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«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»

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If the release of aerosols into the stratosphere would, contrary to the arguments above, be considered as disposal “into” the sea and therefore fulfill the definition of dumping, the exception in LC Article 3(1)(b)(2) and LP Article 1(4.2.2) could apply. According to these provisions, the “placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of [the Convention / Protocol]” is expressly exempted and no to be considered dumping. The purpose of injecting H2S and SO2 into the sea would be to reduce solar radiation transmittance, not the disposal of these substances. In order to be exempt, the placement would also have to be not contrary to the aims of the LC or LP. The overall aim of the LC and the LP includes protecting and preserving the marine environment from all sources of pollution. 202 This could be understood as excluding activities having adverse environmental impacts, even if they are carried out for purposes other than mere disposal. 203 However, the fact that both instruments explicitly provide for the possibility of an exemption for placement means that this possibility must not be rendered meaningless by categorically ruling it out on the basis of potential negative effects on the marine environment. Unless the parties clearly agree otherwise, it would depend on each case to what extent the aims of the LC and the LP can exclude the exemption for a placement activity.

If, on the basis of the arguments above, the introduction of H2S and SO2 into the stratosphere does not constitute dumping, then this geoengineering technique is not prohibited under the Further debate could arise on whether the purpose of geoengineering would exempt it from the definition, cf.

the section on CCS.

See BGBl. 1977 II S. 180 and BGBl 1998 II S. 1346.

Article 1 LC: „Contracting Parties shall individually and collectively promote the effective control of all sources of pollution of the marine environment, and pledge themselves especially to take all practicable steps to prevent the pollution of the sea by the dumping of waste and other matter that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.” Article 2 LP: ”Contracting Parties shall individually and collectively protect and preserve the marine environment from all sources of pollution and take effective measures, according to their scientific, technical and economic capabilities, to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter. Where appropriate, they shall harmonize their policies in this regard.

Contracting Parties shall individually and collectively promote the effective control of all source of pollution of the marine environment, and pledge themselves especially to take all practicable steps to prevent the pollution of the sea by the dumping of waste and other matter that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.” Ginzky (2010) 64.

Options and Proposals for the International Governance of Geoengineering LP or LC and does not require a permit under the LC. In case the introduction of H2S and SO2 into the stratosphere at sea is generally considered dumping, the assessment whether this activity could qualify as placement and thus be exempt from the definition of dumping depends on whether the activity is considered contrary to the aims of the LC or the LP.

Similar questions arise under UNCLOS. The definition of “pollution of marine environment” in Article 1 (4) UNCLOS includes the introduction of substances into the marine environment, and the definition of dumping in Article 1 (1)(5)(a) explicitly includes disposal from aircraft.

5.1.3.5 Nature and ecosystem protection The impacts from introducing of aerosols such as H2S and SO2 into the stratosphere, and the intended albedo increases could have potentially significant negative effects on ecosystems,

areas and species protected under international law, for instance the CBD and :

 the obligation to protect the habitat of migratory species listed in Annex I to the CMS (Article 3 (4) CMS),  the obligation to promote the protection of wetlands according to Article 4 (1) of the Ramsar Convention and,  the obligation to take measures to protect and conserve world heritage sites according to Article 5 of the World Heritage Convention.

The CBD is a framework convention for promoting conservation and sustainable use of biodiversity. The treaty’s provisions are largely expressed as goals and principles to be followed and implemented by Parties through national measures and policies, rather than as binding obligations. 204 Many provisions use conditional language, requiring Parties to meet obligations only “as far as possible and as appropriate” or “in accordance with its particular conditions and capacity.” 205 These include obligations for situ conservation (Article 8), ex situ conservation (Article 9), sustainable use (Article 10), and to put in place environmental impacts assessment procedures for projects that may have significant adverse effects on biological diversity (Article 14). Article 14 of the CBD includes provisions on environmental impact assessment of proposed projects, as well as strategic environmental assessment of programs and policies that are likely to have significant adverse impacts on biodiversity. Article 3 CBD also incorporates the duty to prevent transboundary harm (see section on cross-cutting rules).





The effectiveness of some of these treaties is limited due to its narrow scope of parties. In addition, their specific content is considerably softened by their wording and various qualifying clauses. Therefore, there are no specific obligations relevant for aerosol injection, and is difficult to assess in abstract whether this activity would be in breach of one of these obligations.

5.1.3.6 Conclusion It can reasonably be argued that the introduction of H2S and SO2 into the stratosphere is at present not as such prohibited or significantly restricted by the main international treaties governing the emission of those substances. Although the impacts of this geoengineering technique could also be addressed under international law in the area of biodiversity Birnie et al (2009) 616; Lin (2012).

Hunter (2007) 1027 Options and Proposals for the International Governance of Geoengineering protection, the obligations of the relevant treaties do not establish clear and precise obligations that would allow for determining potential infringements in abstract at this stage.

5.1.4 Cloud brightening from ships Cloud brightening, also referred to as cloud-albedo enhancement or cloud seeding, describes a geoengineering technique by which clouds are increased and whitened over parts of the ocean and therefore reflect more short-wave solar radiation back to space. 206 The idea is to increase cloud-condensation nuclei per unit volume in low-level marine clouds, which scatter and reflect more of the incident light. 207 In practice, a “suitable hydrophilic powder” 208 would be released from a conventional ocean-going vessel into the troposphere, particularly over ocean areas.

Generating fine particles of sea-salt derived from ocean water is the most prominently discussed technique, 209 although other proposals for cloud brightening could be developed. 210 5.1.4.1 Ozone Convention and Montreal Protocol The ozone regime, including its general obligation under Article 2(1) of the Ozone Convention, could apply to cloud brightening, provided that sea-salt particles are considered as ozone modifying or likely to modify the ozone layer in accordance with the provisions of the Ozone Convention.

As discussed in the section on aerosol injection into the stratosphere, paragraph 4 of Annex I to the Ozone Convention contains a list of substances which “are thought to” have the potential to modify the ozone layer. Paragraph 4 (e) of Annex I lists, among others, “hydrogen substances”, including water, which “plays a vital role in both tropospheric and stratospheric photochemistry. 211 Cloud brightening would release sea-water vapor, which would increase the concentration in the lower atmosphere of very small sea-salt particles as cloud condensation nuclei 212 (also referred to as cloud seeds). While such cloud nuclei do not appear to be potentially ozone-depleting substances, water vapor, which is used as a “vehicle” for this technique, potentially could be ozone depleting. 213 Additionally, Article 2 (1) of the Ozone Convention requires that the introduction of cloud nuclei results in “deleterious effects” (see above on aerosol induction). 214 Cloud brightening is Williamson et al (2012) 8; See also Royal Society (2009) 26 and GAO (2011) 35.

Williamson et al (2012) 26 and 51. See also Royal Society (2009) 27.

Royal Society (2009) 27.

Royal Society (2009) 27. See also BPC (2011) 10.

See House of Commons (2010) Ev 33.

Proelß et al. (2011) 32, also address water vapor in their consideration of the Ozone Convention, while the version of the study by Rickels et al. (2011) does not address this issue in this context.

Rickels et al. (2011) 42.

Zedalis (2010) 22, concludes that “geoengineering strategies designed to generate previously non-existent, or stimulate the futher development of naturally present cloud nuclei through pumping water vapor or other hydrogen sources into the troposphere would fall within what the Convention considers an activity modifying or likely to modify the ozone layer”.

Zedalis (2010) 22 emphasizes this requirement.

Options and Proposals for the International Governance of Geoengineering expected to result in strong regional or local atmospheric and oceanic perturbations. 215 While the overall effects are difficult to assess, there could be strong local effects such as local cooling, which may potentially cause negative effects on biodiversity and ecosystems. 216 Therefore, it is possible that the impacts of cloud brightening could cause deleterious effects within the scope of the Ozone Convention. If such deleterious effects occur, the obligations of the Ozone Convention apply to the use of water vapor in cloud brightening techniques. However, the actual content of the obligations under the Ozone Convention are weak and, as in the case of aerosol injection, would not prohibit cloud brightening as such (see section on aerosols). As for the Montreal Protocol, water vapor is not among the substances regulated by it.

5.1.4.2 UNCLOS The release of particles from ocean-going vessels 217 is generally governed by the provisions of UNCLOS. UNCLOS contains provisions regulating for each “maritime zone” the navigation of the releasing vessel and activities to be undertaken in this zone. In addition, UNCLOS contains provisions regarding the protection of the marine environment, which apply to the marine environment as a whole, including the high seas.

Cloud brightening activities in the territorial sea of a state are subject to the laws and regulations of that state in accordance with Article 2 (1) UNCLOS. A ship, which is intended to release particles for cloud seeding in the territorial sea of a state other than its flag state, could be allowed to navigate in this maritime zone by the “right of innocent passage” in accordance with Article 17 UNCLOS. The right of innocent passage only covers “continuous and expeditious” passage in accordance with Article 18 (2) UNCLOS, with stops and anchoring generally only taking place as required by “ordinary navigation”. Navigation of ships for cloud brightening activities may not fulfill this condition if it includes stops for the release of seawater vapor. 218 In addition, a passage is not “innocent” according to UNCLOS if it constitutes an “act of willful and serious pollution” contrary to the provisions of UNCLOS, or “research or survey activities”, or an “activity not having a direct bearing on passage”. 219 While the release of water vapor is unlikely to cause serious pollution, cloud seeding research would be excluded.



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