Foreword: Really a Sea Change? – In Search of a Coherent and Consistent Sustainability Approach

in Sustainable Ocean Resource Governance
Free access

The title originally chosen for the invitation to the third Hamburg International Environmental Law Conference (hielc 2016, April 15 and 16, 2016) is, admittedly, not self-explanatory: “A Sea Change for Sustainable Ocean Resource Governance”. It might both require a question mark and deserve an exclamation mark when alluding to the notion of a “sea change”. The famous phrase stems from W. Shakespeare’s tragic comedy The Tempest which puts the sorcerer Prospero, in fact the usurped Duke of Milan, on a remote island, where he uses illusions and skilful manipulations such as the eponymous tempest to re-establish his daughter Miranda’s rightful position in society. It is Prospero’s magical servant, the spirit Ariel, who declaims: “Full fathom five thy father lies: Of his bones are coral made: Those are pearls that were his eyes: Nothing of him that doth fade but doth suffer a sea-change into something rich and strange”.

Quite obviously, “sea change” is used as an emblematic idiom for a profound transformation of something into something else. To discuss such a profound transformation in the way humankind makes sustainable use of maritime resources, reconciles economical with ecological interests and treats the oceans as truly its common heritage, can indeed be seen as an ambitious endeavour of Shakespearian dimensions. As Vladimir V. Golitsyn, President of the Hamburg based International Tribunal for the Law of the Sea (itlos), stated in his opening address, a sea change “implies a shift in the international community’s treatment of marine resources” – a shift away from the “laissez-faire-approach” still valid “until as late as the mid-twentieth century” to “sound management and conservation”. Notwithstanding the often expressed State consensus that the sustainable use and exploitation of the oceans’ abundant resources requires effective ocean governance, many sceptics – or should we call them realists? – are concerned that without a sorcerer’s magic powers the “shift” mentioned by President Golitsyn is doomed to failure. Sorcery and science, enchantment and politics, undoubtedly tread very different paths. They have very different instruments at their command to turn the world into a different place. The magic words’ immediate success might be the comforting illusion; the scientists’ achievements might rather be the discovery of a discomforting reality. The latter, however, can bring about a burdensome and lengthy but in the long run promising up-hill struggle towards a better outcome. Realism meets idealism, so to speak.

The landmark Paris climate conference of November/December 2015 displayed political will of the more idealistic kind. Following the adoption of the United Nations Framework Convention on Climate Change in 1992, 195 States ultimately adopted what could be described as the second global climate deal being legally binding in its application and universal in its regulatory aims. The usa’s intended withdrawal in 2019 is doubtlessly a return to harsh reality and a severe setback for the aspirational project but, as reassured by 19 out of 20 participating states during the Hamburg G20 summit in July 2017, not the end of the common climate-protective route embarked in Paris. Among others, the new Paris Agreement includes the long-desired and finally express recognition for the oceans as crucial factors in any climate regulation scheme. Under the programmatic category of “Ecosystem Integrity”, the marine ecosystems are mentioned both within the Preamble and within the operative part of the Treaty. The signatories expressly note “the importance of ensuring the integrity of all ecosystems, including oceans”. They furthermore subscribe to the “sustainable management of natural resources” and promise, in Article 5, to “take action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases”.

hielc 2016 – the outcomes of which we are happy to present and put forward for critical discussion in the volume at hand – not only endorses the “realism meets idealism” leitmotiv, but also follows up the vision of solely making sustainable and eco-friendly use of natural resources. In doing so, it addresses three key issues at the interface between sustainable economic growth, effective resource management and urgent environmental protection: deep sea mining, marine energy generation, and offshore pipeline and cable systems. It has been proven by experience, however, that sustainable environmental protection and sustainable economic growth more often appear as foes than friends. The sectoral nature of current ocean governance and the existing patchwork of management arrangements for the oceans do not facilitate the search for a coherent and consistent sustainability approach. This became quite clear when President Golitsyn in his opening remarks addressed the wider horizons of sustainable ocean resource governance and referred to the relevant statements made by the itlos, in particular in the 2011 Advisory Opinion of the Tribunal’s Seabed Disputes Chamber.

With regard to marine energy generation, these wider horizons were first substantiated by Gabriele Goettsche-Wanli, who provided a global perspective on sustainable production of offshore renewable energy, followed by Henning Jessen’s comment on the same topic. G. Goettsche-Wanli called for an “enabling legal environment” and foresaw effective offshore energy governance based on cross-sectoral collaboration as well as stakeholder participation. H. Jessen agreed to the necessity of an integrated, interdisciplinary and intersectoral approach. He reminded the States of their responsibilities by referring to them as “stewards of the global marine environment”. Jessen’s metaphor recalls – maybe not accidentally – Eyal Benvenisti’s notion of “Sovereigns as Trustees of Humanity” when analysing the “Accountability of States to Foreign Stakeholders” (in: ajil 107 (2012), pp. 295). The various types of energy from the ocean and in the oceans, as well as emerging technologies for deriving electrical power from the ocean (such as tidal power, wave power, ocean thermal energy conversion, etc.), indeed address the interests of humanity as such and open new perspectives for renewable energy creation. Fossil fuels – petroleum or natural gas underneath the ocean floor – may also be seen as some form of – though not renewable – ocean energy. The use and exploitation of all forms of marine energy is, however, highly environment-sensitive and needs – both offshore and onshore – to respect up-to-date standards of environmental protection.

How difficult it still is to establish an overall legal framework for the sustainable use of marine genetic resources became quite clear when Rüdiger Wolfrum shared his reflections on the “Realization of Sustainable Management/Development under the Law of the Sea Convention?” – a Convention that has been labelled by the President of the Third United Nations Conference on the Law of the Sea, Tommy Koh, as the “Constitution for the oceans”. Wolfrum emphasised that the principle of sustainability became “the leitmotiv of international environmental law” and endorsed the idea “that natural resources are managed in a way that they may benefit future generations” as well-established in international law and continuing to gain further ground. A more particular perspective was taken by David Kenneth Leary who discussed “International Environmental Law, Sustainable Generation of Energy from the Ocean and Small Island Developing States in the Pacific”. Yoshifumi Tanaka and David Freestone finally developed paths towards a “Sustainable Management of Marine Natural Resources”. Such a sustainability approach ought to take into account social development, economic growth and environmental protection, with particular emphasis on the needs and interests of future generations. The transformation of efficient exploitation into sustainable exploitation is thus inevitable.

It is not the intention of this foreword to comprehensively summarize the conference’s topics and to comment on every single submission of our esteemed authors. They speak for themselves. That said, it shall be highlighted here that the two above-mentioned keynotes and the relevant comments opened the floor for discussions on specific fields of application of sustainable ocean resource governance. In addition to marine energy generation, they encompass deep sea mining, as well as submarine cable systems. Concerning deep sea mining, while advocates believe that the future of mining lies at the bottom of the seas, opponents fear that industry-driven interests will do anything but provide adequate solutions to the urgent ocean sustainability challenges. The relatively new technique of “deep sea mining” indeed raises concerns regarding its potential impact on marine and coastal ecosystems. Since the complete consequences of full-scale mining operations are still subject to scientific uncertainty and further research is therefore necessary to fully understand all potential risks, the law governing this field has to qualify as a blueprint for effective risk management. The same holds true for providing legal instruments governing the development and protection of submarine cable systems. The deep seabed, being mankind’s common heritage, forms the habitat for the world’s underwater networks which needs to be governed by law. We greatly appreciate the most insightful contributions by Douglas R. Burnett, Edwin Egede, Pablo Ferrara, and Keyuan Zou on these issues. They also address questions of liability and responsibility, situating their arguments in the overall framework of the “common heritage of mankind”. The views expressed in all articles are those of the authors and should not be taken as reflecting in any way the policies or views of the institutions they are representing.

To conclude, it was a great pleasure for us to host hielc 2016 in the Free and Hanseatic City of Hamburg. We are honoured to continue the conference scheme established by our colleagues Hans-Joachim Koch (who retired) and Doris König (who has been appointed as judge of the German Federal Constitutional Court). We are glad that the conference brought together some 120 participants from nearly 30 countries worldwide. Only such a broad appearance makes it possible to successfully discuss global environmental problems and correlate national and international legal measures – a chance for a “sea change” through scientific exchange and inter-cultural communication.

We would like to thank all who helped to make hielc 2016 a success and in particular:

  • the City of Hamburg and First Mayor Olaf Scholz for enabling Internationaler Umweltrechtstag Hamburg e.V. to organise the conference,
  • all our sponsors for their generous support,
  • Christina Simmig and her student assistant Julia Bialek for the extraordinary job they did in managing the event; C. Simmig has been supporting the conference from preparation until publishing this 3rd hielc-volume and has been a reliable contact person for nearly everyone and every problem,
  • Michél Hennig from moodstyler for layout and corporate design as well as operating,
  • our speakers, discussants, and the audience from all over the world for joining the conference,
  • Pia Brandt, Eva Maria Bredler, Imke Frisch, Philip Heimann, Sebastian von Massow and Alexander Stark for doing tremendous editorial work to make this volume possible,
  • Marie Sheldon and John Bennett at Brill Publishing for their commitment to working with us to present this volume to a worldwide scientific community,
  • and last but not least the members of the board of the Internationaler Umweltrechtstag Hamburg e.V.

A “sea change” – did it already happen? Is it in a continuous process of happen? Will it ever happen? We invite you to study this volume – not to get final answers but to find inspiring ideas on some of the most topical issues of sustainable ocean governance.

Markus Kotzur, Nele Matz-Lück and Alexander Proelss

(Scientific Advisory Board of hielc 2016)

Sustainable Ocean Resource Governance

Deep Sea Mining, Marine Energy and Submarine Cables