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Washington Journal of Environmental Law & Policy

Abstract

Ocean acidification—the rise in ocean acidity due primarily to the absorption of carbon dioxide (CO2) from the atmosphere—is often thought of as a consequence of climate change; however, it is a separate, albeit very closely related, problem. Despite their common driver, the processes and impacts of ocean acidification and climate change are distinct and it should not be assumed that policies intended to alleviate climate change will simultaneously benefit the oceans. Indeed, some proposed climate change policy interventions, such as geoengineering schemes or the reduction of non-CO2 greenhouse gases, either do nothing to alleviate increasing ocean acidification or have the potential to exacerbate it. Ultimately, climate change and ocean acidification are two manifestations of the one problem, anthropogenic carbon dioxide emissions, and it is only with its reduction that the most serious impacts of both phenomena can be avoided. Therefore, any efforts to regulate these emissions should consider both climate change and ocean acidification. However, such attempts raise questions about the ability to incorporate ocean acidification into existing environmental treaties due to limitations in their mandates. This is particularly pertinent to the workings of the United Nations Framework Convention on Climate Change (UNFCCC, also referred to as the Convention), as it is widely recognized as the preeminent regime tasked with the stabilization of greenhouse gases in the atmosphere, including carbon dioxide. Applying the basic principles of treaty interpretation, as per the Vienna Convention on the Law of Treaties, I contend that ocean acidification can be included in the workings of the UNFCCC and that it is justifiable within the scope of the treaty’s mandate to do so. While it may be pragmatic for the UNFCCC to consider ocean acidification in its efforts to reduce carbon dioxide, this has, to date, not occurred in any meaningful way. The only mention of the phenomena in any of the outcome documents of the Conference of the Parties (COP) is within a footnote of the 2010 Cancun Agreements. Rachel Baird and colleagues suggest that this apparent dearth of policy making can be attributed to the structural limitations of the UNFCCC which render it “incapable of adequately addressing ocean acidification.” Rakhuyn Kim concludes that, due to limitations in the Convention’s mandate, future incorporation of this issue would be a difficult task at best. However, it is the contention of this paper that these interpretations present a very narrow and static reading of the Convention, one that does not accurately reflect the “ordinary meaning” of the text nor its “purpose,” crucial elements in interpreting a treaty, as set forth by the Vienna Convention on the Law of Treaties. Indeed, Heidi Lamirande suggests that “[t]he UNFCCC should be read as a document that changes according to the surrounding environmental circumstances, not as a document stuck in time.” In addition, others within the academic and policy communities appear to interpret the mandate of the UNFCCC as being broad enough to read-in ocean acidification.

First Page

612

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