state and the alleged offender's nationality state did not have criminal jurisdiction.

This is also required by UNCLOS if a vessel approaches a state's port or offshore terminal freely and creates marine pollution in the state's territorial sea or EEZ.

If South Korea prosecutes marine pollution under the jurisdiction of the vessel's flag state, and UNCLOS specifies the jurisdiction of coastal states based on the severity of pollution and damage to marine life, it can be concluded that UNCLOS needs to be implemented more effectively and that an amendment is required.[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 of the fifth circuit court to confirm that ship owners and operators may be criminally prosecuted and held vicariously liable whenever a false entry of US water in the oil record book is made to conceal waste oil discharges, resulting in a MARPOL violation.

In this case, a three-judge panel ruled that the Act to Prevent Pollution from Ships, also known as the US version of the MARPOL Convention, imposes a positive duty on ships to ensure that their oil record books are accurate (or at the very least not knowingly inaccurate) when they enter US ports and navigable waters.

The tanker KRITON carried oil goods to several US east coast ports in the aforementioned case, and Lonia was the ship manager of that vessel. During the trial, jury members discovered that the engine room staff habitually released waste oil into international waters on the orders of the chief engineers by circumventing the oily water separator and making entries in the ORB.

Jurors also discovered that a senior engine room employee instructed his younger crew members to lie to the coast guard and destroy evidence. The company was found guilty of vicarious criminal culpability, which means there was no need to prove that the company's management was aware of the vessel's criminal action.

The second circuit court adopted the fifth circuit's decision in United States v. Jho, deciding that the felony under APPS was failing to maintain the ORB. The MARPOL convention gives the flag state jurisdiction over compliance in international waters, but the court stated that because the failure to maintain the ORB occurred in US waters, the port state had jurisdiction to prosecute the company and individuals for failing to comply with the port state's positive duty under international law to refer the matter to the flag state.

Through circulars, news stories, and seminar presentations, Gard Marine and Energy Insurance has been warning about the harsh penalties for MARPOL violations. Not only the United States, but also European ports and flag states are affected by marine pollution. Despite several warnings from maritime groups, ship owners continue to expose themselves to liability by engaging in illegal activities that negatively impact the water and marine life.

Oily wastewater should be treated by an oily water separator, and discharges from it should be appropriately reported in ORB, according to convention. It was put into effect in 1983. As signatory, all maritime nations have mostly observed this convention, but sadly, no one follows it properly.[9]

Mauritius Oil Spill reveals the weakness of maritime security architecture in the Western Indian Ocean:
Near the end of July 2020, a Japanese-owned ship, the MV Wakashio, arrived at the Mauritian coral reef. Around 1,000 tonnes of oil was leaked, posing a hazard to the Blue Bay Marine Park (considered one of the most sensitive ecology sites and marine treasures of Mauritius). Following the event, India, Japan, and the International Maritime Organization dispatched a team of experts (IMO).

This isn't the first time something like this has happened. A ship had previously become trapped at this spot. It is only a few miles between Asia and the Cape of Good Hope, where nearly tens of thousands of ships pass by on their way to the South Pole. The Mauritius authorities were well aware of the tragedy, and they were aware of the dangers of a repeat calamity.

The International Maritime Organization (IMO) launched the "Djibouti Code of Conduct" regional maritime security cooperation pact in 2008. It was initially focused on piracy, but in 2017, it was expanded to include other environmental issues.

The Regional Seas Programme of the United Nations Environmental Programme and the Nairobi Convention continued to work on capacity building. This programme had a workshop a few months ago, during which oil spill prevention was reviewed and Mauritius provided an update on its national readiness status.

As a result, the Djibouti Code proceedings have begun, and the Nairobi Convention or regional cooperation agreements may play a significant role in this matter.

However, no progress has been made in this area. Locals have been attempting to remove the oil from the water, but it is proving to be a challenging task. Several marine species and coral reefs have perished.[10]

Conclusion
It is a flagrant breach of Annex 1 of the MARPOL Convention, which governs the avoidance of oil pollution from ships, and advises that new and existing tankers have double hulls. Mauritius was aware of this fact as well, but did not take any precautions. As a result, the authorities can be regarded insignificant and should be held accountable for the protection of marine life.

Our environment benefits from marine life. It is our obligation to safeguard and conserve it. Laws are pointless unless and until they are properly implemented. We also need to address our lack of understanding and conscience when it comes to marine life protection. We are also unwilling to conserve and preserve it because we are caught in a loop of trade and commerce at the expense of 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.

It is crucial to emphasise, however, that various non-profit organisations are working relentlessly to achieve the goal of marine life protection. Even if they are doing their best, marine life still requires the public's and government's combined efforts. It is critical that we recognise our responsibility for marine biodiversity as soon as possible.

End-Notes:
  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).
  7. Shamseer Mambra, 15 Brave Organisations Fighting To Save Our Oceans,
  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,
  9. Gard News Editor, US law - Criminal prosecutions of MARPOL violations
  10. Christian Bueger and Timothy Edmunds, Observer Research Foundation, September 2020.
  11. William Shakespeare, "Pericles, Prince of Tyre", Act 2, Scene 1, 1609.

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