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Ocean Fertilization – Legal Issues and Institutional responses
Bettina BoschenPhD Candidate
Utrecht Center for Water, Oceans and Sustainability Law and the Netherlands Institute for the Law of the Sea (NILOS)
Overview
• About Ocean Fertilization– From scientific experiments to geo-engineering strategy
• International law and Ocean Fertilization– Law of the Sea– International Environmental Legal Principles– Relevant treaty regimes
• Institutional Responses– Finding a suitable forum – 1972 London Convention and its 1996 Protocol on the
Prevention of Marine Pollution
• Assessment / Conclusions
About Ocean Fertilization
• Scientific research experiments on basis of suggestion that the introduction of certain nutrients, or iron, will stimulate growth of plankton
• Ocean iron enrichment experiments result in algal blooms
• Role of photsynthesisers in the carbon cycle and the natural function of oceans as a carbon sink
• Assuming that algal blooms can be controlled, ocean fertilization as a geo-engineering (CDR) strategy
Ocean fertilization as a geo-engineering strategy
Definition geo-engineering:“the deliberate large-scale manipulation of the planetary
environment to counteract anthropogenic climate change” (2009 Royal Society Report)
Methods:– Carbon Dioxide Removal (CDR)– Solar Radiation Management (SRM)
Marine Geo-engineering:– E.g. Ocean Fertilization (CDR)– E.g. ‘Cloud Whitening’ or ‘Water Brightening’ (SRM)
Ocean Fertilization Experiments in the High Seas
• 12 small scale research experiments between 1993 – 2005
• 2006 Planktos Corp. plans to conduct OF near Galapagos islands
• 2007 Ocean Nourishment proposal to conduct OF in Sulu sear / Philipines
• 2009 LOHAFEX experiment (Germany/India)
• 2012 Canada / Haida ocean fertilization incident
Ocean Fertilization Experiments in the High Seas
Source: Boyd et al. (2007) ‘ Mesoscale Iron Enrichment Experiments’ Science Vol. 315, p. 612,
International Legal Framework - The Law of the Sea
• 1982 UN Convention on the Law of the Sea – Constitution for the Oceans (LOSC)– Jurisdictional and substantive framework for the Oceans
• Activities taking place in maritime zones beyond national jurisdiction:• Part VII “High Seas”, Article 87 freedom of scientific
research• Part XII “Protection and preservation of the marine
environment”• Part XIII “Marine Scientific Research”
• LOSC refers to ‘competent organizations’ to regulate / develop more specific rules
International Legal Framework - International Environmental Legal Principles
• Principles– Obligation to prevent harm– Obligation to prevent pollution– Application of the precautionary principle– Obligations to cooperate, exchange information and
conduct EIAs
• Limits of these principles– Allow for broad interpretation – No specific regulatory framework
International Legal Framework – Relevant Treaty Regimes
• CBD– CBD objective is the conservation of biodiversity– Jurisdictional scope includes coastal areas and activities
taking place in the high seas.
• UNFCCC and Kyoto Protocol– Climate Change regime but doesn’t cover geo-
engineering– Carbon credits for reduction emissions (at source) not
through geo-engineering (except perhaps forestation)
• Antarctic Treaty System – 1991 Protocol on Environmental Protection
• OSPAR Convention
Institutional Responses – Which Forum?
Scientific Technical Reports
– UNESCO/IOC ad hoc Consultative Group on Ocean Fertilization
– CBD (Convention on Biological Diversity) Subsidiary Body on Scientific, Technical and Technological Advice
– SCOR & GESAMP (Scientific Committee on Oceanic Research and Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection)
– London Convention and Protocol Scientific Groups– UNEP World Conservation Monitoring Centre– IPCC (Intergovernmental Panel on Climate Change).
Institutional Responses – Which Forum?
Policy / Political responses
– 2007 London Convention/Protocol “Statement of Concern”
– 2008 CBD COP Decision IX/16
– 2008 London Convention/Protocol “Resolution1”
– 2010 CBD COP Decision X/29
– 2010 London Convention/Protocol “Resolution2”
– 2007 - 2012 UNGA Annual Resolution on the Law of the Sea and Ocean Affairs
Legal Response – London Convention/Protocol
Legal Responses
– 2008 London Convention/Protocol “Resolution1”• scope includes ocean fertilization• only legitimate scientific research should be allowed• case-by case assessment using an assessment framework• If not then contrary to the aims of the Convention
– 2010 London Convention/Protocol “Resolution2”• Adoption of Assessment Framework for Scientific Research
Involving Ocean Fertilization’
– 2013 London Protocol amendment
Legal Response – London Convention/Protocol
2013 London Protocol amendment
– New Art 6b “Contracting Parties shall not allow the placement of matter into the sea [ … ] for marine geo-engineering activities listed in Annex 4, unless the listing provides that the activity or the sub-category of an activity may be authorized under a permit”
– New Annex 4 to the Protocol• Ocean fertilization as defined in the Annex may only be
considered for a permit if it is assessed as constituting legitimate scientific research taking into account any specific placement assessment framework.
– New Annex 5 to the Protocol• Assessment Framework
Conclusions
• Decentralized nature of current international legal and institutional framework presents significant challenge for the regulation of geo-engineering activities.
• Rapid response through London Convention/Protocol to address ocean fertilization but ad hoc approach to regulation of geo-engineering.
• Missing policy discussion on the role of geo-engineering methods and the mitigation of the effects of anthropogenic climate change.
• Suggestion to include the geo-engineering discussion within the UNFCCC framework as the appropriate forum to develop general principles governing geo-engineering.