Ocean of opportunity: Taking action on climate change and marine conservation through international law

Stephen Minas, Dickson Poon School of Law, King’s College London

Climate change and ocean protection – inseparable challenges

The Intergovernmental Panel on Climate Change’s (IPCC) 2014 Synthesis Report found that ‘[o]cean warming dominates the increase in energy stored in the climate system, accounting for more than 90% of the energy accumulated between 1971 and 2010’. It also found that the oceans have ‘absorbed about 30% of the emitted anthropogenic CO2, causing ocean acidification’, which ‘has impacts on the physiology, behaviour and population dynamics of organisms’. The IPCC stated with high confidence that ‘ocean acidification will increase for centuries if CO2 emissions continue, and will strongly affect marine ecosystems’. The recent Summary of the First Global Integrated Marine Assessment also addressed the negative impact of biodiversity change on climate change resilience.

The natural feedbacks between the climate and the oceans are seeded with potentially disruptive legal consequences. These include the effect of sea level rise on the baselines from which ocean zones are calculated under the United Nations Convention on the Law of the Sea (UNCLOS), including in areas where states contest one another’s claims.

Recognizing the need for joint action

The feedback mechanisms between climate change and the state of marine biodiversity have been well recognized in a variety of UN decisions and programs. Several intergovernmental agreements have recognized the direct link between climate change and the conservation of ocean biodiversity and have called for action to jointly address both challenges.

The Rio+20 ‘The Future We Want’ outcome document stresses ‘the importance of the conservation and sustainable use of the oceans and seas and of their resources for sustainable development … while at the same time protecting biodiversity and the marine environment and addressing the impacts of climate change’. Identical language is included in this year’s Addis Ababa Action Agenda, which aims to provide a financial framework for the UN’s post-2015 development agenda centred on the Sustainable Development Goals (SDGs).

Ramping up collaborations

Neither climate change nor ocean protection can be comprehensively dealt with through a single international legal process. Recognizing this, states have ramped up collaboration among UN processes in recent years including through the UN Framework Convention on Climate Change (UNFCCC), which the SDGs rightly acknowledge as the primary forum for negotiating the global climate response. The UNFCCC requires all parties to ‘Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including … oceans’.

The Subsidiary Body for Scientific and Technological Advice of the UNFCCC is mandated to address emissions from international maritime transport, working with the International Maritime Organization (IMO), which in practice has made the running on this issue. The IMO has since 2013 regulated the energy efficiency of shipping, in order to reduce GHG emissions, under the International Convention for the Prevention of Pollution from Ships (MARPOL). This year, funding was announced for a joint IMO-UN Development Programme project to build developing country capacity to improve shipping energy efficiency under MARPOL.

IUCN has been an active collaborator with the UN in addressing the climate-ocean nexus. For example, through the Blue Carbon Initiative, IUCN has partnered with the Intergovernmental Oceanographic Commission of UNESCO and Conservation International to protect coastal and marine ecosystems – including mangroves, marshes and sea-grasses – which serve as important carbon sinks.

New initiatives – looking to the high seas and, ashore, the courts

There are also new initiatives and some creative proposals to extend climate-ocean action beyond existing mandates. The UN General Assembly process on the protection of the high seas has the potential to be a major case in point.

In the discussions and decisions that have led to the current mandate for an instrument for biodiversity conservation in areas beyond national jurisdiction (ABNJ), the effects of climate change on marine biodiversity including in ABNJ have been identified as a particular concern.

Earlier this year, the General Assembly decided, in Resolution 69/292, to develop ‘an international legally binding instrument’ under UNCLOS on biodiversity conservation in areas of the seas beyond national jurisdiction (ABNJ). ‘[A]nthropogenic threats to marine biodiversity, including as a result of climate change’ had featured in negotiations leading to the ABNJ mandate.[1] In Resolution 69/245, which also dealt with high seas protection, the General Assembly flagged ‘its serious concern at the current and projected adverse effects of climate change and ocean acidification on the marine environment and marine biodiversity, and emphasizing the urgency of addressing these issues’.

The high seas account for almost half of the planet’s surface. This vastness, alongside the permeable reality of UNCLOS-prescribed ocean zones, makes ABNJ conservation a logical focus for efforts both to mitigate climate change and to deal with climate change’s impacts on ocean ecosystems.

Alongside the further development of treaty law, international courts may also offer opportunities to advance work on the climate/ocean nexus. Speaking at the recent ‘Adjudicating the Future’ symposium on climate change and the rule of law, Professor Philippe Sands QC raised the idea of a request to the International Tribunal for the Law of the Sea (ITLOS) for an advisory ruling on states’ responsibility to prevent sea-level rise or to take action to mitigate against the consequences of climate change. Others have suggested an ITLOS advisory request focused on ocean acidification.

When it comes to climate change, the process of ‘bringing new law to ocean waters’ must now be pursued across multiple fronts. While this diffusion of processes presents challenges of coordination, it offers opportunities for creative legal work to innovate new protections and to connect and extend existing structures.

[1] A/66/119, annex, paragraph 8 (30 June 2011).

stephen minas

Stephen Minas is a Research Fellow at the Transnational Law Institute at the Dickson Poon School of Law, King’s College London and a member of the World Commission on Environmental Law. Stephen’s research and policy work concerns both the UN Framework Convention on Climate Change and the UN Convention on the Law of the Sea.

Follow Stephen on Twitter @StephenMinas.

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