Preserving a balanced ocean: regulating climate change mitigation activities in marine areas beyond national jurisdiction.

• Author: Warner, Robin

Abstract

The urgency associated with mitigating the adverse impacts of climate change has spawned a variety of geoengineering schemes designed to promote better absorption of carbon dioxide and other greenhouse gases from the earth's atmosphere by the oceans and forests. This article examines three climate change mitigation activities which employ the ocean as a receptacle for these gases and the international law framework which applies to these activities in marine areas beyond national jurisdiction. It argues that although some guidelines have been developed by the States Parties to the London Convention and the London Protocol to regulate the environmental impact of sub-seabed sequestration of carbon dioxide, the international law framework for such activities in marine areas beyond national jurisdiction is ad hoc and far from comprehensive.

Introduction

The damaging affects of anthropogenically-induced climate change on both the terrestrial and marine environment have been acknowledged by a succession of expert reports commissioned by global and national bodies. (1) This recognition has spawned heightened levels of activity by scientists, engineers and entrepreneurs to mitigate the adverse effects of climate change. Multiple schemes have been suggested to ameliorate the adverse effects of climate change on the environment caused by the burning of fossil fuels and other greenhouse gas emissions, including enhanced schemes to remove carbon dioxide from the atmosphere, The ability of the ocean to absorb rising levels of carbon dioxide in the atmosphere has been the focus of some of these schemes. The ocean is already a major sink for carbon dioxide because if its capacity to readily absorb excess atmospheric carbon and concert it to soluble form. A prominent deep sea scientist, Tony Koslow, estimates that approximately 5.5 billion tonnes (or gigatonnes) of carbon are now released into the atmosphere each year as carbon dioxide from the burning of fossil fuels, and that a third of that is taken up by the oceans. (2) Augmenting the rate at which the oceans absorb carbon dioxide, or using the oceans as a storage receptacle for excess carbon dioxide, are fundamental objectives of the climate change mitigation activities now being proposed and trialled in marine areas both within and beyond national jurisdiction. (3)

Less attention has been devoted to the environmental impacts of such climate change mitigation activities particularly where they occur in marine areas beyond national jurisdiction. While climate change mitigation activities conducted in marine areas within national jurisdiction may be subject to coastal State legislation and policy on environment, impact assessment and other environmental protection safeguards, the regulatory framework for such activities beyond national jurisdiction is fragmented and less defined. General obligations to protect the marine environment beyond national jurisdiction arc contained in Part XII of the United Nations Convention on the Law of the Sea ('1982 LOSC) (4) but these have not been supplemented in the case of marine areas beyond national jurisdiction with international law instruments applying modern environmental protection principles to the conduct of emerging activities such as climate change mitigation schemes by Flag Stares, their nationals and corporations. In the absence of systems to monitor and mitigate the adverse impacts of such activities in marine areas beyond national jurisdiction, there is a real risk of irreversible damage to the marine environment of these areas and its biodiversity (5)

This article will describe three climate change mitigation activities which involve using either the water column or sea-bed: sequestration of carbon dioxide in the water column or sea-bed; fertilisation of the open ocean with iron or other nutrients to stimulate phytoplankton blooms (which may enhance the capacity of the oceans to absorb carbon dioxide); and the use of wave-driven pumps suspended above the ocean floor to bring deeper, more nutrient-rich water closer to the ocean surface, where it may stimulate increased growth of phytoplankton to absorb carbon dioxide more efficiently, and eventually flush more carbon dioxide to the bottom of the ocean The article will analyse the applicability of the law of the sea and marine environmental law principles to these activities when they occur in marine areas beyond national jurisdiction, whether in the high seas water column or on the deep sea bed beyond national jurisdiction. The freedom of the seas has been a defining concept of the law of the sea since it was advocated by Hugo Grotius in his treatise Mare Liberum in 1609. (6) Grotius' fundamental premise was that the 'outer ocean' may not be subjected to the sovereignty of individual States and that it was open to use by all nations. (7) This doctrine remains an integral part of the high seas regime and is codified in Part VII of the 1982 LOSC. Juxtaposed with the doctrine of the freedom of the seas is the obligation in Part XII of the 1982 LOSC that states Parties must protect and preserve the whole of the marine environment, including areas beyond national jurisdiction. This principle is reinforced in subsequent instruments such as the Oceans Chapter of Agenda 21 (8) and the Convention on Biological Diversity, (9) which recognise the obligation to conserve marine biodiversity and require a precautionary and ecosystem-based approach to be taken to activities at sea. The obligation to protect and preserve the marine environment in article 192 of the 1982 LOSC is expressed as applying across all areas of ocean space, although its implementation in marine areas beyond national jurisdiction from vessel source discharges in the shipping sector and from the adverse impacts of deep sea-bed mining, through the obligations under Part XI of the 1982 LOSC. For emerging uses of the oceans beyond national jurisdiction, such as climate change mitigation, the environmental regulation canvas remains blank. States and non-State actors are free to engage in these activities on the high seas without prior assessment or monitoring of their impacts on the environment. This article will discuss potential options for strengthening the environmental protection regime which applies to existing and new climate change mitigation activities in marine areas beyond national jurisdiction.

1. Climate Change Mitigation Activities and the Ocean

   1. Sequestration of Carbon Dioxide in the Seabed and Water Column

      One of the earliest climate change mitigation schemes proposed was carbon sequestration. This involves permanent sequestration of carbon dioxide emissions from large sources such as fossil fuel-fired power plants, steel works and fuel processing plants, in sub-seabed geological formations. (10) The process involves separating carbon dioxide from flue gases and pressurising it for transport by pipeline or vessel to the sub seabed storage site. Storage sites envisaged and already being used for sub-seabed carbon dioxide capture include depleted offshore oil and gas fields and deep subterranean and sub-sea saline aquifers. (11) While most sub-seabed sequestration of carbon dioxide has so far occured in waters within national jurisdiction, there is the potential for future storage in scabed areas beyond national jurisdiction when storage sites within national jurisdiction are exhausted. (12) The principal for leakage of carbon dioxide and any other substances in the carbon dioxide stream, such as heavy metals, into the marine environment, either during transport to a storage site or after storage. (13) Leakage of these substances into the deep sea environment can alter the marine chemistry of the water column and lead to adverse effects on the interconnected web of marine species, habitats and ecosystems. (14) Considerable research has been undertaken by States, in conjunction with corporations to assess and minimise the environmental risks associated with sub-seabed sequestration of carbon dioxide. The results of this research are being implemented in a number of projects in marine areas within national jurisdiction around the world. (15)

      A less contained form of disposal of carbon dioxide from fossil fuel emissions associated with the oceans is the injection of carbon dioxide directly of liquid carbon dioxide from ships or pipelines into the sea at depths ranging from 1,000 metres to over 3,000 metres from the surface. (16) Disposal at greater depths is preferred so that mixing of water levels during winter does not return the carbon dioxide to just below the ocean surface, where it would be re-absorbed into the atmosphere. (17) Scientists have identified a range of adverse impacts to the marine environment from this method of disposal. It is predicted that carbon dioxide disposal. It is predicted that carbon dioxide disposed of in the deep sea at depths below 3,000 metres would form a lake which would freeze over and eventually dissolve. (18) The effect of this introduction of an alien chemical substance into the deep sea on the benthic ecosystems of these areas is expected to include asphyxiation and suppression of the metabolism of species due to acidification of the surrounding sea water and the inability of deep sea organisms to take oxygen from sea water with a lower pH level. (19) There is also considerable uncertainty among scientists whether this method of disposal of carbon dioxide in the oceans will lead to effective isolation of carbon dioxide from the atmosphere on a long term basis. (20) Although some experiments and proof of concept studies have been conducted into this form of carbon dioxide disposal, the associated environmental risks and legal uncertainties have detracted large scale commercial investment, which has gravitated instead towards sub-seabed sequestration projects. (21)

   2. Open Ocean Fertilisation

      The process of open ocean fertilisation used iron and...