|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of New South Wales Law Journal Student Series |
TO WHAT EXTENT IS THE EXISTING INTERNATIONAL FRAMEWORK IN ENVIRONMENTAL LAW EQUIPPED TO REGULATE AND MANAGE THE POTENTIAL ENVIRONMENTAL IMPACTS OF OCEAN FERTILISATION?
ANNA NGUYEN
In August 2021, the Intergovernmental Panel on Climate Change (‘IPCC’) released its Sixth Assessment Report and which provides new estimates of the chances of crossing the global warming level of 1.5°C in the next decade.[1] The results show significant concerns for the future of climate control and finds that unless there are immediate, rapid and large-scale reductions in greenhouse gasses (‘GHGs’), limiting global warming to close to 1.5°C or 2°C will be beyond reach.[2] The international community’s efforts, through innovative technology, to reduce GHG emissions is therefore needed more than ever to mitigate the impact of inevitable climate change. The uncertain future has prompted a strong interest in deliberate interventions in earth’s climate through geoengineering. Geoengineering is the intentional large-scale manipulation of the global environment, and the term is often defined in the context of alleviating climate-change impacts. [3] The IPCC has framed geoengineering in the context of climate change, which ‘refers to a broad set of methods and technologies that aim to deliberately alter the climate system in order to alleviate the impacts of climate change.’[4]
One of these geoengineering techniques, ocean fertilisation, has received considerable attention in domestic and international climate change regulations. Ocean fertilisation is a type of carbon dioxide removal (‘CDR’), by adding essential elements or nutrients to the water, to sequester carbon dioxide (‘CO2’) and GHGs in sufficient quantity to achieve a climatically significant reduction in atmospheric levels.[5] While this technology theoretically appears to be the answer to control climate change, ocean fertilisation has and continues to be met with opposition due to the inconclusive results from experiments conducted over the past 30 years. These studies have revealed potential detrimental impacts on the environment and marine biodiversity, a less than effective means as a mitigation technique, and the difficulty of accurately monitoring and verifying the results from the activity. Due to these challenges, the international climate regime has extreme difficulty with effectively and consistently regulating ocean fertilisation. While there is a strong need to develop technology to mitigate the impact of climate change, the international legal climate regime is known for taking a precautionary approach to any techniques that could potentially cause detrimental harm to the environment.
Although there are inconclusive studies of ocean fertilisation, time is running short on any comprehensive solutions. In theory, ocean fertilisation could slow down climate change. Therefore, it is important to assess the current international legal regime to determine the extent to which it governs the activity, the challenges that it poses, and what areas need to be developed to balance the needs of protecting the environment from potential risks and supporting the growth of scientific knowledge to develop ocean fertilisation techniques into a solution that safely combats the harmful effects of climate change.
This paper will first look at ocean fertilisation and its impact on the environment. The paper will assess the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’), the Convention on Biological Diversity (‘CBD’) and the London Convention and the London Protocol (‘LC/LP’) and the extent to which they regulate the potential impacts of ocean fertilisation. The final part of this paper will critically analyse the current legal regime and its approach to ocean fertilisation, and what needs to be achieved for there to be a balance between protecting the environment from risks and giving ocean fertilisation the right environment to develop into a cost-effective technique to mitigate the harmful effects of GHGs.
II OCEAN FERTLISATION
Covering over 70% of the earth's surface with a total volume of 1.37 billion cubic kilometres, the oceans are a vast greenhouse gas sink that some suggest are far from being fully utilised.[6]
As it contributes to the storage of nearly 86% of the world’s mobile carbon in the deep ocean, ocean fertilisation has been proposed as the answer to effectively remove CO2 and GHGs as part of the international community’s response to climate change. [7]
Ocean fertilisation is a type of CDR that ‘aims to increase CO2 uptake by marine biological processes such as the “biological carbon pump”’.[8] The biological carbon pump is a process of sequestration (the trapping of a chemical in the atmosphere or environment and its isolation in a natural or artificial storage area), by either adding essential elements or nutrients to the water, including large amounts of carbon, iron, nitrogen and phosphor or by accelerating the natural cycle of nutrient supply from the deep ocean (called artificial upwelling). [9] By adding elements or nutrients to the ocean, this stimulates the growth of phytoplankton in the ocean, which absorbs CO2 during photosynthesis.[10] Iron is often the nutrient used in carbon sequestration as one atom of iron can sequester 100,000 carbon atoms, whereas one atom of nitrogen sequesters 6 carbon atoms and phosphorus sequesters 100 carbon atoms. [11] As the resources are readily available, ocean fertilisation is substantially cheaper than other geoengineering techniques.[12]
The goal of ocean iron fertilisation is to absorb CO2 and store it in deep in the ocean for an adequate duration and in a sufficient quantity to make a significant reduction in the increase of atmospheric CO2 in a verifiable manner, without deleterious unintended side effects.[13]
While there is an immediate need to mitigate climate change, there are a number of issues relating to the scientific uncertainty involved with ocean fertilisation. Over the last 30 years, scientists have conducted only sixteen open-ocean fertilisation experiments.[14] The results of the experiments have led to limited conclusions as to the effectiveness of ocean fertilisation as a technique to control global warming.
Some of the experiments and research have indicated that in response to the addition of nutrients in large scales, ocean fertilisation might only sequester less than a gigaton or a few gigatons of CO2 annually.[15] Reporting on a 2004-2005 iron fertilisation experiment, Pollard et al concluded that ‘although the CROZEX estimate of carbon sequestration for a given iron supply was 20 times that of SERIES (a previous iron fertilisation experiment), it still falls 15–50 times short of some geo-engineering estimates, with significant implications for proposals to mitigate the effects of climate change through purposeful addition of iron to the ocean.’[16] The joint German-Indian LOHAFEX expedition fertilised 300 square kilometres of the Scotia Sea with iron sulphate.[17] According to the researchers, ‘it has dampened hopes on the potential of the Southern Ocean to sequester significant amounts of CO2 and thus mitigate global warming.’[18] Only a modest amount of carbon sank out of the surface layer by the end of the experiment, which has resulted in refined estimates of the overall efficiency of phytoplankton uptake. [19]
Ocean fertilisation could also pose substantial environmental and social risks. Studies have shown that ocean fertilisation could produce toxic algae blooms, which can produce domoic acid, a potent neurotoxin.[20] In addition, large-scale iron fertilisation could lead to significant oxygen depletion in the region[21] and phytoplankton communities quickly becoming dominated by larger diatom phytoplankton.[22] This is very concerning as phytoplankton species form the base of the marine food web.[23] Any changes in the phytoplankton community will have unpredictable and potentially highly damaging impacts on the food web in marine ecosystems, which could result in death and disease for thousands of marine mammals and birds in the human food chain.[24] Furthermore, when decomposed nutrients rise from the deep ocean sea to the surface, thousands of kilometres away and years after the original fertilisation, there is a possibility that the reintroduction could lead to releases of further GHGs, leading to an opposite effect.[25]
Another criticism of ocean fertilisation is the difficulty in measuring the carbon sequestration and the verification of the actual amount, as this may depend on the systems used.[26]
This issue of legal accountability for the potentially devastating effects of ocean fertilisation is an important matter of debate for the international scientific community. The world’s oceans are governed by a network of international agreements to which various states have consented to be bound. Except for the recent efforts under treaty regimes by the LC/LP and the CBD, international law has not specifically addressed ocean fertilisation.
UNCLOS sets out the basic legal framework for the protection and preservation of the marine environment and any activities that take place therein.[27] It is seen as the ‘Constitution of the Ocean’ [28] and has 168 State Parties.[29]
Despite being considered as the ‘Constitution of the Ocean’, UNCLOS does not specifically address ocean fertilisation as it was not widely studied at the time of negotiating the Convention. There are many relevant provisions in UNCLOS, which can provide guidance to determine whether the activity is permitted or not, however, when read on their own, UNCLOS provides a myriad of problems and is open to interpretation.[30]
Under UNCLOS, State Parties ‘have the obligation to protect and preserve the marine environment’ (Article 192) and ‘shall take...all measures...necessary to prevent, reduce and control pollution of the marine environment from any source’ (Article 194), including ‘the release of toxic, harmful or noxious substances...or by dumping’ (Article 194(3)(a)), as well as a duty ‘not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another’ (Article 195). State Parties, under Article 196, are also required to ‘take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control.’
The relevant provisions highlight the importance of defining ‘pollution’ and ‘dumping’ to determine whether ocean fertilisation is regulated by UNCLOS.
Article 1(4) defines ‘pollution’ as:
The introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.[31]
The definition of pollution can be split into two parts; the origin and location of pollution, and the effects that qualify as pollution.[32] The transfer of nutrients to the ocean could arguably be defined as ‘introduction by man’, however, it is also debateable whether techniques used in the water to stimulate the transfer of nutrients towards the surface would be defined as ‘introduction’.[33] Scott argues there is no introduction as defined by Article 1(4), as pipes are used in the water column to transfer nutrients that already exist in the deep oceans towards the surface.[34]
On the other hand, the second part of the definition refers to the effects that qualify as pollution.[35] Article 1(4) indicates an activity is defined as pollution based on its ‘deleterious effects...to living resources and marine life’, therefore what makes an activity ‘pollution’ are its deleterious effects.[36] It could be argued that the effects of ocean fertilisation are not ‘deleterious’ as the objective of ocean fertilisation is to replicate a biological ocean pump, which have a net positive effect.[37] However, this argument is weak as Article 1(4) clearly states that an activity is defined as pollution if it results or is likely to result in ‘deleterious effects’. Therefore, the intention or purpose of the activity is not what is important, but rather the end-result and its impact, whether that is the main purpose or not. While the definition of harm is not established under UNCLOS, studies have shown that ocean fertilisation and the transfer of nutrients could potentially produce environmental harm such as toxic algae blooms.[38] The intention of ocean-fertilisation substances would be to develop the growth of phytoplankton in order to absorb CO2, however, the potential of the nutrient to transform to another type of pollution, which could be damaging to marine biodiversity may be considered as pollution, and therefore, prohibited under UNCLOS.[39]
The varying ways that the definition of pollution can be interpreted indicates that the term needs more elaboration. Therefore, based on these provisions alone, one cannot conclusively determine whether ocean fertilisation would be prohibited under UNCLOS.
According to UNCLOS, ocean fertilisation does not constitute dumping. Article 1(5)(a) defines dumping as ‘any deliberate disposal of wastes or other matter from vessels aircraft, platforms or other man-made structure structures at sea.’ Article 1(5)(b)(ii) states dumping does not include ‘placement of matter for the purposes other than the mere disposal thereof, provided that such placement it not contrary to the aims of this Convention’. Ocean fertilisation activities concerns matters to be deliberately disposed at sea, therefore, would not be considered as dumping as the articles only include matters that are dumped for the purposes of disposing.[40]
Under UNCLOS, if contracting parties took a strict approach, it is likely that ocean fertilisation would be considered as ‘pollution’ and therefore States would heavy regulate the activity.[41] Under a flexible approach, the activity may not be as heavily regulated. However, even if ocean fertilisation could not be categorically defined as ‘pollution’, Article 192 requires States to protect and preserve the marine environment. In addition, Article 197 imposes an obligation on States to cooperate for the protection and preservation of the marine environment and Articles 206 and 204 require States to communicate with other States in monitoring the risk and effects of activities that may cause harm to the marine environment. Ocean fertilisation techniques could cause long term detrimental effects to the environment,[42] and Article 206 would entail contracting parties to ensure that the potential risks have been identified, weighed, and remedied to be below the harm threshold, including applying an environmental impact assessment.
The lack of specific reference to ocean fertilisation in UNCLOS and the vague definition of ‘pollution’ makes it difficult to conclude whether ocean fertilisation would be heavily regulated under the Convention. Under a strict approach, it is likely that the activity would be defined as ‘pollution’ and heavily regulated under UNCLOS. At the very least, Articles 192, 196, 197, 204 and 206 set an obligation on States to take responsibility if they fail to take all the necessary measures to avoid pollution considering all available scientific knowledge.[43]
The CBD, the main intergovernmental agreement to protect biodiversity, is another treaty that could apply to ocean fertilisation. The objectives are ‘to conserve biodiversity, encourage the sustainable use of its components, and equitable sharing of the benefits arising from the utilisation of genetic resources’.[44] The overarching principle that guides the agreement is that nations have ‘the sovereign right to exploit their own resources’ but ‘the responsibility to ensure’ that activities within their borders ‘do not cause damage beyond the limits of [their] national jurisdiction’.[45]
Article 4(b) of the CBD determines that its scope of application includes ‘processes and activities ... carried out ... beyond the limits of national jurisdiction’. Ocean fertilisation is an activity which is carried out in an area beyond the jurisdiction of a State (per the definition of high seas in Article 86 of UNCLOS), therefore the CBD is relevant in determining to what extent the Convention regulates the activity.
In 2008, at the Ninth Meeting on the Conference of the Parties
(‘COP’) to the CBD, Decision IX/16 was adopted, which prohibited ocean fertilisation, until there is adequate scientific basis on which to justify such activities, except for small-scale scientific research studies within coastal waters. [46]
In 2010, the Tenth Meeting of the COP to the CBD adopted Decision X/33, which ‘invites’ States to ensure that in the absence of science based, global, transparent and effective control and regulatory mechanisms for geoengineering, and in accordance with the precautionary approach and Article 14 of the CBD (which requires notification and measures to minimise damages, in addition to an environmental assessment requirement), no climate-related geoengineering activities, such as ocean fertilisation, that may affect biodiversity take place, until there is adequate scientific basis on which to justify such activities.[47] An exception permits small scale scientific research studies.[48] The decision was reaffirmed by the COP to the CBD in 2012[49] and again in 2016.[50]
The CBD’s approach to ocean fertilisation allows for limited small-scale activities for the purposes of scientific research.[51] In addition, Decision IX/16 notes the legal analysis of ocean fertilisation of another legal instrument, such as the LC/LP (explained below) and encourages parties to act in accordance with the outcome of the process. However, Decision IX/16 and X/33 are not legally binding and are considered as recommendations.[52] In addition, Decision X/33 merely invites states to consider the guidance, which also fails to provide clear obligations concerning ocean fertilisation.[53] Therefore, the capacity of the CBD to govern ocean fertilisation activities are limited.
The 1972 Convention on Prevention of Pollution by Dumping of Wastes and Other Matter (‘London Convention’)[54] and the subsequent 1996 Protocol (‘London Protocol’)[55], extends the obligations present in UNCLOS. The London Convention currently has 87 Parties[56], and its objective is to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter.[57]
The London Protocol, which was intended to replace the London Convention, has been ratified by 53 parties[58] and came into force on 24 March 2006.[59] It provides for a reverse list, restricting any dumping, except for materials which are prescribed in the annexure to the protocol, unless the Contracting Party issues an ocean-dumping permit per the requirements laid out in Annex 2.[60] As none of the materials which are involved in ocean fertilisation are included in the annexure, the London Protocol regulates ocean fertilisation and prohibits its use. The only way to overcome this is to argue ocean fertilisation is precluded from ‘dumping’.
Under the LC/LP, dumping is defined to include ‘any deliberate proposal into the sea of wastes or other matter from vessels, aircraft, platforms on other man-made structures at sea.’[61] However, ‘dumping’ excludes ‘placement of matter for a purpose other than the mere disposal thereof’, therefore, certain placement of matters is permitted as long as the placement of the matter is not contrary to the purposes of the Convention.[62] In addition, the annexure provides for ‘inert, inorganic geologic matters’ can be dumped into the ocean.[63]
In 2008, the contracting parties adopted non-binding Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilisation, which expands on the LC/LP to include ocean fertilisation and reaffirmed that ocean fertilisation fell within the scope of the LC/LP.[64] The Resolution LC-LP.1 (2008) states ‘ocean fertilisation activities other than legitimate scientific research should not be allowed.’[65] Ocean fertilisation activity complying with this framework would be considered as placement, pursuant to the exception to the definition of dumping in Article III.1(b)(ii) of the London Convention, and therefore may be allowed if they are conducted in accordance with the Assessment Framework.[66] In 2010, the Contracting Parties adopted a complementary resolution providing an assessment framework for scientific research involving ocean fertilisation.[67]
In 2013, the parties adopted a legally binding resolution and added a new Article 6bis, which confirmed that ocean fertilisation activities would not be allowed unless authorised for a permit under annex 4 of the LC/LP (‘2013 amendment’):
Contracting Parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geoengineering activities...unless the listing provides that the activity or the sub-category of an activity may be authorized under a permit.[68]
Annex 5 of the LC/LP, which incorporates the 2013 amendment, requires that ‘all impact evaluations are satisfactory completed’ for the authorisation of ocean fertilisation activities, including an ‘assessment of potential effects’ that includes ‘a concise statement of the expected consequences of the placement activity within the area of the activity and within the area of potential impacts, including transboundary effects’ and that also specifies ‘the potential effects on human health, on marine ecosystem structure and dynamics including sensitivity of species, populations, communities, habitats and processes, amenities and other legitimate uses of the sea.’ [69]
The 2013 amendment requires two-thirds of the 53 contracting parties of the LP for it to be enforced[70], and as of the writing of this paper, has not yet happened. As such, it is unlikely that the LC/LP will be widely accepted on a global basis.[71]
IV CRITICAL ANALYSIS: CHALLENGES OF THE CURRENT LEGAL REGIME
The extent to which ocean fertilisation is regulated and managed by international environmental law depends on whether it is defined as ‘pollution’ or ‘dumping’. UNCLOS does not explicitly define the activity, and while the CBD and the LC/LP specifically refer to ocean fertilisation, there are significant overlaps and gaps between the regimes. The result is a fragmented legal regime with conflicting purposes.
The 2013 amendment and Decisions X/16 and X/33 of the CBD provides guidance to ocean fertilisation and a sign of optimism that the activity is being considered by the legal regime, albeit on a small-scale for the purposes of scientific research. However, the allowance of ocean fertilisation in accordance with the Assessment Framework is arguably inconsistent with UNCLOS and the precautionary principle (under customary international law). The result is a fragmented regime, which provides little support to the growth of scientific knowledge and potential advantages of ocean fertilisation as a cost-effective mitigation technique to climate change.
Even though the CBD and LC/LP specifically refer to ocean fertilisation, the 2013 amendment is unlikely to be enforced[72] and the decisions of the CBD are not legally binding. Therefore, the enforcement and control of these specific provisions by State Parties are questionable.
The 2013 amendments to the LC/LP and the decisions of the CBD allow ocean fertilisation activities if they are in accordance with the Assessment Framework and constitute legitimate scientific research. In the last 30 years, only sixteen experiments have been conducted in the field of ocean fertilisation, all of which have provided inconclusive evidence as to its effectiveness and long-term benefits to the mitigation of the effect of global warming.[73] From a legal standpoint, the 2013 amendment allowing ocean fertilisation for small-scale legitimate scientific research does not appear consistent with UNCLOS.
The conflict-clauses in UNCLOS suggests that where there are inconsistencies between another treaty and the Convention, UNCLOS could take precedence. The relationship between UNCLOS and the LC/LP is regulated by Articles 237 and 311 of UNCLOS. Article 237 is the specific conflict clause for environmental agreements. Article 237(1) states that the provisions are without prejudice to specific obligations by agreements relating to the protection and preservation of the marine environment, concluded previously as well as in furtherance to the Convention, if they are implemented in ways that are ‘consistent with the general principles and objectives of this Convention’.[74] Article 311 regulates the relationship between treaties, in general. Article 311(3) specifies that other agreements may modify or suspend provisions of the Convention, ‘provided that such agreements do not relate to a provision derogation...which is incompatible with the ... object and purpose of this Convention ... and do not affect the enjoyment by other State Parties of their rights’.
The question is whether the 2013 amendment is consistent with the general principles and objective of UNCLOS. Under UNCLOS, States ‘have the obligation to protect and preserve the marine environment’[75] and they ‘shall endeavour to establish global and regional rules, standards and...practices and procedures to prevent, reduce and control such pollution.’[76] The purpose of the London Protocol is to ‘protect and preserve the marine environment from all sources of pollution’ with a focus on dumping.[77] As described above, ocean fertilisation can have negative effects such as causing hypoxia, increasing neurotoxins, having unknown effects of biogeochemical cycles, and even increasing nitrous oxide, another GHG.[78] Therefore, by mandating the activity as ‘dumping’ and ‘placement of matter’, which allows it to be covered under the London Protocol, is still consistent with how it is defined in UNCLOS (as ‘an introduction...of substances...which results or is likely to result in such deleterious effects..’). [79] By including ocean fertilisation as dumping to include it in their mandate, and regulate and control its use, the 2013 amendment is therefore consistent with the obligations under UNCLOS as well as the requirement to establish rules that control such pollution.
Upon further assessment of the articles under UNCLOS, the 2013 amendment is inconsistent with UNCLOS, such as; the obligations not to pollute the marine environment resulting from the ‘use of technologies under its jurisdiction or control’[80] and ‘not to transfer pollution from an area to another or transform one type of pollution into another’.[81] Studies have shown that ocean fertilisation could result in fundamental alteration of the base of the food web and alter the biogeochemical function of marine communities[82], therefore the 2013 amendment is also at odds with Article 194(5), which provides for the protection of rare or fragile ecosystems and habitats.[83] However, Article 196(2) states that the activity would be consistent with the application of the Convention if the activity is for the ‘prevention, reduction and control of the pollution’. Therefore, the 2013 amendment may be precluded under Article 196(2), depending on whether UNCLOS perceives ocean fertilisation as purely pollution or a means to control pollution.
The regulation of ocean fertilisation under 2013 amendment also raises concerns in relation to its impact on the enjoyment of the rights of other State Parties. Article 237(1) of UNCLOS states that the provisions are without prejudice to specific obligations regarding protection of the marine environment by agreements concluded in furtherance, as long as they are implemented in ways that are ‘consistent with the general principles and objectives of this Convention’ (Article 237(2)), and are ‘compatible with this Convention which do not affect the enjoyment by other State Parties of their rights’ (Article 311(2)).[84] Ruiz argues including ocean fertilisation in its mandate and regulating its use is inconsistent with Article 311(2) of UNCLOS.[85] This is because the 2013 amendment restricts the State Parties’ freedom of the high seas and fails to have ‘due regard’ for the interests of other States as provided for in Article 87(2) of UNCLOS.[86] Under UNCLOS, marine scientific research beyond national jurisdiction is categorised as a ‘freedom of the high seas’ as long as it is carried out in accordance with UNCLOS Part XIII.[87] Ocean fertilisation is likely to reach the level of marine scientific research in order to develop techniques to mitigate the detrimental environmental impact of GHGs.[88] This is more apparent given the current legal regime only allows for ocean fertilisation to be permitted if it falls under legitimate scientific research.
There is an obvious conflict between Articles 237 and 311. Article 311(2) requires that the 2013 amendment be ‘compatible’, whereas Article 237(2) is more flexible as it only mentions consistency with the ‘general principles and objectives’ of UNCLOS.[89] The lex specialis principle is a widely accepted maxim of legal interpretation and technique for the resolution of normative conflicts.[90] ‘If a matter is being regulated by a general standard as well as a more specific rule, then the latter should take precedence over the former.’ [91] According to the lex specialis principle, as Article 237 is the relationship clause for other rules about the protection of the environment, whereas Article 311 is the general relationship clause, Article 237 overrides Article 311. This indicates that as long as the 2013 amendment is consistent with the general principles and objectives of UNCLOS, which it could be if UNCLOS perceives ocean fertilisation as a means to control pollution as opposed to pollution, then a State Party could comply with both the 2013 amendment and UNCLOS.
Furthermore, it may be argued that the 2013 amendment provides lex specialis in respect of ocean fertilisation and UNCLOS is the lex generalis. The lex specialis principle suggests the 2013 amendment (as the specific rule) could hold power over UNCLOS (the general standard). Scott argues that a State Party’s obligation under lex specialis should not compel them beyond their climate commitments, particularly when UNCLOS provides little guidance on ocean fertilisation[92], suggesting that compliance with the 2013 amendment would be sufficient. The international courts seem to support this principle. The argument that compliance with special law in relation to specific standards of pollution control is insufficient to satisfy the more general duty of due diligence has been tried in cases before the international courts and unsuccessful.[93] Ireland made that argument, based on UNCLOS, in the MOX Plant case.[94] While the International Tribunal for the Law of the Sea legally dismissed the case and terminated its proceedings, Ireland’s case received no support from the European Commission whose job it is to enforce European treaties against Member states.[95] Argentina made a similar argument before the International Court of Justice in the Pulp Mills case, however, was unsuccessful.[96]
The inconsistency between the 2013 amendment and UNCLOS raises concerns, which may cause problems when State Parties must decide which treaty takes precedence. In addition, the conflict-clauses of Articles 237 and 311 suggests that if there are inconsistencies between the 2013 amendment and the objectives of UNCLOS, or failure to have due regard of the rights of State Parties, a State Party cannot completely derogate from the general objectives and principles of UNCLOS[97]; to protect and preserve the marine environment and establish rules to prevent, reduce and control such pollution. Where conflict arises, the lex specialis would apply, which indicates Article 237 could override Article 311, therefore, as long as the 2013 amendment is consistent (as opposed to compatible) with the general principles and obligations under UNCLOS and does not completely derogate from its principles, then a State Party can still comply with both treaties.
State Parties to both treaties may then take a conservative approach and follow their obligations under UNCLOS until there is more concrete scientific evidence which proves that ocean fertilisation can effectively and safely mitigate the effects of global warming. As the 2013 amendment is not actually in force, and there are 168 States which have joined UNCLOS[98] compared to only 53 States to the LP, it is likely that this approach under UNCLOS will represent the main political will. While the 2013 amendment is inconsistent with Articles 194 and 195 under UNCLOS, Article 196(2) suggests that ocean fertilisation could be precluded from the application of Article 196(1) if the activity is viewed as a mitigation technique, rather than pure pollution. UNCLOS has the power and legitimacy to shape how the international legal regime perceives ocean fertilisation, however, until that occurs, the current legal regime remains fragmented.
The reason why a fragmented legal regime exists is due to the contrasting perception of ocean fertilisation between the various legal regimes and the activity’s actual objective. Ocean fertilisation is considered in the context of climate change mitigation, however, the CBD and the LC/LP view it as either ‘dumping’ or ‘pollution’ and regulate the activity accordingly, as a risk to the environment.[99] However, by allowing ocean fertilisation activities to be permitted, but limiting experiments that only serve the purpose of legitimate scientific research, the 2013 amendment appears to be a model of the precautionary principle[100] and adaptive management, offering both procedural and substantive environmental requirement.[101] The precautionary principle, which is widely accepted as customary international law in the regime of marine environmental law [102], is considered an integral rule when deciding whether to restrict an activity, ‘where there are threats of serious irreversible damage’ and little knowledge or control over the impacts of the biodiversity of the ecosystems is known.[103] However, upon closer assessment of the precautionary principle and the requirements of the Assessment Framework, the 2013 amendment applies the incorrect interpretation of the precautionary principle and delegitimises ocean fertilisation’s role in solving the global climate crisis.
There have been two approaches to the precautionary principle; strong and weak.[104] The strong precautionary principle suggests that the activity should be restricted where risks are not fully known and there is a potential environmental risk.[105] Until now, only about sixteen experiments have been conducted, and the results have been inconclusive about the effectiveness of the techniques in mitigating climate change.[106] Some experiments have shown huge algal blooms were observed, and others showed the technique was futile with several negative effects.[107] The CBD noted in its Decision IX/16, one fundamental reason for limiting ocean fertilisation is the obligation on States to act with precaution.[108] The scientific uncertainty about the effectiveness of ocean fertilisation and the risks involved is sufficient reason to prohibit the harmful activities under the strong approach.
The weak precautionary principle allows activities even where risks are not fully known, as long as they are done in a way which avoids serious irreversible damage.[109] This approach is the basis of Principe 15 of the Rio Declaration on Environment and Development, which states: ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.[110] Under this approach, it could be argued that ocean fertilisation are measures which mitigate the causes of climate change. While there may be risks involved, the view that the activity could reduce emissions and the limited remaining time which GHGs emissions need to be reduced by, supports the argument that ocean fertilisation should be permitted, and the lack of full scientific certainty should not be a reason for prohibiting the activity.[111] Therefore, in reference to the LC/LP as well as the CBD, the Assessment Framework has adopted a weaker precautionary principle in an attempt ‘to legitimise small-scale ocean fertilisation as a worthwhile scientific endeavour.’[112] By allowing ocean fertilisation an opportunity to develop its techniques and provide conclusive scientific evidence to convince the international environmental community that the activity can safely mitigate against the threat of GHGs, as well as preventing any experiments which do not serve a legitimate scientific purpose, compromises between the differing approaches.
On the other hand, Güssow et al argues the precautionary principle ‘ought to be used to balance the risks arising out of [ocean fertilisation activities] with the potential advantages’.[113] However, the Assessment Framework, through its requirements, prioritises limiting the risks over the advantages of ocean fertilisation, a potential solution to climate change and fails to support the growth of scientific knowledge.[114] The barriers created by the Assessment Framework provides very few incentives for States to undertake ocean fertilisation for scientific research.[115] In the last thirty years, there have only been sixteen experiments approved for legitimate scientific purposes, which is a relatively minute number given the global effects of climate change and the necessity to develop climate mitigation technology. [116]
Furthermore, the LC/LP and CBD only permit small-scale activities, which are intended for scientific research. These types of small-scale experiments likely to be permitted ‘do not necessarily represent what would happen with larger-scale ocean fertilisation efforts’[117] and any approved activities would not have a significant impact on climate change or be close to fulfilling its original intention, which is mitigating the effects of GHGs. The outright ban on large scale experiments without assessing the benefits of scientific knowledge against potential environmental impacts fails to give fair weight to the potential advantages and could create practical problems and deter legitimate scientific groups from conducting responsible experiments that could provide vital information.[118]
In addition to deterring legitimate scientific groups, the Assessment Framework could lead to unintended consequences. While the Assessment Framework’s goal is to allow monitored small-scale research while preventing experiments without a legitimate scientific purpose, the results have been the opposite.[119] Placing harsh requirements without any incentives may lead to overzealous actors being frustrated with the lack of scientific progress and justification for advancing irresponsible projects, which could lead to disastrous impacts to the environment.[120] For example, in August 2007, Planktos planned to release one hundred tonnes of iron ore dust near the Galapagos Islands, and fortunately this was eventually halted by Greenpeace.[121] In July 2012, entrepreneur Russ George and his team, without approval from and knowledge by the scientific community, dumped one hundred tonnes of iron two hundred nautical miles out from the Canadian archipelago of Haida Gwaii, which unintentionally produced a phytoplankton bloom over 10,000 square kilometres in size.[122] The strict guidelines of the Assessment Framework could lead to the opposite effect of its original intention and drive private actors in carrying out scientifically ill-equipped projects that create more harm than good.
The precautionary principle ‘ought to be used to balance the risks arising out of [ocean fertilisation activities] with the potential advantages.’[123] Under the current regime, ocean fertilisation is viewed purely as a hazard to environment and there is not such a ‘balance’ of the risks and the potential advantages due to the harsh requirements of the Assessment Framework. If the current legal regime continues to purely view ocean fertilisation as a risk to the environment, then the regime will continue to take a conservative approach and limit its use until there is conclusive scientific evidence which states otherwise. If barriers are created to protect the environment from potential risks caused by an activity, then how will that activity ever eventuate to more than just a risk if the barriers make it difficult to develop conclusive scientific evidence that could establish that it is not just a hazard? The legal regime needs to move away from this approach, otherwise, the community will suffer from the postponement of a cost-effective measure to prevent the environmental degradation. Indeed, there needs to be weight placed on assessing the risks, but at the same time, what is needed is a framework that supports the growth of knowledge on ocean fertilisation techniques by reducing the barriers to scientific research, providing resources and funding so private enterprises can access increased knowledge of ocean fertilisation to be in a better position to develop well-equipped experiments, as well as allowing the use of large scale experiments and/or commercial experiments if they pursue research in a responsible manner.[124] Failure to implement these changes could result in a stifle in scientific progress that would cause more harm than protection to the environment.
C Lack of Enforcement
The LC/LP may not be the appropriate forum to provide guidance on ocean fertilisation and a treaty that is adopted by more State Parties, such as UNCLOS, would have more legitimate power in regulating ocean fertilisation. The LC has 87 parties[125] and the LP has 53 parties[126] and the likeliness of the 2013 amendment becoming enforceable is low.[127] There are 196 parties to the CBD[128], however, Decisions IX/16 and X/33 are not legally binding and are merely recommendations.[129] The unenforceable nature of the CBD decisions and the 2013 amendment questions whether State Parties will ever adopt them into domestic law.
Despite the use of only ‘hortatory language’[130] in Decisions IX/16 and X/33 of the CBD, the decisions are nevertheless persuasive,[131] and with its 196 parties[132], this represents the ‘political will of almost all States worldwide’[133], which could indicate widespread support for the decisions. On the other hand, even if State Parties support these decisions relating to ocean fertilisation, the inconsistency of the 2013 amendment with UNCLOS suggests that the amendment would arguably not take effect and general provisions of UNCLOS would take precedence. If UNCLOS views ocean fertilisation as a mitigation technique to control pollution, rather than purely pollution, there is a possibility that ocean fertilisation could be allowed under UNCLOS. However, until this occurs, it is likely that UNCLOS would take precedence over the 2013 amendment and the activity will be prohibited under ‘pollution’. In addition, the bureaucratic barriers created by the Assessment Framework explained above, will either deter legitimate scientific groups from seeking approval of experiments that could provide vital information or even encourage overzealous actors who will start their own scientific ill-equipped experiments due to the frustration from the lack of scientific progress.
The current legal framework on ocean fertilisation is also unlikely to make private actors responsible for any ill-equipped experiments in the high seas that lead to significant transboundary damage. Under the LC/LP, States have jurisdiction over vessels or aircraft flying its flag, vessels or aircraft loading dumping matter in its territory, and vessels, aircraft or man-made structure engaging in dumping in territorial sea or the Exclusive Economic Zone.[134] Therefore, if a vessel flies the flag of a non-Party State to the LP or flies the flag of a party State that fails to enforce its LP obligations, the LC/LP will have no application in these situations. This has already been seen in practice including Russ George, who has been able to avoid any legal challenges to the Haida Gwaii experiment.[135] Another way an experiment could avoid compliance with the LC/LP is if there is no vessel or aircraft involved, for example, pipes are being used to transfer nutrients from the deep ocean towards the surface of the high seas.[136] Without jurisdiction over activities of this nature, the more general provisions of Part XII of UNCLOS would take effect. Even if the general provisions of UNCLOS would take effect, enforcement can be difficult and the ability of damaged States to bring claims against noncompliant States in respect of damages is uncertain.[137] The cases before the International Court of Justice have shown that the onus is on the damaged State to show significant harm has been caused and damaged States would have difficulty showing which precise effects resulted from the ocean fertilisation activity and what harm they caused.[138]
Due to the ocean being a vast greenhouse sink, ocean fertilisation could be viewed as the answer to mitigating the harmful effects of GHGs, as well as a hazard that could make the situation worse. International action has been particularly vigilant in the field of ocean fertilisation and have made numerous attempts to delay the development of the techniques. The decisions of the CBD and 2013 amendment was to legitimise small-scale ocean fertilisation as a worthwhile scientific endeavour and prevent experiments without a legitimate scientific approach.[139] Some viewed these changes as progressive and even labelled them a ‘model of precautionary and adaptive management’.[140] However, upon further assessment of these amendments, the LC/LP may not be an appropriate forum to determine the relationship between protecting the environment and developing techniques that mitigate the harmful effects of environmental harm due to the lack of enforcement of the provisions relating to ocean fertilisation and the lack of control over activities in the high seas. While the principle of lex specialis could apply, which suggests that State Parties could still comply with both the 2013 amendment and the general principles and objectives of UNCLOS, State Parties may prefer to take a conservative approach and wait until there is concrete scientific evidence, which proves ocean fertilisation is a safe and effective mitigation technique. In addition, the Assessment Framework has failed to tackle the issues related to climate change and have delegitimised ocean fertilisation as a cost-effective means to mitigate the impacts of climate change by creating bureaucratic barriers. This could lead to a deterrence from legitimate research teams and private actors being frustrated from the lack of scientific progress to perpetuate their large-scale experiments, which are likely to be ill-equipped compared to scientific experiments.
This paper has examined to what extent the current environmental legal regime regulates the potential impacts of ocean fertilisation techniques, which is not very much. The LC/LP is not the appropriate forum given out of the treaties mentioned in this paper, it is joined by the least number of States. If changes are going to be made, the resolutions would need to view ocean fertilisation as a technique to control and mitigate pollution and not purely as pollution. For there to be a balance between the needs of protecting the environment and promoting ocean fertilisation’s potential to mitigate the harmful effects from GHGs, activities relating to ocean fertilisation need to be amended through a legally binding resolution under a treaty, which is widely adopted by many States, such as UNCLOS or the CBD. The Assessment Framework would need to be reviewed to support scientific growth, encourage private actors to work with legitimate scientific groups, and not automatically ban large scale and/or commercial projects if they can be carried out in a responsible manner. As per IPCC’s Sixth Report, global warming of 1.5°C and 2°C will be exceeded during the 21st century unless deep reductions in CO2 and other GHGs occur in the coming decades.[141] It is paramount that the current legal regime act quick to make concessions to allow ocean fertilisation to develop. Without these changes, the current legal regime with its well-intentioned initial measures could end up doing more harm than good to the environment.
[1] Intergovernmental Panel on Climate Change (‘IPCC’), IPCC, 2021: Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Report, 1 August 2021) <https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM.pdf> (‘IPCC 2021 Report’).
[2] Ibid.
[3] David W Keith, ‘Geoengineering in the Climate History and Prospect’ (2000) 25 Annual review of Energy and the Environment 245, 247.
[4] IPCC, IPCC Expert Meeting on Geoengineering, (Report, 20-22 June 2011) <https://archive.ipcc.ch/pdf/supporting-material/EM_GeoE_Meeting_Report_final.pdf>, 2.
[5] The Intergovernmental Oceanographic Commission and UNESCO, Ocean Fertilization: A Scientific Summary for Policy Makers (Report, 2010) <https://www.bodc.ac.uk/projects/data_management/uk/uksolas/links/documents/unesco_ocean_fert.pdf> 3 (‘UNESCO 2010 Report’).
[6] Jennie Dean, ‘Iron Fertilization: A Scientific Review with International Policy Recommendations’ (2009) 32(2) University of California, Davis 321, 326.
[7] David E Blockstein and Leo A W Wiegman (Eds), The National Counsel for Science and the Environment, The Climate Solutions Consensus: What We Know and What To Do About It (Island Press, 2010), 266.
[8] David W Keith, ‘Geoengineering in the Climate History and Prospect’, (2000) 25 Annual review of Energy and the Environment 245, 247.
[9] UNESCO 2010 Report (n 5) 5.
[10] Ibid 2.
[11] The Royal Society, Geoengineering the Climate: Science, Governance and Uncertainty (Report, September 2009) <http://royalsociety.org/uploadedFiles/Royal_Society_ Content/policy/publications/2009/8693.pdf> 17.
[12] Hugh Powell, ‘Will Ocean Iron Fertilization Work?’ (2008) 46(1) Oceanus 10, 9.
[13] Ibid 3.
[14] Geoengineering Monitor, Ocean Fertilization (Geoengineering Technology Briefing, January 2021) <https://www.geoengineeringmonitor.org/wp-content/uploads/2021/04/ocean-fertilization.pdf> 1 (‘Geoengineering Technology Briefing’).
[15] The Royal Society, Greenhouse Gas Removal (Report, September 2018) <https://royalsociety.org/-/media/policy/projects/greenhouse-gas-removal/royal-society-greenhouse-gas-removal-report-2018.pdf> 44; David P Keller, ‘Marine Climate Engineering’ in Markus Salmon and Till Markus (Eds), Handbook on Marine Environmental Protection (Springer, 1st Ed, 2018) 261, 230; Aaron L Strong, John J Cullen and Sallie W Chisholm, ‘Ocean Fertilization: Science, Policy, and Commerce’ (2009) 22(3) Oceanography 236, 244.
[16] Raymond T Pollard et al, ‘Southern Ocean deep-water carbon export enhanced by natural iron fertilization’ (2009) 457 (7229) Nature 577, 579.
[17] International Union for Conservation of Nature, Ocean Fertilisation: Engineering the world’s climate, (Briefing Paper, October 2009) <https://www.iucn.org/sites/dev/files/import/downloads/fertilisation.pdf> 2. (‘IUCN Paper’).
[18] IUCN Paper (n 17) 2.
[19] Ibid.
[20] Randall S Abate and Andrew B Greenlee, ‘Sowing Seeds Uncertain: Ocean Iron Fertilization, Climate Change, and the International Environmental Law Framework’ (2010) 27(2) Pace Environmental Law Review 555, 567; Ian SF Jones, ‘Contrasting micro-and macro-nutrient nourishment of the ocean’ (2011) 425 Marine Ecology Progress Series 281, 291.
[21] Aaron L Strong, John J Cullen, Sallie W Chisholm, ‘Ocean Fertilization: Science, Policy, and Commerce’ (2009) 22(3) Oceanography 236, 256; Michelle Allsopp, David Santillo and Paul Johnson, ‘A scientific critique of oceanic iron fertilization as a climate change mitigation strategy’ (Greenpeace Research Laboratories Technical Note 07/2007, September 2007) <https://www.greenpeace.to/publications/iron_fertilisation_critique.pdf> 11 (‘Greenpeace Research’).
[22] Ibid 3.
[23] Ibid.
[24] Mar Campins Eritja, ‘Between the Potential to Reduce Global Warming and to Cause Irreversible Damage to Human Health and the Environment: The Role of International Law in Marine Geoengineering’ in Stefania Negri (ed), Environmental Health in International and EU Law, Current Challenges and Legal Responses (London, 1st Ed 2019) 83, 86; Greenpeace Research (n 21) 3.
[25] Strong (n 21) 240.
[26] Phoebe Lam and Sallie W Chisholm, ‘Iron Fertilization of the Oceans: Reconciling Commercial Claims with Published Models’ (Unpublished White Paper, MIT, 29 April 2002) <http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.545.3134 & rep=rep1 & type=pdf> Julia P Mayo-Ramsay, ‘Ocean Fertilisation: Science and Regulation’ (Thesis, University of Tasmania, September 2011), <https://eprints.utas.edu.au/12491/1/Mayo-Ramsay_Final_Thesis_and_papers.pdf> 86-87.
[27] The 1982 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) Article 192 (‘UNCLOS’).
[28] Tommy T B Koh, ‘A Constitution for the Oceans’ (Speech, Third United Nations Conference on the Law of the Sea 11 December 1982) <www.un.org/depts/los/convention_agreements/texts/koh_english.pdf>.
[29] United Nations, ‘6. United Nations Convention on the Law of the Sea’, United Nations Treaty Collection (Web Page, 19 August 2021) <https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en>.
[30] Elise Johansen, ‘Ocean Fertilization’ in Elise Johansen, Signe Veierud Busch and Ingvild Ulrikke Jakobsen (Eds), The Law of the Sea and Climate Change, Solutions and Constraints (Cambridge University Press, 2020) ch 8, 215.
[31] UNCLOS (n 27) Article 1(4).
[32] Johansen (n 30) 217.
[33] Karen N Scott, ‘Geoengineering and the marine environment’ in Raymond Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Edgar, 2015), 451-472 (‘Scott, Geoengineering in the marine environment’).
[34] Scott, Geoengineering in the marine environment (n 33) 465.
[35] Johansen (n 30) 217.
[36] Abate (n 20) 231.
[37] Ibid.
[38] Greenpeace Research (n 21) 3.
[39] Ibid.
[40] Johansen (n 30) 219.
[41] Sophie Gambardella, ‘The Stormy Emergence of Geoengineering in the International Law of the Sea’, [2019] 2019 (2) Carbon and Climate Law Review 122, 127.
[42] Greenpeace Research (n 21) 3.
[43] Gambardella (n 41) 127.
[44] Convention on Biological Diversity, (signed 5 June 1992) 1760 UNTS 79 (entered into force 29 December 1993), Article 1 (‘CBD’).
[45] CBD (n 44) Article 3.
[46] Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth Meeting, 19–30 May 2008, Decision IX/16 Biodiversity and Climate Change (9 October 2008) [C.4].
[47] Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Tenth Meeting, 19-29 October 2010, Decision X/33 Biodiversity and Climate Change (29 October 2010) [8(w)].
[48] Ibid.
[49] Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Eleventh Meeting, 8-19 October 2012, Decision XI/20 Climate-related geoengineering (5 December 2012) [1].
[50] Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Thirteenth Meeting, 4-17 December 2016, Decision XIII/14 Climate-related geoengineering (8 December 2016) [1].
[51] Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth Meeting, 19–30 May 2008, Decision IX/16 Biodiversity and Climate Change, (9 October 2008) [C.4].
[52] Karen N Scott, ‘International Law in the Anthropocene: Responding to the Geoengineering Challenge’, (2013) 34(2) Michigan Journal of International Law 309, 332 (‘Scott, International Law in the Anthropocene’),
[53] Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Tenth Meeting, 19-29 October 2010, Decision X/33 Biodiversity and Climate Change (29 October 2010) [8(w)].
[54] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, (signed 29 December 1972) 26 UST 2403 (entered into force 30 August 1975), article 1 (‘London Convention’).
[55] 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 36 ILM 1 (entered in force 24 March 2006), (‘London Protocol’).
[56] ‘Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter’, International Maritime Organization, (Web Page), <https://www.imo.org/en/OurWork/Environment/Pages/London-Convention-Protocol.aspx> (‘LC/LP Web Page’).
[57] London Convention (n 54) Article 1.
[58] LC/LP Web Page (n 56).
[59] Ibid.
[60] London Protocol (n 55) Article 4(1), Annex 2.
[61] London Protocol (n 55) Article 1, 4.1; London Convention, Article III(1)(a),
[62] London Protocol (n 55) Article 1.4.2.2; London Convention, Article III(1)(b)(ii),
[63] Ibid.
[64] The Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and other Geoengineering Activities (31 October 2008) Resolution LC-LP.1 (2008) On the Regulation of Ocean Fertilization (adopted on 31 October 2008). (‘Resolution LC-LP.1 (2008)’).
[65] Ibid.
[66] Resolution LC-LP.1 (2008) (n 64) 3, 4 and 7.
[67] Resolution LC-LP.2 (2010) On the Assessment Framework for Scientific Research Involving Ocean Fertilization, (adopted 14 October 2010) annex 5 (‘Resolution. LC-LP.2 (2010)’).
[68] The Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and other Geoengineering Activities (signed 18 October 2013) Resolution LP.4(8) (not yet in force), article 6bis (1) (‘Resolution LP.4(8) (2013)’)
[69] Resolution LP.4 (8) (2013) (n 68), annex 5; Campins Eritja (n 24) 90.
[70] London Protocol (n 55) Article 21(3).
[71] Glen Jeffries, ‘Time For a New International Legal Regime for Ocean Fertilization in the High Seas?’ (Thesis, University of Tromsø, Fall 2017) <https://munin.uit.no/bitstream/handle/10037/12501/thesis.pdf?sequence=2> 25.
[72] See Lack of Enforcement.
[73] Geoengineering Technology Briefing (n 14) 25.
[74] Ibid Article 237(2).
[75] UNCLOS (n 27) Article 192.
[76] UNCLOS (n 27) Article 210.
[77] London Convention (n 54) Article 1.
[78] Greenpeace Research (n 21) 3.
[79] UNCLOS (n 27) Article 1(4); Johansen (n 30) 226.
[80] UNCLOS (n 27) Article 196(1).
[81] UNCLOS (n 27) Article 195.
[82] Greenpeace Research (n 21) 3
[83] UNCLOS (n 27) Article 194(5): ‘The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.’
[84] UNCLOS (n 27) Article 311(2).
[85] Jose Juste-Ruiz, ‘Ocean Options for climate Change Mitigation: Disposal of Greenhouse gases at Sea under the 1996 London Protocol’ Mepielan-Ebulletin (Web Page, 27 December 2016) <http://www.mepielan-ebulletin.gr/default.aspx?pid=18 & CategoryId=4 & ArticleId=236 & Article=Ocean-Options-for-Climate-Change-Mitigation-Disposal-of-Greenhouse-Gases-at-Sea-under-the-1996-London-Protocol> .
[86] Ibid.
[87] UNCLOS (n 27) Article 87(1)(f).
[88] Johansen (n 30) 226.
[89] Ibid 225.
[90] International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, Report of Study Group of the International Law Commission, 58th sess, UN Doc A/CN.4/L.682 (13 April 2006), <https://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf> [56], [57] (‘ILC, Fragmentation of International Law’).
[91] Ibid [57].
[92] Karen N Scott, ‘Ocean Acidification: A Due Diligence Obligation under the LOSC?’ (2020) 35(2) International Journal of Marine and Coastal Law 382, 402.
[93] Alan Boyle, ‘Protecting the Marine Environment from Climate Change: The LOSC Part XII Regime’ in Elise Johansen, Signe Veierud Busch and Ingvild Ulrikke Jakobsen (Eds), The Law of the Sea and Climate Change, Solutions and Constraints (Cambridge University Press, 2020) ch 4, 118.
[94] Ibid; MOX Plant (Ireland v United Kingdom) (Procedural Order No 3) (Permanent Court of Arbitration, Case No 2002–01, 24 June 2003) (Permanent Court of Arbitration, Case No 2002–01, 24 June 2003).
[95] Boyle (n 93), 118; Commission of the European Communities v Ireland (C-459/03) [2006]. This case was about a conflict between Ireland and the United Kingdom and the building and operation of the Mox Plant at Sellafield, on the Irish Sea. Ireland instituted proceedings against the United Kingdom, claiming the United Kingdom had obligations under UNCLOS in authorising the operation of a mixed oxide fuel plant. Both states are also parties to the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) and the European Community and Euratom Treaties within the European Court of Justice. The Commission alleged that Ireland breached the relevant EU treaty by submitting the dispute to Annex VII Arbitration under UNCLOS. See MOX Plant (Ireland v United Kingdom) (Procedural Order No 3) (Permanent Court of Arbitration, Case No 2002–01, 24 June 2003) [1]; MOX Plant (Ireland v United Kingdom) (Provisional Measures) (International Tribunal for the Law of the Sea, Case No 10, 3 December 2001) [2].
[96] International Court of Justice, Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgement) [2010] ICJ Reports 14-107; Boyle (n 93), 118: While Argentina’s argument did not apply to UNCLOS but to obligations under the 1975 Statute of the River Uruguay, the point is the same.
[97] ILC, Fragmentation of International Law (n 90) [64].
[98] ‘United Nations Convention on the Law of the Sea’, United Nations Treaty Collection, (Web Page, 19 August 2021) <https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en>
[99] Jeffries (n 71) 191.
[100] The precautionary principle is sometimes called the precautionary approach. In this thesis, for consistency, the precautionary principle is used.
[101] Resolution LC.LP.2 (2010) (n 67); Karen N Scott, ‘Regulating ocean fertilization under international law: the risks’ [2013] 7(2) Carbon and Climate Law Review 108, 114 (‘Scott, Regulating ocean fertilization’).
[102] Scott, International Law in the Anthropocene (n 52) 341: Patricia Birnie, Alan Boyle and Catherine Redgewell, International Law and the Environment (Oxford University press, 3rd Ed, 2009), 162-163.
[103] Owen McIntyre and Thomas Mosedale, ‘The Precautionary Principle as a Norm of Customary Environmental Law’ (1997) 9(2) Journal of Environmental Law 221.
[104] Stephen M Gardiner, ‘A Core Precautionary Principle’ (2006) 14(1) Journal of Political Philosophy 33, 43.
[105] Noah M Sachs, ‘Rescuing the Strong Precautionary Principle from its Critics’ [2011] (4) University of Illinois Law Review 1285, 1295-1296.
[106] Geoengineering Technology Briefing (n 14) 1.
[107] Andreas Oschlies, Wolfgang Koeve, Wilfried Rickels and Katrin Rehdanz, ‘Side effects and accounting aspects of hypothetical large-scale Southern Ocean iron fertilization’ (2010) 7(12) Biogeoscience 4017, 4026.
[108] Resolution LC-LP.2 (2010) (n 67) [C.4].
[109] Gregory N Mandel and James Thuo Gathii, ‘Cost Benefit Analysis Versus the Precautionary Principle: Beyond Cass Sunstein's Laws of Fear’, (2006) 5 University of Illinois Law Review 1037, 1039.
[110] Rio Declaration on Environment & Development, 31 ILM 874, (entered into force 14 June 1992).
[111] Jeffries (n 71) 24.
[112] Melissa Eick, ‘A Navigational System for Uncharted Waters: The London Convention and London Protocol’s Assessment Framework on Ocean Iron Fertilization’, (2010) 46(2) Tulsa Law Review 351, 351
[113] Kerstin Güssow, Alexander Proelss, Andreas Oschlies, Katrin Rehdanz and Wilfried Rickels, ‘Ocean iron fertilization: Why further research is needed’ (2010) 34(5) Marine Policy 911, 912; Michael C Branson, ‘A Green Herring: How Current Ocean Fertilization Regulation Distracts from Geoengineering Research’ (2014) 54(1) Santa Clara Law Review 163, 171.
[114] Branson (n 113) 186.
[115] Ibid.
[116] Geoengineering Technology Briefing (n 14) 25.
[117] Grant Wilson, ‘Murky Waters: Ambiguous International Law For Ocean Fertilisation and Other Geoengineering’ (2014) 49(3) Texas International Law Journal 507, 522.
[118] Branson (n 113) 186.
[119] Ibid.
[120] ‘Frequently Asked Questions About Ocean Fertilization: What Are Climos Near Term Plans’, CLIMOS (Web Page) <http://www.climos.com/faq.html#10> Branson (n 113) 186.
[121] Tracy D Hester, Remaking the World to Save It: Applying U.S. Environmental Laws to Climate Engineering Projects, (2011) 38(4) Ecology Law Quarterly 851, 864.
[122] Martin Lukacs, ‘World’s Biggest Geoengineering Experiment ‘Violates’ UN Rules’, The Guardian (online, 15 October 2012), <https://www.theguardian.com/environment/2012/oct/15/pacific-iron-fertilisation-geoengineering>; Branson (n 113) 183.
[123] Rio Declaration on Environment & Development (adopted 14 June 1992) 31 ILM 874.
[124] Branson (n 113) 194.
[125] LC/LP Web Page (n 56).
[126] Ibid.
[127] Jeffries (n 71) 25.
[128] ‘Convention of Biological Diversity: List of Parties’, CBD (Web Page) <https://www.cbd.int/information/parties.shtml>
[129] Scott, International Law in the Anthropocene (n 52) 332.
[130] Ibid.
[131] Ibid 333.
[132] ‘Convention of Biological Diversity: List of Parties’, CBD (Web Page) <https://www.cbd.int/information/parties.shtml>
[133] Harald Ginzky, ‘Marine Geo-Engineering’ in Markus Salomon and Till Markus (eds), Handbook on Marine Environment Protection: Science, Impacts and Sustainable Management (Amsterdam: Springer, 2018) 997, 1007.
[134] ‘An Exclusive Economic Zone is a concept adopted at the Third United Nations Conference on the Law of the Sea (1982), whereby a Coastal State assumes jurisdiction over the exploration and exploitation of marine resources in its adjacent section of the continental shelf, taken to be a band 200 miles from the shore’: See ‘Glossary of Statistical Terms: Exclusive Economic Zone (EEZ)’ OECD (Web Page) <https://stats.oecd.org/glossary/detail.asp?ID=884>; London Protocol, Article 10(1)(1).
[135] Branson (n 113) 185.
[136] Jeffries (n 71) 27.
[137] Ibid.
[138] Campins Eritja (n 24) 92; International Court of Justice, Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgement) [2010] ICJ Reports 14-107 [164].
[139] Resolution LC-LP.2 (2010) (n 67); Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth Meeting, 19–30 May 2008, Decision IX/16 Biodiversity and Climate Change, (9 October 2008) annex I.
[140] Scott, Regulating ocean fertilization (n 101) 351.
[141] IPCC 2021 Report (n 1).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2021/36.html