Potential Causes Of Action For Climate Change Impacts Under The United Nations Fish Stocks Agreement
| Author | William C.G. Burns |
| Position | Senior Fellow at Santa Clara University School of Law, Santa Clara, California |
| Pages | 13 |
Page 34
Dr. William C.G. Burns is a Senior Fellow at Santa Clara University School of Law, Santa Clara, California. Dr. Burns can be reached at wburns@scu.edu.
While the international community developed institutional responses to climate change in the 1990s, through the United Nations Framework Convention on Climate Change ("UNFCCC") 1 and the Kyoto Protocol to the UNFCCC, 2 these have proven to be wholly inadequate to the task. Resistance by several nations, most prominently, the United States, to mandatory reduction targets for greenhouse gas emissions led the drafters to resort instead to "constructive ambiguities" and "guidelines, rather than a legal commitment." 3 Thus, the UNFCCC merely calls on the Parties in Annex I (developed countries and economies in transition) to "aim" to return their emissions back to 1990 levels. 4
This article examines a potential international forum in which the threat of climate change might be addressed, specifically the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea ("UNFSA"). 5 Actions to address climate change under UNFSA could be salutary for several reasons. First, the commercial fisheries sector may be profoundly and adversely affected by climate change. This includes many fish stocks regu lated under UNFSA: highly migratory species, which have wide geographic distribution and undertake significant migrations, 6 and straddling stocks, which occur both within and beyond Exclusive Economic Zones ("EEZs"). 7 Second, the United States, both the world's largest emitter of greenhouse gases ("GHGs") and a State with an abject record in addressing climate change, is a Party to UNFSA, and has played an active leadership role in its implementation. 8 UNFSA thus presents an excellent forum in which to engage the United States, as well as other major GHG emitters, including the European Union and China, on climate issues. Finally, unlike the other international fora for a where climate change actions have been pursued to date, UNFSA provides a dispute resolution mechanism with teeth. 9
An article of this length necessarily cannot discuss all of the intricate scientific and legal issues that an action of this nature would invoke; rather, it seeks to lay a foundation for further research and discussion. In this pursuit this article will: (1) outline the potential impacts of climate change on fish species, with an emphasis on the potential impacts of climate change on highly migratory fish species and straddling stocks; (2) provide an overview of UNFSA and potential actions for climate change damages under the Agreement; and (3) briefly discuss potential barriers to such actions.
While the Kyoto Protocol constituted an important step forward because it established binding commitments by industrialized parties to reduce emissions, 10 it by no means is a panacea to the specter of climate change. First, the United States, responsible for 25 percent of the world's GHG emissions, rejected the Kyoto Protocol in 2001. 11 While the Bush administration has touted a voluntary, technologically-driven approach, 12 the UNFCCC Secretariat recently projected that U.S. GHG emissions in 2010 will be more than 32 percent above 1990 levels, and more than 50 percent above 1990 levels by 2020. 13 To date, the United States has failed to present a realistic scenario for stabilizing or reducing its GHG emissions.
Second, it is by no means clear that many of the Parties to the Protocol will even meet their modest commitments under Kyoto. 14 Finally, the Protocol's initial commitments constitute only an extremely modest down payment on what ultimately must be done to stabilize atmospheric concentrations of GHG emissions. Climate researchers have estimated that full implementation of Kyoto would reduce projected warming in 2050 by only about one twentieth of one degree . 15 By contrast, stabilization of atmospheric GHGs will ultimately require the global community to reduce GHG emissions by 60 to 70 percent. 16 This will necessitate industrialized countries, including the United States, committing themselves to A Party to UNFSA pursuing an action based on climate change damages would face some imposing barriers, though none need prove fatal. Page 35 reductions of as much as 80 percent by the middle of the century if developing nations are to be permitted some growth in their emissions levels. 17 It will also ultimately necessitate deep cuts by large developing States with rapidly growing emissions, such as China and India. 18
At this point, it is difficult to be sanguine about the prospects. While the UNFCCC Secretariat lauded the purported "Spirit of Nairobi" at the latest Conference of the Parties held in Kenya, 19 in reality the Parties made very little progress developing a framework for long-term reductions in GHG emissions. Rather, the focus was on adapting to climate change impacts that increasingly seem inevitable. 20
The inadequacy of domestic legislation and treaty responses to climate change to date has led to a parallel commencement of judicial and quasi-judicial actions. Several actions related to climate change have been initiated in national courts and regulatory agencies in several countries, 21 as well as two actions in international fora, the Inter-American Commission on Human Rights, 22 and the World Heritage Committee. 23
Fish species are ectothermic (cold blooded); thus, water temperature is the primary source of environmental impact on fish, including growth and maturity rates, distribution and migration patterns, and incidence of disease. 24 Substantially rising oceanic temperatures throughout this century will likely have negative impacts on highly migratory and straddling stocks species in many regions, especially those near the edge of their temperature tolerance range. For example, the range of colder water fish species, such as capelin, polar cod and Greenland halibut, is likely to shrink, resulting in a decline in abundance. 25 A decline in nutrient upwelling as a consequence of increased stratification between warmer surface waters and colder deep water in warming oceans could also result in a decline in big eye and yellow fin tuna in the central and western Pacific. 26
Warming oceans could also radically change the distribution of some straddling stock and high migratory species. For example, rising ocean temperatures could result in a shift of the distribution of herring northward, upsetting a delicate agreement in the Northeast between coastal States who harvest herring within their EEZs and distant water fishing nations who fish on the high seas. 27 Should cooperative management agreements collapse, it might lead to "strategic over fishing" of a stock that is currently recovering from a historical decline. 28 Warming in the Pacific could similarly result in a redistribution of tuna resources to higher latitudes, such as Japan and the western equatorial Pacific. 29
Temperature increases will also adversely affect prey species of many straddling stocks and highly migratory species. For example, in the North Atlantic, strong biogeographical shifts in copepod assemblages associated with warming trends could substantially reduce the abundance of fish in the North Sea and ultimately result in the collapse of the stocks of cod, an important straddling stock species. 30
There may also be direct biological effects from rising levels of carbon dioxide entering the oceans. By the end of this century, projected increases in atmospheric carbon dioxide will result in an almost threefold increase in surface ocean carbon dioxide concentrations relative to pre-industrial levels. 31 This, in turn, could result in the average pH of the oceans falling by 0.5 units by 2100, which would translate into a three-fold increase in the concentration of hydrogen ions, making the oceans more acidic than they have been in 300 million years. 32 Acidification of the oceans will result in a decrease in the concentration of carbonate and related ions that reef building and other calcifying organisms 33 draw upon to produce calcium carbonate. 34 Among the species that might be severely affected are a snail species, the pteropod. In the Ross Sea, the subpolar- polar pteropod Limacina helicina sometimes replaces krill as the dominant zooplankton species in the ecosystem. 35 A recent study indicates that increased acidification of pteropod habitat in the Sea might ultimately result in the disappearance of the species from Antarctic waters, or shift its distribution to lower latitudes.
Given the severe impacts that climate change may have on straddling stocks and high migratory species, it is germane to next assess the prospects for enhancing their protection through the primary international legal instrument for their management and conservation.
The Third United Nations Conference of the Law of Sea convened in 1973 and culminated nine years later in the adoption of the United Nations Convention on the Law of the Sea ("UNCLOS"). 38 UNCLOS entered into force in 1994 and currently has 148 parties. 39 UNCLOS consists largely of provisions for the regulation of fisheries, with an emphasis on the sovereign rights of coastal States to explore, exploit, conserve, and manage living natural resources, including fish stocks, within their respective 200-mile EEZs. 40
It is by no means clear that many of the Parties to the Protocol will even meet their modest commitments under Kyoto.
While many have characterized UNCLOS as "a constitution for the oceans," 41 it provides only general governing principles
The lack of binding obligations in UNCLOS for high migratory species and straddling stocks was largely attributable to the fact that fishing in these regions was not considered to be a major issue in the early 1980s. 45 However, as coastal States began to claim their rights within their EEZs, large distant-water fishing fleets were increasingly displaced from their traditional fishing grounds, placing increasing pressure on stocks on the high seas and straddling stocks. 46 This shift quickly took its toll. In 1994, the UN Food and Agriculture Organization ("FAO") reported that straddling fish stock catches in EEZs and high seas had been declining since 1989, and that many highly migratory fish stocks, including a majority of tuna species, were depleted, in some cases, severely. 47
In 1992, the participants at the UN Conference on Environment and Development called for an intergovernmental conference under the auspices of the United Nations to address to promote effective implementation of UNCLOS provisions related to straddling stocks and highly migratory species.
The Agreement's overarching objective is to "ensure long- term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks." 51 The Agreement's primary means of effectuating this is through engendering cooperation between coastal States and States fishing on the high seas, through, inter alia:
- Seeking agreement between coastal States and States on the high seas to agree upon necessary measures for conservation of stocks in the high seas areas and straddling stocks through direct agreements and cooperation in Regional Fisheries Management Organizations; 52
- Collecting and exchanging of critical data with respect to straddling stocks and highly migratory species; 53 and
- Expanding the duties of Flag States to ensure enforcement of and compliance with the Convention's provisions, as well as the rights of other States, including port States, to ensure compliance with the Agreement.
However, the focus of UNFSA is on the relationship between coastal States and States fishing in areas beyond EEZs, there are a large number of provisions that could give rise to claims associated with climate change impacts on straddling stocks and highly migratory species.
It should be noted at the outset of this section that UNFSA adopts the well-recognized "no harm rule" of international environmental law, 55 providing that "States Parties are liable in accordance with international law for damage or loss attributable to them in regard to this Agreement." 56 Many of the provisions of UNFSA, in turn, could provide the basis for a Party to bring an action against one or more other Parties for climate- related damages to fisheries.
As indicated above, the Agreement's primary objective is to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory species, 57 mandating that its Parties take conservation and management measures to further this objective. While the Agreement's primary focus is on the impacts of the harvesting of fish stocks, it clearly contemplates the regulation of other potential factors that could inflict damages on fish stocks. For example, UNFSA requires the Parties to assess the impacts of "other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks." 58
Moreover, the Agreement requires the Parties to "minimize pollution." 59 While the Agreement does not define the term "pollution," given the relationship of the agreement to UNCLOS it would seem reasonable to apply its definition of this term. In pertinent part, UNCLOS defines "pollution of the marine environment" as:
the introduction by man, directly or indirectly, of substances or energy into the marine environment . . . which results or is likely to result in such deleterious effects as harm to living resources and marine life . . . hindrance to marine activities, including fishing.
While rising ocean temperatures related to climate change could not reasonably be construed as a "substance" under UNCLOS, it would likely be construed by a dispute resolution body as "energy," much as introduction of heat, such as waste water from production processes, appears to fall under this rubric.
Where necessary, UNFSA also imposes obligations on the Parties to adopt conservation and management measures for "species belonging to the same ecosystem or associated with or dependent upon target species" and to "protect biodiversity of the marine environment." 62 Thus, to the extent that climate change may diminish certain stocks, or alter their distribution in a way that adversely affects the interests of discrete Parties, a cause of action could arise under the Agreement.
Rare among international environmental agreements, UNFSA provides for a binding dispute resolution mechanism where efforts to resolve the dispute through non-binding methods proves to be unavailing. Part VIII of the Agreement applies Page 37 the dispute resolution mechanism set out in Part XV of UNCLOS to any dispute under the Agreement, even where one or more of the disputants are not Parties to UNCLOS. 63
As one scholar observed, UNCLOS "creates a binding system of obligations and dispute resolutions, which confers on a forum international jurisdiction, authority, and implementing powers that exceed those of other international environmental law forums and rival those conferred on the World Trade Organization." 64 Part XV of UNCLOS provides States with four potential fora for settlement of disputes: 65 the International Tribunal for the Law of the Sea ("ITLOS"), 66 the International Court of Justice; an arbitral panel; or a special arbitral panel. 67 States may choose to declare their choice of forum, but in cases where they have not, or Parties to a dispute have not accepted the same procedure for dispute settlement, the dispute must be submitted to binding arbitration unless the Parties agree otherwise. 68 To date, the vast majority of Parties to UNCLOS have, de facto , chosen arbitration by their silence on the matter, as have most Parties to UNFSA. 69
A Party to UNFSA pursuing an action based on climate change damages would face some imposing barriers, though none need prove fatal.
In many cases, declines of fish stocks or shifts in distribution may be attributable to a number of factors, including over fishing, 70 habitat destruction,
The target of a climate-related UNFSA action might argue that climate change is caused by a multitude of anthropogenic sources, and thus, any specific harm cannot be attributable to a specific Party, even a large GHG emitting State such as the United States. While this is certainly the case, an UNFSA action likely would not seek monetary damages, where the issue of specific causation would be clearly germane. Rather a Party bringing such an action would likely be seeking a commitment by the targeted Party to fulfill its "duty to cooperate" under the treaty
Experience with climate change litigation to date in the United States, at least, has demonstrated some reluctance on the part of members of the judiciary to address climate change issues given their limited scientific expertise. Consider, for example, Justice Scalia's flippant but telling comment in the recent oral arguments in the recent Supreme Court oral arguments in Massachusetts, et al. v. Environmental Protection Agency :
JUSTICE SCALIA: . . . your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.
MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.
JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist.
(Laughter.)
JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.
Parties bringing an action before ITLOS or an arbitral panel might experience similar reservations on the part of the dispute resolution body to grapple with the complicated technical issues associated with climate change, especially since the primary area of expertise of tribunal or panel members may be more traditional fisheries issues, such as the impact of harvesting on species. UNFSA provides two mechanisms to help address this concern. First, in cases where "a dispute concerns a matter of a technical nature," the States involved in a dispute may refer the dispute to an "ad hoc expert panel," which will confer with the Page 38 Parties and seek to resolve the dispute without recourse to binding procedures. 81 A Party seeking to press a climate change claim could certainly seek to engage another Party in such negotiations initially, and should this fail to resolve the dispute, seek to introduce the panel's scientific findings in a binding dispute resolution forum. Additionally, if both Parties agree to it, cases of this nature can be referred to a "special arbitral panel." Under UNCLOS's dispute resolution provisions in this context, which UNFSA fully incorporates, a panel hearing a climate change- related dispute could be constituted by experts in the fields of fisheries, marine environmental protection, marine scientific research, drawn from the FAO, the United Nations Environment Program and the Intergovernmental Oceanographic Commission, 82 all of whom have expertise on the nexus of fisheries and climate change.
Substantially rising oceanic temperatures throughout this century will likely have negative impacts on highly migratory and straddling stocks species in many regions.
Perhaps an even more imposing barrier to a cause of action under UNFSA may be the perceived threat to the legitimacy of a dispute resolution body should it enter a decision against a hegemonic State. As Strauss observes, international tribunals carefully marshal their political capital in an effort to preserve and enhance their legitimacy:
While the official function of international tribunals is to find the pre-existing law; in reality, for judges to have their decisions so accepted, they must engage in the creative process of negotiating the differing global interests to formulate results that are in accord with the international community's normative center of gravity. In arriving at politically viable legal standards, in addition to formally reviewing submitted briefs and memoranda and informally reading other legal commentary, judges engaged in a pragmatic assessment of the political situation, by factoring in the relative power of the protagonists and the interests of other important international actors. 83
The primary threat to the legitimacy of a UNFSA dispute resolution body in the context of climate change may be that a powerful State would choose to not comply with the decision given the dramatic policy changes that it might necessitate. As Silk recently observed, States may choose to not to comply with "binding" decisions when they deem it against their interests:
In international law, even allegedly binding dispute settlement mechanisms such as arbitration may be ignored when a state disagrees with the decision. To illustrate, in the Beagle Channel dispute between Chile and Argentina, Argentina challenged the validity of the arbitrators' decision on dubious grounds and, despite the implausibility of Argentina's repudiation, the decision was never enforced . . . . Under UNCLOS, there might be strong domestic and international pressures to sign a fishery agreement regardless of the costs of compliance, but when the time for compliance comes, narrower national interests may prevail.
Indeed, the fear that decisions against the United States might be ignored may explain the recent decisions of the Inter- American Commission on Human Rights and World Heritage Committee to reject petitions to address climate change under these respective regimes. 85
In a perfect world, the threat of climate change would be effectively addressed through the international institutional responses developed in the 1990s. Unfortunately, the specter of climate change looms larger now than it did a decade ago, and the prospects for adequate responses within the UNFCCC framework appear increasingly remote. Now more than ever, those most vulnerable to the impacts of climate change must explore alternatives that may finally galvanize the major greenhouse emitting States into action. UNFSA is one option that deserves further exploration.
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Endnotes
[1] United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849, available at http://unfccc.int/essential_background/feeling_the_ heat/items/2913.php (last visited Feb. 8, 2007) [hereinafter UNFCCC].
[2] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22, available at http://unfccc.int/resource/docs/ convkp/kpeng.html (last visited Feb. 15, 2006) [hereinafter Kyoto Protocol].
[3] Ranee Khooshie Lai Panjabi, Can International Law Improve the Climate? An Analysis of the United Nations Framework Convention on Climate Change Signed at the Rio Summit in 1992, 18 N.C. J. INT'L L & COMM. REG. 491, 404 (1993).
[4] UNFCCC, supra note 1, at art. 4(2)(b).
[5] UN Doc. A/CONF.164/37 (Aug. 4, 1994).
[6] Pacific Fishery Management Council, Background: Highly Migratory Species, http://www.pcouncil.org/hms/hmsback.html (last visited Feb. 8, 2007); see also S.M. Garcia, World Review of Highly Migratory Species and Straddling Stocks, UN Food and Agriculture Organization, FAO Fisheries Technical Paper No. 337 (1994), available at http://www.fao.org/docrep/003/T3740E/T3740E00.HTM (last visited Feb. 8, 2007); see also NOAA Fisheries, Office of Sustainable Fisheries, Highly Migratory Species, http://www.nmfs.noaa.gov/sfa/hms/ (last visited Feb. 8, 2007).
[7] See Garcia, supra note 6, at 4; see also FAO, The State of World Highly Migratory Straddling and other High Seas Fishery Resources and Associated Species 2 (2006), FAO Fisheries Technical Paper No. 495, http://ftp.fao.org/docrep/fao/ 009/a0653e/A0653E01.pdf (last visited Feb. 8, 2007).
[8] David A. Balton & Holly R. Koehler, Reviewing the United Nations Fish Stocks Treaty, SUSTAINABLE DEV. L. & POL'Y, Fall 2006, at 5-6, available at http://www.wcl.american.edu/org/sustainabledevelopment/2006/06fall.pdf?rd=1 (last visited Feb. 8, 2007).
[9] See contra Inter-American Commission on Human Rights, What is the IACHR?, at http://www.cidh.org/what.htm (last visited Feb. 8, 2007).
[10] Kyoto Protocol, supra note 2, at art. 3(1).
[11] Press Release, Remarks by the President on Global Climate Change (June 11, 2001), available at http://www.whitehouse.gov/news/releases/2001/06/ 20010611-2.html (last visited Feb. 8, 2007).
[12] Press Release, id.
[13] UNFCCC Secretariat, Data Appendices to UNFCCC Presentation at the AWG Workshop, Nov. 7, 2006, at 6, available at http://unfccc.int/files/meetings/ cop_12/in-session_workshops/application/pdf/061107_6_ghg_app.pdf (last visited Feb. 8, 2007).
[14] Ikuko Kao & Neil Chatterjee, Japan's Kyoto Gap Widens as Emissions Rise, PLANET ARK, Oct. 18, 2006, available at http://www.planetark.com/daily newsstory.cfm/newsid/38538/story.htm (last visited Feb. 8, 2007); see also Kyoto Protocol Implementation an ?Imperfect First Step,' U.S. FED N., Feb. 22, 2005, LEXIS-NEXIS, Newsfile; EU Lagging Climate Goal, Action Needed ? Scientists, PLANET ARK, Aug. 18, 2006, available at http://www.planetark.com/ dailynewsstory.cfm/newsid/37718/story.htm (last visited Feb. 8, 2007); EU Emissions Climb, POINTCARBON NEWS (June 21, 2005); Helena Spongenberg, EU Falls Behind on Green Targets, euobserver.com, June 23, 2006, http://euobserver. com/9/21944/?rk=1 (last visited Feb. 8, 2007); W. Wayt Gibbs, How Should We Set Priorities?, SCI. AM., Sept. 2005 at 112; see also Leonard Nurse & Rawleston Moore, Adaptation to Global Climate Change: An Urgent Requirement for Small Island Developing States, 14 RECIEL 100, 103 (2005).
[15] Martin Parry, et al., Buenos Aires and Kyoto Targets Do Little to Reduce Climate Change Impacts, 8 GLOBAL ENVTL. CHANGE 285, 285 (1998); see also Mustafa H. Babiker, The Evolution of a Climate Regime: Kyoto to Marrakech and Beyond, 5 ENVTL. SCI. & POL'Y 195, 202 (2002).
[16] UK Meteorological Office, The Greenhouse Effect and Climate Change, "A briefing from the Hadley Centre," Oct. 1999, at 5.
[17] Ecofys GmbH et al., WWF Climate Scorecards: Comparison of the Climate Performance of the G8 Countries, at 4, available at http://www.panda.org/ downloads/climate_change/g8scorecardsjun29light.pdf (last visited Feb. 8, 2007).
[18] Kevin Baumert & Jonathan Pershing, Climate Data: Insights and Observations, Pew Center on Global Climate Change (2004), at 16; see also Thomas C. Heller & P.R. Shukla, Development & Climate: Engaging Developing Countries, in BEYOND KYOTO: ADVANCING THE INTERNATIONAL EFFORT AGAINST CLIMATE CHANGE, Pew Center on Global Climate Change 111-112 (Joseph E. Aldy et al., eds. 2004).
[19] Press Release, UNFCCC Secretariat, ?Spirit of Nairobi' Prevails as United Nations Climate Change Conference Successfully Concludes with Decisions to Support Developing Countries (Nov. 17, 2006), available at http://unfccc.int/ files/press/news_room/press_releases_and_advisories/application/pdf/20061117 _cop_12_closing-english.pdf (last visited Feb. 8, 2006).
[20] UNFCCC, Further Commitments for Annex I Parties and Programme of Work, Ad Hoc Working Group (2006), at http://unfccc.int/files/meetings/cop_ 12/application/pdf/awg__conclusions.pdf (last visited Feb. 8, 2007); see also UNFCCC, First In-Session Workshop of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (2006), available at http://unfccc.int/files/meetings/cop_12/application/pdf/awg2_in_sess__report_ an.pdf (last visited Feb. 8, 2007).
[21] See generally JUSTIN R. PIDOT, GLOBALWARMING IN THE COURTS 1-22 (2006); see also Climate Justice, at http://www.climatelaw.org (last visited Feb. 8, 2007).
[22] Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, http://www.earthjustice.org/library/reports/ICC_Human_ Rights_Petition.pdf (last visited Feb. 8, 2007); see also EarthJustice, Summary of the Petition, available at http://www.earthjustice.org/library/reports/summary_ ICC_petition.pdf (last visited Feb. 8, 2007).
[23] Environmental Law Alliance Worldwide, Urge UNESCO to Review Climate Change Petitions, available at http://www.elaw.org/campaigns/info.asp? id=2929 (last visited Feb. 8, 2007); see alsoWorld Heritage Committee, Operational Guidelines for the Implementation of the World Heritage Convention, (2005), at sec. 186, available at http://whc.unesco.org/archive/opguide05-en.pdf (last visited Feb. 8, 2007); Belize Institute of Environmental Law & Policy, Petition to the World Heritage Committee Requesting Inclusion of Belize Barrier Reserve System in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures and Actions, Nov. 15, 2004, at 30, available at http://www.climatelaw.org/media/UNESCO.petitions.release/belize. barrier.reef.doc (last visited Feb. 8, 2007); Forum for Protection of Public Interest, Petition to the World Heritage Committee Requesting Inclusion of the Huascaran National Park in the List of World Heritage in Danger as a Result of Climate Change, Nov. 17, 2004, at 41, available at http://www.climatelaw.org/ media/UNESCO.petitions.release/peru.huascaran.national.park.doc (last visited Feb. 8, 2007).
[24] William E. Schrank, The ACIA, Climate Change and Fisheries, 31 MARINE POL'Y 5, 12 (2007); G.A. Rose, On Distributional Responses of North Atlantic Fish to Climate Change, 62 ICES J. MARINE SCI. 1360, 1360 (2005).
[25] Schrank, supra note 24, at 12; Robin A. Clark et al., North Sea Cod and Climate Change ? Modelling the Effects of Temperature on Population Dynamics, 9 GLOBAL CHANGE BIOLOGY 1669, 1677 (2003).
[26] World Bank, Cites, Seas and Storms 27 (2004) available at http://site resources.worldbank.org/INTPACIFICISLANDS/Resources/4-Chapter+5.pdf (last visited Feb. 8, 2007).
[27] Elin H. Sissener & Trond Bjrndal, Climate Change and the Migratory Pattern for Norwegian Spring-Spawning Herring ? Implications for Management, 29 MARINE POL'Y 299, 305 (2005).
[28] Sissener, id. at 304.
[29] World Bank, supra note 26, at 28.
[30] Grgory Beaugrand et al., Reorganization of North Atlantic Marine Copepod Biodiversity and Climate, 296 SCI. 1692, 1693 (2002); see also Anthony J. Richardson & David S. Schoeman, Climate Impact on Plankton Ecosystems in the Northeast Atlantic, 305 SCI. 1609-1612 (2004).
[31] Ulf Riebesell et al., Reduced Calcification of Marine Plankton in Response to Increased Atmospheric CO2, 407 NATURE 364, 364 (2000).
[32] Caspar Henderson, Paradise Lost, NEW SCI. 29-30, Aug. 5, 2006; see also Joan A. Kleypas et al., Geochemical Consequences of Increased Atmospheric Carbon Dioxide on Coral Reefs, 284 SCI. 118, 118 (1999); see also The Royal Society, Ocean Acidification Due to Increasing Atmospheric Carbon Dioxide, Policy Doc. 12/05 (June, 2005), at 6 available at http://www.royalsoc.ac.uk/ displaypagedoc.asp?id=13539 (last visited Feb. 8, 2007).
[33] Kaustuv Roy & John M. Pandolfi, Responses of Marine Species and Ecosystems to Past Climate Change, in CLIMATE CHANGE & BIODIVERSITY 164 (Thomas E. Lovejoy & Lee Hannah eds., 2005).
[34] O. Hoegh-Guldberg et al., Pacific in Peril, Greenpeace Rep., Oct. 2000, at 14.
[35] James C. Orr et al., Anthropogenic Ocean Acidification Over the Twenty-First Century and its Impact on Calcifying Organisms, 437 NATURE 681, 685 (2005).
[36] Orr et al., id.
[37] Orr et al., id.
[38] United Nations, Convention of the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, available at http://www.un.org/Depts/los/convention_ agreements/ texts/unclos/unclos_e.pdf, (last visited Dec. 26, 2006) [hereinafter UNCLOS].
[39] UN Oceans and the Law of the Sea, Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 01 February 2005, http://www.un.org/Depts/los/reference_files/chronological_ lists_of_ratifications.htm#The%20United%20Nations%20Convention%20on% 20the%20Law%20of%20the%20Sea (last visited Feb. 8, 2007).
[40] UNCLOS, supra note 38, at art. 58, 61-68.
[41] United Nations, Division for Ocean Affairs and the Law of the Sea, Tommy T.B. Koh, A Constitution for the Oceans (1982), http://www.un.org/Depts/los/ convention_agreements/texts/koh_english.pdf (last visited Feb. 8, 2007).
[42] UNCLOS, supra note 38, at art. 63.
[43] UNCLOS, supra note 38, at art. 64.
[44] D.H. Anderson, The Straddling Stocks Agreement of 1995: An Initial Assessment, 45 INT'L & COMP. L. Q. 463, 465 (1996).
[45] FAO, supra note 7, at 1; Anderson, id. at 465.
[46] Stuart Kaye, Implementing High Seas Biodiversity Conservation: Global Geopolitical Considerations, 28 MARINE POL'Y 221, 222 (2004).
[47] Giselle Vigneron, Compliance and International Environmental Agreements: A Case Study of the 1995 United Nations Straddling Fish Stocks Agreement, 10 GEO. INT'L ENVTL. L. REV. 581, 586 (1998); see also FAO, supra note 26, at iv.
[48] United Nations Conference on Environment and Development, Agenda 21, Programme of Action for Sustainable Development, ch. 17, para. 17.50 (1992).
[49] UN Oceans and Law of the Sea, Status of the Agreement, http://www.un. org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm%2 0stocks (last visited Feb. 8, 2007).
[50] Balton & Koehler, supra note 8, at 7.
[51] United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Agreement for the Implementation of the Provisions of the United Nations Convention on Law of the Sea of 10 December Relating to the Conservation and Managements of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN DOCA/Conf. 164/34, at art. 2 [hereinafter UNFSA].
[52] UNFSA, id. at arts. 7-10.
[53] UNFSA, id. at art. 14.
[54] UNFSA, id. at arts. 19-23.
[55] Richard S.J. Tol & Roda Verheyen, State Responsibility and Compensation for Climate Change Damages ? A Legal and Economic Assessment, 32 ENERGY POL'Y 1109, 1110 (2004).
[56] UNFSA, supra note 51, at art. 35.
[57] See UNFSA supra note 51, at art. 35.
[58] UNFSA, supra note 51, at art. 5(d).
[59] UNFSA, supra note 51, at art. 5(f).
[60] UNCLOS, supra note 38, at art. 1(4).
[61] RODA VERHEYEN, CLIMATE CHANGE DAMAGE & INTERNATIONAL LAW 194-5 (2005).
[62] UNFSA, supra note 51, at art. 5(g).
[63] UNFSA, supra note 51, at art. 30(1).
[64] Jonathan L. Hafetz, Fostering Protection of the Marine Environmental and Economic Development: Article 131(3) of the Third Law of the Sea Convention, 15 AM. U. INT'L L. REV. 583, 596 (2000).
[65] UNCLOS, supra note 38, at art. 296(1).
[66] UNCLOS, supra note 38, at Annex VI.
[67] UNCLOS, supra note 38, at art. 287(1).
[68] UNCLOS, supra note 38, at art. 287(3)-(5).
[69] ANDREE KIRCHNER, INTERNATIONAL MARINE ENVIRONMENTAL LAW 22 (2003); U.N. Env't Programme, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 Dec. 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, A/CONF.164/37 (Sept. 8, 1995), available at http:// www.un.org/Depts/los/convention_agreements/fish_stocks_agreement_ declarations.htm (last visited Feb. 8, 2007).
[70] Samuel F. Herrick, Jr. et al., Management Application of an Empirical Model of Sardine-Climate Regime Shifts, 31 MARINE POL'Y 71, 91 (2007); Gian-Reto Walther, et al., Ecological Responses to Recent Climate Change, 416 NATURE 389, 393 (2002).
[71] K.I. Matics, Measures for Enhancing Marine Fisheries Stock in Southeast Asia, 34(3) OCEAN & COASTAL MGMT. 233-247 (1997).
[72] Michel Potier et al., Forage Fauna in the Diet of Three Large Pelagic Fishes (Lancetfish, Swordfish and YellowfinTuna) in the Western Equatorial Indian Ocean, 83 FISHERIES RES. 60, 60-72 (2007); see also Giovanni Bearzi et al., Prey Depletion Caused by Overfishing and the Decline of Marine Megafauna in Eastern Ionian Sea Coastal Waters (Central Mediterranean), 127 BIOLOGICAL CONSERVATION 373-382 (2006).
[73] See Peter A. Stott, D.A. Stone, & M.R. Allen, Human Contribution to the European Heatwave of 2003, 432 NATURE 610 (2004); see also Eduardo M. Penalver, Acts of God or Toxic Torts? Applying Tort Principles to the Problem of Climate Change, 38 NAT. RESOURCES J. 563, 582-85 (1998).
[74] UNFSA, supra note 51, at art. 5(a).
[75] UNFSA, supra note 51, at art. 6(1).
[76] UNFSA, supra note 51, at art. 6(2).
[77] UNFSA, supra note 51, at art. 5.
[78] UNFSA, supra note 51, at art. 5(a).
[79] No. 05-1120, U.S. Supreme Court, Oral Argument, Nov. 29, 2006, available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05- 1120.pdf (last visited Feb. 8, 2007).
[80] Supreme Court, id. at 23.
[81] UNFSA, supra note 51, at art. 29.
[82] UNCLOS, supra note 38, at Annex VIII, art. 2(1).
[83] Andrew Strauss, Toward an International Law of Climate Change: Utilizing a Model of International Tribunals as Law-Makers, in ADJUDICATING CLIMATE CHANGE: SUB-NATIONAL, NATIONAL, AND SUPRA-NATIONAL APPROACHES 107 (William C.G. Burns & Hari Osofsky, eds. 2007) (in press).
[84] Richard J. Silk, Jr., Nonbinding Dispute Resolution Processes in Fisheries Conflicts: Fish Out of Water?, 16 OHIO ST. J. ON DISP. RESOL. 791, 800-01 (2001).
[85] See notes 22-23, infra and accompanying text.
