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.