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 (CO2) from theatmosphere, called ocean acidification, is one of several challenges inaddressing new environmental challenges effectively and expeditiously inenvironmental regime complexity. Such phenomenon is caused by the atmosphericpollutant that is also the main driver of anthropogenic climate change, havingeffects on the marine environment as serious as other climate change, havingeffects on the marine environment as serious as other pollutants entering theoceans. As the phenomenon has only recently been assessed in scientificliterature, and much further research remains to be done, there has been littleopportunity for an influential epistemic community of concerned scientist toassemble and raise global awareness of the seriousness of the problem.3 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 ocean acidification– the climate change regime established upon the United Nations FrameworkConvention on Climate Change (UNFCCC)4 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.5In 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.6 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.7a. The Causes of OceanAcidificationThe chemical process ofocean acidification is relatively straightforward, although there is substantialregional and seasonal variability in ocean pH.8 Asthe term ‘ocean acidification’ suggests, when CO2 dissolves in the oceans itreacts with H2O to form an acid, carbonic acid.
9 Theoceans are naturally alkaline and the pre-industrial pH of the oceans wasaround 8.1.10 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.11 Moreover,ocean pH may fall by up to 0.
5 units by 2100 if CO2 emissions are notsubstantially reduced.12This 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.13There has been a ten percent decline in carbonate concentrations compared topre-industrial levels, 17 and these are projected to decrease by 50 percent by2100.14b. 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.
15 Manymarine photosynthetic organisms and animals, such as molluscs, corals,echinoderms, foraminifera and calcareous algae, make shells and plates out ofcalcium carbonate.16 Itcould happened when theseawater contains a sufficient concentration of calcium carbonate. Increased concentrationsof 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.17Calcium carbonate is employed as aconstruction material for organisms in several crystalline forms, such asaragonite and calcite. All calcifying organisms are likely to be adverselyaffected by ocean acidification, but those that use aragonite will be affectedfirst as aragonite dissolves more readily due to its crystalline structure.
18 At most risk are coral organisms that require aragonite to bedeposited 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 coralreef accretion by 2050.191 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 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.
4 United Nations FrameworkConvention on Climate Change, 9 May 1992, (“UNFCCC”). 5 Rachel Baird, et al, “Ocean Acidification: A LitmusTest for International Law”, Sydney LawSchool Legal Studies Research Paper No. 10/139, 2010, 36 SCOR/IOC, “The ocean in ahigh CO2 world”, 17 Oceanography (2004), 72. 7 Rachel Baird, loc cit8 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).9 J. C. Orr et al.,”Anthropogenic ocean acidification over the twenty-first century and its impacton calcifying organisms”, 437 Nature (2005), 681. 10 O.
Hoegh-Guldberg et al.,”Coral reefs under rapid climate change and ocean acidification”, 318 Science(2007), 1737 11 ibid12 Royal Society, Oceanacidification due to increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 4.13 Ibid14 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. 15 See, G. De’ath et al.,”Declining coral calcification on the Great Barrier Reef”, 323 Science (2009),116. 16 Royal Society, Oceanacidification due to increasing atmospheric carbon dioxide (2005), in Rachel Baird, op cit, 5.
17 OSPAR Commission, Effects on the marine environment of oceanacidification resulting from elevated levels of CO2 in theatmosphere (2006). See also, M.Sakashita, “Petition to regulate carbon dioxide pollution under the FederalClean Water Act”, 2007 18 WGBU, Special Report 2006: The future oceans, warming up, risinghigh, turning sour (2006) 19 W. Burns, “Anthropogenic carbon dioxide emissions and oceanacidification”, in R.A.
Askins et al. (eds), Saving Biological Diversity (Berlin:Springer, 2008), 187. See also, Hoegh-Guldberg, loc cit.