Paper On Biodiversity

University of Edinburgh
School of Law
Research Paper Series
No 2018/08
Does International Biodiversity Law Offer Adequate Protection to

the Great Barrier Reef?
Robert Clews
University of Edinburgh, School of Law
[email protected]
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© 2018 Robert Clews
Edinburgh School of Law Research Paper Series

University of Edinburgh
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https://ssrn.com/abstract=3139851
Does international biodiversity law
offer adequate protection to the
Great Barrier Reef?
This thesis is submitted in partial fulfilment of the requirements for the Masters of
Laws in Global Environment and Climate Change at the University of Edinburgh.
Exam Number: B060061

Degree Programme: LL.M. Global Environment and Climate Change
Word Count: 9,955/10,000
Submission Date: 17 August 2015
Electroniccopy
available at:
Does international biodiversity law offer adequate protection to the Great Barrier
Reef?
Abstract
Over the past thirty years since the Great Barrier Reef was recognised as a World
Heritage Site, it has been estimated that coral cover has declined by over 50%. Today,
a lethal cocktail of climate change, ocean acidification and coastal development
threatens the conservation and preservation of the Great Barrier Reef for both present
and future generations.
Despite this outlook, the Australian Government has approved plans for a project,
colloquially described by environmental organisations as the “world’s biggest coal
port”, to be built adjacent to the World Heritage Site. This development at Abbot
Point, and the associated construction of new coal mines in the Galilee Basin, will
facilitate the release of an additional 900 Million tonnes of CO2 emissions per annum.
As well as contributing to climate change, the dredging required for this project will
also have an immediate, direct impact on the Great Barrier Reef World Heritage Area,
yet marine scientists contend that the long-term effects of this dredging activity
remain unclear.
This factual background raises the question as to whether international biodiversity

law offers adequate protection to the Great Barrier Reef. To address this question, two
further questions must be asked. First, as two major pillars within international
biodiversity law, are the Australian Government in breach of their obligations to
protect and conserve the Great Barrier Reef under both the World Heritage
Convention (WHC) and the Convention on Biological Diversity (CBD) and secondly,
are there adequate enforcement mechanisms under both Conventions?
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Reef?
Contents
Abstract 2
1. Introduction 4
2. What is the protection of the Great Barrier Reef under international biodiversity
law? 9
2.1. Protection of the Great Barrier Reef as a Site of Natural Heritage 10
2.2. Under what circumstances can a property be included on the List of Sites in Danger? 12
2.3. Initial Observations of the World Heritage Convention 14
2.4. The Convention on Biological Diversity 15
2.5. Protection of the Great Barrier Reef’s Endangered and Migratory Species 17
2.6. In the context of the proposed expansion of Abbot Point, which of these Convention offers
the strongest protection for the Great Barrier Reef? 18
3. Does the World Heritage Convention offer adequate protection to the Great Barrier
Reef? 20
3.1. Are there sufficient grounds to justify the inclusion of the Great Barrier Reef on the List
of Sites in Danger? 20
3.2. Do previous decisions of the World Heritage Committee set a prior precedent? 25
3.3. Does the List of Sites in Danger an adequate and effective enforcement mechanism? 26
3.4. Are the Australian Government fulfilling their general obligations under the Convention?
27
3.5. What other avenues can be explored to uphold Australia’s obligations under the World
Heritage Convention? 28
3.6. Would the protection of the Great Barrier Reef be stronger if the protection extended
from natural to cultural heritage? 29
3.7. Does the World Heritage Convention offer adequate protection to the Great Barrier
Reef? 30
4. Does the Convention on Biological Diversity offer adequate protection to the Great
Barrier Reef? 32
4.1. Are the Australian government in compliance with their obligations under the
Convention on Biological Diversity? 32
4.2. Does the domestic enforcement of the Convention on Biological Diversity offer adequate
protection to the Great Barrier Reef? 35
4.3. Is the Australian Government in breach of the guiding principles behind the Convention
on Biological Diversity? 37
4.4. Do subsequent Decisions of the COP further clarify the obligation of the Australian
Government to mitigate climate change? 39
4.5. Does the Convention on Biological Diversity offer adequate protection to the Great
Barrier Reef? 40
5. Conclusion 42
Acknowledgements 46
Abbreviations, acronyms and measurements 47
Table of Cases 48
Table of Legislation and Official Documents 48
Bibliography 51
Appendix One: Part IV.B of the Operational Guidelines - The List of World Heritage in
Danger 61
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Reef?
1. Introduction
The Great Barrier Reef (GBR) is one of the world’s most extensive coral reef
ecosystems.1 It supports over 1,500 species of fish, 242 different species of birds and
more than 400 species of coral. 2 The Reef is also home to twenty-seven marine
species that are listed as threatened.3 This includes six of the world’s seven species of
turtle, all of which are classified as threatened, 4 the vulnerable dugong and the
endangered blue whale.5 As a result of this rich and unique biodiversity, the GBR was
recognised in 1981 as a World Heritage Site. 6 This elevated status imposes an
obligation on the Australian Government, erga omnes,7 to protect and conserve the
property for both present and future generations.8
In the past thirty years since the GBR was inscribed on the World Heritage
List however, coral cover has declined significantly.9 Some estimations contend that
this decline is greater than 50%.10 Today the GBR is widely considered to be at a
crossroads where, “decisions taken in the immediate future will be decisive for the
1
UNEP and WCMC Press Release, ‘New Atlas maps the world’s fast disappearing coral reefs’ (11
September 2001)
<http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=214&ArticleID=2930&l=en
> accessed 6 August 2015; Glenn De’ath, Katharina Fabricius, Hugh Sweatman and Marji Puotinen,
‘The 27-year decline of coral cover on the Great Barrier Reef and its causes’ (2012) 109(44) PNAS
17995, 17995
2
World Heritage Nomination, IUCN Technical Review (July 1981)
<http://whc.unesco.org/archive/advisory_body_evaluation/154.pdf> accessed 19 March 2015
3
Great Barrier Reef Marine Park Authority, Great Barrier Reef Outlook Report 2009 (Great Barrier
Reef Marine Park Authority 2009), 11
4
ibid at 28
5
ibid at 11
6
Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November
1972, entered into force 17 December 1975) 1977 UNTS 151 (WHC)
7
An obligation towards all. See, for discussion, Guido Carducci. ‘Articles 4-7 National and
International Protection of the Cultural and Natural Heritage’ in Francesco Francioni (ed), The 1972
World Heritage Convention: A Commentary (1st Edition, Oxford University Press 2008), 133-145;
Roger O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?
(2004) 53(1) ICLQ 189
8
WHC (n 6), Article 4
9
Great Barrier Reef Marine Park Authority, Great Barrier Reef Outlook Report 2014 (Great Barrier
Reef Marine Park Authority 2014), 20; Hugh Sweatman et al, ‘Assessing loss of coral cover on
Australia’s Great Barrier Reef over two decades, with implications for longer-term trends’ (2011) 30
Coral Reefs 521; Terry Hughes et al, ‘Shifting base-lines, declining coral cover, and the erosion of reef
resilience: comment on Sweatman et al. (2011)’ (2011) 30(3) Coral Reefs 653; D R Bellwood, T P
Hughes, C Folke, M Nyström, ‘Confronting the coral reef crisis’ (2004) 429 Nature 827
10
Glenn De’ath (n 1); John Bruno and Elizabeth Sellig, ‘Regional Decline of Coral Cover in the Indo-
Pacific: Timing, Extent, and Subregional Comparisons (2007) 8 PLoS One, 1
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long-term health of the property as a whole.”11 Climate change, coastal development,

land-based run-off and direct use, which includes impacts such as dredging, have
been identified as the main threats to the GBR. 12 These concerns surrounding the
impact of climate change to coral reef ecosystems have been noted by the Conference
of Parties to the Convention on Biological Diversity (CBD).13 This historical decline
and future outlook raises the question as to whether international biodiversity law
offers adequate protection to the GBR.
In considering whether international biodiversity law offers adequate

protection to the GBR, the proposed expansion of the Abbot Point coal port offers an
interesting case study. 14 As well as increasing coal dust pollution in the marine
environment, 15 the development will require the removal, or “dredging”, 16 of 1.7
million tonnes of seabed in order to create enlarged shipping lanes. 17 Although
dredging has previously been undertaken within the Great Barrier Reef World
Heritage Area (GBRWHA), the volume of the proposed extraction has been
considered “significant by global standards.”18 Moreover, both the effects of dredging
and coal dust pollution are poorly understood.19 Due to the existence of longer-term
11
Fanny Douvere and Tim Badman, ‘Mission Report: Reactive Monitoring Mission to the Great
Barrier Reef (Australia) 6th to 14th March 2012’ (World Heritage Committee, 14 June 2012) WHC-
12/36.COM/7B.Add, 4
12
ibid; Outlook Report 2014 (n 9), 255
13
Convention on Biological Diversity, ‘Decision adopted by the Conference of the Parties to the
Convention on Biological Diversity at its Tenth Meeting’ (Nagoya, 29 October 2010)
UNEP/CBD/COP/DEC/X/29, para 7
14
See, for discussion, Greg McIntyre, ‘Dumping on the Great Barrier Reef: Does it comply with
international law?’ (2014) 29(4) AER 119; Australian Government, ‘Approval of Abbot Point Coal
Terminal 0, Port of Abbot Point, Queensland (EPBC 2011/6194)’ (Australian Government, 2011)
<http://www.environment.gov.au/epbc/notices/assessments/2011/6194/2011-6194-approval-
decision.pdf> accessed 8 July 2015
15
Michael Ahrens and Donald Morrisey, ‘Biological Effects of Unburnt Coal in the Marine
Environment’ (2005) 43 Oceanography and Marine Biology: An Annual Review 69
16
L McCook, B Schaffelke, S Apte, R Brinkman, J Brodie, P Erftemeijer, B Eyre, F Hoogerwerf, I
Irvine, R Jones, B King, H Marsh, R Masini, R Morton, R Pitcher, M Rasheed, M Sheaves, A
Symonds, M Warne, Synthesis of current knowledge of the biophysical impacts of dredging and
disposal on the Great Barrier Reef: Report of an Independent Panel of Experts (Great Barrier Reef
Marine Park Authority 2015) (Synthesis Report), 5
17
Australian Government, ‘State Party Report on the state of Conservation of the Great Barrier Reef
World Heritage Area (Australia)’ (30 January 2015) <http://whc.unesco.org/document/134992>
accessed 19 March 2015, 29; Department of the Environment, ‘Australian Ramsar Wetlands’
(Australian Government) <http://www.environment.gov.au/water/wetlands/australian-wetlands-
database/australian-ramsar-wetlands#ftn1> accessed 1 June 2015
18
Synthesis Report (n 16), 5
19
Outlook Report 2014 (n 9), 131; See also Synthesis Report (n 16), 24; Paul Erftemeijer, Bernhard
Riegl, Bert Hoeksema and Peter Todd, ‘Environmental impacts of dredging and other sediment
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Reef?
threats such as climate change,20 the GBR is also considered less resilient to new
adverse impacts.21 Marine scientists therefore argue for a reduction in these local and
regional pressures, 22 including dredging. 23 Dr Christopher Ward, Chair of the
Australian International Law Association, further contends that Australia will fail to
be in full compliance with its obligations under the World Heritage Convention
(WHC) should Australia proceed with the expansion of Abbot Point. 24 The WHC
therefore warrants consideration when seeking to address whether international
biodiversity law offers adequate protection to the GBR.
Although climate change constitutes the most pressing threat to the GBR,25 the
Australian Government have also been criticised for their lack of action on climate
change.26 The construction of new coal mines in the Galilee Basin will contribute to
disturbances on corals: A review’ (2012) 64 Marine Pollution Bulletin 1737, 1738; and Ahrens and
Morrisey (n 15)
20
Kenneth Anthony, Jeffrey Maynard, Guillermo Diaz-Pulido, Peter Mumby, Paul Marshall, Long Cao
and Ove Hoegh-Guldberg, ‘Ocean acidification and warming will lower coral reef resilience’ (2011) 17
Global Change Biology 1798, 1805
21
De’ath (n 1), 17995; Bellwood (n 9), 831; Hughes et al (2011) (n 9)
22
J E N Veron, O Hoegh-Guldberg, T M Lenton, J M Lough, C R C Sheppard, M Spalding, M G
Stafford-Smith and A D Rogers, ‘The coral reef crisis: The critical importance of <350 ppm CO2’
(2009) 58(10) Marine Pollution Bulletin 1428, 1433; James Bowen and Margarita Bowen, The Great
Barrier Reef: History, Science, Heritage (1st Edition, Cambridge University Press 2002), 405
23
Synthesis Report (n 16), 71; M Scheffer, S Barrett, S Carpenter, C Folke, A Green, S Kosten, I van
de Leemput, D Nepstad, E van Nes, E Peeters and B Walker, ‘Creating a safe operating space for
iconic ecosystems: Manage local stressors to promote resilience to global change’ (2015) 347 Nature
6228; Ben Daley, The Great Barrier Reef: An environmental history (1st Edition, Routledge 2014), 5;
Paul Marshall and Johanna Johnson, ‘The Great Barrier Reef and climate change: vulnerability and
management implications’ in Johanna Johnson and Paul Marshall (eds), Climate Change and the Great
Barrier Reef: A Vulnerability Assessment (Vulnerability Assessment) (Great Barrier Reef Marine Park
Authority 2007), 789
24
Sue Arnold, ‘Australia ‘failing World Heritage Convention obligations’ Echo Daily (19 February
2014) <http://www.echo.net.au/2014/02/australia-failing-world-heritage-convention-obligations/>
accessed 19 March 2015
25
Outlook Report 2014 (n 9), v; Vulnerability Assessment (n 23), 2
26
Terry Hughes, Jon Day and Jon Brodie, ‘Securing the future of the Great Barrier Reef’ (2015) 5
Nature Climate Change 508; see also Ove Hoegh-Guldberg, ‘Is Australia shooting itself in the foot
with reef port expansions?’ The Conversation (13 March 2014)
<http://theconversation.com/is-australia-shooting-itself-in-the-foot-with-reef-port-expansions-22992>
accessed 12 July 2015; Jan Burck, Franziska Marten and Christoph Bals, ‘The Climate Change
Performance Index Results 2015’ (December 2014) <http://germanwatch.org/en/download/10407.pdf>
accessed 6 April 2015; Michael Slezak, ‘Australia criticised over emissions cuts that defy 2°C target
New Scientist (11 August 2015) <https://www.newscientist.com/article/dn28029-australia-criticised-
over-emissions-cuts-that-defy-2-c-target/> accessed 12 August 2015; Frank Jotzo, ‘Australia’s 2030
climate target puts us in the race, but at the back’ The Conversation (11 August 2015)
<http://theconversation.com/australias-2030-climate-target-puts-us-in-the-race-but-at-the-back-45931>
accessed 12 August 2015
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an additional 900 million tonnes (Mt) of carbon dioxide (CO2) emissions per annum.27
The resultant rise in CO2 emissions will contribute to a rise in the sea-surface
temperature, which leads to instances of coral bleaching.28 Climate change will also
lead to an increase in ocean acidification, extreme weather events and rising sea
levels, all of which have a detrimental impact on the GBR ecosystem.29
Yet to avoid exceeding the internationally agreed target of 2°C, 30 a target

considered “crucial” for the conservation and preservation of the GBR,31 it has been
calculated that 80% of global coal reserves must remain unburned.32 For Australia,
this would require 90% of its coal becoming a “stranded asset.”33 The expansion of
Abbot Point will play a significant role in facilitating the majority of these emissions,
with the capacity to export 445 million tonnes of coal per annum (Mtpa). 34 The
potential long-term impacts further highlight the conflict between the obligations of
the Australian Government, to protect and conserve the GBR for future generations
under the WHC, 35 alongside their sovereign rights over their natural resources. 36
27
Ria Voohar and Lauri Myllyvirta, ‘Point of No Return: The massive climate threats that we must
avoid’ (Greenpeace, January 2013)
<http://www.greenpeace.org/international/Global/international/publications/climate/2013/PointOfNoR
eturn.pdf> accessed 20 March 2015, 40
28
Ray Berkelmans, Glenn De’ath and Stuart Kininmonth, ‘A comparison of the 1998 and 2002 coral
bleaching events on the Great Barrier Reef: spatial correlation, patterns, and predictions’ (2004) 23
Coral Reefs 74
29
See Hughes, Day and Brodie (n 26); see also Scott Doney, Victoria Fabry, Richard Feely and Joan
Kleypas, ‘Ocean Acidification: The Other CO2 Problem’ (2009) 1 Annual Review of Marine Science
169, 170; K Anthony, D Kline, G Diaz-Pulido, S Dove and O Hoegh-Guldberg, ‘Ocean acidification
causes bleaching and productivity loss in coral reef builders’ (2008) 105(45) PNAS 17442
30
UNFCCC, 'Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29
November to 10 December 2010' (15 March 2011) UN Doc FCCC/CP/2010/7/Add.1 available at
<http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=2> accessed 20 March 2015, 3
31
K Frieler, M Meinshausen, A Golly, M Mengel, K Lebek, S D Donner and O Hoegh-Guldberg,
‘Limiting global warming to 2°C is unlikely to save most coral reefs’ (2013) 3 Nature Climate Change
169
32
Christophe McGlade and Paul Ekins, ‘The geographical distribution of fossil fuels unused when
limiting global warming to 2°C’ (2015) 517 Nature 187; see, for discussion, Graham Readfearn, ‘The
whopping climate change footprint of two Australian coalmining projects’ The Guardian (7 November
2013) <http://www.theguardian.com/environment/planet-oz/2013/nov/07/climate-change-keystone-
galilee-queensland-coal-mining> accessed 30 May 2015
33
Climate Council, ‘Unburnable Carbon: Why we need to leave fossil fuels in the ground’ (Climate
Council of Australia, April 2015) available at <http://www.climatecouncil.org.au/unburnable-carbon-
why-we-need-to-leave-fossil-fuels-in-the-ground> accessed 27 June 2015
34
Georgina Woods, ‘Cooking the Climate Wrecking the Reef: The global impact of coal exports from
Australia’s Galilee Basin’ (Greenpeace, September 2012)
<http://www.greenpeace.org/australia/en/what-we-do/climate/resources/reports/Cooking-the-climate-
Wrecking-the-reef> accessed 5 July 2015, 35
35
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Whilst this conflict between the rights of States and their obligations under
international climate law currently plagues many States in the context of their
domestic energy policies,37 this conflict has not been widely considered through the
prism of international biodiversity law.
In seeking to address the question as to whether international biodiversity law

offers adequate protection to the GBR, two further questions must be asked. First,
what are the obligations of the Australian Government under international
biodiversity law and secondly, do these Conventions implement adequate
enforcement mechanisms? For this second question, the extent to which international
biodiversity law constrains Australia’s sovereignty and discretion in domestic energy
policy will be discussed. This thesis will first provide an overview of the international
legal protection afforded to the GBR (Chapter Two). Given the potential impacts of
the proposed development of Abbot Point on the GBRWHA, the WHC will be
considered (Chapter Three). It will be discussed whether there are sufficient grounds
for the inclusion of the GBR on the List of Sites in Danger, as well as considering the
general obligations of the Australian Government under the WHC. As a site also
recognised for its unique biodiversity, 38 the CBD will also be discussed in detail
(Chapter Four). It will be contended that the decision by the Australian Government
to undertake dredging appears to be in conflict with their obligations under both the
WHC and CBD, especially in light of the increased sensitivity of the GBR to new
adverse impacts. The conclusion will finally evaluate whether international
biodiversity law offers adequate protection to the GBR (Chapter Five). For the
purposes of brevity, this thesis will focus on the existing international legal
framework and will not discuss, for example, proposals for a new International Treaty
for Coral Reef Conservation.39
36
WHC (n 6), Article 4; Preamble to the 1992 Convention on Biological Diversity (with Annexes)
(adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79
37
See, for example, Eriika Melkas, ‘Sovereignty and Equity within the Framework of the Climate
Regime’ (2002) 11(2) RECIEL 115
38
See World Heritage Nomination (n 2)
39
Marjorie Mulhall, ‘Saving the Rainforests of the Sea: An Analysis of International Efforts to
Conserve Coral Reefs’ (2009) 19 Duke Envtl L & Poly F 321, 346; Kristin Kushlan, ‘Coral Reefs: The
Failure to Regulate at the International Level’ (2010) 33(2) U C Davis L Rev 317, 331
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2. What is the protection of the Great Barrier Reef under international

biodiversity law?
The GBR is protected by an array of Conventions within international
biodiversity law.40 Their scope ranges from the protection of its natural heritage, to
the protection of its biodiversity and to the more specific protection for endangered
species. 41 This chapter will proceed to outline the obligations of the Australian
Government under these Conventions and consider the constraints that these
Conventions place on Australia’s sovereignty. The proposed expansion of Abbot
Point will be utilised as a case study to illuminate this discussion. It will be argued
that, for the GBR, two of the most important pillars of international biodiversity law
are the WHC and the CBD.42 This is due to the establishment of the Great Barrier
Reef World Heritage Area (GBRWHA) and the broad approach of the CBD that
envisages the conservation of entire ecosystems.43
Before considering the WHC and CBD, it is first necessary to recognise the
existence of three important agreements and outline the reasons why they will not be
considered over the course of this thesis. As a marine ecosystem, the GBR is afforded
some protection under the United Nations Law of the Sea Convention (UNCLOS) and
additional protection as a Particularly Sensitive Sea Area (PSSA) from the
International Maritime Organization (IMO). 44 As the GBR falls within Australia’s
Exclusive Economic Zone (EEZ) however, the scope of protection under UNCLOS is
limited. This is because UNCLOS outlines only general obligations for the protection
40
Percy Lucas et al, The Outstanding Value of the Great Barrier Reef (Great Barrier Reef Marine Park
Authority 1997), 3
41
WHC (n 6), CBD (n 36); 1979 Convention on the Conservation of Migratory Species of Wild
Animals (CMS or Bonn Convention) (adopted 23 June 1979, entered into force 1 November 1983)
1651 UNTS 356
42
ibid
43
World Heritage Nomination (n 2); CBD (n 36); see also CBD, ‘Decision V/6 Ecosystem approach’
in ‘Annex III: Decisions Adopted by the Conference of the Parties to the Convention on Biological
Diversity at its Fifth Meeting’ (Nairobi, 15-26 May 2000) UNEP/CBD/COP/5/23, 103
44
1982 United Nations Law of the Sea Convention (adopted 10 December 1982, entered into force 16
November 1994) 1833 UNTS 3 (UNCLOS); IMO, ‘Designation of the Torres Strait as an Extension of
the Great Barrier Reef Particularly Sensitive Sea Area’ (22 July 2005) MEPC 53/24/Add.2 Annex 21,
revoking MEPC 45(30) see, for discussion, Suzanne Iudicello and Margaret Lytle, ‘Marine
Biodiversity and International Law: Instruments and Institutions That Can Be Used to Conserve
Marine Biological Diversity (1994) 8 Tul Envtl L J 123, 132
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of the marine environment. 45 Additionally, the IMO only offers limited protection
with regards to shipping. Although these general obligations are worthy of legal
discussion when assessing the legal protection of the GBR, to maintain a specific
focus on international biodiversity law, this thesis will not indulge in a discussion of
these two frameworks.
Similarly, in the context of the proposed expansion of Abbot Point, the only
wetland that will be directly impacted by the development will be the Caley Valley
wetlands.46 Although this wetland is recognised for its importance domestically,47 it
does not fall under the scope of the Ramsar Convention.48 This lack of protection
serves to highlight the deference to national sovereignty, as State Parties nominate
sites for protection, which is one major criticism of international biodiversity law as a
whole.49 Whilst the Ramsar Convention is arguably playing an increasingly important
role in the protection of coral reefs,50 the Ramsar Convention will therefore not be
considered in this thesis due to this lack of direct applicability.
2.1. Protection of the Great Barrier Reef as a Site of Natural Heritage

Arguably the most important Convention for the protection and conservation
of the GBR under international biodiversity law is the World Heritage Convention
(WHC). 51 The establishment of the GBRWHA followed ratification of the WHC,
when the Australian government applied for the GBR to be inscribed on the World
45
ibid Article 56(1)(a); see, for discussion, Mary Gray Davidson, ‘Protecting Coral Reefs: The
Principal National and International Legal Instruments’ (2002) 26 Harv Envtl L Rev 499, 527-529
46
State Party Report (n 17), 58
47
See Department of the Environment, ‘Directory of Important Wetlands in Australia’ (Australian
Government) <http://www.environment.gov.au/topics/water/water-our-
environment/wetlands/australian-wetlands-database> accessed 8 July 2015
48
1971 Convention on the Conservation of Wetlands of International Importance Especially as
Waterfowl Habitat (Ramsar) (adopted 2 February 1971, entered into force 21 December 1975) 996
UNTS 245, Preamble at 246; Department of the Environment, ‘Australia’s Ramsar Sites’ (Australian
Government) <http://www.environment.gov.au/system/files/resources/0d08923b-a60d-4564-9af2-
a7023b7aaf29/files/ramsar-sites_0.pdf> accessed 20 June 2015; BMT WBM Pty Ltd, ‘Kaili (Caley)
Valley Wetlands Baseline Report’ (Office of the Coordinator-General, Department of State
Development February 2012)
<http://www.statedevelopment.qld.gov.au/resources/plan/cg/abbot/baseline-profile-for-the-kail-valley-
wetlands.pdf> accessed 20 June 2015, para 5-1
49
Edith Brown Weiss, ‘International Environmental Law: Contemporary Issues and the Emergence of
a New World Order’ (1993) 81 Geo L J 675, 709-710
50
Edward Goodwin, International Environmental Law and the Conservation of Coral Reefs (1st
Edition, Routledge 2011), 168
51
WHC (n 6)
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Heritage List in 1981.52 Domestically the WHC is applied through the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC).53 Given the GBRWHA
encompasses nearly all of the GBR marine ecosystem,54 this ensures the WHC has
one of the broadest scopes of application.
The main obligation under the WHC is contained in Article 4, which provides
that each State Party has a duty to “protect, conserve, present and transmit to future
generations sites of cultural and natural heritage.”55 To discharge this duty, the State
must do “all it can…to the utmost of its own resources.”56 Article 5 elaborates on
what each State is expected to do and imposes an obligation to implement five
measures to ensure the conservation and preservation of cultural and natural
heritage.57 Article 6 finally requires States not to take any deliberate measures that
might damage directly or indirectly, the cultural and natural heritage on the territory
of other States.58 Although concerns have previously been expressed concerning the
legal force of the obligations under the WHC due to qualifications in the language,59
the case of the Commonwealth of Australia v the State of Tasmania recognised the
binding nature of these provisions, whilst also recognising the discretion of States to
decide which measures are necessary and appropriate.60
Should concerns exist surrounding the condition of a property on the World

Heritage List, such as the GBR, the World Heritage Committee (hereafter the
52
World Heritage Nomination (n 2)
53
Chapter 5; See also Environment Protection and Biodiversity Conservation Regulations 2000. This
legislation replaced the earlier World Heritage Properties Conservation Act 1983.
54
Lucas (n 40), ix
55
56
ibid
57
ibid, Article 5
58
ibid, Article 6
59
Erica Thorson, ‘On Thin Ice: The Failure of the United States and the World Heritage Committee to
Take Climate Change Mitigation Pursuant to the World Heritage Convention Seriously’ (2008) 38
Envtl L 139, 161-162
60
The Commonwealth of Australia v The State of Tasmania [1983] HCA 21; 46 ALR 625; 68 ILR 266,
para 67; discussed in Simon Lyster, International Wildlife Law: An analysis of International Treaties
concerned with the conservation of wildlife (1st Edition, Cambridge University Press 1985), 223; see
also Matthew Peek and Susan Reye, ‘Judicial Interpretations of the World Heritage Convention in the
Australian Courts’ in Barbara Hoffman (ed), Art and Cultural Heritage: Law, Policy, and Practice (1st
Edition, Cambridge University Press 2005), 206; Lucas (n 40), 28; see also, for this opinion, Diana
Zacharias, ‘Cologne Cathedral versus Skyscrapers – World Cultural Heritage Protection as Archetype
of a Multilevel System’ (2006) 10 Max Planck UNYB 273, 322
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Committee) may include a property on the List of Sites in Danger or the “Red List.”61
This Listing will only occur after consultations by the Committee with their Advisory
Bodies,62 a process designed to ensure scientific objectivity.63 To assist State Parties
in understanding the potential grounds for inclusion on the Red List, the Committee
developed the Operational Guidelines. 64 Whilst inclusion on the List of Sites in
Danger does not carry any sanctions per se,65 it remains politically significant.66 For
example, to avoid the inclusion of the GBR on the List of Sites in Danger in June
2015, it was disclosed that the Australian Government spent $100,000 to meet with
Committee members.67
2.2. Under what circumstances can a property be included on the List of Sites in
Danger?
Paras 177 to 182 of the Operational Guidelines outline the specific
circumstances under which the Committee will consider the inclusion of a property on
the List of Sites in Danger.68 Paragraph 177 provides that the Committee may inscribe
a property on the List when four requirements are met.69 Of particular significance,
the property needs to be threatened by a “serious and specific danger” and “major
operations are necessary for the conservation of the property.”70 Assuming a threat
satisfies these requirements under para 177, para 178 outlines the criteria for
inclusion, namely the condition of the property corresponds to at least one of the
61
Peter Strasser, ‘“Putting Reform into Action” – Thirty Years of the World Heritage Convention:
How to Reform a Convention without Changing Its Regulations’ (2002) 11(2) IJCP 215, 254
62
WHC (n 6), Article 11(4)
63
S Javed Maswood, ‘Kakadu and the Politics of World Heritage Listing’ (2000) 54(3) Aust J Intl Aff
361
64
UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (July
2012); see Appendix One for an excerpt of Part IV.B, paras 177 to 182
65
John Charles Kunich, ‘Losing Nemo: The Mass Extinction Now Threatening the World’s Ocean
Hotspots’ (2005) 30 Colum J Envtl L 1, 76
66
Edward Goodwin, ‘The World Heritage Convention, the Environment, and Compliance’ (2009)
20(2) Colo J Intl Envtl L & Poly 157; see also Oliver Milman, ‘Great Barrier Reef: Australia sends
diplomats out to defend its actions’ The Guardian (11 December 2014)
<http://www.theguardian.com/environment/2014/dec/11/great-barrier-reef-australia-sends-diplomats-
defend-actions-un-in-danger-list> accessed 12 July 2015
67
Lisa Cox, ‘Abbot government spends $100,000 on travel to lobby against UNESCO reef listing’
Sydney Morning Herald (Sydney, 11 May 2015) <http://www.smh.com.au/federal-politics/political-
news/abbott-government-spends-100000-on-travel-to-lobby-against-unesco-reef-listing-20150511-
ggyydi.html> accessed 21 June 2015
68
Operational Guidelines (n 64), paras 177 to 191
69
ibid para 177
70
ibid
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criteria in either para 179 or 180.71 These two paragraphs provide that the danger to
the site may be either actual or potential, for both cultural and natural heritage
respectively.72
Under para 180, which provides the criteria for natural heritage, an ascertained
danger exists when a property is faced with a specific and proven imminent danger,
such as, “a serious decline in the population of the endangered species for which the
property was legally established to protect”, or, “a severe deterioration of the natural
beauty to scientific value of the property.”73 This can be caused by, amongst other
things, industrial development and major public works, such as mining. 74 Human
encroachment on boundaries or in upstream areas, which threaten the integrity of the
property, will also constitute an ascertained danger.75
In the absence of an ascertained danger, a potential danger can exist when the
property is faced with major threats which could have a “deleterious effect” on its
inherent characteristics. 76 Such threats include: development projects within the
property or so situated that the impacts threaten the property; the management plan is
lacking or inadequate or; threatening impacts of climatic, geological or other
environmental factors.77 Para 181 finally requires that the danger must be rectifiable
by human action.78
Although the criteria under para 180 was recently discussed in relation to the
proposed expansion of Abbot Point by two environmental non-governmental
organisations,79 it is important to note that the rules outlined from para 177 to para
181 are interdependent. Thus paras 177, 178 and 181 must also be considered
71
ibid para 178
72
ibid para 180
73
ibid para 180(a)(i) to (ii)
74
ibid
75
ibid para 180(a)(ii)
76
ibid para 180(b)
77
ibid para 180(b)(v)
78
ibid para 181
79
Earth Justice and Environmental Justice Australia, ‘Protecting the Great Barrier Reef: A legal
assessment of the World Heritage Committee’s May 2015 draft decision concerning the potential
inscription of the Great Barrier Reef on the List of World Heritage in Danger’ (June 2015)
<http://earthjustice.org/sites/default/files/files/Protecting-the-Great-Barrier-Reef.PDF> accessed 15
June 2015
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alongside the criteria contained in para 180. In addition, it is important to note that the
requirement for a “serious and specific” danger also appears to set a high threshold
that needs to be satisfied.
2.3. Initial Observations of the World Heritage Convention

As the WHC relies on the voluntary participation of States, the sovereignty of
Australia is respected at the first instance.80 Additionally, the WHC does not contain a
“true enforcement mechanism”, as the operation of the List of Sites in Danger does
not assess the level of compliance of States with the guiding principles of the WHC.81
The inclusion of a property on the List of Sites in Danger is also designed to be non-
punitive. 82 The Committee must therefore assess the potential repercussions of an
inclusion of a property on the List, , especially in situations where a State does not
consent, with the benefits of this process. 83 Despite deferring to their Advisory
Bodies to guide their opinions, their recommendations may also be overruled.84 In this
respect, the lack of a true enforcement mechanism could be described as one
oversight to the overall protection of the GBR under the WHC.85
On the other hand, it is worth recognising that recourse to an international

court or tribunal may not be entirely satisfactory or appropriate.86 A non-judicial or
administrative mechanism, such as the operation of the List of Sites in Danger, may
80
Daniel Gerbert, ‘Sovereignty Under the World Heritage Convention: A Questionable Basis for
Limiting Federal Land Designation Pursuant to International Agreements’ (1998) 7 S Cal Interdisc L J
427, 428; Gionata Buzzini and Luigi Condorelli, 'Article 11 List of World Heritage in Danger and
Deletion of a Property from the World Heritage List' in Francioni (n 7), 175; Raechel Anglin, ‘The
World Heritage List: Bridging the Cultural Property Nationalism-Internationalism Divide’ (2013) 20(2)
Yale J L & Human 241, 248
81
John Charles Kunich, ‘World Heritage in Danger in the Hotspots’ (2003) 79(2) Ind L J 619, 644
82
ibid; see also Natasha Affolder, ‘Mining and the World Heritage Convention: Democratic
Legitimacy and Treaty Compliance (2007) 24(1) Pace Envtl L Rev 35, 55
83
Maswood (n 63), 357; William Logan, ‘Australia, Indigenous peoples and World Heritage from
Kakadu to Cape York: State Party behaviour under the World Heritage Convention’ (2013) 13(2)
Journal of Social Archaeology 153, 172; Diane Zacharias, ‘The UNESCO Regime for the Protection of
World Heritage as Prototype of an Autonomy-Gaining International Institution’ (2008) 9(11) German
L J 1833, 1863; see also Editorial, ’UNESCO’s world heritage sites: A danger list in danger’ The
Economist (26 August 2010) <http://www.economist.com/node/16891951> accessed 15 August 2015
84
Lynn Meskell, ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and
Political Order of International Heritage Conservation’ (2013) 54(4) Current Anthropology 483, 486
85
ibid
86
Goodwin (2009) (n 66), 181
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also prove to be more effective.87 As explained by Goodwin, the Committee generates

a “compliance pull”, providing an incentive for State Parties to act in compliance with
the WHC in respect of properties inscribed on the World Heritage List.88 This process
is designed to be facilitative, assisting States with financial assistance where
appropriate. 89 Nevertheless, given that the obligations contained in Articles 4 to 6
90
have legal force, this does place some restrictions on Australia’s national
sovereignty in respect of properties on the World Heritage List. 91 As a result, the
WHC has still been considered a “crucial contributor” to sustainable development,92
as it places a restriction on the discretion of Australia to pursue a development project
where a World Heritage Site may be at risk. Given the legal force of the obligations
under the WHC, and as the proposed expansion of Abbot Point may threaten the
integrity of the GBRWHA, the Convention will be discussed further in Chapter
Three.
2.4. The Convention on Biological Diversity

In some ways, the CBD adopts a more holistic approach to ensure the
protection of the GBR because of its focus on the conservation of entire ecosystems.93
To achieve this, the CBD enunciates a series of key obligations and principles
designed to guide the actions of State Parties on a national level.94 Utilising similar
language to the WHC, 95 the CBD recognises that the conservation of biological
diversity (hereafter biodiversity) is a common concern of humankind and aspires to
ensure the protection of biodiversity for future generations. 96 The preamble also
alludes to the precautionary principle.97 Whilst these principles are to be balanced
against their sovereign rights to exploit their own resources, the CBD contends that
87
Lyster’s International Wildlife Law (n 60), 12
88
Goodwin (2009) (n 66), 181
89
Operational Guidelines (n 64), para 189
90
The Commonwealth of Australia v the State of Tasmania (n 60); see also Thorson (2008) (n 59)
91
Buzzini and Condorelli (n 80), 178-179
92
Kishore Rao, ‘Pathways to sustainable development’ in Amareswar Galla (ed), World Heritage:
Benefits beyond borders (1st Edition, Cambridge University Press 2012), 325
93
Decision V/6 (n 43); Lyster’s International Wildlife Law (n 60), 594; Lucas (n 40)
94
Lyster’s International Wildlife Law (n 60), 594; Patricia Birnie, Alan Boyle, Catherine Redgwell,
International Law and the Environment (3rd Edition, Oxford University Press 2009), 616
95
WHC (n 6), Preamble, Article 4
96
CBD (n 36); Preamble
97
ibid
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this must be pursuant to their own environmental policies. 98 Therefore, Article 3

serves to reinforce the Australian governments obligations under other international
Conventions, such as the WHC.
Alongside these guiding principles, Articles 6 to 20 outline a number of

“precisely defined” obligations for State Parties. 99 Under Article 6, the Australian
government assumes an obligation to develop a national strategy for the conservation
of its biodiversity and integrate conservation into relevant sectoral or cross-sectoral
plans, programmes and policies. 100 State Parties must also identify and monitor
biodiversity, including processes and activities that are likely to have a significant
adverse impact on the conservation of biodiversity.101 Related to this obligation, the
Australian Government must also assess the impacts of all projects upon its
biodiversity and seek to avoid or minimise these threats under Article 14 through an
Environmental Impact Assessment (EIA).102 Finally, Article 8 requires State Parties
to ensure the in situ conservation of ecosystems and habitats in their natural
surroundings.103
It has been contended that the CBD has “accomplished little of substance”,
with minimal impact on state practice,104 as well as resembling a policy document
rather than imposing firm obligations on State Parties.105 Despite additional criticisms
over the “vague” language of the Convention,106 Australia has nevertheless ratified
98
ibid Article 3; see also Lake Lanoux Arbitration (France v Spain) (1957) 24 ILR 101; 12 RIAA 281
at 301
99
ibid
100
CBD (n 36), Article 6
101
ibid Article 7
102
ibid
103
ibid Article 2; Birnie, Boyle and Redgwell (n 94), 622
104
Chris Wold, ‘The Futility, Utility, and Future of the Biodiversity Convention’ (1998) 9 Colo J Intl
Envtl L & Poly 1; Désirêe M McGraw, ‘The CBD – Key Characteristics and Implications for
Implementation’ (2002) 11(1) RECIEL 17, 23
105
Stuart Harrop and Diana Pritchard, ‘A hard instrument goes soft: The implications of the
Convention on Biological Diversity’s current trajectory’ (2011) 21 Global Environmental Change 474
106
Wold (n 104), 2; see also Rachelle Adam, ‘Missing the 2010 Biodiversity Target: A Wake-up Call
for the Convention on Biodiversity?’ (2010) 21 Colo J Intl Envtl L & Poly 123, 137; see also Melinda
Chandler, ‘The Biodiversity Convention: Selected Issues of Interest to the International Lawyer’
(1993) 4 Colarado J Intl Envtl L 141; Lee Kimball, ‘The Biodiversity Convention: How to Make It
Work’ (1995) 28 Vand J Transnatl L 763, 764
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the CBD and these obligations have been transposed into domestic law. 107 In the
landmark case of the Commonwealth of Australia v The State of Tasmania, 108 the
Australian High Court was asked to interpret similar terminology in the WHC in
accordance with the Vienna Convention.109 As explained by Christopher Wold, this
case has relevance for interpreting the language of the CBD.110 It is therefore likely
that a domestic Court would find the obligations envisaged under the CBD legally
binding.111 The Australian government must therefore still fulfil its obligations under
the CBD as implemented by domestic law, despite the absence of an international
112
enforcement mechanism. As the Australian Government has implemented
legislation to comply with the CBD, the Convention will be discussed further in
Chapter Four.
2.5. Protection of the Great Barrier Reef’s Endangered and Migratory Species
Although the WHC and CBD offer the broadest scope of application, they are
not the only Conventions to offer protection to the GBR under international
biodiversity law. The Convention on the Conservation of Migratory Species 1979
(CMS) is also relevant.113 If an endangered or migratory species could “significantly
benefit” from international co-operation, then State Parties are free to adopt ancillary
agreements under its auspices. 114 In relation to the GBR, Memorandums of
Understanding have been adopted for the dugong, migratory sharks and cetaceans.115
107
See CBD (n 36); Environment Protection and Biodiversity Conservation Act 1999 (n 53) and the
accompanying Regulations. Also Environment Protection (Sea Dumping) Act 1981.
108
The Commonwealth of Australia v the State of Tasmania (n 60)
109
ibid at para 74; Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force
27 January 1980) 1155 UNTS 18232
110
Wold (n 104), 15-16
111
Wold (n 104), 16; Birnie, Boyle and Redgwell (n 94), 616; See also, for discussion, Leslie Zines,
‘The Tasmanian Dam Case’ in H P Lee and George Winterton (eds), Australian Constitutional
Landmarks (1st Edition, Cambridge University Press 2003), 262-279
112
Goodwin (2011) (n 50), 121
113
CMS (n 41)
114
115
‘Memorandum of Understanding on the Conservation and Management of Dugongs (Dugong
dugong) And Their Habitats Throughout their Range’ (Abu Dhabi, 31 October 2007)
CMS/DUGONG/INF.5, ‘Memorandum of Understanding for the Conservation of Cetaceans and their
Habitats in the Pacific Islands Region’ (Noumea, 15 September 2006) UNEP/CMS/PIC-1/Inf/3,
‘Memorandum of Understanding on the Conservation of Migratory Sharks’ (Manila, 12 February
2010) CMS/Sharks/MOS1/Inf.1
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Generally speaking, these three agreements all request that the Parties to the
agreements protect and conserve the species and their habitats.116
While these three Memorandums recognise the need for States to protect and
conserve their respective species, these agreements are not legally binding.117 In the
2014 Outlook Report for the GBR, dugongs and sharks were also assessed to be in
poor condition and deteriorating further. 118 This condition of both species raises a
question over the effectiveness of the Bonn Convention and its ancillary agreements.
Whilst the impacts of the proposed expansion of Abbot Point on marine species will
be considered, this thesis is designed to focus on Australia’s legal obligations under
international law. Given that the Bonn Convention appears limited in the restrictions
it places on Australia’s sovereignty when compared to the WHC and the CBD, it will
not be considered over the course of this thesis.
2.6. In the context of the proposed expansion of Abbot Point, which of these
Convention offers the strongest protection for the Great Barrier Reef?
Whereas the WHC appears to impose more specific obligations on State
parties,119 the CBD articulates a number of guiding principles that are relevant in the
context of the proposed expansion of Abbot Point, such as the precautionary principle
and the concept of sustainable development. 120 Although both Conventions are
dependent on national implementation, the Australian Government have transposed
these obligations into domestic law.121 Similarly, as the GBR has been inscribed on
the World Heritage List,122 alongside domestic legal proceedings, the List of Sites in
Danger may provide an avenue for ensuring the conservation and preservation of the
GBR for future generations. Whilst the Bonn Convention may not be legally binding,
both the WHC and the CBD require the Australian Government to protect endangered
species. This is because the diversity and uniqueness of marine species is part of the
GBR’s OUV, which constitutes a main reason why the GBR is afforded protection as
116
ibid
117
ibid Dugong MoU, Principle 11; Shark MoU Preamble; Cetacean MoU Preamble
118
Outlook Report 2014 (n 9), 36
119
WHC (n 6), Articles 4-6
120
CBD (n 36), Preamble
121
Environment Protection and Biodiversity Conservation Act 1999 (n 53)
122
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a World Heritage Site.123 Similarly, these species can also be considered part of the
GBR’s biodiversity under the CBD. Therefore, to establish whether international
biodiversity law offers adequate protection to the GBR, the following two Chapter
will further elaborate on the legal obligations and enforcement mechanisms under the
WHC and CBD respectively.
123
ibid
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3. Does the World Heritage Convention offer adequate protection to the Great
Barrier Reef?
To assess whether international biodiversity law offers adequate protection to
the GBR, this chapter will specifically consider the obligations and enforcement
mechanism of the WHC. As noted in the introduction, should Australia proceed with
the expansion of Abbot Point, Dr Christopher Ward argues that Australia will fail to
be in compliance with its obligations under the WHC.124 Given this assessment, the
proposed expansion of Abbot Point will be utilised as a case study to assess whether
the List of Sites in Danger constitutes an adequate enforcement mechanism. This
chapter will argue that the decision to undertake dredging within the GBRWHA
meets the criteria for inclusion of the property on the List of Sites in Danger. Whilst it
will be noted that the “compliance pull” generated by the Committee is securing
progress in the protection of the GBR, it will be highlighted that there are limitations
to this mechanism. Finally, in evaluating whether Australia is compliant with the
guiding principles of the Convention, the potential role of domestic legal proceedings
will also be discussed.
3.1. Are there sufficient grounds to justify the inclusion of the Great Barrier Reef
on the List of Sites in Danger?
For an ascertained danger to exist in respect of a World Heritage Site, under
para 180(a)(i) of the Operational Guidelines there must be a, “serious decline in
species of Outstanding Universal Value (OUV)” for which the property was inscribed
to protect.125 In the context of the GBR, the Outlook Report highlights that the overall
condition of the GBR’s species has “deteriorated significantly”, with habitats in the
southern part of the region having declined parallel to declines in hard coral cover.126
In particular, it has been estimated that coral cover has declined by as much as
50%.127 Yet the GBR was inscribed on the World Heritage List due to this rich and
unique biodiversity, as many of these species only exist within the confines of the
124
Sue Arnold, ‘Australia ‘failing World Heritage Convention obligations’ Echo Daily (19 February
2014) <http://www.echo.net.au/2014/02/australia-failing-world-heritage-convention-obligations/>
accessed 19 March 2015
125
Operational Guidelines (n 64), para 180(a)
126
Outlook Report 2014 (n 9), 14, 20, 34
127
De’ath (n 1); Bruno and Sellig (n 9)
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GBRWHA.128 Given this previous and continued decline in the species of OUV for
which the GBR was inscribed on the World Heritage List to protect,129 potentially
greater than 50% in respect of coral cover, 130 this does appear to meet the high
threshold for a serious decline required under para 180(a)(i).131
Does the proposed expansion of Abbot Point satisfy the criteria for a potential
danger?
Although only one of the criteria under para 180 needs to be satisfied,132 it is
worth considering whether the proposed expansion of Abbot Point also constitutes a
ground for the inclusion of the property on the List of Sites in Danger. Specifically,
the proposed dredging of 1.7 million tonnes of seabed within the GBRWHA has been
of notable concern to marine scientists. 133 A report requested by the Australian
Government on the effects of dredging explains that,
“sub-lethal effects are uncertain, as are effects of long-term contributions to
suspended sediments. In particular, suspended sediments may have serious
impacts on recovery of reefs from other disturbances (reducing resilience);
such impacts would not be detected in most environmental impact assessments
and are potentially important given the degraded condition of many inshore
reefs in the regions where dredging takes place.”134
The increase in suspended sediment concentrations leads to an increase in the
mortality of coral, declines in their reproductive ability and causes reduction in
species diversity.135 Dredging also has a negative impact on sea grass meadows, a
128
129
Outlook Report 2014 (n 9), 37
130
De’ath et al (n 1)
131
Operational Guidelines (n 64), para 180(a)(i)
132
ibid para 178
133
See, for this opinion, Christopher Ward quoted by Sue Arnold (n 24)
see also, Selina Ward, David Booth, Janet Lanyon, Mark Hamann, Richard Kingford and Richard
Bush, ‘The Impacts of the Abbot Point Port Development on the Outstanding Universal Value of the
Great Barrier Reef World Heritage Area’ (Australian Coral Reef Society, March 2015)
<http://www.australiancoralreefsociety.org/c/document_library/get_file?uuid=e4c75a35-4edd-4567-
8b44-cfea5b82e97b&groupId=10136> accessed 27 June 2015, 3;
134
135
Florita Flores, Mia Hoogenboom, Luke Smith, Timothy Cooper, David Abrego, Andrew Negi,
‘Chronic Exposure of Corals to Fine Sediments: Lethal and Sub-Lethal Impacts’ (2012) 7(5) PLoS
ONE e37795; Angus Thompson, Britta Schaffelke, Murray Logan, Paul Costello, Johnston Davidson,
Jason Dyole, Miles Furnas, Kevin Gunn, Michelle Liddy, Michele Skuza, Sven Uthicke, Margaret
Wright, Irena Zagorskis, ‘Reef Rescue Marine Monitoring Program: Inshore Water Quality and Coral
Reef Monitoring Annual Report of AIMS Activities 2012 to 2013’ (Australian Institute of Marine
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crucial habitat for the vulnerable dugong, 136 clownfish and other reef-dwellers. 137
Whilst the Australian Government have revised their plans to dispose of the dredging
waste on land in light of concerns raised by the Committee,138 marine scientists argue
that this is unlikely to completely remove the risks associated with the process of
dredging.139 These sub-lethal effects are also uncertain, yet these risks do not appear
to have been fully assessed.140 Particularly in the absence of a full evaluation of the
risks involved with the process of dredging, the criteria that the property is faced with
the “potential danger of a development project within the property or so situated that
threatens the property” does appear satisfied.141
The proposed expansion of Abbot Point will also see a significant increase in
the volume of larger ships passing through the GBRWHA, rising from 174 in 2015 to
an estimated 1,200 visits per year in 2032.142 On land, the growth in mining will also
constitute the greatest contributor to coastal development. 143 Taken together, these
two threats have the potential to reduce the water quality surrounding the GBR, which
Science, December 2013), viii; Sybille Hess, Amelia Wenger, Tracy Ainsworth, Jodie Rummer,
‘Exposure of clownfish larvae to suspended sediment levels found on the Great Barrier Reef: Impacts
on gill structure and microbiome’ (2015) 5: 10561 Nature Scientific Reports 1; F Joseph Pollock,
Joleah Lamb, Stuart Field, Scott Heron, Brita Schaffelke, George Shedrawi, David Bourne and Bette
Willis, ‘Sediment and Turbidity Associated with Offshore Dredging Increase Coral Disease Prevalence
on Nearby Reefs’ (2014) 9(7): e102498 PLoS One
136
Robert Coles et al, ‘The Great Barrier Reef World Heritage Area seagrasses: Managing this iconic
Australian ecosystem resource for the future’ (2014) Estuarine, Coastal and Shelf Science 1, 7; see also
for discussion Hassan (n 137), 32
137
Synthesis Report (n 16), 54, 62; Bruno and Sellig (n 10), 1; Erftemeijer (n 20), 1739; see, for
summary of the impacts of sedimentation, Daud Hassan, Protecting the Marine Environment from
Land-based Sources of Pollution: Towards Effective International Cooperation (1st Edition, Ashgate
Publishing 2006), 30
138
See Lisa Cox, ‘Abbott government moves to ban offshore dumping in Great Barrier Reef marine
park’ Sydney Morning Herald (16 March 2015) <http://www.smh.com.au/federal-politics/political-
news/abbott-government-moves-to-ban-offshore-dumping-in-great-barrier-reef-marine-park-
20150316-1m06jl.html> accessed 19 March 2015
139
140
See, for example, Selina Ward, ‘Dumping Abbot Point dredge spoil on land won’t save the reef’
The Conversation (16 March 2015) <http://theconversation.com/dumping-abbot-point-dredge-spoil-on-
land-wont-save-the-reef-38716> accessed 8 July 2015
141
Operational Guidelines (n 64), para 180(b)(ii)
142
Department of State Development, Infrastructure and Planning, ‘Volume 3: Impact Assessment of
Abbot Point Dredging and Onshore Placement of Dredged Material Project’ (Queensland Government,
2 December 2014) available at <http://www.statedevelopment.qld.gov.au/resources/plan/abbot-
point/abbot-point-preliminary-doc-vol-3.pdf> accessed 27 June 2015, 223; see also Department of
State Development, Infrastructure and Planning,’ Environment assessment: Abbot Point Port and
Wetlands Project (2014)’ (Queensland Government, 27 May 2015)
<http://www.statedevelopment.qld.gov.au/major-projects/environmental-assessment.html> accessed 12
July 2015
143
Outlook Report 2014 (n 9), 151; Environmental Impact Assessment (n 142), 227
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may have a further detrimental impact on larger marine species.144 This development
will occur at a time when habitats critical to the reproduction and survival of many
marine species, such as sea grass meadows, are already declining.145 The existence of
longer term threats, such as climate change, also increases the sensitivity of these
species to such local and regional pressures. 146 Under para 180(b)(ii), a potential
threat exists when a development project threatens the the property, either within the
property itself or adjacent to it.147 Given the potential impacts for marine species from
the forecasted increase in shipping and a reduction in water quality, this criteria of a
potential danger appears to be met.148
In addition to concerns over the direct impacts of the Abbot Point

development, marine scientists have also raised concerns over the Long-Term
Management Plan for the GBR. 149 Under para 180(b)(iv), a lacking or inadequate
management plan would justify the inclusion of a property onto the List of Sites in
Danger. 150 To avoid exceeding the internationally agreed target of 2°C, a target
considered crucial for the long-term conservation of the GBR,151 90% of Australia’s
coal reserves must remain unburned.152 Both the Australian Academy of Science and
144
ibid; Outlook Report 2014 (n 9), 137; Synthesis Report (n 16), 62; See, for a discussion of the
threats, Adam Smith, ‘Shipping in the Great Barrier Reef: the miners’ highway The Conversation (24
May 2015) <http://theconversation.com/shipping-in-the-great-barrier-reef-the-miners-highway-39251>
accessed 25 June 2015; see also Jon C Day, Liz Wren and Karen Vohland, 'Community engagement in
safeguarding the world's largest reef: Great Barrier Reef, Australia’ in Amareswar Galla (ed), World
Heritage: Benefits beyond borders (1st Edition, Cambridge University Press 2012), 28; Ward et al (n
133)
145
Len McKenzie, Catherine Collier and Michelle Waycott, ‘Reef Rescue: Marine Monitoring
Program - Inshore Seagrass, Annual Report for the sampling period 1st July 2011 – 31st May 2012’
(TropWATER, James Cook University 2014) 1, 4
146
ibid, 775; Synthesis Report (n 16), 62; Douglas McCauley, Malin Pinksy, Stephen Palumbi, James
Estes, Francis Joyce and Robert Warner, ‘Marine defaunation: Animal loss in the global ocean’ (2015)
347 Science Magazine 247
147
Operational Guidelines (n 64), para 180(b)(ii)
148
ibid
149
Australian Academy of Science, ‘Reef 2050 Long-Term Sustainability Plan – Position Statement’ (1
April 2015) <https://www.science.org.au/reef-2050-long-term-sustainability-plan> accessed 24 June
2015; see also Hughes, Day and Brodie (2015) (n 26); for commentary Dennis Normile, ‘In girding for
climate change, Great Barrier Reef plan falls short’ Science Magazine (23 March 2015)
<http://news.sciencemag.org/asiapacific/2015/03/girding-climate-change-great-barrier-reef-plan-falls-
short> accessed 4 August 2015
150
Operational Guidelines (n 64), para 180(iv)
151
Frieler et al (n 31)
152
Climate Council (n 33); see also Robert Priddle (ed), Energy and Climate Change (International
Energy Agency 2015), 71; Oliver Milman, ‘UN climate chief says the science is clear: there is no space
for new coal’ The Guardian (4 May 2015)
<http://www.theguardian.com/environment/2015/may/04/un-climate-chief-says-the-science-is-clear-
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the Australian Coral Reef Society have highlighted that the Long-Term Management
Plan does not consider the Government’s role in mitigating climate change.153 Yet as
climate change is recognised to be one of the major threats to the GBR,154 it could be
argued that this lack of consideration satisfies the requirement for a lacking or
inadequate management plan under para 180(b)(iv).
Are major operations necessary for the conservation and preservation of the GBR?
Given the previous decline and future outlook for the GBR, 155 it does appear
that “major operations are necessary” for the conservation of the property.156 As a
result of the amalgamation of threats, the GBR is also considered less resilient to new
adverse impacts. 157 Local impacts, such as dredging, may therefore have a more
material impact on the overall health of the GBR, as the existence of broader impacts
serves to amplify the effects of these local pressures. 158 Taking into account the
proposed expansion of Abbot Point, it does appear that the current condition and
outlook facing the GBR would justify a potential inclusion on the List of Sites in
Danger, as major operations are necessary to prevent a further deterioration in the
health of the GBR.
Are these dangers amenable to correction from human action?

On the other hand, para 181 requires that the threat must be amenable to
correction by human action. 159 Whilst this criteria could be satisfied through the
cancellation of the proposed expansion of Abbot Point for example,160 in terms of the
role of the Australian Government in mitigating climate change, this is less clear.
there-is-no-space-for-new-coal> accessed 5 July 2015; OECD Press Release, ‘World must weigh the
true cost of coal to be serious about climate – OECD’s Gurría’ (3 July 2015)
<http://www.oecd.org/newsroom/world-must-weigh-the-true-cost-of-coal-to-be-serious-about-climate-
oecd-gurria.htm> accessed 5 July 2015
153
Australian Academy of Science (n 149); David Booth, ‘Australian Coral Reef Society response to
the draft Reef 2050 Long-term Sustainability Plan (Australian Coral Reef Society, 31 October 2014)
<http://www.australiancoralreefsociety.org/c/document_library/get_file?uuid=17563912-4ea5-41c1-
9510-d986efce246d&groupId=10136> accessed 12 July 2015
154
155
De’ath (n 1); Outlook Report 2014 (n 9), v
156
Operational Guidelines (n 64), para 177(c)
157
De’ath (n 1), 17998; Bellwood (n 9), 831; Anthony et al (2011) (n 20); Outlook Report 2014 (n 9),
vi
158
Ove Hoegh-Guldberg et al, ‘Coral Reefs Under Rapid Climate Change and Ocean Acidification’
(2007) 18 Science 1737; Synthesis Report (n 16), 71
159
Operational Guidelines (n 64), para 181
160
ibid
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Although the threat of climate change will impact the GBRWHA generally, this
paragraph, when read in its entirety, appears to exclude dangers posed by ‘natural
factors’.161 Furthermore, in their Strategy for Climate Change, the Committee did not
recommend that State Parties reduce their GHG emissions to comply with their
obligations under the WHC.162 This view is also consistent with comments made in
the 2013 Mission Report for the Belize Barrier Reef.163 In other words, whilst climate
change is a major threat to the future conservation and protection of the GBR, the
intent of this qualified language appears to exclude the possibility that a State Party is
under an obligation to mitigate climate change.
3.2. Do previous decisions of the World Heritage Committee set a prior

precedent?
The non-governmental organisation Earth Justice contend that the inclusion of
the Belize Barrier Reef on the List of Sites in Danger sets a precedent for the GBR,
due to similar factual circumstances and the threat of coral dredging and development
activities. 164 However, the response of the Australian Government should be
differentiated from that of the Belize Government. In response to recommendations of
the Committee,165 the Australian Government introduced a Long-Term Management
Strategy for the GBR, a commitment to reduce 80% of pollution from land-based
sources by 2025 and a restriction on new port developments.166 In contrast, Belize
were unable to meet the recommendations of the Committee in 2009, thus the
inclusion of the Belize Barrier Reef on the List of Sites in Danger.167 Additionally, the
Belize Government have benefitted from financial assistance to further ensure the
conservation and preservation of the property.168 Similarities can also be seen with
161
ibid
162
Anna Huggins, ‘Protecting World Heritage Sites from Adverse Impacts of Climate Change:
Obligations for State Parties to the World Heritage Convention’ (2007) 14 Austl Int’l L J 121, 129
163
World Heritage Committee, ‘Mission Report for Belize Barrier Reef System (Belize) (764)’ (3 June
2013) WHC-13/37.COM/7A, 22
164
Earth Justice (n 79), 20; World Heritage Committee, ‘Report of Decisions’ (Seville, 20 July 2009)
WHC-09-33.COM/20, 81
165
World Heritage Committee, ‘Draft Decision’ (28 June-8 July) WHC-15/39.COM/7B.Add available
at <http://whc.unesco.org/en/soc/3234> accessed 31 May 2015, 12
166
ibid
167
WHC-09-33.COM/20 (n 164)
168
World Heritage Committee, ‘State of Conservation: Belize Barrier Reef System’
<http://whc.unesco.org/en/soc/?action=list&id_site=764> accessed 4 August 2015
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concerns over the construction of skyscrapers in the vicinity of Cologne Cathedral.169

The site was inscribed on the List of Sites in Danger primarily due to a lack of
relevant information and engagement from the German Government.170 It therefore
appears that the evaluation of the Committee is undertaken on a case by case basis,
taking into account the different capacities and level of response from States. Thus it
does not appear that there is any precedent set by these decisions, relevant for the
inclusion of the GBR on the List of Sites in Danger.
3.3. Does the List of Sites in Danger an adequate and effective enforcement
mechanism?
Given that the criteria appears satisfied for the inclusion of the GBR on the
List of Sites in Danger, it is worth considering why the Committee has not yet chosen
to take this course of action. The inclusion of a property on the List is designed to be
non-punitive and, so far, the reactive measures taken by the Australian Government
appear to demonstrate that the “compliance pull” of the Committee is working.171 In
February 2015 for example, scientists criticised the Australian Government because
of revised plans to dump dredged coral in the Caley Valley wetlands. 172 Just two
months later, the Australian Government announced that it would be illegal to dump
capital dredge in GBRWHA and amended its proposal to dump the dredged material
on land, adjacent to the existing coal terminal.173 Whilst concerns remain surrounding
the implementation and adequacy of the Long-Term Management Strategy,174 it could
be said that the compliance pull of the Committee is securing progress in the
175
protection of the GBR. Additionally, this process remains ongoing, with
implementation set for review again in 2016. 176 Despite the absence of a “true
enforcement mechanism”, this compliance pull could be described as one strength to
169
Zacharias (n 60), 276
170
ibid
171
Goodwin (2009) (n 66), 157
172
Joshua Robertson and Oliver Milman, ‘Abbot Point dredging haste could ruin Caley valley
wetlands, says expert’ The Guardian (11 December 2014) <http://www.theguardian.com/australia-
news/2014/dec/12/abbot-point-dredging-haste-could-ruin-caley-valley-wetlands-says-expert> accessed
19 March 2015
173
See Cox (n 138)
174
See Australian Academy of Science (n 149) and Australian Coral Reef Society (n 153)
175
Erika Techera, ‘International cultural heritage’ in Shawkat Alam, Md Jahid Hossain Bhuiyan, Tareq
Chowdhury and Erika Techera (eds), Routledge Handbook of International Environmental Law (1st
Edition, Routledge 2013), 411
176
WHC-15/39.COM/7B.Add (n 164)
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the overall framework of protection under the WHC, with each case determined on an
individual basis, with a view to furthering protection in collaboration with State
Parties.
3.4. Are the Australian Government fulfilling their general obligations under the
Convention?
Nevertheless, although the “compliance pull” appears to be securing progress
in the protection of the GBR, the main threats to the property remain unaddressed.177
As articulated in Article 4 of the WHC, the Australian Government is under an
obligation to protect, conserve and transmit the GBR to future generations.178 Taking
into account the scientific evidence alongside the obligations on the Australian
Government under Article 4, it is questionable whether the broad principles guiding
the WHC are being respected. This is primarily because of the unassessed impacts of
dredging, the reduced resilience of the GBR to respond to new adverse impacts and
the lack of consideration for the contribution of this project towards climate change,
which constitutes the major threat to the GBR. 179 In other words, there remains
several grounds that appear to show the Australian Government is not in compliance
with the guiding principles of the WHC more generally, as the current scientific
outlook suggests the property will not be transmitted to future generations.180
Furthermore, despite the conservative or “soft” approach of the Committee to

climate change mitigation,181 and although each State has an element of discretion is
discharging their obligations, this discretion also does not confer to Australia
discretion as to performance or non-performance more generally. 182 From the
terminology of Article 4, which requires the Australian Government to do “all it
177
Outlook Report 2014 (n 9); Synthesis Report (n 16), 71
178
179
Synthesis Report (n 16); De’ath (n 1); Anthony et al (2011) (n 20), 1805; see also Outlook Report (n
9); see also Donald Rothwell and Tim Stephens, ‘Global climate change, the Great Barrier Reef and
our obligations’ Online Opinion (19 November 2004)
<http://www.onlineopinion.com.au/view.asp?article=2770&page=0> accessed 12 July 2015
180
Sylvia Maus, ‘Hand in hand against climate change: cultural human rights and the protection of
cultural heritage’ (2014) 27(4) Cambridge Review of International Affairs 699, 703; Tom Baxter,
‘Legal Protection for the Great Barrier Reef World Heritage Area’ (2007) 3 MqJICEL 67, 82
181
Thorson (2008) (n 59), 161; Huggins (n 162), 127 and 136
182
ibid; see also Susan Shearing, ‘Here Today, Gone Tomorrow? Climate Change and World Heritage’
(2007) Macquarie Law Working Paper 2007-11 < http://ssrn.com/abstract=1021146> accessed 15
August 2015, 27
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can…to the utmost of its own resources”, 183 this appears to suggest that Article 4
imposes an ‘obligation on the conduct’ of Australia. The International Court of Justice
(ICJ) in Pulp Mills recognised that obligations on conduct also require a certain level
of vigilance and due diligence in the exercise of their administrative control.184 In
other words, as an obligation on conduct, in exercising its discretion the Australian
Government must still comply with the guiding principles of the WHC and the
general obligations contained in Article 4. 185 Although it is unclear what is
specifically required for the protection and conservation of sites for future
generations, it could also be argued that a precautionary approach must prevail if the
concept of inter-generational equity is to be fully implemented. 186 The overriding
principles of the Convention should still be respected when a project is likely to affect
the long-term conservation and preservation of the GBR for future generations, 187
especially at a time when the property is less resilient to new adverse impacts.188 In
addressing the question as to whether international biodiversity law offers adequate
protection to the GBR, the lack of an international enforcement mechanism could be
described as one oversight in the design of the WHC.
3.5. What other avenues can be explored to uphold Australia’s obligations under
the World Heritage Convention?
On the other hand, domestic legal proceedings may provide an alternative
avenue for recourse to assess whether a State Party is in compliance with the guiding
principles of the WHC. In Mackay Conservation Group v Minister for the
183
184
Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) (2010) ICJ
Reports at, 69 para 197; see, for discussion, Pierre-Marie Dupuy, ‘Reviewing the Difficulties of
Codification: On Ago’s Classification of Obligations of Means and Obligations of Result in Relation to
State Responsibility’ (1999) EJIL 10(2) 371, 382
185
Erica Thorson, ‘The World Heritage Convention & Climate Change: The Case for a Climate-
Change Mitigation Strategy beyond the Kyoto Protocol’ in Will Burns and Hari Osofsky, Adjudicating
Climate Control: Sub-National, National and Supra-National Approaches (Cambridge University
Press 2007)
186
Kirsty Schneeberger, ‘Intergenerational equity: implementing the principle in mainstream decision-
making’ (2011) 23 ELM 20, 27
187
Goodwin (2009) (n 66), 194; William Burns, ‘Belt and Suspenders? The World Heritage
Convention’s Role in Confronting Climate Change (2009) 10(2) RECIEL 148, 163; Donald Rothwell,
‘Global Climate Change and the Great Barrier Reef: Australia’s Obligations under the World Heritage
Convention’ (Sydney Centre for International and Global Law, September 2004)
<http://sydney.edu.au/law/scigl/SCIGLFinalReport21_09_04.pdf> accessed 15 August 2015
188
De’ath (n 1), 17995
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Environment,189 currently set for directions on 5 November 2015, the applicant will
challenge the Minister of the Environment’s approval of dredging and dumping near
Abbot Point. 190 It will be argued that the approval of the project cannot be
inconsistent with the World Heritage Management Principles, the domestic
framework implementing the WHC. 191 Whilst it remains to be seen how the
Australian judiciary will evaluate these factors, there appears to be sufficient grounds
to demonstrate that the Australian Government are in breach of the guiding principles
and obligations set out in Article 4, specifically the obligation to protect, conserve and
transmit the GBR to future generations.192 It remains to be seen, however, what is
specifically required to discharge this obligation to future generations.
3.6. Would the protection of the Great Barrier Reef be stronger if the protection
extended from natural to cultural heritage?
Before concluding this chapter, it is worth considering whether the protection
of the GBR would be stronger if the property was also recognised for its cultural
heritage. For local indigenous communities, the GBR retains a unique status.193 In the
context of the proposed expansion of new coal mines in the Galilee Basin, the
Wangan and Jagalingou People have rejected an Indigenous Land Use Agreement to
allow projects on their traditional land to go ahead.194 Yet a similar situation arose in
the late 1990s, when the Committee considered the inclusion of Kakadu National Park
on the List of Sites in Danger, following similar concerns over a proposed mining
project on its borders.195 Whilst the site was not inscribed on the List, the mining
company behind the project agreed that the project would not go ahead without the
189
Mackay Conservation Group v Minister for the Environment [QUD118/2014] Federal Court of
Australia (pending), also available at
https://www.comcourts.gov.au/file/FEDERAL/P/QUD118/2014/order_list accessed 11 July 2015; see
also, for a summary and updates, Environmental Defenders Office Queensland, ‘Case update: Abbot
Point dredging’ EDO Qld (25 June 2015) <http://www.edoqld.org.au/news/mcg-v-minister-for-the-
environment-and-nqbp-dredging-case/> accessed 11 July 2015
190
ibid
191
ibid
192
193
See Day, Wren and Vohland (n 143), 20; Daley (n 23), 4; Outlook Report 2014 (n 9), 138
194
Gregg Borschmann, ‘Wangan and Jagalingou people reject $16 billion Carmichael mine to be built
in central Queensland’ ABC News (26 March 2015) <http://www.abc.net.au/news/2015-03-26/wangan-
jagalingou-people-say-no-to-16-billion-carmichael-mine-q/6349252> accessed 8 July 2015
195
See, for discussion, Natasha Affolder, ‘Democratising or Demonising the World Heritage
Convention?’ (2007) 38 Vict U Well L Rev 341, 345
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consent of the traditional landowners.196 This compliance pull assisted in providing a

forum for the concerns of the traditional landowners, despite being non-legal in
nature. This deference to the views of the traditional landowners raises the question as
to whether the protection of the GBR would be stronger under international
biodiversity law if it was also recognised for its cultural significance. To a degree
therefore, the discretion of individual State Parties to designate World Heritage Sites
appears to add a limitation to the level of protection of properties under the WHC, as
the GBR is recognised to be a site of significant cultural value to the traditional
landowners, however it is only recognised as a World Heritage site for its natural
heritage.
3.7. Does the World Heritage Convention offer adequate protection to the Great
Barrier Reef?
Whereas the Australian Government contend that the decision not to include
the GBR on the List of Sites in Danger in July 2015 indicates that the property is not
in danger,197 the Committee will continue to review the condition of the property over
the next five years, suggesting that the risks to the conservation and preservation of
the GBR have not entirely disappeared.198 In other words, the Australian government
remains firmly on probation.199 Although the compliance pull is securing progress in
the conservation and protection of the GBR, this chapter has sought to demonstrate
196
ibid 345; WHC, ‘Committee Decision on Kakadu National Park (Australia)’ (2001) WHC-
01/CONF.205/10, available at http://whc.unesco.org/en/decisions/5886/ accessed 27 June 2015, para
170-194; See, for discussion, Sam Litton, ‘The World Heritage “In Danger” Listing as a Taking’
(2011) 44 NYUJ Intl L & Pol 219, 221; Graeme Aplin, ‘Kakadu National Park World Heritage Site:
Deconstructing the Debate, 1997-2003’ (2004) 42 Austl Geographical Stud 152, 168; Oliver Milman,
‘Aboriginal group fights to stop $16 bn Carmichael coalmine, Australia’s largest’ The Guardian (25
March 2015) <http://www.theguardian.com/australia-news/2015/mar/26/aboriginal-group-fights-to-
stop-16bn-carmichael-coalmine> accessed 27 June 2015; Jennifer Rankin, ‘Indigenous Australians call
on Standard Chartered not to fund coal mine project’ The Guardian (12 June 2015)
<http://www.theguardian.com/environment/2015/jun/12/indigenous-australians-wangan-jagalingou-
standard-chartered-coal-mine-meeting> accessed 27 June 2015
197
Tony Jones, ‘Interview: Environment Minister Greg Hunt’ ABC News (2 July 2015)
<http://www.abc.net.au/lateline/content/2015/s4266595.htm> accessed 11 July 2015; see also Oliver
Milman, ‘Great Barrier Reef: Australia says UNESCO decisions show it is a ‘world leader’ The
Guardian (2 July 2015) <http://www.theguardian.com/environment/2015/jul/02/great-barrier-reef-
australia-says-unesco-decision-shows-it-is-a-world-leader> accessed 11 July 2015
198
WHC-15/39.COM/7B.Add (n 164)
199
Peter Hannam, ‘Great Barrier Reef UNESCO verdict confirmed but future status remains murky’
Brisbane Times (1 July 2015) <http://www.brisbanetimes.com.au/environment/great-barrier-reef-
unesco-verdict-confirmed-but-future-status-remain-murky-20150701-gi2wjc.html> accessed 12 July
2015
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that there remain sufficient grounds to satisfy the inclusion of the property on the List
of Sites in Danger.200 Yet the operation of the List of Sites in Danger is designed to be
non-punitive and the Committee must ultimately balance the political advantages and
disadvantages of inscribing a property on the List, 201 especially when a State is
fulfilling the recommendations set by the Committee.202 It also does not appear that
the Australian Government are acting in compliance with the guiding principles of the
WHC, especially given the obligation to conserve, protect and transmit the property to
future generations.203 Whilst it is not envisaged that the Committee should become
involved in setting mitigation targets, 204 the Australian Government have failed to
consider their role in addressing the single biggest threat to the conservation and
preservation of the GBR for future generations.205 On domestic level, it also remains
to be seen whether the Australian judiciary will require the Government to mitigate
climate change to fulfil their obligations under the WHC.206
200
See Section 3.1
201
Goodwin (2009) (n 66), 157; Maswood (n 63), 357; Logan (n 83), 172
202
See Hannam (n 199)
203
204
Greg Terrill, ‘Climate Change: How Should the World Heritage Convention Respond?’ (2008)
14(5) International Journal of Heritage Studies 388, 399-400
205
206
Mackay Conservation Group v Minister for the Environment [QUD118/2014] (n 189)
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4. Does the Convention on Biological Diversity offer adequate protection to the

Great Barrier Reef?
Alongside the WHC, the Convention on Biological Diversity (CBD) is another
key pillar within international biodiversity law.207 As well as representing one of the
most widely ratified international environmental agreements,208 the CBD aspires to
ensure the protection of entire ecosystems.209 For the GBR, this ensures the CBD has
a broad geographical application and raises the importance of the Convention. This
Chapter will critically discuss whether Australia is in compliance with their specific
obligations under the CBD, as well as considering their compliance with the guiding
principles behind the Convention. Given the CBD is heavily dependent on domestic
implementation,210 this Chapter will have a particular focus on Australian domestic
211
law. Due to the absence of an international enforcement mechanism, the
enforcement of the CBD through the domestic legal system will also be discussed.212
It will be argued that the CBD has enhanced the protection of the GBR’s biodiversity,
however it remains to be seen whether the CBD imposes an obligation on Australia to
mitigate climate change.
4.1. Are the Australian government in compliance with their obligations under
the Convention on Biological Diversity?
Prime facie the Australian government does appear to be in compliance with
the majority of the precisely defined obligations under the CBD. In compliance with
Article 6, the Australian Government published their Conservation Strategy for 2010
to 2030, outlining a guiding framework for the conservation of biodiversity. 213
Similarly, the Great Barrier Reef Marine Park Area has been established since 1975
as the primary method for protecting the GBR as an ecosystem. 214 Alongside this
207
CBD (n 36)
208
Birnie, Boyle and Redgwell (n 94), 612
209
Decision V/6 (n 43); Lyster’s International Wildlife Law (n 60), 594
210
Catherine Tinker, ‘A “New Breed” of Treaty: The United Nations Convention on Biological
Diversity’ (1995) 13 Pace Envtl L Rev 191, 192
211
Environment Protection and Biodiversity Conservation Act 1999 (n 53)
212
Mary Ellen O’Connell, ‘Enforcement and the Success of International Environmental Law (1995)
3(1) Ind J Global Legal Studies 47, 48
213
Natural Resource Management Ministerial Council 2010, Australia’s Biodiversity Conservation
Strategy 2010-2030 (Australian Government, Department of Sustainability, Environment, Water,
Population and Communities 2010) (Biodiversity Strategy)
214
Great Barrier Reef Marine Park Act 1975
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legal protection, the Great Barrier Reef Marine Park Authority (GBRMPA) provides
for monitoring and oversight of the GBR.215 Their role extends to the publication of
both the Biodiversity Conservation Strategy and the publication of Outlook Reports
every five years, which provide a comprehensive overview of the science and identify
the major threats to the biodiversity of the GBR. 216 The Authority has received
international recognition for its work and is recognised as an effective management
model for the protection of a World Heritage Site. 217 Whereas some of these
initiatives predate the CBD, such as the establishment of the GBRMPA, the
formulation of Biodiversity Strategies reflects the positive influence of the CBD on
domestic policy in advancing the consideration of biodiversity and through these
initiatives, the protection of the GBR.
When considering the adequacy of the obligations enshrined in the CBD,

consideration must also be given to the obligation on State Parties to undertake an
Environmental Impact Assessment (EIA). 218 Under Article 14 of the CBD, State
Parties are required to ensure that the environmental consequences of its proposed
projects, programmes and policies that are “likely to have significant adverse impacts
on biological diversity” are “duly taken into account.”219 Whilst it can be anticipated
there is an element of discretion in how a State discharges this obligation,220 the CBD
itself does not elaborate on the precise content required for an EIA. Subsequent
Decisions of the COP have only introduced voluntary guidelines, which cannot be
considered binding. 221 Given concerns over the adequacy of the EIA for Abbot
Point,222 this lack of compulsory guidance could be described as one limitation to the
effectiveness of the CBD.
215
ibid s6-s8B
216
Great Barrier Reef Marine Park Authority, ‘Great Barrier Reef Biodiversity Conservation Strategy
2013’ (Great Barrier Reef Marine Park Authority 2013); Outlook Report 2009 and 2014 (n 3 and n 9)
(GBR Biodiversity Strategy)
217
WWF, ‘Great Barrier Reef Marine Park Act Review should preserve not ‘wind back’ protections’
WWF (22 August 2005) < http://www.wwf.org.au/?2312/Great-Barrier-Reef-Marine-Park-Act-Review-
should-preserve-not-wind-back-protections> accessed 6 August 2015
218
CBD (n 36), Article 14(a) and (b)
219
ibid
220
Case Concerning Pulp Mills on the River Uruguay (n 184), para 205
221
CBD,’ Decision VIII/28 Impact assessment: Voluntary guidelines on biodiversity-inclusive impact
assessment’ (Curitiba, 20-31 March 2006) UNEP/CBD/COP/DEC/VIII/28
222
Synthesis Report (n 16); see also Ward (n 140); see also Department of State Development,
Infrastructure and Planning, ‘Abbot Point Port and Wetland Project: Preliminary Documentation:
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Yet in evaluating whether the full contribution of the project to climate change
needs to be assessed, the domestic case law may provide further clarification. In Anvil
Hill Project Watch Association v Minister for the Environment and Water
Resources, 223 the Court was asked to consider the grounds which trigger an
assessment under the legislation.224 The Judge noted that the key question is whether
the impact from a “controlled action” is, will be, or is likely to be significant on world
heritage or the marine environment.225 In this case, the appellants were unsuccessful
in proving a nexus between the impact of a proposed coal mine and the resultant
greenhouse gas emissions on the GBR. 226 However, the case clarified that the
Minister must consider both the direct and indirect impacts of a controlled action.227
Although an EIA does not necessarily guarantee that environmentally sustainable
development (ESD) will be achieved, 228 this requirement that “controlled actions”
must consider their indirect impacts on biodiversity, world heritage and the marine
environment does strengthen the protection of the GBR, provided there is a sufficient
chain of causation.229 Whilst this legislation has evolved separately to the voluntary
guidelines of the COP, in respect of EIAs, Australian domestic law does appear to
adequately enforce the provisions of the CBD.
Volume 2 Impact Assessment of Abbot Point Port and Wetland Project’ (Queensland Government, 2
December 2014) < http://www.statedevelopment.qld.gov.au/resources/plan/abbot-point/abbot-point-
preliminary-doc-vol-2.pdf> accessed 11 July 2015; see also Volume 3 (n 142);
223
Anvil Hill Project Watch Association v Minister for the Environment and Water Resources [2008]
FCA 1480; see also Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v
Minister for the Environment and Heritage and Others [2006] FCA 736; for summary see Brad Jessup,
Environmental Law (LexisNexis Butterworths 2012), 2
224
ibid
225
ibid; discussing Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 (n
53)
226
ibid
227
See, for discussion, Katherine McGree, ‘The legal obligation to consider greenhouse gas emissions
in an application of the precautionary principle, (2009) 2(1) QLSR 45, 53
228
Lee Godden and Jacqueline Peel, Environmental Law: Scientific, Policy and Regulatory Dimensions
(1st Edition, Oxford University Press 2009), 169
229
See also Meredith Gibbs, ‘Considering cumulative and indirect greenhouse impacts: How far should
decision makers go?’ in Wayne Gumley and Trevor Daya-Winterbottom, Climate Change Law:
Comparative, Contractual & Regulatory Considerations (1st Edition, Thomson Reuters 2009), 138;
see also Chris McGrath, ‘Regulating greenhouse gas emissions from Australian coal mines’ in Gumley
and Daya-Winterbottom, 243
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4.2. Does the domestic enforcement of the Convention on Biological Diversity

offer adequate protection to the Great Barrier Reef?
As previously noted, concerns have nevertheless been raised concerning the
adequacy of the EIA for Abbot Point, both in terms of the direct impacts from
dredging and the indirect contribution of the project to climate change.230 In contrast
to the previous case law,231 the most recent scientific analysis would appear to suggest
that a sufficient nexus exists between the contribution of the development to the
resultant rise in GHG emissions. 232 However, the Australian judiciary has yet to
review the EIA for the proposed expansion of Abbot Point. In the absence of this
judicial evaluation, it is difficult to fully assess whether the domestic legislation
implementing the CBD offers adequate protection to the GBR and whether this also
entails an obligation on the Australian Government to consider their role in mitigating
climate change.
As a common law jurisdiction, the case law may provide some further
guidance. Yet from body of law, it remains unclear the extent to which decision
makers must consider the cumulative and indirect GHG emissions arising from
controlled actions. In the recent case of Mackay Conservation Group v
Commonwealth of Australia and Adani Mining, the respondents contended that the
Minister for the Environment had failed to consider the resultant rise in emissions
from the consumption of coal in the EIA for the proposed development of a coal mine
in the Galilee Basin.233 Although the Court set aside the decision of the Minister due
to a failure to take into account the impact of the mine on two threatened species,234
the Court omitted to consider the indirect impact of the mine on the GBRWHA. A
230
Synthesis Report (n 16); see also Ward (n 140); see also Department of State Development,
Infrastructure and Planning, ‘Abbot Point Port and Wetland Project: Preliminary Documentation:
Volume 2 Impact Assessment of Abbot Point Port and Wetland Project’ (Queensland Government, 2
December 2014) < http://www.statedevelopment.qld.gov.au/resources/plan/abbot-point/abbot-point-
preliminary-doc-vol-2.pdf> accessed 11 July 2015; see also Volume 3 (n 142)
231
Anvil Hill Project Watch Association v Minister for the Environment and Water Resources (n 223)
232
Frieler et al (n 31); McGlade and Ekins (n 32); Climate Council (n 33)
233
ibid; Mackay Conservation Group v Commonwealth of Australia and Adani Mining [NSD33/2015]
Federal Court of Australia (pending), available at
<https://www.comcourts.gov.au/file/Federal/P/NSD33/2015/actions> accessed 11 July 2015
234
ibid
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similar objection was raised in Land Services of Coast and Country,235 heard before
the Queensland Land Court in April 2015, which included reference to the failure of
the Government to fully assess the impacts to the GBRWHA. 236 A judgment is
expected in late 2015.237 As noted by Meredith Gibbs however,
“In the absence of legislation, there is a need for the Australian judiciary to
provide guidance to decision makers acting under the EPBC Act concerning
how far they must go in considering cumulative and indirect GHG impacts."238
Whilst it does appear that sufficient consideration has been given to the need for
proposed actions to consider their direct impacts, the Courts have not yet definitively
answered this question as to whether there is a legal need to consider the cumulative
and indirect impacts of a project in terms of GHG emissions and the repercussions for
biodiversity.
In assessing whether the EPBC Act offers adequate protection to the GBR,
research by the Guardian has also found that only 2.2% of projects have been rejected
since the legislation entered into force. 239 Taking into account these statistics, the
adequacy of domestic enforcement could be questioned. On the other hand however,
97.1% of projects being approved with conditions. 240 Given that these conditions
serve to strengthen the protection of biodiversity and endangered species, the
legislation could be described as securing a beneficial impact in the protection of
Australia’s biodiversity. To quote Dr Chris McGrath therefore, the Act is a “skeleton
with good bones.”241 Whilst it remains to be seen how the domestic judiciary will
assess the proposed expansion of Abbot Point, the EPBC Act does appear to provide
an effective model for ensuring the protection of the GBR, although there remains a
235
Adani Mining Pty Ltd v Land Services of Coast and Country Inc and Others [2015] Land Court of
Queensland (pending)
236
See ibid, Opening Submissions on behalf of the First Respondent <http://envlaw.com.au/wp-
content/uploads/carmichael3.pdf> accessed 11 July 2015
237
ibid Environmental Defenders Office Queensland, ‘Latest on the Case: Adani Carmichael coal mine
objection’ (14 May 2015) <http://www.edoqld.org.au/adani-carmichael-live-feed/> accessed 11 July
2015
238
Gibbs (n 229), 138
239
Oliver Milman and Nick Evershed, ‘Australia has denied environmental approval to just 18 projects
since 2000’ The Guardian (12 August 2015)
<http://www.theguardian.com/environment/2015/aug/12/australia-has-denied-environmental-approval-
to-just-11-projects-since-2000> accessed 16 August 2015
240
ibid
241
ibid
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role for the judiciary to further clarify whether there is a need for the judiciary to
assess the cumulative and indirect impacts of GHG emissions arising from projects.
4.3. Is the Australian Government in breach of the guiding principles behind the
Convention on Biological Diversity?
Given the present and future threats to the GBR, alongside the specific
obligations, it is also worth considering whether Australia is in compliance with the
guiding principles behind the CBD. 242 The most important of these principles is
arguably the precautionary principle, 243 which is also recognised as a principle of
customary international law. 244 On a domestic level, the principle is articulated
through Australia’s National Biodiversity Strategy and the Biodiversity Strategy for
the GBR.245 As a common law legal system, the domestic judiciary has also played an
important role in defining the precautionary principle.246 In the Leatch case,247 it was
noted that,
“In my opinion the precautionary principle is a statement of common sense...
It is directed towards the prevention of serious or irreversible harm to the
environment in situations of scientific uncertainty. Its premise is that where
uncertainty or ignorance exists concerning the nature or scope of
environmental harm…decision-makers should be cautious.”248
As noted by Jacqueline Peel, this definition ‘echoes’ the reference to prudence and
caution in international cases. 249 The adoption of the precautionary principle in
Australian law therefore appears to further constrain Australia’s sovereignty,
requiring decision-makers to express caution in situations where there is a threat of
serious or irreversible harm.
242
243
ibid
244
Svitlana Kravchenko, Tareq Chowdhury and Md Jahid Hossain Bhuiyan, ‘Principles of international
environmental law’ in Routledge Handbook of International Environmental Law (n 175), 46-50
245
Biodiversity Strategy (n 213); GBR Biodiversity Strategy (n 216)
246
See, for discussion, Charmlan Barton, ‘The Status of the Precautionary Principle in Australia: Its
emergence in legislation and as a common law doctrine’ (1998) 22 Harv Envtl L Rev 509
247
Leatch v National Parks and Wildlife Service [1993] NSWLEC 191; (1993) 81 LGERA 270, also
available at < http://www.austlii.edu.au/cgi-
bin/sinodisp/au/cases/nsw/NSWLEC/1993/191.html?stem=0&synonyms=0&query=~%20leatch>
accessed 11 July 2015
248
ibid at 278; See, for discussion, Barton (n 246), 535-542; and Jacqueline Peel, ‘Interpretation and
Application of the Precautionary Principle: Australia’s Contribution’ (2009) 18(1) RECIEL 11, 15
249
ibid at 16
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Australian domestic law has also adopted and advanced the concept of
sustainable development. Whilst the normative status of the concept of sustainable
development remains unclear on an international level,250 Australian domestic law has
enshrined a commitment to principles of ecologically sustainable development (ESD)
under s3A of the EPBC Act. 251 This includes a requirement for decision-making
processes to integrate both the long-term and short-term environmental
considerations, the precautionary principle should be used in situations where there is
a threat of serious or irreversible environmental damage and the principles of inter-
generational equity and biodiversity should also be fundamental considerations in
decision-making. 252 Therefore, it appears that Australian domestic law has been
advanced in light of the CBD, potentially securing greater protection to the GBR.
In the context of the proposed expansion of Abbot Point however, can it be

said that these two principles of ESD have been given sufficient consideration? In
particular, the long-term risks from dredging and coal dust pollution remain
unclear.253 Somewhat paradoxically, there is also scientific certainty that if Australia
proceeds with the full utilisation of its coal reserves in the Galilee Basin, it is likely
that the global temperature rises will exceed the 2°C,254 with subsequent repercussions
for the biodiversity of the GBR.255 Similar to the concerns over the adequacy of the
EIA for Abbot Point, it remains to be seen how the Australian judiciary will evaluate
the application of these principles of ESD and whether they have been given
sufficient consideration by decision makers. To some extent, the absence of an
250
Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’ in Alan Boyle A and
David Freestone, International Law and Sustainable Development: Past Achievements and Future
Challenges (1st Edition, Oxford University Press 1999), 36; Amado Tolentino, ‘Sovereignty over
Natural Resources: Change of Concept or Change of Perception? (2014) 44(3) Envtl Poly and Law
300; contrast with Susan Bragdon, ‘National Sovereignty and Global Environmental Responsibility:
Can the Tension be reconciled for the Conservation of Biological Diversity? (1992) 33(2) Harv Intl L J
381; see also Separate Opinion of Judge Weeramantry in Case Concerning the Gabčíkovo-Nagymaros
Project (Hungary/Slovakia) (Judgment) (1997) ICJ Reports 7, 88
251
Environment Protection and Biodiversity Conservation Act 1999 (n 53), s3A; cf with Case
Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) (1997) ICJ Reports,
para 140
252
ibid
253
See Synthesis Report (n 16); Ahrens and Donald Morrisey (n 15)
254
See McGlade and Ekins (n 32); and Climate Council Report (n 33)
255
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international enforcement mechanism under the CBD could therefore be described as

one oversight to the protection of the GBR under international biodiversity law.
4.4. Do subsequent Decisions of the COP further clarify the obligation of the
Australian Government to mitigate climate change?
It has been argued by some academics that the CBD embodies a “framework
approach”, “attracting parties to a very general, aspirational Convention and only later
attempts to bind the same parties through substantive protocols.” 256 Whilst it does
appear the CBD itself contains legal obligations,257 it is worth considering whether the
subsequent Decisions of the COP further reinforce or clarify the obligations of the
Australian Government under the CBD to mitigate climate change. In Decision V/23,
the COP noted the threat of climate change and requested remedial measures from
State Parties in line with the precautionary approach.258 Decision VII/5 further urged
parties to address threats arising from land and shipping to maximise the effectiveness
of marine protected areas, taking into account effects of climate change and rising sea
levels. 259 Most recently, Decision X/29 invited Parties to further integrate climate
change related aspects of marine and coastal biodiversity into national biodiversity
strategies and stresses the importance of mitigation to climate change.260 From these
decisions, it appears the primary focus of the COP appears to be on adaptation to
climate change and not necessarily climate change mitigation. Although mitigation
has been encouraged, State Parties have not been compelled to take action.261
To what extent can it be said that these Decisions help inform our
understanding of the main obligations contained in the CBD? From the
aforementioned Decisions, it appears that the COP hasp referred to focus on climate
256
Brent Hendricks, ‘Postmodern Possibility and the Convention on Biological Diversity’ (1996) 5
NYU Envtl L J 1, 8; McGraw (n 104)
257
Wold (n 104), 15-16
258
CBD, ‘Decisions adopted by the Conference of the Parties to the Convention on Biological
Diversity at its Fifth Meeting’ (Nairobi, 15-26 May 2000) UNEP/CBD/COP/5/23, 66
259
CBD, ‘Decision adopted by the Conference of the Parties to the Convention on Biological Diversity
at its Seventh Meeting’ (Kuala Lumpur, 13 April 2004) UNEP/CBD/COP/DEC/VII/5
260
CBD, ‘Decision adopted by the Conference of the Parties to the Convention on Biological Diversity
at its Tenth Meeting’ (Nagoya, 18-29 October 2010) UNEP/CBD/COP/DEC/X/29
261
Goodwin (2011) (n 50), 135
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change mitigation, deferring to the on-going climate negotiations taking place under
the auspices of the UNFCCC to address the need for climate change mitigation.
Yet does this affect the underlying nature of the obligations under the CBD?
Climate change is recognised as the biggest threat to the GBR.262 The CBD aspires to
conserve biodiversity for future generations. 263 Given the carbon intensity of coal
when compared to other sources of energy,264 recent scientific analysis demonstrates
that there is a sufficient nexus between Australia’s pursuit of new coal mines in the
Galilee Basin and the world exceeding 2°C of global warming. 265 This target is
considered crucial for the conservation and preservation of the GBR for future
generations.266 Whilst the CBD has chosen to focus on climate change adaptation, this
should not affect the underlying obligations under the Convention to conserve
biodiversity for future generations.267
4.5. Does the Convention on Biological Diversity offer adequate protection to the
Great Barrier Reef?
The CBD has so far been unable to achieve one of its most important
objectives, namely stemming the rate of global biodiversity loss.268 This is reflected in
the continued decline in the biodiversity on the GBR.269 From a legal perspective, the
obligations under the CBD have been described as “inchoate”, which may explain
why it has been limited in its effectiveness. 270 Moreover, whilst the Australian
Government has fulfilled many of the precise obligations under the CBD, the
Convention is limited in that it there is no mechanism for enforcement on an
international level that serves to clarify and elaborate on the precise nature of the
262
Outlook Report 2014 (n 9), v; Vulnerability Assessment (n 23), 2; see also Susan Shearing,
'Biodiversity' in David Leary and Balakrishna Pisupati, The future of international environmental law
(United Nations University Press 2010), 44
263
264
International Energy Agency (n 152)
265
McGlade and Ekins (n 32); Climate Council (n 33)
266
267
268
Goodwin (2011) (n 50), 136
269
Outlook Report (n 9), 37
270
Chidi Oguamanam, ‘Biological diversity’ in Routledge Handbook of International Environmental
Law (n 175), 213
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obligations under the CBD. Nevertheless, as shown by the State of Tasmania,271 the
vagueness of language does not detract from the legal force of these provisions. The
CBD has also influenced the development and adoption of a number of principles in
Australian law and, in this respect, it has strengthened the legal protection of the
GBR.272 For example, the principles of ecologically sustainable development, which
includes the precautionary principle and inter-generational equity, 273 have been
adopted into domestic legislation. It is also clear from domestic law that decision
makers must assess both the direct and indirect impacts of a project on the GBR for
“controlled actions”.274 Yet, similar to the WHC, it still remains to be seen how the
domestic judicial system will assess whether the obligations to conserve biodiversity
for future generations entails an obligation to mitigate climate change.275 Until this
point has been considered judicially, it remains difficult to comprehensively answer
the question as to whether the CBD offers adequate protection to the GBR.
271
See The Commonwealth of Australia v the State of Tasmania (n 60)
272
See the Environment Protection and Biodiversity Conservation Act 1999 (n 53)
273
ibid
274
ibid s78; McGree (n 227), 53
275
Mackay Conservation Group v Commonwealth of Australia and Adani Mining (n 233); Adani
Mining Pty Ltd v Land Services of Coast and Country Inc and Others (n 235)
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5. Conclusion
To answer the question as to whether international biodiversity law offers
adequate protection to the GBR, this thesis has sought to evaluate the obligations and
compliance mechanisms of the WHC and the CBD, as two central pillars of the
existing legal framework for the GBR.276 The proposed expansion of Abbot Point has
been utilised to illuminate this discussion, as it highlights the discord faced by many
States today, namely the conflict between their sovereign rights over their natural
resources, their discretion in domestic energy policy and their increasing obligations
under international biodiversity law.
To consider the adequacy of the WHC, Chapter Three considered the criteria
for the inclusion of a property on the List of Sites in Danger. From a legal assessment
of the Operational Guidelines,277 it does appear that there are sufficient grounds for
the inclusion of the GBR on the List of Sites in Danger. However, the Committee has
to balance their objective of ensuring greater protection of World Heritage Sites
alongside the potential infringements on a State’s sovereignty that arises from
inclusion on the List, especially if that State does not consent to such a decision.278 As
shown by the deliberations surrounding Kakadu National Park, this conflict has
proven problematic on previous occasions.279 Furthermore, although the “compliance
pull” generated by the Committee is securing progress for the protection of the GBR,
the overall outlook for the property remains poor and the Long-Term Management
Plan fails to consider climate change, which constitutes the biggest threat to the
GBR.280 The obligation assumed by the Australian Government to protect, conserve
and transmit the GBR to future generations must therefore be taken into account,281
especially as an obligation on conduct. 282 Can it truly be said that the Australian
Government is doing “all it can” to the “utmost of its resources” in good faith?283
276
See Chapters Three and Four respectively
277
For the Operational Guidelines see (n 30) or Appendix One for an excerpt of Part IV.B, paras 177 to
182
278
Maswood (n 63), 357; Logan (n 83); Zacharias (n 83)
279
Francesco Francioni and Federico Lenzerini, ‘The Future of the World Heritage Convention:
Problems and Prospects’ in Francioni (ed) (n 7), 406
280
See De’ath (n 1); Outlook Report 2014 (n 9)
281
282
283
ibid
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Whilst the CBD also lacks an international enforcement mechanism,284 it has

been ratified and adopted into Australian domestic law.285 Whereas the CBD has been
criticised for the vague wording of its Articles,286 the case of the Commonwealth of
Australia v The State of Tasmania demonstrates that this does not detract from the
binding nature of these obligations.287 Australian environmental protection has also
progressed in light of the CBD. The EPBC Act articulates a need for decision-makers
to consider environmentally sustainable development which in turn includes
consideration for the precautionary principle and the concept of inter-generational
equity. 288 As such, this serves to further constrain Australia’s right to pursue
unfettered economic development. On the other hand, it remains unclear whether the
CBD entails an obligation to mitigate climate change. In light of the proposed
expansion of Abbot Point, it also remains to be seen how a domestic judiciary will
evaluate the precise nature of the main obligations under the Convention and whether
the Australian Government is doing enough to conserve the biodiversity of the GBR
for future generations.289
As the world’s most extensive coral reef eco-system, the health of the GBR
could be described as a litmus test for the health of the world’s oceans.290 Yet to quote
the former Australian Ambassador for the Environment to the United Nations,
“The concept of absolute sovereignty of States will have to make concessions
as never before in the face of today’s emerging crisis. there will have to be a
high degree of willing subordination of national sovereignty in favour of the
common good of all nations.” 291
Although this concept of state sovereignty is constrained by a State’s own
environmental policies,292 it remains to be seen whether the WHC and the CBD can
284
Goodwin (2009) (n 66)
285
Environment Protection and Biodiversity Conservation Act 1999 (n 53), Chapter 5
286
Adam (n 106); Chandler (n 106); Kimball (n 106)
287
The Commonwealth of Australia v the State of Tasmania (n 60)
288
Environment Protection and Biodiversity Conservation Act 1999 (n 53), s3A
289
See Mackay Conservation Group v Commonwealth of Australia and Adani Mining (n 233); Adani
Mining Pty Ltd v Land Services of Coast and Country Inc and Others (n 235)
290
Rothwell and Stephens (n 179)
291
Ninian Stephen, ‘The Growth of International Environmental Law’ (1991) 8 EPLJ 185, quoted in
Hassan (n 137), 46
292
CBD (n 36), Article 3
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be used as vehicles to ensure the Australian Government mitigates its contribution to

climate change, especially when a site of significant natural heritage, with unique
biodiversity, remains to be detrimentally affected by a proposed development. This
development is also being pursued at a time long-term threats such as climate change
are amplifying the impacts of local pressures.293 Whilst it is not envisaged that the
WHC or CBD should set targets for climate change mitigation,294 and although State
Parties have an element of discretion in domestic policy, this still should not affect the
underlying and overriding objectives of both Conventions. As explained by Catherine
Tinker, “sustainable development is not, and should not be, an attempt to freeze
everything the way it is now.” 295 Rather, it envisages the careful utilisation of
resources, only utilised in situations where the effects can be predicted and
controlled. 296 To ensure the GBR and its biodiversity is transmitted to future
generations,297 this would require the Australian Government to have due regard to
the need to mitigate their contribution to climate change, 298 as this constitutes the
single biggest threat to the GBR.299 In the context of Abbot Point and the proposed
development of new coal mines in the Galilee Basin, this development is not
consistent with the concept of sustainable development.
Overall, it could be said that the general weakness of international biodiversity

law is the lack of a true enforcement mechanism that assists in the interpretation of
the precise obligations under both the WHC and the CBD. On the other hand, the List
of Sites in Danger offers a hybrid and unique model that balances scientific
objectivity with political realities. 300 In the case of the GBR, this compliance
mechanism has also secured progress in the conservation and preservation of the
property. Additionally, a truly legal enforcement mechanism may not be entirely
feasible and may discourage involvement from State Parties.301 Thus domestic legal
enforcement may prove to be more effective way to uphold the obligations entailed
293
De’ath (n 1), 17995; Bellwood (n 9), 831; Hughes et al (2011) (n 9)
294
Terrill (n 204)
295
Tinker (n 210), 198
296
ibid
297
298
Frieler et al (n 31); McGlade and Ekins (n 32); Climate Council (n 33)
299
300
Goodwin (2009) (n 66)
301
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under the WHC and CBD. To a point therefore, international biodiversity law does
offer adequate protection to the GBR through imposing legally binding obligations on
the Australian Government, but until a domestic judiciary considers the precise nature
of these obligations in respect of the need to mitigate climate change, which
constitutes the main threat to the GBR, 302 the question as to whether international
biodiversity law offers adequate protection to the GBR cannot be definitively
answered.
302
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Acknowledgements
I would like to thank Professor Greg McIntyre, of the University of Western
Australia, for providing the inspiration for this thesis. As a result of his article, which
evaluated whether the dumping of dredge material on the Great Barrier Reef is
compliant with international law, this spurred my interest to consider whether the
international biodiversity law, more broadly, offers adequate protection to the Great
Barrier Reef.
I am grateful to the Australian Coral Reef Society, and in particular Dr Selina

Ward and Dr Selma Klanten, for giving me the opportunity to attend their Annual
Conference, which provided me with the opportunity to gain a critical understanding
of the most recent scientific research on the Great Barrier Reef.
In formulating this thesis, the support and input of the academic staff at the
University of Edinburgh has also been extremely appreciated, namely Dr Annalisa
Savaresi, Dr James Harrison and Professor Alan Boyle. I would also like to thank
Professor Elisa Morgera for her continued support and feedback as my supervisor.
Finally, I would like to thank my family and friends who have assisted, in
various ways, to this dissertation, including Nick, Eve, Kyle and Beau.
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Abbreviations, acronyms and measurements
Abbreviations and acronyms

ACRS Australian Coral Reef Society
AILA Australian International Law Association
CBD Convention on Biological Diversity
CBDR Common but Differentiated Responsibilities
CITES Convention on International Trade in Endangered Species of Wild
Fauna and Flora
CMS Convention on the Conservation of Migratory Species
COP Conference of Parties
EEZ Exclusive Economic Zone
EPBC Environment Protection and Biodiversity Conservation Act 1999
GBR Great Barrier Reef
GBRMPA Great Barrier Reef Marine Park Authority
GBRWHA Great Barrier Reef World Heritage Area
GHG Greenhouse Gas Emissions
ICCROM International Centre for the Study of the Preservation and Restoration
of Cultural Property
ICOMOS International Council on Monuments and Sites
IMO International Maritime Organization
IUCN International Union for the Conservation of Nature
MEAs Multilateral Environmental Agreements
OUV Outstanding Universal Value
PSNR Permanent Sovereignty over Natural Resources
PSSA Particularly Sensitive Sea Areas
RAMSAR Convention on Wetlands of International Importance, especially as
Waterfowl Habitat
UNCED United Nations Conference on Environment and Development
UNCLOS United Nations Convention on the Law of the Sea
UNFCCC United Nations Framework Convention on Climate Change
WHC World Heritage Convention
WHL World Heritage List
Measurements
CO2 Carbon Dioxide Emissions
Gt Gigatonnes
Mt Million tonnes
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Table of Cases
1957 Lake Lanoux Arbitration (France v Spain) (1957) 24 ILR 101; 12 RIAA 281
1983 The Commonwealth of Australia v The State of Tasmania [1983] HCA 21; 46
ALR 625; 68 ILR 266
1993 Leatch v National Parks and Wildlife Service [1993] NSWLEC 191; (1993) 81
LGERA 270
1995 Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA
20; (1995) 128 ALR
1997 Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia)
(Judgment) (1997) ICJ Reports
2006 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch
Inc v Minister for the Environment and Heritage and Others [2006] FCA 736
2007 Anvil Hill Project Watch Association v Minister for the Environment and
Water Resources [2007] FCA 1480
2010 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay)
(Judgment) (2010) ICJ Reports 14
2015 Adani Mining Pty Ltd v Land Services of Coast and Country Inc and Others
[2015] Land Court of Queensland (pending)
Mackay Conservation Group v Minister for the Environment [QUD118/2014]
Federal Court of Australia (pending)
Mackay Conservation Group v Commonwealth of Australia and Adani Mining
[NSD33/2015] Federal Court of Australia (pending)
Urgenda Foundation v The State of the Netherlands (Ministry of
Infrastructure and the Environment (2015) C/09/456689
Table of Legislation and Official Documents
Australian Domestic Legislation

1975 Great Barrier Reef Marine Park Act
1979 Environmental Planning and Assessment Act
1983 Great Barrier Reef Marine Park Regulations
World Heritage Properties Conservation Act
1999 Environment Protection and Biodiversity Conservation Act
International Conventions and Declarations

1971 Convention on the Conservation of Wetlands of International Importance
Especially as Waterfowl Habitat (Ramsar) (adopted 2 February 1971, entered
into force 21 December 1975) 996 UNTS 245
1972 Convention for the Protection of the World Cultural and Natural Heritage
(adopted 16 November 1972, entered into force 17 December 1975) 1977
UNTS 151
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1973 Convention on International Trade in Endangered Species of Wild Fauna and

Flora (CITES) (adopted 3 March 1973, entered into force 1 July 1975) 993
UNTS 244
1979 Convention on the Conservation of Migratory Species of Wild Animals
(CMS) (adopted 23 June 1979, entered into force 1 November 1983) 1651
UNTS 356
1980 Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into
force 27 January 1980) 1155 UNTS 18232
1982 United Nations Law of the Sea Convention (adopted 10 December 1982,
entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS)
1992 Convention on Biological Diversity (with Annexes) (adopted 5 June 1992,
entered into force 29 December 1993) 1760 UNTS 79
Rio Declaration on Environment and Development (1992) 31(4) ILM 874
International Decisions
IMO, ‘Designation of the Torres Strait as an Extension of the Great Barrier Reef
Particularly Sensitive Sea Area’ (22 July 2005) MEPC 53/24/Add.2 Annex 21,
revoking MEPC 45(30)
‘Memorandum of Understanding on the Conservation and Management of Dugongs

(Dugong dugong) And Their Habitats Throughout their Range’ (Abu Dhabi, 31
October 2007) CMS/DUGONG/INF.5
‘Memorandum of Understanding for the Conservation of Cetaceans and their Habitats
in the Pacific Islands Region’ (Noumea, 15 September 2006) UNEP/CMS/PIC-
1/Inf/3
‘Memorandum of Understanding on the Conservation of Migratory Sharks’ (Manila,
12 February 2010) CMS/Sharks/MOS1/Inf.1
Convention on Biological Diversity, ‘Decision adopted by the Conference of the

Parties to the Convention on Biological Diversity at its Tenth Meeting’ (Nagoya,
29 October 2010) UNEP//CBD/COP/DEC/X/29
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Barrier Reef World Heritage Area (Australia)’ (Australian Government, 30
January 2015) <http://whc.unesco.org/document/134992> accessed 19 March 2015
BMT WBM Pty Ltd, ‘Kaili (Caley) Valley Wetlands Baseline Report’ (Office of the
Coordinator-General, Department of State Development February 2012)
<http://www.statedevelopment.qld.gov.au/resources/plan/cg/abbot/baseline-
profile-for-the-kail-valley-wetlands.pdf> accessed 20 June 2015
Burck J, Franziska Marten F and Bals C, ‘The Climate Change Performance Index
Results 2015’ (December 2014) <http://germanwatch.org/en/download/10407.pdf>
accessed 6 April 2015
Climate Council, ‘Unburnable Carbon: Why we need to leave fossil fuels in the
ground’ (Climate Council of Australia, April 2015) available at
<http://www.climatecouncil.org.au/unburnable-carbon-why-we-need-to-leave-
fossil-fuels-in-the-ground> accessed 27 June 2015
Deloitte Access Economics, ‘Economic Contribution of the Great Barrier Reef’
(Great Barrier Reef Marine Park Authority, March 2013)
<http://www.environment.gov.au/system/files/resources/a3ef2e3f-37fc-4c6f-ab1b-
3b54ffc3f449/files/gbr-economic-contribution.pdf> accessed 7 August 2015
Department of State Development, Infrastructure and Planning,’ Environment
assessment: Abbot Point Port and Wetlands Project (2014)’ (Queensland
Government, 27 May 2015) <http://www.statedevelopment.qld.gov.au/major-
projects/environmental-assessment.html> accessed 12 July 2015
— —, ‘Volume 2: Impact Assessment of Abbot Point Port and Wetland Project’
(Queensland Government, 2 December 2014)
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preliminary-doc-vol-2.pdf> accessed 11 July 2015
— —, ‘Volume 3: Impact Assessment of Abbot Point Dredging and Onshore
Placement of Dredged Material Project’ (Queensland Government, 2 December
2014) <http://www.statedevelopment.qld.gov.au/resources/plan/abbot-point/abbot-
point-preliminary-doc-vol-3.pdf> accessed 27 June 2015
Earth Justice and Environmental Justice Australia, ‘Protecting the Great Barrier Reef:
A legal assessment of the World Heritage Committee’s May 2015 draft decision
concerning the potential inscription of the Great Barrier Reef on the List of World
Heritage in Danger’ (June 2015)
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<http://earthjustice.org/sites/default/files/files/Protecting-the-Great-Barrier-
Reef.PDF> accessed 15 June 2015
Handl G, ‘Declaration of the United Nations Conference on the Human Environment
(Stockholm Declaration), 1972 And the Rio Declaration on Environment and
Development, 1992’ (United Nations Audiovisual Library of International Law,
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31 May 2015
McKenzie L, Collier C and Waycott M, ‘Reef Rescue: Marine Monitoring Program -
Inshore Seagrass, Annual Report for the sampling period 1st July 2011 – 31st May
2012’ (TropWATER, James Cook University 2014)
Rothwell D, ‘Global Climate Change and the Great Barrier Reef: Australia’s
Obligations under the World Heritage Convention’ (Sydney Centre for
International and Global Law, September 2004)
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August 2015
Thompson A, Schaffelke B, Logan M, Costello P, Davidson J, Dyole J, Furnas M,
Gunn K, Liddy M, Skuza M, Uthicke S, Wright M, Zagorskis I, ‘Reef Rescue
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Science, December 2013)
Voohar R and Myllyvirta L, ‘Point of No Return: The massive climate threats that we
must avoid’ (Greenpeace, January 2013)
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Ward S, Booth D, Lanyon J, Hamann M, Kingford R and Bush R, ‘The Impacts of the
Abbot Point Port Development on the Outstanding Universal Value of the Great
Barrier Reef World Heritage Area’ (Australian Coral Reef Society, March 2015)
<http://www.australiancoralreefsociety.org/c/document_library/get_file?uuid=e4c7
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Woods G, ‘Cooking the Climate Wrecking the Reef: The global impact of coal
exports from Australia’s Galilee Basin’ (Greenpeace, September 2012)
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July 2015
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projects-approved> accessed 19 March 2015
— —, ‘Australia’s Ramsar Sites’ (Australian Government)
<http://www.environment.gov.au/system/files/resources/0d08923b-a60d-4564-
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— —, ‘Directory of Important Wetlands in Australia’ (Australian Government)
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<http://www.australia.gov.au/about-australia/australian-story/great-barrier-reef>
accessed 6 February 2015
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Appendix One: Part IV.B of the Operational Guidelines - The List of World
Heritage in Danger
IV.B. The List of World Heritage in Danger

Guidelines for the inscription of properties on the List of World Heritage in Danger
177. In accordance with Article 11, paragraph 4, of the Convention, the Committee
may inscribe a property on the List of World Heritage in Danger when the following
requirements are met:
a) the property under consideration is on the World Heritage List;
b) the property is threatened by serious and specific danger;
c) major operations are necessary for the conservation of the property;
d) assistance under the Convention has been requested for the property; the
Committee is of the view that its assistance in certain cases may most
effectively be limited to messages of its concern, including the message sent
by inscription of a property on the List of World Heritage in Danger and that
such assistance may be requested by any Committee member or the
Secretariat.
Criteria for the inscription of properties on the List of World Heritage in Danger
178. A World Heritage property - as defined in Articles 1 and 2 of the Convention -
can be inscribed on the List of World Heritage in Danger by the Committee when it
finds that the condition of the property corresponds to at least one of the criteria in
either of the two cases described below.
179. In the case of cultural properties:

a) ASCERTAINED DANGER - The property is faced with specific and proven
imminent danger, such as:
i) serious deterioration of materials;
ii) serious deterioration of structure and/or ornamental features;
iii) serious deterioration of architectural or town- planning coherence;
iv) serious deterioration of urban or rural space, or the natural environment;
v) significant loss of historical authenticity;
vi) important loss of cultural significance.
b) POTENTIAL DANGER - The property is faced with threats which could have
deleterious effects on its inherent characteristics. Such threats are, for
example:
i) modification of juridical status of the property diminishing the degree of
its protection;
ii) lack of conservation policy;
iii) threatening effects of regional planning projects;
iv) threatening effects of town planning;
v) outbreak or threat of armed conflict;
vi) threatening impacts of climatic, geological or other environmental factors
180. In the case of natural properties:
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a) ASCERTAINED DANGER - The property is faced with specific and proven

imminent danger, such as:
i) A serious decline in the population of the endangered species or the other
species of Outstanding Universal Value for which the property was legally
established to protect, either by natural factors such as disease or by man-
made factors such as poaching.
ii) Severe deterioration of the natural beauty or scientific value of the
property, as by human settlement, construction of reservoirs which flood
important parts of the property, industrial and agricultural development
including use of pesticides and fertilizers, major public works, mining,
pollution, logging, firewood collection, etc.
iii) Human encroachment on boundaries or in upstream areas which threaten
the integrity of the property.
b) POTENTIAL DANGER - The property is faced with major threats which
could have deleterious effects on its inherent characteristics. Such threats are,
for example:
i) a modification of the legal protective status of the area;
ii) planned resettlement or development projects within the property or so
situated that the impacts threaten the property;
iii) outbreak or threat of armed conflict;
iv) the management plan or management system is lacking or inadequate, or
not fully implemented.
v) threatening impacts of climatic, geological or other environmental factors.
181. In addition, the threats and/or their detrimental impacts on the integrity of the
property must be those which are amenable to correction by human action. In the case
of cultural properties, both natural factors and man-made factors may be threatening,
while in the case of natural properties, most threats will be man-made and only very
rarely a natural factor (such as an epidemic disease) will threaten the integrity of the
property. In some cases, the threats and/or their detrimental impacts on the integrity of
the property may be corrected by administrative or legislative action, such as the
cancelling of a major public works project or the improvement of legal status.
182. The Committee may wish to bear in mind the following supplementary factors
when considering the inclusion of a cultural or natural property in the List of World
Heritage in Danger:
a) Decisions which affect World Heritage properties are taken by Governments
after balancing all factors. The advice of the World Heritage Committee can
often be decisive if it can be given before the property becomes threatened.
b) Particularly in the case of ascertained danger, the physical or cultural
deteriorations to which a property has been subjected should be judged
according to the intensity of its effects and analyzed case by case.
c) Above all in the case of potential danger to a property, one should consider
that:
i) the threat should be appraised according to the normal evolution of the
social and economic framework in which the property is situated;
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ii) it is often impossible to assess certain threats - such as the threat of armed
conflict - as to their effect on cultural or natural properties;
iii) some threats are not imminent in nature, but can only be anticipated, such
as demographic growth.
b) Finally, in its appraisal the Committee should take into account any cause of
unknown or unexpected origin which endangers a cultural or natural property.
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University of Edinburgh

Research Paper Series

Does International Biodiversity Law Offer Adequate Protection to

© 2018 Robert Clews

Edinburgh School of Law Research Paper Series

Exam Number: B060061

This factual background raises the question as to whether international biodiversity

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long-term health of the property as a whole.”11 Climate change, coastal development,

In considering whether international biodiversity law offers adequate

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Yet to avoid exceeding the internationally agreed target of 2°C, 30 a target

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In seeking to address the question as to whether international biodiversity law

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2. What is the protection of the Great Barrier Reef under international

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2.1. Protection of the Great Barrier Reef as a Site of Natural Heritage

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Should concerns exist surrounding the condition of a property on the World

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2.3. Initial Observations of the World Heritage Convention

On the other hand, it is worth recognising that recourse to an international

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also prove to be more effective.87 As explained by Goodwin, the Committee generates

2.4. The Convention on Biological Diversity

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this must be pursuant to their own environmental policies. 98 Therefore, Article 3

Alongside these guiding principles, Articles 6 to 20 outline a number of

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In addition to concerns over the direct impacts of the Abbot Point

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Are these dangers amenable to correction from human action?

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3.2. Do previous decisions of the World Heritage Committee set a prior

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concerns over the construction of skyscrapers in the vicinity of Cologne Cathedral.169

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Furthermore, despite the conservative or “soft” approach of the Committee to

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consent of the traditional landowners.196 This compliance pull assisted in providing a

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4. Does the Convention on Biological Diversity offer adequate protection to the

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When considering the adequacy of the obligations enshrined in the CBD,

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