The protection of rare or fragile marine ecosystems, which are often hosts to significant biodiversity, had already been promoted by Art. 194(5) UNCLOS, although it contained no express mention of the establishment of MPAs. The need to create MPAs was, however, openly acknowledged in Agenda 21, which identified priority areas for protection,49 and is included in regional treaties, including the OSPAR Convention and SPA Protocol mentioned above. Today, the creation of MPAs is considered a priority and Sustainable Development Goal (SDG) 14, target 14.5, requires States to protect ten percent of marine waters by means of MPAs by 2020.

While the need to establish MPAs, also in ABNJ, has become increasingly clear, the legal complexities of such a process have not diminished. The fact that no State exercises exclusive jurisdiction on the high seas implies that no State can unilaterally adopt and implement measures to create an MPA that would have a binding effect on all other States. In particular, no State may exclude or limit the transit and activities of vessels flying foreign flags on the high seas, nor may it regulate other activities that might have an impact upon biodiversity. It is thus necessary to rely on international cooperation in order to create MPAs on the high seas.

Currently, some international organisations have a mandate to establish protected areas on the high seas. These MPAs, however, are subject to important limitations, due either to the membership of the organisation or to the limits to the organisation's mandate (Freestone 2018). For example, the MPAs that can be created under the OSPAR and SPA Protocol, mentioned above, are actually only applicable, as a matter of law, to the parties to those agreements. The International Maritime Organization (IMO) can adopt Particularly Sensitive Sea Areas (PSSAs),50 which, due to the global membership of the IMO, apply to virtually all States. However, PSSAs address only pollution from vessels, because of limits to the IMO's mandate. Since the high seas are open for the use of all States, it is clear that only a global agreement could provide a stable legal basis for the creation of MPAs in ABNJ. This gap in legal regulation has brought to the fore the need to develop new legal instruments and rules to regulate how MPAs, applicable to all States, could be created on the high seas.

Another issue that has polarised the attention of States concerns access to and exploitation of marine genetic resources in ABNJ (Leary 2007; Kirchner-Freis and Kirchner 2014; Mossop 2015). Bioprospecting activities carried out by private actors in ABNJ and the subsequent patenting of genetic material recovered from ABNJ ignited a debate within the international community concerning the legal regime that regulates access to and exploitation of marine genetic resources in ABNJ. 51 Genetic material from ABNJ may have a high commercial value and at the same time is often difficult to access.

46 Art. 137(1) UNCLOS.

47 Art. 140 UNCLOS.

48 Art. 133 UNCLOS.

49 Agenda 21 - Global Programme of Action on Sustainable Development, UN doc. A.CONF/151/26, para. 17.85.

50 IMO Res. A.927(22) Annex 2.

51 CBD SBCTTA, Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed, UN doc. UNEP/CBD/SBSTTA/8/ INF/3/Rev.1.

This has meant, in practice, that only few companies from very few States have the technical capacity to access and use this material. Economic and other benefits deriving from it, therefore, are unequally distributed at the global level.

This picture is due, to a significant extent, to the gaps that exist in the current legal framework (Scovazzi 2010). While some interpret freedom of the high seas as freedom to access and exploit marine genetic resources located in the water column beyond national jurisdiction, others contest this understanding. As to resources on or under the seabed beyond national jurisdiction, two theories have been advanced. According to the first, mostly supported by developing States, these resources fall within the regime of the Area, regulated in Part XI of the UNCLOS, which states that the resources of the Area are the common heritage of mankind and establishes a complex legal and institutional framework regulating access to and exploitation of these resources. According to the second theory, the letter of Art. 133(a) UNCLOS excludes living resources from the regime of the Area; consequently, these fall under the freedom regime applicable on the high seas. Disagreement between the two groups of States formed the basis for the developments that currently characterise action by the international community.

recommended to the UNGA that a process be initiated to ensure the conservation and sustainable use of marine biodiversity in ABNJ "by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement" under the UNCLOS.53 In 2015, the UNGA convened a Preparatory Committee (PrepCom) with the aim of developing recommendations regarding a draft text for a legally binding instrument on biological diversity in ABNJ.54 The PrepCom submitted its recommendations to the UNGA in September 2017, on the basis of which the UNGA decided to convene an Intergovernmental Conference (IGC).55

The IGC is tasked with developing an international legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of ABNJ. 56 The IGC's mandate includes the following four issues: "marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology". 57 The IGC has so far held three sessions. The fourth session, which was to be the final session, was originally sched-

#### 4 Towards a New Treaty on Marine Biodiversity in ABNJ 53 'Oceans and the Law of the Sea', UNGA Res 66/231

The important economic and political issues raised by exploitation of marine genetic resources in ABNJ prompted the UN to take action and address the gaps in the current rules governing marine biodiversity in ABNJ. In 2004, the United Nations General Assembly (UNGA) created the Ad hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (BBNJ Working Group).52 In 2011, the BBNJ Working Group

52 'Oceans and the Law of the Sea', UNGA Res 59/24 (17 November 2004) UN doc. A/RES/59/24, para 73.

(24 December 2011) UN doc. A/RES/66/231, Annex – 'Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction'.

54 'Development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction', UNGA Res 69/292 (6 July 2015) UN doc. A/RES/69/292.

55 "International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction", UNGA Res 72/249 (24 December 2017) UN doc. UN A/RES/ 72/ 249.

56 Ibid, para 1.

57 Ibid, para 2.

uled for 2020, but was postponed due to the Covid-19 crisis.58

From a formal point of view, the decision to aim for a legally binding instrument, i.e. a treaty, is noteworthy. At a time when much of international law, including law of the sea, is developed through the use (and abuse) of soft law instruments (Klein 2022), the option to have a hard law instrument to address protection of marine biological diversity in areas beyond national jurisdiction is a clear sign of the international community's determination to address the topic.

At the same time, the fact that the new instrument will be a binding treaty under international law presents some challenges, which are likely to affect both the negotiating process and the effectiveness of the treaty itself, once it is adopted. While the latter point will be developed in the next section, it is worth mentioning here that the new treaty will need to be coordinated not only with the UNCLOS and the CBD, but also with all other global and regional treaties and international bodies that have a bearing on biodiversity protection or activities that may impact biodiversity. Furthermore, the effects of the new treaty on non-parties should be considered (Ma and Zhou 2021). A treaty only becomes binding once it enters into force,59 and for this to happen it must be accepted by a certain number of States. A successful conclusion of the IGC negotiations should produce a treaty which is not only good in itself, but one which is also acceptable to the States who will be called to ratify it. Given its global scope, the new treaty should be ratified by the vast majority of States, if not all, in order to be effective.

From a substantial point of view, the IGC's mandate includes not only the above-mentioned issues of marine genetic resources and MPAs, but also EIAs and capacity building and technology transfer. The inclusion of EIAs derives from the fact that regulation of marine genetic resources and MPAs, alone, is not sufficient to ensure protection of biological diversity in ABNJ. Access to and exploitation of genetic resources is only one of many activities that may have an impact on marine species in ABNJ. Moreover, even if a significant number of MPAs, including MPA networks, were to be established, these would certainly not cover the entire space included in ABNJ and would leave significant areas without protection. It is therefore necessary to consider all human activities carried out anywhere within ABNJ, in order to evaluate whether they might produce adverse effects upon biodiversity. Hence the need to provide for mandatory EIAs in cases where human activities might significantly compromise the integrity of marine ecosystems.

The last element of the package relates to capacity building and technology transfer. This topic, of particular concern to developing States, was previously discussed in the UNCLOS negotiations, resulting in Part XIV of the UNCLOS on "Development and Transfer of Marine Technology". However, this part has often been regarded as one of the parts receiving least attention. Hence the new call from developing States, during the preparation for the IGC, to include the topic within the IGC mandate. Furthermore, since access to and use of marine genetic resources is largely dependent on available technology, developing the capacities of all States and providing them with the technologies required to undertake bioprospecting and exploit genetic material would level the playing field and would allow all States to reap the benefits of marine genetic resources.

The four issues to be addressed by the IGC are considered a package, since the UNGA has tasked the Conference with addressing them "together and as a whole". 60 This means that, in order for the negotiation to be successful, all four issues must be addressed to the satisfaction of the participating States. The basis for this decision is

58 The fourth session is now scheduled for March 2022; there are doubts, however, as to whether it will be the final one; see 25(218) Earth Negotiations Bulletin (2 September 2019) at <https://enb.iisd.org/download/pdf/enb25218e. pdf>.

60 This was the procedure adopted already in the Third United Nations Conference on the Law of the Sea, which produced the UNCLOS. 59 Art. 24 VCLT.

that the importance of each topic differs for the various States involved. For example, while developed States, driven by civil society organisations, place more emphasis on the need for a network of MPAs, developing States consider that it is crucial to have a legal regime on marine genetic resources that will allow them to access these resources and reap the benefits deriving from them. The package deal option would therefore give each group of States some bargaining power, with a view to reaching a compromise that could be transferred into the new treaty.

#### 5 The Beginning of a Process

The international community appears to have understood the significance of marine biological diversity in ABNJ and the multiple threats that endanger it. The decision of the UNGA to adopt a treaty that will fill gaps in the law of the sea, as well as the ongoing negotiations within the IGC, testify to the willingness of States to address these issues, and to do so using binding legal instruments. At the same time, there are still a number of factors which might delay and potentially jeopardise current efforts. Some factors are internal to the negotiation, while others are external (Papastavridis 2020).

Within the IGC process, it is worth highlighting that, after over fifteen years of preparatory work and three years of formal negotiations, the positions of some States are still far apart. Developed States continue to push hard for the establishment of a system of MPAs on the high seas, yet do not seem particularly willing to make concessions on marine genetic resources and technology transfer. The numerous alternatives still present in the draft negotiating text also bear witness to this distance between States.61 If no compromise is found concerning marine genetic resources, the negotiation as a whole is unlikely to reach a successful conclusion.

In addition, the IGC's mandate, while consistent, may not prove sufficient to truly guarantee the protection and preservation of marine biological diversity in ABNJ. Although the four elements of the package do, in fact, cover some key aspects of biodiversity protection, they do not exhaust the topic, since there are further issues of concern. It will suffice to mention 2020) climate change, including warming of the oceans and ocean acidification,62 both of which have detrimental effects on marine species. While MPAs may contribute to dealing with climate change (Smith 2020), they are by no means the solution to the problem. Comprehensive protection of biodiversity, including in ABNJ, cannot leave climate change out of the picture, even if the origins of this phenomenon are mostly to be found on land.

Turning to external factors, these relate not only to contingent problems, above all the Covid-19 crisis, which has delayed negotiations, but also to limitations of international law as a legal system, and to deeper issues, concerning in particular the method adopted to address issues pertaining to ABNJ.

The decision to seek to adopt a treaty, rather than a soft law instrument, is certainly evidence of serious intent and actually the only option available, in the absence of rules of customary international law. However treaties, which are one of the main sources of international law, raise some issues when called on to address global and pressing challenges. A treaty is only binding once it has entered into force and only on those States that have accepted it. There is likely to be a certain time lag between adoption of the new treaty and its entry into force, and even when it does come into force, it will not be immediately binding on all States. Private actors might exploit this fact and opt for the nationality of non-parties,

61 Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN doc A/CONF.232/2019/6.

62 SDG 14 Target 14.3 requires States to "minimize and address the impacts of ocean acidification, including through enhanced scientific cooperation at all levels".

so as to bypass legal obligations concerning protection of biodiversity in ABNJ.

More broadly, the current paradigm, which is still premised on the principle of freedom of the high seas and exclusive flag state jurisdiction, has proven unsatisfactory in successfully addressing the many challenges posed by human activities on the high seas. Even if the new treaty were to be adopted, enter into force, and be ratified by a sufficient number of States to ensure its generalised application, it would still be difficult to effectively monitor the high seas and enforce the treaty's provisions. Exclusive flag state jurisdiction, combined with the widespread use of flags of convenience and the ease with which a vessel can be reflagged, even when it is navigating the high seas, facilitate the avoidance of rules and the persistence of deplorable, albeit not entirely unlawful, conduct.63

This phenomenon is well-known in other fields, in particular efforts to address Illegal, Unreported and Unregulated (IUU) fishing on the high seas (Palma et al. 2010; Rosello 2021). It is only through the combined action of law-making, law enforcement and economic and political sanctions that States have achieved a certain level of success in curbing IUU fishing. Lessons might be learnt from that field, but always keeping in mind the peculiarities of biodiversity protection.

In conclusion, it is still too early to advance any meaningful considerations on the capacity of the ongoing IGC and the future treaty to effectively address biodiversity protection in ABNJ. Two facts do, however, seem clear. First, regardless of the outcome of the IGC, existing rules, instruments and bodies will still have a role to play in ensuring protection of marine biodiversity in ABNJ (Ardron et al. 2014). Second, successful conclusion of the IGC would be a major milestone, but it would by no means be the end of the process, which would need to continue in order to ensure that marine biological diversity in ABNJ is effectively protected.

#### References

63 Reform has already been suggested by scholars, e.g. Geiss and Tams (2015).

actors. In: International Tribunal for the Law of the Sea (ed) The contribution of the international tribunal for the law of the sea to the rule of law: 1996-2016 la contribution du tribunal international du droit de la mer à l'état de droit: 1996-2016. Brill, Leiden, pp 83–95

shipping, regional issues. Martinus Nijhoff, Leiden, pp 457–471

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License ( ), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made. http://creativecommons.org/licenses/by/4.0/

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## Climate Change and the Ocean: The Disruption of the Coral Reef

Fabio-Massimo Battaglia

#### Abstract

Even though coral reefs represent a negligible percentage of the ocean floor, they are wardens of incredible biodiversity. They provide support for at least 500 million people with food security and livelihoods, mostly in poor or developing countries.

Despite their importance, coral reefs are also extremely fragile. They are among the most damaged and threatened ecosystem due to unprecedented global warming, ocean acidification and climate changes, combined with increasing local pressures. These incredible ecosystems are calling us into action towards more efficient protection to ensure their conservation and restoration.

#### Keywords

Biodiversity · Biomimicry · Climate change · Coral reefs · Community-based approach · Restoration

#### 1 Introduction

If we listen to the David Bowie song 'Space Oddity', Major Tom tells ground control that

F.-M. Battaglia (✉)

"Planet Earth is blue and there is nothing I can do". Fortunately, this is not the case for us. We can do something, and we should.

Oceans cover almost 70% of the Earth's surface. They are the most productive ecosystem, housing the vast majority of all known species. This unequalled habitat plays a crucial role in regulating global temperature and controlling our climate and weather patterns. The oceans are the primary producer of oxygen, and they also absorb large amounts of carbon dioxide.

Even though coral reefs represent a negligible percentage of the ocean floor—less than 1% they are wardens of great biodiversity, more so than any other habitat. These reefs harbour a quarter of all marine life, and they provide support for at least 500 million people with food security and livelihoods, mostly in poor or developing countries. Furthermore, at a time when rising sea levels suggest that there is a real risk of small islands and atolls disappearing, it is essential to highlight how coral reefs play a pivotal role in protecting the coastline from floods and additional harm. These reefs protect shorelines by dissipating the force of the waves and floods, thereby helping to preventing loss of life, property damage and erosion.

Unfortunately, despite their importance, coral reefs are also extremely fragile. They are among the most damaged and threatened ecosystem due to unprecedented global warming, ocean acidification and climate changes, combined with increasing local pressures.

Catholic University of Portugal, Global School of Law, Lisbon, Portugal e-mail<EMAIL_ADDRESS>
# The Author(s) 2023

M. d. G. Garcia, A. Cortês (eds.), Blue Planet Law, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-031-24888-7\_10

Coral reefs are seriously threatened by climate change, and we cannot ignore this. In recent years, due to the mounting anthropogenic pressure from pollution and over exploitation alongside the rise in the global temperature, coral reefs around the world have suffered mass coral bleaching events that increase their vulnerability. Coral reefs are dying, and if we continue to act as normal, the vast majority of coral reefs will cease to exist by the end of this century.

The only way to avoid this scenario and ensure the survival of coral reefs is to maintain the global average temperature well below 2 °C above pre-industrial levels. Doing so would make it possible to improve coral reef living conditions in addition to introducing other measures to preserve, rescue and restore them. Such other measures alone would not be sufficient, as they cannot save coral reefs unless GHG emissions are also limited.

These incredible ecosystems are calling us into action towards more efficient protection to ensure their conservation and restoration.

What consequences would the loss of coral reefs have? What can be done to protect this heritage for which we are responsible? By answering these questions, this chapter also aims to analyse how the international environmental legal framework is acting to support and improve the conservation of coral reef ecosystems. We will also consider whether the current environmental treaty rules are sufficient to meet this challenge or whether it is necessary to change the paradigm and our perspective on nature and biodiversity. Moreover, it will also be essential to reflect on creative solutions that embrace a new perspective, based on sustainability and the coexistence of man with the environment. It is impossible to think about safeguarding our planet's biodiversity without considering economic, social and technological development and the dynamics of this.

#### 2 An Incredible Ecosystem

The oceans are already interesting and productive ecosystems, which host, within them, incredible wonders, and a large amount of biodiversity. They are often identified as the blue lung of the Earth; they cover much of our planet and represent our greatest resource. As mentioned before, the Oceans play a notable role in regulating global temperature and governing our climate and weather patterns. Furthermore, they are the primary producer of oxygen, and they also absorb large quantities of carbon dioxide. None of this, however, conveys the full extent of their importance. In this vast ocean environment, the smallest but surprisingly crucial asset is coral reefs.

Without going too far into matters that are beyond the scope of this work, it is, however, interesting to note how coral reefs are composed. Coral reefs are complex structures that have been formed over thousands of years due to the deposition of calcium carbonate skeletons of coral species that form the reef. The coral is an organism belonging to the Anthozoans, small polyps of a few millimetres in size grouped in colonies that can belong to over five thousand different species. These polyps live in symbiosis with the underlying unicellular algae, which give the coral formation its characteristic colour. It is these algae that have the function of carrying out photosynthesis and producing nourishment for the coral polyps (Creary 2013).

There are several species and different kinds of corals; they can be found in deep water and also in the shallow waters surrounding the ocean environment. However, it is essential to distinguish between corals in cold or warm water (Goodwin 2006). For this study, we will focus only on warm water corals, which are common in the coastal tropical areas, and which make up the reefs covered by this chapter.

Finally, it is critical to highlight that while it is difficult for this type of coral to persist in low temperatures, coral reef-building in shallow tropical marine areas is only possible where the water temperature is between 18 and 30 degrees centigrade (Hoegh-Guldberg 1999). Therefore, the temperature of the water is a crucial aspect for the survival of the entire coral reef ecosystem.

Why are coral reefs important, and what is the issue? As mentioned before, coral reefs represent one of the richest ecosystems in terms of

biodiversity. Although they occupy only a very small portion of the ocean surface, coral reefs are home to more than a quarter of all fish species and marine animals. Furthermore, coral reefs provide a wide variety of ecosystem services and benefits for the populations living close to them. They are indeed not only a source of subsistence food but also protect coastal areas from floods, as well as supporting the fishing and tourism industries.

Coral reefs are considered to directly support more than 500 million people by giving them the minimum subsistence for survival (IUCN 2017). This figure is even more important if we consider that most of these people live in poorer or developing countries. Thus, given this huge number of people from different cultures who rely on coral reefs, it is easy to understand how the disappearance of this type of ecosystem would have a severe impact not only in environmental terms but also at the economic, social and cultural level.

It may also be useful to point out that coral reefs are seen as a prime indicator of the health of the global environment. Since they are a very sensitive ecosystem, they react very quickly to climate change, pollution and anthropogenic stress. For this reason, they are considered an alarm bell, showing us what could happen to other less sensitive systems. If climate change is not urgently addressed, the deterioration of other systems could unfold more rapidly and irreversibly (IUCN 2017).

#### 3 A Critical Issue

Coral reefs around the world are suffering. Recently there has been much discussion about the risks and dangers for the future of coral reefs. We are witnessing increasingly frequent coral bleaching events; but what do these events mean and what are the causes?

Anthropogenic climate change is putting coral reefs under pressure; greenhouse gas emissions have caused a rise in the global surface temperature and increased acidification of the oceans.

These facts, in addition to growing local pressure, have led to unprecedented mass coral bleaching events, which have made coral reefs one of the most endangered ecosystems on the planet.

Coral bleaching occurs when the water temperature is too high and this has a negative effect on the symbiosis between polyps and algae. The latter are expelled, and the polyps are deprived of their nourishment. When these conditions last for an extended period, the polyps die, and the absence of algae turns the coral structures white. Coral bleaching events often lead to the death of large numbers of corals. Moreover, other types of algae can take over a damaged reef and create a different new environment where the growth of new corals is more difficult.

Dead corals are rapidly destroyed by marine erosion, which is no longer retarded by the production of new calcium carbonate. Furthermore, the death of polyps damages the food chain, with repercussions for the marine fauna of the entire coral ecosystem (Heron et al. 2017).

The consequences for the human population and the economy can also be devastating. As we have seen, in many areas of the world, especially in poor and developing countries, subsistence activities such as fishing or tourism depend heavily on coral reefs. Furthermore, the loss of these structures reduces the natural defence against coastal erosion from floods and destructive storms associated with extreme weather events.

The first cases of bleaching were observed in the 1990s along the Australian Great Barrier Reef, after a warming of the Pacific waters due to the periodic climatic phenomenon known as El Niño.

Another critical phase occurred in 2010, but it was between 2014 and 2017 that these events began not only to last longer but also to be more extensive, as they affected over 70% of the world's coral reefs (Heron et al. 2017).

The vast majority of the reefs around the world have suffered from mass bleaching events with devastating effects. Overall, it is estimated that almost 50% of the world's corals have been lost in the last thirty years. Some authors fear that only 10% of those still existing in the world will survive beyond 2050, and by the end of this century we could permanently lose this incredible ecosystem (Obura 2017).

These catastrophic data indicate that we are no longer facing only periodic fluctuations in ocean temperatures linked to El Niño, but slow and inevitable rises in seawater temperatures, produced by global warming.

The bleaching of corals and their ultimate death due to heat stress that has been observed over the past three decades is expected to continue and intensify over the next few decades unless GHG emissions are dramatically reduced (Heron et al. 2017). Unfortunately, corals cannot survive the frequency of current bleaching events, and ocean acidification due to the high level of GHG emissions is continuing to increase. The first global scientific assessment of climate change impacts on World Heritage coral reefs published in 2017 by UNESCO—highlights that if humans continue to act under a business-asusual scenario bleaching events will increase in intensity and frequency. The consequence will be that almost all coral reefs in the World Heritage sites would cease to exist as functioning coral reef ecosystems by the end of this century (IUCN 2017).

#### 4 What Are We Doing?

Fighting coral bleaching is one of the priorities on the international agenda. In order to contain the increase in global average temperature between 1.5 and 2 °C compared to pre-industrial levels, the path is to drastically reduce GHG emissions by the second half of the century, as set out in 2015 by the Paris Agreement. On one hand, achieving this goal is crucial since it provides the only chance for the survival of coral reefs globally. On the other hand, the same goal is now considered unattainable by many scientists, for several reasons. The first of these is that time is not on our side and we are still far from reaching our goal. We need to act immediately and with more ambitious measures. Secondly, the current rules of the world market are in stark contrast to a sustainable view of the economy, and even at the local level, this is a severe problem. The increase in local populations, resource consumption and economic activities, such as fishing or tourism, will inevitably damage the state of the ecosystem. A radical change in the economic vision would be needed (Aldred 2019).

Suppose the goal of the Paris Agreement is fully reached. In that case, we will obtain a decrease in atmospheric carbon concentrations that will lead to better conditions for the survival of coral reefs and enable other measures to rescue them to be successful. It is evident that a single solution is not enough; on the contrary, we need a synergy of measures and policies aimed at the conservation and safeguarding of coral reefs. For this reason, some research centres are trying to intervene directly on corals, with various measures of repopulation or restoration of the reefs.

These techniques, however, have some limitations. In addition to being expensive, they can only be applied on a tiny scale, while the risk to coral reefs concerns large areas of the oceans. Furthermore, it is essential to highlight that none of these techniques is currently able to recreate the ecological functions of a coral reef. Thus, even if the corals can be recreated, it is not possible to reactivate the ecosystem (Aldred 2019).

Support and restoration of coral reefs should be treated as a complementary measure to the achievement of the objectives of drastically reducing emissions and changing the economic paradigm. Long-term investments should, therefore, be made to support research for the restoration of barriers to overcome the current difficulties (IUCN 2017).

The Paris Agreement is not the only tool that the international community has adopted to tackle climate change and its adverse effects. The whole international agenda aims to create a more sustainable society, a new economic perspective that involves all human activities. Human development, which must be achieved through the goals of sustainable development, should take into account an integral ecology that cannot separate human and social development, through the eradication of poverty, from the protection and safeguarding of the environment.

So, the objectives established with the Paris Agreement are also present and reinforced in other international and regional agreements, in local policies and other instruments such as the UN Sustainable Development Goals (SDGs).

Among the SDGs, there are some that—at least partially—cover the theme addressed in this chapter.

It could be useful to consider two different groups of SDGs. The first group is composed of Goals 8 and 12. Both of these goals concern the transformation of the economic system, to promote a circular economy that fosters inclusive and sustainable growth as well as sustainable consumption and production patterns. In the last part of this work, we will deal with the aspect of the economic system and its transformation to a system that rapidly reduces greenhouse gas emissions to ensure global temperature decrease, and a new economic perspective that takes into account the benefits and the services provided by the ocean and the coral reefs (United Nations General Assembly 2015, goals 8–12).

The second group is based on Goals 13 and 14. Goal 13 is a general goal aimed at fighting climate change. It seeks to promote action, at all levels, from local to global, to combat climate change. It highlights how climate change is a global issue that knows no national borders, but at the same time, that not all countries are affected in the same way and with the same intensity. This point is interesting because the countries most directly affected by the coral reef crisis are often the poorest or the developing countries. These countries have contributed minimally to anthropogenic climate change, and yet they are the most affected by it. The resources of these countries are limited; there is a need to promote common actions, in a shared effort by all the players on the international stage. Goal 14 is directly focused on the ocean ecosystem. It concerns the conservation and sustainable use of the oceans, seas and marine resources for sustainable development. Therefore, it is obvious how important the protection of coral reefs is for this SDG since—as mentioned in the previous part of this work they represent the most outstanding heritage within the ocean ecosystem.

Among all the objectives proposed by SDG 14, there is one in particular that aims to increase the economic benefits to small island developing states by 2030, by resorting to more sustainable use of marine resources, including sustainable management of fisheries and tourism (United Nations General Assembly 2015, goals 13–14). To do this and to preserve the coral reef, these countries need to receive technological support from developed countries. This kind of alliance between states can overcome local difficulties in the move towards a more sustainable economy.

Another exciting tool within the international community is the UN Decade on Ecosystem Restoration. This programme, established by the UN General Assembly in 2019, aims to dramatically increase the restoration of degraded and destroyed ecosystems through targeted and agreed actions at global, regional and local levels. The aim of these measures is to fight the climate crisis and improve food security, water supply and biodiversity and, at the same time, ensure human development and the sustainable exploitation of natural resources. The programme will help countries to take action against the harmful effects of climate change and biodiversity loss, promoting rapid and effective restoration policies that build resilience, reduce vulnerability and increase the ability of ecosystems to adapt to daily threats and extreme events (Eisele and Hwang 2019).

The Sixth Status of Corals of the World Report—recently published on 5th October 2021 by the Global Coral Reef Monitoring Network (GCRMN)—highlights the current status of coral reefs worldwide, analysing their trends and potential future scenarios. One claim among the Report's key findings is crucial and straightforward: coral reefs are still in trouble, and we need to act now. The report points out that 14% of the world's coral reefs have been lost in the last decade. Many reefs are diminishing instead of flourishing, and coral bleaching is becoming a regular event rather than a rare damaging episode (GCRMN et al. 2021).

As previously described in this chapter, increasing coral bleaching events, higher ocean temperatures, and other climate change-related impacts can drastically affect coral reefs, with severe and irreparable consequences.

Luckily, the report also points out some positive hopes and possibilities.

Indeed, given the right conditions, coral reefs can recover. There are already some good examples of resilience and natural resistance in dealing with increasing water temperatures. Thus, since healthy corals are more likely to adapt to climate change, the action needed for coral protection should focus on creating the proper conditions to help the natural recovery of the reefs. This could be, for example, by minimising human impacts, such as water pollution and overfishing, and slowing climate change. It is essential to work together with local communities to identify proper measures and good practices to keep coral reefs in good and healthy condition.

In order to increase awareness of this issue and to spread action among international actors and local communities, the GCRMN and the International Coral Reef Initiative (ICRI) published this report before the UN Climate Change Conference (COP26) held in Glasgow in November 2021.

Indeed, the ocean was one of the most important themes during COP26. World leaders, international organisations, civil society and NGOs demonstrated considerable interest in ocean challenges and opportunities, at both official meetings and side events. As is evident from the COP26 outcomes, there are intangible and complex links between the ocean, climate and biodiversity, and the need to address them jointly is on the international agenda.

This high level of mobilisation crystallised the importance of the ocean in the climate negotiations, and the importance of paying increasing attention to the maritime ecosystem and its protection.

Given this context, it is worth mentioning another interesting initiative in the international arena: the UN Decade of Ocean Science and Development 2021–2030. This initiative aims to bring together institutions, researchers, stakeholders and other actors in the ocean community to design and deliver proper solutions and development projects to support the Agenda 2030 in its path for a healthier Ocean.

Finally, the decision to hold COP27 in Egypt is also a good opportunity. The Egyptian government launched one of the earliest conservation initiatives in 1983 (Kleinhaus et al. 2020) and it has repeatedly reiterated the importance of protecting coral reefs. Hosting COP27 right on the shores of the Red Sea could represent an opportunity to encourage action in this sense.

#### 5 What Can Be Done?

Despite the vast range of potential tools and the objectives that have been set, there is still a risk that we will fail to achieve the goals, or fail to do so within the necessary timeframe. According to an opinion shared among much of the scientific community, the emissions target set in the Paris Agreement is not ambitious enough, and even if we reach that goal, there will still be temperature increases by 2030. That could mean the end for the coral reefs. Another note concerns Goal 14 of the SDGs, which, it is suggested, should deal more specifically with the human impacts causing the destruction of coral reefs and their current situation, in order to consider faster and more efficient strategies between states (Manfrino 2017).

More aggressive and robust actions are required to face this issue, not only by states and the governments but also by other actors, such as local institutions, NGOs or the private sector. This paragraph will address the current situation in developing countries in order to identify some good practice and potential solutions.

While it is evident in any international agreement that there must be significant financial aid to help developing countries, it is also true that relying too heavily on this kind of help could be problematic for them.

Nowadays, it is becoming clear that climate adaptation costs will be higher than previously expected. This fact will probably lead to a lack of funding support and weakening international aid in the future.

Thus, governments in developing countries should act to prepare for this situation, and they should be ready to decrease their dependence on foreign support (Clissold et al. 2020).

Obviously, the Principle of Common but Differentiated Responsibilities places western and developed countries in a position to help and, in some way, pay for their pollution. They should support poorer countries in achieving social and economic development and also in tackling the impacts of climate change. Financial aid and technological support are crucial in this challenge, but other factors must also be taken into account. For instance, the ability to act and to choose what is best for one's country also depends on cultural and social factors which differ from state to state. These factors can also influence adaptation policies. This explains why it is important to maintain an appropriate level of independence.

An analysis of the climate adaptation strategies used to date reveals that these have often been a failure, or at least inefficient or inadequate. This is primarily the case when the people living in a particular context have not been involved in the planning of the adaptation measure. A case in point is the building of sea walls and barriers in the Pacific region to protect low-lying states from floods and sea-level rise or to prevent coastal erosion. This could be a feasible solution in rich developed countries where appropriate technology and funding can be found. However, it may not be sustainable in small island developing states. Moreover, this solution does not take into account any cultural factors. These nations have been living alone in the oceans for centuries, and their traditional technologies might provide more suitable solutions. For instance, some naturebased measures, such as replanting coastal mangroves, can be more sustainable for the local society (Nunn and Kuman 2020).

Following on from this last point, it is worth mentioning the Community-Based Approach, a strategy to empower communities to prevent and face climate challenges. The aim of the strategy is to facilitate adaptation measures, creating inclusive, community-driven and sustainable actions that take into account the cultures and the tradition of the local community (Kirkby et al. 2015). The idea is to enable local communities to understand and foresee climate change impacts in advance and to plan and decide how to intervene. The local communities will choose their own strategies and methods to respond to the harmful effects of climate change, and they can independently plan their adaptation goals. This kind of programme is thoroughly planned and led by the local communities, without any external imposition. Hence, any social and cultural factors will not be neglected.

Taking—once again—the small island states of the Pacific as an example, it is easy to imagine that they have longstanding traditional knowledge of the ocean environment and also a generous legacy from their ancestors regarding the implementation of cashless adaptation actions. These rural communities could develop measures and solutions to tackle the impact of climate change that cost nothing and that are consistent with their cultures. This means starting from the bottom, through policies of education and involvement of the whole society.

These solutions might involve direct intervention on the environment using a small amount of money and little technology. Hence, there is no need to rely too heavily on the developed countries. Examples include actions related to traditional methods of planting and restoring the mangroves—as mentioned above—or similar solutions relying on resources available locally.

It is not only an issue of reducing costs but also a means of enabling rural communities to enhance their heritage and act directly on the environment that surrounds them (Nunn and Kuman 2020). It is essential to understand that the two different levels of action must be complementary. It is vital that we act internationally to change the way we live, produce and consume. However, it is also important to specifically engage the communities of developing countries, increasing their autonomy without creating dependence on foreign funding, which could run out quite quickly.

#### 6 Blue Economy: A Sustainable Future for the Ocean

As we have seen, all the solutions and the objectives identified to tackle climate change and to save the coral reefs are related to economic and business interests. To meet the requirements of the Paris Agreement, and also to achieve the SDGs of the UN Agenda 2030, it is vital that we change our economic system, or—at least understand that the benefit of preserving the coral reef ecosystem is not anti-economic. Indeed, we have seen how the coral reef is crucial for the economy of many countries.

At first glance, saving the environment runs contrary to the rules of our economy and mainstream trade and finance. It is easier to find business activities following the principles of the linear economy than those of the circular economy. This is no longer sustainable. Switching our economic system to become sustainable and circular must be the priority. It is the only way to achieve the goals we have set ourselves. It will dramatically decrease waste and emissions, and will involve governments finding policies and practices that follow the economic aims of the SDGs (Aldred 2019).

The first action might be to thoroughly understand the vast range of benefits that humanity gains from coral reefs. This chapter has shown how reefs play a crucial role in the economies of tropical countries. Coral reefs are one of the greatest assets for these nations, and governments should treat them as such, increasing the investment to preserve, sustain and restore them and the entire ecosystem (Obura 2017).

Related to this issue, in recent years, we have long heard of the blue economy—a model of an economic system that aims to revolutionise the world economy through a sustainable approach. The Belgian economist Gunter Pauli introduced the term blue economy (Pauli 2010) for the first time in 2010. As can easily be guessed, the term alludes to water—and the oceans represent its core—but it goes beyond this element. Pauli introduces a new type of sustainable economy, similar to the green economy but with a new crucial aspect: biomimicry. It is concerned with studying, and possibly imitating, nature in order to seek solutions to apply to human activities.

According to the Belgian economist, by studying how nature works, it is possible to improve production and processing techniques, thus creating new jobs, revitalising the economy and safeguarding the environment (IIED 2019). In short, it is possible to say that the blue economy seeks to eliminate emissions that harm the planet and to revolutionise production systems through biomimicry. Hence, this model of sustainable development has been continually promoted, in recent years.

As this chapter shows, coral reefs are an essential part of the blue economy, and we must therefore act and invest in preserving their productivity. If we do so, with proper investments and solutions, it will be possible to create a sustainable economy that enables both human development and environmental protection, preserving the heritage and the biodiversity of the coral reefs and preventing the harmful loss of this incredible ecosystem.

#### 7 Conclusions

One important conclusion is that, in addition to states and international programmes, other actors can play a crucial role. As this study shows, developing countries need to stop relying totally on foreign support. Funds and financing projects often do not consider the cultures and traditions of indigenous peoples, who have a privileged relationship with the nature that surrounds them. NGOs and local actors can therefore be the missing link in the chain that protects this delicate ecosystem. Even if we assume that the objectives of the Paris Agreement will be achieved, it has been shown that without an ambitious change, even they may not be enough. That is where other actors come into play. Local adaptation and resilience policies can give an extra boost. Synergy between actions is needed, with different components of action against climate change complementing each other.

As mentioned above, coral reefs—and their conditions in the short term—are a clear indicator of our ability to revolutionise our lifestyle, promoting and implementing good practices to preserve the environment.

Collective action is needed because, as this chapter has shown us, even though coral reefs cover a tiny part of the ocean surface, they could change the fate of the entire planet and all humanity will benefit from their protection. Ultimately, we cannot think of living in a world that does not contemplate sustainable development. It is an indissoluble binomial; human and technological development cannot ignore the protection of the environment and its biodiversity.

Acknowledgments First of all, I would like to express my special thanks to the editors of this book, Professor António Cortês and Professor Maria da Gloria Garcia who gave me the opportunity to participate in this wonderful project. From the very beginning, Professor Cortês was interested in my topic, and he helped me to identify the proper angle to develop my research. Secondly, I would like to thank Professor Armando Rocha—who is the supervisor of my PhD thesis—for always being available to discuss my ideas, giving me the chance to see my research from a different perspective and fostering constant debate that helps my PhD path. This project was a stimulating and challenging journey which also helped me in developing my doctoral research increasing my knowledge of relevant topics related with the area of my PhD thesis.

#### References

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The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## Marine Protected Areas as Tools for Ocean Sustainability

Emanuel J. Gonçalves

#### Abstract

Science is clear in showing that we are facing two existential challenges: a climate emergency and a species extinction crisis. These challenges are rooted in the extractive and linear economic model we have globally adopted, in which economic development is intertwined with the destruction of nature. Europe has recently responded politically by adopting the European Green Deal with a set of policies aimed at transforming the EU economy envisaging a future with no net carbon emissions and where economic growth is decoupled from resource use. Despite the dire state of the ocean and the urgency to implement effective solutions, we continue to witness the loss of nature and, with it, the loss of current and future economic and social value. Marine protected areas (MPAs) are one of the most effective solutions to address these challenges. There is, however, the need to clarify what these area-based management tools are, how they can provide benefits, what conditions must be met to ensure they are effective, and how a strategy can be adopted to increase the breadth, speed and success of efficient MPAs to save what is left in the ocean, allow ecosystems to recover, and build sustainable jobs and economic growth.

#### Keywords

Marine protected areas · Ocean governance · Benefits of protection · Science-based decisions · Stakeholder engagement · Government leadership

#### 1 Introduction

We have today a solid scientific understanding of the environmental crises facing the ocean, supported by indisputable facts compiled in papers and reports such as those of the Intergovernmental Panel on Climate Change (IPCC) and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). Knowledge of the challenges and the science behind them places a demand on decision-makers and society to find solutions that can respond with the speed, scale and breadth needed to face these existential problems. Marine protected areas (MPAs) are known to be one of the most effective tools to protect what is left in the ocean, allow ecosystems to recover, and support nature-based solutions to the climate crisis. However, we currently have too few MPAs, and many do not work, preventing the ecological, social and economic benefits of protection from being fully delivered.

E. J. Gonçalves (✉)

MARE – Marine and Environmental Sciences Centre, ISPA – Instituto Universitário, Lisbon, Portugal e-mail<EMAIL_ADDRESS>
# The Author(s) 2023

M. d. G. Garcia, A. Cortês (eds.), Blue Planet Law, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-031-24888-7\_11

This chapter will begin with a global assessment of the status of human impacts on the ocean and will identify the main causes of those impacts (Sect. 2). Solutions to those impacts will then be explored, focusing on MPAs and their definition and scope (Sect. 3). Subsequently, some key aspects of the functioning of MPAs will be covered, with emphasis on the conditions needed to guarantee the effectiveness and persistence of these conservation tools (Sect. 4). Next, some standards for designating, implementing and maintaining MPAs are presented, such as those of the International Union for Conservation of Nature (IUCN) and the new MPA Guide, with a view to discussing ways to increase the speed with which they are established, the extent of their protection and the success of their implementation (Sect. 5). Lastly, the chapter will discuss MPAs within the wider context of a 100% managed ocean (Sect. 6).

#### 2 Ocean Sustainability: Status and Roots of the Problem

Science is clear in showing us that our societies are facing two environmental existential crises: a climate emergency (Pörtner et al. 2019) and a species extinction crisis (Díaz et al. 2019). Evidence of these crises has been made available to decision-makers, from politicians to business leaders, to ocean stakeholders, to managers and to the wider society, at an ever-increasing pace. Although the ocean is the least studied system on the planet, with a large portion of the seabed and the full extent of ocean biodiversity still unknown to science, an estimated 91% of marine species still undescribed and over eighty percent of the ocean floor as yet unmapped and unexplored (Mora et al. 2011), human impacts on the ocean are indisputable and their magnitude and extent is only now beginning to be understood by society.

In fact, until very recently, the ocean was seen as an inexhaustible source of food, and human activities were not perceived as being able to seriously disturb the functioning of marine ecosystems. We have even used the ocean as a deposit for some of our garbage, including dumping large quantities of radioactive waste in the deep sea, and we continue do to so now, with nutrients from agriculture and our city sewage systems, pollutants from our industries, and plastics and microplastics from our production systems.

The perception that the ocean is too big to fail still persists today in many management and policy contexts. This has consequences for the way we manage biomass extraction (fisheries) and production (aquaculture), non-living resource extraction (sediments and minerals), energy production (oil and gas, and renewables), and essentially any use in the ocean. In fact, in many cases we still consider the ocean to be fundamentally an open access space where our individual and collective "rights of use" should not be limited, forgetting the responsibility to protect and sustainably manage the "commons" that is the ocean space and the ocean life within it. Only now are we beginning to see a consensus on changing this view, which can be encapsulated in a "new narrative for the ocean" (Lubchenco and Gaines Steven 2019): neither too big to fail nor too big to fix, but rather too big to ignore.

The root of the challenges we are now facing lies in the fact that the global economic markets built post World War II considered marine natural resources essentially to be a free-to-take asset and regarded the impacts of extraction on ecosystems as an externality (meaning that the costs of those impacts are not being incorporated in the activities that exploit ocean resources). The consequences of this position are now clear to us, and the activity with the largest impact in the ocean is fisheries targeting wild animal species.

Globally, 90% of the world's fisheries are either fully exploited (61%) or overexploited (29%) (FAO 2020) and a mere 13.2% of the ocean can be considered to have intact ecosystems with low impact from human pressures (Jones et al. 2018). Up to a third of catches, worth up to \$23 billion, are illegal, unreported, or unregulated (IUU) (FAO 2021). At the global scale, 55% of the ocean area is used for industrial fishing and the fishing fleet increased from 1.7 to 3.7 million vessels between 1950 and 2015. Some fish groups are particularly impacted by this often unregulated or poorly regulated activity, namely large predatory fish that play a central role in the functioning of marine systems and, in particular, sharks. In fact, since the 1970's, the abundance of shark populations has declined 71% (Pacoureau et al. 2021), with an estimated 100 million sharks being caught each year, and the biomass of many large predatory fish is today only around 10% of pre-industrial levels (Myers and Worm 2003). Even some whale populations, which are often considered safe following the industrial whaling ban agreed in the 1940's, are today a mere fraction of their pre-whaling abundance with some species such as the blue whale, the largest animal ever to occur on Earth, at levels of around 10% their historical size.

On top of this, human activities are also polluting the ocean. 5 to 12 million metric tons of plastic enter the ocean every year, noise and chemical pollution impact many marine species, and nutrient inputs such as nitrogen and phosphorus cause hypoxia, harmful algal blooms and an increase in eutrophication phenomena and dead zones. Several of these impacts have cumulative and synergistic effects on marine live, many of which are still unknown today.1

The message is therefore clear and simple: we are destroying the planet and we know why.

#### 3 Why We Need Marine Protected Areas to Achieve Ocean Sustainability

Given that the message is clear—we have a problem, and we know what is causing it—the logical question that follows is how to solve that problem. Before we explore solutions, however, it is important to reiterate the facts: our extractive and linear economic model is destroying nature and current regulatory frameworks have not been able to reverse this destruction and degradation of the natural world. If we accept these facts, then we also need to accept that the way we have been attempting to regulate activities in the ocean has not been effective. And this leads to another question: Are the current regulatory mechanisms useless, meaning that we need new ones, or can they work and the problem is only that we have not been using them to their full potential?

Having reached this point, let us now explore potential solutions to the main challenges and impacts on ocean systems. Evidently, this is a complex issue with many different dimensions, from the regulation of each activity—fishing, transport, energy, recreation—to the way different societies and communities use the ocean, to area-based management tools such as marine spatial planning, fishing closures, marine protected areas (MPAs) and other effective area-based conservation measures (OECMs), etc.

Most importantly, we know that to address the challenges of the climate emergency and species extinction crisis, we need to be able to decarbonise the economy and to stop destroying nature. However, it is not enough to identify what we need to do (Duarte et al. 2020); it is critical that we have the capacity to do it at a speed, on a scale and with the effectiveness that is compatible with the challenges we are facing.

Marine Protected Areas (MPAs) are one of the most effective tools to protect what is left of the ocean's natural world and, equally importantly, to restore the ocean blue natural capital to pre-industrial levels, so that a socially resilient and economically healthy society is possible. They are also a key complement to conventional fisheries management, as they contribute to increasing fish stocks and to mitigating climate change by protecting marine carbon stocks (Sala et al. 2021). Without nature there will be no future for our societies.

However, in spite of over 30 years of efforts to implement MPAs worldwide, thus far we have only been able to protect less than 8% of the ocean with these legal instruments, with less than 3% of that area excluding extractive activities such as fishing (The Marine Protection Atlas 2022). Moreover, a large percentage of the global MPAs are not effective, i.e. they are not delivering the benefits for which they were created in the first place, and many of them allow

1 For a complete overview of the existential challenges see: Oceano Azul Foundation (2021).

fishing and other extractive and destructive activities inside their borders. This has two interrelated consequences: on one hand, nature continues to be degraded and recovery to be compromised, even inside many MPAs; on the other hand, society thinks that progress is being made due to the recent race to scale up marine protection and country's announcements around these protections, creating a false sense of success (Sala et al. 2018).

One of the main problems with the way countries and the international community have been using MPAs is the historical lack of a common approach on definitions, criteria and standards for MPAs. Let us now consider these aspects which are critical to the future success of ocean conservation.

MPAs are defined by the International Union for the Conservation of Nature (IUCN) as: "A clearly defined geographical space, recognised, dedicated, and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values" (Day et al. 2019). This means that, for an area to be considered an MPA, there are a set of conditions that need to be met (all of them) so that the expected benefits of protection can be achieved. The long-term conservation of nature needs to be the main objective, which excludes other areas such as fishing closures and other fisheries management areas, military areas, wind farms, aquaculture sites, etc., that may lead to some conservation benefits but are not designated for the purpose of protecting nature. Also, MPAs need to be permanent and not be vertically zoned. They need to be managed by dedicated teams with enough resources to guarantee their surveillance and monitoring. The clearly defined geographical space requires MPAs to be placed in suitable areas for nature conservation but also guaranteeing that they are sufficiently large to achieve the defined objectives. Lastly, they need to provide conservation outcomes that meet or exceed their conservation objectives and goals (IUCN 2018).

A critical aspect of MPA effectiveness is the level of protection. Often, the number and types of activities allowed inside an MPA are not compatible with the above definition and/or their impacts do not allow the MPA to achieve its goals. Moreover, there is often a mismatch between the stated conservation goals and the regulations of the MPA (Costa et al. 2016).

Thus, we have an instrument that works (see below) and can provide the necessary tools to protect and recover nature and deliver economic and social benefits to society, but that instrument has not been used efficiently. Let us now explore what we mean by efficient and effective marine protected areas and how worldwide use of these can be increased in order to provide the solutions for ocean sustainability that are urgently needed.

#### 4 Effectiveness of Marine Protected Areas

Marine protected areas are area-based ocean management tools aimed at protecting and recovering nature. For these tools to be effective they must be designed and managed taking into account the way marine ecosystems function and how they respond to pressures and also how they will respond to the conservation measures to be put in place.

There is often a lack of understanding of the basic ecological and biological characteristics of marine life that need to be taken into consideration when designing MPAs. Since these areas should aim to protect or recover ecosystems as a whole (as even when specific species or habitats are the target, they do not live in isolation), it is critical to consider some key functional aspects in the design and management of MPAs. For example, most marine organisms have a dual life cycle with a pelagic (living in the water column) larval phase and a pelagic or benthic (living associated with the bottom) adult phase. This means that, for example, a species may depend on the dispersal environment where its larvae live, that larvae may associate with floating algae or objects until recruitment takes place, the species may recruit to coastal areas and estuarine habitats such as seagrass beds, spend some variable time there growing as a juvenile, migrate to deeper rocky habitats as an adult and move to specific breeding grounds when it is time for reproduction. In this

single example, a conservation strategy designed to effectively protect and recover the populations of such a species needs to focus attention on all those habitats and areas. Additionally, the life cycles of marine species are variable and different environments are dominated by different strategies, such as those of coastal systems, the open ocean or the deep sea.

Also, dispersal distances vary greatly between groups of species (from a few metres in some algae to hundreds of kilometres in some fish and invertebrates) and different species may disperse during the larval phase, adult phase or both. For example, spiny lobsters travel more than 100 km as both adults and larvae, but red coral do not move as adults and their larvae have very short dispersal distances. Some fish can travel 100 km as both adults and larvae while others disperse as larvae but as adults they remain within the same area for their entire life. This means that the larval and adult movements of marine animals and plants require the size of MPAs to be large, i.e. tens of hundreds or tens of thousands of square kilometres, to allow self-replenishment and connectivity with other protected populations of each species. Few existing MPAs are this large (in spite of current designations of very large MPAs), which means that few MPAs are selfsustaining and need to be considered in the context of national and regional networks of MPAs (Gaines et al. 2010).

MPA networks may be defined as "A system of individual marine protected areas operating cooperatively and synergistically, at various spatial scales, and with a range of protection levels, in order to fulfil ecological aims more effectively and comprehensively than individual sites could acting alone. The system will also display social and economic benefits, though the latter may only become fully developed over long time frames as ecosystems recover" (IUCN World Commission on Protected Areas (IUCN-WCPA) 2008, p. 11).

The concept of networks of MPAs is not new but there are very few global examples of effective and ecologically sound networks of MPAs. One of these is the California Marine Protected Area Network (California State MPAs 2022), comprising over 120 science-based protected areas that were defined following an inclusive stakeholder engagement process.

Besides a large size and/or ecologically connected and representative networks of MPAs, there are additional ecological and biological aspects that are important to consider. Some fish species are known to aggregate during breeding in specific areas and fishers know this all too well and target those areas for increased and fast revenues. However, fish aggregations are critical habitats that must be protected since they are the support for the replenishment of populations. Some particular areas may have a disproportionate role as breeding and nursery sites, for example, estuaries or seagrass beds. This means that, in addition to size, the positioning of MPAs is a key feature for effectiveness and, moreover, to fully derive the benefits of protection, MPAs need to be integrated in ecologically representative and connected networks and work together with other management approaches in the wider seascape.

Another important variable for management considerations is the size of fish and its impact on population dynamics. In several species, female reproductive output increases exponentially with fish size. A well-established effect of MPAs is that fish grow larger inside their borders and these fish produce exponentially more young that are also of higher quality (i.e. they have a better survival rate). For instance, in the case of the European seabass, a female of 40 cm produces 250,000 young, in comparison with 1.3 million for 60 cm and 3.3 million for 80 cm (Erguden and Turan 2005). Allowing large females to grow and breed is therefore invaluable in sustaining healthy fish populations and healthy fisheries. Yet, this is often counterintuitive since there is the perception that catching larger fish is more sustainable.

Adopting a science-based approach to the implementation of MPAs, and incorporating the biological and ecological aspects mentioned above, pays off as a strategy since well designed, regulated, implemented and managed MPAs which are fully protected provide benefits that science has named "the reserve effect". In global analysis of marine reserves (those MPAs which are fully protected), biomass increases of more than 400% on average have been described (Lester et al. 2009). Moreover, since fish do not stay inside these reserves, increased catches and recruitment may occur in the nearby areas (Russ et al. 2004). In some instances, fishers quickly understand the value of these fully protected areas and start increasing their fishing effort right on the limits of these marine reserves, in what has been termed "fishing the line" (Kellner et al. 2007). On the other hand, weakly protected MPAs do not differ from fished areas (Zupan et al. 2018) and, as such, are not able to provide benefits or protect nature.

Time of establishment is also an important consideration to assess the effectiveness of MPAs. In fact, there is always a gap between setting the rules and finding the right conditions to start changing human uses in the ocean, and the biological and ecological responses of marine systems. Indirect effects may occur through cascading trophic interactions and take longer than direct effects on target commercial species. In many cases, the initial effects of protection can occur rather quickly, within 5 years of establishment, namely for exploited commercial species (Babcock et al. 2010). However, this response is species and system dependent and deep-sea species, for instance, may take much longer to recover from impacts. Species grow and mature at different rates and, hence, the benefits of MPAs will be displayed with different time scales. Some fast-growing species may achieve reproductive age at 6 months to a year (for instance squid or octopus), while others may take years (e.g. seabreams 2–4 years, some tuna species 3 years, dusky-groupers 5–12 years and white sharks 9 years). Deep-water species such as the orange roughy fish, may mature at around 30 years and may live up to 150 years. For others, such as deep-water corals, these variables are measured in centuries (Roark et al. 2009).

Although the science on the benefits of marine protection is clear, and there are currently 16,675 MPAs, only 6.1% of ocean within national jurisdictions is in implemented and fully/highly protected areas and the respective percentage in the high seas is a mere 0.8% (The Marine Protection Atlas 2022). Moreover, 94% of MPAs allow fishing, which prevents them from providing the full benefits of protection as they are not able to protect all their biodiversity components (Costello and Ballantine 2015).

With strong scientific support guiding decisions, clear knowledge of human impacts on the marine environment, and an effective and transformative tool for change (MPAs), what can we do better (and faster) to implement a global network to protect 30% of the global ocean in fully and highly protected areas by 2030 (this is the current target recently approved in the context of the new Post-2020 Global Biodiversity Framework of the Convention on Biological Diversity)?

#### 5 What Can Be Done to Increase the Speed of Establishment, Extent of Protection and Success of Implementation of Marine Protected Areas?

A global network of scientists, practitioners, managers, and representatives of civil society and governmental organisations recently published the MPA Guide (Grorud-Colvert et al. 2021). This is the most complete study summarising the scientific information needed to understand how to plan, implement, evaluate, and monitor successful MPAs.

The MPA Guide outlines a recommended procedural framework to be followed as a critical step towards ensuring conservation efforts meet global, regional and national objectives and goals. This is a fundamental charter not only to assess what we are protecting and evaluate the effectiveness of that protection, but mostly to guide decision-making around successfully establishing these area-based management tools.

First and most importantly, it is necessary to accept that the establishment of an MPA must be a science-based process driven by governments and communities (allowing for different models of governance) and that it implies structured and consequential stakeholder engagement procedures.

Science guides the location, size, shape and spacing of MPAs in ecologically coherent, representative, and connected networks. This involves compilation and summarising of existing scientific information about natural values and human uses, and model scenarios for current and future climate realities, finding potential areas of conservation interest that encompass, for instance, intact and pristine ecosystems, species and habitats of conservation interest (e.g. IUCN red list, FAO vulnerable marine ecosystems), areas with restoration potential, climate refuges and corridors, migratory pathways, habitats and species representative of the biogeographic area of interest, populations of species of commercial value, trade-offs and cost-benefit analysis for fishing and other uses, etc.

For each MPA and for the network of MPAs under consideration, principles, objectives and design criteria should be proposed and agreed upon with stakeholders as a basis for systematic conservation planning approaches applied to the whole territorial seas and EEZ of countries (Margules and Pressey 2000). These should be based on a shared common vision for the ocean of that country and/or region, consolidated in legal instruments or frameworks. These approaches are effective only when there is sufficient buy-in, awareness and engagement of whole communities and interested parties. Public participation and effective engagement of not only the different levels of government but also civil society and economic actors, is therefore a key component of any successful process. Examples of principles relevant for the topic are sciencebased decisions, the precautionary principle, adaptive management, the ecosystem-based approach, transparency and information, stakeholder engagement, integrity of ecosystems.

Objectives (preferably quantitative) should include both natural and social dimensions, such as protecting vulnerable marine ecosystems, protecting relevant habitats and species, protecting pristine areas, including unique areas, species or habitats, integrating climate refuges, protecting essential fish habitats, recovering species and ecosystems, maintaining geographic diversity, maximising conservation outcomes and minimising socio-economic costs, respecting and integrating the rights of coastal communities and Indigenous peoples, etc.

Design criteria are important to frame the size, shape and spacing of MPAs within the network. They may include connectivity, representativity, replication, resilience, etc.

Importantly, an understanding of current uses, rights and social considerations is a critical aspect not only when defining the MPA objectives and processes for its designation, but mostly to guarantee that it is implemented respecting those rights and engaging the relevant interest groups.

One of the main barriers to successful MPA designation and implementation are economic considerations, namely in relation to fisheries but also to wider benefits to the community. Economic analysis and considerations including compensation mechanisms for affected activities, reallocation of effort, derived direct and indirect economic benefits and allocation of those benefits, and sustainable finance are also key aspects for MPA success. A variety of tools are available to finance MPA implementation, from more traditional tools such as fees, fines, and taxes, to new mechanisms associated with trust funds, debt-for-nature swaps, blue bonds and carbon markets. In order for these mechanisms to be successful, legal frameworks are essential. There is not a one-size-fits-all solution, and these tools need to be adapted to the socio-ecological realities of the area, placement of the MPA (e.g. coastal vs offshore), intensity of uses, level of impacts, etc.

For an MPA or network of MPAs to be successfully implemented, a set of governance conditions outlined in the MPA Guide should also be taken in consideration. Staffing and funding have been shown to be some of the main drivers of implementation success (Gill et al. 2017). Compliance, enforcement, monitoring, adaptive management, integration of culture and traditions, social justice and empowerment and effective conflict-resolution mechanisms are also examples of relevant aspects to include in implementation strategies that should be designed upfront and committed with all stakeholders engaged.

For an MPA to be effective it needs to be implemented and actively managed (MPA Guide). This means that areas which are only committed and/or designated (even if legal instruments have been approved) are not able to provide a response to the established objectives of MPAs. These are critical first steps, but only once rules exist can enforcement of those rules be

assured, and a high level of compliance be attained; a true MPA is one that exists in reality (everything else is what has been termed a "paper park"). In the light of the current climate and biodiver-

sity challenges and the urgent need to reverse the destruction of marine ecosystems and increase climate resilience through nature-based solutions, we also know that the protection levels that need to be implemented in the global network of MPAs are directly linked to the expected results of those levels. Only fully or highly protected MPAs are able to reconstruct a healthy ocean, with all the benefits associated with a thriving nature. Therefore, it is particularly important to understand that several activities are not compatible with nature conservation and, hence, are not compatible with MPAs. Examples include oil and gas exploitation, seabed mining, dredging and dumping, industrial fisheries, large scale and intensive aquaculture, heavy infrastructures, and intensive unsustainable extractive and non-extractive uses.

The framework outlined here follows the best scientific practices and information and constitutes a roadmap for change. However, we will only be able to reverse the current degradation by speeding up and scaling up the implementation of MPAs through structured processes applied at regional or country levels. One example of such an approach is the Blue Azores program (Blue Azores 2022), a collaboration between the Government of the Azores (Portugal), the Oceano Azul Foundation and the Waitt Institute, which engages scientists, fishers, ocean users, non-governmental organisations, and the wider society, to protect, promote and value the blue natural capital of the roughly one million square kilometres of Azorean ocean, protecting 30% of the EEZ and fully protecting 15% in a connected and ecologically coherent network of MPAs. This is a 6-year program that can bring transformative change by protecting what is left of these amazing coastal, open ocean and deep sea ecosystems in a socially integrated and fair way and providing the economic benefits to the region of this added protection. These approaches may be adopted by others, replicating these successes and helping to achieve the global targets in a timely and effective manner.

#### 6 What Does a Sustainable Future Look Like and What Is the Role of Marine Protected Areas in That Future?

If we follow the science (e.g. the IPCC and IPBES reports), we know that we have a problem—we are destroying the ocean and the current regulatory mechanisms are not working. We also know that there are solutions to that problem, but those solutions need to be applied in an effective manner. MPAs are tools to achieve ocean sustainability but only if they are implemented following the framework described here.

More broadly, MPAs need to be placed in a wider context of a 100% managed ocean, where these nature conservation tools are the "banks" of natural capital. With more nature, there will be a better qualified economy, for instance more sustainable and nature-centred tourism, and more sustainable small-scale fisheries which will benefit from the biomass increases exported from MPAs and from enhanced fisheries management rules. Also, MPAs imply that destructive activities are excluded and therefore countries will need to address the trade-offs of continuing to support those activities. Industrial large-scale fisheries are an example of such a trade-off. By protecting nature, MPAs are also the powerhouses for biotechnological applications of the bioeconomy. It is clear today that future sustainable materials, foods, medicines, etc. will come from the ocean and that if we continue to lose biodiversity value at the species, genetic and ecosystem levels, we will continue to degrade a critical natural economic asset for the future.

The global community has now committed to protecting at least 30% of the ocean by 2030. MPAs are a proven effective tool in preserving and restoring biodiversity and recovering biomass in the marine environment, but also in helping address climate change by increasing carbon capture and in increasing social and economic value. The Kunming-Montreal Global Biodiversity Framework recently approved at the Conference of the Parties of the United Nations Convention on Biological Diversity, included the 30 by 30 goal in the agreement. It is critical that beyond area targets, such as the 30% protection, the quality of that protection (fully or highly protected MPAs) and of the implementation mechanisms to be established, is also part of the implementation strategies. The European Union has adopted this target under the Biodiversity 2030 Strategy (European Comission 2030), aiming to protect 30% of land and sea by 2030. Of this, at least 10% should be strict protection, although the definition of this is yet to be agreed. We are however very far from these targets and, in particular, very far from adopting an integrated and effective framework, such as that presented in this text. For example, more than half of the European MPAs have not been implemented, and 50% of the areas are less than 30 km2 (the majority of these being less than 5 km2 ), thus being limited in representativeness and effectiveness. Recent assessments (European Court of Auditors Special Report 2020; European Environment Agency Report 2020) demonstrate that EU policies have not restored the seas to a good environmental status, fishing in Europe has not yet reached sustainable levels, and marine biodiversity remains under threat in Europe's seas.

We need therefore to do more, faster and differently. MPAs are part of a broader new blue framework based on an economic model to achieve 100% sustainable ocean management and departing from an unsustainable, linear and extractive economy to a resilient, nature-based economy that supports thriving societies and a healthy planet. MPAs can deliver significant benefits and help reconcile human development with nature. To do so, the right scientific, legal and procedural frameworks need to be adopted.

#### 7 Conclusion

The current environmental existential challenges of the climate emergency and species extinction crisis demand a response that, without delay, applies the right fixes that go to the root of the problems. And the root of these problems is our unsustainable relationship with nature where our current economic systems require nature to be destroyed in order for societies to have economic development and derive human wellbeing. This is an unsustainable model that has no future and the current discussions on policies and targets to be achieved in the next couple of decades are seeking to address this problem.

In the ocean, the wide and deep degradation of marine ecosystems, and the inefficient regulatory frameworks currently in place, require a faster, wider and more efficient set of management and governance mechanisms to be established. Marine protected areas have been shown to be a very effective tool in protecting and recovering nature and providing social and economic resilience and wealth to societies, but only when they are established by structured and effective programmes following the best available scientific guidelines and standards.

The updated standards compiled and addressed in the MPA Guide, complementing the existing framework of the International Union for the Conservation of Nature (IUCN), are a critical tool for managers, practitioners and decision-makers and should be widely used in guiding conservation efforts at national, regional and international levels.

Whatever we do in the next decade to address these challenges will have a profound effect on the state of the planet we will pass on to future generations. The time to act is now but we know there are different possible futures ahead of us. Business as usual will result in a continuously degraded ocean with fewer economic revenues and larger social impacts. A system maintaining and perpetuating the current misery of a degraded ocean due to a lack of capacity to implement the needed measures will not be able to reverse degradation or allow restoration. The way forward, then, has to be a vision of a healthy ocean with thriving nature, where well designated, located, managed and implemented MPAs inserted in a wider 100% managed ocean are the basis for a new sustainable blue economy, with social sustainability at its core and including fair sharing of benefits and effective governance systems that respect the rights of communities.

Acknowledgments This study was supported by funds from the Oceano Azul Foundation and Fundação para a Ciência e a Tecnologia through MARE/UIDB-P/MAR/ 04292/2020, and UID/MAR/04292/2018/2019. The author would like to thank colleagues and board members from Oceano Azul Foundation for exchange of ideas and experiences that greatly benefited this manuscript.

#### References

Poloczanska E, Roberts C, Worm B (2020) Rebuilding marine life. Nature 580:39–51

(2019) IPCC special report on the ocean and cryosphere in a changing climate. IPCC, Geneva

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Part III

Law, Policy and Ecological Sustainability

## Renewable Energies, Sustainability and Law

Suzana Tavares da Silva and António Gomes Martins

#### Abstract

Renewable energies are considered by many the driving force of the economy of our future society. However, there is a difference between reality and the perception of the situation by governments, economic players, and communities. We need more transparency, simplification, and data communication skills towards a committed involvement of all stakeholders.

Geopolitics and technological development are two drivers of a common issue. They are, though, not necessarily aligned with energy and climate political goals. Globally, we find different problems and solutions in the two hemispheres. In the EU, problems and solutions are common throughout the Union, but some political hesitation prevails.

We need innovative solutions for a smooth transition to a market organization that includes renewables and accurate risk management in investment programmes.

#### Keywords

Renewable energies · Environmental sustainability · Social sustainability · Economic sustainability · Political sustainability · Energy transition

#### 1 Introduction

Many now believe that renewable energies will be the driving force of the economies of the future. They are likely to replace fossil fuels in the world's economy. This, to put it simply, is what the energy transition is all about. Some other popular expressions in current public policies, such as "climate-neutral economy", "circular economy", 1 "decarbonisation" and "sustainable development", address different perspectives of this "desirable reality". But is it that simple?

S. T. da Silva (✉)

University of Coimbra, Faculty of Law, Coimbra, Portugal e-mail<EMAIL_ADDRESS>
A. G. Martins

University of Coimbra, Institute for Systems Engineering and Computers, Coimbra, Portugal e-mail<EMAIL_ADDRESS>
1 The circular economy is a "virtuous idea" for interrupting the classical one-way model of production, where goods are manufactured from raw materials, sold, used and discarded as waste. It started with the concept of recirculation of resources, firstly discussed in the Stockholm Conference (1972) and then formulated at the 2012 World Economic Forum. In 2015, the European Commission adopted its first circular economy action plan, COM(2015) 614, which was replaced, in 2020, by the new Circular Economy Action Plan, COM(2020) 98 final. The circular economy action plan is now one of the key building blocks of the European Green Deal, along with clean energy.

# The Author(s) 2023

M. d. G. Garcia, A. Cortês (eds.), Blue Planet Law, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-031-24888-7\_12

In 2015, when the United Nations agreed to "change the world for better"2 by 2030, it was decided that the future would rely on "affordable and clean energy". 3 The European Union took the same stance when it approved the "clean energy for all Europeans package". 4 The measures approved by the European Institutions take into account five dimensions of energy union—security, solidarity, and trust in energy supply; a fully integrated energy market; energy efficiency improvements; climate action through decarbonisation of the economy; research, innovation, and competitiveness.

Hence, any study of renewable energies and their regulation, whether it is from a global or European perspective or simply from the perspective of a single State, will always need to be conducted within the scope of this legal and political framework.

Our reflections will focus on the difficulties faced by regulators. Since the energy transition will require the involvement of all, governments will need to work with different regulatory instruments and different approaches. Whether this means implementing taxes or providing funding, establishing bans or issuing advice, all measures will require a high level of trust and transparency, with clear and simple rules and significant public spending on state aid.

Renewable energies are now playing a key role in electricity production, but it is crucial that we increase their use in industry, transportation and cities, in order to meet the climate change challenge in developed countries. However, many unanswered questions still remain, particularly how a broad sustainable solution can be designed that simultaneously provides clean and affordable energy in sufficient quantity to meet increasing demand, employment stability in a context of permanent technological change, legitimate expectations for investors with no sunk costs for consumers and taxpayers, and transparent state procedures on managing these policies with powerful international players.

Our last key reflection will consider the role the law can play in this unstable equation.

#### 2 Energy Transition and Truth

It is essential that we provide transparent and clear information if we genuinely want everyone to be involved in achieving this generational and global task. However, this is perhaps the first difficulty to overcome. It has never been so easy to obtain and disseminate data, using all-new communication tools (including social networks), but it has also never been so difficult to obtain reliable and accurate information.

Even in this technological and ultra-regulated domain, the level of opacity is high. We need people to be aware of energy prices and to encourage them to work together to improve efficiency, but we do not provide them with clear and precise information on energy bills. We need them to be part of an active energy community, but it is difficult for them to obtain reliable information on the economic and financial benefits. We need them to reduce their carbon footprint and invest in green energy technology, but they receive so many different figures and information on the capacity of renewables and their

2 This "change" means, for the UN and its Sustainable Development Goals, a global effort to end poverty, protect the planet, and ensure that by 2030 all people enjoy peace and prosperity; for the OECD countries, a transition to a climate-neutral economy, to clean energy in cities and to a circular economy; and for the European Union, an improvement in the well-being of citizens and future generations. At all these levels and policy programmes, the "change" relies on the use of renewable energy.

3 The UN 7th Goal "ensure affordable, reliable, sustainable and modern energy for all" aims to increase the share of renewables in energy supply, improve energy efficiency and provide access to good quality energy services, which means investing in solar, wind and thermal power, improving energy productivity, expanding infrastructure and upgrading technology.

4 This EU 2016 package includes eight new laws i) on the energy performance of buildings (Directive 2018/844), ii) on renewable energy (Directive 2018/2001), iii) on energy efficiency (Directive 2018/2002), iv) on the governance of the Energy Union and Climate Action (Regulation 2018/ 1999), v) on internal electricity market design (Regulation 2019/943), vi) on risk-preparedness in the electricity sector (Regulation 2019/941), vii) on the European Union Agency for the Cooperation of Energy Regulators (Regulation 2019/942); viii) on common rules for the internal market for electricity (Directive 2019/944).

externalities and sustainability, that they cannot be sure they are really making the right choices.

At times, the curse of the post-truth era also seems to be present here.5 Companies produce information to sell their products and services and increase their profits, banks produce information to sell financial services and increase their portfolio, national and local governments produce information to be re-elected. As is typical in the post-truth era, none of these discourses is false; they all are based on facts, but they are also brand-centred narratives and, in some way, marketing-oriented.

So, the first challenge to be met in the energy transition is to increase energy literacy. We need independent mediators to collect and transmit reliable, accurate and organised information on energy end-use and on renewable energy sources. Only informed citizens can be a part of this journey, and we need to engage all of them in this millennium goal.

Increasing digitalisation in the energy sector could be a helpful tool. Replacing human choice with automatic "decisions" will improve energy efficiency and result in an optimised system with integration of renewable sources (by enabling networks to better match energy demand to times when the sun is shining, and the wind is blowing). However, this area also carries some risk with it, and must, therefore, be implemented with strict regulation on privacy, cybersecurity and digital resilience (IEA 2017). 6 Among these command-and-control measures we can

Innovation is also key to success. Renewable energy sources that have recently been regarded as attractive investments, such as solar and wind power, have benefited from constant innovation aimed at increasing efficiency and power output. Even more classical energy sources, such as hydropower (including tidal power), geothermal and biomass have seen incremental technological progress through innovation. The main limitation of solar and wind energy is their inherent low density. They both require large areas of energy collectors (PV panels, mirrors or wind generator blades) for significant power output. Large areas of land are required for power plants, giving rise to difficulties in terms of land use and land use change, which require innovative approaches to avoid detrimental impacts on the environment. The last solution for energy supply, nuclear fusion technology, is still being developed and heavy investment is required for research into innovative materials such as superconductors to create powerful magnetic fields to contain the fusion plasma.

The energy transition is not exactly a public policy, but more of a policy instrument to tackle climate change and, ultimately, to achieve the desired new developing global economic model and new sustainable lifestyle for world citizens. There is a long way to go, but it is imperative that we step up the pace. Different approaches are at play, on the supply and demand sides, among them public policy tools (from classical command and control 6 to recent market-based mechanisms) 7 , nudging8 (as a powerful

8 Nudging means organising the context where behavioural decisions are taken (Thaler and Sunstein

5 "Post-truth" was "the word of the year" in 2016 and the Oxford English Dictionary defines it as an adjective "relating to or denoting circumstances in which facts are less influential in shaping public opinion than appeals to emotion and belief". It is generally applied to politics and its language, as well as to newspapers and media. However, it also affects science domains. Different authors, from different social science domains, say that people need a full range of literacies or meta-literacy to navigate in a posttruth world (Fuller 2018; Bartlett 2020). This is also true for the energy transition, since it is essential that people understand rather than believe in good or bad theories about the increasing use of renewables.

highlight: i) the European mandatory share of renewable energy in gross final energy consumption, in the heating and cooling sector, and in the transport sector (European Union 2018); ii) the European mandatory limits of air pollutants emissions (European Union 2019).

7 Market-based mechanisms give firms the flexibility to adapt to mandatory measures (for example, the green certificates market). When these market-based mechanisms are in place, firms can choose to reduce their emissions, or to incorporate renewable generation in their process, or to pay for/buy it instead. When a firm pays to pollute and pays to use fossil fuels, it is financing the "change" of the more efficient firms (those which can more easily and cheaply update and use better technologies) at low capital costs, at least in an earlier stage of the process. Market-based mechanisms are also popular as energy efficiency tools, such as white certificate markets or the provision of electricity saving services.

instrument to change behaviours) and (future) solutions that are being tailored along the way.

Much of what is needed to optimise energy use will only be possible with new technologies, particularly robotisation, artificial intelligence and the Internet of Things, which will substitute inefficient human behaviours.

On the supply side, we need generation to be efficient, cost-effective, and reliable, to ensure security of supply. This means innovation not only in new renewable generation projects but also in energy services.

In the European clean energy package, storage plays a decisive role in providing flexible solutions in electricity services (European Commission 2020b). It is expected to have a great impact on electricity markets, and new and important players will emerge, for example active citizen communities.

To put all of these innovative solutions into action, we need reliable information, financial solutions, and confidence, mainly in the regulators. Financing options exist in appropriate numbers, at global,9 regional,10 and national11 public levels, and among private companies that are engaged in this shift to a low carbon and sustainable growth development model.

Confidence in governments and economic public regulators is also a key for success some of the main arbitral decisions on international investor-state disputes demonstrate that this is not a simple task. Not so long ago, these dispute resolution bodies (ICSID, UNCTAD, ICC) were often called on to solve conflicts arising from fossil fuel exploitation contracts entered into between developing countries and large corporate groups owned by investors from developed countries. More recently, however, investors from all over the world have been bringing claims against developed countries based on frustration of legitimate expectations on financing renewables programmes.12 This essentially means that the risks are high in these financial incentive programmes and some aspects should be strictly and clearly regulated, such as risk allocation or consequences of unexpected changes.

Having good regulatory instruments is also important. Many questions were raised in a recent interpretation on the application of the Energy Charter Treaty (ECT) with regard to investment in renewables and its harmonisation with the European state aid law (Baetens 2019).13 A better approach might be to have normative guidance under a structural solution (which could also come from an ECT revision) reconciling energy transition and investment objectives, and which explicitly addressed issues such as investors' due diligence obligations, fair and unfair change of regulations, or the disproportionate impact of measures on investors. Without this, confidence on both sides is low, which leads to high capital costs and, ultimately, to an inefficient lose-lose situation. This is, essentially, more a gap in regulation than an issue of absence of good faith.

Regulators are aware of these difficulties, but there is no simple answer. In fact, the solution is dependent on international legal instruments and political consensus, which is difficult to obtain in this field, especially when hard law on sensitive

2021). To promote the energy transition, plenty of measures have been successfully implemented, such as energy labels, carbon footprint disclosure on energy bills, software apps for energy management offered by electricity utilities, smart appliances, the provision of energy savings services.

9 The World Bank Group provides financing solutions and specialised support on environmental and social policies in developing countries, mainly based on renewable generation projects aimed at connecting people to electricity.

10 Renewables are also an important financing topic in NextGenerationEU (NGEU), the largest stimulus package ever financed in Europe. 12 Spain is currently the most affected country. In these

11 Today, public funding programmes for renewables are common tools in national budgets, as IEA points out. Besides Europe, the US's investment in clean energy, RD&D by 2025, China's National Major Science and Technology Projects programme, and Japan's Environment Innovation Strategy are also important financing programmes.

cases, authors and the courts had different visions, some considering that the issue at stake was merely a 'regulatory change' and others pointing out that Spain violated the Fair and Equal Treatment standard when it changed remuneration rules that affected ongoing projects (Noilhac 2020).

13 The problem is also present in the WTO disputes, as will be seen below.

economic issues needs to be approved. Here, we are facing not just a gap in regulation but perhaps a regulatory dilemma.

Previous experience has already shown that the feed-in-tariff is the most effective incentive regime (Mendonça et al. 2010), but also the least accurate in terms of efficiency, because its effectiveness is linked to long- or medium-term purchase agreements, and this is not a flexible solution.14 The new EU incentive regime (European Commission 2013), based on flexible feed-in-premium payments that require producers to send their electricity into markets and link public payment amounts to market prices, is a more flexible solution. However, it is a less attractive economic tool and not necessarily more efficient, because it depends on coupling incentives with caps (or even floors) that must be strictly calculated on a cost analysis basis.

Some authors claim that for future solutions to be simultaneously effective and efficient they must rely on new energy markets (Kopsakangas-Savolainen and Svento 2012). Although there is some experience in this area (mainly in real timepricing), there have so far been no consistent advances.

Meanwhile, time is passing, and regulators must act because the planet is waiting and is demonstrating that it cannot continue to wait for much longer.

Even in a strict and limited economic analysis, it cannot be stated in all certainty that the burden we are passing on to future generations by adopting inefficient regulatory solutions is heavier than maintaining the status quo. Extreme climate events are becoming increasingly frequent and devastating for human lives and economic assets.

#### 3 Energy Transition and "Sustainabilities"

The main policy drive of the energy transition is sustainability, so the whole normative solution must contribute to this goal. Sustainability is easier to understand than to put in practice; the desired outcome is clear—a balanced model of economic growth and a fair society—, but there is much darkness and light to be found along the way.

#### 3.1 Environmental Sustainability

Scientists and politicians are unanimous in accepting the crucial role that renewables should play in the future, not only in terms of decarbonising the electric power sector but also in other energy sectors such as fuel for transportation.

However, any reflection on renewable energy and its environmental sustainability must also consider its "dark side", that is to say, the negative impacts it has on the environment (Kramarz et al. 2021).

Since the early days of the deployment of renewable energy technologies, scientists have been warning that this cannot be considered unconditional "clean energy", particularly with the advent of solar PV plants. At that time, the discussion only centred on the negative impacts from the most developed and widespread renewable technologies, such as the impact on ecosystems and on wildlife caused by giant hydroelectric power plants; the death of birds and bats and impacts on landscapes from wind farms; soil erosion and use of good land for solar power plants; food scarcity and forest depletion linked to bioenergy production (Strapasson et al. 2020); and toxic gases resulting from the increase in geothermal energy use.

Today, concerns about the sustainability of renewable energy are more complex and should be carefully addressed. One example is global governance of supply chains for copper, cobalt, cadmium, lithium, and other rare earth elements.

14 In Europe, only Germany adopted a balanced feed-intariff model, the public payments of which decreased over time.

Once again, there is insufficient information on environmental impacts resulting from the shift in mining and industrial activities, and there is little comparative analysis between renewable and fossil fuel energies based on their life cycle.

Environment and climate protection cannot simply be reduced to a decarbonisation policy. Although renewable energy production tends to be more decentralised compared to conventional electricity generation plants using fossil fuels, the fact is that renewable energy facilities are intensive users of raw materials (Pitron 2020). Furthermore, to produce wind generators or photovoltaic cells, the industry requires heavy processing and emits significant amounts of GHGs (Bonou et al. 2016; Srinivasan and Kottam 2018).

To tackle these threats, many international regulators are using soft law measures, mainly inspired by the UN Guiding Principles of Business and Human Rights, for example the EU Conflict Minerals Regulation (European Union 2017) and the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals. The Extractive Industries Transparency Initiative (EITI)15 and its standards are also expected to play a greater role. However, as we will see, this soft regulation may not be enough.

It seems obvious by now that a fair energy transition (an ethical renewable energy transition16) needs a global responsible mining pact. Only this approach will prevent a new global tragedy of the commons and another "resource curse" economy affecting new countries. Yet, we can perhaps no longer wait for a miracle in international politics; the planet cannot wait, so we must move forward, but, at least, consciously.

It is also not clear at this time whether there will be some kind of global technical regulation (even based on soft guidance) that could help nation-states assess their best options on energy supply. Relying on renewable energy means relying on endogenous natural energy sources and it is desirable for countries to cooperate, coupling markets and developing transnational projects or collaborative solutions17 that could contribute to better land use and optimisation of resources (for example, the sun in the desert or the wind in the inhabited mountains). Still, this goal will be hard to achieve, as it requires a political context and a level of confidence in international economic relations that is far from the present reality.

Lastly, we have seen the polluter pays principle and environmental taxation entering and leaving these "renewables equations" many times. It is time to ask if polluters have a role to play in supporting the energy transition. If we look at the EU experience, it appears that this is not a particularly useful tool or means of addressing the energy transition, in particular with regard to its funding.

In effect, the EU Emissions Trading System, 18 as well as the polluter pays principle (European Court of Auditors 2021), which are well-known tools created to address environmental change, have recently shown that regulation mechanisms based on price are difficult to implement 19 and sometimes difficult (if not impossible) to turn into a virtuous tool, even in more homogeneous societies (Jacobsen et al. 2003; Skygebjerg et al. 2020). So, we may perhaps say that one lesson learned on this matter is that pollution cannot

15 A voluntary corporate social responsibility (CSR) programme to promote the open and accountable management of oil, gas, and mineral resources.

16 It is important to note that the energy transition may require different tools and policies because it will not affect all countries in the same way (Kumar et al. 2021).

17 This goal is at the heart of the European Energy Union, but even in this "hard regulated" region, we are far from succeeding, judging by the low number of joint support schemes and joint projects developed by Member-States (European Commission 2020a).

18 On 14 July 2021, the European Commission adopted legislative proposals (included in the Fit for 55 legislative proposals) setting out how it intends to achieve climate neutrality in the EU by 2050, including the intermediate target of a net reduction of at least 55% in greenhouse gas emissions by 2030.

19 Environmental taxes and pricing mechanisms on the environment and nature are relevant tools to send the right signal, but not to impose a behaviour change. Raising prices can be a virtuous nudge if we have an equivalent alternative product service or behaviour; if not, we will simply increase public funds by increasing inequality (because the additional cost will not reach everyone in the same way).

finance the energy transition, nor can it help with a fair climate transition, even in most developed countries.

#### 3.2 Social Sustainability

Governments and international institutions often present the energy and climate transition as an opportunity to create more qualified jobs with higher wages, mainly on renewable energy projects.20 The transition is expected to produce some immediate social benefits, which may be direct (reductions in pollution and lower prices for goods and services) or indirect (rise in the standard of living and the entitlement age in developing countries). On the other hand, the energy transition will represent an economic burden for present and future generations, with rising electricity bills and taxes as well. Moreover, this huge economic and financial effort for society will channel scarce public funds towards investments in this sector, leaving other sectors behind. This is also a risky decision.

Another social dimension of this sustainable change in the economic development model is that everyone (alone or as part of a local energy community) will be able to actively generate their own 'clean energy', mainly electricity, and take immediate advantage of it.

However, from a social perspective, the benefits may not all be cost-free, and some could even involve some sacrificing of equal economic treatment for those who choose not to actively participate in the process (personally or through a mediator).

In effect, some issues on the social impacts of the energy transition have not yet been resolved. It is not clear whether this new developing energy model will be sufficient to maintain the present level of energy use in the Northern Hemisphere and, at the same time, ensure an equivalent level of energy use for developing countries. There is no easy answer to this question. We must have faith in science and technology experts, who are working hard to combine energy efficiency (a significant decrease in end-use energy) with optimisation of electricity generation and transmission systems, to provide more end energy but with a lower input of primary energy. But will these improvements in science and technology be enough? And are all the new energy options neutral from a social point of view? We do not yet know.

Projects of large renewable energy power plants emerging in developing countries and funded by developed ones21 are not immune to criticism.22 Even when they are set up in desert or mountain areas (with less impact on land use and ecosystems), they can affect vulnerable local communities and their ancestral land uses and practices, without giving these communities anything in return.

Optimising energy use and making it socially sustainable does not mean that energy products and services with fewer emissions and lower environmental impacts will be equally available to all across the Globe. It is likely that in the future nations, economic actors, and citizens all over the world will face certain limitations on their energy use when compared with the present so-called western lifestyle. Individual acts23 and private or public economic projects24 may all be subject to behavioural and procedural limitations if the rate of climate change requires us to accelerate emissions abatement.

However, it is undeniable that, in a short-term analysis, we can point to plenty of social benefits that may arise from this energy change in all

20 IRENA estimates that renewables accounted for 11.5 million jobs worldwide in 2019, up from 11 million the previous year (IRENA 2020b).

21 Besides the world bank funding mechanisms, we can also see IRENA/ADFD Project Facility (IRENA 2019).

22 This is not new; there are a plenty of examples of the social impacts of dams (Tortajada et al. 2012; Kirchherr and Charles 2016).

23 Although there seems to be a consensus that combustion vehicles must be banished from city centres, the compatibility of these measures with fundamental rights has recently been challenged.

24 Limits to the international law principle of permanent sovereignty over natural resources are again relevant issues in renewables projects governance and investments, such as transboundary water management, responsible mining, or land use policies.

latitudes.25 So, as always happens when balance and proportionality principles are used to legitimate public acts and decisions, the change should be approved as the benefits outweigh the disadvantages. But can we apply this principle in this field, or should the responsibility to protect prevail and ethics push us towards more complex case-by-case decisions?

Social sustainability can also be analysed from a different point of view: the way society is organised to deal with the responsibilities emerging from the energy transition. Local energy communities (both from the consumer and producer perspectives) play an important role in the EU directive on renewable energy. According to this EU law, energy communities can be a way to 'organise' collective energy actions around open and democratic participation and governance for the provision of benefits to the members of the local community (Caramizaru and Uihlein 2020). Although this is a 'good idea', it may not be so easy to implement. In addition to other barriers, we would like to stress the current cultural gap in dealing with community actions in many western countries, as well as the complex social organisation of the South. There is not only a gap in regulatory tools (CEER 2019), or in economic incentives; there is also a skills and cultural competence gap when it comes to joining individual interests together to produce a collective good. The current, predominantly selfish, nature of western communities means that social innovation alone is not enough; cultural innovation is also required to develop skills related to collective actions.

#### 3.3 Economic Sustainability

We have already noted that an energy transition to a renewable-based energy model will only be possible if it relies on an integrated circular economy process, which implies including in the equation the whole renewables life cycle, from raw materials mining to facilities discharging. Only then will it be possible to analyse the sustainability of this new energy model from cradle to cradle.26

Moreover, any analysis of the sustainability of the energy transition will need to take other economic issues into account. In the case of electricity, for example, which is expected to become the main energy source, it will be necessary to simultaneously manage two systems: the old "one way" system, based on large generation facilities and transmission and distribution networks that carry electricity to consumers, and the new system, based on distributed energy resources, with small-scale production facilities complemented by stationary storage facilities and electric vehicles. Will consumers be able to pay for this "duplicated" system? How can we fairly allocate the corresponding fixed costs?

Another problem relates to energy markets and electricity prices. It appears that market price design is now lagging behind the technological revolution. The mechanism currently used to fix the price for power exchanges is no longer suitable. As the share of renewables grows, the traditional "merit order" (marginal costs of generating units) for setting the price of electricity (the 'energy only' market model) has become outdated. This method adopted an exchange price adjusted to competition between technologies with different variable (high and relevant) costs, and was suitable for generation costs based on commodities prices.

Now, all renewables, regardless of the different technologies they use, have variable costs close to zero. The issue in the future will no longer be merit choices but selection of a method

25 One of the most cited examples is solar electric cooking in rural Africa and Asia (see World Bank Clean Stove Initiative), which can bring enormous immediate benefits for the climate and women's health (Pangestu 2020), as well other benefits, such as access to lighting that implies more information and education for many isolated communities. In western countries, restrictions on car travel lead to improvements in air quality in cities and less noise.

26 This "cradle to cradle" principle is the current standard for sustainable development, mainly in the industrial sector (Braungart and McDonough 2002).

that can provide the price signal which will use flexibility management procedures to ensure that load, together with energy storage, will adapt smoothly to the available level of generation so as to guarantee that no rationing (rolling blackouts) occurs. Hence, energy generation prices will probably disappear, and fees for "grid use", and also "capacity pricing", are expected to gain greater relevance over time (Hancher et al. 2015), alongside reward mechanisms for demand-responsive actions by consumers.