potential causes of action for climate change damages in

Potential Causes of Action for Climate Change Damages in International Fora: The Law of the

Sea Convention

by William C. G. Burns*

* Associate Professor, International Environmental Policy Program, Monterey Institute of Interna-tional Studies, Monterey, CA, 460 Pierce St., Monterey, CA 93940, USA, [email protected]. The author wishes to acknowledge helpful comments and suggestions made by Professor Andrew Strauss of the Widener University School of Law during the preparation of this article.

Although the Kyoto Protocol has been viewed as a milestone in international climate change policy, its potential to stem the tide of environmental degra-dation may prove illusory on two fronts: first, the U.S. has declined to become a Party to the Proto-col; and second, even full implementation by all in-dustrialized States would only modestly affect at-mospheric concentrations of greenhouse gas emis-sions. In this context, climate change litigation in national and international fora is emerging as an alternative means by which to hold States and pri-vate actors accountable for climate change damages. The United Nations Convention on the Law of the Sea (UNCLOS) is a promising instrument

through which such action might be taken, given its broad definition of pollution to the marine envi-ronment and the dispute resolution mechanisms contained within its provisions. The paper outlines the history and content of UNCLOS, examines potential harms that could give rise to action under the Convention, and discusses the likely legal barriers to bringing and proving such claims. The failure of the world’s major greenhouse gas emitting nations to seriously address climate change has made litigation unavoidable. As such, UNCLOS may prove to be a primary battle-ground for climate change issues in the future.

Le Protocole de Kyoto, malgré son importance en politique internationale en matière de changements climatiques, offre des possibilités illusoires quant à sa capacité à contenir la dégradation de l’environnement en raison de deux facteurs : pre-mièrement, les États-Unis ont refusé d’adhérer au Protocole, et deuxièmement, même l’éventuelle mise en œuvre du Protocole par tous les états industriali-sés ne suffirait à limiter de façon importante les concentrations atmosphériques de gaz carbonique. Dans ce contexte, le litige en matière de change-ments climatiques peut se révéler, tant sur la scène internationale que nationale, une alternative pour assurer l’imputabilité des états nationaux et des agents privés. La Convention des Nations Unies sur le droit de la mer figure parmi les instruments

permettant l’application d’un tel mécanisme, car elle donne un sens large au concept de la pollution ma-ritime tout en prévoyant, dans ses dispositions, un mécanisme de résolution des différends. L’article qui suit vise à faire l’exégèse de l’histoire et du contenu de la Convention avant de discuter des ac-tions juridiques possibles en vertu de la Convention. L’auteur examine en particulier les méfaits pou-vant servir de bases juridiques à ces actions ainsi que les obstacles qui se présentent à cet égard. L’incapacité des grands pays émetteurs de gaz car-bonique à aborder ce problème de façon sérieuse a rendu la voie du litige inévitable. Ainsi, la Conven-tion pourrait se présenter dans le futur comme le principal champ de bataille pour les litiges en ma-tière de changements climatiques.

28 JSDLP - RDPDD BURNS

1. Introduction

2. Potential Actions under UNCLOS

2.1 Impacts of Rising Temperature

2.2 Impacts of Rising Sea Levels

2.3 Impacts of Reduced Ocean Alkalinity and Calcification of Ocean

Species

3. Potential Barriers to Causes of Action under UNCLOS

3.1 Potential Parties

3.2 Standard of Care

3.3 Causality Issues

4. Conclusion

BURNS Volume 2: Issue 1 29

he coming into force of the Kyoto Protocol 1 to the United Nations Framework Conven-tion on Climate Change (UNFCCC)2 in February 20053 was met with a sense of both relief and exhilaration by many, who viewed it as a milestone in international cli-

mate change policy.4 However, for many of the nations most vulnerable to climate change, such as the world’s small island States,5 the promise of Kyoto may prove to be il-lusory.

1 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, FCCC/CP/1997/L.7/Add. 1, 37 I.L.M. 22.

2 UNCED, Framework Convention on Climate Change, opened for signature 4 June 1992, 31 I.L.M. 849 [FCCC].

3 The Kyoto Protocol entered into force on 16 February 2005 with ratification by Russia. UNFCCC, Issues Arising in the Context of Entry into Force of the Kyoto Protocol, Conference of the Parties, 10th Ses-sion, FCCC/CP/2004/9 (2004), online: <http://unfccc.int/resource/docs/cop10/09. pdf>. As of April, 150 States and regional economic integration organizations have deposited instruments of ratification, accession, approval, or acceptance. United Nations Framework Convention on Climate Change Secretariat, online: Status of Ratification <http://unfccc.int/resource/docs/cop10/09. pdf>.

4 Mohammed H.I. Dore, “Climate Change and Changes in Global Precipitation Patterns: What Do We Know?” (2005) 31 Env’t Int’l 1167 at 1168. The Protocol calls for industrialized States and States with economies in transition to reduce their greenhouse gas emissions by at least 5 percent below 1990 levels in the commitment period 2008 to 2012 (supra note 3 at art. 3(1)).

5 The United Nations defines “small island states” as islands with less than 10,000 square

T


The most imposing barrier to effective implementation of the Kyoto framework was the decision by the United States, responsible for approximately one-quarter of the world’s anthropogenic greenhouse gas emissions,6 not to become a Party to the Proto-col.7 While President Bush has proposed a domestic alternative as part of his larger Clear Skies Initiative, it is an extremely tepid response that, under the Administration’s own pro-jections, would result in U.S. emissions rising by 32 percent above 1990 levels by 2010,8 whereas ratification of the Kyoto Protocol would have committed the U.S. to reduce its emissions by 7 percent below 1990 levels by 2012.9

Moreover, even if the Kyoto Protocol were faithfully implemented by all industrialized nations as originally drafted, which has not proven to be the case to date,10 it would only

kilometers in land mass and with less than 500,000 inhabitants. John C. Pernetta, “Impacts of Cli-mate Change and Sea-Level Rise on Small Island States” (1992) 2 Global Envtl. Change 19 at 20. Small island States in the Indian and Pacific oceans and Caribbean Sea are, as Gillespie observes: “at the edge of extreme risk”: Alexander Gillespie, “Small Island States in the Face of Climatic Change: The End of the Line in International Environmental Responsibility” (2003/2004) 22 UCLA J. Envtl. L. & Pol’y 107 at 112. As such, these islands are likely to face some of the earliest and most severe impacts associated with climate change over the course of this century: William C.G. Burns, “Pacific Island Developing Country Water Resources and Climate Change” in Peter H. Gleick, ed., The World’s Water 2002-2003: The Biennial Report on Freshwater Resources (Washington D.C.: Island Press, 2003) at 113.

6 J. Ram Pillarisetti, “The World Bank’s ‘Genuine Savings’ Measure and Sustainability” (2005) 55 Eco. Econ. 599 at 606, Fig. 9.

7 White Office of the Press Secretary, “Remarks by the President on Global Climate Change” (11 June 2001), online: <http://www.whitehouse.gov/news/releases/2001/06/20010611-2.html>. Australia also opted not to ratify the Kyoto Protocol. Overall, Kyoto’s limits apply to countries accounting for 32 percent of global emissions: Pew Center on Global Climate Change, “Q&A: Kyoto Protocol”, online: <http://www.pewclimate.org/what_s_being_done/in_the_world/kyoto_enters_into_force /russia_kyoto_q_a.cfm>.

8 Detlef van Vuuren, et al., “An Evaluation of the Level of Ambition and Implications of the Bush Climate Change Initiative” (2002) 2 Climate Pol’y 293 at 295; A.P.G. de Moor, et al., “Evaluating the Bush Climate Change Initiative” in Dutch Ministry of Environment, RIVM Report (278001019/2002) (Bilthoven, NL: National Institute for Public Health and the Environment, 2002) at 13. The Clear Skies Initiative, which in the context of climate change calls for a voluntary approach to reduce the greenhouse gas intensity of the U.S. economy by 18 percent over a decade (the ratio of greenhouse gas emissions to economic output), is currently stalled in Congress. The Initiative also establishes mechanisms to reduce emissions of sulfur dioxide, nitrogen oxides, and mercury, which are not greenhouse gases: Shankar Vedantam, “EPA Nominee Blocked Over ‘Clear Skies Test’” Washington Post (15 April 2005), online: <http://www.washingtonpost.com/wp-dyn/articles/A54697-2005Apr14.html>; U.S., The White House, Global Climate Change Policy Book (February 2002), online: <http://www.whitehouse.gov/news/releases/2002/02/climatechange.html>. Other components of U.S. climate change policy include the Climate Change Technology Program, which coordinates and prioritizes the nearly $3 billion that the U.S. invests annually in climate-related research and de-velopment, demonstration, and deployment; the Climate VISION, Climate Leaders, and Smart Way Transport Partnership, programs that seek to stimulate voluntary reductions in greenhouse emis-sions by industry, and joint research initiatives with other countries. Spencer Abraham, “The Bush Administration’s Approach to Climate Change” (2004) 305 Sci. 616 at 616.

9 UNFCC, Supra note 3 at Annex B. 10 Compromises crafted during the drafting of detailed provisions to implement the Kyoto Protocol

may permit the greenhouse gas emissions of UNFCCC Annex I Parties (developed countries and countries with economies in transition) to increase by 9 percent by 2010: Mustafa H. Babiker, et al., “The Evolution of a Climate Regime: Kyoto to Marrakech and Beyond” (2002) 5 Envtl. Sci. & Pol’y 195 at 201. It is also far from clear that the primary greenhouse emitting States that have ratified


constitute a very modest down payment on what ultimately must be done to stabilize at-mospheric concentrations of greenhouse emissions. Climate researchers have estimated that full implementation of Kyoto would reduce projected warming in 2050 by only about one-twentieth of one degree Celsius.11 By contrast, stabilization of atmospheric green-house gases at levels that produce no more than a 2-3˚C increase in temperatures from pre-industrial levels, which many climate experts cite as a critical threshold for very seri-ous impacts,12 will require the world community to reduce greenhouse gas emissions by 60-70 percent by 2050.13 Moreover, industrialized countries might have to reduce their emissions by as much as 80 percent by the middle of the century if developing nations are to be permitted some growth in their emissions levels.14 Cuts of this magnitude will

Kyoto, including the European Union, Japan, and Canada will meet their targets: James Brooke, “Ja-pan Leads Way in Finding More Use in Less” Int’l Herald Tribune (6 June 2005) 1 (Lexis, Newsfile), “Japan's emissions were 8.3 percent above the 1990 level for the fiscal year that ended on March 31, 2004”; “Kyoto Protocol Implementation an ‘Imperfect First Step,’” U.S. Fed N. (22 February 2005) (Lexis, Newsfile), “In Europe, Portugal, Spain, and Greece have doubled their carbon dioxide emis-sions since 1990. The Netherlands, and Italy are miles apart from reaching their [self-proclaimed] goals”; “EU Emissions Climb” PointCarbon News (21 June 2005); “Existing domestic policies and measures will reduce total EU-15 greenhouse gas emissions by only 1.6% from base-year levels by 2010”, European Environment Agency, Greenhouse Gas Emission Trends and Projections in Europe 2005 (2005), EEA Rep. No. 8/2005, at 7, <http://reports.eea.eu.int/ eea_report_2005_8/en/GHG2005.pdf>. Canada’s emissions have increased 20 percent above 1990 levels, and there appears to be little government impetus to reverse the tide: Friedemann Müller, “A Tailwind for Climate Policy” (2004) 37 German Institute for International & Security Affairs: SWP Comments 1-2; Sierra Club-Canada, “Kyoto Report Card—2004” (2004) at 5, online: <http://www.sierraclub.ca/ national/ kyoto/kyoto-report-card-2004.pdf>. Overall, recent studies indicate that the European Union, Japan, and Canada may exceed their emissions under Kyoto by 3.5-5 billion tons in the commitment period of 2008-2012: W. Wayt Gibbs, “How Should We Set Priorities?” Sci. Am. (September 2005) 112. See also Leonard Nurse & Rawleston Moore, “Adapta-tion to Global Climate Change: An Urgent Requirement for Small Island Developing States” (2005) 14 RECIEL 100 at 103.

11 Martin Parry et al., “Buenos Aires and Kyoto Targets Do Little to Reduce Climate Change Impacts” (1998) 8 Global Envtl. Change 285 at 285. See also Mustafa H. Babiker, “The Evolution of a Cli-mate Regime: Kyoto to Marrakech and Beyond” (2002) 5 Envtl. Sci. & Pol’y 195 at 202.

12 See Paul Baer & Tom Athanasiou, “Honesty About Dangerous Climate Change” (2004) EcoEquity, online: <http://www.ecoequity.org/ceo/ceo_8_2.htm#dangerous>; B.C. O'Neill & M. Oppen-heimer, “Climate Change—Dangerous Climate Impacts and the Kyoto Protocol” (2002) 296 Sci. 1971 at 1972. However, it needs to be emphasized that even lower temperature increases will have serious implications. For example, a 1˚C increase in atmospheric temperatures will seriously imperil the world’s coral reef ecosystems, as well as many other ecosystems in developing countries (ibid. at 1971); Hadley Centre, “Avoiding Dangerous Climate Change” (Report of the International Steering Committee to the International Symposium on the Stabilisation of Greenhouse Gas Concentrations, May 2005), online: <http://www.stabilisation2005.com/ Steering_Commitee_Report.pdf>.

13 Jonathan Pershing and Fernando Tudela, “A Long-Term Target: Framing the Climate Effort” in Joseph E. Aldy, et al., eds., Beyond Kyoto: Advancing the International Effort Against Climate Change (Ar-lington, VA: Pew Center on Global Climate Change, 2003) at 23, online: <http://www.pewclimate. org/docUploads/Long%2DTerm%20Target%2Epdf>. Stabilization of atmospheric carbon diox-ide levels at 550 parts per million, yielding an estimated 1.6-2.9˚C increase in temperatures from pre-industrial levels, necessitates a 60 percent reduction in emissions: U.K. Meteorological Office, The Greenhouse Effect and Climate Change: A Briefing from the Hadley Centre (Devon, U.K.: Hadley Centre for Climate Prediction and Research, 1999) at 5.

14 Ecofys GmbH, et al., “WWF Climate Scorecards: Comparison of the Climate Performance of the G8 Countries” (Gland, Switzerland: World Wild Fund for Nature, 2005) at 4, online: <http://www. panda.org/downloads/climate_change/g8scorecardsjun29light.pdf>.


necessitate committed participation by the U.S., as well as by large developing States with rapidly growing emissions, such as China and India.15 This is a truly daunting task given the substantial resistance to the far more modest Kyoto accord.16 Indeed, the Interna-

15 “By 2025, the developing country share of global emissions is projected to be approximately 55 per-cent (compared to 48 percent in 2000).” China is projected to surpass the U.S. by that point as the world’s largest emitter of greenhouse gases: Kevin Baumert and Jonathan Pershing, Climate Data: In-sights and Observations (Devon, VA: Pew Center on Global Climate Change, 2004) at 16. “Most plausi-ble emission scenarios suggest that even with strong efforts in developed countries, developing country emissions must fall below business-as-usual projections if atmospheric GHG concentra-tions are to be stabilized by 2100”: Thomas C. Heller & P.R. Shukla, “Development & Climate: En-gaging Developing Countries” in Aldy et al., supra note 13 at 111-112. See also Asbørn Torvanger et al., “Broadening the Climate Regime: Design and Feasibility of Multi-Stage Climate Agreements” (2005) CICERO at 1, online: <http://www.cicero.uio.no/media/ 3604.pdf>. During the 12th ASEAN Regional Forum in July, 2005, the United States, China, India, Japan, South Korea, and Australia, responsible for 40 percent of the world’s greenhouse gas emissions, agreed to form the Asia-Pacific Partnership on Clean Development and Climate. The Partnership’s primary objective is to “promote and create an enabling environment for the development, diffusion, deployment and transfer of existing and emerging cost-effective, cleaner technologies and practices ...” Potential areas for collaboration include development of energy efficiency programs, clean coal, renewable energy sources, including wind, solar, and geothermal, and carbon sequestration projects. It is contemplated that a non-binding compact will be established to specify terms of implementation of the Partner-ship: Prime Minister of Australia, Press Release, “Vision Statement of Australia, China, India, Japan, the Republic of Korea and the United States of America for a New Asia-Pacific Partnership on Clean Development and Climate” (28 July 2005), online: <http://www.pm.gov.au /news/media _releases/media_Release1482.html#statement>. However, the Partnership agreement is not likely to substantially change the terrain as it does not mandate binding cuts of greenhouse gas emissions, obviating the incentive for the public and private sectors to deploy costly new technologies, and does not at this point have a funding mechanism for the programs it outlines: Richard Black, “Climate Pact: For Good or Bad?” BBC News (28 July 2005), online: <http://news.bbc.co.uk/ 1/hi/sci/tech/4725681.stm>. As Anthony Hobley, Chairman of the London Climate Change Ser-vices, concluded: “This partnership does not provide anything additional to the UNFCCC to which all of the countries involved have already signed up.” Liz Bossley, “Asia-Pacific Partnership: Com-plementing or Competing with Kyoto?” (2005) XLVIII Middle East Econ. Survey, online: <http://www.mees.com/postedarticles/oped/v48n32-5OD01. htm>.

16 Even the European Union, the leading advocate of deep, long-term reductions in greenhouse gas emissions, has failed to set an ambitious target for 2020. At the European Union summit meeting in March of 2005, the European Council of Environmental Ministers agreed to an initial target of re-ducing greenhouse gas emissions by 15-30 percent by 2020 from 1990 levels. This target was af-firmed by the European Council at its March 2005 meeting: Council of the European Union, “Presidency Conclusions” Doc. 05/1 (22-23 March 2005), online: <http://europa.eu.int/rapid/ pressReleasesAction.do?reference=DOC/05/1&format=HTML&aged=1&language=EN&guiLa nguage=en>. As Axel Michaelowa of the Hamburg Institute of International Economics and Per-spectives concludes, it is likely that EU members will ultimately embrace the lower end of this target, which will constitute only a 7 percent reduction from the EU’s commitment under the Kyoto Proto-col: “EU Post-2012 Target Not ‘Too Ambitious’” PointCarbon News (20 June 2005), <http://www. pointcarbon.com>. One positive aspect of the meeting of the Environmental Ministers was a call for industrialized nations to reduce their greenhouse emissions by 60-80 percent by 2050. However, this target was omitted at the meeting of the Council at the insistence of Germany and Austria: “EC Council Proposes Ambitious Climate Policy” (2005) 11 Joint Implementation Q. 2 at 2, online: <http://www.jiqweb.org/>. Developing countries have steadfastly refused to discuss possible emis-sions reductions commitments. As the Chair of the G77 stated at a climate meeting in 2002: “We specifically and clearly refuse to open at this time any dialogue or process—or indeed any wording—that could be in any way interpreted as accepting to open discussions on new commitments on non-Annex I countries”: Benito Müeller and Anju Sharma, “Trade Tactic Could Unlock Climate Nego-


tional Energy Agency, in its most recent report, has projected that carbon dioxide emis-sions may rise by more than 60 percent by 2030.17

According to the Third Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), by 2100, stratospheric carbon dioxide concentrations will have risen 90-250 percent above pre-industrial levels, to 540 to 970 parts per million.18 This rise, in conjunction with other greenhouse gases,19 will result in an increase of globally averaged temperatures of 1.4 to 5.8ºC by the end of this century.20 A more recent study by the United Kingdom’s Hadley Centre projected that a doubling of carbon dioxide from pre-industrial levels will most likely increase temperatures by 3.5ºC, with a 90 percent probability that warming will be between 2.4ºC and 5.4ºC.21 Moreover, the IPCC has projected that sea level will rise by 9-88 centimeters by 2100 (with a mid-range estimate of approximate 50 centimeters) due to thermal expansion and the loss of mass from glaciers and ice caps.22 More forebodingly, a recent study

tiations” Science & Development Network (17 June 2005), online: <http://www. scidev.net/dossiers/ index.cfm?fuseaction=dossierReadItem&type=3&itemid=399&language=1&dossier=4>.

17 International Energy Agency, “World Energy Outlook 2004” at 30, online: <http://www.iea.org/ Textbase/npsum/WEO2004SUM.pdf>.

18 Intergovernmental Panel on Climate Change, Working Group I, Summary for Policymakers (Geneva: IPCC, 2001) at 7 [IPCC]. Prior to the advent of the Industrial Revolution, atmospheric carbon diox-ide concentrations were remarkably stable, at 275±15 ppm. Haroon S. Kheshgi et al., “Emissions and Atmospheric CO2 Stabilization: Long-Term Limits and Paths” (2005) 10 Mitigation & Adapta-tion Strategies Global Change 213 at 213. Atmospheric concentrations have now risen to 374 ppm today: T.J. Blasing & Sonja Jones, “Current Greenhouse Gas Concentrations” (February 2005), online: <http://cdiac.esd.ornl.gov/pns/current_ghg.html>. Half of this increase occurred since 1965: Thomas R. Karl & Kevin E. Trenberth, “Modern Global Climate Change” (2003) 302 Sci. 1719 at 1719.

19 Seventy percent of anthropogenic greenhouse emissions are attributable to carbon dioxide sources, including fossil fuel burning and land modification. Kheshgi et al., ibid. at 214; Pew Center on Global Climate Change, “Facts and Figures”, online: <http://www.pewclimate.org/ global-warming-basics/facts_and_figures/>. However, other primary greenhouse gases, including methane, nitrous oxides, and chlorofluorocarbons, exert a disproportionate warming effect because of their higher “global warming potential,” that is, their heat-absorbing capacity is much higher than carbon dioxide: U.S. Department of Energy, Energy Information Agency, “Comparison of Global Warming Poten-tials from the Second and Third Assessment Reports of the Intergovernmental Panel on Climate Change”, online: <http://www.eia.doe.gov/oiaf/1605/gwp.html>. For example, the global warm-ing potential of a molecule of methane in the atmosphere is 23 times that of carbon dioxide, 296 times for nitrous oxide, and thousands of times higher for chlorofluorocarbons (ibid.). Overall, the total forcing by non-carbon dioxide greenhouse gases is equal to that of carbon dioxide: James Han-sen et al., “Global Warming in the 21st Century: An Alternative Scenario” NASA Goddard Institute for Space Studies, online: <http://www.giss.nasa.gov/research/impacts /altscenario>.

20 Intergovernmental Panel on Climate Change, Working Group I, Summary for Policymakers (Geneva: IPCC, 2001) at 8.

21 Hadley Centre, Uncertainty, Risk and Dangerous Climate Change: Recent Research on Climate Change Science from the Hadley Centre (Devon, U.K.: Hadley Centre for Climate Prediction and Research, 2004) at 13, online: <http://www.metoffice.com/research/hadleycentre/pubs/brochures/B2004/global. pdf> [Hadley Centre]. It is also possible that the climate system might at some point respond chaotically to escalating atmospheric levels of greenhouse gases, resulting in abrupt and dramatic changes in tem-perature, precipitation, sea levels, and storm patterns. Parliamentary Office of Science & Technol-ogy, “Rapid Climate Change” (2005) 245 at 1, online: <http://www.parliament.uk/documents/up load/POSTpn 245.PDF>.

22 IPCC, supra note 18 at 10; The Royal Society of the United Kingdom, “Joint Science Academies’ Statement: Global Response to Climate Change” (7 June 2005, Ref 08/05) at 1, online: <http://


that focused on the potential impacts of warming on the Greenland ice-sheet concluded that if annual temperatures increase by more than 3°C in the region, which is highly likely by the end of this century, globally-averaged sea levels could increase by 7 meters over a period of 1000 years or more.23

As a consequence, several States and peoples in recent years have begun to contemplate, or have taken active steps to initiate, actions against States or private actors in national fora,24 and against other States in international fora, including the

www.royalsoc.ac.uk/displaypagedoc.asp?id=13034>. See also Hadley Centre, Climate Change Observa-tions and Predictions: Recent Research on Climate Change Science from the Hadley Centre (Devon, U.K.: Hadley Centre for Climate Predictions and Research, 2003) at 12, online: <http://www/metoffice. com/ research/hadleycentre/pubs/brochures/2003/global.pdf>.

23 Jonathan M. Gregory et al., “Threatened Loss of the Greenland Ice-Sheet” (2004) 428 Nature 616 at 616. Recent research in Greenland is foreboding. After 40 years of stability, the Kangerdlugs-suaq Glacier in southeastern Greenland “has become one of the world's fastest-melting glaciers,” receding at a rate of 14 kilometers per year, three times the rate measured in 2002. Moreover, after 50 years of stability, the Jakobshavn Isbrae, Greenland’s largest glacier “is racing to the sea at 13 kms a year and dumping 10 kms of ice into the sea every year”: Stephen Leahy, “Glacial Meltdown Speeding Up” Inter Press Services News Agency (22 July 2005), online: <http://www.ipsnews.net/ news.asp?idnews=29606>. See David C. Vaughan, “How Does the Antarctic Ice Sheet Affect Sea Level Rise?” (2005) 308 Sci. 1877 at 1877. Recent research indicates that the East Antarctic ice sheet is thickening, slowing sea level rise in the Antarctic by 0.12 ± 0.02 mm per year.

24 There have been a number of actions initiated at the domestic level in the United States against gov-ernment entities. Friends of the Earth Inc. et al. v. Peter Watson et al., Civ. No. C 02 4106 JSW (N.D. Cal. 2002), online: <http://www.climatelawsuit.org/documents/Complaint_2Amended_Declr _Inj_ Re lief.pdf>. A suit by several U.S. cities, NGOs, and individuals alleges the failure of the Overseas Pri-vate Investment Corporation and the Export-Import Bank of the U.S. to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4335, pursuant to its funding of fossil fuel pro-jects, which produce substantial greenhouse gas emissions. The court in that case recently denied a motion for summary judgment by the defendants, who alleged that: 1. The plaintiffs lacked standing; 2. there was no final agency actions; 3. OPIC’s organic statute precludes judicial review; and 4. OPIC was not subject to NEPA. Friends of the Earth, Inc., et al. v. Peter Watson et al., (ibid.), Order Denying De-fendants’ Motion for Summary Judgment, 23 August 2005; Commonwealth of Massachusetts, et al. v. United States Environmental Protection Agency, 03-1361 D.C. App. (1999), online: <http://www.ago.state. ma.us/sp.cfm?pageid=986&id=1110>. This suit by 12 States and several cities and NGOs seeks to compel the U.S. Environmental Protection Agency (EPA) to regulate carbon dioxide emissions un-der the Clean Air Act. In April, the Court of Appeals for the District of Columbia Circuit dismissed the petitions for review, holding that the EPA Administrator properly exercised his discretion in de-nying the petition for rule-making under the Clean Air Act. See also generally, Madhusree Mukerjee, “Greenhouse Suits” (February 2003) Sci. Am. 14. Finally, two listing petitions have been initiated under the Endangered Species Act, 16 U.S.C. §1531-1544 (1973) [ESA]. In March of 2004, the Center for Biological Diversity requested that the National Oceanic and Atmospheric Administration list three species of coral under the ESA, the Elkhorn, Staghorn, and Fused-Staghorn. Center for Bio-logical Diversity, “Petition to List Acropora Palmata (Elkhorn Coral), Acropora Cervicornis (Stag-horn Coral), and Acropora Prolifera (Fused-Staghorn Coral) As Endangerd Species under the En-dangered Species Act” (3 March 2004), online: <http://www.biologicaldiversity. org/swcbd/spe cies/coral/petition.pdf> at 62-67. The petition cites, inter alia, the threat posed to these species by climate change. In October 2005, several non-governmental organizations sent a notice of intent to sue to the U.S. Fish and Wildlife Service (USFWS), alleging violations of the ESA, (Ibid.) and the Administrative Procedure Act, 5 U.S.C. §551-559 (1966) for USFWS’s failure to make a 90-day filing on a petition to list the polar bear as a Threatened Species. The notice contends that polar bears are pri-marily threatened by a diminution of the sea-ice habitat attributable to anthropogenic activities that are inducing climate change in the region. Center for Biological Diversity, Natural Resources De-fense Council & Greenpeace, “Sixty Day Notice of Intent to Sue Over Violations of Section 4 of


International Court of Justice,25 the World Trade Organization,26 the Inter-American Commission on Human Rights,27 the World Heritage Committee,28 as well as under

the Endangered Species Act” (11 October 2005), online: <http://www.biologicaldiversity.org/ swcbd/species/polarbear/90Day. pdf>.

Additionally, “[e]nvironmentalists and state attorneys general are honing potential legal strategies to file tort suits against companies over their alleged contributions to global warming.” Clean Air Report, (2004) 15 InsideEPA.com. One such action has already filed and ruled upon. In Connecticut v. Ameri-can Electric Power Company, Inc., the plaintiffs, comprised of several state governments, the city of New York, and several non-governmental organizations, brought an action against several major produc-ers of electricity, including several private entities and the Tennessee Valley Authority, the largest public power company in the United States. The suit alleged that defendants, the “five largest emit-ters of carbon dioxide in the United States”, were responsible under federal common law principles of nuisance or state law to abate their contributions to global warming. In dismissing the actions, the court held that they “present non-justiciable political questions that are consigned to the political branches, not the Judiciary.” Connecticut v. American Electric Power Company, Inc., 04 Civ. 5669 & 5670 (S.D. N.Y. 2005), at 2-4, 19. Not all climate change-related actions are being initiated by the NGO and governmental sectors. In September of 2005, a class action suit was filed on behalf of victims of Hurricane Katrina. Among the named defendants are several oil companies who the suit con-tends are liable to the class of plaintiffs for damages associated with Hurricane Katrina because of their alleged failure to address climate change, which the suit further alleges “produced the condi-tions whereby a storm of the strength and size of Hurricane Katrina would inevitably form and strike the Mississippi Gulf coast …” Comer et al. v. Nationwide Mutual Insurance Co., et al., Case No.: 1:05-cv-00436-LG-RHW (S.D. Miss. 2005) at 12.

Actions are also being brought in other nations. For example, in Germany, two NGOs, German-watch and BUND (Friends of the Earth Germany), have initiated a legal action to compel the Ger-man government to disclose the climatic impact of projects funded by Germany’s export credit agency, Euler Hermes AG Germanwatch & BUND, “German Government Sued Over Climate Change, Briefing” (2005), online: <http://www.germanwatch.org/rio/herbpe04.pdf>. In Nigeria, several communities in the Niger Delta brought a suit in 2005 in the Federal High Court of Nigeria against Shell, ExxonMobil, ChevronTexaco, TotalFinaElf, Agip joint venture companies, the Nige-rian National Petroleum Corporation, and the Nigerian government, to stop gas flaring, a practice that generates more greenhouse gas emissions than all other sources in sub-Saharan Africa com-bined, as well as producing an array of toxic pollutants: Climate Justice, “Legal Action to Stop Nige-ria Gas Flaring” (20 June 2005), online: <http://www.climatelaw. org/media/gas.flaring.suit>. In Australia, the Australian Conservation Foundation brought an action against the Victoria Minister for Planning, alleging a failure to comply with Victoria’s Planning and Environment Act of 1987 by fail-ing to consider evidence that might be submitted in a planning amendment process related to a coal-fired power station. The Victorian Civil and Administrative Tribunal agreed, directing that the panel constituted by the Minister for Planning must provide a reasonable opportunity for the submission of evidence about the potential greenhouse gas emissions from the power station, and that those impacts must be considered in the panel’s recommendations and report to the planning authority. Australian Conservation Foundation v. Minister for Planning [2004] V.C.A.T. 2029, online: <http://www.austlii.edu.au/au/cases/vic/VCAT/2004/2029.html>. Additionally, in July 2005, the Wildlife Preservation Society of Queensland brought an action in the Federal Court of Australia al-leging that the Minister for Environment and Heritage violated provisions of the Environment Protec-tion and Biodiversity Conservation Act by failing to assess the emission of greenhouse gases of two large coal mines: Wildlife Preservation Society of Queensland Prosperine Whitsunday Branch, Inc. v. Minister for the Environment and Heritage, Application for an Order of Review, [2005] F.C.A. 216, online: <http://www.climatelaw.org/media/Australia.emissions.suit/Application.for.an.Order.of.Review. pdf>.

25 See Rebecca Elizabeth Jacobs, “Treading Deep Waters: Substantive Law Issues in Tuvalu’s Threat to Sue the United States in the International Court of Justice” (2005) 14 Pac. Rim L. & Pol’y 103 at 105; Andrew Strauss, “The Legal Option: Suing the United States in International Forums for Global Warming Emissions” (2003) 33 Envtl. L. Rev. 10185 at 10185-10187.

26 Strauss, ibid. at 10188.


the dispute resolution mechanisms of the United Nations Convention on the Law of the Sea (UNCLOS),29 and the Straddling Fish Stocks Agreement.30 This article will focus on the potential viability of actions under UNCLOS, a forum which this author believes may prove to be one of the primary battlegrounds for climate change issues in the future. In this pursuit, I will briefly outline the history of UNCLOS, examine potential climate change-related harms that might give rise to an action under UNCLOS, and discuss some of the potential barriers to such actions.

27 The Inuit people of Canada and Alaska have launched a human rights case against the United States

before the Inter-American Commission on Human Rights. See Martin Wagner and Donald M. Goldberg, “An Inuit Petition to the Inter-American Commission on Human Rights for Dangerous Impacts of Climate Change” (2005) EarthJustice/CIEL, online: <http://www.ciel.org/ Publica-tions/COP10_Handout_EJCIEL.pdf>; Paul Brown, “Global Warming is Killing Us Too, Says Inuit” Guardian International (11 December 2003), online: <http://www.guardian.co.uk/interna tional/story/0,3604,1104241,00.html>.

28 Environmental Law Alliance Worldwide, “Urge UNESCO to Review Climate Change Petitions”, online: <http://www.elaw.org/campaigns/info.asp?id=2929>. In November, 2004, three NGOs, the Belize Institute of Environmental Law and Policy, Foro Ecologico del Peru, and the Forum for Protection of Public Interest filed petitions with the World Heritage Committee to protect 3 sites that are classified as World Heritage sites under the Convention Concerning the Protection of the World Cul-tural and Natural Heritage, 16 November 1972, TIAS 8226, 11 I.L.M. 1358. These are the Belize Bar-rier Reef Reserve System, the Huarascán National Park in Peru, and the Sagarmatha National Park in Nepal. The respective petitions request that the World Heritage Committee designate these sites as “In Danger” under Article 11(4) of the Convention as a consequence of the threat posed by cli-mate change. The listing of a site under Article 11(4) mandates the development of a “programme of corrective action”: World Heritage Committee, “Operational Guidelines for the Implementation of the World Heritage Convention” (2005) at s. 186, online: <http://whc.unesco. org/archive/opguide05-en.pdf>. The petitioners are requesting, inter alia, that the corrective meas ures include greenhouse gas reduction measures by major greenhouse gas emitting parties. See Belize Institute of Environmental Law & Policy, “Petition to the World Heritage Committee Requesting Inclusion of Belize Barrier Reserve System in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures and Actions” (15 November 2004) at 30, online: <http://www.climatelaw.org/media/UNESCO.petitions.release/belize.barrier. reef.doc>; Forum for Protection of Public Interest, “Petition to the World Heritage Committee Requesting Inclusion of the Huascaran National Park in the List of World Heritage in Danger as a Result of Climate Change” (17 November 2004) at 41, online: <http://www.climatelaw.org/media/UNESCO.peti tions.release/peru.huascaran.national.park.doc>. The petitioners also filed a report assessing the po-tential impact of climate change on Australia’s Great Barrier Reef and Australia’s obligations under the World Heritage Convention: Sydney Centre for International and Global Law, “Global Climate Change and the Great Barrier Reef: Australia’s Obligations under the World Heritage Convention” (21 September 2004), online: <http://www.law.usyd.edu.au/scigl/SCIGLFinalReport21_09_04. pdf>.

The World Heritage Committee considered the petitions at its 29th session in Durban, South Africa in July 2005. It requested that the regime’s World Heritage Centre establish a working group of ex-perts, including the petitioners, to review the nature and scales of risks to World Heritage sites asso-ciated with climate change and to develop a strategy to assist the Convention’s Parties to implement appropriate management responses. The working group will report back at the 30th session in 2006: World Heritage Committee, Examination of the State of Conservation of World Heritage Properties: State of Conservation Report Properties Inscribed on the World Heritage List, WHC-05/29.COM7 BRev (2005).

29 U.N. Convention on the Law of the Sea, 10 December 1982, U.N. Doc. A/Conf. 62/121, 21 I.L.M. 1261 [UNCLOS].

30 The Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea 10 Dec. 1982 Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks, 4 August 1994, U.N. Doc. A/CONF.164/37.


2. POTENTIAL ACTIONS UNDER UNCLOS

In 1967, Malta’s Ambassador to the United Nations, Arvid Pardo, delivered an impassioned speech to the UN General Assembly, detailing serious threats to the marine environment posed by activities such as mineral exploitation and the dumping of hazardous waste.31 Ambassador Pardo concluded by calling for “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction.”32 Ultimately, the world community, acknowledging the perils faced by all areas of the globe’s oceans, opted to negotiate rules “for all ocean areas, all uses of the seas and all of its resources.”33

The Third United Nations Conference on the Law of the Sea convened in 1973 and culminated nine years later in the adoption of “a constitution for the oceans,”34 the UNCLOS. UNCLOS entered into force in 1994 and currently has 148 Parties.35

The Convention, inter alia, establishes “a comprehensive framework for protecting and preserving the marine environment.”36 While the Convention recognizes the sovereign right of States to exploit their natural resources, this must be done in accordance with “their duty to protect and preserve the marine environment.”37 Under the Convention, Party States are required “to prevent, reduce and control pollution of the marine environment from any source,”38 including “the release of toxic, harmful or noxious substances, especially those that are persistent39… from land-based sources, [or] from or through the atmosphere ... ”40 States are also required to take “all measures necessary” to ensure that activities under their jurisdiction are conducted in a manner that does not cause pollution damage to other States and their environment.41 This

31 Arvid Pardo, Examination of the Question of the Reservation Exclusively for Peaceful Purposes of the Sea-bed and Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdic-tion, and the Use of their Resources in the Interests of Mankind, UN General Assembly, 22d Sess., Agenda Item 92 (1967), at 1-18, online: <http://www.un.org/Depts/los/convention_agreements/texts/ pardo_ga1967.pdf>.

32 Ibid. at 17-18. 33 United Nations, Division for Ocean Affairs and the Law of the Sea, “The United Nations Conven-

tion on the Law of the Sea: A Historical Perspective”, online: <http://www.un.org/Depts/los/ convention_agreements/convention_historical_perspective.htm>.

34 Tommy T.B. Koh, “A Constitution for the Oceans” United Nations, Division for Ocean Affairs and the Law of the Sea (1982), online: <http://www.un.org/Depts/los/convention_agreements/texts/ koh_english.pdf>.

35 UN Oceans and the Law of the Sea, “Chronological Lists of Ratifications of, Accessions and Suc-cessions to the Convention and the Related Agreements as at 01 February 2005”, online: <http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The%20United%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea>.

36 Jonathan L. Hafetz, “Fostering Protection of the Marine Environment and Economic Development: Article 121(3) the Third Law of the Sea Convention” (2000) 15 Am. U. Int’l L. Rev. 583 at 596.

37 UNCLOS, supra note 29 at art. 193. See also Ibid. at art. 192. 38 Ibid. at art. 194(1). 39 Ibid. at art. 194(3). 40 Ibid. at art. 194(3)(a). See also Ibid. at art. 212: “States shall adopt laws and regulations to prevent, re-

duce and control pollution of the marine environment from or through the atmosphere ...” 41 Ibid. at art. 194(2).


includes measures to protect and preserve “rare or fragile ecosystems” and “the habitat of depleted, threatened or endangered species and other forms of marine life.”42

State responsibility is triggered when a State fails to fulfill these responsibilities under the Convention: “States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.”43

The Convention adopts an expansive definition of the term “pollution of the marine environment”:

‘pollution of the marine environment’ means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of

quality for use of sea water and reduction of amenities.44

In cases where disputes related to the interpretation or application of the Convention arise and cannot be settled through an exchange of views or conciliation,45 Part XV of the Convention establishes a comprehensive framework for the compulsory adjudication of disputes. States are provided with four potential fora for settling such disputes: the International Tribunal for the Law of the Sea (ITLOS), established under the Convention46 and characterized as the judicial guardian of the marine environment;47 the International Court of Justice; an arbitral panel; or a special arbitral panel.48 Special arbitral panels are reserved for disputes falling into several specialized categories: “(1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping… ”49 States may choose to declare their choice of forum, but in cases where they have not, or Parties to a dispute have not accepted the same procedure for dispute settlement, the dispute may only be submitted to binding arbitration unless the Parties agree otherwise.50

Several potential manifestations of climate change in the world’s oceans may give rise to actions under the Convention’s marine pollution provisions. These are the poten-tial impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH

42 Ibid. at art. 194(5). 43 Ibid. at art. 235. 44 Ibid. at art. 1(4). 45 Ibid. at arts. 279-285. 46 Ibid. at Annex VI. The Tribunal is composed of 21 judges representing the legal systems of

UNCLOS’s Parties (ibid. at arts. 1-2, 4). 47 Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) “Oral

Proceeding” (25 September 2003) ITLOS Case No. 12, ITLOS/PV.03/01, at 20, online: <http://www.itlos.org/case_documents/2003/document_en_225.pdf>; Christoph Schwarte, “En-vironmental Concerns in the Adjudication of the International Tribunal for the Law of the Sea” (2004) 16 Geo. Int’l Envtl. L. Rev. 421 at 423-24.

48 UNCLOS, supra note 29 at art. 287(1). 49 Ibid. at Annex VIII, art. 1. 50 Ibid. at art. 287(3)-(5).


as a consequence of rising levels of carbon dioxide in sea water. Each of these will be examined briefly in turn.

2.1 Impacts of Rising Temperature

Projected increases in temperature over the next century51 will have many adverse ocean impacts that could give rise to claims under the Convention. For example, coral reefs have extremely narrow temperature tolerances of between 25-29ºC, with some species in Pacific Island Developing Countries (PIDCs) currently living near their threshold of thermal tolerance.52 Projected sea temperature increases in the Pacific region over the next century are likely to result in a “catastrophic decline” in coral cover.53 This would have serious ramifications for PIDCs. In the Pacific region, reefs provide a habitat for fish and other marine species that meet 90 percent of the protein needs of PIDC inhabi-tants54 “and represent almost the sole opportunity for substantial economic development for many of the small island nations.”55 Moreover, coastal peoples rely on the marine life found on corals for many medicinal needs, including venom from tropical cone snails that serve as a substitute for morphine, and coral skeletons that can replace bone grafts.56 A recent study in Papua New Guinea provides a snapshot of the potential ramifications

51 Hadley Centre, supra note 21. 52 William C.G. Burns, Possible Impacts of Climate Change on Pacific Island State Ecosystems (Oakland: Pacific

Institute for Studies in Development, Environment and Security, 2000) at 4, online: <http://www. earthscape.org/p1/buw01/buw01.pdf>.

53 Brian C. O’Neill & Michael Oppenheimer, “Climate Change Impacts are Sensitive to the Concen-tration Stabilization Path” (2004) 101 Proc. Nat. Acad. Sci. 16411 at 16414: “Model studies suggest that Earth may enter an era of sustained bleaching and widespread demise of reefs if global mean temperature increases by > 1ºC from recent levels.” Coral reefs in the Pacific and other regions are threatened by multiple stressors that may act in a synergistic fashion, including, in addition to cli-mate change, pollution, disease, and destructive fishing practices: Andy Bruckner et al., “Threats and Stressors to U.S. Coral Reef Ecosystems,” in The State of Coral Ecosystems in United States and As-sociated Pacific Freely Associated States (National Oceanic & Atmospheric Administration, Center for Coastal Monitoring and Assessment, 2002), online: <http://ccma.nos.noaa.gov/ecosystems/ coralreef/coral_report_2005/Threats_Ch3_C.pdf>; D.R. Bellwood et al., “Confronting the Coral Reef Crisis” (2004) 429 Nature 827; T.A. Gardner et al., “Long-Term Region-Wide Declines in Caribbean Corals” (2003) 301 Sci. 958. As Roy and Pandolfi observe, “the possible synergism be-tween local habitat degradation and predicted global change may push marine ecosystems into un-charted territory where even small perturbations could trigger large deleterious effects”: Kaustuv Roy & John M. Pandolfi, “Responses of Marine Species and Ecosystems to Past Climate Change” in Thomas E. Lovejoy and Lee Hannah eds., Climate Change & Biodiversity (New Haven: Yale Uni-versity Press, 2005) at 170. See also Zelinda M.A.N. Leão & Ruy K.P. Kikuchi, “A Relic Coral Reef Threatened by Global Changes and Human Activities, Eastern Brazil” (2005) 51 Mar. Pollution Bull. 599.

54 Ismail Serageldin, “Coral Reef Conservation: Science, Economics, and Law” in Marea E. Hatziolos et al., eds., Coral Reefs: Challenges & Opportunities for Sustainable Management 5 (Washington, D. C.: The-World Bank, 1998) at 3.

55 John E. Hay et al., “Climate Variability and Change and Sea-Level Rise in the Pacific Island Regions” (2003) SPREP 53.

56 Dafna Hopenstand, “Global Warming and its Impact on Near-Shore Communities: Protection Re-gimes for Fish and Coastal People Affected by Coral Reef Damage” (2002) 8 Wis. Envtl. L.J. 85 at 91.


of climate change in this context. The study documented a greater than 50 percent de-cline for half the fish species associated with coral reefs in the region.57

Loss of coral reefs could have similar implications in other regions, including the In-dian Ocean and Caribbean Sea.58 Overall, the World Bank has estimated that 50 percent of the subsistence and artisanal fisheries will be lost in regions where coral reefs die due to coral bleaching attributable to climate change.59

Rising sea surface temperature associated with climate change could also re-sult in a substantial decline in fisheries productivity in some regions. As Worm, et al. concluded in a recent study:

[Sea surface temperature] is the strongest predictor of species richness and spe-cies density ... showing a positive correlation over most of the observed range (5-C to 25-C) but a negative trend above 27-C mean SST ... [Climate] may mod-

ify decadal trends where lasting regime shifts occur.60

For example, one study projected that primary productivity in the central and eastern Pacific tuna fisheries will decline due to increased stratification between warmer surface waters and colder deeper waters caused by increased sea surface temperatures, resulting in a reduction in nutrient upwelling.61 Projected rises in sea surface temperatures will probably also result in major shifts in the abundance and distribution of plankton spe-cies, in turn affecting the abundance of herbivores and fish further up the food chain.62 Recent studies also indicate that rising temperatures may have adverse impacts on marine invertebrate species, many of which are critical prey species, threatening a trophic cas-cade.63

57 Geoffrey P. Jones, “Coral Reef Decline Threatens Fish Biodiversity in Marine Reserves” (2004) 101 PNAS 8251 at 8252.

58 John P. McWilliams et al., “Accelerating Impacts of Temperature-Induced Coral Bleaching in the Caribbean” (2005) 86 Eco. 2055 at 2059. Projected warming in the Caribbean could result in maximum bleaching extent (i.e., 100% of coral-bearing cells) and maximum bleaching intensity (100% of coral colonies); Hillary Mayell, “Global Warming Blamed for Caribbean Coral Kill” Na-tional Geographic News, 5 May 2000; Charles R.C. Sheppard, “Coral Decline and Weather Patterns over 20 Years in the Chagos Archipelago, Indian Ocean” (1999) 28 Ambio 472 at 475.

59 O. Hoegh-Guldberg et al., “Pacific in Peril“ Greenpeace (October 2000) 54. 60 Boris Worm et al., “Global Patterns of Predator Diversity in the Open Oceans” (2005) 309 Sci. 1365

at 1367, 1369. 61 The World Bank, (2000) Cities, Seas, and Storms, IV (Adapting to Climate Change, Papua New Guinea

& Pacific Island Country Unit, The World Bank, 2000) at 27. 62 John T. Hardy, Climate Change: Causes, Effects, & Solutions (New York: J. Wiley, 2003) at 140. See also,

Y. Tian et al., “Variations in the Abundance of Pacific Saury from the Northwestern Pacific in Rela-tion to Oceanic-Climate Changes” (2003) 60 Fisheries Res. 439 at 449-50. For example, declines in planktonic species, such as the copepod Calanus, are highly correlated with climate change, and may be the primary cause of the diminution of fish stocks in some parts of the world over the past half century. Ove Hoegh-Guldberg, “Climate Change and Marine Ecosystems,” in Lovejoy & Hannah, supra note 53 at 261. See also Michael R. Heath, “Changes in the Structure and Function of the North Sea Fish Foodweb, 1973-2000, and the Impacts of Fishing and Climate” (2005) 62 ICES J. Marine Sci. 847; Audrey Schulman, “A Warm Unwelcome,” Grist (25 January 2005), online: <http://www.grist.org/news/maindish/2005/01/25/schulman-seabirds/?source=daily>.

63 Andrew J. Lawrence & Jane M. Soame, “The Effects of Climate Change on the Reproduction of Coastal Invertebrates” (2004) 146 (Suppl. 1) Ibis 29.


Moreover, warming may result in radical shifts in the distribution of some fish spe-cies, both denying certain States control of these resources within their Exclusive Eco-nomic Zones (EEZs), as well as threatening the viability of species that may migrate to less propitious ecosystem niches.64 Recent research indicates that this is already occurring as a consequence of climate change. For example, off the coast of California, tempera-ture changes have resulted in alterations in the composition of benthic fish communities in intertidal zones.65

2.2 Impacts of Rising Sea Levels

Mangroves, also known as mangals, are a group of thirty-four tree species that grow in sheltered conditions in shallow tropical and subtropical waters66 and cover one-quarter of the world's tropical coastline.67 The trees provide a range of products for humans, in-cluding construction material, firewood, tannin, and herbal medicines.68 Moreover, man-groves are a critical ecosystem in many regions, serving as important nursery and feeding sites for nekton, including many fishery species, with surveys of fish and crustacean as-semblages around mangroves recording high levels of diversity and abundance.69 Man-grove trees also serve as filters for sediment that threaten coral reefs,70 and help to detox-ify contaminants in many areas.71 Finally, they help prevent coastal erosion and serve as a buffer against wind, wave, and water currents. This was demonstrated during the devas-tating 2004 tsunami in Asia, where coastal villages in which there were substantial stands of mangrove suffered less damage.72 Overall, economically, mangroves provide about $10,000 per hectare annually.73

64 Alison L. Perry et al., “Climate Change and Distribution Shifts in Marine Species” Sciencexpress (12 May 2005) 2, online: <www.sciencexpress.org>.

65 Ove Hoegh-Guldberg, supra note 62 at 261; S.J. Holbrook et al., “Changes in an Assemblage of Temperature Reef Fishes Associated with a Climate Shift” (1997) 7 Eco. Applications 1299.

66 Dexter Hinckley, Assessing the Condition of Tropical Island Ecosystems and their Responses to Climatic Change (1995) [unpublished manuscript supplied to the author] at 8.

67 AAAS Atlas of Population & Environment, “Mangroves and Estuaries”, online: <http://atlas. aaas.org/index.php?part=2&sec=eco&sub=mangroves>.

68 Clive R. Wilkinson & Robert W. Buddemeier, Global Climate Change and Coral Reefs: Implications for Peo-ple and Reefs (Gland: Report of the UNEP-IOC-ASPEI-IUCN Global Task Team on the Implica-tions of Climate Change on Coral Reefs, 1994) at 72; Joanna C. Ellison & David R. Stoddart, “Man-grove Ecosystem Collapse During Predicted Sea-Level Rise: Holocene Analogues and Implications” (1991) 7 J. Coast. Res. 151 at 159.

69 M. Dorenbosch, “The Relationship of Fish Reef Densities to the Proximity of Mangrove and Sea-grass Nurseries” (2004) 60 Estuarine, Coastal & Shelf Sci. 37 at 37; S.Y. Lee, “Tropical Mangrove Ecology: Physical and Biotic Factors Influencing Ecosystem Structure and Function” (1999) 24 Austl. J. Ecology 355.

70 Michael E. Huber, “An Assessment of the Status of the Coral Reefs of Papua New Guinea” (1994) 29 Marine Pollution Bull. 69 at 71.

71 Vance P. Vincente, “Littoral Ecological Stability and Economic Development in Small IslandStates: The Need for an Equilibrium” in George Maul ed., Small Islands: Marine Science & Sustainable Devel-opment (Washington: American Geophyisial Union, 1996) 274.

72 FAO, “Twenty Percent of the World’s Mangroves Lost Over the Past 25 Years: Rate of Deforesta-tion Slowing, But Still Cause for Alarm”, online: <http://www.fao.org/forestry/newsroom/en/ news/2005/highlight_108389en.html>.

73 Salif Diop, “Vulnerability Assessments of Mangroves to Environmental Change” (2003) 58 Estua-rine, Coastal & Shelf Sci. 1 at 1.


Should the IPCC’s middle-range estimates of sea-level rise come to fruition over the next century, high island mangroves with sediment accumulation rates of 45 centimeters per century could also be threatened.74 Increased salinity caused by sea-level rises may also result in decreased net productivity and stunted growth in certain species.75

Additionally, storm surges and coastal erosion related to rising sea levels could ad-versely affect many species more directly. For example, the populations of six species of sea turtles in the region are already declining, in many cases precipitously, as a conse-quence of overexploitation, coastal development, disease, and incidental catch in fisher-ies.76 Recent research indicates projected increases in sea levels associated with climate change could further imperil sea turtles by wiping out critical beach habitat, potentially reducing reproductive success.77 Rising sea levels could also result in adverse biogeo-physical effects in coastal estuaries, with negative impacts on fisheries and avian species.78

Finally, rising sea levels could cause the landward migration of coastal shorelines,79 leading to a shift of their EEZs.80 Article 56 of UNCLOS authorizes its Parties to de-clare an EEZ that may extend to “200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”81 Within their respective EEZs, States exer-cise, inter alia “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living ...”82 This includes the right to exclusively harvest the living resources found within the State’s EEZ, subject to the rules of optimal utilization set forth in the Convention,83 or if the State accords ac-cess to the nationals of other States, to establish the allowable catch of living resources,84 and to impose conservation measures on fishing operations conducted within the EEZ.85

A shift in the baseline from which States could measure their EEZs could have pro-found implications for the economic interests of such States. As Tol and Verheyen ex-plain:

The alteration of a coastline due to sea level rise will otherwise lead to a shift of the EEZ while most likely leaving unaffected the continental shelf zone. The

74 Joanna Ellison, “How South Pacific Mangroves May Respond to Predicted Climate Change and Sea-Level Rise” in Alexander Gillespie & William C.G. Burns eds., Climate Change in the South Pacific: Im-pacts & Responses in Australia, New Zealand and Small Island States (Dordrecht: Klewer, 2000) at 294.

75 Ibid. at 296. 76 Marianne Rich et al., “Predicting the Impact of Sea-Level Rise on Caribbean Sea Turtle Nesting

Habitat” (2005) 19 Conservation Biology 482 at 482, 483 & 490. 77 Ibid. at 489. 78 Thomas Knogge, Michael Schirmer & Bastian Schuchardt, “Landscape-Scale Socio-Economics of

Sea-Level Rise” (2004) 146 (Suppl. 1) Ibis 11 at 12-13; R.G. Hughes, “Climate Change and Loss of Saltmarshes: Consequences for Birds” (2004) 146 (Suppl. 1) Ibis 21 at 23-25.

79 Knogge, ibid. at 12. 80 Richard S.J. Tol & Roda Verheyen, “State Responsibility and Compensation for Climate Change

Damages: A Legal and Economic Assessment” (2004) 32 Energy Pol’y 1109 at 1116. 81 UNCLOS, supra note 29 at art. 57. The territorial sea of a State extends “to a limit not exceeding 12

nautical miles, measured from baselines determined in accordance with this Convention.” Ibid. at art. 3).

82 Ibid. at art. 56(1)(a). 83 Ibid. at art. 62(2). 84 Ibid. at art. 61(1). 85 Ibid. at art. 62(4).


overall size of a country’s EEZ would remain the same, but it would shift landwards. Since many fish stocks are dependent on the topography of the seabed rather than the distance of the coast, this could lead to fish stocks be-coming high seas stocks that formerly were located in or straddled the EEZ of a given country. Since coastal states would lose their (restricted) sovereign rights

over these stocks, such shift of EEZ could also be defined as a damage.86

2.3 Impacts of Reduced Ocean Alkalinity and Calcification Rates of Ocean

Species

As Gattuso and Buddemeier recently observed, while most concerns about rising levels of carbon dioxide in the atmosphere focus on climatic effects, there may also be direct biological effects.87 The most serious of these impacts may be on ocean species.

In the past few decades, only half of the carbon dioxide released into the atmos-phere from anthropogenic sources has remained in the atmosphere, with 30 percent of the remainder being taken up by the oceans and 20 percent by the terrestrial biosphere.88 By the end of this century, projected increases in atmospheric carbon dioxide will result in an almost threefold increase in surface ocean carbon dioxide concentrations relative to pre-industrial levels.89

When carbon dioxide dissolves into the ocean, less than 1 percent remains in this form, with the remainder breaking down into compounds of its components, for the most part HCO3

– (bicarbonate ion) and CO32– (carbonate ion).90 The dissolution of car-

bon dioxide results in the production of an acid that lowers the pH of seawater, and thus increases its acidification.91

The tremendous increase in carbon dioxide uptake in the world’s oceans that is an-ticipated during this century is likely to raise levels to over two times the magnitude ex-perienced by coral reefs over the past 40 million years.92 This, in turn, could result in lar-

86 Tol & Verheyen, supra note 80 at 1116. See also Gregory Rose & George Paleokrassis, “Compliance with International Environmental Obligations: A Case Study of the International Whaling Commis-sion” in James Cameron, Jacob Werksman & Peter Roderick, eds., Improving Compliance with Interna-tional Environmental Law (London: Earthscan, 1996) 150: “Within the 200-mile zone, 90 percent of known fisheries are enclosed.”

87 Jean-Pierre Gattuso & Robert W. Buddemeier, “Calcification and CO2” (2000) 407 Nature 311 at 311.

88 Richard A. Feely, “Impact of Anthropogenic CO2 on the CaCO3 System in the Oceans” (2004) 305 Science 362 at 362. See also Christopher L. Sabine et al., “The Ocean Sink for Anthropogenic CO2” (2004) 305 Science 367 at 367-71.

89 Ulf Riebesell et al., “Reduced Calcification of Marine Plankton in Response to Increased Atmos-pheric CO2” (2000) 407 Nature 364 at 364. See also David Archer, H. Kheshgi & E. Maier-Reiner, “Dynamics of Fossil Fuel CO2 Neutralizaton by Marine CaCO3” (1998) 12 Global Biogeochemical Cycles 259 at 276: “Invasion of fossil fuel into the oceans will sequester 70-80% of the net terrestrial CO2 on an unfolding timescale of 200-450 years depending on the magnitude of the fossil fuel re-lease.”

90 Joan A. Kleypas et al., “Geochemical Consequences of Increased Atmospheric Carbon Dioxide on Coral Reefs” (1999) 284 Science 118 at 118.

91 Ibid. 92 Roy & Pandolfi, supra note 53 at 170.


ger pH changes than have been inferred from the geological record in the past 300,000 years.93

Acidification of the oceans will result in a decrease in the concentration of carbonate and related ions that reef building and other calcifying organisms94 draw upon to pro-duce calcium carbonate.95 Recent research indicates that calcification rates could decline by between 16-83 percent by 2100.96 This is expected to result in weaker skeletons in coral organisms, reduced extension rates, increased susceptibility to erosion,97 and heightened susceptibility to storm damage and disease.98 Reefs in the Red Sea, west cen-tral Pacific, and Caribbean would be most imperiled under these conditions.99

3. POTENTIAL BARRIERS TO CAUSES OF ACTION UNDER UNCLOS

Any action under UNCLOS would face many imposing challenges, some of which are described below.

3.1 Potential Parties

While the U.S. might appear to be the most logical State to bring an action against given its status as the leading producer of anthropogenic greenhouse gas emissions, as well as its failure to ratify Kyoto, it is not currently a Party to the Convention.100 The Bush ad-

93 Ken Caldeira & Michael Wickett, “Anthropogenic Carbon and Ocean pH” (2003) 425 Nature 365 at 365. A doubling of atmospheric carbon dioxide levels from pre-industrial levels will lower pH by 0.3 pH units: Graeme C. Hays, Anthony J. Richardson & Carol Robinson, “Climate Change and Marine Plankton” (2005) 20 Trends in Ecology and Evolution 337 at 341. It is projected that pH may de-cline by 0.7 pH units by 2300, which “will exceed anything experienced in the past 300,000 yr [sic] of earth history”: Anja Engel et al., “Testing the Direct Effect of CO2 Concentration on a Bloom of the Coccolithophorid Emiliania huxleyi in Mesocosm Experiments” (2005) 50 Limnology & Oceanography 493 at 494.

94 An example of non-coral reef builders is rudistid bivalves, which secrete calcium carbonate shells or skeletons. Roy & Pandolfi, supra note 53 at 164.

95 O. Hoegh-Guldberg et al., “Pacific in Peril” Greenpeace Rep., (October 2000) at 14. 96 Riebesell, et al., supra note 89 at 366. See also, Chris Langdon, “Review of Experimental Evidence

for Effects of CO2 on Calcification of Reef Builders” Paper presented during the Proceedings of the 9th International Coral Reef Symposium, October 2000) at 1093: citing empirical evidence of substantial declines in calcification rates under conditions of lower pH. For a dissenting view, see Ben I. McNeil, Richard J. Matear & David J. Barnes, “Coral Reef Calcification and Climate Change: The Effect of Ocean Warming” (2004) 31 Geophysical Res. Letters L22309 at 2: “Annual average coral reef calcification rate will increase with future ocean warming and eventually exceed pre-industrial rates by about 35% by 2100.”

97 Supra note 90 at 119. 98 Supra note 96 at 1097. 99 Supra note 90 at 119. Reduced carbonate precipitation could also adversely affect the formation of

calcareous skeletons by planktonic microorganisms, particularly coccolithophorids, “major contribu-tors to marine primary production and an important component of open ocean and coastal marine ecosystems.” Riebesell, et al., supra note 89 at 364. See also Engel, et al., supra note 93 at 495.

100 The primary reason that the Reagan administration cited for refusing to become a party to UNCLOS was its concern over provisions in Part XI of the treaty, which established a deep seabed mining regime. Statement by President Ronald Reagan, U.N. Convention on the Law of the Sea – 1982, Council of Ocean Law (document available from the author); John A. Duff, “A Note on the United States and the Law of the Sea: Looking Back and Moving Forward” (2004) 35 Ocean Development & Int’l L. 195 at 197.


ministration has expressed its support for ratification, and the Senate Foreign Relations Committee voted unanimously in 2003 to send the Convention to the full Senate.101 However, its fate remains uncertain given continued opposition by some powerful con-servative groups.102

Some commentators have suggested that most provisions of UNCLOS now consti-tute customary international law,103 a position that the Reagan administration also em-braced for “most” of its provisions.104 Thus, it might be possible, in theory, for a moving Party to invoke many Convention provisions against the U.S. in another forum, such as the International Court of Justice.105 However, the U.S. withdrew its acceptance of the Court’s compulsory jurisdiction in the 1980s, and it is highly unlikely that it would con-sent to jurisdiction by special agreement in a case involving climate change issues.106

101 Yann-Huei Song, “Declarations and Statements with Respect to the 1982 UNCLOS: Potential Legal Disputes between the United States and China after U.S. Accession to the Convention” (2005) 36 Ocean Devel & Int’l L. 261 at 261.

102 Martin Schram, “A Sunken Treaty,” Scripps Howard N. Service (12 April 2005) (Lexis, Newsfile); Nicholas Brulliard, “Oil Firms See Hope for Future in Treaty,” Atlanta Const. (26 March 2005) (Lexis, Newsfile) at 1E.

103 Jon M. Van Dyke, “Giving Teeth to the Environmental Obligations in the LOS Convention” in Alex G. Oude Elferink & Donald R. Rothwell, eds., Oceans Management in the 21st Century: Institutional Frameworks & Responses (Leiden: Martinus Nijhoff, 2004) 167; Strauss, supra note 25 at 10188; Dennis Culley, “Global Warming, Sea Level Rise and Tort” (2002) 8 Ocean & Coastal L.J. 91 at 111.

104 48 Fed. Reg. 10605 (Mar. 10, 1983), 3 C.F.R. 22 (1984). The administration pledged that the United States would adhere to “most” of the provisions of the Convention, while carving out a claim to sea bed mining rights within 200 nautical miles of its shoreline.

105 Statute of the International Court of Justice, [1946] I.C.J. Acts, Art. 36, http://www.icj-cij.org/icjwww/ ibasicdocuments/ibasictext/ibasicstatute.htm#Article_36. Under the Statute, jurisdiction can be ob-tained by the Court under any of the following circumstances: 1. All cases referred to the Court by disputant Parties; 2. Matters provided for under the UN Charter, or treaties and conventions in force; 3. Where State Parties have accepted compulsory jurisdiction for disputes concerning treaty interpretation, questions of international law, facts that would constitute breach of an international obligation, or reparations for breach of an international obligation.

106 The United States withdrew its consent to compulsory jurisdiction under Article 36(2) after an action was initiated against it in the International Court of Justice (I.C.J.) by Nicaragua, alleging, inter alia, il-legal use of force and violation of Nicaragua’s sovereignty: Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) “Merits” (27 June 1986) I.C.J. REP. 14; U.S. Department of State, US Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice (18 January 1985), 24 I.L.M. 246, 248. However, even assuming that the United States were to once again assent to compulsory jurisdiction, it might very well invoke the “Connally reservation” against a moving Party in an action involving climate change damages. The reservation, which was granted to the United States as a condition for its prior acceptance of the I.C.J.’s compulsory jurisdiction under Ar-ticle 36(2), bars the Court from hearing any case involving “disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America”: 61 Stat. 1218 (1947). The United States could contend that policies im-pacting upon climate change are “essentially” within its domestic province, since they involve deci-sions about domestic policy with serious implications for many sectors of the U.S. economy, and thus invoke the Connally reservation to thwart an I.C.J. action. Moreover, under Article 36(2), a State that accepts compulsory jurisdiction is only subject to jurisdiction in actions by other States “accept-ing the same obligation.” Many of the States most likely to initiate an action against the United States for climate change damages to ocean resources, including virtually all small island States, have not accepted compulsory jurisdiction, which would thus preclude an action against the United States ab-sent its improbable voluntary consent to the Court’s jurisdiction under Article 36(1). See Declarations


3.2 Standard of Care

While the Convention establishes an obligation on the part of its Parties to “protect and preserve the marine environment,” this does not impose an absolute prohibition against pollution. Rather, this provision has been interpreted as a due diligence obligation to minimize pollution and to act with appropriate care.107 Indeed, as one commentator has noted, Article 194 of the Convention108 imbues the Parties with “wide discretion” in ful-filling their obligations by including references to “the best practicable means at their dis-posal” and “in accordance with their capabilities.”109

However, Article 235 may impose a more stringent standard of care, mandating that States are responsible for fulfilling international obligations that contribute to the protec-tion and preservation of the marine environment.110 Article 197 is also pertinent, requir-ing Parties to cooperate through competent international organizations to formulate rules, standards, and practices to protect and preserve the marine environment.111 In the context of marine pollution from or through the atmosphere, Parties are also obligated under Article 212 to take into account international mechanisms to control pollution. The provision requires its Parties to take into account “internationally agreed rules, stan-dards and recommended practices and procedures.”112 Moreover, the Parties are required to act through competent international organizations or diplomatic conferences to estab-lish measures to prevent, reduce, and control such pollution.113

The most germane international obligation in the context of potential climate change damages to the oceans would appear to be the UNFCCC. The UNFCCC should

Recognizing as Compulsory the Jurisdiction of the Court [1971] I.C.J., online: <http://www.icj- cij.org/icjwww/ibasicdocuments/ibasictext/ibasicdeclarations.htm>. Under Article 65 of the I.C.J.’s Statute, the Court may also issue a non-binding advisory opinion “on any legal question at the re-quest of whatever body may be authorized by or in accordance with the Charter of the United Na-tions to make such a request.” Bodies that may request an advisory opinion from the Court include the United Nations General Assembly, the Security Council, and many specialized agencies of the UN International Court of Justice, Organs and Specialized Agencies of the United Nations Authorized to Re-quest Advisory Opinions, online: <http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ ibasi-corgansandspecialized.html>. As the recent decision of Israel to reject an advisory opinion of the Court holding that its building of a security fence on the border of the West Bank was illegal dem-onstrates, the impact of advisory opinions may be limited: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004), Advisory Opinion, I.C.J. Rep 131 at para. 101; Eric Sil-ver, “Sharon Defies UN With Pledge to Keep Building Barrier,” The Independent, (12 July 2004), online: <http://www.independent-media.tv/item.cfm?fmedia_id=8099&fcategory_desc=Israeli% 20Palestinian%20Middle%20East%20Conflict>. Nonetheless, as Fitzmaurice observes: “advisory opinions, though not binding, nevertheless have authority as statements of law”: Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice: International Organizations and Tri-bunals” (1952) Brit. Y.B. Int’l L. 1 at 54, and, as such, may exert some influence over the conduct of States.

107 UN Secretary General, Law of the Sea: Protection and Preservation of the Marine Environment, UN Doc. A/44/461 (18 September 1989) at para. 30.

108 UNCLOS, supra note 29 at art. 194(1). 109 Daud Hassan, “International Conventions Relating to Land-Based Sources of Marine Pollution

Control: Applications and Shortcomings” (2004) 16 Geo. Int’l Envtl. L. Rev 657 at 669. 110 Supra note 29 at art. 235. 111 Ibid. at art. 197. 112 Ibid. at art. 212(1). 113 Ibid. at art. 212(3).


clearly be construed as the “competent organization” to address climate change under Article 197 of UNCLOS given the fact that it has been ratified by 189 nations, including all of the world’s major greenhouse gas emitting States.114 Moreover, the obligations un-der UNFCCC should be recognized as “international mechanisms to control pollution” under Article 212, since its overarching purpose is to control greenhouse gas emissions so as to “prevent dangerous anthropogenic interference with the climate system.”115 Fi-nally, under Article 235, the UNFCCC is clearly an international obligation that can con-tribute to the protection and preservation of the marine environment by reducing green-house gas emissions. Indeed, the UNFCCC specifically acknowledges the potential im-pacts of climate change on natural ecosystems,116 and the need for special regard of countries with fragile ecosystems.117

However, the critical issue under Articles 197, 212, and 235 of UNCLOS is likely to be the scope of the obligations of the Parties to the UNFCCC. If it cannot be estab-lished that a breach of UNFCCC obligations has occurred, then a breach of the relevant UNCLOS provisions outlined above is not likely to be found by a dispute resolution body.

A Party to UNCLOS compelled to defend against an action for climate change-related damages might argue that its obligations under the UNFCCC are overly open-ended, precluding a finding of a breach. Indeed, one of the core obligation provisions of the UNFCCC uses hortatory rather than mandatory language, merely calling on Annex I Parties118 to “aim” to reduce their greenhouse emissions back to 1990 levels by 2000.119 However, interpretation of the nature of this obligation must be read in light of Article 27 of the Vienna Convention on the Law of Treaties, which requires that treaty obliga-tions must be performed in “good faith.”120 This principle of pacta sunt servanda has also been recognized as a principle of customary international law.121 Moreover, while the U.S. has not ratified the Vienna Convention, it has recognized the principle of pacta sunt servanda as “perhaps the most important principle of international law.”122

114 UNFCCC Secretariat, “Status of Ratifications,” online: <http://unfccc.int/essential_background/ convention/status_of_ratification/items/2631.php>.

115 FCCC, supra note 2 at art. 2. 116 Ibid. at Preamble. 117 Ibid. at art. 2(8)(g). 118 Under the UNFCCC, Annex I Parties “include the industrialized countries that were members of

the OECD (Organisation for Economic Co-operation and Development) in 1992, plus countries with economies in transition (the EIT Parties), including the Russian Federation, the Baltic States, and several Central and Eastern European States.” UNFCCC Secretariat, “Parties and Observers,” online: <http://unfccc.int/parties_and_observers/items/2704.php>.

119 Supra note 2 at art. 4(2)(a)(b). 120 Vienna Convention on the Law of Treaties, 27 January 1980, U.N.T.S. 1155, at 331. The Convention has

been ratified by all major greenhouse gas emitting nations with the exception of the United States. However, the U.S. recognizes its provisions as constituting customary international law: Restatement, Third, of the Foreign Relations Law of the United States (1987) Pt. III, Introduction.

121 Samantha V. Ettari, “A Foundation of Granite or Sand? The International Criminal Court and United States Bilateral Immunity Agreements” (2004) 30 Brooklyn J. Int’l L. 205 at 252 & n. 235; Richard Hyland, “Pacta Sunt Servanda: A Meditation” (1994) 34 Va. J. Int’l L. 405 at 406.

122 Restatement, supra note 120 at para. 321 cmt. a.


Under this standard, an Annex I Party to the UNFCCC would have to demonstrate that it had taken substantive measures that evinced a good faith effort to return its emis-sions back to 1990 levels within the prescribed time period. Many States would be hard pressed to make this argument. For example, U.S. emissions rose 11.7 percent between 1990-1999.123 Yet despite steadily rising emissions throughout the decade, the Bush ad-ministration opted to reject the Kyoto Protocol and pursue an alternative that relied on vol-untary reductions,124 despite consistent evidence that, historically, voluntary approaches have abjectly failed to effect reductions in greenhouse gas emissions.125 Moreover, in 1993, the U.S. Congress rejected the Clinton Administration’s plan to reduce domestic emissions through a tax on energy fuels,126 and has twice voted down proposed legisla-tion by Senators John McCain and Joseph Lieberman127 that would have modestly re-duced U.S. greenhouse gas emissions over the next fifteen years.128

It could also be argued that some Parties, most notably the U.S. again, are failing to make a good faith effort to meet the longer-term objectives of the UNFCCC. Under Ar-ticle 4(2), Annex I Parties are required to adopt policies and measures that “demonstrate that developed countries are taking the lead in modifying longer-term trends in anthro-pogenic emissions consistent with the objective of the Convention,”129 which is “stabili-zation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”130 The U.S. government projects that its greenhouse gas emissions will rise by 42.7 percent between 2000-2020,131

123 U.S. Climate Action Report – 2002, Third National Communication of the United States of America Under the United Nations Framework Convention on Climate Change, at 28, online: http://unfccc.int/resource/ docs/natc/usnc3.pdf.

124 Supra note 7 and accompanying text; Commonwealth of Massachusetts, et al., supra note 24 at 10: EPA has resisted entreaties to regulate greenhouse gases under the Clean Air Act.

125 See A.C. Christiansen, “Convergence or Divergence?: Status and Prospects for U.S. Climate Strategy” (2003) 3 Climate Pol’y 343 at 350; United States Department of State, Bureau of Oceans and Inter-national Environmental & Scientific Affairs, Climate Change: U.S. Non-Paper (1996) at 2.

126 M. Lisowski, “The Emperor’s New Clothes: Redressing the Kyoto Protocol” (2002) 2(3) Climate Pol’y 161 at 167.

127 Senator John McCain, “Senate Casts Historic Vote on McCain-Lieberman Global Warming Bill,” 13 October 2003, online: <http://mccain.senate.gov/index.cfm?fuseaction=Newscenter.ViewPress Release&Content_id=1171>; “US Senate Rejects Mandatory Emissions Cuts,” Planet Ark, (23 June 2005), online: <http://www.planetark.com/dailynewsstory.cfm/newsid/31373/story.htm>. The proposed legislation was rejected in the U.S. Senate by a vote of 55-43 in 2003 and 60-38 in 2005.

128 The proposed legislation would have capped U.S. greenhouse gas emissions at 2000 levels in 2010, and would have required emissions to be rolled back to 1990 levels by 2016. Like the Kyoto Proto-col, it would have also established a mechanism for emissions trading. Senator Joseph Lieberman, Press Release, “Summary of Lieberman-McCain Draft Proposal on Climate Change” 8 January 2003), online: <http://lieberman.senate.gov/press/03/01/2003108655.html>.

129 Framework Convention on Climate Change, supra note 2 at art. 4(2)(A). 130 Ibid. at art. 2. Article 2 also requires that greenhouse gas stabilization occur “within a time frame suf-

ficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.” All of these considerations would be germane to an action under UNCLOS given the potential impacts of climate change on ecosystems, fisheries, and the economic development of vulnerable developing States.

131 U.S. Climate Action Report, supra note 123 at 74.


with emissions per capita also slated to increase by approximately 10 percent by 2014.132 A dispute resolution body would have very little problem viewing these projections as evidence of bad faith in complying with the UNFCCC.

A Party to UNCLOS could argue that all Parties that have not met their obligations under the provisions of the UNFCCC are liable for damages under Articles 235 and 197 of UNCLOS.133 It should also be possible to make a similar argument under the Kyoto Protocol should some of the Protocol’s Parties fail to meet their obligations, as is likely when the commitment period ends in 2012.134 Should foreseeability be the standard ap-plied to resolve a climate change action under UNCLOS, moving Parties would probably have no problem establishing that both the language of the UNFCCC and the compre-hensive assessment reports of the Intergovernmental Panel on Climate Change135 have put all States on notice in terms of climate threats, and more specifically, potential im-pacts on marine environments.136

3.3. Causality Issues

Two other imposing issues that a moving Party would face are establishing causal links between climate change and alleged damages to marine resources, and the link between a Party’s discrete greenhouse gas emissions and alleged damages. For example, in terms of the former issue, coral reefs face many other threats that may also contribute to their degradation, including terrestrial runoff,137 disease,138 predators,139 and pollution.140

Thus, it may be difficult to attribute damages solely, or even substantially, to the degrada-

132 U.S. Department of Energy, Energy Information Administration, Carbon Dioxide Emissions by Sources and Sinks, online: <http://www.eia.doe.gov/oiaf/aeo/pdf/aeotab_18.pdf>.

133 All industrialized countries are Parties to the UNFCCC. 134 Supra note 10. 135 The IPCC, comprised of 2500 climate scientists from throughout the world, was established by the

United Nations in 1988 to gather information and coordinate research related to climate change, to evaluate proposals for reducing greenhouse gas emissions, and to assess the viability of response mechanisms: General Assembly Resolution on Protection of Global Climate for Present and Future Generations of Mankind, G.A. Res. 43/53, U.N. GAOR, 2d Comm., 43rd Sess., Supp. No. 49 at 133, U.N. Doc. A/43/49 (1989). The IPCC prepares, on regular intervals, comprehensive assessments of the state of knowledge on climate change. The First Assessment Report was completed in 1990, the Second Assessment Report in 1995 and the Third Assessment Report in 2001. Intergovernmental Panel on Climate Change, About IPCC, online: <http://www.ipcc.ch/about/about.htm>. All three reports included extensive discussions of the potential impacts of climate change on marine environments.

136 For example, the IPCC’s Third Assessment Report’s sixth chapter sets forth the current state of knowledge of the potential impacts of climate change, concluding, inter alia, that it could result in “large scale biological responses in the ocean” that could profoundly affect the abundance and dis-tribution of fish stocks in the future: Intergovernmental Panel on Climate Change, Working Group II, Climate Change 2001: Impacts, Adaptation, and Vulnerability (Geneva: IPCC, 2001).

137 D.R. Bellwood et al., “Confronting the Coral Reef Crisis” (2004) 429 Nature 827 at 827. 138 Toby A. Gardner, “Long-Term Region Wide Declines in Caribbean Corals” (2003) 301 Science 958

at 960. 139 Ibid. 140 Jordan M. West & Rodney V. Salm, “Resistance and Resilience to Coral Bleaching: Implications for

Coral Reef Conservation and Management” (2003) 17 Conservation Biology 956 at 957; R.J. Jones & A.L. Steven, “Effects of Cyanide on Corals in Relation to Cyanide Fishing on Reefs” (1997) 48 Mar. & Freshwater Res. 517.


tion of reefs. Establishing links of this nature will require very expensive research which would stretch the resources of small and vulnerable States.141

In terms of the latter issue, it will obviously not be possible to ascribe responsibility for marine damages to the emissions of any individual country. An equitable and man-ageable approach is suggested by Allen, who advocates that liability should be appor-tioned according to the emissions of individual States from a designated date.142 How-ever, it is by no means clear that this innovative approach will be embraced by ITLOS or any of the alternative bodies that might hear such a case. A more traditional standard that might also be advanced by a moving Party would be that applied by U.S. courts in tort litigation potentially involving multiple tortfeasors. Under this standard, an actor’s alleg-edly tortious conduct can be construed as a legal cause of harm if the conduct is a “sub-stantial factor” in bringing it about. ‘Substantial’ means that the defendant’s conduct “has such an effect in producing the harm as to lead responsible men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibil-ity.”143

A Party facing such an action might also argue that all other responsible Parties must be brought into the dispute; however, a moving Party could cite the ICJ’s decision in the Nauru case,144 and Article 47 of the International Law Commission’s Draft Articles on Responsibility of States for International Wrongful Acts,145 both of which support the proposition that a moving Party need not bring claims against all possible Parties where joint liability may lie.

4. CONCLUSION

Given the failure of the world’s major greenhouse gas emitting nations to meaningfully address climate change domestically or through international regimes, climate change liti-gation has become an unavoidable alternative for many States that may bear the brunt of climate impacts during this century and beyond. While very few of the drafters of UNCLOS may have contemplated that it would one day become a mechanism to con-front climate change, it clearly may play this role in the future. At the very least, the spec-

141 See generally, Choon-ho Park, “Judicial Settlement of International Maritime Disputes: An Overview of the Current System” (1999) 28 Stetson L. Rev. 1035 at 1044: “In the case of many developing countries, the availability of domestic expertise and financial resources is an obstacle to access to the courts, because international litigation is an expensive undertaking.” See also David A. Grossman, “Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation” (2003) 28 Colum. J. Envtl. L. 1 at 6.

142 Myles Allen, “Liability for Climate Change” (2003) 421 Nature 891 at 892. The residency time of carbon dioxide in the atmosphere should be taken into account to help determine an appropriate date from which to calculate countries’ emissions to allocate liability for the damages caused by cli-mate change. Carbon dioxide has a residency time of approximately 100 years in the atmosphere. Historical emissions thus play a vital role in determining the present concentration of carbon dioxide in the atmosphere. A country’s current emissions may therefore make a very small contribution to the actual agent responsible for causing the observed damage. Liability for damages caused by cli-matechange should be allocated based on a country’s current and historical emissions.

143 Grossman, supra note 141, quoting Restatement, Second, of Torts, (1965), cmt. a. 144 Certain Phosphate Lands in Nauru (Nauru v. Australia), 1992 I.C.J. Rep. 240. 145 International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful

Acts, 53d Sess., (2001) at art. 47, online: <http://www.un.org/law/ilc/texts/State_responsibility /responsibilityfra.htm>.


tre of litigation may help to deepen the commitment of States to confront the most pressing environmental issue of our generation.146

146 Culley, supra note 103 at 112.

potential causes of action for climate change damages in

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