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 UnitedNations Framework Convention on Climate Change (UNFCCC)5 and the marinepollution regime constituted by the UNCLOS that regulate pollution of themarine environment from various sources. However, while the phenomenon ispartially regulated by both of these principal regimes, or collections ofregimes, it is addressed wholeheartedly by neither. Ocean acidification thereforeexists in somewhat of an international legal twilight zone, a regrettableposition given the serious threat it presents to the ecological integrity ofthe world’s oceans.
6In 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.7While 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.8a. The Causes of OceanAcidificationThe chemical process ofocean acidification is relatively straightforward, although there issubstantial regional and seasonal variability in ocean pH.
9 Asthe term ‘ocean acidification’ suggests, when CO2 dissolves in the oceans itreacts with H2O to form an acid, carbonic acid.10The oceans are naturally alkaline and the pre-industrial pH of the oceans wasaround 8.1.11 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.
12Moreover, ocean pH may fall by up to 0.5 units by 2100 if CO2 emissions are notsubstantially reduced.13This 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.
14 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 2100.15b. 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.16Many marine photosynthetic organisms and animals, such as molluscs, corals,echinoderms, foraminifera and calcareous algae, make shells and plates out ofcalcium carbonate.17It 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.
18Calcium 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.19 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 2050.20The 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 1990.21 Reduced calcificationleads to weaker coral skeletons, reduced extension rates and increasedsusceptibility to erosion from wave action.22Of 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.
23While corals are the mostspectacular calcifying organisms in the oceans, they account for only 10percent of global calcium carbonate production.24Ocean 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.25As 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.26Changes in ocean acidity mayalso have physiological impacts on marine species. Ocean acidification willincrease sensitivity and decrease the water temperature threshold.27Additionally there is evidence of lower rates of protein synthesis with negativeimpacts on the functioning of large animals including growth and reproduction.
28These 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.29 3. 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).
Ocean acidification had not beenexamined in depth in the scientific literature when either the UNFCCC orthe Kyoto Protocol were negotiated. However while there is no mention ofthe phenomenon in either text, a range of provisions in both have relevance andare deserving of close scrutiny as they provide foundations for theinternational law of climate change that are likely to be retained in theoutcomes of the Copenhagen climate conference in December 2009.30The article 2 of the UNFCCC, thatrelated with the Kyoto Protocol and other implementing agreement provides thatthe main objective of the convention is to achieve stabilization of greenhousegas concentrations in the atmosphere at a level would prevent dangerousinterference with the climate system (atmosphere, hydrosphere, biosphere andgeosphere and their interactions). As oceans are part of the hydrosphere,marine organisms are part of the biosphere, and atmospheric concentrations ofCO2 are inextricably linked to theprocess of ocean acidification, the problem of ocean acidification is one ofinteraction among the atmosphere, hydrosphere and biosphere, all of which arecomponents of the climate system. It is arguable that article 2 of the UNFCCCencompasses an obligation to take into account the impacts of climatechange upon the oceans.
This interpretation is consistentwith an understanding that the climate can be understood as the continuation ofthe oceans by other means.31The UNFCCC objective raises mainquestion “what is ‘dangerous anthropogenic interference’ with the climatesystem and is ocean acidification relevant for determining what is dangerous?”To determine in a general sense whether there has been dangerous interferencethe Parties may draw upon the work of subsidiary bodies established under theUNFCCC,32and the reports of the intergovernmental Panel on Climate Change (IPCC).33Nevertheless, while ocean acidification receives express mention in the IPCC’sFourth Assessment Report34, 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.35As such the climate regime’s capacityto address ocean acidification occurs only as an incident to minimizing theeffects 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.
36Furthermore, 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.37The consequence of the climateregime’s atmospheric focus is that the emissions targets set by the KyotoProtocol are calibrated by reference by their atmospheric rather than oceaniceffects. Hence the climate regime bundles together all of the major sixgreenhouse gases when allocation emissions limitation and reduction budgetswith no discrimination between them.
38The 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)).39This 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.40Both the UNFCCC and KyotoProtocol contain additional provisions that may counteract efforts toprevent ocean acidification. Article 1 of the UNFCCC defines a’reservoir’ to be a component of the climate system where a greenhouse gas or aprecursor of a greenhouse gas is stored, and defines a ‘sink’ to be anyprocess, activity or mechanism which removes a greenhouse gas, an aerosol or aprecursor of a greenhouse gas from the atmosphere.41 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, but these provisions can even be read asencouraging ‘active’ ocean sequestration of CO2.42 Evenit is not a constitution for global atmosphere,43 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 legal instrument thatregulating the environmental protection in marine areas (within or beyond)national jurisdiction is the United Nations Convention on the Law of the Sea(UNCLOS), provided in its Part XII, and combined with some regulation whereStates have negotiated at global and regional levels on specific issues.441 See generally T. Stephens,International courts and environmental protection (Cambridge: CambridgeUniversity Press, 2009).2 See R. Wolfrum and N.Matz, Conflicts in international environmental law (Berlin: Springer,2003). 3 Rachel Baird, et al, “Ocean Acidification: A LitmusTest for International Law”, Sydney LawSchool Legal Studies Research Paper No.
10/139, 2010, 24 In contrast to the ozonedepletion and climate change that has attracted far more scientific attentionover a longer period, with correspondingly greater impacts upon globalenvironmental regime building. See generally Peter M. Haas, “BanningChlorofluorocarbons: Epistemic Community Efforts to Protect StratosphericOzone” 46 International Organization (1992), 1. 5 United Nations FrameworkConvention on Climate Change, 9 May 1992, (“UNFCCC”).
6 Rachel Baird, et al, “opcit, 37 SCOR/IOC, “The ocean in ahigh CO2 world”, 17 Oceanography (2004), 72. 8 Rachel Baird, loc cit9 B. I. McNeil and R.J.Matearb, “Southern Ocean acidification: A tipping point at 450-ppm atmosphericCO2”, 105 Proceedings of the National Academy of Sciences (2008).10 J.
C. Orr et al.,”Anthropogenic ocean acidification over the twenty-first century and its impacton calcifying organisms”, 437 Nature (2005), 681. 11 O. Hoegh-Guldberg et al.,”Coral reefs under rapid climate change and ocean acidification”, 318 Science(2007), 1737 12 ibid13 Royal Society, Oceanacidification due to increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 4.
14 Ibid15 B. Rost and U. Riebsell,”Coccolithaphores and the biological Pump: responses to environmental changes”,in H. R. Thierstein and J. R.
Young (eds.), Coccolithophores: from molecularprocess to global impacts (Berlin: Springer, 2004), 99. 16 See, G.
De’ath et al.,”Declining coral calcification on the Great Barrier Reef”, 323 Science (2009),116. 17 Royal Society, Oceanacidification due to increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 5.18 OSPAR Commission, Effectson the marine environment of ocean acidification resulting from elevated levelsof CO2 in the atmosphere (2006). Seealso, M. Sakashita, “Petition to regulate carbon dioxide pollution under theFederal Clean Water Act”, 2007 19 WGBU, Special Report2006: The future oceans, warming up, rising high, turning sour (2006) 20 W.
Burns, “Anthropogeniccarbon dioxide emissions and ocean acidification”, in R.A. Askins et al.
(eds),Saving Biological Diversity (Berlin: Springer, 2008), 187. See also,Hoegh-Guldberg, loc cit.21 IOC, MonacoDeclaration (2008). 22 K. Caldeira and M.E.Wickett, “Anthropogenic carbon and ocean pH”, in Rachel Baird, op cit, 6. 23 IOC, loc cit.
24 I. Zondervan et al.,”Decreasing marine biogenic calcification: a negative feedback on risingatmospheric CO2″, Global Biogeochemical Cycles (2001), 507. 25 Commonwealth ofAustralia, House of Representatives Standing Committee on Climate Change,Water, Environment and the Arts, Managing our coastal zone in a changingclimate: the time to act is now (2009), 49 26 Interacademy Panel oninternational issues, Statement on Ocean Acidification (June 2009). 27 O. Hoegh-Guldberg,”Climate change and coral reefs: Trojan horse or false prophecy?” in RachelBaird, op cit, 7.28 H.
Langenbuch and H.O.Pörtner, “Energy budget of hepatocytes from Antarctic fish (Pachycara brachycephalumand Lepidonotothen kempi) as a function of ambient CO2: pH-dependentlimitations of cellular protein biosynthesis?”, 206 Journal of ExperimentalBiology (2003), 3895 29 WGBU, loc cit, see also Rachel Baird, loc cit.30 Ibid31 A. Bernaerts, “ClimateChange”, in Rachel Baird, ibid, 9.32 K.
Ott et al, Reasoning Goals of Climate Protection:Specification of Article 2 UNFCCC (2004).33 Rachel Baird, ibid, 10.34 Intergovernmental Panelon Climate Change, Climate change 2007:Synthesis report (2007).35 Rachel Baird, loc cit,36 Ibid37 Ibid38 Ibid39 Ibid40 WGBU, loc cit.41 Rachel Baird, ibid, 11.42 Ibid43 D. Bodansky, “The United Nations Framework Convention on Climate Change:A commentary”, 18 Yale Journal of International Law (1993), 451 44 R.
Warner, “Preserving a balanced ocean: Regulating climate changemitigation activities in marine areas beyond national jurisdiction”, 14 AustralianInternational Law Journal (2007), 99.