Civil liability for damage to marine biodiversity under international law

Abstract

Marine biodiversity is of significance to the existence of humankind but has been experiencing globally continuous deterioration due to anthropogenic activities in the past decades. It has been generally accepted that damage to marine biodiversity is mainly caused by marine pollution, alien invasive species, unsustainable use and overexploitation of resources such as overfishing, destructive fishing operation and illegal, unreported and unregulated fishing, habitat loss, and climate change. Due to its importance, marine biodiversity must be protected and when damaged there should be liability imposed on the polluter. This thesis assesses the extent to which existing international law covers damage to marine biodiversity, permits actions and ensures recovery.

To answer these questions, this thesis comprehensively examines the relevant international legal instruments on prevention and protection of marine biodiversity. It finds that protection of marine biodiversity under the current regulatory framework is piecemeal and no comprehensive liability regime exists. The factors hindering the development of an international liability regime for such damage include conceptual problems of the concept of marine biodiversity and the definition of damage to marine biodiversity, and the lack of baseline conditions as reference for the damage.

Because of the gaps and inadequacy of the existing regimes which concern liability for damage to marine biodiversity, the thesis advocates that a liability regime for such damage shall be established and several important elements of such a regime are analysed. For this regime, the thesis discusses the theoretical basis first and then suggests a structure that will include relevant national legislation to be developed or refined, changes of the current multilateral liability regimes, and the creation of a new international legal instrument comprehensively addressing liability for damage to marine biodiversity within and beyond the areas of national jurisdiction. Significant obstacles in developing such a regime are identified and discussed.

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