Deoxygenation of the Oceans – Avoidance of a Duty or Avoidance of a Right ?

The author in the post has, in brief, discussed the principles and laws applicable in India containing pollution of the ocean more famously known as deoxygenation of oceans. This phenomenon has posed grave threats against the existence of the marine ecosystem in India and the author has also its impact on the fundamental rights of the Indian citizens.


The World's Oceans are losing oxygen which is the pernicious problem for Marine Ecosystem as well as for the human population.

“...Nature provides a free lunch, but only if we control our appetites...[1]


The preceding century has witnessed an unmanageable boost in population, placing the burden on the natural resources offered by Mother Nature. The earth itself is dog-eared due to problems like terrorism, the use of chemicals, environmental issues, and what not[2]. Midst all quagmire problems, an intensive deliberation required on the important environmental issue is Deoxygenation of the Ocean. Oceans, the major source of Oxygen, are the scapegoats of sobering activities accountable for the decreased level of Oxygen being indispensable to the Marine Ecosystem. Unveiling the primarily responsible determinants such as Stratification[3], Ocean Warming[4], and Cultural Eutrophication[5] for Ocean Deoxygenation, the International Union for the Conservation of Nature (IUCN) reveals that Oceans are turning Breathless. The IUCN stated that the oxygen content of the ocean has declined by around 2% since the middle of the 20th century[6] and the number of Dead Zones which has quadrupled in the last half-century from only 45 in the 1960s to as many as 700[7].

Contours Of The Hypoxia In India


Straightforwardly, Hypoxia means a low-level of oxygen in the Ocean or deoxygenation in the Ocean. Around the world, the effect of Hypoxia has been observed including the western coast of the United States where the massive death of fishes noticed[8]. Even a proxy of Hypoxia emerging in the Arabian Sea, the Indian Ocean and the Bay of Bengal[9]has been noticed. An analysis of available data for the past five decades indicates a lower and more variable rate of deoxygenation in the North Indian Ocean than in other oceanic areas (i.e. Substantial oxygen loss in the upper 300m in the western Arabian Sea, mixed trends in the Central Arabian Sea and a slight decline in the Bay of Bengal)[10]. The instance of en masse fish-killing (on 24th August 2019) suspected to be caused by Hypoxia associated with algal blooms had been noticed at Caranzalem Beach, Goa[11].

As per the report, in the global pattern in the cumulative development of coastal hypoxia, the intensification of Hypoxia around the coastal areas of India has strengthened during 1990 to 2015[12] indicating the worst future climatic predictions.

Detrimental Causes

The following are the cataclysmic causes for the Oceans:

1. The bulk of excess heat retained by the Earth due to greenhouse warming being absorbed by the ocean (Ocean Warming).

2. Excess nutrient wash off from agriculture, sewage, and fossil fuels into water bodies or oceans (Cultural Eutrophication), and

3. The reduction in circulation and exchange of oxygen by increased separation of Upper and Lower water columns (Stratification).

Legal Contours For Hypoxia in India


Having no specific legislation to slash off the antagonistic face of Hypoxia, a sensitive scenario has arisen. Nonetheless, the careful analysis of domestic laws of India exhibits the provisions imposing a duty on the people as well as the state, to conserve water bodies, are as follows:


Under the Indian Constitution:

· Article 48-A[13] says - “the state shall endeavour to protect and improve the environment......”

· Article 51-A (g)[14] says -“it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.”

· Article 47[15] says the duty of the State, as its primary one, to improve public health. But this raises a critical question, “How the State shall improve Public health as the health of water for the public is unhealthy?”

Under the Water Act, 1974:

Section 24(1)(a) of The Water Act 1974, imposes a duty upon a person to refrain from allowing any poisonous or noxious matter, as determined by the Central Pollution Control Board, into any stream or sewer or on the land. Another duty is no person shall knowingly enter into any stream in a manner so as to impede the flow of water or in any other way causes pollution of water. According to this section, any person who contravenes the provision of this section shall be made liable to be punished accordingly[16].

These statutory duties are intended to protect and prevent hazards to water bodies in order to maintain the relationship between various components of the Ecosystem. These Fundamental Duties are combating indirectly to the Hypoxia. However, the efficacy of the existing framework of laws over destructive causes is not positively pugnacious. Pollution changes the physical, chemical, and biological properties of water[17], formed by mixing two molecules of Hydrogen and one molecule of Oxygen and thereby getting unfit for fishes like Sharks, Tuna and Marlin[18] and for human consumption too.

Abraham Lincoln has aptly said

“You cannot escape the responsibility of tomorrow by evading it today.”

Putting it differently, escaping a duty essential to perform today and necessary of tomorrow, is creating a threat for tomorrow. Even the International Conventions convey the same but have been proved abortive seeking some concrete steps. India is a signatory to many International Conventions, inter alia, Stockholm Conference on Human Environment (1972), The Rio Declaration On Environment(1992), Convention on Biological Diversity(1992), Kyoto Protocol, but it failed to achieve expected results to preserve water bodies.

Besides this, the Supreme Court of India has reiterated in many cases the principle of "Polluter Pays Principle" according to which once an activity is inherently hazardous, the person carrying on such activity is liable to make good the loss caused irrespective of the fact whether he took reasonable care while carrying on his activity.[19] It other words, a person who creates pollution is only liable for compensating the affected individual users as well as to the damaged ecology. But, in the case of deoxygenation of the Oceans, who will be made liable? and How the massive death of fishes be valued in monetary terms? There are stacks of questions to be dealt with.

Thus, forestalling a fundamental duty, responsible for deoxygenation of the oceans, suppress our fundamental rights.

Affecting Fundamental Rights


The Part III “Fundamental Rights” of the India Constitution- Articles 14, 19(1)(g), 21, 26, 32 are relevant to shield the environment from danger. But here the two mainly affected fundamental rights have been discussed.

Article 19(1)(g)- Right to practice any profession, occupation, trade or business: Here, what is to be manifested is the right to the freedom provided under Article19(1)(g) is not an absolute right as it is subjected to the condition that it should not be a cause for the pollution of Environment[20]. Considering the current scenario of deoxygenation industries that are polluting the oceans, sea, rivers are to be prohibited. Furthermore, mostly in developing nations, the traders in fisheries might be restricted(regulated) by the Government for some time to protect and improve the condition of the marine ecosystem.

Article 21[21]: The Right to a healthy environment or pollution-free environment is a fundamental right under Article 21. Further, the term Environment defined under Section 2(a) of the Environment Protection Act, 1986[22] as

“Environment includes water, air and land and the inter-relationship which exists among and between water, air and land human beings, other living creatures, plants, microorganisms, and property.

The depleted level of oxygen in the oceans has unfurled a red flag over the right of every person to get contamination-free water which seeks deliberation for hiatus over these activities. Aforesaid legal provisions require the human community to keep up the solemn balance of duty and right meaning thereby- responsibility and right go parallelly in the matter of protecting the environment.

Repercussions


The consequences of ocean deoxygenation will have a number of impacts and challenges for dependent human communities, economies, and societies as a whole. So far as marine life is concerned then the loss of biodiversity, loss of biomass, loss of habitat[23]is the effect. Low oxygen drives habitat shrinkage and affects species like Tuna, Yellowfin, Pacific bluefin, Billfish, Swordfish, Sharks and marlin as they are sensitive to low levels of oxygen due to their high energy demand for survival[24] as well as for reproducing, escaping from, adapting to and repairing damage caused by other stressors[25]. Furthermore, increasing global temperature simultaneously worsens oxygen decline and increases oxygen requirements of organisms that rely on aerobic respiration[26]. Estimation shows the moribund effect on human economies by decreased economic profit with reducing fish catches, availability of seafood in areas experiencing low oxygen levels. Groups reliant on species and systems that are relatively more susceptible to low oxygen conditions will be more negatively affected[27].

Considering this depleting climatic change as a wake-up call to save our suffocating oceans, the IUCN stated the expected fall of the level of oxygen by 3-4% by 2100 globally if these activities go on uncomplicated[28].


References:

[1] Sukhvinder Singh Dari and Rangam Sharma, An overview of Environmental Jurisprudence in India (journal of general management research). [2] Ibid. [3] Infographic what is deoxygenation https://www.iucn.org/sites/dev/files/content/documents/what_is_deox_infographic.pdf [4] Ibid. [5] Supra note.3 [6] Ibid. [7] Are our oceans going breathless?, The Hindu in School, Sunday, December 29, 2019. [8] D. Laffoley and J.M. Baxter, ocean deoxygenation: everyone's problem. [9] D. Laffoley and J.M. Baxter, Section 2.3 -(evidence for ocean deoxygenation and its patterns: indian ocean)(S.W.A.Naqvi), pg.53. [10] D. Laffoley and J.M. Baxter, Section 2.3 -(evidence for ocean deoxygenation and its patterns: indian ocean)(S.W.A.Naqvi), pg.51. [11] D. Laffoley and J.M. Baxter, Section 2.3 -(evidence for ocean deoxygenation and its patterns: indian ocean)(S.W.A.Naqvi), pg.66. [12] D. Laffoley and J.M. Baxter, Section 2.5-(hypoxia in estuaries and semi enclosed seas) (Robert J. Diaz, Rutger Rosemberg and kersey Sturdivant), pg.89. [13] Mamta Rao, Constitutional law (Eastern Book Company,1st ed.,2013.) ISBN 93-5028-949-0,pg.358. [14] Mamta Rao, Constitutional law (Eastern Book Company,1st ed.,2013.) ISBN 93-5028-949-0,pg.348. [15] Mamta Rao, Constitutional law (Eastern Book Company,1st ed.,2013.) ISBN 93-5028-949-0,pg.346. [16] Indian kanoon, https://indiankanoon.org/doc/1352031/ [17] Rosedar SRA, Environmental Law (Lexi Nexis,2nd ed.,2016)ISBN 978-93-5143-789-5,pg.89. [18] Are our oceans going breathless?, The Hindu in School, Sunday, December 29,2019, pg.16. [19] Enviro-legal Action v. Union of India 1996(3) SCC 212. [20] Dr. N. Maheshwara Swamy, Textbook on Environmental law(Asia Law House,2nd ed.,2015)pg.62. [21] Mamta Rao, Constitutional law (Eastern Book Company,1st ed.,2013.) ISBN 93-5028-949-0,pg.218. [22] Rosedar SRA, Environmental Law (Lexi Nexis,2nd ed.,2016)ISBN 978-93-5143-789-5,pg.9. [23] D. Laffoley and J.M. Baxter, Section 2.3 -Evidence for Ocean Deoxygenation and its patterns: Indian Ocean(S.W.A.Naqvi). [24] Inforgraphic: deoxygenation effects on billfish, tuna, and pelagic sharks https://www.iucn.org/sites/dev/files/content/documents/billfish_tuna_shark_infographic.pdf [25] Supra note 23. [26] Ibid. [27] Supra note 24. [28] Are our oceans going breathless?, The Hindu in School, Sunday, December 29, 2019, pg.16.

Submitted by

Dhruv A. Soni

Department of Law, Veer Narmad South Gujarat University, Gujrat


(Images used for representative purpose only)

© 2019 by AmicusX