Marine Environmental Governance

From International Law to Local Practice

Erika Techera

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136637377
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Marine Environmental Governance: From International Law to Local Practice considers the relationship between international environmental law and community-based management of marine areas. Focusing on small island states, in which indigenous populations have to a large extent continued to maintain traditional lifestyles, this book takes up the question of how indigenous customary law and state-based legislation can be reconciled in the implementation of international environmental law. Including a range of case studies, as well as detailed comparative analysis, it pursues an interdisciplinary approach to legal pluralism 'in practice' that will be of considerable interest to environmental lawyers, legal anthropologists, conservation biologists and those working in the area of community-based conservation.

Chapter 1

Introduction

Background

Since the early 1990s the concept of sustainable development has become almost universally accepted. It is this dominant paradigm that requires us to develop in ways that meet the needs of the present without compromising the ability of future generations to meet their own needs.¹ But implementation approaches and methods to resolve the often conflicting issues remain elusive. While many environmental problems can be seen to have global effects, international legal efforts by themselves have failed to achieve positive results. This is particularly evident in attempts to conserve biological diversity which have been complicated by issues of sovereignty over natural resources.

Successfully balancing social issues, the conservation of biodiversity and economic development is a daunting task for any nation, but particularly so for small island developing states, many of which suffer from a range of similar problems such as population pressures, cultural tensions and conflicts, economic constraints and environmental threats.² While the translation of broad aspirational principles into successful action is problematic, it is clear that it is a ‘systems problem’ requiring solutions which address both societies and ecosystems.³ It has been suggested that traditional ecological knowledge, and by extension customary laws and institutions that utilise it, may provide the link between the two systems.⁴

The international law arena is dominated by developed countries and the approaches taken are inherently centralised and Eurocentric. It is only recently that non-state actors, including indigenous peoples, have had a voice at this level. International law has provided a critical foundation of environmental law norms and sustainable development strategies. Yet the majority of international law requires implementation through domestic law and policy. The dichotomy of opinion as to whether sustainable development should be approached from a global or local perspective has continued for over 15 years. On one side are the commentators who point to environmental problems being global ones that require international solutions. This is the view taken by Byrne and Glover⁵, for example, who argue that globalisation and sustainable development are two sides of ‘a common vision of our future’.⁶ They call for international ecological management so that ‘global ecology, human society and economic activity’ may be maintained.⁷ On the other hand, there are those who support local approaches.⁸ This literature will be considered in Chapter 2. In summary, the rationale is that while environmental problems may be global in their impact, international law, by itself, has been largely ineffective in achieving positive outcomes. Other commentators go even further, arguing that addressing environmental problems at an international level has resulted in less effective laws, as local institutions have been weakened.⁹

At the national level, centralised approaches have been taken, with limited success, by various governments, and it is in this context that new approaches have been sought. It is now widely recognised that bottom-up, community-based, participatory mechanisms may be preferable. This appears to be the case in developing nations with weak capacity for implementation of national laws and customary law systems that continue to operate at the local level. Attention has turned to local communities for a number of reasons: growing international recognition of human and indigenous collective rights (including the right to development); key principles of sustainable development supporting localised approaches (including inter-generational equity and public participation); growing awareness of traditional sustainable marine resource management mechanisms (incorporating traditional knowledge and customary laws); and in the context of the Pacific islands, the continued adherence to customary law in these legally pluralist societies. During periods of colonial rule, customary laws were subordinated to the introduced common law. With increasing international pressure to strengthen local participatory conservation mechanisms, however, support for the recognition of customary law has grown.

Nevertheless, community-based initiatives are unlikely to provide a complete solution and a broad range of legal frameworks and institutions is needed to address the complexity and diversity of environmental concerns.¹⁰ For example, international institutions may be best suited to assist in technology transfer and funding allocation, while national bodies have important compliance and enforcement functions. Furthermore, it has been noted that research in relation to appropriate regulation must be ‘geared towards culturally acceptable solutions’ which may be better addressed at the local level.¹¹ While there is a growing body of literature in relation to sustainable development in the Pacific,¹² ‘best-practice’ legal options to support locally based management of natural resources have not been fully investigated. The challenge, therefore, is to identify the tools, processes and institutions necessary for communities and nations to develop appropriate legal frameworks which support community-based environmental management (CBEM). The appropriate roles for top-down and bottom-up approaches need to be identified, in order to facilitate mutually supportive action at the global, national and local levels. The focus in this book is upon the small island states of the Pacific; a part of the world which receives relatively little research attention in this area but which offers many valuable lessons. Therefore, this book provides a distinctly regional approach to sustainable development and marine environmental governance.

From global to local approaches

It is clear that the analysis of the underlying bases for localised approaches to marine management and the recognition of customary law is timely. The last 30 years have seen a rapid development of international law and policy in the context of sustainable development and marine environmental governance. This has been followed by global efforts to facilitate national action, and operationalisation of international obligations, through action plans and implementation programmes. Spurred on by a series of soft law agreements, intergovernmental reports, non-governmental organisation (NGO) guidelines and scholarly articles, there has been a movement to ensure that indigenous and local communities participate in environmental management mechanisms.¹³ Therefore, the focus has turned to localised approaches to good environmental governance which meet multiple objectives: sociocultural improvement, economic development and environmental conservation. In particular, the concern is to identify effective legal frameworks that will ensure the achievement of long-term sustainability goals. In the context of CBEM, legal approaches are needed that support the longevity of projects, past the initial pilot phase, short-term funding or the influence of strong individual leaders.¹⁴

Several legal approaches are evident from the literature including the human rights and equity (intercultural justice) discourses. More recently, international environmental law has focused upon alleviation of poverty and the creation of sustainable livelihoods as keys to achieving sustainable development. Therefore, academic and policy writers have focused upon these social goals and their integration with environmental, economic and development issues. While there is a large quantity of multidisciplinary material on both sustainable development and good environmental governance, the focus here will be upon the literature that seeks to translate international environmental laws into local participation and governance of natural resources.

While localised approaches have widespread support, it is for a number of different reasons. The first argument is that countries of the north and south are at different stages of development with different sensitivities to issues such as poverty and equity which preclude a ‘one size fits all’ international approach.¹⁵ An alternative basis is that sustainable development requires public involvement in the form of indigenous and local community participation rights.¹⁶ Maragia extends this by arguing that community participation combined with the use of traditional knowledge together contribute to sustainable development.¹⁷ The commentators argue for re-empowerment of local communities¹⁸ and cooperation at the international, national and local levels.¹⁹

Research in relation to CBEM undertaken by academics and NGOs has tended to focus upon specific case studies in the context of existing centralised, top-down legislation.²⁰ In recent years, however, there has been an increasing focus on customary law to support localised approaches to sustainable development.²¹ There is a lack of literature dealing directly with the issue of appropriate legal frameworks to support CBEM, and even less involving legal regimes incorporating a harmonised and hybridised approach to customary law and western-style legislation.

From a conservation and management perspective there is a body of literature which considers the different mechanisms that might be utilised to achieve best-practice conservation, including protected-area management and rights-based approaches.²² Furthermore, there are some writers who have addressed the issue of best-practice guidelines for achieving long-term sustainable community-based conservation. This literature, explored in Chapter 4, largely relates to the various approaches that include support for the environmental management paradigm, co-management and local indigenous governance.

In turning to the law for support, several different themes have emerged from the literature: first, the idea and relevance of legal pluralism;²³ second, the difficulties involved in defining customary law;²⁴ and third, the bases upon which customary law may be incorporated into the dominant legal system have been identified (including rights-based approaches and principles of justice and equity).²⁵ While recognition of customary law may be desirable, there remain issues of whether formal recognition or functional recognition is best. This literature will be reviewed in detail in Chapter 5.

This book seeks to fill a gap in the literature by exploring the translation of international law into local practice. Sustainable development law and policy and marine environmental law norms that have developed at the international level are examined with a specific focus upon support for localised approaches. Thereafter, national responses and implementation efforts are considered, drawing upon the experiences of Pacific islands and national legal support for community-based marine management. A further purpose is to identify, from the experiences of various Pacific nations, what may be regarded as best practice. This book will add to the literature in the field and in particular to our understanding of appropriate legal support for community-based marine management. By providing a comparative analysis of the legislative and constitutional contexts and the laws supporting localised conservation approaches in the chosen countries, options for legal frameworks can be identified which will contribute to resources and a body of knowledge which may be used to assist other nations.

The Pacific context

The Pacific islands region is both culturally rich and biological diverse. Over time the indigenous peoples developed beliefs which place great value upon, and trust in, wildlife resources. Their motivation in managing wildlife has come from a cultural and spiritual connection with nature which places stewardship obligations upon the people as well as the right to take and use those resources for subsistence needs. While the close cultural relationship that indigenous people of the Pacific have with nature and marine living resources is well established,²⁶ most western countries (and their colonial outposts) ignored this relationship and instead adopted ‘fortress’ style conservation and protected-area management regimes. Consequently, indigenous peoples, their traditional knowledge and customary law have not been utilised in these regimes. In the majority of countries, alternative western-style legal systems were imposed upon the indigenous customary law regimes during colonial rule. The majority of t...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• List of abbreviations
• Table of cases
• Table of treaties and other international instruments
• Table of national legislation
• 1. Introduction
• 2. Sustainable development: Theory, practice and law
• 3. Marine environmental law, fisheries and small island states
• 4. Communities and conservation
• 5. Customary law and post-colonial societies1
• 6. Law, custom and conservation in the Pacific
• 7. Legal frameworks for community-based marine management
• 8. Conclusion
• Bibliography
• Index