Ocean Fertilization – Legal Issues and Institutional responses

1. Ocean Fertilization – Legal Issues and Institutional responses Bettina Boschen PhD Candidate Utrecht Center for Water, Oceans and Sustainability Law and the Netherlands Institute for the Law of the Sea (NILOS)

2. 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

3. 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

4. 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)

5. 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

6. Ocean Fertilization Experiments in the High Seas Source: Boyd et al. (2007) ‘ Mesoscale Iron Enrichment Experiments’Science Vol. 315, p. 612,

7. 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

8. 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

9. 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

10. 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).

11. 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

12. 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

13. 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

14. 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.