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-boundaryenvironmental governance 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,called 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 as seriousas other climate change, having effects on the marine environment as serious asother 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.4 Flowingfrom this, attention is only now being directed to what role internationalenvironmental law can and ought to play in addressing ocean acidification.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 acidificationtherefore exists in somewhat of an international legal twilight zone, aregrettable position given the serious threat it presents to the ecological integrityof the 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.
7 Whilethe effects of this change to the carbon concentration of the atmosphere on theglobal climate system is widely acknowledged and increasingly well understood, theimpact of CO2 on the chemical make-up of the oceans has only recently attractedattention from scientists and policy makers.8a. The Causes of OceanAcidificationThe chemical process ofocean acidification is relatively straightforward, although there is substantialregional 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.10 Theoceans 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.12 Moreover,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 marine organizations.14There has been a ten percent decline in carbonate concentrations compared topre-industrial levels, 17 and these are projected to decrease by 50 percent by2100.15b.
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.16 Manymarine photosynthetic organisms and animals, such as molluscs, corals,echinoderms, foraminifera and calcareous algae, make shells and plates out ofcalcium carbonate.17 Itcould happened when the seawater contains a sufficient concentration of calciumcarbonate. Increased concentrations of CO2 will increase acidity which impedesthe process of calcification. Calcifying organisms will be negatively affectedin the present century, with estimates suggesting that calcification rates willdecrease by as much as 50 percent by 2100 due to the fall in calcium carbonateconcentration.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.22 Ofeven greater concern is the compounding effect reduced calcification will haveon the health of reef ecosystems particularly given that few scientific studieshave 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.24 Oceanacidification 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.25 Asmany 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 that fundamentalecological ocean processes will be affected as many marine organisms dependdirectly or indirectly on calcium carbonate saturated waters and are adapted tocurrent levels of seawater pH for physiological and metabolic processes such ascalcification, growth and reproduction.26Changes in ocean acidity mayalso have physiological impacts on marine species.
Ocean acidification willincrease sensitivity and decrease the water temperature threshold.27 Additionallythere is evidence of lower rates of protein synthesis with negative impacts onthe functioning of large animals including growth and reproduction.28 Thesenegative impacts have been highlighted in experiments carried out with CO2 concentrationsmuch higher than would be expected in emissions scenarios for the period up to2100, and field research is needed to determine whether such effects will alsobe 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 dangerous interferencewith the climate system (atmosphere, hydrosphere, biosphere and geosphere andtheir interactions). As oceans are part of the hydrosphere, marine organismsare part of the biosphere, and atmospheric concentrations 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 thus clearly arguable that Article 2 of the UNFCCC encompassesan obligation to take into account the impacts of climate change upon theoceans. This interpretation is consistentwith an understanding that the climate can be understood as the continuation ofthe oceans by other means.311 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 (Pachycarabrachycephalum and Lepidonotothen kempi) as a function of ambient CO2:pH-dependent limitations of cellular protein biosynthesis?”, 206 Journal ofExperimental Biology (2003), 3895 29 WGBU, loc cit, see also Rachel Baird, loc cit.30 Ibid31 A. Bernaerts, “ClimateChange”, in Rachel Baird, ibid, 9.
