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Ocean Options for Climate Change Mitigation: Disposal of Greenhouse Gases at Sea under the 1996 London Protocol

Tuesday, 27 December 2016
by Jose Juste-Ruiz, Professor of International Law, University of Valencia, Spain
Ocean Options for Climate Change Mitigation: Disposal of Greenhouse Gases at Sea under the 1996 London Protocol
The international regime for disposal of wastes at sea is established, under the overarching provisions of UNCLOS[1], in the 1972 London Convention for the prevention of marine pollution by dumping of wastes and other matter and its 1996 Protocol. In the London Protocol “dumping” is defined as “any deliberate disposal into the sea” or else “any storage of wastes and other matter in the seabed and the subsoil thereof” (Art. 1.4). The legal regime set forth in the Protocol is based on two main rules: the prohibition of all dumping at sea (art. 4) except for a small list of wastes specified in Annex 1 (the so called “reverse listing system”) and the prohibition of export of wastes for dumping at sea (Art. 6). The rules of the London Protocol are applicable in all marine waters other than the internal waters of States, as well as in the seabed and the subsoil thereof (Art. 1,7).[2]  

In the last years the London Protocol has undergone a profound process of revision in order to remove all existing legal barriers to the use of new ocean sequestration technologies that may contribute to climate change mitigation efforts.[3] The first technology being developed consists in separation and capture of carbon dioxide from sources of production, transport to an offshore location and injection in a sub-seabed geological formation for storage (CCS). The second process is geoengineering manipulation of natural processes in the marine environment in order to increase the oceans potential to remove greenhouse gases from the atmosphere. Geoengineering includes ocean fertilization, a technique based on the purposeful introduction of nutrients such as iron, urea and phosphorus to the upper ocean to increase marine food production and to enhance its potential to sequester CO2.
 
1. Amendments of the London Protocol to allow carbon capture and storage in sub-seabed geological formations (CCS) and its transboundary export.

The issue of carbon dioxide capture and storage was included in the work programme of the London Convention in 2005. In 2006 Australia, co-sponsored by the United Kingdom, Norway and France and supported by Spain, proposed an amendment to Annex 1 of the London Protocol to allow carbon dioxide sequestration in sub-seabed geological formations. The proposal faced critical comments by several Contacting Parties stressing in particular that they were gaps in knowledge as to the environmental impact of CCS, that marine CO2 geo-sequestration could create adverse ecological, economic and social impacts and that it should not be a substitute to reduce CO2 emissions at source.[4] Other delegations supported the proposal and stated that postponing the adoption of the amendment would send a negative signal to society as a whole.[5] After a lengthy debate that could not reach consensus the amending resolution proposed by Australia was adopted by 12 votes in favour and 5 abstentions.[6]

The amendment adds a new paragraph 1.8 to the exceptions list in Annex 1 of the London Protocol in order to permit and regulate the disposal at sea of carbon dioxide streams for CCS operations. The granting of permits is subject to three axiomatic conditions, namely: that disposal is into sub-seabed geological formations, that fluxes injected consist overwhelmingly of carbon dioxide, and that no wastes or other matter are added for the purpose of disposal. According to Article 22.4 of the London Protocol   the CCS amendment is in force since 10 February 2007 for all Parties.[7]
 
In 2009, in order to cope with the transboundary implications of sub-seabed sequestration, Norway proposed an amendment to Art. 6 of the Protocol to allow the export of carbon dioxide streams to other countries, both Parties and non-Parties, for disposal into sub-seabed geological formations. The debates at the Meeting showed a high degree of discrepancy among the Contracting Parties on quite crucial matters such as the very notion of export, the issue of “migration” of CO2 streams after injection and possible conflict with other international instruments on transboundary movement of wastes. The final version of the amending resolution states that export of CO2 streams for sequestration may occur provided that an “agreement or arrangement”, consistent with the provisions of the Protocol and other applicable international law, has been entered into by the countries concerned. After further discussion in plenary consensus could not be reach and the resolution on the amendment to Art. 6  of the London Protocol was finally adopted by 15 votes in favor, 1 vote against and 6 abstentions.[8] In casting the negative vote, the delegation of China stated:
“China attaches great importance to the issue of CO2 sequestration in transboundary sub-seabed geological formations … However, in the view of this delegation, this issue has many complicated legal and technical implications, the deep and thorough study and discussion of which still need to be carried out by all countries. At the current stage, the relevant technical and legal issues are still not very clear, so it is not appropriate to make a hasty amendment to this Art. without adequate time for consultations. China is concerned that the export of CO2 might open a door for export of other wastes, which is in contradiction with the objective of the Protocol. In view of the above, China is willing to, in the spirit of a constructive approach, continue the discussion with other Contracting Parties on this matter, but this delegation is not in favour of adoption of the proposed amendment to Art. 6 in a hasty manner.”[9]  
For the time being, only Norway, the United Kingdom and the Netherlands have accepted the export amendment.[10] Thus, in accordance with Art. 21.3 of the London Protocol the amendment to Art. 6 of the London Protocol is not yet in force.[11]
 
2. Action to allow ocean fertilization and other geoengineering activities.
 
In 2007, the Meeting of the Contracting Parties of the London Protocol was alerted of a plan by a US private company, Plancton Inc., to carry out iron fertilization of an area of 10.000 km2 located 300 nautical miles west of the Galapagos Islands to generate carbon credits. Following the expression of concern issued by the Scientific Group and the protests by the observer of the Permanent Commission of the South Pacific (CPPS) the Contracting Parties began discussions on the matter of ocean fertilization.

In 2008, the Meeting examined the un-conclusive report of an intersessional legal working group and heard various warnings expressed by observers of institutional bodies and by Contracting Parties. In the course of the debates, the delegation of Australia announced that Australia planned to pursue an amendment of the London Protocol to ensure that legitimate non-commercial scientific research on ocean fertilization could occur, provided it was effectively regulated. The ensuing discussions showed that the positions of the Contracting Parties on the issue of the amendment of the London Protocol were quite distant. Then, the Meeting entrusted a Working Group to prepare a draft resolution on ocean fertilization which after further discussion and refinement was adopted by consensus.[12]
   
The resolution defines ocean fertilization as “any activity undertaken by humans with the principle intention of stimulating primary productivity in the oceans” and calls for a voluntary moratorium on ocean fertilization activities except for legitimate scientific research. The definition of ocean fertilization as “placement” permits to circumvent the prohibition of dumping in Art. 4 of the Protocol but it does not explain how activities not being “dumping” fall under the purvey of the London Protocol on dumping. The resolution adopted does not provide any substantive legal definition of what shall be considered “legitimate” research nor identifies marine areas where such research can be developped, thus leaving ample room for State`s self-interpretation.   

Two years later, in 2010, the Contracting Parties adopted a complementary resolution providing an assessment framework for scientific research involving ocean fertilization.[13] The resolution emphasize that consultation, notification and reporting on transboundary situations are integral to the assessment of a proposed ocean fertilization research activity, and that timely notification and information sharing would facilitate consistency in its application. The resolution also restates the Contracting Parties’ commitment to prepare a comprehensive regulatory mechanism for ocean fertilization activities and other activities, affirming in paragraph 5 that:
“The London Convention and the London Protocol should continue to work towards providing a global, transparent, and effective control and regulatory mechanism for ocean fertilization activities and other activities that fall within the scope of the London Convention and the London Protocol and have the potential to cause harm to the marine environment, particularly in light of the progress made with this resolution, resolution LC-LP.1(2008), and the Assessment Framework.”    
The 2008 and 2010 resolutions on ocean fertilization for legitimate scientific research, although not having legally binding force, are operative since the day of its adoption.

During the last stages of the adoption process of the above resolutions, the Contracting Parties started work for the wider regulation of ocean fertilization, not restricted to scientific research and other geoengineering activities. The discussions on the matter at the 2009, 2010 and 2011 Meetings raised many points of controversy among the Contracting Parties as to the merits of such initiative. The delegations of South Africa, the United States, and Japan stated opinions against the amendment of the Protocol to that effect. In contrast, the delegations of the United Kingdom, Australia, Canada, the Netherlands and Spain noted that there was a need to address the existing regulatory gap regarding marine geoengineering, including ocean fertilization.

At the 2012 Meeting, the process was urged by the alarming information of a large-scale ocean fertilization incident off Canada's west coast in international waters, where in July of 2012 the Haida Salmon Restoration Corporation had deliberately dumped 100 metric tonnes of iron sulphate into the ocean.[14] At the next Meeting in 2013, in spite of persisting disagreement among Contracting Parties, the delegations of Australia, Nigeria and the Republic of Korea formally proposed amending the London Protocol to effect a legally binding regulation of ocean fertilization and to allow other marine geoengineering activities to be considered in the future.[15] Various contracting Parties, such as Japan, China and Italy, expressed doubts concerning the proposed amendment and the Meeting observed that the discussions were not finalized in some substantial points. However, Australia, Nigeria and the Republic of Korea pushed to approve the amendment proposals at the same session and “following a brief discussion and noting the consensus”[16] resolution LP.4(8) on the amendment to the London Protocol to regulate placement of matter for ocean fertilization and other marine geoengineering activities was adopted on 18 October 2013.[17]
 
The amendment adopted sets up a complex legal structure to permit wider ocean fertilization and geoengineering operations comprising four main elements:
- a new definition for marine geoengineering to be inserted in Art. 1 of the Protocol[18]:
- a new Art. 6bis allowing the Contracting Parties to authorize under a permit listed geoengineering activities;
- a new Annex 4 listing the geoengineering activities permitted (currently only ocean fertilization for legitimate scientific research)
- a new Annex 5 containing a generic framework for the assessment of matter that may be considered for placement under Annex 4.
In 2014, the Meetings approved the “Guidance for consideration of marine geoengineering activities” for inclusion in annex 4[19] and the “Description of arrangements for a roster of experts on marine geoengineering in the consultation process” which could provide advice to the Contracting Parties on assessing marine geoengineering activities listed under annex 4 or under consideration for listing.[20] In 2015 GESAMP established a Working Group on Marine Geoengineering (WG 41) which held the inception meeting in May 2016.

As of today, only the United Kingdom has deposited with IMO an instrument of acceptance of the 2013 amendment while the delegations of Norway, Sweden, Germany and the Republic of Korea had commenced preparations to ratify the amendments.[21]
 
3. Critical appraisal

The current process of revision of the London Protocol is aimed at contributing to climate change mitigation by allowing the storage of CO2 streams in sub-seabed geological formations and the manipulation of ocean waters in order to increase its natural potential for capture of greenhouse gases.

Acting in an unusual hasty manner, the Contracting Parties have allowed these operations prior to sharing a full understanding of their actual scope and despite   recognizing gaps in scientific knowledge as to their effectiveness and potential unintended environmental impacts. In so doing, the London Protocol has departed from its original strong precautionary approach based on the shared conviction that the oceans and its sub-seabed are not a suitable place for storing the world’s industrial wastes. In addition to being a striking case of legal regression, the new permitted ocean options for sequestration of greenhouse gases would presumably convert atmospheric pollution into marine pollution, thus contributing to oceans acidification, while acting as a disincentive for further efforts to reduce emissions at source.

From a legal perspective, serious doubts can be raised as to the compatibility of the London Protocol amendments with the provisions of UNCLOS parts VII, XI and XII, and other international conventions.[22] With respect to UNCLOS, the amendments seem to be in contradiction with the general obligation not to pollute the marine environment resulting from the “use of technologies under its jurisdiction or control[23], and in particular, with the State’s duty “not to transfer pollution from an area to another or to transform one type of pollution into another”.[24] Questions can also be raised regarding compatibility with UNCLOS rules on the protection of rare or fragile ecosystems and habitats (Art. 194, 5).[25]  

Moreover, the amendments adopted are not correlated to the different legal status of the marine areas within and beyond national jurisdiction, and to the respective rights and duties of States as established by UNCLOS. Even in cases where the activities permitted could be presented as exercising freedom of the high seas, it is open to question whether the placement of matters in international waters is compatible with the States’ obligation to have “due regard” for the interests of other States as provided for in Art. 87.2 of UNCLOS. Similarly, the storage of CO2 in the sub-seabed beyond national jurisdiction is discordant with the status of the Area aand its resources as a common heritage of mankind as proclaimed in Art. 136 of UNCLOS. All in all, the amendments of the London Protocol do not fully cope with the obligations of States to prevent transboundary harm to the environment of other States or of areas located beyond the limits of national jurisdiction (UNCLOS, Art. 194.2).

In my opinion, before the London Protocol amendments enter into force, there is an urgent need to review the legal, environmental and ethical bases of the ocean options for climate change mitigation within a more representative and authorized global forum.


ENDNOTES

  1. Relevant provisions of UNCLOS may be found in Part XII (arts.192, 194, 195, 196, 210.5)
  2. J. Juste Ruiz, “The 1996 Protocol Amending the London Dumping Convention of 1972”, IJO Newsletter, Vol. 9, n? 1, Spring/Summer 1997, pp. 16-19.
  3. T. Dixon, J. Garretth, E. Kleverlaan. “Update on the London Protocol – Developments on Transboundary CCS and on Geoengineering”, Energy Procedia 63 (2014), pp. 6623-6628. For a legal overview: Ph. Verlaan, “Geo-engineering, the Law of the Sea, and Climate Change”, Carbon and Climate Law Review 4 (2009), 446-458.
  4. See the interventions by Denmark, South Africa and Vanuatu in: LC 28/15, Report of the twenty-eight Consultative Meeting and the first Meeting of Contracting Parties. paras. 84, 86-87 and 96.
  5. Ibid., para. 97.
  6. Resolution LP.1(1) on the amendment to include CO2 sequestration in sub-seabed geological formations in Annex 1 to the London Protocol (adopted on 2 November 2006). LC 28/15, Report of the twenty-eight Consultative Meeting and the first Meeting of Contracting Parties. Annex 6. Votes in favor (12): Australia, Canada, France, Germany, Mexico, New Zealand, Norway, Saudi Arabia, Spain, Sweden, United Kingdom, and Vanuatu. Abstentions (5): Belgium, China, Denmark, Egypt and South Africa.
  7. London Protocol Art. 22, 4: “… amendments to the Annexes shall enter into force for each Contracting Party immediately on notification of its acceptance to the Organization or 100 days after the date of their adoption at a Meeting of Contracting Parties, if that is later, except for those Contracting Parties which before the end of the 100 days make a declaration that they are not able to accept the amendment at that time.”
  8. Resolution LP.3(4) on the amendment to Article 6 of the London Protocol (adopted on 30 October 2009), LC 31/15, Report of the thirty first Consultative Meeting and the fourth Meeting of Contracting Parties, Annex 5. Votes in favor (15): Australia, Belgium, Canada, Denmark, France, Germany, Italy, Japan, the Netherlands, New Zealand, Norway, Republic of Korea, Spain, Sweden and the United Kingdom; votes against (1): China; abstentions (6): Kenya, the Marshall Islands, Mexico, Saudi Arabia, South Africa and Vanuatu.
  9. LC 31/15, Report … cit., para. 5.18.
  10. LC 38/16, Report of the Thirty-Eighth Consultative Meeting and the Eleveth Meeting of Contracting Parties, para. 6.2.
  11. London Protocol Art. 21.3: “An amendment (to the Protocol) shall enter into force for the Contracting Parties which have accepted it on the sixtieth day after two-thirds of the Contracting Parties shall have deposited an instrument of acceptance of the amendment with the Organization.  Thereafter the amendment shall enter into force for any other Contracting Party on the sixtieth day after the date on which that Contracting Party has deposited its instrument of acceptance of the amendment.”
  12. Resolution LC-LP.1(2008) on ocean fertilization (adopted on 31 October 2008). LC 30/16, Report of the Thirtieth Consultative Meeting and the Third Meeting of Contracting Parties, Annex 6.
  13. Resolution LC-LP.2(2010) on the “Assessment Framework for Scientific Research Involving Ocean Fertilization (adopted on 14 October 2010). LC 32/15, Report of the Thirty-Second Consultative Meeting and the Fifth Meeting of Contracting Parties, Annex 5.
  14. See: LC 34/15. Report of the Thirty-Fourth Consultative Meeting and the Seventh Meeting of Contracting Parties. para. 4.1-4.2 and Annexes 3 and 7. The scheme, which was not authorized by the Canadian government and was ostensibly designed both to increase local salmon populations and to sequester carbon dioxide, dumped five times more iron into the ocean than any of the previous thirteen iron fertilization experiments carried out to that date. See: J. Tollefson. “Ocean-fertilization project off Canada sparks furore” Nature vol. 490, issue 7421, p. 458.
  15. LC 35/15, Report of the Thirty-Fifth Consultative Meeting and the Eighth Meeting of Contracting Parties, para. 4.3.
  16. LC 35/15, Report … cit., para. 4.18.
  17. Resolution LP.4(8) on the amendment to the London Protocol to regulate placement of matter for ean fertilization and other marine geoengineering activities (adopted on 18 October 2013). LC 35/15, Report … cit., Annex 4.
  18. Art. 1, 5bis “Marine geoengineering” means a deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/or its impacts, and that has the potential to result in deleterious effects, especially where those effects may be widespread, long lasting or severe.”
  19. LC 36/16, Report of The Thirty-Sixth Consultative Meeting and the Ninth Meeting of Contracting Parties, Annex 5. The guidance confirms in its para. 10 that Article 22 of the Protocol relating to amendment of the annexes would apply to any proposed amendment to the new annexes 4 and 5.
  20. Ibid., Annex 4.
  21. LC 37/16, Report of the Thirty-Seventh Consultative Meeting and the Tenth Meeting of Contracting Parties, para 5.11-5.12. LC 38/16, Report of the Thirty-Eight Consultative Meeting and the Eleventh Meeting of Contracting Parties, para. 5.3-5.5.
  22. Such as the 1992 bio-diversity Convention and the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.
  23. UNCLOS, Art. 196.
  24. UNCLOS, Art. 195. The same provision appears in the London Protocol, Art. 3.3.   
  25. As a legal specialist has written: “it would not be unreasonandble to conclude that geoengineering activities which lead to increased ocean acidification compromising ecosystem function or which precipitate toxic algal blooms are inconsistent with a state's obligation to protect and preserve the marine environment. Moreover, particular obligations are imposed on states to protect rare or fragile ecosystems especially where they provide habitat for depleted, threatened or endangered species.” K. N. Scott, “Geoengineering and the marine environment”, in R. Raifuse (Ed) Research Yearbook on International Marine Environmental Law; London Edward Elgar Publishing, pp. 451-472, at 463.




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