- Law of the sea — UNCLOS (UN Convention on the Law of the Sea) — International environmental law — Biodiversity — Climate change — Marine environment, protection
Climate Change and Ocean Acidification
The 1982 United Nations Convention on the Law of the Sea (LOSC) was concluded at a time when there was little appreciation of the impacts of anthropogenic global warming on the oceans.*,1 In 1990, the Intergovernmental Panel on Climate Change (IPCC) published its First Assessment Report (AR1), which included an assessment of sea level rise.2 In the following decades, there have been major advances in the (p. 778) understanding not only of sea level rise but also the marine ecosystem impacts of climate change, and the process of ocean acidification as the oceans absorb carbon dioxide (CO2) from the atmosphere.
The current state of knowledge is summarized in the IPCC’s Fifth Assessment Report (AR5), released in 2013–2014. The AR5 reports that the oceans are undergoing a biophysical transformation that is unprecedented in human history. This process challenges two of the central assumptions upon which the law of the sea is based: that the oceans will continue to provide a predictable and benign environment which allows clear jurisdictional boundaries to be drawn (from stable baselines along the coast), and that the oceans will carry on supporting a range of vital human uses (such as fishing).
This chapter assesses the impacts that the related phenomena of climate change and ocean acidification are having on the oceans, and assesses the implications of these for the international law of the sea. In particular, the chapter evaluates the implications of rising sea levels for territorial sea baselines, the seawards extent of maritime zones, and maritime boundaries. It also considers the restrictions that the LOSC places upon States in pursuing climate mitigation and adaptation policies, such as attempts to ‘engineer’ the global climate by artificially enhancing the capacity of the oceans to draw CO2 from the atmosphere. The chapter also provides an analysis of the role that the LOSC may be able to play, alongside other treaty regimes, in addressing the serious threat of ocean acidification.
2 Climate Change and Ocean Acidification: Processes and Impacts
The oceans have a critical role in regulating the Earth’s climate. They have significantly slowed global warming, absorbing much of the extra energy that has been trapped in the atmosphere by increasing concentrations of greenhouse gasses (GHGs).3 As the oceans have absorbed heat, and glaciers and ice sheets have melted, sea levels have risen. Changes in the heat content of the oceans have changed circulation patterns, and impacted upon many marine organisms, and affected the productivity and range of fish species. The oceans have also slowed climate change by acting as a reservoir for GHGs, taking up around a third of all carbon released by humanity into the atmosphere.4 Ocean acidification, the changing chemistry of (p. 779) the oceans as they draw down CO2 from the atmosphere, is one consequence of this process.
From a marine environmental perspective, climate change and ocean acidification are but two of a suite of anthropogenic stressors. A comprehensive review by the International Programme on the State of the Ocean in 2013, in partnership with the International Union for the Conservation of Nature, concluded that ‘human activities have led to intense multiple stressors acting together in many marine ecosystems’, with the major threats ‘arising from overexploitation of biotic resources, climate change effects forming the so-called “deadly trio” (ocean warming, acidification and hypoxia/anoxia5) and pollution’.6 These stressors are producing localized ecosystem decline, and threaten to cause global oceanic ecosystem collapse.7
In AR5, the IPCC reported that the rate of sea level rise since the 1950s is greater than any rise over the previous 2,000 years.8 From 1901 until 2010, average sea levels rose by 0.19 m, and the rate of sea level rise increased during this period.9 Around 75 per cent of the global mean sea level rise is due to the combination of glacier mass loss and thermal expansion of the oceans.10 There is increased confidence in projections of future sea level rise since the Fourth Assessment Report (AR4) due to better understanding of ice-sheet dynamics.11 The AR5 projects that sea levels could rise by between 0.26 and 0.55 m by 2100 if GHGs are aggressively mitigated, but by between 0.52 and 0.98 m if there is a continuation of business as usual.12 These represent mean values, and sea level rise will not be uniform in all places. However, the AR5 concludes that it is very likely that sea levels will rise in more than 95 per cent of the oceans, and around 70 per cent of coastlines globally will experience sea level rises within 20 per cent of the global mean sea level rise projections.13 Sea level rise will of course not cease in 2100, and it is virtually certain that sea levels will continue to rise due to thermal expansion for many centuries. For very high concentrations of CO2, sea level rises of almost 4 m by 2300 are possible.14 The IPCC projections of sea-level rise tend to be conservative, and a recent survey of experts concluded that (p. 780) higher sea-level rises than the AR5 projects are likely (including a real possibility of 2.0 m of sea level rise by AD 2100 under an upper temperature scenario).15
The AR5 explains the vital importance of the oceans in maintaining the Earth’s stable climate, with the oceans absorbing more than 90 per cent of the extra energy accumulated between 1971 and 2010 as a result of heat trapping GHGs.16 The top 75 m of the oceans warmed by 0.11°C per decade in this period.17 The deeper oceans have also warmed, but much more slowly.18 At the ocean surface, increased rates of evaporation and volume of precipitation have both been observed, and this is having flow on impacts on the salinity of the oceans. Regions that are highly saline have become even more so, whereas regions of low salinity have become less so since the 1950s.19
The continued warming of the oceans will have a range of impacts, including accelerated warming of high latitude oceans and reductions in the extent of seasonal ice (with the Arctic likely to be ice free in summer within decades), increased stratification of ocean layers which reduces important mixing zones, shifting winds and currents (including changes to the thermohaline circulation), and falling surface water oxygen concentrations.20 These physical changes will have ecosystem implications, including changes in productivity (decreasing in most places, increasing in some), range shifts and species invasions, changes in abundance of fisheries, increase in diseases among marine organisms, increased extinctions, and increased coral reef mortality.21
Ocean acidification and climate change are closely linked. Carbon dioxide is the main GHG by volume, and is also the primary driver of ocean acidification. This means that mitigating global warming by reducing atmospheric concentrations of CO2 will also address ocean acidification. In the 2009 Copenhagen Accord22 it was (p. 781) agreed that ‘the increase in global temperature should be below 2°C’ in order to meet the objective of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) to avoid ‘dangerous anthropogenic interference with the climate’. However, there is uncertainty whether the atmospheric CO2 concentration that this temperature target implies (around 450 parts per million (ppm) CO2 equivalent) would avoid dangerous ocean acidification. Recognising the potential for ocean acidification to transform the oceans this century, the UN Secretary General devoted the first part of the 2013 Report to the General Assembly on Oceans and the Law of the Sea to the phenomenon.23
The ‘carbonation’ of the world’s oceans is leading to unprecedented alterations to their chemistry.24 While the oceans are slightly alkaline (with a pre-Industrial Revolution pH of around 8.1), oceanic pH is declining rapidly. There has been a 0.1 unit decline in pH over the last century,25 and the oceans now have a lower pH today than in the previous 20 million years.26 The pH is projected to decline by 0.2–0.3 units below the pre-industrial level by 2100.27 If CO2 emissions are not reduced, then the magnitude of the change to the geochemistry of the world’s oceans will be unprecedented in at least the last 300 million years of Earth’s history.28 There is also feedback between ocean acidification and climate change; ocean acidification amplifies climate change by reducing the fluxes of sulphur from the oceans into the atmosphere that help reduce radiative forcing.29
Ocean acidification is a more recently identified environmental impact from CO2 emissions than global warming, and less is known about its effects. Nonetheless, most available evidence indicates that it will have serious and lasting impacts on many marine organisms, and will radically alter biophysical processes in the oceanic environment.30 It is driving major changes in seawater chemistry (not only pH, but also on nitrogen fixation and other chemical processes), and reducing aragonite and calcite saturation.31 These changes are reducing the calcification rates of calcifying organisms such as corals (and will eventually erode existing coral structures), placing stress on phytoplankton populations, and are having many other biotic References(p. 782) impacts (including affecting photosynthesis and oxygen exchange).32 When combined with the effects of increased temperature, tropical coral reefs are expected to enter a ‘rapid and terminal decline’ by 2050.33 Another recent assessment of corals concluded that if GHG emissions continue unchecked, then no oceans will support coral reef growth by 2100.34 A disruption of the oceanic food chain as a result of these and other changes would have catastrophic social and economic impacts.35
3 The Law of the Sea and Climate Change Mitigation
The impacts of climate change and ocean acidification upon the oceans described in the previous section carry a range of significant implications for the law of the sea. These can be divided into two main categories. First, the extent to which the law of the sea can play a role in mitigating climate change and ocean acidification and, second, how the law of the sea provides a framework for adaptive responses by coastal and other States to the effects of climate change and ocean acidification. This section considers mitigation options, while the subsequent section assesses how the law of the sea facilitates adaptation.
Although the LOSC makes no mention of climate change and its impacts upon the marine environment, it does impose wide-ranging obligations to protect and preserve the marine environment and to prevent pollution. The initial question arises as to whether the LOSC requires States to reduce GHGs, or whether this issue is exclusively the province of UNFCCC as the lex specialis for controlling climate change.
Under Article 192 of the LOSC, States are under an obligation ‘to protect and preserve the marine environment’, and Article 194(1) requires States to take ‘all measures…necessary to prevent, reduce and control pollution of the marine environment from any source’. Article 212(1) makes clear that States must ‘prevent, reduce and control pollution of the marine environment from or through the atmosphere’. Moreover, Article 212(3) stipulates that States, acting especially through international organizations or diplomatic conferences, must endeavour to establish rules, standards, and recommended practices to prevent, reduce, and control atmospheric pollution. These provisions, together with the broad definition of ‘pollution’ in Article 1(1)(4) to include ‘substances or energy’, impose a due diligence obligation upon States to control and reduce emissions of GHGs that will damage the marine environment causing harm to other States.36
However, the provisions of the LOSC are general in character, and obviously do not specify GHG emissions reduction targets or timetables. It is therefore difficult to determine whether a State has or has not met its obligations under the LOSC in taking or failing to take measures to reduce CO2 emissions. One response to this problem is to rely upon the UNFCCC and instruments adopted under it, most notably the 1997 Kyoto Protocol, which does set prescribed emission reduction or limitation targets for industrialized States, to supply the relevant standard of conduct for the LOSC. However, the Kyoto Protocol in its current form will not deliver the emissions reductions necessary to stabilize atmospheric concentrations of CO2 at a level that would avoid serious and irreversible damage to the marine environment.37
It is therefore difficult to see how States can meet their overriding obligation under Article 192 of the LOSC to ‘protect and preserve the marine environment’ by satisfying the modest requirements of the Kyoto Protocol. However, it is equally difficult to identify emissions reductions required of individual States in the absence of a global agreement, as action by one or several States will not be effective in isolation to prevent substantial marine environmental damage. Ultimately, therefore, the UNFCCC and implementing agreements under its umbrella remain the primary means to drive mitigation policy that will protect the oceans.38 If this regime is to be successful in safeguarding the marine environment, it is vital that oceans impacts are more fully considered in the UNFCCC process, including by expressly addressing ocean acidification (which has to date been largely ignored by the UNFCCC).
References(p. 784) 3.1.2 Complementary marine environmental regimes
Although the LOSC does not mandate any specific GHG emission reductions, there are treaties adopted to implement aspects of the LOSC that do seek to place limits on GHG emissions and the storage of GHGs in the marine environment.
The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) and the 1996 London Protocol aim to prevent pollution of the oceans by the dumping of materials that could endanger human health or harm the marine environment. Under the regime, dumping at sea of any substance is generally prohibited, unless it can be shown not to damage the marine environment. Any measures to store CO2 in geological formations under the seabed, on the seabed (at depths at which high pressures will act to condense CO2), or in the water column, will need to comply with the terms of the dumping regime. Consistent with the 1996 London Protocol’s precautionary approach, several measures have been adopted to regulate the active use of the water column as a carbon sink. At the first meeting of the parties in 2006, amendments to the 1996 London Protocol were agreed which permitted the storage of CO2 under, but not on or above, the seabed.39 The intent of sub-seabed carbon sequestration is that CO2 streams are retained permanently in undersea geological formations, a technology that the parties to the Protocol endorsed as a strategy both for mitigating climate change and ocean acidification. However, the parties also acknowledged the risks associated with CO2 sequestration (including the possibility that CO2 will leak into the water column and exacerbate ocean acidification). To minimize these risks, in 2012, the parties to the London Convention and Protocol adopted detailed ‘Specific Guidelines for the Assessment of Carbon Dioxide Streams for Disposal into Sub-Seabed Geological Formations’.40 Whether or not these will be sufficient to protect the seabed and marine environment is open to question.41
The other related development under the London dumping regime is in relation to marine geo-engineering. In 2008, a Resolution of the parties imposed a moratorium on ocean fertilization, except for legitimate scientific research.42 Ocean fertilization describes processes by which GHG sequestration by the oceans can be enhanced, such as through the introduction of iron, phosphorous or nitrogen compounds to promote the growth of phytoplankton which absorb CO2. In 2010, the parties adopted Resolution LC-LP.2 (2010) on the ‘Assessment Framework for Scientific Research Involving Ocean Fertilization’ which guides parties in assessing proposals for ocean fertilization research, and References(p. 785) includes detailed environmental assessment rules. Subsequently, in Resolution LP.4(8) in 2013, the parties to the London Protocol agreed on a new Article 6bis, which provides that parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geo-engineering purposes unless the activity is authorized under a permit. Marine geo-engineering is defined as ‘a deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change’ and a new Annex 4 to the London Protocol on marine geo-engineering lists and defines ocean fertilization as ‘any activity undertaken by humans with the principal intention of stimulating primary productivity in the oceans’. Ocean fertilization activities can only be permitted if assessed to be legitimate scientific research. These changes are highly significant in acknowledging the potential of the oceans to contribute further to mitigating climate change. However, they also seek to control the negative side effects of marine geo-engineering, including ocean acidification, by limiting the use of some technologies (such as those seeking to enhance upwelling of cold seawater from the depths) that would exacerbate acidification. It must be recognized that these will have limited overall impact in controlling acidification given that its primary driver is the absorption of CO2 from the atmosphere.43
Also of relevance to climate change and ocean acidification mitigation is the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 (MARPOL). MARPOL seeks ‘to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances’.44 Annex VI of MARPOL addresses the prevention of air pollution from ships, and entered into force in May 2005. In 2011, the International Maritime Organization (IMO) adopted new mandatory technical and operational energy efficiency measures to reduce CO2 and other GHG emissions from ships, with these entering into force on 1 January 2013. Shipping emissions account for around 2.7 per cent of global CO2 emissions, and prior to the 2011 amendments being adopted, it was estimated that CO2 emissions from shipping would increase by up to 300 per cent by 2050.45 Although the new controls on GHG emissions from ships will have a relatively small effect in mitigating climate change and ocean acidification, they represent a significant development in being the first global GHG controls in any economic sector (by comparison, there are no global limits on GHG emissions from aircraft).
References(p. 786) 3.1.3 The climate change regime
The climate change regime is the primary means through which the international community is seeking to control GHG emissions. However, as currently structured, it has a very limited oceans emphasis, and ignores ocean acidification (indeed the phenomenon is not mentioned in any binding international legal instrument46).
Article 2 of the UNFCCC sets out the overall objective of the climate change regime, which is to achieve the stabilization of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The UNFCCC has an obvious and understandable atmospheric rather than oceanic focus. This is emphasized further in the 1997 Kyoto Protocol that sets targets for reducing or limiting emissions on the basis of their impacts upon the atmosphere, rather than the oceans. The Kyoto Protocol bundles together the half-dozen major GHGs (including CO2) when determining global and national emissions budgets, and establishes no specific obligation to reduce emissions of CO2, the primary gas causing ocean acidification. Instead States can meet their commitments by limiting their CO2equivalent emissions of GHGs,47 and therefore may even increase CO2 emissions, so long as there is a corresponding reduction in other GHGs. Other aspects of the climate regime are in tension with efforts to control ocean acidification, with uptake of atmospheric CO2 by the oceans presented as a legitimate climate mitigation policy.48
Within the climate regime’s conferences and meetings of the parties and subsidiary bodies little attention if any has been devoted to ocean acidification, or to climate and oceans issues generally. Galland et al note that this record shows that ‘[d]espite its significant role in climate regulation and vulnerability to climate change, the ocean is often relegated to footnotes and afterthoughts in the development of climate policy.’49 They recommend that oceanic threshold data be used (in a manner akin to thresholds of climate sensitivity to GHGs) to design and support emission reduction targets for CO2 that consider the totality of oceanic impacts from global warming, including sea level rise and ocean acidification, which are having a combined impact upon many marine organisms and ecosystems.50
References(p. 787) 4 The Law of the Sea and Climate Change Adaptation
It has been seen that law of the sea provides only very general obligations in relation to the prevention of climate change and ocean acidification. In relation to climate change adaptation, defined by the IPCC as ‘the adjustment of natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’,51 there are more significant linkages with the law of the sea. This is true both in respect of physical adaptation (eg the construction of seawalls) and legal adaptation (eg attempts to ‘fix’ territorial sea baselines despite sea level rise, or to alter rules for fisheries management).
Sea levels are rising, and because of momentum in the climate system they will continue to do so for centuries regardless of action taken to reduce GHG emissions. This will result in inevitable changes to coastline geography, particularly in low-lying areas. The landwards shift in the low-water line, and the partial or complete inundation of low-lying territory, including coastal and mid-ocean islands, calls into question the legitimacy of the baselines and basepoints currently adopted by States to set the boundary between internal waters and the territorial sea, and from which coastal States project their maritime zones.
The impact of sea level rise upon baselines has been the subject of significant discussion since the 1990s,52 when the issue first rose to international prominence with the publication of the IPCC’s AR1. However, when the LOSC was negotiated in the 1970s and early 1980s, 1980there was limited awareness of global warming and the associated impacts upon sea levels. After a brief review of the LOSC’s baseline provisions, the following discussion assesses the legal implications of sea level rise for the baseline regime.53
Bringing to a resolution many decades of controversy, the LOSC sets out a system for delineating baselines to address the wide variety in coastline configuration worldwide. Under the LOSC, a coastal State may determine baselines to suit particular coastline conditions according to the various methods provided.54
The LOSC provides that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State.55 There is no definition in the LOSC of the ‘low-water line’, and States are free to adopt their own approach.56 In addition, normal baselines may be drawn along the low-water line around low-tide elevations (naturally formed areas of land that are above water at low tide, but submerged at low tide) if these are within the 12 nautical mile (nm) territorial sea.57 For islands situated on atolls, or islands with fringing reefs, the baseline is the seaward low-water line of the reef, as shown by an appropriate symbol on charts officially recognized by the coastal State.58
In several circumstances, it is possible for States to draw straight baselines rather than normal baselines. Where because of a delta or other natural conditions rendering a coastline unstable, the appropriate basepoints may be selected along the furthest seaward extent of the low-water line and remain effective, notwithstanding subsequent regression of the line.59 Straight lines may be drawn across the mouth of rivers discharging into the sea,60 and across the mouths of bays that are more than mere curvatures of the coast.61 Where a coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, then straight baselines may be drawn using appropriate points.62 These points could include not only positions on the coast, but also low-lying islands, islets, and rocks. However, straight baselines must not be drawn to and from low-tide elevations unless lighthouses or similar installations that are permanently above sea level have been built on them, or such elevations have received general international recognition.63
Under the LOSC, archipelagic States may also draw straight archipelagic baselines that are similar to straight baselines along the coastlines of metropolitan States (although the conditions that need to be met are quite distinct). Archipelagic States may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago, so long as certain requirements are satisfied.64
References(p. 789) 4.1.2 Baselines and maritime zones: fixed or floating?
The widely accepted view is that under the LOSC baselines are ambulatory, and move if the land recedes.65 The corollary to this is that the outer edge of coastal State maritime zones also moves landwards to the same extent (with the exception of the limits of the continental shelf beyond 200 nm, which are set by reference to the physical characteristics of the seafloor). The ambulatory thesis has two variants. The first is that baselines shift with automatic effect as the seas rise. The second is that sea level rise entails an obligation by States to adjust normal and straight baselines in response to changing coastal conditions. However, neither ambulatory theory can draw express support from the text of the LOSC, or any other instrument. And so the argument for the ambulatory approach proceeds from ‘negative implication’; that as the LOSC refers to only two situations where baselines or maritime zone limits are fixed, then in all other situations, they must move as the sea engulfs the land.66 The first reference, in Article 7(2), is to river deltas and other highly unstable coastlines where the coastal State may adopt fixed straight baselines. The second reference, in Article 76(9), is not to a baseline provision, but rather to the outer limits of the physical continental shelf beyond 200 nm which, when set according to the process laid out in Article 76, are ‘permanently described’.
An alternative argument to the ambulatory baseline thesis has been advanced by Purcell.67 She contends that baselines and zonal limits measured from them are not floating, and do not move automatically, in light of ‘the clear priority given to coastal State control over national maritime space under the law of the sea’.68 She is unconvinced by the argument for ambulatory baselines drawn by negative implication. As regards Article 7(2), Purcell argues it could just as well be read as ‘an express assurance that the general rule regarding [the] effectiveness [of baselines] will apply even in circumstances of significant coastal change’.69 Pointing to the emphasis that the LOSC places on stability in ocean affairs, Purcell concludes that it is a matter for individual coastal States, in their discretion, to retain or revise baselines and zonal References(p. 790) limits in response to sea level rise. If they are not revised, then they do not shift automatically, and the failure to adjust them can attract no valid protest from other States because there is no legal obligation to move them.70
There is significant State practice to support the ambulatory approach, although it is admittedly difficult to draw firm conclusions from the existing practice as States have not needed to respond to significant sea level rise to date, and relatively modest rises are expected during this century. Nonetheless, some States do adopt the position in national legislation that the normal baseline is the physical low-water line along the coast, with no reference to a charted line, with the logical consequence that the baseline will move with the low-water line.71
As baselines are ambulatory sea level rise will carry implications for many coastal States, particularly those that are low-lying, and most dramatically for some archipelagic and small island States.
The movement of baselines alters the boundary between internal waters and the territorial sea. It also has the effect of moving landwards the limits of the territorial sea, contiguous zone, exclusive economic zone (EEZ), and the 200 nm continental shelf. Adjustments would therefore need to be made to the normal baseline following the coast to bring it landwards. Additionally, low-tide elevations within 12 nm of the coastline that become submerged would no longer generate a territorial sea, or contribute to the outer limits of other maritime zones where relevant.72 The melting of ice covered areas along coastlines in the Antarctic and Arctic may require special attention, to the extent that States seek to rely upon ice shelf baselines or basepoints that move as the ice contracts.73 Adjustments would also need to be made to baselines across the mouths of rivers, bays, and along indented coastlines, where the base point becomes submerged at high tide because of sea level rise. In the case of straight baselines along deeply indented coasts or those with fringing islands, these may prove relatively robust in the face of sea level rise as they tend to be drawn to basepoints that are fairly stable.
Insular and archipelagic States may be particularly vulnerable to rising sea levels and ambulatory shifts in baselines and maritime zones. Archipelagic baselines may no longer be able to be drawn if they connect to islands and drying References(p. 791) reefs that are permanently submerged.74 If sufficient territory of an archipelagic State is inundated then it could mean that the State fails to satisfy the minimum land to water ratio requirement (1:9) or the maximum baseline length rules (normally 100 nm).75 However, archipelagic States comprising many islands and drying reefs may fare better than non-archipelagic island States which become submerged or uninhabitable because of effects associated with sea level rise and climate change (such as salt water intrusion, and periodic inundation from storm surges). Article 121(1) LOSC defines an island as a naturally formed area of land surrounded by water, which is above water at high tide. The full suite of maritime zones may be extended from islands, except in the case of ‘rocks which cannot sustain human habitation or economic life of their own’, which do not have an EEZ or continental shelf.76 Although Article 121 is ambiguous, it does suggest that States with islands, or island States, may lose an entitlement to EEZ or continental shelf areas following significant sea level rise. In the case of some States, this will be very significant; a small island may generate an area within the 200 nm zone of 431,014 km2, while a rock would generate only a 1,550 km2 area of territorial sea.77 This means that becoming uninhabitable will be the more serious threat than inundation for some States, as a sea level rise of up to one metre is unlikely to submerge any State completely.78
The situation for small island States rendered uninhabitable or completely submerged raises not only law of the sea issues but more fundamental questions concerning the indicia of statehood upon which any assertions of maritime sovereignty and jurisdiction are premised.79 The existence of territory and a permanent population are vital requirements for the acquisition of statehood, and the loss of these attributes, certainly if permanent, would appear to deprive an existing State of its status as such.80
If baselines are ambulatory, then this also raises the question whether maritime boundaries should be adjusted to deal with changing coastal conditions. Legally, this is a more straightforward issue than in respect of baselines, as boundaries (both terrestrial and maritime) are permanent and dispositive, and not susceptible to termination or withdrawal (except on mutually agreed terms), even if there is a fundamental change of circumstances.81 Moreover, most boundaries are set References(p. 792) by reference to specific coordinates rather than a method of delimitation that could produce a different boundary if opposite or adjacent coasts are affected differently by sea level rise.82 Nonetheless, where changing coastal geography has the effect of significantly altering the location of points used as the basis for drawing equidistant or other maritime boundaries, it is conceivable that pressure will be brought to bear by some States to revisit boundary arrangements.83 This is especially the case if any adjustment would change ownership over natural resources.
The initial response by States to sea level rise will be to utilize existing provisions of the LOSC to safeguard baselines and maritime entitlements to the fullest extent possible.84 Greater use could be made by some States of the straight baseline rules in Article 7 to draw baselines that connect stable features such as rocky points. Indeed, the LOSC itself seeks to promote stability in straight baselines by imposing the requirement that they be drawn to and from low-tide elevations only where there are lighthouses or other similar installations permanently above sea level built upon them.85
There are additional opportunities for fixing lines in the sea, entirely consistently with the LOSC as it currently stands. The outer limits of the continental shelf, beyond 200 nm, are established by reference to the actual physical extent of the continental margin, and this is clearly not susceptible to change with sea level rise.86 While territorial baselines might recede, and with it the various maritime zones, the outer limits of the continental shelf beyond 200 nm would remain, and its breadth would expand.87 Soons has argued that the same conclusion applies to the 200 nm continental shelf limit, as the provision was designed to fix permanently the boundary between the continental shelf and the Area.
Neither straight baselines, nor permanently described continental shelf limits, will address in a satisfactory or comprehensive way the challenge of sea level rise. It is highly unlikely that States will simply allow maritime space to be lost without a response. Coastal States may decide to declare unilaterally the continued applicability of their baselines to preserve the extent of the maritime estate under coastal State sovereignty and jurisdiction.88 In the absence of protest by other States this may be effective to maintain the status quo. However, the difficulty remains that there is no clear support in the LOSC for this approach, and the baseline rules as they stand provide an uncertain bulwark against the reality of coastline change. References(p. 793) Uncertainty in the placement of maritime boundaries and breadth of zones is anathema to the modern law of the sea, and for this reason it has been argued by Caron and others that the LOSC should be adjusted to fix baselines at their pre-sea level rise position.
There are sound policy reasons for doing this, and no obvious practical impediments to doing so.89 Caron has explained that maintaining baselines, maritime zone limits, and agreed maritime boundaries is more equitable than the ambulatory alternative, as it avoids the unfairness inherent in low-lying States losing sovereignty and jurisdiction while giving other States and the international community (as the high seas grow in area) a ‘windfall’.90 Hayashi argues further that allowing a coastal State to retain submerged land as internal waters over which the coastal State has complete sovereignty can be seen as fair compensation for the loss of sovereignty over land territory.91 Fixing baselines also appears preferable to the rule change suggested by Soons, which is that baselines could be allowed to shift but outer limits of maritime zones could be retained.92 That would require modification of the rules relating to the breadth of the territorial sea and the EEZ.93 Fixing baselines is technically feasible (particularly so in the era of sophisticated Geographic Information Systems (GIS)), it would preserve stability and certainty in the law of the sea94 and it would free States from the wasteful and potentially crippling expenses associated with shoreline reinforcement pursued only to maintain maritime entitlements.95
One issue that would need attention in any change to baseline rules would be to select a ‘critical date’ at which they are fixed. Several possibilities suggest themselves, including the date of conclusion or entry into force of the LOSC, or the date on which a coastal State satisfies the requirements of Article 16(2) by giving ‘due publicity’ to baseline and base point charts and by depositing a copy of them with the Secretary-General of the UN.96 It may be prudent to build in the capacity for review of a rule fixing baselines after a specified period, in the event that sea levels rise faster and further than anticipated, radically altering coastal geographies. Another broader practical issue is how any rule change would actually be effected. While consistent and widespread State practice by coastal States over a lengthy period could give rise to a new customary rule recognizing fixed baselines, to avoid uncertainty an amendment of the LOSC, or a new implementing agreement following the model of the 1994 Agreement, would be preferable. An intermediate, and interim, response short of textual amendment may be for the Meeting of States Parties to the LOSC (SPLOS) to adopt a decision on the interpretation and application of the baseline provisions that recognizes the capacity of coastal States to fix their baselines.
References(p. 794) 4.1.6 Physical responses: holding back the tide?
States enjoy considerable discretion in determining whether and what measures they will implement in response to coastal threats from rising seas and associated risks. However, the LOSC does set some limits on the extent to which coastal States may take physical adaptive steps in responding to climate change in the coastal zone. Article 121(1) of the LOSC provides that ‘[a]n island is a naturally formed area of land, surrounded by water, which is above water at high tide.’ Therefore, while an Article 121 island, such as a mainland coast, may be artificially protected, entirely artificial islands, such as Hulhumalé, currently being constructed in the Maldives, are not capable of supporting a territorial sea, contiguous zone, EEZ, or continental shelf.97 Furthermore, coastal States may not implement coastal engineering works unless there is an assessment of their potential marine environmental effects,98 and they must adopt laws and regulations to ‘prevent, reduce and control pollution of the marine environment from land-based sources’.99 The Land Reclamation by Singapore in and Around the Straits of Johor100 case has some relevance to coastal works to deal with sea level rise. Implicitly referencing the precautionary principle, ITLOS held that ‘prudence and caution’ required that Malaysia and Singapore cooperate in assessing and limiting the impact of the land reclamation activities in the strait in order to protect the marine environment. This indicates that the law of the sea requires coastal States to exercise caution when planning coastal adaptation works, and suggests that in the first instance States should investigate adaption options that do not involve substantial physical alteration of the coastal environment.
Another major arena within the law of sea relevant to climate change adaptation is the body of rules relating to the management and conservation of marine resources and ecosystems. Coastal and fishing States are presented with a number of options to enhance the resilience of marine ecosystems so that they are able to cope, at least for a time, with the stresses associated with climate change and ocean acidification.
Within the territorial sea, a coastal State has broad-ranging capacity to implement rigorous marine environmental protection provisions consistent with its sovereignty over the zone. Hence coastal States may limit fishing or close fisheries, References(p. 795) establish marine protected areas (MPAs) and parks, and impose special protective measures for areas such as reefs. Similarly, within the EEZ, coastal States may implement adaptive measures in relation to resources with little, if any, consideration of the interests of other States. The coastal State is given sole discretion in setting allowable catches for fisheries, taking into account the best scientific evidence, and the responsibility to conserve and manage fisheries so that they are not endangered by overexploitation.101 Coastal States can therefore take those adaptive measures considered appropriate for fisheries located within the EEZ to respond to climate change and ocean acidification.
In relation to non-living resources, coastal States have a clearly unencumbered right to decide whether and under what circumstances mineral resources are exploited within their continental shelf and EEZ. Article 56(3) of the LOSC provides the rights of coastal States with respect to the seabed and subsoil in the EEZ are made coterminous with those under the provisions of the convention addressing the continental shelf, in Part VI. In essence it is for the coastal State alone to determine whether to explore or exploit the natural resources of the continental shelf, and no other State may undertake such activities without the express consent of the coastal State.102 As a consequence, coastal States are fully within their rights to include climate change mitigation and adaptation considerations in the planning, assessment, and approvals processes for proposed oil and gas development of the EEZ.
Whereas, in relation to the fisheries and mineral resources of the EEZ and continental shelf, coastal States have wide if not completely unconstrained discretion in taking adaptive measures, the same cannot be said for measures targeting other elements of the marine environment. In relation to marine pollution from vessels, and the risks posed by vessel movements through sensitive marine environments, which remain key concerns for marine environmental protection, coastal States must normally adhere to those international standards adopted under the auspices of the IMO, which are incorporated by reference in the LOSC.103 However, the IMO regime does allow the designation of certain ecologically vulnerable marine areas as Particularly Sensitive Sea Areas (PSSAs), which in turn allows for the adoption of ‘associated protective measures’ to prevent, reduce or eliminate the threat posed by international shipping. PSSAs are normally, but need not always be, included within MPAs. MPAs are emerging as a critically important area-based tool for marine conservation in the era of climate change.104
References(p. 796) In relating to fisheries and ecosystems that occur across maritime zones of multiple States, or on the high seas, the framework for adapting to climate change and ocean acidification is less robust. Many such fisheries are subject to management by Regional Fisheries Management Organizations (RFMOs), some of which are beginning to consider adaptive responses.105 Most wild capture fisheries are already under significant pressure, with the Food and Agriculture Organization estimating that 90 per cent of fisheries are being harvested at or beyond their sustainable limits.106 The performance of RFMOs varies significantly depending upon their membership and institutional dynamics,107 and given the failure of many RFMOs to manage the stocks under their jurisdiction in a sustainable manner there are reasons to doubt they will respond effectively to climate change. Climate change is affecting not only the productivity of fisheries but also their distribution, which calls for a reconsideration of management approaches and in some RFMOs for a reassessment of an even more fundamental question, namely the legal boundaries of fisheries management set by RFMOs constituent instruments. An example is the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention). The CAMLR Convention operates south of a saw-toothed circumpolar line that roughly approximates the Antarctic convergence, the oceanic boundary where colder Antarctic waters meet warmer northern waters.108 All marine ecosystems in the Antarctic are vulnerable to climate change, and key food chain species such as krill are declining as a result of warming waters.109 Moreover, there is evidence of a southwards shift in the polar ocean front, and Haward and Jabour have noted that if this continues or accelerates then from a management perspective the 30-year-old CAMLR Convention boundary will no longer embrace all relevant Southern Ocean conservation and fisheries interests.110 Significant change in the productivity and distribution of fisheries poses the risk of radically disrupting cooperative management arrangements that are currently in place. This is likely only to be avoided through better integration of scientific research and ecosystem monitoring in international fisheries management.111
References(p. 797) 5 Conclusion
Until recently, climate change was seen as an ‘over the horizon’ challenge for the law of the sea. This wait and see approach is no longer appropriate, given the effects that human interference with the carbon cycle is already having on the oceans, and the major impacts that are projected to occur in coming decades and centuries. Many, if not all, areas of the law of the sea are being, or will be, affected by climate change and ocean acidification. As suggested at the outset of this chapter these changes are potentially transformational and require rethinking of the foundations upon which the modern law of the sea has been built.
Rising sea levels carry implications for territorial sea baselines, for maritime zone limits, and for some maritime boundaries. In the case of some small island States, there may be an intersection of both traditional international law questions of territorial sovereignty and statehood and also law of the sea issues relating to the projection of maritime zones. Changing sea conditions, particularly the melting of sea ice, will affect the navigability of certain areas, and may prompt a reconsideration of the status of some waters (the Northwest Passage and the Northeast Passage being obvious examples). Warming waters and souring seas will also have very substantial impacts upon marine biodiversity, including subsistence and commercial fisheries.
In anticipating and responding to these changes, there is a significant role for the LOSC and the constellation of regimes under its aegis. It has been seen in this chapter that the law of the sea has a fairly limited role in mitigating climate change and ocean acidification. As these processes are being driven by GHG emissions, the UNFCCC remains the regime in which an appropriate response will need to be fashioned. But while the LOSC itself is not a strong climate change mitigation regime, it can be used to avoid or ameliorate adverse marine environmental effects from mitigation policies pursued in other fora. This is the case with respect to preventing or moderating geo-engineering schemes that propose radical alteration of marine environmental systems (such as though the deposit of mass quantities of nutrients to promote GHG sequestration through biophysical processes).112
There is an urgent need to provide a legal framework for reducing CO2 emissions that takes into account their acidifying effects on the oceans. While the LOSC has a role to play in setting out general obligations, and some have suggested the desirability of a new LOSC implementing agreement on ocean acidification,113 the climate change regime remains the most relevant legal mechanism given the linkages between ocean acidification and climate change policy. To this end, it would (p. 798) be desirable to take three main steps within the UNFCCC process to ensure that ocean acidification is appropriately addressed:
• Enhanced scientific assessment. The level of scientific knowledge of the rate and effects of ocean acidification needs to be improved.
• Agreement on a pH threshold. In a similar way as agreement was reached in the Copenhagen Accord on 2°C as a guardrail beyond which there will be dangerous climate change contrary to the UNFCCC, agreement needs to be reached on an acceptable oceanic pH threshold or range.
• Amendments to the UNFCCC and Kyoto Protocol. Key changes needed include the removal of incentives to utilize the oceans as carbon sinks, and, most crucially, placing higher priority upon reducing emissions of CO2 over other GHGs. Ideally, the climate change regime should include an appropriate atmospheric CO2 concentration benchmark that addresses both climate change and ocean acidification goals.
By contrast to climate and acidification mitigation (where the UNFCCC rather than the LOSC is the regime of prime importance), the LOSC will be highly relevant to policies of adaptation at national, regional, and global scales, whether these be coastal State measures to fortify coastlines against an ‘attacking ocean’,114 or efforts within multilateral institutions such as RFMOs to adjust fishing effort to respond to altered patterns of productivity or fisheries distribution. Despite the growing alarm sounded by scientific assessments, particularly in relation to the effects of ocean acidification on the oceanic food chain, there is little evidence that RFMOs are taking this threat seriously. It should also be recognized that there are limits to adaptation; ocean acidification is occurring rapidly and unlike sea level rise where there are viable adaptation strategies there is little that can be done to ameliorate the complete disappearance of ecosystems.115 Ocean acidification is a clear instance where the preventive and precautionary principles should be applied, and where the only prudent policy response is to halt (and reverse) the carbonation of the world’s oceans by stopping the rise in atmospheric concentrations of CO2. As Rau et al have noted, ‘short of stabilizing if not reducing atmospheric CO2 there may ultimately be no perfect or even satisfactory conservation options for the ocean, either globally or regionally’.116
* Thanks are extended to Harrison Grace and Meredith Simons for research assistance. Parts of this chapter draw upon and develop work by the author published elsewhere, including ‘Ocean Acidification’ in R Rayfuse (ed), Handbook on Marine Environmental Law (Edward Elgar Cheltenham forthcoming 2015).
5 Hypoxic waters are low in dissolved oxygen, while anoxic waters are completely depleted of oxygen. These conditions can be caused by eutrophication, the influx of nutrients from agricultural run off or sewage which boosts algal growth, and then leads to oxygen being consumed during the subsequent break down of dead algae.
8 IPCC, Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press Cambridge 2013) 9.
11 Ibid, 23.
13 Ibid, 24.
14 Ibid, 26.
16 IPCC, n 8, 6.
21 IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Summary for Policymakers (2014) 16–17, available at <http://ipcc-wg2.gov/AR5/images/uploads/IPCC_WG2AR5_SPM_Approved.pdf>.
26 Bijman, n 20, 501.
31 Bijman, n 20, 501.
35 R Allan and A Bergin, ‘Ocean Acidification: An Emerging Australian Environmental Security Challenge’ (2009) 1 Australian Journal of Maritime and Ocean Affairs 49; SR Cooley and SC Doney, ‘Anticipating Ocean Acidification’s Economic Consequences for Commercial Fisheries’ (2009) 4 Environmental Research Letters 024007.
36 Boyle, n 1.
37 IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2014) ch 6, available at <http://ipcc-wg2.gov/AR5/images/uploads/WGIIAR5-Chap6_FGDall.pdf>.
38 Boyle, n 1, 161–2.
43 P Williamson and C Turley, ‘Ocean Acidification in a Geoengineering Context’ (2012) 370 Philosophical Transactions of the Royal Society A 1974; RA Feely et al, ‘Evidence for Upwelling of Corrosive “Acidified” Water onto the Continental Shelf’ (2008) 320 Science 1490.
46 UN Secretary General, n 23, 12.
50 Ibid, 767.
52 AHA Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ (1990) 37 Netherlands International Law Review 207; DD Caron, ‘When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of Rising Sea Level’ (1990) 17 Ecology Law Quarterly 621.
53 For detailed discussion of baselines, see Chapter 4 in this volume.
55 Ibid, Art 5.
56 DR Rothwell and T Stephens, The International Law of the Sea (Hart Oxford 2010) 42. Many States have chosen the lowest astronomical tide: C Schofield, ‘Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention’ in Freestone (ed), n 1, 49, 50–1.
57 LOSC, n 54, Art 13(1).
58 Ibid, Art 6.
59 Ibid, Art 7(2).
60 Ibid, Art 9.
61 Ibid, Art 10.
62 Ibid, Art 7(1).
63 Ibid, Art 7(4).
64 Ibid, Art 47.
65 See R Rayfuse, ‘Climate Change and the Law of the Sea’ in R Rayfuse and S Scott (eds), International Law in the Era of Climate Change (Edward Elgar Cheltenham 2012) 147; M Hayashi, ‘Sea-Level Rise and the Law of the Sea: Future Options’ in D Vidas and PJ Schei (eds), The World Ocean in Globalisation (Martinus Nijhoff Leiden 2011) 187; C Schofield, ‘Shifting Limits?: Sea Level Rise and Options to Secure Maritime Jurisdictional Claims’ (2009) 4 Carbon and Climate Law Review 405; D Freestone, ‘International Law and Sea Level Rise’ in R Churchill and D Freestone (eds), International Law and Global Climate Change (Martinus Nijhoff Leiden 1991) 109; Caron, n 52; Soons, n 52; and the various views contained in International Law Association (ILA), Committee on Baselines Under the International Law of the Sea, Final Report (2012), available at <http://www.ila-hq.org/en/committees/index.cfm/cid/1028>.
66 Rayfuse, n 65, 150.
67 K Purcell, ‘Maritime Jurisdiction in a Changing Climate’ in MB Gerrard and K Fischer Kuh (eds), The Law of Adaptation to Climate Change: United States and International Perspectives (ABA Chicago 2012) 731.
68 Ibid, 739.
69 Ibid, 742.
70 Ibid, 759.
71 ILA, Committee on Baselines Under the International Law of the Sea, n 65, 16–17. One example given is the Delimitation of French Territorial Waters, Law No 71-1060 (1971) Art 1. (‘Les lignes de base sont la laisse de basse mer ainsi que les lignes de base droites et les lignes de fermeture des baies qui sont determinés par décret.’)
72 LOSC, n 54, Art 13.
73 Rayfuse, n 65, 155; DR Rothwell, The Polar Regions and the Development of International Law (Cambridge University Press Cambridge 1996) 268–73.
74 LOSC, n 54, Art 47(1).
75 Ibid, Art 47(1) and (2).
76 Ibid, Art 121(3).
77 Schofield, n 65, 409.
78 Ibid, 414.
79 See, in particular, L Yamamoto and M Esteban, Atoll States and International Law: Climate Change Displacement and Sovereignty (Springer Heidelberg 2014); and J McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Oxford 2010).
80 E Crawford and R Rayfuse, ‘Climate Change and Statehood’ in Rayfuse and Scott (eds), n 65, 243.
82 Rayfuse, n 65, 154.
84 Hayashi, n 65, 191.
85 LOSC, n 54, Art 7(4).
86 See further Chapter 9 in this volume.
87 Soons, n 52, 216–17.
88 Schofield, n 65, 406.
89 Caron, n 52, 623.
90 Ibid, 648.
91 Hayashi, n 65, 197.
92 Soons, n 52.
93 Hayashi, n 65, 196.
94 Caron, n 52, 644.
95 Ibid, 646.
96 Hayashi, n 65, 197–8.
97 M Gagain ‘Climate Change and Sea Level Rise and Artificial Island: Saving the Maldives’ Statehood and Maritime Through the ‘Constitution of Oceans’ (2012) 23 Colorado Journal of International Environmental Law and Policy 77, 81–2.
98 LOSC, n 54, Art 206.
99 Ibid, Art 207(1).
101 LOSC, n 54, Art 61.
102 Ibid, Art 77.
103 See further Chapter 23 in this volume.
104 L Kriwoken, J Davidson, and M Lockwood, ‘Marine Protected Areas and Transboundary Governance’ in R Warner and S Marsden (eds), Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate Farnham 2012) 85.
107 See further Chapter 20 in this volume.
110 M Haward and J Jabour, ‘Environmental Change and Governance Challenges in the Southern Ocean’ in T Stephens and D VanderZwaag (eds), Polar Oceans Governance in an Era of Environmental Change (Edward Elgar Cheltenham 2014) 21.