The blue marble

Ocean Sustainability at Rio+20: a Justinian root to a cannon ball approach

After a long silence while trying to keep afloat as my home country, Spain, sinks in a storm of greed I am back at The Conversation!

Oceans Day, on June 8, was a springboard to ponder on the status of the ocean in preparation for the Rio+20 summit, which will address the sustainability of our use of planet Earth 20 years after the Río summit.

The Río Summit, formally the United Nations Conference on Environment and Development (UNCED, Río de Janeiro, Brazil, 3-14 June, 1992) lead to two important conventions, the Climate Change Convention which led to the Kyoto Protocol, The Convention on Biological Diversity and an agreement to “not carry out any activities on the lands of indigenous peoples that would cause environmental degradation or that would be culturally inappropriate”.

The Río+20 Convention (Río de Janeiro, 20-22 June, 2012) will revisit the Río Summit 20 years later and will focus on a green economy in the context of sustainable development poverty eradication; and the institutional framework for sustainable development.

The sustainability of the oceans continues to be an unresolved problem, as we continue to see disturbing trends in the ocean: coastal sprawl, loss of water and sediment quality in the coastal ocean, ocean acidification, eutrophication, siltation, hypoxia, with the associated loss of valuable habitats and fish stocks. Things are definitely NOT going well, and little improvement - and in fact much deterioration - has occurred since the Rio summit in 1992.

We can only conclude that despite much sweat talk, development has not been sustainable,as “development” takes priority, again and again, over “sustainability”.

In fact, I would claim that sustainable development emerged, as a concept, as an outcome of The Club of Rome’s exercise leading to the book by Donnella Meadows and co-workers entitled “The Limits to Growth”, which predictions, formulated 40 years, ago we still follow closely.

“The Limits to Growth”, developed the first global forecast model, which predicted an ongoing growth of population and of the economy until a turning point around 2030, leading to a collapse of industry, the economy and society. Avoidance of this turnpoint required strict measures of environmental protection to achieve “sustainable development”, where both world population and wealth could be maintained. These steps towards environmental stewardship have not yet been adopted. Will they ever be?

The sustainability of the oceans are further complicated because of the diffuse nature of ownership and governance, a heritage from Roman Law. In 535 AD, under the direction of Tribonian, the Corpus Iurus Civilis [Body of Civil Law] was issued in three parts, in Latin, at the order of the Emperor Justinian. The Book II, Part III. on “The Division of Things” stated that:

  1. By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations. …
  2. The seashore extends as far as the greatest winter flood runs up. …
  3. The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it. … … Garret Hardin revisited this concept in his seminal paper (Hardin 1969) that lead to the term “tragedy of the commons” referring to those goods, such as the oceans (and air, hence climate change), who belong to everyone and for which no one takes stewardship responsibilities.

Slowly, nations took ownership of the shore adjacent to their land, first through the three-mile rules still separating the statutory waters and resources under the watch of Australia’s state from those, offshore of three miles, under the watch of the Australian Commonwealth. The basis for the three-mile rule, still very much part of the governance framework of Australia’s marine governance is no other than the furthest distance that a cannon ball could be shot, the “cannonball rule” developed in the 16th Century by the Dutch jurist Cornelius van Bynkershoek. Is this a sensible basis to govern our marine waters and resources?

The wish to protect fisheries resources from overexploitation by foreign fleets, led President Truman to legislate 1945, US President Harry S. Truman issued two proclamations that established government control of natural resources in the US Continental Shelf. In 1972, a small nation, Iceland, unilaterally declared an Exclusive Economic Zone (EEZ) extending beyond its territorial waters, leading to a series of incident with British trawlers that prompted the Royal Navy to deploy warships, resulting in direct confrontations with Icelandic patrol vessels, the so-called “cod wars”. This ended in 1976 with Britain conceding to Iceland claim to 200 nautical mile (370 km) EEZ. All other nations followed soon after.

EEZ’s are regulated by the UN Law of the Sea, initiated in 1956 and still under development. Over half a century later, this law has not yet regulated the governance of living resources in the high seas, nor did the Convention for Biological Convention. Hence, the biological resources of the High Seas remain subject to the tragedy of the commons, and complex regulatory arrangements and redundancies render marine governance within economic exclusive zones cumbersome, including those in Australia.

However, the situation is changing as nations take bolder steps towards effective marine conservation, bringing into the oceans the goal, originated on land through the Convention of Biological Diversity to protect 10 % of the marine territory.

The announcement by Environment Minister Tony Burke’s of a national network of Commonwealth marine parks, including a huge protected area in the Coral Sea, is a major step forward for effective conservation of Australia’s rich marine resources, and a huge opportunity to achieve the sustainably deliver of wealth we deliver from our oceans. This development brings Australia at the forefront of marine conservation.


Hardin, Garret. (1969) “The Tragedy of the Commons.” Science. 162: 1243-8.

Codex Justinianus. Medieval Sourcebook: The Institutes, 535 CE.

Meadows, D.H., D. L. Meadows, J. Randers and and W. W. Behrens III.. 1972. The limits to growth. Universe Books.