1. a result of the uptake of carbon dioxide

1.   
Introduction

International environmental
law has been developed to be various disciplines which discuss several
different issues specifically. Regimes have been devised to address specific
global or regional environmental problems, such as particular sources and types
of trans-boundary pollution, rather than to promote trans-boundary environmental
governance in integrated manner.1 As
a consequence there is today an array of international environmental regimes
but a lack of coordination among them, and many regimes operate independently,
and sometimes even inconsistently, in relation to each another.2

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The changing chemistry of
the oceans as a result of the uptake of carbon dioxide from the atmosphere
known as ocean acidification is one of many challenges in addressing new
environmental challenges effectively in environmental regime complexity. Such matter
is caused by the atmospheric pollutant that is also the main driver of
anthropogenic climate change, having effects on the marine environment as
serious as other climate change, having effects on the marine environment as
serious as other pollutants entering the oceans.3 As
the phenomenon has only recently been assessed in scientific literature, and
much further research remains to be done, there has been little opportunity for
an influential epistemic community of concerned scientist to assemble and raise
global awareness of the seriousness of the problem.4
Flowing from this, attention is only now being directed to what role
international environmental law can and ought to play in addressing ocean
acidification.

There are two main
environmental regimes appear to have obvious application to ocean
acidification, which are the climate change regime established upon the United Nations Framework Convention on
Climate Change (UNFCCC)5
and the marine pollution regime constituted by the UNCLOS that regulate
pollution of the marine environment from various sources. However, while the
phenomenon is partially regulated by both of these principal regimes, or
collections of regimes, it is addressed wholeheartedly by neither6.
Ocean acidification therefore exists in somewhat of an international legal
twilight zone, a regrettable position given the serious threat it presents to
the ecological integrity of the world’s oceans.7

In connection with the legal
implication of ocean acidification by co2 of climate change, after the
introduction, next section discuss the ocean acidification itself by describing
the causes and the consequences. Section 3 will analyze the international law
regimes to address the problem. Afterwards, this article argue that there is a
need for amendment to the UNCLOS.

2.   
Ocean Acidification

The present atmospheric
concentration of CO2 is higher than it has been for the past 420,000 years, and
possibly for the last 15 million years.8
While the effects of this change to the carbon concentration of the atmosphere
on the global climate system is widely acknowledged and increasingly well
understood, the impact of CO2 on the chemical make-up of the oceans has only
recently attracted attention from scientists and policy makers.9

a.   
The Causes of Ocean Acidification

The chemical process of
ocean acidification is relatively straightforward, although there is
substantial regional and seasonal variability in ocean pH.10
As the term ‘ocean acidification’ suggests, when CO2 dissolves in the oceans it
reacts with H2O to form an acid, carbonic acid.11
The oceans are naturally alkaline and the pre-industrial pH of the oceans was
around 8.1.12 The ocean pH has now
declined by 0.1, such that the oceans are more acidic today than at any time in
the last half-million years.13
Moreover, ocean pH may fall by up to 0.5 units by 2100 if CO2 emissions are not
substantially reduced.14

This process results in
substantial changes to the carbon chemistry of the oceans. Hydrogen ions
released in the formation of carbonic acid combine with carbonate ions in the
water to form bicarbonate, removing substantial amounts of carbonate ions from
the water which are essential for the formation of a range of marine
organizations.15 There has been a ten
percent decline in carbonate concentrations compared to pre-industrial levels,
17 and these are projected to decrease by 50 percent by 2100.16

b.   
The Consequences for Marine
Organism and Ecosystems

It can be said that there is
a consensus in scientific knowledge that ocean acidification already having high
impacts on many ocean species and ecosystems.17
Many marine photosynthetic organisms and animals, such as molluscs, corals,
echinoderms, foraminifera and calcareous algae, make shells and plates out of
calcium carbonate.18
It could happened when the seawater contains a sufficient concentration of
calcium carbonate. Increased concentrations of CO2 will increase acidity which
impedes the process of calcification. Calcifying organisms will be negatively
affected in the present century, with estimates suggesting that calcification
rates will decrease by as much as 50 percent by 2100 due to the fall in calcium
carbonate concentration.19

Calcium carbonate is
employed as a construction material for organisms in several crystalline forms,
such as aragonite and calcite. All calcifying organisms are likely to be
adversely affected by ocean acidification, but those that use aragonite will be
affected first as aragonite dissolves more readily due to its crystalline
structure.20 At most risk are coral organisms
that require aragonite to be deposited in excess of erosion to build coral
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 coral reef
accretion by 2050.21

The threat is severe for
tropical and sub-tropical coral reefs such as the Great Barrier Reef that are
highly sensitive to the combined effect of increased acidity and increased
water temperatures from climate change. A recent investigation indicates that calcification
throughout the Great Barrier Reef has declined by 14.2 per cent since 1990.22
Reduced calcification leads to weaker coral skeletons, reduced extension rates
and increased susceptibility to erosion from wave action.23
Of even greater concern is the compounding effect reduced calcification will
have on the health of reef ecosystems particularly given that few scientific
studies have examined changes in the physiology of corals over the long term.24

While corals are the most
spectacular calcifying organisms in the oceans, they account for only 10
percent of global calcium carbonate production.25
Ocean acidification will have less visible but no less serious impacts on the
development and survival of other marine calcifying organisms such as molluscs,
crustaceans and some planktons.26
As many of these organisms form the basis of diverse ocean ecosystems, the
consequences of reduced calcification cannot be underestimated. Indeed, the
Inter-academy Panel on International Issues, a global panel of science academies,
in its June 2009 Statement on ocean acidification observed that fundamental
ecological ocean processes will be affected as many marine organisms depend
directly or indirectly on calcium carbonate saturated waters and are adapted to
current levels of seawater pH for physiological and metabolic processes such as
calcification, growth and reproduction.27

Changes in ocean acidity may
also have physiological impacts on marine species. Ocean acidification will
increase sensitivity and decrease the water temperature threshold.28
Additionally there is evidence of lower rates of protein synthesis with
negative impacts on the functioning of large animals including growth and
reproduction.29 These negative impacts
have been highlighted in experiments carried out with CO2 concentrations much
higher than would be expected in emissions scenarios for the period up to 2100,
and field research is needed to determine whether such effects will also be
experienced in ocean environments.30

3.   
The International Law Regimes

a.   
The Climate Change

The climate change is the
primary relevance regime to ocean acidification in the environmental law
context. The regime regulating human interference with the atmospheric commons.
Such regime, that comprises the UNFCC and Kyoto Protocol, is significant
because it still the primary focus for international society efforts to reduce
the greenhouse gas causing ocean acidification (carbon dioxide). Ocean
acidification had not been examined in depth in the scientific literature when
either the UNFCCC or the Kyoto Protocol were negotiated.
However while there is no mention of the phenomenon in either text, a range of
provisions in both have relevance and are deserving of close scrutiny as they
provide foundations for the international law of climate change that are likely
to be retained in the outcomes of the Copenhagen climate conference in December
2009.31

The article 2 of the UNFCCC,
that related with the Kyoto Protocol and other implementing agreement provides
that the main objective of the convention is to achieve stabilization of
greenhouse gas concentrations in the atmosphere at a level would prevent
dangerous interference with the climate system (atmosphere, hydrosphere,
biosphere and geosphere and their interactions). As oceans are part of the hydrosphere,
marine organisms are part of the biosphere, and atmospheric concentrations of
CO2 are inextricably linked to the process of ocean acidification, the problem
of ocean acidification is one of interaction among the atmosphere, hydrosphere
and biosphere, all of which are components of the climate system. It is
arguable that article 2 of the UNFCCC encompasses
an obligation to take into account the impacts of climate change upon the
oceans. This interpretation is consistent with an understanding that the
climate can be understood as the continuation of the oceans by other means.32

The UNFCCC objective raises main question “what is ‘dangerous
anthropogenic interference’ with the climate system and is ocean acidification
relevant for determining what is dangerous?” To determine in a general sense
whether there has been dangerous interference the Parties may draw upon the
work of subsidiary bodies established under the UNFCCC,33
and the reports of the intergovernmental Panel on Climate Change (IPCC).34
Nevertheless, while ocean acidification receives express mention in the IPCC’s
Fourth Assessment Report35,
given the atmospheric focus of Article 2 of the UNFCCC it is questionable
whether determination of ‘dangerous anthropogenic interference’ could be
defined by reference to a dangerous ocean pH threshold.36

As such the climate regime’s
capacity to address ocean acidification occurs only as an incident to
minimizing the effects of climate change. This conclusion is reinforced by an
analysis of other provisions of the UNFCCC. Article 1(2) of the UNFCCC defines
‘climate change’ as the change of climate attributed to human activity that
alters the composition of global atmosphere.37
Furthermore, Article 1(1) defines ‘adverse effects’ of climate change to be
alterations in the physical environment or biota resulting from climate change
which have significant deleterious effects on composition, resilience or
productivity of natural and managed ecosystems. The result is that Article 3,
which requires State parties to protect the climate system and limit adverse
effects, does not appear to include an obligation to prevent or limit ocean
acidification.38

The consequence of the
climate regime’s atmospheric focus is that the emissions targets set by the
Kyoto Protocol are calibrated by reference by their atmospheric rather than
oceanic effects. Hence the climate regime bundles together all of the major six
greenhouse gases when allocation emissions limitation and reduction budgets
with no discrimination between them.39
The Kyoto Protocol imposes no specific requirement to reduce CO2 emissions, but
rather allows State parties to fulfil their commitments by limiting their
aggregate anthropogenic carbon dioxide equivalent emissions of greenhouse gases
(see Article 3(1)).40
This means that Annex B parties to the Kyoto Protocol will be able to increase
their CO2 emissions so long as there is a necessary reduction in their emission
of other greenhouse gases, such as methane and nitrous oxide, even though this
will worsen ocean acidity.41

Both the UNFCCC and Kyoto Protocol contain additional provisions that may counteract
efforts to prevent ocean acidification. Article 1 of the UNFCCC defines a ‘reservoir’ to be a
component of the climate system where a greenhouse gas or a precursor of a greenhouse
gas is stored, and defines a ‘sink’ to be any process, activity or mechanism
which removes a greenhouse gas, an aerosol or a precursor of a greenhouse gas
from the atmosphere.42
Article 4(1)(d) then requires all parties to promote sustainable management,
and to cooperate in the conservation and enhancement of sinks and reservoirs of
all greenhouse gases, including oceans. This means that not only must parties
act to enhance the ‘passive’ absorption of anthropogenic CO2 into the oceans,
but these provisions can even be read as encouraging ‘active’ ocean
sequestration of CO2.43
Even it is not a constitution for global atmosphere,44
the climate regime in its current guise is incapable of adequately addressing
ocean acidification. The problem has not been directly considered in any depth
in climate change discussions, and has featured only peripherally as an
environmental variable of potential concern.

b.   
Marine Pollution Regime

The main International legal
instrument that regulating 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
where States have negotiated at global and regional levels on specific issues.45

The UNCLOS provides duties
on States to protect and maintain marine environment and taking measures to
prevent and control marine pollution from any sources such as land, atmosphere,
etc. Furthermore, the convention also requires state parties to adopt laws and
regulations to prevent, reduce and control pollution of the marine environment
from or through the atmosphere.46
The UNCLOS is supplemented by more detailed regimes including those regulating
dumping at sea and land and atmospheric source marine pollution, both of which
are applicable to ocean acidification to some degree.47
Many of these instruments overlap and, while not necessarily inconsistent,
certainly lack co-ordination. It is in this arena that the problem of regime
complexity becomes especially apparent as an impediment to curbing ocean
acidification.48

Beside the UNCLOS, there is
another convention that dealing with the ocean acidification issue. Such
instrument known as the 1972 London Convention and 1996 London Protocol. The
objective of the 1972 London
Convention is to prevent the pollution of the sea by dumping of waste or
other matter liable to create hazards to human health, harm living resources
and marine life.49 The 1996 London Protocol was negotiated
to replace the 1972 London Convention and
although it has entered into force it has only limited participation to date.
Both of these regimes therefore currently operate in parallel.50

The dumping regime applies
only to active sequestration of CO2 (the deliberate dumping of liquefied carbon
wastes in the seas) and not passive sequestration (the natural absorption of
CO2 from the atmosphere). Although as a consequence the regime can only
regulate one relatively small potential driver of ocean acidification, there
have been some important developments that have recognized the acidification
effects of CO2.51 The regime has developed
in such a way as to permit sub-seabed sequestration of CO2 and to prohibit
water-column disposal of CO2. At the First Meeting of the Contracting Parties,
in November 2006, amendments to the 1996
London Protocol were adopted which permitting the storage of CO2 under
the seabed52. These allow for
regulation of sub-seabed sequestration of CO2, with CO2 streams from carbon
capture processes added to Annex I as a waste or other matter that may be
considered for dumping. The amendments have been supplemented by Specific Guidelines for Assessment of Carbon
Dioxide Streams for Disposal into Sub-Seabed Geological Formations adopted
at the Second Consultative Meeting in November 2007.53

There are dangers of ocean
acidification that found in scientific working group’s statement of concern
regarding ocean fertilization.54
For examples, it was concluded that at current emissions rates, all coral reefs
and polar ecosystems will be severely affected by 2050 and it can be earlier.55
Similar concern is also evident in the resolution adopted by the parties in
October 2008 that agreed that the scope of the London Convention and London
Protocol includes ocean fertilization activities, and that given the
present state of knowledge, ocean fertilization activities other than
legitimate scientific research should not be allowed.56

4.   
Legal Implication of Ocean
Acidification by CO2 of Climate Change

As a phenomenon which have
many impacts on the life of human beings, ocean acidification surely have a
legal implication on international law. The most important question is how far
the legal implication of ocean acidification by co2 of climate change is? This section
will attempt to answer it.

            It’s
been discussed in previous sections that there are, at least two international
environmental law regimes that facing the ocean acidification issues. They are
the climate change regime and the marine pollution regime. The previous
sections was also discussing several international legal instruments and
conferences that examine such matter. Based on the discussions, we can see that
there is an implication from the ocean acidification phenomenon to
international law.

1 See generally T. Stephens, International
courts and environmental protection (Cambridge: Cambridge University 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 Litmus Test for International Law”, Sydney Law School Legal Studies Research
Paper No. 10/139, 2010, 2

4 In contrast to the ozone depletion and
climate change that has attracted far more scientific attention over a longer
period, with correspondingly greater impacts upon global environmental regime
building. See generally Peter M. Haas, “Banning Chlorofluorocarbons: Epistemic
Community Efforts to Protect Stratospheric Ozone” 46 International
Organization (1992), 1. 

5 United Nations Framework Convention on
Climate Change, 9 May 1992, (“UNFCCC”). 

6 Rachel Baird, et al, “op cit, 3

7 Ibid

8 SCOR/IOC, “The ocean in a high CO2 world”,
17 Oceanography (2004), 72. 

9 Rachel Baird, loc cit

10 B. I. McNeil and R.J. Matearb, “Southern
Ocean acidification: A tipping point at 450-ppm atmospheric CO2”, 105 Proceedings
of the National Academy of Sciences (2008).

11 J. C. Orr et al., “Anthropogenic ocean
acidification over the twenty-first century and its impact on calcifying
organisms”, 437 Nature (2005), 681. 

12 O. Hoegh-Guldberg et al., “Coral reefs
under rapid climate change and ocean acidification”, 318 Science (2007),
1737 

13 ibid

14 Royal Society, Ocean acidification due
to increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 4.

15 Ibid

16 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 molecular process
to global impacts (Berlin: Springer, 2004), 99. 

17 See, G. De’ath et al., “Declining coral
calcification on the Great Barrier Reef”, 323 Science (2009), 116. 

18 Royal Society, Ocean acidification due
to increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 5.

19 OSPAR Commission, Effects on the marine
environment of ocean acidification resulting from elevated levels of CO2 in the
atmosphere (2006).  See also, M.
Sakashita, “Petition to regulate carbon dioxide pollution under the Federal
Clean Water Act”, 2007 

20 WGBU, Special Report 2006: The future
oceans, warming up, rising high, turning sour (2006) 

21 W. Burns, “Anthropogenic carbon 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.

22 IOC, Monaco Declaration (2008). 

23 K. Caldeira and M.E. Wickett,
“Anthropogenic carbon and ocean pH”, in Rachel
Baird, op cit, 6. 

24 IOC, loc
cit.

25 I. Zondervan et al., “Decreasing marine
biogenic calcification: a negative feedback on rising atmospheric CO2”, Global
Biogeochemical Cycles (2001), 507. 

26 Commonwealth of Australia, House of
Representatives Standing Committee on Climate Change, Water, Environment and
the Arts, Managing our coastal zone in a changing climate: the time to act
is now (2009), 49 

27 Interacademy Panel on international issues,
Statement on Ocean Acidification (June 2009). 

28 O. Hoegh-Guldberg, “Climate change and
coral reefs: Trojan horse or false prophecy?” 
in Rachel Baird, op cit, 7.

29 H. Langenbuch and H.O. Pörtner, “Energy
budget of hepatocytes from Antarctic fish (Pachycara brachycephalum and
Lepidonotothen kempi) as a function of ambient CO2: pH-dependent limitations of
cellular protein biosynthesis?”, 206 Journal of Experimental Biology (2003),
3895 

30 WGBU, loc
cit, see also Rachel Baird, loc cit.

31 Ibid

32 A. Bernaerts, “Climate Change”, in Rachel
Baird, ibid, 9.

33 K. Ott et al, Reasoning Goals of Climate Protection: Specification of Article 2
UNFCCC (2004).

34 Rachel Baird, ibid, 10.

35 Intergovernmental Panel on Climate Change, Climate change 2007: Synthesis report
(2007).

36 Rachel Baird, loc cit,

37 Ibid

38 Ibid

39 Ibid

40 Ibid

41 WGBU, loc
cit.

42 Rachel Baird, ibid, 11.

43 Ibid

44 D. Bodansky, “The United Nations Framework
Convention on Climate Change: A commentary”, 18 Yale Journal of
International Law (1993), 451 

45 R. Warner, “Preserving a balanced ocean:
Regulating climate change mitigation activities in marine areas beyond national
jurisdiction”, 14 Australian International Law Journal (2007), 99. 

46 UNCLOS, 1982, article 212

47 Rachel Baird, ibid, 12.

48 Ibid

49 Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter, 1972, article 1.

50 Rachel Baird, loc cit.

51 Ibid

52 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.  

x

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