Professor Petra Butler considers the advantages for climate change and the environment of putting the ocean at the centre of protective law-making.
The ocean is a continuous body of saltwater that covers more than 70 percent of the Earth’s surface. It holds about 1.34 billion cubic kilometres of water—roughly 97 percent of the Earth’s water supply.
Ocean currents govern the world’s weather and contain a kaleidoscope of life—from tiny single-celled organisms to the gargantuan blue whale, the planet's largest living animal. The ocean produces over half of the world’s oxygen and absorbs 50 times more carbon dioxide than our atmosphere. It is an important food source, an integral part of the economy, provides an import transport route, and has been a source of artists’ inspiration for centuries.
Despite having been explored since the beginning of time, more than 80 percent of the ocean is unmapped and unexplored.
Given its importance, should the ocean be awarded legal personality akin to New Zealand’s Te Awa o Whanganui or Te Urewera?
Putting to one side whether this would be possible under public international law and whether one could persuade the community of states to agree to it, the first question is would there be a benefit doing so?
One distinct advantage from the legal perspective would be the ocean would be at the centre of law-making rather than being objectified for a particular purpose. Let me explain this by examining maritime boundaries and trade on the ocean.
Maritime boundaries law explores the relationship between states and maritime space. States’ ability to uphold sovereignty at sea has led to oceans becoming subject to explicit international jurisdiction.
How states have viewed and used the sea—eventually attempting to control and develop a legal order for it—has varied and changed over the past millennium. From the fifteenth to the nineteenth centuries, the use of maritime space in exploration, dominance and industrialisation transformed the world. Since the turn of the millennium, technological developments, increased seaborne trade, growing demand for marine resources and climate change effects on the oceans and the location of those resources have led to a renewed focus on maritime space, as well as states’ rights and responsibilities within this domain, delineated through the concept of a ‘boundary’ at sea.
Maritime boundaries are fundamentally important for all states, but especially small island ones with large maritime areas. They determine a state’s entitlement to fisheries and mining rights, and where they are disputed, or uncertain, this can lead to conflict between states.
A further challenge for small island states is the impact of climate change on these maritime boundaries. If an island becomes substantially smaller, or even inundated, due to rising sea levels, what happens to the boundaries and rights it was previously entitled to? Should small island states be able to keep entitlements now under threat due to climate change, which is generally caused by events outside their control?
From the ocean’s point of view, the answer would be “I don’t care. Whatever you do, please do not pollute me from military manoeuvres.”
How would we have done our online shopping during COVID-19 if it weren't for the ocean? The most recent available data shows New Zealand imported goods worth more than $50 billion through its seaports. The United States maritime transportation system carried US$1.6 trillion of cargo through US seaports to and from its international trading partners. More than 90 percent of world trade is carried across the ocean by more than 90,000 ships.
The ocean is a trade lifeline highly regulated by laws and rules. Does the ocean care about those intricate webs of law—e.g. whether the buyer can rescind the contract because the ordered goods did not arrive when a ship got stuck in the Suez Canal? No, it doesn't. What the ocean is concerned about is the plastic pollution from ships, the noise pollution and the carbon dioxide emissions that significantly contribute to its acidification and impact its temperature.
Climate change and environmental laws are trying to protect the ocean. But can they protect the ocean efficiently if those laws are just concerned with regulating the environment and preventing climate change without regarding boundaries “erected” by states in the ocean, or trade and its laws and rules on the ocean?
Should there not be a reset of the ordering of the ocean? And would a starting point not be to give the ocean legal personality?
In a three-part in-person and Zoom breakfast seminar series, which started on Tuesday 15 June and is organised by the New Zealand branch of the International Law Association, the Institute of Small and Micro States, the New Zealand Association of Comparative law and the New Zealand Centre of International Economic Law, experts explore the role of the ocean in today’s world.
Professor Petra Butler is in the Faculty of Law at Te Herenga Waka—Victoria University of Wellington. She is director of the Institute of Small and Micro States.