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Options and Proposals for the International Governance of Geoengineering Protocol (see below in this section) may be relevant to CDR geoengineering technologies that require the storage of CO2 CCS on land As to CCS conducted on land, there is no international legal regime that specifically addresses CCS. However, states generally have to comply with existing international obligations relevant in this context, such as the precautionary principle as laid down in the CBD. 297 In some countries and the EU, CCS installations are addressed by and subject to specific domestic legislation, such as planning, construction, water and nature conservation law. 298 CCS also plays a role in the UNFCCC process. The 2006 IPCC Guidelines for National GHG Inventories set out a methodology on how to consider CCS in national inventories, stating that ‘Carbon dioxide (CO2 ) capture and storage (CCS) is an option in the portfolio of actions that could be used to reduce greenhouse gas emissions from the continued use of fossil fuels’ 299. Moreover, CCS has recently been included into the Clean Development Mechanism (CDM) under Kyoto Protocol’s flexible mechanisms. At CMP7 in 2012 the KP parties adopted the modalities and procedures for carbon dioxide capture and storage in geological formations under the clean development mechanism. 300 However, the incorporation of CCS into the UNFCCC framework is controversial because the general acceptance and incentive for CCS through the CDM does not promote reducing the production of CO2. Promoting CCS could sit uneasy with the objectives of the UNFCCC and KP, as it could result in an increase or prolonged use of fossil fuels while at the same time prolonging the development of low-carbon long-term solutions. 301 CCS in the oceans Ocean CO2 storage and CO2 storage in sub-surface geological formations in the seabed potentially fall within the scope of UNCLOS, LC/LP as well as OSPAR.

UNCLOS generally applies to all activities in the seas and oceans and is therefore known to be the ‘constitution of the oceans’. Therefore, it is relevant to ocean-based CCS as well. It includes a comprehensive set of rules, aiming at “promoting the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.” UNCLOS distinguishes different territories, i.e. the territorial shelf (12 nautical miles behind the baseline of the costal state), the contiguous zone, the exclusive economic zone, the continental shelf (area between the territorial sea and the outer edge of the continental margin) and the so called Area (seabed and ocean floor and subsoil thereof). Each area follows a different regulatory approach. The territorial seas are subject to sovereign rights of the coastal states. In the other areas, coastal states are entitled to exercise certain sovereign rights. An exception is the Area, which is not subject to any national jurisdiction. Thus, the applicable provisions of UNCLOS depend much on the location of the CCS storage facility.

Cooney (2005) 12.

See below section 5.2.

2006 IPCC Guidelines for National GHG Inventories, Volume 2, Chapter 6, 5.5.

Decision 10/CMP.7, UN Doc FCCC/KP/CMP/2011/10/Add.2. See also decision 2/CMP.5, paragraph 29 identifying specific issues.

Friedrich (2007) 214.

Options and Proposals for the International Governance of Geoengineering Generally, CCS is not explicitly prohibited by UNCLOS. 302 In the areas subject to national jurisdiction, national laws determine its permissibility. Besides, the rules on protection and preservation of the marine environment in UNCLOS (Part XI) are relevant to CCS. Articles 192 and 194 UNCLOS include general obligations to parties concerning all sea-based activities (including CCS). Parties are required to “prevent, reduce and control pollution of the marine environment from any source”. This obligation is further specified in Articles 207 et seqq.

UNCLOS. According to these provisions, parties are required to adopt global rules and standards to regulate potentially harmful activities.

Those rules were established for dumping under sectoral treaties, such as LC and LP. As to the scope and coverage, both LC and LP focus on the “disposal at sea of wastes or other matter”, but only from “vessels, aircraft, platforms or other man-made structures at sea”. They do not cover disposal from land-based sources such as pipes and outfalls, wastes generated incidentally, disposal or storage of waste generated from seabed mineral resource exploitation, or placement of materials for purposes other than mere disposal. However, LC and LP have a slightly different scope. For example, according to Article 1 the LP’s scope is wider, as it explicitly governs the seabed -not just the sea- as well as the storage of waste -not just the disposal. 303 Therefore, the LP is generally applicable to sub-seabed CO2 storage. Although the LC does not explicitly include the seabed and the subsoil in its definition of what constitutes dumping at sea, it is widely accepted in literature that – taking the LC’s objective to protect the marine environment into account - the LC is applicable as well. 304 LP and LC follow different regulatory approaches. Under the LC, any activity under its scope is allowed unless it is listed in its Annex I. In contrast, the LP dumping generally prohibited unless the LP specifically permits it. Only those activities are exempted from the prohibition which are listed in its Annex 1; provided that a permit procedure has been applied in accordance with Annex 2. The LP’s regulatory concept is stricter than the provisions of the LC, as it implements the obligation of Article 2 LP to apply the precautionary principle. 305 Initially, CCS was considered to be not permissible under the LC/LP. Under the LC, CO2 is regarded as ‘industrial waste’ as listed in the Annex I and its disposal in the sea or seabed would therefore not be allowed. 306 Under the LP, CO2 was not listed in Annex 1 of the LP and its dumping was therefore forbidden under this instrument as well. However, the parties of the LP adopted important changes to promote the deployment of CCS over the last couple of years.

As to sub-seabed storage, the parties to the LP adopted amendments to Annex 1 LP. These amendments entered into force on 10 February 2007 for all LP-Parties. On this basis, storage of CO2 under the seabed is generally allowed, as the term "CO2 streams from CO2 UBA (2008) 109.

‘"Sea" means all marine waters other than the internal waters of States, as well as the seabed and the subsoil thereof; it does not include sub-seabed repositories accessed only from land.’ Friedrich (2007) 220; Stoll/Lehmann (2008) 283; Schlacke (2007) 92.

Ginsky (2010) 63.

IMO, Report of the Twenty-Second Meeting of the Scientific Group to the London Convention (1999).

Options and Proposals for the International Governance of Geoengineering capture processes for sequestration" has been added to this list. 307 CO2 streams may only be

permitted for dumping if certain additional conditions are met (Article 4 of LP Annex 1):

• disposal is into sub-seabed geological formations;

• such streams consist overwhelmingly of carbon dioxide (although they may contain incidental associated substances derived from the source material and the capture and sequestration processes used); and

• no waste is added for the purpose of its disposal.

In turn, the explicit reference to sub-seabed geological formations clarifies that other ocean CO2 storage – i.e. the disposal of CO2 in the water column or on the seabed - is not allowed under the LP. Moreover, the use of the CO2 stream for enhanced oil recovery is excluded. 308 Annex 2 of LP contains further rules on the permit procedure on the disposal of CO2 in the extent it is allowed. Parties are required to adopt further measures (Article 4 LP) to facilitate the procedure. The framework of guidelines adopted so far aims at providing in detail on how to deploy CCS in a manner that meets the requirements of the LP and consist of

• General ‘Guidelines for the Assessment of Wastes or Other Matter That May be Considered for Dumping’, • ‘Specific Guidelines on Assessment of Carbon Dioxide Streams for Disposal into a SubSeabed Geological Formations’ 309 (CO2 Sequestration Guidelines), and ‘Risk Assessment and Management Framework for CO2

• Sequestration in Sub-Seabed Geological Structures’.

There has been a second amendment of the LP with regard to CCS. In 2009, the parties amended Article 6 of the LP on the export of wastes for dumping purposes. 310 This amendment aims at enabling parties to share sub-seabed geological formations for CCS projects by allowing transboundary CO2 transfer under certain conditions.

Entry into force requires ratification of two-thirds of the parties. 311 According to the IEA, the achievement of the required number of signatures will be a challenge. 312 As of 31 March 2013, only two parties, Norway and the UK, had ratified this amendment. 313 In 2010, LP-parties adopted a work plan with timelines to review the 2007 CO2 Sequestration Guidelines by the LP Scientific Group. This review is supposed to be finalized in 2012. The LP Annex 1 Article 1 LP: ‘The following wastes or other matter are those that may be considered for dumping being mindful of the Objectives and General Obligations of this Protocol set out in articles 2 and 3: […]’.

UBA (2008) 134.

LC 29/17, annex 4.

Resolution LP.3(4) on the amendment to Article 6 of the London Protocol, (adopted on 30 October 2009), available at http://www.imo.org/OurWork/Environment/SpecialProgrammesAndInitiatives/Pages/LondonConvention-and-Protocol.aspx.

Art. 21.3 LP.

International Energy Agency (2011) 15.

Status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions. As at 31 March 2013, www.imo.org.

Options and Proposals for the International Governance of Geoengineering Scientific Group decided to establish an intersessional Correspondence Group for this task, led by the United Kingdom. At the meeting of the contracting parties to the LP in 2011, the intersessional Group presented a progress report on this review and draft revised guidelines. 314 The group reported that a number of policy and legal issues have emerged from that work so far, which led to the establishment of a LP-Legal and Policy Correspondence Group. 315 Further outcomes of these two groups will be presented at the next meeting of the parties in 2012.

In contrast to the LP, the LC was not amended. CO2 is still blacklisted, as it is categorized as industrial waste. Until there is a different interpretation of industrial waste or an amendment of Annex I, CCS is not permitted under the LC. 316 This especially relevant for those countries that are party to the LC, but not to the LP.

Another relevant treaty in the context of CCS is the regional OSPAR Convention. It focuses on the prevention and elimination of prevent and eliminate pollution in three fields, i.e. ‘from land-based sources’ (Article 3 and Annex I), by ‘dumping or incineration of wastes or other matter’ (Article 4 and Annex II) and ‘from offshore sources’ (Article 5 and Annex III). It is said to be one of the most comprehensive and strictest legal frameworks for the marine environment. 317 Whereas Annex I contains specific conditions and a system of authorisation for pollution from land-based sources, Annex II and II contains a general prohibition of dumping from vessels and from offshore installation.

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