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) Good afternoon, name & PhD here at Utrecht Center for Oceans, Water and Sustainability Law and the Netherlands Institute for the Law of the Sea To talk about a particularly topical issue concerning climate change and the oceans – and this presentation addresses the legal issues and institutional responses related to a ocean based activity, namely ocean fertilization.

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 BACKGROUND 2 12 legitimate small scale research experiments between 1993 – 2005 Attention media and private ventures suggesting ocean fertilization for commercial purposes using carbon credit system 2007 US / Greenpeace table issue within London Convention/Protocol framework 2007 IPCC 4th Assessment report indicates that Ocean Fertilization 2007 – 2011 (?) statement on OF by various IGO’s 2009 LOHAFEX experiment (Germany/India) 2012 Canada / Haida ‘incident’ in North Pacific by HAIDA Corp. Canada / Russ George 2013 Amendment London Protocol

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 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.