«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
Options and Proposals for the International Governance of Geoengineering possibility should not be rendered meaningless by categorically ruling out any exemption on the basis of potential negative effects on the marine environment. In the case of ocean liming, it could be argued that it counteracts ocean acidification and has actual benefits for the marine environment. 340 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.
In addition, research into his particular geoengineering technique can also be considered to be carried out for a purpose other than the mere disposal, and thus be exempted as “placement”.
This happened in the case of ocean fertilisation, a more widely referenced geoengineering technique, which similarly requires deposits of inorganic materials into the marine environment. Unlike liming, ocean fertilisation has been directly addressed under the LC/LP, which regulate ocean fertilisation through non-binding guidance and a risk assessment framework. In 2008, LC and LP Parties adopted non-binding resolution LC-LP.1, finding that “legitimate scientific research” on ocean fertilisation, as determined according to the assessment framework, is regarded as “placement” rather than as “dumping.” 341 All other ocean fertilisation activities are considered contrary to the objectives of the LC/LP and do not qualify for exemption. Given the outward similarities between the two techniques, this determination for ocean fertilisation could potentially lend support to an analogous interpretation whereby legitimate research into ocean liming would not be considered “dumping” and contrary to the LC/LP’s objectives. In 2009, Parties to the LC and LP considered whether to address other marine-based geoengineering techniques, deciding to focus on ocean fertilisation while perhaps expanding this focus in the future. 342 UNCLOS is both widely ratified and recognized as customary international law. Obligations under UNCLOS apply to areas both within and beyond state jurisdiction. Ocean liming, and geoengineering in general, have not been addressed by UNCLOS, but could be subject to general provisions regarding, inter alia, protection and preservation of the marine environment, the rights, jurisdiction, and duties of States and marine scientific research.
UNCLOS Part XII contains specific obligations relating to the protection of the marine environment. States have a general duty to protect and preserve the marine environment (Article 192) and to take all measures necessary in order to prevent, reduce and control marine pollution from any source, including by dumping (Article 1, 194, 210). “Pollution of the marine environment” is defined 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. (Article 1(4)). The addition of alkaline minerals or their dissolution products would clearly be anthropogenic and under current proposals would be either directly deposited into the ocean via ships or pipelines, or indirectly through river discharges.
Still, it can be argued whether the impacts of liming qualify as having a “deleterious effect” and thus be considered “pollution” under this definition. The potential effects of ocean liming are not yet fully understood as no field experiments have been carried out, although changes Rickels et al (2011) 97.
Resolution LC-LP.1, Article 3. See also IMO note to UNFCCC COP16, Nov. 2010, available at http://www.imo.org/OurWork/Environment/PollutionPrevention/AirPollution/Documents/COP%2016%20Submissions /IMO%20note%20on%20LC-LP%20matters.pdf.
Bodle et al (2012) 126.
Options and Proposals for the International Governance of Geoengineering are inevitable and negative impacts to the marine environment possible. 343 Although deleterious impacts cannot be ruled out at this stage, it could also be argued, that ocean liming constitutes a remedial measure offsetting the harmful effects of ocean acidification, 344 and therefore also prevents or mitigates deleterious effects. This line of argument would interpret the definition of “deleterious effects” as allowing for weighing the potential negative effects caused directly by ocean liming against the positive effects achieved by remedying ocean acidification. The text of Article 1(4) UNCLOS does not explicitly provide for this and the plain wording suggests that deleterious effects on the marine environment could constitute pollution without taking into account a “net” effect. All provisions under UNCLOS relating to preventing, reducing and controlling pollution of the marine environment are premised upon this definition of “pollution” to ocean liming.
Under UNCLOS, States must not only protect the marine environment under their own jurisdiction, but are required to take all measures necessary to ensure that activities under their jurisdiction or control do not cause damage by pollution to other states and their environment (Article 194 (2)). States must take, solely or jointly, all necessary measures to prevent, reduce, or control all sources of pollution to the marine environment, Article 194 (1). Where states have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they are required to, as far as practicable, assess the potential effects of such activities on the marine environment and share assessment results (Article 206). States are also required to take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies within their jurisdiction or under their control.
(Article 196). 345 Other obligations under UNCLOS include the duty of cooperation between States (Article 197), prior notification of harm (Article 198), monitoring of pollution (Articles 204 and 205), and the development of contingency plans (Article 199). 346 As a rule, “any” and “all sources” of pollution to the marine environment are subject to UNCLOS (Article 194). For land-based sources of pollution, specifically including rivers and pipelines, Article 207 of UNCLOS requires states to take measures as are necessary to prevent, reduce, and control pollution. (Article 207(1),(2)). Alkaline minerals or their dissolution products added by pipelines or rivers leading to the sea may fall under this article.
Article 210 requires States to adopt laws and regulations and take such measures as necessary to prevent, reduce, and control pollution by marine dumping. Under this article, dumping within a State’s territorial sea, exclusive economic zone (EEZ), or onto the continental shelf requires prior permission of the coastal state (Article 210). UNCLOS also provides that national laws, regulations and measures governing marine dumping are to be no less effective than global rules and standards. (Article 210(6)). This is generally understood to include the LC, which therefore serves as baseline standards for ocean dumping under UNCLOS. 347 Williamson et al (2012) 62.
Williamson et al (2012) 62.
Whether ocean liming could be considered a “technology” is unclear as “technologies” is not defined for the purposes of this Article.
Bodle et al (2012) 125.
Options and Proposals for the International Governance of Geoengineering Article 1(5)(a) UNCLOS defines “dumping” in the same way as the LC/LP. The analysis regarding the LC/LP (see sections 5.1.3, 5.1.4) can therefore inform the interpretation of UNCLOS regarding the exemption from UNCLOS’ dumping provisions for the “placement of matter for a purpose other than the mere disposal thereof” in Article 1(5)(b)(2) UNCLOS. As there are currently no LC/LP’s resolutions addressing ocean liming in the way the LC/LP addressed ocean fertilisation, it is argued that ocean liming does not constitute dumping in accordance with the provisions of UNCLOS. 348 Similar to the arguments under the LC/LP, ocean liming would qualify as an activity carried out for purposes other than mere disposal, even with potential environmental benefits, 349 and thus be exempt. As discussed above, the argument in effect introduces the “net” approach to the definition of “pollution”, while the definition of negative effects does not allow for such a weighing. Any deleterious effects that are otherwise in accordance with the definition qualify as pollution. This view also holds against the argument that ocean liming should not qualify as dumping under UNCLOS because it does not qualify as dumping under the LP. 350 The respective obligations under the UNCLOS and the LC/LP as well as their parties differ considerably: UNCLOS merely provides general obligations to adopt laws and take measures against pollution, while the LP specifically prohibits dumping altogether.
Arguments have been made that an activity is permitted in principle by the freedom of the high seas unless it specifically excluded by a rule of international law, as would include geoengineering. 351 However, this does not imply that ocean liming has to be generally permitted. The freedom of the High Seas must be exercised in accordance with duties for environmental protection under Part XII and with due regard for the interests of other states.
Where conducted on the seabed beyond the jurisdiction of states, activities must be undertaken for the benefit of mankind (Article 140).
Freedom of scientific research is one of these freedoms of the high seas. UNCLOS sets out numerous obligations and rights relating to marine scientific research. It is subject to limitations stemming from other duties under UNCLOS (Article 87(1) (f)). As UNCLOS does not define this term, it is difficult to assess under which conditions ocean liming would qualify as marine scientific research. Some argue that projects of a purely commercial nature do not constitute scientific research. 352 As with other geoengineering techniques, and depending on the scale of the activity, it can be difficult in practice to draw the legal line between research and deployment.
In case ocean liming activities are considered as scientific research, it must not unjustifiably interfere with other legitimate uses of the sea, such as fishing or navigation and must be conducted exclusively for peaceful purposes (Article 240). Research activities taking place within the jurisdiction of coastal states require the consent of the coastal state and may be Rickels et al (2011) 97.
Rickels et al (2011) 97.
Rickels et al (2011) 97.
Bodle et al (2012) 125, citing Scott (2010).
See „Marine and coastal biodiversity: review, further elaboration and refinement of the programme of work”, Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed (decision II/10 of the Conference of the Parties to the Convention on Biological Diversity), UN Doc.UNEP/CBD/SBSTTA/8/INF/3/Rev.1, 22 February 2003.
Options and Proposals for the International Governance of Geoengineering subject to national regulations (Article 245, 246). Information regarding proposed major projects must be published and disseminated (Article 245). States and international organisations are subject to liability for damage caused by pollution of the marine environment arising out of marine scientific research undertaken by them or on their behalf (Articles 235 and 236).
The 1992 OSPAR Convention is a regional convention for protecting the marine environment of the North-East Atlantic that addresses both land-based marine pollution and dumping.