1. IntroductionInternational environmentallaw has been developed to be various disciplines which discuss severaldifferent issues specifically.
Regimes have been devised to address specificglobal or regional environmental problems, such as particular sources and typesof trans-boundary pollution, rather than to promote trans-boundary environmentalgovernance in integrated manner.1 Asa consequence there is today an array of international environmental regimesbut a lack of coordination among them, and many regimes operate independently,and sometimes even inconsistently, in relation to each another.2The changing chemistry ofthe oceans as a result of the uptake of carbon dioxide from the atmosphere knownas ocean acidification is one of many challenges in addressing newenvironmental challenges effectively in environmental regime complexity. Such matteris caused by the atmospheric pollutant that is also the main driver ofanthropogenic climate change, having effects on the marine environment asserious as other climate change, having effects on the marine environment asserious as other pollutants entering the oceans.3 Asthe phenomenon has only recently been assessed in scientific literature, andmuch further research remains to be done, there has been little opportunity foran influential epistemic community of concerned scientist to assemble and raiseglobal awareness of the seriousness of the problem.4Flowing from this, attention is only now being directed to what roleinternational environmental law can and ought to play in addressing oceanacidification.There are two mainenvironmental regimes appear to have obvious application to oceanacidification, which are the climate change regime established upon the United Nations Framework Convention onClimate Change (UNFCCC)5and the marine pollution regime constituted by the UNCLOS that regulatepollution of the marine environment from various sources. However, while thephenomenon is partially regulated by both of these principal regimes, orcollections of regimes, it is addressed wholeheartedly by neither6.
Ocean acidification therefore exists in somewhat of an international legaltwilight zone, a regrettable position given the serious threat it presents tothe ecological integrity of the world’s oceans.7In connection with the legalimplication of ocean acidification by co2 of climate change, after theintroduction, next section discuss the ocean acidification itself by describingthe causes and the consequences. Section 3 will analyze the international lawregimes to address the problem. Afterwards, this article argue that there is aneed for amendment to the UNCLOS.2. Ocean AcidificationThe present atmosphericconcentration of CO2 is higher than it has been for the past 420,000 years, andpossibly for the last 15 million years.8While the effects of this change to the carbon concentration of the atmosphereon the global climate system is widely acknowledged and increasingly wellunderstood, the impact of CO2 on the chemical make-up of the oceans has onlyrecently attracted attention from scientists and policy makers.9a.
The Causes of OceanAcidificationThe chemical process ofocean acidification is relatively straightforward, although there issubstantial regional and seasonal variability in ocean pH.10As the term ‘ocean acidification’ suggests, when CO2 dissolves in the oceans itreacts with H2O to form an acid, carbonic acid.11The oceans are naturally alkaline and the pre-industrial pH of the oceans wasaround 8.1.12 The ocean pH has nowdeclined by 0.1, such that the oceans are more acidic today than at any time inthe last half-million years.13Moreover, ocean pH may fall by up to 0.5 units by 2100 if CO2 emissions are notsubstantially reduced.
14This process results insubstantial changes to the carbon chemistry of the oceans. Hydrogen ionsreleased in the formation of carbonic acid combine with carbonate ions in thewater to form bicarbonate, removing substantial amounts of carbonate ions fromthe water which are essential for the formation of a range of marineorganizations.15 There has been a tenpercent decline in carbonate concentrations compared to pre-industrial levels,17 and these are projected to decrease by 50 percent by 2100.16b. The Consequences for MarineOrganism and EcosystemsIt can be said that there isa consensus in scientific knowledge that ocean acidification already havinghigh impacts on many ocean species and ecosystems.17Many marine photosynthetic organisms and animals, such as molluscs, corals,echinoderms, foraminifera and calcareous algae, make shells and plates out ofcalcium carbonate.18It could happened when the seawater contains a sufficient concentration ofcalcium carbonate. Increased concentrations of CO2 will increase acidity whichimpedes the process of calcification.
Calcifying organisms will be negativelyaffected in the present century, with estimates suggesting that calcificationrates will decrease by as much as 50 percent by 2100 due to the fall in calciumcarbonate concentration.19Calcium carbonate isemployed as a construction material for organisms in several crystalline forms,such as aragonite and calcite. All calcifying organisms are likely to beadversely affected by ocean acidification, but those that use aragonite will beaffected first as aragonite dissolves more readily due to its crystallinestructure.20 At most risk are coralorganisms that require aragonite to be deposited in excess of erosion to buildcoral reefs and if oceanic pH falls by as much as 0.4 pH units by 2100,carbonate levels could potentially drop below those required to sustain coralreef accretion by 2050.21The threat is severe fortropical and sub-tropical coral reefs such as the Great Barrier Reef that arehighly sensitive to the combined effect of increased acidity and increasedwater temperatures from climate change.
A recent investigation indicates thatcalcification throughout the Great Barrier Reef has declined by 14.2 per centsince 1990.22 Reduced calcificationleads to weaker coral skeletons, reduced extension rates and increasedsusceptibility to erosion from wave action.23Of even greater concern is the compounding effect reduced calcification willhave on the health of reef ecosystems particularly given that few scientificstudies have examined changes in the physiology of corals over the long term.24While corals are the mostspectacular calcifying organisms in the oceans, they account for only 10percent of global calcium carbonate production.25Ocean acidification will have less visible but no less serious impacts on thedevelopment and survival of other marine calcifying organisms such as molluscs,crustaceans and some planktons.
26As many of these organisms form the basis of diverse ocean ecosystems, theconsequences of reduced calcification cannot be underestimated. Indeed, theInter-academy Panel on International Issues, a global panel of scienceacademies, in its June 2009 Statement on ocean acidification observed thatfundamental ecological ocean processes will be affected as many marineorganisms depend directly or indirectly on calcium carbonate saturated watersand are adapted to current levels of seawater pH for physiological andmetabolic processes such as calcification, growth and reproduction.27Changes in ocean acidity mayalso have physiological impacts on marine species. Ocean acidification willincrease sensitivity and decrease the water temperature threshold.28Additionally there is evidence of lower rates of protein synthesis with negativeimpacts on the functioning of large animals including growth and reproduction.29These negative impacts have been highlighted in experiments carried out withCO2 concentrations much higher than would be expected in emissions scenariosfor the period up to 2100, and field research is needed to determine whethersuch effects will also be experienced in ocean environments.303.
The International Law Regimesa. The Climate ChangeThe climate change is theprimary relevance regime to ocean acidification in the environmental lawcontext. The regime regulating human interference with the atmospheric commons.Such regime, that comprises the UNFCC and Kyoto Protocol, is significantbecause it still the primary focus for international society efforts to reducethe greenhouse gas causing ocean acidification (carbon dioxide). Oceanacidification had not been examined in depth in the scientific literature wheneither the UNFCCC or the Kyoto Protocol were negotiated.However while there is no mention of the phenomenon in either text, a range ofprovisions in both have relevance and are deserving of close scrutiny as theyprovide foundations for the international law of climate change that are likelyto be retained in the outcomes of the Copenhagen climate conference in December2009.
31The article 2 of the UNFCCC,that related with the Kyoto Protocol and other implementing agreement providesthat the main objective of the convention is to achieve stabilization ofgreenhouse gas concentrations in the atmosphere at a level would preventdangerous interference with the climate system (atmosphere, hydrosphere,biosphere and geosphere and their interactions). As oceans are part of thehydrosphere, marine organisms are part of the biosphere, and atmosphericconcentrations of CO2 are inextricably linked to the process of oceanacidification, the problem of ocean acidification is one of interaction amongthe atmosphere, hydrosphere and biosphere, all of which are components of theclimate system. It is arguable that article 2 of the UNFCCC encompasses an obligation to take into account theimpacts of climate change upon the oceans. This interpretation is consistentwith an understanding that the climate can be understood as the continuation ofthe oceans by other means.32The UNFCCC objective raises main question “what is ‘dangerousanthropogenic interference’ with the climate system and is ocean acidificationrelevant for determining what is dangerous?” To determine in a general sensewhether there has been dangerous interference the Parties may draw upon thework of subsidiary bodies established under the UNFCCC,33and the reports of the intergovernmental Panel on Climate Change (IPCC).34Nevertheless, while ocean acidification receives express mention in the IPCC’sFourth Assessment Report35, giventhe atmospheric focus of Article 2 of the UNFCCC it is questionable whetherdetermination of ‘dangerous anthropogenic interference’ could be defined byreference to a dangerous ocean pH threshold.
36As such the climate regime’scapacity to address ocean acidification occurs only as an incident to minimizingthe effects of climate change. This conclusion is reinforced by an analysis ofother provisions of the UNFCCC. Article 1(2) of the UNFCCC defines ‘climatechange’ as the change of climate attributed to human activity that alters thecomposition of global atmosphere.
37Furthermore, Article 1(1) defines ‘adverse effects’ of climate change to bealterations in the physical environment or biota resulting from climate changewhich have significant deleterious effects on composition, resilience orproductivity of natural and managed ecosystems. The result is that Article 3,which requires State parties to protect the climate system and limit adverseeffects, does not appear to include an obligation to prevent or limit oceanacidification.38The consequence of theclimate regime’s atmospheric focus is that the emissions targets set by theKyoto Protocol are calibrated by reference by their atmospheric rather thanoceanic effects. Hence the climate regime bundles together all of the major sixgreenhouse gases when allocation emissions limitation and reduction budgetswith no discrimination between them.39The Kyoto Protocol imposes no specific requirement to reduce CO2 emissions, butrather allows State parties to fulfil their commitments by limiting theiraggregate anthropogenic carbon dioxide equivalent emissions of greenhouse gases(see Article 3(1)).40This means that Annex B parties to the Kyoto Protocol will be able to increasetheir CO2 emissions so long as there is a necessary reduction in their emissionof other greenhouse gases, such as methane and nitrous oxide, even though thiswill worsen ocean acidity.41Both the UNFCCC and Kyoto Protocol contain additional provisions that may counteractefforts to prevent ocean acidification. Article 1 of the UNFCCC defines a ‘reservoir’ to be acomponent of the climate system where a greenhouse gas or a precursor of agreenhouse gas is stored, and defines a ‘sink’ to be any process, activity ormechanism which removes a greenhouse gas, an aerosol or a precursor of agreenhouse gas from the atmosphere.
42 Article4(1)(d) then requires all parties to promote sustainable management, and tocooperate in the conservation and enhancement of sinks and reservoirs of allgreenhouse gases, including oceans. This means that not only must parties actto enhance the ‘passive’ absorption of anthropogenic CO2 into the oceans, butthese provisions can even be read as encouraging ‘active’ ocean sequestrationof CO2.43 Evenit is not a constitution for global atmosphere,44 theclimate regime in its current guise is incapable of adequately addressing oceanacidification.
The problem has not been directly considered in any depth inclimate change discussions, and has featured only peripherally as anenvironmental variable of potential concern.b. Marine Pollution RegimeThe main International legalinstrument that regulating the environmental protection in marine areas (withinor beyond) national jurisdiction is the United Nations Convention on the Law ofthe Sea (UNCLOS), provided in its Part XII, and combined with some regulationwhere States have negotiated at global and regional levels on specific issues.45The UNCLOS provides dutieson States to protect and maintain marine environment and taking measures toprevent and control marine pollution from any sources such as land, atmosphere,etc. Furthermore, the convention also requires state parties to adopt laws andregulations to prevent, reduce and control pollution of the marine environmentfrom or through the atmosphere.
46The UNCLOS is supplemented by more detailed regimes including those regulatingdumping at sea and land and atmospheric source marine pollution, both of whichare applicable to ocean acidification to some degree.47Many of these instruments overlap and, while not necessarily inconsistent,certainly lack co-ordination. It is in this arena that the problem of regime complexitybecomes especially apparent as an impediment to curbing ocean acidification.48Beside the UNCLOS, there isanother convention that dealing with the ocean acidification issue. Such instrumentknown as the 1972 London Convention and 1996 London Protocol. The objective ofthe 1972 London Convention isto prevent the pollution of the sea by dumping of waste or other matter liableto create hazards to human health, harm living resources and marine life.49 The1996 London Protocol wasnegotiated to replace the 1972 LondonConvention and although it has entered into force it has only limitedparticipation to date. Both of these regimes therefore currently operate inparallel.
50The dumping regime appliesonly to active sequestration of CO2 (the deliberate dumping of liquefied carbonwastes in the seas) and not passive sequestration (the natural absorption of CO2from the atmosphere). Although as a consequence the regime can only regulateone relatively small potential driver of ocean acidification, there have beensome important developments that have recognized the acidification effects ofCO2.51 Theregime has developed in such a way as to permit sub-seabed sequestration of CO2and to prohibit water-column disposal of CO2. At the First Meeting of theContracting Parties, in November 2006, amendments to the 1996 London Protocol were adoptedwhich permitting the storage of CO2 under the seabed52.These allow for regulation of sub-seabed sequestration of CO2, with CO2 streamsfrom carbon capture processes added to Annex I as a waste or other matter thatmay be considered for dumping. The amendments have been supplemented by Specific Guidelines for Assessment of CarbonDioxide Streams for Disposal into Sub-Seabed Geological Formations adoptedat the Second Consultative Meeting in November 2007.53There are dangers of oceanacidification that found in scientific working group’s statement of concernregarding ocean fertilization.54 Forexamples, it was concluded that at current emissions rates, all coral reefs andpolar ecosystems will be severely affected by 2050 and it can be earlier.
55 Similarconcern is also evident in the resolution adopted by the parties in October2008 that agreed that the scope of the LondonConvention and London Protocol includesocean fertilization activities, and that given the present state of knowledge,ocean fertilization activities other than legitimate scientific research shouldnot be allowed.564. Legal Implication of OceanAcidification by CO2 of Climate Changea. There is no discernible pressure for a new environmentalregime to address the problem specifically, given the extensive body of lawalready in existence that could potentially be applicable.b. The Amendment of the UNCLOS5. Conclusion1 See generally T. Stephens, Internationalcourts and environmental protection (Cambridge: Cambridge University Press,2009).
2 See R. Wolfrum and N. Matz, Conflicts ininternational environmental law (Berlin: Springer, 2003). 3 Rachel Baird, et al, “Ocean Acidification: A Litmus Test for International Law”, Sydney Law School Legal Studies ResearchPaper No.
10/139, 2010, 24 In contrast to the ozone depletion andclimate change that has attracted far more scientific attention over a longerperiod, with correspondingly greater impacts upon global environmental regimebuilding. See generally Peter M. Haas, “Banning Chlorofluorocarbons: EpistemicCommunity Efforts to Protect Stratospheric Ozone” 46 InternationalOrganization (1992), 1.
5 United Nations Framework Convention onClimate Change, 9 May 1992, (“UNFCCC”). 6 Rachel Baird, et al, “op cit, 37 Ibid8 SCOR/IOC, “The ocean in a high CO2 world”,17 Oceanography (2004), 72. 9 Rachel Baird, loc cit10 B. I. McNeil and R.
J. Matearb, “SouthernOcean acidification: A tipping point at 450-ppm atmospheric CO2”, 105 Proceedingsof the National Academy of Sciences (2008).11 J. C. Orr et al., “Anthropogenic oceanacidification over the twenty-first century and its impact on calcifyingorganisms”, 437 Nature (2005), 681.
12 O. Hoegh-Guldberg et al., “Coral reefsunder rapid climate change and ocean acidification”, 318 Science (2007),1737 13 ibid14 Royal Society, Ocean acidification dueto increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 4.
15 Ibid16 B. Rost and U. Riebsell, “Coccolithaphoresand the biological Pump: responses to environmental changes”, in H. R.Thierstein and J. R. Young (eds.
), Coccolithophores: from molecular processto global impacts (Berlin: Springer, 2004), 99. 17 See, G. De’ath et al., “Declining coralcalcification on the Great Barrier Reef”, 323 Science (2009), 116. 18 Royal Society, Ocean acidification dueto increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 5.19 OSPAR Commission, Effects on the marineenvironment of ocean acidification resulting from elevated levels of CO2 in theatmosphere (2006).
See also, M.Sakashita, “Petition to regulate carbon dioxide pollution under the FederalClean Water Act”, 2007 20 WGBU, Special Report 2006: The futureoceans, warming up, rising high, turning sour (2006) 21 W. Burns, “Anthropogenic carbon dioxideemissions and ocean acidification”, in R.A. Askins et al. (eds), SavingBiological Diversity (Berlin: Springer, 2008), 187. See also,Hoegh-Guldberg, loc cit.
22 IOC, Monaco Declaration (2008). 23 K. Caldeira and M.E.
Wickett,”Anthropogenic carbon and ocean pH”, in RachelBaird, op cit, 6. 24 IOC, loccit.25 I. Zondervan et al.
, “Decreasing marinebiogenic calcification: a negative feedback on rising atmospheric CO2”, GlobalBiogeochemical Cycles (2001), 507. 26 Commonwealth of Australia, House ofRepresentatives Standing Committee on Climate Change, Water, Environment andthe Arts, Managing our coastal zone in a changing climate: the time to actis now (2009), 49 27 Interacademy Panel on international issues,Statement on Ocean Acidification (June 2009). 28 O. Hoegh-Guldberg, “Climate change andcoral reefs: Trojan horse or false prophecy?” in Rachel Baird, op cit, 7.29 H. Langenbuch and H.
O. Pörtner, “Energybudget of hepatocytes from Antarctic fish (Pachycara brachycephalum andLepidonotothen kempi) as a function of ambient CO2: pH-dependent limitations ofcellular protein biosynthesis?”, 206 Journal of Experimental Biology (2003),3895 30 WGBU, loccit, see also Rachel Baird, loc cit.31 Ibid32 A. Bernaerts, “Climate Change”, in RachelBaird, ibid, 9.33 K. Ott et al, Reasoning Goals of Climate Protection: Specification of Article 2UNFCCC (2004).34 Rachel Baird, ibid, 10.35 Intergovernmental Panel on Climate Change, Climate change 2007: Synthesis report(2007).
36 Rachel Baird, loc cit,37 Ibid38 Ibid39 Ibid40 Ibid41 WGBU, loccit.42 Rachel Baird, ibid, 11.43 Ibid44 D. Bodansky, “The United Nations FrameworkConvention on Climate Change: A commentary”, 18 Yale Journal ofInternational Law (1993), 451 45 R. Warner, “Preserving a balanced ocean:Regulating climate change mitigation activities in marine areas beyond nationaljurisdiction”, 14 Australian International Law Journal (2007), 99. 46 UNCLOS, 1982, article 21247 Rachel Baird, ibid, 12.48 Ibid49 Convention on the Prevention of MarinePollution by Dumping of Wastes and Other Matter, 1972, article 1.
50 Rachel Baird, loc cit. 51 Ibid52 IMO Doc. LC-LP.
1/Circ.5, 2006. 53 IMO Doc. LC/SG-CO2 2/WP.1, 2007.
54 IMO Doc. LC-LP.1/Circ.14, 2007. 55 Interacademy Panel on international issues,loc cit.
56 Resolution LC-LP.1, 2008.