1. The International Control of Ocean Dumping and Fertilization: Tangled Currents, Sea of Challenges Professor David L. VanderZwaag Canada Research Chair in Ocean Law and Governance Marine & Environmental Law Institute, Dalhousie University Shanghai Jiao Tong University November 2011

2. Introduction Although Only 10 Per Cent of Ocean Pollution Is Estimated To Come from Ocean Dumping, the Deliberate Disposal of Wastes into the Oceans Remains an Ongoing Management Challenge +Large amounts of dredged materials are dumped annually –Constituting 80 to 90 per cent of ocean dumping –Over 500 million tonnes are estimated to be dumped annually –In 2007 alone *China dumped over 260 million tonnes of dredged material into East Asian Seas *Japan dumped nearly 4 million tonnes while South Korea disposed of close to 5.8 million tonnes –In 2008, China also disposed of considerable dredged materials *4,176 tonnes in the Bohai & Yellow Seas *85,539 tonnes in the East China Sea *34,501 tonnes in the South China Sea http://www.bluewedg es.org/uploads/imag es/dredge-plume- sept05-small.jpg

3. +Other wastes also continue to be dumped, e.g. –Japan in 2007 disposed of various wastes in East Asian Seas *47,508 tonnes of food processing wastes *8,436 tonnes of livestock waste *2,495,774 tonnes of construction and aluminum refining wastes *522 tonnes of obsolete explosives –Canada in 2007 *60,930 tonnes of fish waste *1,118 tonnes of vessels/platforms *1,258,000 tonnes of inert geological material +In 2007, countries reportedly issued 1,414 permits for ocean dumping with the “top five” being –China (367) –Philippines (131) –United Kingdom (101) –Canada (94) –Germany (72) +In 2008, countries reportedly issued 1,107 permits with the “top five” being –China (348)Philippines (90) –France (170)South Korea (64) –Spain (115)

4. Two Nautical Images Help Capture International Governance of Potential Ocean Dumping 1. Tangled Legal Currents http://antarcticsun.usap.gov/ AntarcticSun/science/images/ drake_rough.jpg

5. A Complex Mix of International Agreements May Interact To Control International Ocean Disposals +Six key global agreements –The major “undercurrent” *The 1982 Law of the Sea Convention (LOSC) –The “mainstreams” *The 1972 London (Dumping) Convention *The 1996 Protocol to the London Convention –“Side currents” *The Convention on Biological Diversity (1992) *The Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal (1989) *Joint Convention on the Safety of Spent Nuclear Fuel Management and on the Safety of Radioactive Waste Management +“Regional gyres” (There may be regional agreements addressing potential ocean dumping), e.g. –The Antarctic Treaty (1959) –The Madrid Protocol on Environmental Protection to the Antarctic Treaty (1991)

6. 2. A Sea of Challenges http://www.thistlehaven.net/J3/Pix/03.DrakePassage.JPG

7. Seven key challenges are reviewed +Convincing countries to become Party to the Convention/Protocol +Interpreting key terms of the Convention/Protocol +Keeping up with the numerous guidelines surrounding ocean dumping +Ensuring compliance +Confronting limited jurisdiction over internal waters +Addressing liability and compensation +Getting a firm international legal grip on ocean fertilization proposals with particular focus on the challenges raised by proposed ocean fertilization experiments in the Southern Ocean

8. –Does ocean fertilization constitute dumping? –What international law and policy responses have occurred? –What can be learned from a recent ocean fertilization experiment in the Atlantic sector of the Southern Ocean, the LOHAFEX experiment? http://www.awi.de/en/home/

9. A Two-Part “Cruise” Follows http://blog.iexplore.com/images/antarctica_zodiac.jpg

10. 1. Tangled Legal Currents Six Key Global Agreements +The major “undercurrent” (LOSC) –Sets out various general marine environmental protection responsibilities of States, e.g. *Obligation to protect and preserve the marine environment (Art. 192) *Duty to minimize the release of toxic, harmful or noxious substances into the marine environment (Art. 194(3)(a)) –Provides environmental impact assessment requirements *Undertaking EIAs for planned activities under the jurisdiction or control of states which may cause substantial pollution or significant and harmful changes to the marine environment (Art. 206) *Reporting of results (Art. 205)

11. –Specifically targets ocean dumping (Art. 210) *Requires States to adopt national ocean dumping laws no less effective than global rules/standards *Urges States to establish global and regional rules/standards for controlling pollution by dumping *Mandates the express prior consent of the coastal State for any dumping within national zones of jurisdiction

12. +“Mainstreams” –The London Convention 1972 represents a permissive approach to ocean dumping *Almost anything can be dumped at sea if a permit is granted by a State Party >General permits for most types of waste ~Annex III of the LC 1972 Sets Out Various Factors Decisionmakers must carefully consider before issuing a permit ~Those factors include, among others †Characteristics of the waste, e.g.  Toxicity  Persistence  Oxygen demand  Nutrients

13. †Characteristics of the dumping site and method of deposit, e.g.  Distance from the coast and resource exploitation areas  Dispersal potentialities (current velocity, vertical mixing, strength of tides)  Existing pollutant loads †General considerations, e.g.  Possible effects on marine living resources  Possible effects on other uses of the sea (such as fishing, shipping and marine conservation areas)  Practical availability of alternative land-based methods of disposal or treatment

14. >Special permits allowed for Annex II listed wastes (the “grey list”), for example, wastes containing ~Arsenic ~Chromium ~Copper ~Lead ~Nickel ~Zinc ~Cyanides ~Fluorides ~Pesticides not covered by Annex I

15. *Only a limited “prohibited list” of wastes listed in Annex I where ocean dumping is generally not allowed >Organohalogen compounds >Mercury and mercury compounds >Cadmium and cadmium compounds >Persistent plastics >Crude oil and its wastes >Radioactive wastes >Biological and chemical warfare materials >Incineration at sea of industrial waste and sewage sludge >Industrial waste as from 1 January 1996

16. –The 1996 Protocol shifts towards a precautionary approach *Protocol explicitly recognizes the need for a precautionary approach in Article 3(1): In implementing this Protocol, Parties shall apply a precautionary approach to environmental protection from dumping of wastes and other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even where there is no conclusive evidence to prove a general relation between impacts and their effects.

17. *Adopts “reverse listing” approach where listing favours the environment and is precautionary Nothing can be dumped unless it is listed on a “safe list” >Dredged material >Sewage sludge >Fish wastes >Vessels and platforms or other man-made structures >Inert, inorganic geological material >Organic materials of natural origin >Bulky items primarily comprising iron, steel, concrete, and similarly unharmful materials for which concern is physical impact (limited to where wastes are generated at locations having no practicable access to disposal options other than dumping) >Sequestration of carbon dioxide (CO 2 under the seabed (adopted 2 November 2006, in force 10 February 2007)

18. *Even for waste on the “safe list”, Annex 2 of the Protocol further encourages a precautionary approach through the permitting process >The permitting authority is encouraged to require ocean dumping applicants to undertake waste prevention audits ~Whether waste reduction / prevention at source is feasible, for example, through product reformulation, clean production technologies ~If so, applicants should be required to formulate a waste prevention strategy and waste reduction / prevention requirements should be included as permit conditions >Permitting authority is obligated to refuse issuing a permit if appropriate opportunities exist to re-use, recycle or treat the waste without undue risks to human health or the environment or disproportionate costs >The permitting authority is also urged to deny an ocean dumping permit if an environmental assessment does not include adequate information to determine the likely effects of the proposed disposal

19. +“Side Currents” –Convention on Biological Diversity *Restates the well known “no harm” Principle (Art. 3) States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. *Has become a “side venue” for addressing issues related to ocean dumping >Impacts of ocean fertilization on marine biodiversity >Development of further scientific and technical guidance on environmental impact assessment in marine areas beyond national jurisdiction (Experts Workshop Held in Manila 18-20 November 2009)

20. –Basel Convention *Prohibits the export of hazardous wastes for disposal within the area south of 60 0 south latitude (Art. 4(6)) *Leaves implementation of the prohibition to each Party through national legislation –Joint Convention on the Safety of Spent Nuclear Fuel Management and on the Safety of Radioactive Waste Management *Represents a parallel current to the Basel Convention but with a focus on preventing the disposal of radioactive wastes in the Antarctic *Convention requires Contracting Parties not to license the shipment of spent fuel or radioactive waste to a destination south of latitude 60 0 south for storage or disposal (Art. 27(2)) “Regional gyres” +The Antarctic Treaty –Prohibits radioactive waste disposal in the area south of 60 0 south latitude (Art. V) –Requires notice to Contracting Parties of all proposed expeditions to and within Antarctica on the part of ships or nationals (Art. VII(5)) +The Madrid Protocol on Environmental Protection Contains three main “legal eddies” relevant to ocean disposal

21. –Annex III Specifically addresses wastes generated in the Antarctic in four main ways (minimization, removal, disposal and planning requirements) *Urges minimizing the amount of wastes produced in the Antarctic as far as practicable (Art. 1(2)) *Requires the removal of many generated wastes Generators of many wastes produced after entry into force of the Annex must remove them from the Antarctic Treaty Area, e.g. >Radioactive materials >Electrical batteries >Fuels >Wastes with harmful levels of heavy metals or acutely toxic compounds >Various products that could produce harmful emissions if incinerated such as rubber, lubricating oils, treated timbers, poly-vinyl chloride materials >Plastic wastes >Fuel drums (unless greater adverse environmental impacts would result than leaving them in their existing location)

22. http://www.ats.aq/documents/EIA/7041enThala%20Valley%20IEE(2003).pdf

23. *Imposes disposal obligations >Disposal by incineration is required for combustible wastes not removed from the Antarctic (Art. 2(1)) ~Other than those wastes listed in Art. 2(1) such as plastics, batteries, rubber, treated timbers ~Solid residues of incineration must be removed from the treaty area >Sea disposal of sewage and domestic liquid wastes is allowed subject to various conditions (Art. 5) ~Taking into account the assimilative capacity of the receiving environment ~Locating discharge where rapid dispersal occurs ~Treating large quantities of waste (generated in stations having an average weekly occupancy over the austral summer of approximately 30 individuals or more) at least by maceration

24. *Mandates Parties carrying out activities in the Antarctic Treaty Area to prepare waste management plans (Art. 8) >To be annually reviewed and updated >To be shared with other Parties >To be sent to the Committee for Environmental Protection which may review and offer comments (Art. 9) –Protocol (Art. 3) also sets out principles to be followed for proposed activities in the Antarctic (which could include ocean disposals), e.g. *Avoidance of significant adverse effects on air or water quality *Avoidance of further jeopardy to endangered or threatened species *Based on sufficient information for prior environmental impact assessment

25. –Three Levels of EIA established for activities in the Treaty Area (Art. 8 and Annex I) *Preliminary assessment (if an activity is determined to have less than a minor or transitory impact it may proceed) *Initial environmental evaluation (IEE) (if an activity is determined as likely to have a minor or transitory impact) *Comprehensive environmental evaluation (CCE) (if IEE indicates the potential for more than a minor or transitory impact or that determination is otherwise made) >Draft CCE subject to review/comment through the committee for environmental protection and Antarctic Treaty Consultative Meeting >Final CCE must address comments received

26. 2.A Sea of Challenges Convincing Countries To Become Party to the Convention / Protocol +As of 31 October 2011 –Only 87 State Parties to the London Convention 1972 –Only 41 State Parties to the 1996 Protocol +Ratification record of East Asian States not stellar –Brunei, Indonesia, Lao Peoples’ Dem. Rep., Malaysia, Myanmar, Singapore, Thailand and Vietnam not a Party to either agreement –Only China and Japan a Party to Protocol +Acceptance by African States also limited –Not Party to either agreement (Algeria, Botswana, Burkina Faso, Burundi, Cameroon, Central African Rep., Chad, Comoros, Congo, Djibouti, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Lesotho, Liberia, Madagascar, Malawi, Mauritius, Mauritania, Mozambique, Namibia, Niger, Rwanda, Sao Tome & Principe, Senegal, Somalia, Sudan, Swaziland, Togo, Uganda, Zambia, Zimbabwe) –Few Parties to Protocol (Angola, Egypt, Ghana, Nigeria, Sierra Leone, South Africa)

27. +Nevertheless, the 1982 Law of the Sea Convention obligates its Parties to adopt national laws no less effective than global rules in controlling ocean dumping pollution (Art. 210) –The LC 1972 would at the very least set the relevant standards –Argument may also be made that the 1996 Protocol now represents global standards

28. Interpreting Key Terms of the Convention / Protocol, e.g. +Key exceptions to what is considered ocean dumping subject to the Convention / Protocol –Placement of matter for a purpose other than mere disposal thereof, provided that such placement is not contrary to the aims of the Convention / Protocol *Ocean fertilization covered? http://www.seashepherd.org/news/media_080214_1.html

29. *Artificial reefs? http://www.impactlab.com/2008/04/11/dumping- old-subway-cars-into-the-atlantic/

30. –Disposal into the sea of wastes or other matter incidental or derived from the normal operations of ships *Spoilt cargoes? >Spoilt cargoes disposals have raised issue of relations of LC/LP with MARPOL Annex V which regulates garbage disposals >For example, if a ship suffers the spoilage of large amount of fruit or vegetables ~Can the ship dispose of the wastes pursuant to MARPOL Annex V requirements (outside special areas more than 12 n.m. from the nearest land)? ~Or would the LC/LP regime apply where an ocean dumping permit should be acquired either from the coastal State or the flag State? >The disposal of animal carcasses that die or are euthanized during voyages was particularly controversial but has partly been addressed ~At the MEPC’s 62 nd Session in July 2011, MARPOL Annex V was amended to allow the discharge of animal carcasses as far as possible from the nearest land, taking into account guidelines developed by IMO ~Guidelines are under development which could call upon the master of a vessel to report to the nearest coastal State or to the flag State

32. *Hull scrapings? >A Joint LC-LP/MEPC Working Group on Boundary Issues has facilitated discussion on how to address the control of releases outside a dockyard environment of anti-fouling paint flakes and fouling organisms >In July 2009 MEPC 59 approved “Guidance on Best Practices of Removal of TBT Paints from Ships” >A Correspondence Group under the auspices of the IMO Sub- Committee on Bulk Liquids and Gases has completed draft guidelines for the control and management of ships bio-fouling to minimize the transfer of invasive aquatic species and has forwarded them to MEPC for adoption

33. +What exactly are inert, inorganic geological materials that may be permitted for dumping? –Bauxite residues? (“red mud” dumping by Japan) –Cement sheeting containing asbestos? (Cook Islands allowed scuttling of a ship filled with over 300 tonnes of cement sheeting containing asbestos) +Annex I of the Protocol allows dumping of vessels, platforms and bulky items comprising unharmful materials provided that material capable of creating floating debris or otherwise contributing to marine pollution has been removed to the maximum extent –What is maximum extent? –How far do vessels, platforms have to be cleaned, for example, of PCBs in electrical cables and gaskets?

34. Keeping Up with the Numerous Guidelines Surrounding Ocean Dumping +Generic Guidelines –Guidelines for the Assessment of Wastes or Other Matter That May Be Considered for Dumping +Specific Guidelines (Nine) –Guidelines for Assessment of Dredged Material –Guidelines for Assessment of Sewage Sludge –Guidelines for Assessment of Fish Waste –Guidelines for Assessment of Vessels –Guidelines for Assessment of Platforms or Other Structures at Sea –Guidelines for Assessment of Inert, Inorganic Geological Material –Guidelines for Assessment of Organic Material of Natural Origin –Guidelines for Assessment of Bulky Items –Guidelines for Assessment of Carbon Dioxide Streams for Sub-Seabed Disposal

35. +Other Guidance –Guidelines for the Application of the De Minimis Concept Under the London Convention 1972 –Guidance on the National Implementation of the 1996 Protocol –Guidelines for the Placement of Artificial Reefs –Guidance on Managing Spoilt Cargoes (LC-LP.1/Circ. 30; MEPC.1/Circ. 688) –Guidance for the Development of Action Lists and Action Levels for Dredged Material

36. +Guidance documentation tends to be a “moving target”, e.g. –Revised Specific Guidelines for the Assessment of Bulky Items adopted by governing bodies of LC/LP in October 2010 –Guidelines presently under review/revision *Specific Guidelines for Dredged Material (2002) *CO 2 Sequestration Guidelines (2007) –Correspondence Group presently reviewing the content and effectiveness of all Specific Guidelines –Guidance on the Development of Action Lists and Action Levels for Fish Wastes being developed (under the lead of Canada)

37. Ensuring Compliance +LC 1972 and the 1996 Protocol require Parties to report annually to the IMO on nature and quantities of wastes permitted to be dumped at sea (LC Art. VI(4) and LP Art. 9.4) but implementation has been weak –On average, only about 50 % of Contracting Parties provide annual dumping reports –34 Contracting Parties to the LC have not reported for last 5 years (2005- 2009) –Six Protocol Parties also have not reported for last 5 years

38. +Poor reporting also on field monitoring of disposal sites (required by LC Art. VI(4) and LP Art. 9.4) –At April 2011 meeting of Scientific Groups only three countries presented monitoring reports (Japan, Canada and UK) +While the London Protocol requires reporting of national administrative and legislative measures taken to implement the provisions of the Protocol (Art. 9.4.2 and 9.4.3) including a summary of enforcement measures, only 10 Parties have complied +Strengthening compliance with national reporting obligations remains a “work in progress” on various fronts –A Correspondence Group, under the lead of the United States, is in the process of finalizing a review of reporting formats and suggestions for more simplified reporting can be expected –The “Barriers To Compliance” (B2C) project has been a major mechanism for holding regional and national capacity-building workshops and development of a training module on annual permit and monitoring reports for use in future workshops was endorsed by the Scientific Groups in April 2011

39. –A Compliance Group, established pursuant to the 1996 Protocol, has been exploring reasons for non-compliance and ways to increase reporting compliance with limited success *A questionnaire sent to LC Parties asking for input on reporting difficulties was only replied to by two Parties *The Compliance Group, based on information from Protocol Parties, has concluded that various factors may be at play ~Lack of a national authority ~Lack of national implementing legislation ~Lack of clarity about reporting obligations ~Lack of capacity *The Compliance Group decided at its 4 th meeting in October 2011 to focus on improving the level of reporting of Protocol Parties and to explore the possibility of working with the B2C Steering Group on a project to promote the development of implementing legislation by Protocol Parties and prospective Parties

40. Confronting Limited Jurisdiction over Internal Waters +Addressing deliberate ocean disposals in internal waters of States is constrained under the Convention and Protocol –The LC 1972 does not apply to internal waters of States –Under the 1996 Protocol each Contracting Party has discretion to apply the precautionary provisions of the Protocol in internal waters or to adopt other effective permitting and regulatory measures +Riverine and sub-sea disposal of mine tailings in coastal waters has been an ongoing concern –Various questionnaires have been sent to Parties asking for information on such disposal practices and management measures but very limited responses to date –Governing bodies of LC/LP in October 2010 agreed that a consultant should be funded (in co-operation with UNEP-GPA) to help pull together a comprehensive report on the disposal of tailings and associated wastes from mining and information on the presence of waste storage facilities (such as lagoons and dams) near the coasts –Governing bodies have suggested using a future report as a basis for a policy discussion and possibly the development of a general guidance document

41. Addressing Liability and Compensation +The Convention / Protocol both call for further elaboration of liability and compensation procedures arising from ocean dumping –LC 1972 Article X In accordance with the principles of international law regarding State responsibility for damage to the environment of other States or to any other area of the environment, caused by dumping of wastes and other matter of all kinds, the Contracting Parties undertake to develop procedures for the assessment of liability and the settlement of disputes regarding dumping.

42. –1996 Protocol Article 15 Responsibility and Liability In accordance with the principles of international law regarding State responsibility for damage to the environment of other States or to any other area of the environment, the Contracting Parties undertake to develop procedures regarding liability arising from the dumping or incineration at sea of wastes or other matter. +No liability and compensation procedures have been established +Of particular concern should be “historical dumping” authorized by States

43. http://sosnews.org/pics/mustardgas-dumping.jpg

44. Getting a Legal Grip on Ocean Fertilization Projects The international control of proposed ocean fertilization projects, exemplified by adding iron to increase phytoplankton blooms and the fixation of CO 2 from the atmosphere, might be described as slippery +Considerable fragmentation and uncertainties in international responses to date +The limited international “grip” exemplified by the 2009 LOHAFEX ocean fertilization experiment in the Atlantic sector of the Southern Ocean

45. +Considerable fragmentation and uncertainties in international responses to ocean fertilization proposals to date –A fragmented array of international bodies/institutions have offered statements/decisions regarding ocean fertilization, e.g. *CBD COP 9 and COP 10 *Scientific Groups of the London Convention and Protocol and Meetings of the Parties *IOC Ad Hoc Consultative Group on Ocean Fertilization *Intergovernmental Panel on Climate Change *(For a partial compilation, see UNEP’s submission to the Meeting of Parties to the London Convention and Protocol, LC 30/INF.4, 28 August 2008)

46. –Considerable uncertainties left in the wake of two of the most important international processes truing to address ocean fertilization *Decisions under the CBD >CBD COP9 Decision IX/16 on Biodiversity and Climate Change (2008) in Part C (Ocean Fertilization) (Reaffirmed in COP 10 Decision X/33) ~Requests Parties, in accord with the precautionary approach, to ensure that ocean fertilization activities do not take place †Until there is an adequate scientific basis to justify such activities and †A global, transparent and effective control and regulatory mechanism ~Provides an exception for small-scale scientific research studies within coastal waters †Such studies should be subject to prior assessment and strictly controlled †Not be used for generating and selling carbon offsets or any other commercial purpose ~Various uncertainties, particularly †What is small-scale? †What are coastal waters?

47. >CBD Decision X/33 on Biodiversity and Climate Change at COP 10 (2010) ~Decision goes beyond just ocean fertilization to address broader potential geo-engineering activities. Parties and other Governments are invited to: Ensure, in line and consistent with decision IX/16C, on ocean fertilization and biodiversity and climate change, … in the absence of science based, global, transparent and effective control and regulatory mechanisms for geo- engineering, and in accordance with the precautionary approach and Article 14 of the Convention, that no climate- related geo-engineering activities that may affect biodiversity take place, until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic, and cultural impacts, with the exception of small scale scientific research studies that would be conducted in a controlled setting … and only if they are justified by the need to gather scientific data and are subject to a thorough prior assessment of the potential impacts on the environment… (para. 8(w))

48. ~Decision also raises various uncertainties, such as †What are geo-engineering activities? †What is small scale research? †What constitutes a thorough prior assessment?

49. *Key efforts under the London Convention and 1996 Protocol >Governing Bodies’ Resolution LC-LP.1 on the Regulation of Ocean Fertilization (31 October 2008) ~Agreed that in order to provide for legitimate scientific research, such research should be regarded as placement of matter for a purpose other than mere disposal thereof ~Agreed that scientific research proposals should be assessed on a case-by-case basis using an assessment framework to be developed by the scientific groups ~Agreed that given the present state of knowledge, ocean fertilization activities other than legitimate scientific research should not be allowed and such other activities should be considered as contrary to the aims of the Convention/Protocol ~What precisely constitutes legitimate scientific research was left to future fleshing out in proposed “Assessment Framework for Scientific Research Involving Ocean Fertilization”

50. >An Assessment Framework for Scientific Research Involving Ocean Fertilization was adopted by the governing bodies on 14 October 2010 ~Still considerable interpretive leeway left open as to what constitutes legitimate scientific research with s. 2.2 setting out key criteria that should be met †Lack of any financial and/or economic gain arising directly from the experiment and its outcomes †Proposal subject to scientific peer review †Proponents committed to publish results in peer reviewed scientific publications ~Assessment Framework also leaves lots of room for deciding whether an ocean fertilization research proposal is contrary to the aims of the Convention/Protocol with s. 43 providing If the risks and/or uncertainties are so high as to be deemed unacceptable, with respect to protection of the marine environment, taking into account the precautionary approach, then a decision should be made to seek revision of or reject the proposal.

51. >An Intersessional Working Group on Ocean Fertilization, established in 2008, has held four meetings to discuss options for first addressing ocean fertilization without reaching consensus on the best way forward with two key points of disagreement: ~Whether a legally-binding approach is necessary? †Some countries, including the U.S.A., have suggested giving time for the Assessment Framework for Scientific Research Involving Ocean Fertilization to be implemented before deciding on the need for additional regulation (wait and see position) †Some support for just a further non-binding resolution †Those arguing for a legally-binding approach have highlighted the language of a further resolution by the governing bodies of the LC/LP in 2010 where the Contracting Parties affirmed [t]hat 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 …. (Resolution LC-LP.2) (emphasis added)

52. ~ If a legally-binding amendment approach is adapted, what activities should be covered? †Just ocean fertilization proposals? †A broader range of marine geo-engineering activities, such as the installation of pipes or other infrastructure to increase ocean upwelling effects? >The Thirty-Third Consultative meeting of Parties to the LC and the Sixth meeting of Parties to the LP at their meeting in October 2011 authorized the Working Group to continue its deliberations on ocean fertilization with a further meeting to be held in June 2012

53. +The limited “international grip” reality is exemplified by the 2009 LOHAFEX experiment –Joint iron fertilization experiment carried out in (January - March 2009) by the Alfred-Wegener Institute for Polar and Marine Research (AWI) and the National Institute of Oceanography (India) *About six tonnes of dissolved iron were applied to an area of 300 sq. km. *Outside the Antarctic Treaty Area in an eddy around 48 o S, 16 o W *LOHA = Hindi word for Iron FEX = fertilization experiment http://www.awi.de/fileadmin/user_up load/News/Press_Releases/2009/1. _Quartal/LOHAFEXInfo_Anhang_1 _bis_4.pdf

54. –Considerable criticisms from environmental NGOs as an alleged violation of the CBD’s moratorium (only small-scale scientific research studies in coastal waters allowed) –No international EIA process applicable *Project fell outside the Madrid Protocol’s EIA provisions since it took place outside the Antarctic Treaty Area *A scientific risk assessment was conducted by AWI and the National Institute of Oceanography

55. *On behalf of the Federal Ministry of Education and Science (Germany) further reviews of the risk assessment were solicited from various institutes (including from the British Antarctic Survey, University of Heidelberg, University of Kiel) –The risk assessment interpreted the CBD criteria broadly *Project was a spatial small-scale experiment covering just 300 km 2 compared to the 50 million km 2 covered by the Antarctic Circumpolar Current *The project involved coastal waters as coastal plankton species inhabit the offshore fertilized waters

56. Parting Thoughts! The LP 1996 represents a major step for humankind in applying a precautionary approach to ocean dumping However, a sea of challenges remains in the wake with perhaps the greatest hurdle being to get all relevant States to come aboard the Protocol The international control of ocean disposals remains an “unfinished voyage” with legal reins over ocean fertilization and possibly other marine geo-engineering proposals yet to be fully sorted out The LP 1996 stands as a “beacon of hope” +Demonstrates how a strong precautionary approach of “reverse listing” is possible +Suggests avenues for future navigation in other areas of International Environmental Law, such as the management of toxic chemicals Thank you!