Protecting the marine environment from the impacts of climate change: A regime interaction study

• Published date: 01 April 2023
• Author: Bastiaan Ewoud Klerk
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/reel.12487

ORIGINAL ARTICLE

Protecting the marine environment from the impacts of

climate change: A regime interaction study

Bastiaan Ewoud Klerk

Norwegian Centre for the Law of the Sea, UiT

The Arctic University of Norway, Tromsø,

Norway

Correspondence

Bastiaan Ewoud Klerk, Norwegian Centre for

the Law of the Sea, UiT The Arctic University

of Norway, Tromsø, Norway.

Email: bastiaan.e.klerk@uit.no

Abstract

As the oceans are heavily impacted by climate change, effective regulatory responses

are needed to mitigate, as well as to adapt to, these adverse effects. Problematically,

however, neither the international climate change regime nor the international law of

the sea specifically addresses the adverse effects of climate change on the oceans. This

article analyses the interactions between these regimes, seeking to illuminate how Part

XII of the United Nations Convention on the Law of the Sea (UNCLOS) on the protec-

tion and preservation of the marine environment ought to be interpreted in light of the

Paris Agreement. As such, the limits of UNCLOS' capacity to grow and evolve as a ‘liv-

ing instrument’are explored. The article finds that the standard of conduct set by Part

XII is informed by the Paris Agreement and the due diligence obligation that flows from

it, which functions as a minimum threshold. States are, additionally, required to take

measures that are specifically designed to protect the marine environment from the

adverse effects of climate change and pollution from carbon dioxide.

1|INTRODUCTION

As global temperatures continue to rise, the impacts of climate change

are becoming increasingly tangible. What is often forgotten is that

these effects are only a fraction of their potential severity, were it not

for the oceans. The oceans play a key role in regulating the Earth's cli-

mate and mitigating the rise of global temperatures, as they have

taken up 90 percent of the excess heat in the climate system.

1

It is

thus unsurprising that the oceans, too, are getting warmer. The global

upper ocean has warmed since the 1970s as a result of human influ-

ences, causing a range of detrimental impacts. Large-scale coral

bleaching events are occurring at an increasing frequency,

2

the

oceans' oxygen content is decreasing,

3

and ecosystems are disrupted

as certain species are forced to migrate poleward, seeking refuge in

cooler waters.

4

The oceans are also an important carbon sink, having

absorbed 20–30 percent of total anthropogenic carbon dioxide (CO

2

)

emissions.

5

However, as a consequence of this absorption, large-scale

acidification (i.e. the decrease in the pH value of the oceans) of the

surface open ocean is occurring.

6

The oceans cannot, however, con-

tinue to shield us from climate change indefinitely. There is growing

scientific evidence suggesting that as the oceans get warmer and

more acidic, their ability to store carbon is reducing.

7

Given the immense threat posed to the oceans by climate change,

which in turn affects the global climate system as a whole, it is evident

that effective regulatory responses are needed to mitigate, as well as

adapt to, these adverse effects. Problematically, however, neither the

1

Intergovernmental Panel on Climate Change (IPCC), ‘Summary for Policymakers’in HO

Pörtner et al (eds), IPCC Special Report on the Ocean and Cryosphere in a Changing Climate

(IPCC 2019) 9.

2

Between 2014 and 2017 alone, 75 percent of tropical reefs experienced bleaching-level

heat stress, with nearly 30 percent reaching mortality level; CM Eakin et al, ‘Unprecedented

Three Years of Global Coral Bleaching 2014–17’(2018) 99 Bulletin of the American

Meteorological Society S74.

3

A Oschlies, ‘Drivers and Mechanisms of Ocean Deoxygenation’(2018) 11 Nature

Geoscience 467.

4

IPCC, ‘Summary for Policymakers’in V Masson-Delmotte et al (eds), Climate Change 2021:

The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of

the Intergovernmental Panel on Climate Change (Cambridge University Press 2021) 1, 12–13.

5

IPCC (n 1).

6

IPCC (n 4) 5–6.

7

M Marsay et al, ‘Attenuation of Sinking Particulate Organic Carbon Flux through the

Mesopelagic Ocean’(2015) 112 Proceedings of the National Academy of Sciences of the

United States of America 1089, MC Rérolle et al, ‘Seawater-pH Measurements for Ocean-

Acidification Observations’(2012) 40 Trends in Analytical Chemistry 146.

Received: 12 March 2022 Accepted: 8 December 2022

DOI: 10.1111/reel.12487

44 © 2022 Wiley Periodicals LLC. RECIEL. 2023;32:44–56.wileyonlinelibrary.com/journal/reel