DOES THE UNFCCC IMPOSE AN OBLIGATION ON ITS PARTIES TO PREVENT OCEAN ACIDIFICATION?
It is commonly perceived that the UNFCCC provides ‘one framework within which both ocean acidification and climate change can be tackled’.33 The German Advisory Council on Global Change, for example, contended that Article 2 of the UNFCCC encompasses an obligation to take into account the impacts of increasing atmospheric CO2 levels upon the oceans.34 Article 2 obliges its parties ‘to achieve … stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’, which is in turn defined to include the oceans as an integral part. Oceans are part of the hydrosphere, and its marine organisms are part of the biosphere, as well as the interactions of the oceans with the atmosphere and the biosphere.35
However, the Kyoto Protocol, in implementing the objective set out in the UNFCCC Article 2, imposes no specific requirement to reduce CO2 emissions, but rather aggregate anthropogenic CO2 equivalent emissions of greenhouse gases.36 This means that Annex B parties to the Kyoto Protocol (i.e., developed countries) are allowed to increase their CO2 emissions as long as there is a required reduction in their emission of other greenhouse gases, such as methane and nitrous oxide, even though this will worsen ocean acidity. Therefore, the climate regime's capacity to address ocean acidification occurs only incidentally as they attend to minimizing the effects of climate change.37
For the above Kyoto Protocol provisions to be found in violation of, or incompatible with, the object and purpose of the UNFCCC, the parties to the UNFCCC and Kyoto Protocol need to recognize the legal causation that the stability of the climate system can only be maintained by preventing dangerous anthropogenic interference with ocean acidity. Such recognition would translate into regulation of human interference with all major carbon sinks and reservoirs in the global carbon cycle with a long-term view (taking into account the lifetime of CO2), beyond the current Kyoto Protocol's focus on short-term fluxes of carbon in and out of the atmosphere. However, this transformation is highly unlikely to occur spontaneously.
This is in significant part because the uptake of atmospheric CO2 by the oceans is currently presented in the climate regime as part of the solution to climate change.38 The UNFCCC and Kyoto Protocol obligate all parties to promote sustainable management, and promote and cooperate in the conservation, enhancement and protection of the oceans as sinks and reservoirs.39 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 through marine geo-engineering measures such as ocean iron fertilization.40 In other words, by design, the climate regime has been externalizing the cost of mitigating climate change, which has manifested partly as the acidifying ocean. If parties to the UNFCCC were to acknowledge ocean acidification as a problem in and of itself, they would have to account for the excess carbon that the oceans naturally absorb. This will place a huge additional burden on the parties.
At a more fundamental level, there is a jurisdictional issue of whether the UNFCCC's language suggests that its parties are required to address ocean acidification. The UNFCCC is concerned about ‘change in the Earth's climate and its adverse effects’.41 Technically, ocean acidification does not fit into the definitions of either climate change or its adverse effects. Ocean acidification is neither ‘a change of climate’ that is caused by dangerous anthropogenic interference with the climate system42 nor a change ‘in the physical environment or biota resulting from climate change’.43 Rather, ocean acidification shares the same cause as climate change, as it is a change of ocean acidity, ‘which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere’.44
It is then questionable whether the parties to the Kyoto Protocol are required to determine ‘dangerous anthropogenic interference’ by reference to a dangerous ocean pH threshold.45 The UNFCCC states that any anthropogenic interference with the climate system is deemed ‘dangerous’ if the stabilization of greenhouse gas concentrations is not achieved ‘within a time-frame sufficient to allow ecosystems to adapt naturally to climate change’.46 Although the climate system is broadly defined to include the oceans, significantly it is climate change –not oceanic (acidity) change – that conditions what is considered ‘dangerous’. Therefore, the emissions targets set by the Kyoto Protocol are calibrated by reference to their atmospheric, rather than oceanic, effects47 and parties have no obligation to do otherwise.
From a strictly legal perspective, therefore, the UNFCCC, with its narrow atmospheric focus on climate change, does not have jurisdiction over ocean acidification. In contrast to the claim of the German Advisory Council on Global Change,48 the UNFCCC does not impose an obligation on its parties to prevent ocean acidification. This has created a major gap in international environmental law as full compliance with the UNFCCC and its Kyoto Protocol will not necessarily prevent further ocean acidification.
A FLAWED APPROACH TO OCEAN ACIDICIATION AS AN ADVERSE EFFECT OF CLIMATE CHANGE
The risk that ocean acidification poses on marine ecosystems has so far received little attention from the Conference of the Parties (COP) to the UNFCCC.49 The first reference to ocean acidification in a COP decision appeared in 2010, when the COP began considering ocean acidification as a ‘slow onset event’ under the Cancun Adaptation Framework's work programme on loss and damage.50 This work programme was established in recognition of ‘the need to strengthen international cooperation and expertise in order to understand and reduce loss and damage associated with the adverse effects of climate change, including impacts related to extreme weather events and slow onset events’.51 In a footnote, the COP specified what these slow onset events are, and they included ocean acidification along with sea level rise, increasing temperatures, glacial retreat and related impacts, salinization, land and forest degradation, loss of biodiversity and desertification. Significantly, ocean acidification was listed along with other ‘adverse effects of climate change’.
As Harrould-Kolieb and Herr correctly pointed out, this ‘suggests that the COP erroneously views rising ocean acidity as a symptom of climate change rather than as a concurrent problem’.52 Although ocean acidification is closely related to climate change, sharing a common cause, ocean acidification is a threat additional to climate change. Therefore, the parties need to approach the problem of ocean acidification differently from other effects of climate change. It is not clear whether the observed misconceived view was a mistake made with intent, but it is in fact widespread within the UNFCCC.53 Given that ocean acidification sits outside the UNFCCC's jurisdiction, the COP might have no other choice but to consider ocean acidification as an adverse effect of climate change if it were to consider ocean acidification at all. This inherent structural design limitation translates to the limited applicability or potential effectiveness of the UNFCCC as an international legal instrument in mitigating ocean acidification.