In efforts to curb climate change, our oceans remain neglected

Do we have adequate legal and policy frameworks to address these complex issues in protecting our oceans?

Oceans which are critical for regulating the global climate are also extremely vulnerable to climate impacts. The effects of climate change on the oceans are far more visible across the world than ever before. These adverse effects include depletion of marine habitats and biodiversity, the collapse of fragile ecosystems of the polar regions, and ever-increasing frequency of hurricanes and cyclones.

Recently, two of India’s largest metropolitans– Kolkata and Mumbai – have faced oceanic calamities in the form of cyclones Amphan and Nisarga. These also happen to be the strongest tropical cyclones to have hit India’s important business and trade hubs in recent times. With the increasing threats of climate change, it is certain that the intensity of similar cyclones and storms will only increase in the future. The uncertainty looms in the numbers of cyclones that may impact us in the coming years. However, it is evident from scientific research that warmer ocean temperature and higher sea-levels are contributing to more instances of tropical storms.

The ocean roughly absorbs 30 per cent of carbon dioxide from the atmosphere – primarily generated due to human activities. It is turning our oceans warmer, reducing the oxygen levels in the water and leading to acidification. The question then arises: do we have adequate legal and policy frameworks to address these complex issues in protecting our oceans? Global framework agreements and multilateral treaties relevant to this debate comprise:

  • the United Nations Convention on the Law of the Sea(UNCLOS), signed in 1982, is the framework agreement which defines the rights and responsibilities of nations with respect to their use of the world’s oceans, the management of marine natural resources within their Excusive Economic Zones (EEZ), and establishes guidelines for businesses.
  • the Straddling Fish Stocks Agreement, signed in 1995, is a multilateral treaty designed to further implement provisions of UNCLOS and to ensure the long-term conservation and sustainable use of highly migratory fish stocks.
  • the Paris Agreement, adopted in 2015, at the 21st Conference of the Parties (COP 21) of the UN Framework Convention on Climate Change (UNFCCC) is the umbrella agreement for holding global average atmospheric temperature rise by the end of this century to “well below 2°C” above pre-industrial levels.

UNCLOS and the Paris Agreement

UNCLOS is a relatively successful international framework agreement (as opposed to the Paris Agreement for which gathering consensus among nations was a long-drawn and arduous process), covering all matters relating to the regulation of oceans. Under UNCLOS, relevant clauses for the protection of the marine environment include:

  • Article 192, which casts a direct obligation on nations to protect and preserve the marine environment.
  • Article 194, which casts a duty on nations to adopt necessary measures to prevent, reduce and control pollution from any source including transboundary pollution; to protect fragile ecosystems and habitats of endangered species and marine life; and, to ensure ‘due diligence obligation’ to regulate and control activities of private and public operators.
  • Article 207, which casts a duty on nations to protect against land-based sources of pollution.
  • Article 212, cats a duty on nations to adopt laws and regulations to prevent pollution of the marine environment through the atmosphere.

However, it is unclear if these provisions bind signatory nations to take necessary measures for the protection of oceans against climate change impacts. On the other hand, the Paris Agreement, which covers all issues relating to climate change in terrestrial and atmospheric spheres, has a very limited reference to the ocean. While adopting climate change adaptation and mitigation measures, the Paris Agreement primarily has a terrestrial focus, and only indirectly includes oceans and marine biodiversity. Therefore, leaving significant policy gaps in addressing issues of climate change through ocean-based practices.

There needs to be increased coordination between the two framework agreements to be able to fully address climate change, which is perhaps difficult to achieve due to the politics surrounding the Paris Agreement. In spite of a review conference held a year after the Paris Agreement had been in place, UNCLOS does not reflect the objectives of the Paris Agreement, and therefore, fails to address the impact of climate change on the world’s oceans.

Atmospheric, terrestrial and oceanic impacts in relation to climate change are all interlinked and therefore need a collective framework to address the issue. Piecemeal legislations are not the solution to the complex and global issue of climate change. The health of the oceans is critical for a sustainable future for all, but more so for coastal communities and citizens of small-island nations. In the meantime, it remains to be seen if the two global frameworks can be closely aligned to be more effective in dealing with climate change. In any case, the need is imperative.

Authors

Nishant Sirohi

Nishant is a Law and Society Fellow at Tandem Research. He is trained as an advocate, and his research interest is in the relationship between constitution law, human rights and development - issues of poverty, national and global inequalities and environmental challenges. Previously, he worked as a Research Assistant at the Chamber of Senior Advocate Indira Jaising, Supreme Court of India (January 2019 - April 2020). Nishant completed his B.A., LL.B. (Honours) from Aligarh Muslim University, Aligarh in June 2017 and a Post-Graduate Diploma in International Law & Diplomacy from the Indian Society of International Law, New Delhi (2018 – 2019).