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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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The deployment of cloud brightening activities would constitute an activity not having a direct bearing on passage, and therefore also exempt the vessel from the right of innocent passage. 220 Cloud seeding in the EEZ is subject to the provisions of Part V of UNCLOS. The provisions of this part define which activities in this zone are subject to the jurisdiction of coastal states, which freedom other states enjoy, and which procedure applies for activities not covered by the former or the latter set of rules.

Under Article 56 (1) (b) (ii), “marine scientific research” is one of the activities in the exclusive economic zone which is to the jurisdiction of the coastal state. While UNCLOS does not define See with further references: Williamson et al (2012) 51. See also GAO (2011) 36.

Williamson et al (2012) 51.

Assuming that such vessels are considered “ships” for the purposes of UNCLOS. See Proelß et al. (2011), p. 33, for a detailed explanation, why vessels are to be considered ships in this case. Rickels et al. (2011), do not include the same detailed discussion.

Rickels et al. (2011), p. 92.

Article 19 (1)-(2)(h),(j) and (l).

With the same result, but focusing on cloud seeding as research, see Rickels et al. (2011), p. 92.

Options and Proposals for the International Governance of Geoengineering marine scientific research, it has been argued that cloud brightening activities would not qualify, because the main activity, the release of particles into the stratosphere, takes place in the air, not the sea. 221 As the particles released will eventually be washed down into the marine environment, a similar argument could be made as in the case of aerosols under the LC/LP (see section 5.1.3). In addition, the subject of cloud brightening research is not the marine environment, even though the activities might have implications for it. For this reason research regarding cloud brightening does not constitute marine scientific research and is therefore not subject to the jurisdiction of the coastal state according to Article 56 (1) (b) (ii). 222 Furthermore, cloud brightening activities could be subject to sovereign rights of the coastal state with regard to activities for the economic exploitation and exploration of the EEZ in Article 56 (1) (a) UNCLOS. Cloud brightening activities, however, are arguably not intended for economic exploitation or exploration of the EEZ.

Furthermore, cloud brightening does not appear to be covered by the freedom of navigation which states enjoy in the EEZ of another state in accordance with Article 58 (1) and Article 87 (1)(a) UNCLOS. Cloud brightening activities arguably are not a “passage”, and also not “navigation” or “uses of the sea related to” navigation. 223 Therefore, only the navigation of a ship for cloud brightening into the EEZ of another state could be covered by the freedom of navigation, not the cloud brightening activity as such.

On this basis, cloud brightening activities in the EEZ are neither subject to the jurisdiction of the coastal state, nor covered by the rights of other states under Arcticle 58 UNCLOS.

Accordingly, cloud brightening activities would be covered by Article 59 UNCLOS which requires that conflicts have to be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. Strictly speaking, cloud brightening would have to be assessed on a case by case basis. Cloud brightening could be permitted based on, for instance, an argument could be made that geoengineering activities would be conducted in the interest of the international community. 224 Cloud brightening activities taking place at the high seas would generally be covered by the freedoms of the high seas, which are not limited to those expressly listed in Article 87 (1) UNCLOS. However, these freedoms are subject to “the conditions laid down by [UNCLOS] and by other rules of international law”.

For example, cloud seeding activities in any marine area (except internal waters) would arguably have to be in conformity with the provisions of UNCLOS, in particular those in Part VII on the protection of the marine environment. 225 According to Article 192 UNCLOS states have a general duty to protect and preserve the marine environment and to take all measures necessary in order to prevent, reduce and control marine pollution from any source, including by dumping (Articles 1, 194, 210 UNCLOS).

Rickels et al. (2011), p. 92.

Same assessment by Rickels et al. (2011), p. 92.

For a similar assessment see Rickels et al. (2011) 93.

See Proelß et al. (2011), p. 37. Rickels et al. (2011), discuss the issue in less detail, Rickels et al. (2011), p. 93.

Zedalis (2010), p. 28, and Rickels et al. (2011), p. 93, also point out the relevance of these rules for cloud brightening.

Options and Proposals for the International Governance of Geoengineering “Pollution of the marine environment” is defined in Article 1(4) UNCLOS as the introduction by man, directly or indirectly, of substances into the marine environment that are likely to cause deleterious effects to living resources, human health or marine activities and uses. For cloud brightening activities to constitute such an introduction, either the air above a marine area would have to be part of the marine environment or washing down of cloud nuclei into the sea at some point would still have to qualify as introduction. Above it was argued that the introduction of substances into the stratosphere would not qualify as disposal into the sea, even if they are washed down eventually. Whether the same line of arguments can be applied to the introduction of substances into the marine environment under UNCLOS needs to be further assessed for each individual case. The further requirement for “pollution”, that this introduction would likely result in deleterious effects, cannot generally be ruled out. 226 To the extent that cloud brightening would constitute marine pollution according to Article 192 UNCLOS, the relevant provisions of the Conventions Part VII apply (see the section on ocean liming for further analysis).





5.1.4.3 London Convention and London Protocol The assessment of the provisions of the LC and LP in the context of the injection of H2S and SO2 into the stratosphere applies to cloud brightening. Dumping explicitly includes the disposal of matter from ships, water vapor as “material and substance of any kind, form or description” 227 constitutes "wastes or other matter", and the release of particles for cloud brightening would be deliberate. As with the injection of H2S and SO2 into the stratosphere, it is questionable whether the particles are disposed into the sea. As argued above, such particles may only be washed down into the sea at some later point, transformed by chemical reaction into other substances.

An interpretation that would consider all activities which release substances and are eventually washed into the sea as dumping, would widen the scope of the LC and LP far beyond its textual scope.

If a different argumentation is followed and cloud brightening is considered dumping under the LC and LP, the exception in LC Article 3(1)(b)(2) and LP Article 1(4.2.2) could apply. As discussed above regarding the injection of H2S and SO2 into the stratosphere, whether cloud brightening activities would be exempt from the definition of dumping depends on whether they are considered contrary to the aims of the LC or the LP.

Furthermore, even if cloud brightening activities were to constitute dumping, the exception in Article 4 (1.1) LP and paragraph 1.6 of its Annex would exempt this activity from the general prohibition of dumping and subject it to the requirement of a permit only (Article 4 (1.2)).

Thus, sea-water vapor, “may be considered for dumping” under Annex I, paragraph 1 (6) LP as it constitutes “organic material of natural origin”.

5.1.4.4 Nature and ecosystem protection The introduction of sea-water particles into the troposphere for cloud brightening raises similar question as the introduction of H2S and SO2 into the stratosphere. As for aerosol injection,

examples for relevant provisions are:

• the obligation to protect the habitat of migratory species listed in Annex I to the CMS (Article 3 (4) CMS);

Convention on Biological Diversity (2012), p. 48.

According to Article 3 (4) LC and Article 1 (8) LP.

Options and Proposals for the International Governance of Geoengineering

• the obligation to promote the protection of wetlands according to Article 4 (1) of the Ramsar Convention

• the obligation to take measures to protect and conserve world heritage sites according to Article 5 of the World Heritage Convention.

In addition, the rules and guidance established by the CBD COP could be relevant. Although they are not binding, they are likely to influence and potentially de facto restrict the actions of parties (see section on CBD Decision X/33). Relevant guidance include the Jakarta Mandate on costal and marine biodiversity (Decision II/10), the protection of genetic resources in areas beyond national jurisdiction (decision VIII/21) and the establishment of marine protected areas (decision VIII/24).

The effectiveness of some of these instruments is limited due to small number of parties, or by qualifying clauses softening their specific content. Therefore there appear to be no specific obligations which would be breached by cloud brightening, although this could depend on the scale of deployment.

5.1.4.5 Conclusion Against this background, it is difficult to assess in abstract whether and to what extent cloud brightening would be permitted. The Ozone Convention, even though potentially applicable, does not impose practically significant restrictions. UNCLOS provides the most pertinent rules, but for activities in the EEZ refers to the resolution of conflicts in each individual case. As for the high seas, it is arguable but not clear that cloud brightening would fall under the UNCLOS provisions against marine pollution. The LP does not prohibit cloud brightening as long as sea water vapor is used and does not constitute dumping.

5.1.5 Desert reflectors

Proposals to use desert reflectors advocate covering of desert surfaces with highly reflective materials so as to increase solar radiation reflection. While reflective materials could be applied in any region, deserts are singled out for characteristics as largely uninhabited, flat surfaces, having limited vegetation, and as having a high levels incident solar radiation. 228 The potential of desert reflectors for increasing surface albedo would be limited by the size of available land and by potential land-use conflicts. 229 The localized and irregular nature of radiative forcings from desert reflector albedo modification could result in alterations to atmospheric circulation patterns and reductions in cloud cover and rainfall. 230 Transport of desert sand to oceans, which plays an important function in supplying iron as a nutrient, could be disrupted. 231 More evident impacts would consist of disruptions to desert ecosystems, diverse and unique environments that are often overlooked in proposals as empty wastelands. 232 Covering large areas with reflective materials Lenton and Vaughan (2009) 5549; Royal Society (2009) 26.

Rickels et al (2011) 44.

Royal Society (2009) 25-26.

Umweltbundesamt (2011) 13.

Gordon (2010) 43.

Options and Proposals for the International Governance of Geoengineering could severely harm desert biodiversity by destroying habitats and blocking migratory corridors for species. Further, exclusion of sunlight and regional cooling would alter the ecosystem and conditions for local flora and fauna.

As the scope of activity and impacts would largely be related to localized land use modification, regulation of desert reflectors or similar installations would primarily fall under national, rather than international, law (cf. section on biomass and biochar). Cross-cutting rules of international law would nonetheless apply depending on their particular scope (see section 4.1.2).



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