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Ocean Acidification Ocean acidification: Obligations under international and regional treaty law Candidate number: 8023 Submission deadline: 1 December 2018 Number of words: 17.996 Table of contents 1 INTRODUCTION - THE PROBLEM OF OCEAN ACIDIFICATION .................. 1 1.1 Methodology, structure and legal sources used ................................................................ 2 1.2 The science behind ocean acidification and the problems repercussions ......................... 3 1.2.1 Scientific background of ocean acidification ...................................................... 3 1.2.2 Artificial contribution to ocean acidification ...................................................... 4 1.2.3 Consequences of ocean acidification for the ocean as an ecosystem .................. 4 1.2.4 Consequences of ocean acidification on particularly sensitive areas .................. 5 1.2.5 The problem of inconsistent results .................................................................... 6 1.2.6 The effects of ocean acidification on human life ................................................ 6 1.2.7 Implications ......................................................................................................... 7 2 ANALYSIS OF THE OBLIGATIONS UNDER INTERNATIONAL TREATY LAW IN REGARD TO OCEAN ACIDIFICATION .................................................. 9 2.1 Ocean acidification under the International Climate Change Regime ............................. 9 2.1.1 The United Nations Framework Convention on Climate Change (UNFCCC) ... 9 2.1.2 Kyoto Protocol .................................................................................................. 19 2.1.3 Paris Agreement ................................................................................................ 21 2.2 Ocean acidification under the United Nations Convention on the Law of the Sea (UNCLOS) ...................................................................................................................... 22 2.2.1 Evaluation of the applicability by means of the wording according to art.31(1) VCLT ................................................................................................................ 22 2.2.2 Evaluation of the applicability by means of the object and purpose and context pursuant to art.31(1) VCLT ............................................................................... 24 2.2.3 Obligations for the States under Part XII UNCLOS regarding ocean acidification ....................................................................................................... 25 2.2.4 Conclusion ......................................................................................................... 28 2.3 Ocean acidification under the Convention on Biological Diversity (CBD) ................... 29 2.3.1 Evaluation of the applicability by means of the wording according to art.31(1) VCLT ................................................................................................................ 30 2.3.2 Evaluation of the applicability by means of the object and purpose and context pursuant to art.31(1) VCLT ............................................................................... 30 2.3.3 Evaluation of the applicability by means of later concluded agreements and practice according to art.31(3)(a)(b) VCLT ...................................................... 31 2.3.4 Obligations for the States under the CBD in relation to ocean acidification .... 33 2.3.5 Conclusion ......................................................................................................... 34 i 3 ANALYSIS OF THE OBLIGATIONS UNDER REGIONAL CONVENTIONS WITH REGARD TO OCEAN ACIDIFICATION .................................................... 36 3.1 Ocean acidification under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) .............................................................................. 36 3.1.1 Evaluation of the applicability by means of the wording according to art.31(1) VCLT ................................................................................................................ 36 3.1.2 Evaluation of the applicability by means of the object and purpose and context pursuant to art.31(1) VCLT ............................................................................... 37 3.1.3 Evaluation of the applicability by means of later concluded agreements and practice according to art.31(3)(a)(b) VCLT ...................................................... 38 3.1.4 Obligations under OSPAR concerning ocean acidification .............................. 39 3.1.5 Conclusions ....................................................................................................... 41 3.2 Ocean acidification under the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR) ocean acidification ........................................................... 41 3.2.1 Evaluation of the applicability by means of the wording, object and purpose and context according to art.31(1) VCLT ......................................................... 42 3.2.2 Evaluation of the applicability by means of later concluded agreements and practice according to art.31(3)(a)(b) VCLT ...................................................... 43 3.2.3 Obligations regarding ocean acidification under CAMLR ............................... 44 3.2.4 Conclusions ....................................................................................................... 44 3.3 Sectoral Conventions and ocean acidification ................................................................ 45 4 THE CURRENT STATUS OF INTERNATIONAL AND REGIONAL TREATY LAW AND A GLANCE INTO THE FUTURE ......................................................... 46 ii Abbreviations AOSIS Association of Small Island States CAMLR Convention on the Conservation of Antarctic Marine Living Resources CBD Convention on Biological Diversity CCS Carbon capture and sequestration CMP Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol COP Conference of the Parties EIA Environmental Impact Assessment IPCC International Panel on Climate Change KP Kyoto Protocol OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic PA Paris Agreement SBTSA Subsidiary Body for Scientific and Technological Advice SED Structured Expert Dialogue SGOA Joint OSPAR/ICES Acidification Study Group VCLT Vienna Convention on the Law of Treaties UNCLOS United Nations Convention on the Law of the Sea UNFCCC United Framework Convention on Climate Change iii 1 Introduction - The Problem of ocean acidification Acidification occurs in oceans and in fresh waters such as rivers or lakes. Although the under- lying causes might be the same – burning of fossil fuels -, the direct causes for acidification are not. Acidification of fresh water arises for example due to acid rain (low in pH), ocean acidification however occurs because of CO2 emissions in the atmosphere. There might also be acidification of freshwaters due to rising CO2 in the atmosphere, though this is completely unexplored.1 Therefore, and because different legal regimes apply to seawater as opposed to freshwater this thesis will be limited to the acidification of oceans and the legal possibilities under treaty law to prevent it. The term ocean acidification describes a series of environmental reactions in the oceans which are caused by the increase of carbon dioxide. These reactions lead to a decrease in the ocean’s pH level thus it becomes more acid. The cause of the increase of carbon dioxide is 2 man-made. The ocean absorbs the anthropogenic CO2 emissions from the atmosphere and stores them. This absorption happens since the surface water tries to match its CO2 level to that of the atmosphere and thereby contain a balance.3 This series of chemical reactions can pose a danger to many marine organisms as well as biodiversity, food-webs, biogeochemical processes and ecosystems and eventually lead to problems in human society.4 Since pre- industrial time ocean acidification has increased by 26 % and in the past 200 years the ocean has absorbed more than a quarter of the anthropogenic CO2 from the atmosphere. Therefore, ocean acidification goes hand in hand with climate change and is often referred to as “the oth- 5 er climate problem”. Such as for climate change the scale of emissions of CO2 in the future 1 Antoine Leduc et al., “Effects of Acidification on Olfactory-mediated Behavior in Freshwater and Marine Ecosystems: A Synthesis” (2013) 368:20120447 Phil.Trans.R.Soc.B. 1, p.1; David Beaune et al., “Freshwater Acidification: An Example of an Endangered Crayfish Species Sensitive to pH” (2018) 813 Hydrobiologia 41, pp.41,42. 2 Dorothée Herr et al., “Ocean Acidification: International Policy and Governance Options” (2014) IUCN 1, p.11. 3 Arctic Monitoring and Assessment Programme, “AMAP Assessment 2013: Arctic Ocean Acidification” (2013) AMAP 1, p.1. 4 Herr, supra fn.2, p.14. 5 Secretariat of the CBD, “An Updated Synthesis of the Impacts of Ocean Acidification on Marine Biodiversity” (2014) CBD Technical Series No.75 1, p.7. 1 will be decisive for the development of ocean acidification.6 Since ocean acidification is a newly discovered problem that if unregulated could have serious repercussions, this thesis will analyze if the present treaty law is applicable to ocean acidification and offers any regula- tions for the State to handle the problem. 1.1 Methodology, structure and legal
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