1 Potential Causes of Action for Climate Change Impacts under the United Nations Fish Stocks Agreement Dr. Wil Burns, SCU Law 1. Introduction

• On a parallel track to the domestic climate change litigation that’s been

initiated, a number of international actions have either been initiated or contemplated in judicial or quasi-judicial fora.

• The two “live” international cases at this point are: o In 2005, the Inuit people of Canada and Alaska have filed a petition

with the Inter-American Commission on Human Rights, alleging human rights violations associated with the failure of the U.S. to curb its greenhouse gas emissions

It requested that the Commission prepare a report recommending that the U.S., inter alia:

• Adopt mandatory measures to limit its greenhouse gas emissions;

• Take into account the impact of U.S. greenhouse gas emissions on Arctic and Inuit before approving major government policies;

• Establish a plan to protect Inuit culture and resources. Petition was rejected by the Commission in December 2006

• However, the Commission subsequently agreed to reconsider the petition, and held a hearing in March 2007, no decision yet.

o Between 2004 and 2006, NGOs from several countries submitted five petitions to the World Heritage Committee, requesting that it list several World Heritage sites on the “list of World Heritage in Danger” under the World Heritage Convention.

The petitions contended that each of these sites, which included Sagarmatha National Park in Nepal; Belize’s Barrier Reef Reserve System and the Great Barrier Reef in Australia were being imperiled by climate change;

The petitions called for State Parties to the World Heritage Convention to adopt effective mitigation strategies, essentially calling for drastic cuts in greenhouse gas emissions;

At its 30th meeting in 2006, the World Heritage Committee rejected the petitions, opting instead for a “Strategy to Assist States Parties to Implement Appropriate Management Responses” which emphasized adaptation and internal mitigation responses;

2 • However, the Committee did indicate that listings on the List of World Heritage in Danger for climate damages would be considered on a case by case basis.

o Given the limitations of these actions, some States and legal scholars have begun exploring alternative forums in which to bring actions to compel effective responses to climate change.

This presentation will look at one of these potential forums, the Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks (hereinafter “Fish Stocks Agreement)

In this presentation, I will [SLIDE 2]:

1. Define “straddling stocks” and “highly migratory species” and give some examples;

2. Describe the potential impacts of climate change on straddling and highly migratory stocks;

3. Outline the history of the Fish Stocks Convention and provisions germane to a cause of action for climate change impacts;

4. Briefly discuss potential barriers to such an action. 2. Overview: Straddling and Highly Migratory Stocks A. For those of you who don’t spend a lot of time in the field of fisheries law: What are “straddling stocks” and “highly migratory species”?

b. “Straddling stocks” are species that migrate or occur both within the 200 mile Exclusive Economic Zones (EEZs) accorded coastal States under the Law of the Sea Convention and the high seas, or between the 200 EEZs of two or more States [SLIDE 3]

i. The most important sources of straddling stocks (mainly demersal) seem to be the Northwest and Southeast Pacific areas followed by the Northeast Pacific and the Southwest Atlantic

1. Prominent examples of straddling stocks include Alaskan Pollock, Atlantic cod, hake, halibut

b. “Highly migratory species” are fish species that have wide geographic distribution and undertake significant migrations, frequently thousands of miles

i. Highly migratory species include many species of tuna and tuna-like species, oceanic sharks, mackerel, saurie, pomfret, swordfish, marlin, and sailfish [SLIDE 3]

3 c. In aggregate, highly migratory and straddling stocks species

account for roughly 20 percent of the total marine catch and include some of the most economically valuable fish populations

3. Potential Impacts of Climate Change

A. Temperature impacts: a. Because fish species are ectothermic (cold-blooded), water

temperature is the primary source of environmental impact on these species, with implications for growth and maturity rates, distribution and migration patterns, and incidence of disease;

b. Projected increases in ocean temperatures this century associated with climate change are likely to have adverse impacts on many fish species, including straddling stocks and HMS:

i. For example, the range of colder water fish species, such as capelin, polar cod and Greenland halibut, is likely to shrink, resulting in a decline in abundance;

ii. A decline in nutrient upwelling as a consequence of increased stratification between warmer surface waters and colder deep water could also result in a decline in bigeye and yellowfin tuna in the central and western Pacific

iii. Warming oceans could also radically change the distribution of some straddling stocks and high migratory species.

1. For example, rising ocean temperatures could result in a shift of the distribution of herring northward, upsetting a delicate fisheries agreement in the Northeast Atlantic between coastal States who harvest herring within their EEZs and distant water fishing nations

iv. Strong shifts in distribution of prey species associated with warming trends could also adversely affect species. For example, biogeographic shifts of copepods in the North Sea might ultimately spell the doom of cod stocks there.

B. Direct Biological Impact: a. Finally, there may be direct biological impacts of introducing huge

amounts of additional carbon dioxide into oceans. b. Rising CO2 levels will result in substantial drops in ocean pH by the

end of this century, which could imperil reef and shell building organisms by substantially reducing their ability to form calcium carbonate shells

1. For example, it could spell the doom of a group of snail species, the pteropod [SLIDE 5]

a. Pteropods are an important prey species of several straddling stock species in the Ross Sea, including North Pacific salmon, herring and cod

4

4. Climate Change and the Fish Stocks Agreement

A. UNFSA was adopted in 1995 as a response to marked declines in many straddling stocks and highly migratory species, primarily as a response to the increasing pressures on these stocks as coastal State Parties to the UNCLOS established 200-mile EEZs

i. Enhanced fishing technologies also played a role in increasing pressure on these stocks

B. While UNCLOS contained provisions for management of straddling stocks and HMS’s by coastal states and DWFNs, they are precatory in nature, i.e. only calling for parties to “seek to agree” upon management measures or to cooperate “with a view” to ensure conservation.

C. The Fish Stocks Agreement entered into force in 2001 and currently has 68 Parties, including most States with significant interests in international fisheries, including the United States

D. The primary focus of the Fish Stocks Agreement is clearly on the harvesting of fish species

i. It seeks to engender cooperation between coastal states and high seas fishing States to agree upon necessary measures for conservation of stocks in the high seas areas and straddling stocks through direct agreements and cooperation in Regional Fisheries Management Organizations

E. However, I would argue that the FSA also has several provisions that could be used to implement pressure on Parties to pursue effective climate change policies:

i. The Agreement clearly contemplates regulation of other threats to straddling and highly migratory stocks [SLIDE 6]:

1. Article 5(a): mandates any measures necessary to ensure the long-term sustainability of straddling and high migratory species;

a. Thus, to the extent that climate change is a potent anthropogenic stressor, there is an obligation on the Parties

2. Even more on point, Article 5(d) mandates assessment of non-fishing factors’ impacts on straddling stocks and HMS’s, including environmental stressors;

a. Clearly, could include climate change impacts 3. Third, Article 5(f) mandates minimization of “pollution”

a. While the Straddling Stocks Agreement doesn’t define the term “pollution,” given the close relationship of the agreement to UNCLOS, it would seem reasonable to apply UNCLOS’s

5 definition of this term which is “the introduction by man, directly or indirectly, of substances or energy into the marine environment”

i. Given the direct and adverse impacts of carbon dioxide on ocean species as a consequence of ocean acidification, the rapidly rising rates of carbon dioxide being introduced into the oceans as a result of the burning of fossil fuels and other activities would make it reasonable to construe carbon dioxide as a polluting “substance” for the purposes of Art. 5(f)

ii. Moreover, the heating of the oceans associated with climate change would likely be construed by a dispute resolution body as the introduction of “energy” since UNCLOS has construed the introduction of heated waste water in this manner.

4. Finally 5(g) requires protection of ocean biodiversity, which clearly is threatened by climate change during this century and beyond

ii. Thus, to the extent that climate change may result in a diminution of certain stocks, or alter their distribution in a way that adversely affects the interests of discrete Parties, a cause of action could arise under the obligations in Article 5

F. Dispute resolution: 1. Rare among international environmental agreements,

UNFSA provides for a binding dispute resolution mechanism where efforts to resolve the dispute through non-binding methods is unavailing

a. Under Article 30, the Fish Stocks Agreement applies the dispute resolution mechanism set out in Part XV of UNCLOS to any dispute under the Agreement, even where one or more of the disputants are not Parties to UNCLOS.

b. Part XV of UNCLOS, in turn, provides for four potential fora in which to settle disputes [SLIDE 7]

c. 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 must be submitted to binding arbitration unless the Parties agree otherwise

6 2. Remedies:

a. First, an injured party in a dispute resolution forum under the Agreement, could seek to compel a party to fulfill its Article V obligations described above by enacting effective measures to reduce anthropogenic greenhouse gas emissions, thus ameliorating potential impacts on fish species;

b. Second, the Straddling Stocks Agreement adopts the well-recognized “no harm rule” of international environmental law, providing for the possible collection of damages if State responsibility can be established under international law [SLIDE 8]

i. I believe we could ascribe responsibility to Party to Straddling Stocks Agreement whose failure to address climate change has resulted in damage to fish stocks in two ways:

1. Under the UNFCCC, to which every major greenhouse gas emitting State is a party, provides for responsibility for creating transboundary damage associated with climate change [SLIDE 9]

2. Could argue state responsibility for transboundary damage under CIL

G. Potential Parties: 1. U.S. is the most reasonable party to bring action

against since it has rejected Kyoto and emphasized voluntary measures that by its own admissions will likely result in emissions rising to 35% above 1990 levels by 2012 and more than 50% by 2025

2. However, given the fact that many of the parties to the Kyoto Protocol may not even fulfill their modest commitments, and have dragged their feet on long-term commitments, actions could be targeted at others

a. And, fast-growing developing States e.g. China and India might be potential parties to bring an action against in the future should they become Parties to the Agreement

7 5. Potential Barriers to UNFSA Actions

A. General Causation: 1. In many cases, declines of fish stocks or shifts in distribution may be

attributable to a number of factors other than climate change, including overfishing, habitat destruction, or diminution of prey species

2. However, this shouldn’t be an absolute barrier to a Fish Stocks Agreement action:

a. Courts are increasingly employing statistical probability analysis to support a finding of liability when there is a reasonable level of probability that an environmental stressor may have caused or contributed to a harm;

b. Second, the Fish Stocks Agreement provides for wide application of the precautionary approach to protect living marine resources.

i. Thus, even under scenarios of uncertainty about a given threat “[t]he absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.”

ii. While this provision might not be helpful in obtaining damages, it would provide a rationale for imposing the conservation obligations under Article 5.

B. Specific Causation: a. The target of a climate-related UNFSA action might argue that

climate change is caused by a multitude of anthropogenic sources, and thus, any specific harm cannot be attributable to a specific Party, even a large greenhouse emitting State such as the United States.

b. This may prove to be an imposing barrier to actions for damages. i. However, this argument wouldn’t be that germane in cases

where a Party was only seeking a commitment by the targeted Party to fulfill its “duty to cooperate” under the treaty by enacting effective conservation measures

1. This is an obligation that inheres purely by the fact that a State is a Party to the agreement, irrespective of their overall contribution to the problem.

c. Reluctance of Dispute Resolution Bodies to Address Climate Change.

i. Some domestic courts addressing climate change issues have shown a reluctance to address the arcane scientific issues associated with such issues;

1. Might be addressed by disputant Parties by opting for a special arbitral panel provided for under the Law of the Sea Convention/Fish Stocks for these cases

a. Special arbitral panels can hear cases, in among other categories, those involving

8 fisheries or marine environmental issues [SLIDE 10];

i. And special arbitral panels draw their panelists from the Food and Agriculture Organization, the United Nations Environment Program and the Intergovernmental Oceanographic Commission, all of whom have experts on the nexus of fisheries and climate change [SLIDE 11];

1. And, notably, U.S. opted for special arbitral panels under UNFSA as its preferred dispute resolution forum.

ii. A UNFSA dispute resolution panel might also be reluctant to address issues that are far abreast of the primary focus of the agreement, i.e. cooperation on the harvest of fish;

iii. UNFSA might be afraid to issue decisions that undercut their legitimacy because a hegemon e.g. the U.S. might choose to ignore its judgment

1. This may be have been the reason for the incredibly tepid responses of the Inter-American Commission and the World Heritage Committee

iv. Realpolitik 6. Conclusions

In a perfect world, the threat of climate change would be effectively

addressed through the international institutional responses developed in

the 1990s. Unfortunately, the specter of climate change looms larger now

than a decade ago, and the prospects for adequate responses within the

UNFCCC framework appear increasingly remote. Now more than ever,

those most vulnerable to the impacts of climate change must explore

alternatives that may finally galvanize the major greenhouse emitting

States into action. UNFSA is one option that deserves further exploration.

Alternative is the following: [SLIDE 12]