An Alternative Approach for Addressing CO2-driven Ocean Acidification

Author:Verónica González
Position:LL.M. candidate, May 2012, at American University Washington College of Law
45WINTER 2012
by Verónica González*
The oceans have absorbed over twenty-five percent of the
anthropogenic carbon dioxide (“CO2”) released to the
atmosphere since pre-industrial times.1 As a result, naturally
alkaline oceans are becoming more acidic.2 The projected increase
in CO2 emissions absorbed by the oceans will cause changes in
water chemistry that may affect “biodiversity, trophic interactions,
and other ecosystem processes.”3 Elevated CO2 will lower the
availability of carbonate ions, which calcifying organisms need to
create their shells and skeletons.4 In the case of corals, it is likely
to induce bleaching.5 High CO2 concentrations will reduce larval
fish survival,6 as it impairs their ability to detect predators and find
adequate habitat.7 It is clear that “[a]cidification impacts processes
so fundamental [that it] could have far-reaching consequences for
the oceans of the future and the millions of people that depend on its
food and other resources for their livelihoods.”8
To date, no international instrument addresses ocean
acidification as a stand-alone concern. Two important and widely
accepted instruments, however, do offer avenues to deal with
the issue: the U.N. Framework Convention on Climate Change9
(“UNFCCC”) and the U.N. Convention on the Law of the Seas
(“UNCLOS” or “Convention”).10 Both instruments have distinct
advantages and disadvantages when it comes to addressing ocean
acidification. While the UNFCCC is the preeminent instrument
to deal with emissions of CO2, UNCLOS presents a viable alter-
native outside the frequently challenging UNFCCC context. 11
UNCLOS is a comprehensive framework for the use of the
seas that covers a wide array of subjects ranging from maritime
boundaries12 to protection of the marine environment.13 Parties
to UNCLOS have a general obligation “to protect and preserve
the marine environment.”14 They also have a responsibility to take
“all measures . . . necessary to prevent, reduce and control pollu-
tion[15] of the marine environment from any source.16 This obli-
gation includes taking necessary measures to avoid pollution from
or through the atmosphere17 as well as from land-based sources.18
Since ocean acidification is an important threat to the
marine environment, Parties to UNCLOS are already obligated
to take action to control and reduce its impacts. Given its prin-
ciple mandate to protect the marine environment, the framework
established to address pollution could logically be interpreted as
to include CO2 as a pollutant and its most important sources,
including land-based sources, as regulated by the Convention.19
Another advantage is its wide acceptance and broad subject
matter. 20 UNCLOS was adopted as a package deal, precisely
to encourage that the greatest number of States ratified the
convention based on the perceived advantage of having a major-
ity of States bound to all provisions.21 Furthermore UNCLOS
has binding dispute resolution mechanisms that can be used to
resolve environmental disputes.22 These mechanisms have been
favorably compared with that of the World Trade Organization
because of its jurisdiction, authority, and implementing powers.23
On the other hand, UNCLOS lacks provisions on how States
should fulfill their obligation to protect and preserve the marine
environment.24 The Convention provides a legal basis for marine
space protection under Article 207, which emphasizes Parties’
obligations to take into account the marine environment protection
measures agreed upon under different instruments.25 UNCLOS can
therefore be perceived has an “umbrella agreement that brings other
international rules, regulations and implementing bodies under its
canopy.26 Consequently, diplomatic conferences and international
organizations can supplement this “framework for marine pollution
control through specific regulatory instruments.”27 However, there
are no international instruments to supplement UNCLOS on this
issue. The general obligation to take measures to reduce and control
pollution from land-based and atmospheric sources28 is debilitated
by the fact that the provision refers State Parties to instruments
outside the Convention that fail to adequately address the a seri-
ous threat to the marine environment. Even in the case that an
appropriate instrument addressing ocean acidification was to arise,
UNCLOS only requires that internationally agreed regulations and
practices be taken into consideration.29
Some authors have proposed using the dispute resolution
mechanisms provided in UNCLOS to address climate change,
particularly in the context of its impacts to fisheries.30 Since
States do not have concrete obligations to fulfill and enforce
rules to control or reduce ocean acidification or to regulate CO2
as a pollutant to the marine environment, using UNCLOS dis-
pute resolution mechanism would prove difficult.
Rallying the numerous UNCLOS Parties around an interna-
tional agreement to address ocean acidification will be challenging.
Nevertheless, there is definite potential to address acidification
through the principal instrument of ocean governance. States might
be more inclined to agree to international standards to address
ocean acidification in a context where they have much to lose if the
denounce the agreement. Furthermore, unlike other impacts of CO2
that have been unjustifiably labeled as uncertain, ocean acidification
is indisputable. There is no doubt that Parties to UNCLOS already
have committed to protecting the marine environment from pollu-
tion, and by extension address ocean acidification, even if their com-
mitment might not enforceable at this point. While far from ideal,
UNCLOS is a viable option to address ocean acidification.
* Verónica González is a LL.M. candidate, May 2012, at American University
Washington College of Law.
Endnotes on page 69