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Global climate change, the Great Barrier Reef and our obligations

By Don Rothwell and Tim Stephens
Posted Friday, 19 November 2004

The health of the Great Barrier Reef, the world’s largest World Heritage Area, is a key indicator of global climate change. Increases in sea temperature of as little as 1°C may lead to coral bleaching, the eventual death of corals and cause severe damage to dependent ecosystems. In 1998 and 2002 the Great Barrier Reef experienced two mass coral bleaching events and climate change is widely considered to pose the greatest long-term threat to the reef. It is predicted that without substantial reductions (“deep cuts”) in global emissions of anthropogenic greenhouse gases, the corals of the Great Barrier Reef will be decimated and coral cover worldwide will decrease to less than 5 per cent on most reefs by 2050.

What then are Australia’s obligations towards the protection of the Great Barrier Reef? Can Australia simply argue that as the reef is within Australian waters it can manage the reef as it pleases? Or, are there greater obligations towards the protection of the reef because of its status as a World Heritage listed site? With evidence increasing that the reef is under threat due to the effects of global climate change, these legal issues are looming on the horizon.

In 1981 the Great Barrier Reef World Heritage Area (GBRWHA) was inscribed on the World Heritage List as a natural property possessing world heritage values. under the 1972 World Heritage Convention. As a party to the Convention, and under accepted principles of international law, Australia is required to perform the obligations imposed by the Convention in relation to the GBRWHA in good faith.

In the Tasmanian Dam Case a majority of the High Court of Australia held that the Convention was not a mere expression of aspiration, but imposed legally binding obligations. By joining the Convention, the Australian Government has assumed the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the GBRWHA and other World Heritage properties.

The Kyoto Protocol currently offers the only international legal framework for achieving specified reductions in global greenhouse gas emissions. These emissions are responsible for the increases in sea temperatures that constitute the most serious threat to the world heritage values of the GBRWHA. The protocol has attracted significant international support, and with the recent ratification by the Russian Federation, has now entered into force.

Australia signed the Kyoto Protocol on April 29, 1998, but has indicated that it does not intend to move to ratification. Instead the Australian Government has stated that it will voluntarily comply with the target set for Australia in the Protocol (an increase of emissions of greenhouse gases to 108 per cent of 1990 levels over the period 2008-2012).

Article 4 of the World Heritage Convention imposes a general and broad obligation of conduct upon Australia in relation to the GBRWHA and other world cultural and natural heritage situated in its territory. Australia is required to “do all it can”, “to the utmost of its own resources”, in order to discharge its duty of “ensuring the identification, protection, conservation, presentation and transmission to future generations”. A strong argument can be made that by not ratifying the Kyoto Protocol Australia has failed to “do all it can”. Further, by not ratifying the Kyoto Protocol and implementing its provisions in Australian law, it can be argued that Australia has not taken the appropriate legal and administrative measures necessary.

As a party to the World Heritage Convention, Australia is required to perform its obligations under the Convention in good faith. It is arguable that Australia’s stance on several issues in negotiations prior, and subsequent ,to the adoption of the Kyoto Protocol raises serious questions as to Australia’s commitment to comply in good faith with the requirements of the World Heritage Convention. Given the sensitivity of the GBRWHA to the effects of climate change, the Australian Government must ensure that it does not advocate or support measures which will exacerbate its deterioration. In future negotiations (for example those regarding the second commitment period under the Kyoto Protocol) Australia must not adopt an unreasonable position that would prevent the conclusion of an effective international legal framework to address climate change.

Although Australia’s failure to ratify the Kyoto Protocol constitutes a violation of Articles 4 and 5 of the World Heritage Convention, neither Australia’s stated objective of voluntarily meeting its Kyoto Protocol emissions target nor its ratification of the Kyoto Protocol will necessarily entail the complete discharge of Australia’s obligations under the World Heritage Convention. Because of the magnitude of the threat posed to the GBRWHA by climate change, further measures are required in order to satisfy Article 4 of the Convention. Such additional measures are likely to include significant reductions by Australia of its greenhouse gas emissions.

Determining the level of reductions in greenhouse gases required to meet Article 4 is a complex and difficult legal question. Australia’s decision not to commit to any reduction in greenhouse gases below its 1990 baseline constitutes a clear failure to comply if it is within the resources of the Australian Government to pursue more substantial cuts. At least the Government should justify publicly why it is not within Australia’s resources to commit to a policy of deep cuts, if it believes that this is the case.

One of the essential functions of the World Heritage Committee established by the World Heritage Convention is to monitor the state of conservation of properties inscribed upon the World Heritage List. The Operational Guidelines for the Implementation of the World Heritage Convention (“Operational Guidelines”) specifies two types of reporting obligations: “reactive monitoring” and “periodic reporting”. In relation to reactive monitoring, the World Heritage Centre and other bodies may furnish the World Heritage Bureau and World Heritage Committee with information concerning the impacts of climate change upon the GBRWHA and the Australian Government’s climate change policies. Such a report or series of reports need not be prepared with the consent and co-operation of the Australian Government, although it would be desirable if this were to occur.

In relation to periodic reporting, it can be argued that the Australian Government should include information and documentation concerning the development of Australia’s climate change policy and an assessment of the extent to which the integrity of the GBRWHA has been impaired by the effects of climate change.

The World Heritage Committee is required to establish, keep up to date, and publish a List of World Heritage in Danger. Under the Operational Guidelines, the Committee may include a property on the List of World Heritage in Danger if the property is threatened by “serious and specific danger” The deterioration of the GBRWHA as a result of climate change may be considered to constitute both an ascertained and a potential danger.

A “potential danger” may arise where a State Party to the World Heritage Convention has not taken adequate steps to protect and conserve a world heritage property through, for instance, failing to establish and implement a management plan addressing threats to the property. On this basis the GBRWHA should be placed on the list on the grounds that the Australian Government has not developed an appropriate and effective response to climate change.

Australia’s special obligations to protect and manage the Great Barrier Reef have been recognised by the international community. Whilst certain measures have been taken under Australian law and policies developed to conserve and protect the reef, it is questionable whether they are adequate to deal with the effects of climate change. With the evidence mounting of the direct impact of climate change upon the reef, Australia’s ambiguous position on global warming is to be contrasted with obligations assumed under the World Heritage Convention. If action is not taken to comprehensively protect the reef from climate change there is a clear risk that this unique ecosystem may be irretrievably damaged. Existing legal frameworks are available to protect the reef. Australia should be availing itself of those legal mechanisms or face the prospect of international repercussions.

Professor Donald R. Rothwell is Professor of International Law, ANU College of Law, Australian National University.

Dr Tim Stephens is Director of the Sydney Centre for International Law, at the Faculty of Law, University of Sydney and a parishioner at St Joan of Arc, Haberfield, NSW. He holds a masters degree in geography from the University of Cambridge, a doctorate in international environmental law from the University of Sydney, and writes on climate change science, policy and law. His latest book, co-authored with Donald R Rothwell, is The International Law of the Sea.


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