Governance of Marine
Geoengineering
SPECIAL REPORT
Kerryn Brent, Wil Burns and Jeffrey McGee
About CIGI
Credits
We are the Centre for International Governance Innovation: an independent,
non-partisan think tank with an objective and uniquely global perspective. Our
research, opinions and public voice make a difference in today’s world by
bringing clarity and innovative thinking to global policy making. By working
across disciplines and in partnership with the best peers and experts, we are the
benchmark for influential research and trusted analysis.
Director, International Law Oonagh E. Fitzgerald
Our research initiatives focus on governance of the global economy, global
security and politics, and international law in collaboration with a range of
strategic partners and have received support from the Government of Canada,
the Government of Ontario, as well as founder Jim Balsillie.
À propos du CIGI
Au Centre pour l'innovation dans la gouvernance internationale (CIGI), nous
formons un groupe de réflexion indépendant et non partisan doté d’un point
de vue objectif et unique de portée mondiale. Nos recherches, nos avis et nos
interventions publiques ont des effets réels sur le monde d'aujourd’hui car ils
apportent de la clarté et une réflexion novatrice pour l’élaboration des politiques
à l’échelle internationale. En raison des travaux accomplis en collaboration
et en partenariat avec des pairs et des spécialistes interdisciplinaires des plus
compétents, nous sommes devenus une référence grâce à l’influence de nos
recherches et à la fiabilité de nos analyses.
Nos projets de recherche ont trait à la gouvernance dans les domaines suivants :
l’économie mondiale, la sécurité et les politiques internationales, et le droit
international. Nous comptons sur la collaboration de nombreux partenaires
stratégiques et avons reçu le soutien des gouvernements du Canada et de
l’Ontario ainsi que du fondateur du CIGI, Jim Balsillie.
Copyright © 2019 by the Centre for International Governance Innovation
The opinions expressed in this publication are those of the authors and do not
necessarily reflect the views of the Centre for International Governance Innovation
or its Board of Directors.
For publications enquiries, please contact publications@cigionline.org.
This work is licensed under a Creative Commons Attribution —
Non-commercial — No Derivatives License. To view this license,
visit (www.creativecommons.org/licenses/by-nc-nd/3.0/).
For re-use or distribution, please include this copyright notice.
Printed in Canada on Forest Stewardship Council® certified paper containing
100% post-consumer fibre.
Centre for International Governance Innovation and CIGI are registered
trademarks.
67 Erb Street West
Waterloo, ON, Canada N2L 6C2
www.cigionline.org
Program Manager Heather McNorgan
Publisher Carol Bonnett
Senior Publications Editor Nicole Langlois
Graphic Designer Brooklynn Schwartz
Contents
v
Acronyms and Abbreviations
vii
Executive Summary
1
Introduction
7
Potential Ocean-based
Geoengineering Options
17
International Law and Marine
Geoengineering
43
Marine Geoengineering Amendments
under the London Protocol
49
Biodiversity Beyond National Jurisdiction
— An Opportunity to Strengthen Marine
Geoengineering Governance under
International Law?
53
Conclusion
57
About the Authors
Acronyms and Abbreviations
AOA
artificial ocean alkalization
BBNJ
biodiversity beyond national jurisdiction
BECCS
bioenergy with carbon
capture and storage
CBD
UN Convention on Biodiversity
CCAMLR
Convention on the Conservation of
Antarctic Marine Living Resources
CCS
carbon capture and sequestration
CDR
carbon dioxide removal
CO2
carbon dioxide
COP
ENMOD
Convention on the Prohibition
Convention of Military or Any Other Hostile
Use of Environmental
Modification Techniques
EPBC Act
Environment Protection and
Biodiversity Conservation Act
GBR
Great Barrier Reef
GHG
greenhouse gas
HNLC
high-nitrate, low-chlorophyll
IPCC
Intergovernmental Panel
on Climate Change
Conference of the Parties
JARPA
Japan’s Research Program in the Antarctic
EEZ
exclusive economic zone
LOSC
UN Convention on the Law of the Sea
EIAs
environmental impact assessments
MCB
marine cloud brightening
v
Governance of Marine Geoengineering
MSR
marine scientific research
NDCs
nationally determined contributions
NGOs
non-governmental organizations
OFAF
Assessment Framework for Scientific
Research Involving Ocean Fertilization
OIF
ocean iron fertilization
OSPAR
Convention for the Protection of
Convention the Marine Environment of
the North-East Atlantic
RFMOs
regional fisheries
management organizations
SRM
solar radiation management
UNESCO
UN Educational, Scientific
and Cultural Organization
UNFCCC
UN Framework Convention
on Climate Change
UNFSA
United Nations Fish Stocks Agreement
vi
Executive Summary
likely effectiveness, requisite levels of international
cooperation and intensity of environmental risks. This
diversity of marine geoengineering activities will likely
place significant new demands upon the international
law system to govern potential risks and opportunities.
After more than two decades of UN negotiations,
global greenhouse gas (GHG) emissions continue
to rise, with current projections indicating the
planet is on a pathway to a temperature increase of
approximately 3.2°C by 2100, well beyond what is
considered a safe level. This has spurred scientific and
policy interest in the possible role of solar radiation
management (SRM) and carbon dioxide removal
(CDR) geoengineering activities to help avert passing
critical climatic thresholds, or to help societies recover
if global temperatures overshoot expectations of
safe levels. There are various proposals for SRM and
CDR marine geoengineering, but aside from ocean
iron fertilization (OIF) and marine cloud brightening
(MCB), none of these options have moved beyond
conceptual development and laboratory testing.
Marine geoengineering proposals show significant
diversity in terms of their purpose, scale of application,
International ocean law governance is comprised
of a patchwork of global framework agreements,
sectoral agreements and customary international
law rules that have developed over time in response
to disparate issues. These include maritime access,
fisheries management, shipping pollution, ocean
dumping and marine scientific research (MSR). This
patchwork of oceans governance contains several
bodies of rules that might apply in governing marine
geoengineering activities. However, these bodies
of rules were negotiated for different purposes,
and not specifically for the governance of marine
vii
geoengineering. The extent to which this patchwork
of rules might contribute to marine geoengineering
governance will vary, depending on the purpose
of an activity, where it is conducted, which state is
responsible for it and the types of impacts it is likely
to have. Applying this patchwork to a specific marine
geoengineering activity is complex, and existing
rules may provide only limited concrete guidance as
to how an activity ought to be conducted. The 2013
amendment to the London Protocol on ocean dumping
provides the most developed and specific framework
for marine geoengineering governance to date. But the
capacity of this amendment to bolster the capacity of
international law to govern marine geoengineering
activities is limited by some significant shortcomings.
Negotiations are under way to establish a new global
treaty on conservation of marine biodiversity in areas
beyond national jurisdiction, including new rules
for area-based management, environmental impact
assessments (EIAs) and capacity building/technology
transfer. The potential provisions of this agreement
could be pertinent to marine geoengineering options.
This negotiation is both an opportunity and a risk
for marine geoengineering governance. A new
agreement has the potential to fill key gaps in the
existing patchwork of international law for marine
geoengineering activities in high-seas areas. However,
it is also important that this new treaty be structured
in a way that is not overly restrictive, which might
hinder responsible research and development
of marine geoengineering in high-seas areas.
viii
Introduction
When the Paris Agreement1 to the United Nations
Framework Convention on Climate Change2 (UNFCCC)
was adopted in 2015, many policy makers lauded
the agreement, characterizing it as a “major leap for
mankind,”3 a “watershed event,”4 and a “monumental
triumph for people and our planet.”5 However, it has
become increasingly clear in the ensuing years that the
non-binding pledges made by the parties to effectuate
the treaty’s overarching objectives, may prove to be
wholly inadequate to the imposing task at hand.
1
United Nations Framework Convention on Climate Change, Paris Agreement,
12 December 2015, Dec CP.21, 21st Sess, UN Doc FCCC/CP/2015/L.9
(entered into force 4 December 2016) [Paris Agreement].
2
United Nations Conference on Environment and Development, Framework
Convention on Climate Change, 9 May 1992, 1771 UNTS 107, 31 ILM 849
(entered into force 21 March 1994) [UNFCCC].
The Paris Agreement aims to strengthen the objectives
of the UNFCCC by “[h]olding the increase in the
global average temperature to well below 2°C above
pre-industrial levels and pursuing efforts to limit the
temperature increase to 1.5°C above pre-industrial
levels.”6 However, given the global community’s
3
J Vida et al, “World leaders hail Paris climate deal as ‘major leap for
mankind’”, The Guardian (12 December 2015), online: <www.theguardian.
com/environment/2015/dec/13/world-leaders-hail-paris-climate-deal>.
4
Steinar Andresen et al, “The Paris Agreement: Consequences for the EU and
Carbon Markets?” (2016) 4:3 Politics & Governance 188.
1
5
“COP21: UN chief hails new climate change agreement as ‘monumental
triumph’”, UN News (12 December 2015), online: <https://news.un.org/en/
story/2015/12/517982-cop21-un-chief-hails-new-climate-change-agreementmonumental-triumph>.
6
Paris Agreement, supra note 1, art 2(1)(a).
Governance of Marine Geoengineering
by 2100,12 with temperatures continuing to rise
for centuries beyond, and staying above Holocene
level conditions for more than 10,000 years.13
growing heat-trapping emissions, and steadily
increasing concentrations of long-lived GHGs in the
atmosphere, recent assessments indicate that the
remaining “carbon budget” to hold temperatures
to below 1.5ºC may be exhausted by 2030,7 with
temperatures potentially reaching 1.5ºC by 2040 if
current rates of warming continue.8 Moreover, even
the budget required to hold global temperatures
to below 2ºC may be expended by 2030,9 or, at
the most, within a few decades thereafter.10
Sobering projections of this nature have led to
increasing interest in the potential role of climate
geoengineering techniques to help avert passing
critical climatic thresholds,14 or to help societies recover
in so-called overshoot scenarios (i.e., where global
temperature overshoots expectations of safe
limits).15 Geoengineering is defined by the United
Kingdom’s Royal Society as “the deliberate largescale manipulation of the planetary environment
to counteract anthropogenic climate change.”16
There are various types of climate geoengineering
proposals, most of which are still at a conceptual
Indeed, Climate Analytics et al. projects that
the nationally determined contributions (NDCs)
made by states under the Paris Agreement put
the world on track for temperature increases
of 3.2°C.11 Other contemporaneous assessments
project that the current NDCs may result in global
temperature increases of between 2.6°C and 3.7°C
7
8
9
12 Calum Brown, “Achievement of Paris Climate Goals unlikely due to time lags in
the land system” (2019) 9 Nature Climate Change 203 at 206; Rob Bellamy,
“Incentivize negative emissions responsibly” (2018) 3 Nature Energy; Raftery
et al, supra note 10, 637–39; Rogelj et al, supra note 7 at 634. It should be
emphasized that the Paris Agreement does provide for a “global stocktake”
every five years “to assess the collective progress towards achieving the
purpose of this Agreement and its long-term goals,” with an eye to enhancing
domestic and international commitments to meet the agreement’s overarching
objectives, if necessary. See Paris Agreement, supra note 1, art 14. While this
provision could help the parties to avoid passing the 2°C threshold, this would
require substantially strengthened commitments. See Wolfgang Obergassel et
al, “Phoenix from the Ashes—An Analysis of the Paris Agreement to the United
Nations Framework Convention on Climate Change”, Wuppertal Institute
for Climate, Environment and Energy (January 2016) at 45, online: <http://
wupperinst.org/uploads/tx_wupperinst/Paris_Results.pdf>. The world’s
remaining “carbon budget” to avert passing the 2°C threshold may also be
far lower than many current estimates, given uncertainties about many critical
parameters. See Glen Peters, “The ‘Best Available Science’ to Inform 1.5°C
Policy Choices” (2016) 6:7 Nature Climate Change 646.
Joeri Rogelj et al, “Paris Agreement climate proposals need a boost to keep
warming well below 2°C” (2017) 534 Nature 631 at 635 (based on a 50
percent probability of not exceeding this temperature). See also Richard J
Millar et al, “Emission budgets and pathways consistent with limiting warming
to 1.5 °C” (2017) 10 Nature Geoscience 741 at 742; Jan C Minx et al,
“Negative emissions—Part 1: Research landscape and synthesis” (2018) 13:6
Environmental Research Letters 063001 at 3 (remaining budget could be
exhausted within five years).
13 Peter U Clark et al, “Consequences of Twenty-First Century Policy for MultiMillennial Climate and Sea-Level Change” (2016) 6 Nature Climate Change
360 at 361; Gregory Trencher, “Climate Change: What Happens After
2100?”, Our World (16 November 2011), online: <http://ourworld.unu.edu/
en/climate-change-what-happens-after-2100>. In a recent assessment, Will
Steffen et al. have also concluded that biogeophysical feedbacks associated
with climate change could ultimately elevate temperatures to as much as 4 or
5°C above pre-industrial levels, and raise sea levels by 10 to 60 metres. Will
Steffen et al, “Trajectories of the Earth System in the Anthropocene” (2018)
115:33 Proceedings of the National Academy of Sciences (PNAS) 8252,
Supplementary Information at 4.
MR Allen et al, “2018: Framing and Context” in V Masson-Delmotte et al, eds,
Global Warming of 1.5°C: An IPCC Special Report on the impacts of global
warming of 1.5°C above pre-industrial levels and related global greenhouse
gas emission pathways, in the context of strengthening the global response
to the threat of climate change, sustainable development, and efforts to
eradicate poverty (IPCC, 2018) 81 [IPCC, Global Warming of 1.5°C], online:
<www.ipcc.ch/site/assets/uploads/sites/2/2019/02/SR15_Chapter1_Low_
Res.pdf>. But see Yangyang Xu et al, “Global warming will happen faster than
we think” (2018) 564 Nature 30 at 31 (concluding that we could reach 1.5°C
by 2030).
14 Mark G Lawrence, “Evaluating climate geoengineering proposals in the
context of the Paris Agreement temperature goals” (2018) 9:3734 Nature
Communications 1; Detlef P van Vuuren et al, “Alternative pathways to the
1.5°C target reduce the need for negative emission technologies” (2018)
8 Nature Climate Change 391; Douglas G MacMartin, Katharine L Ricke
& David W Keith, “Solar geoengineering as part of an overall strategy for
meeting the 1.5°C Paris target” (2018) 376:2119 Philosophical Transactions of
the Royal Society.
Rogelj et al, supra note 7 at 635.
10 Philip Goodwin et al, “Pathways to 1.5°C and 2°C warming based on
observational and geological constraints” (2018) 11 Nature Geoscience 102
at 104. However, it should be emphasized that there is a very wide range of
plausible future emissions scenarios consistent with meeting either the 1.5ºC or
2°C target. See Zeke Hausfather, “Analysis: How much ‘carbon budget’ is left
to limit global warming to 1.5C?” CarbonBrief (9 April 2018), online: <www.
carbonbrief.org/analysis-how-much-carbon-budget-is-left-to-limit-global-warmingto-1-5c> (“Recent studies suggest the remaining carbon budget to limit warming
to ‘well below’ 1.5C might have already been exceeded by emissions to-date,
or might be as large as 15 more years of emissions at our current rate”);
Adrian E Raftery et al, “Less than 2ºC warming by 2100 unlikely” (2017) 7
Nature Climate Change 637; Edward Comryn-Platt et al, “Carbon budgets for
1.5 and 2°C targets lowered by natural wetland and permafrost feedbacks”
(2017) 11 Nature Geoscience 568; Glen P Peters, “The ‘best available science’
to inform 1.5°C policy choices” (2016) 6 Nature Climate Change 646.
15 “Temperature overshoot” is defined as a period of time in which global
temperature increases over pre-industrial levels exceed prescribed targets,
such as 2ºC or 1.5°C. See KL Ricke et al, “Constraints on global temperature
target overshoot” (2017) 7:14743 Scientific Reports at 2. A number of studies
have emphasized the potentially critical role of CDR/negative emissions
technologies under overshoot scenarios. See Oliver Geden & Andreas Löschel,
“Define limits for temperature overshoot targets” (2017) 10 Nature Geoscience
881; CD Jones et al, “Simulating the Earth system response to negative
emissions” (2016) 11:095012 Environmental Research Letters; Christian Azar
et al, “Meeting global temperature targets—the role of bioenergy with carbon
capture and storage” (2016) 8:03400 Environmental Research Letters at 3.
11 Climate Action Tracker, “The highway to Paris”, online: <https://
climateactiontracker.org/>.
16 The Royal Society, Geoengineering the climate: Science, governance and
uncertainty (London, UK: The Royal Society, 2009) at 11.
2
Introduction
Concentration Pathway.22 Other frequently discussed
SRM options include MCB23 and space-based options.24
or modelling stage. However, within scientific
and policy literatures, climate geoengineering
technologies are usually divided into two broad
categories, that is, SRM and CDR approaches.17
CDR options, also often referred to as negative
emissions technologies, seek to remove and sequester
carbon dioxide (CO2) from the atmosphere, either
by enhancing natural terrestrial and ocean sinks
for carbon, or deploying chemical engineering to
remove CO2 from the atmosphere.25 This, in turn,
can increase the amount of long-wave radiation
emitted by the earth back to space, reducing radiative
forcing and thus exerting a cooling effect.26
Most SRM techniques focus on reducing the amount
of solar radiation absorbed by the earth (currently
pegged at approximately 235 watts per square metre18)
by an amount sufficient to offset the increased trapping
of infrared radiation by rising levels of GHGs.19 The
most widely discussed and actively investigated
SRM option to date is sulfur aerosol injection.20 This
method seeks to enhance planetary albedo (the
surface reflectivity of the sun’s radiation)21 through
the injection of a gas such as sulfur dioxide (or
another gas that will ultimately react chemically) in
the stratosphere to form sulfate aerosols. The high
reflectivity of aerosols causes a negative forcing
that could ultimately substantially reduce projected
temperature increases under the Intergovernmental
Panel on Climate Change’s (IPCC’s) Representative
Many analysts now believe that large-scale
deployment of CDR options may be critical to
achieve the temperature target range of the Paris
Agreement.27 Indeed, 87 percent of the IPCC’s Fifth
Assessment scenarios consistent with achieving the
2ºC climate stabilization target (with more than a 50
percent likelihood) assume widespread utilization
17 William CG Burns, “Geoengineering the Climate: An Overview of Solar
Radiation Management Options” (2012) 46 Tulsa L Rev 283 at 286.
There is also increasing characterization of SRM options, such as “albedo
modification,” including in the two most recent assessment reports of the IPCC.
See Mark G Lawrence & Paul J Crutzen, “Was breaking the taboo on research
on climate engineering via albedo modification a moral hazard, or a moral
imperative?” (2016) 5 Earth’s Future 136. It should also be emphasized that
some approaches denominated as “geoengineering,” including some CDR
options, are closely akin to technologies for industrial carbon management,
such as carbon capture and sequestration or land use, land-use change
and forestry, and thus might not be classified by everyone as “climate
geoengineering.” See John Virgoe, “International Governance of a Possible
Geoengineering Intervention to Combat Climate Change” (2009) 95 Climatic
Change 103.
22 Yosuke Arino et al, “Estimating option values of solar radiation management
assuming that climate sensitivity is uncertain” (2016) 113 PNAS 5886; Andy
Jones et al, “A comparison of the climate impacts of geoengineering by
stratospheric SO2 injection and by brightening of marine stratocumulus cloud”
(2011) 12:2 Atmospheric Science Letters 176, 178–80. For further details
about MCB, see the second section of this report, “MCB.”
23 K Alterskjær & JE Kristjánsson, “The sign of the radiative forcing from marine
cloud brightening depends on both particle size and injection amount” (2013)
40:1 Geophysical Research Letters 210; John Latham et al, “Marine cloud
brightening” (2012) 370:1974 Philosophical Transactions Royal Society A 4217.
18 JT Kiehl & Kevin E Trenberth, “Earth’s Annual Global Mean Energy Budget”
(1997) 78:2 Bull American Meteorological Society 197.
24 Colin R McInnes, “Planetary Macro-Engineering Using Orbiting Solar
Reflectors” in Viorel Badescu, RB Cathcart & RD Schuiling, eds, MacroEngineering: A Challenge for the Future (Dordrecht, Netherlands, Springer,
2006) 215; R Bewick, JP Sanchez & CR McInnes, “The feasibility of using an
L1 positioned dust cloud as a method of space-based geoengineering” (2012)
49:7 Advances in Space Research 1212. Space-based approaches all seek
to modify the earth’s energy balance in terms of incoming solar radiation
through approaches such as deployment of a “space parasol,” large metallic
reflectors, clouds of small spacecraft orbited near the inner Lagrange point, or
an artificial planetary ring of passive scattering particles. See FJT Salazar, CR
McInnes & OC Winter, “Intervening in Earth’s climate system through spacebased solar reflectors” (2016) 58:1 Advances in Space Research 17.
19 Michael C MacCracken, “Beyond Mitigation: Potential Options for CounterBalancing the Climatic and Environmental Consequences of the Rising
Concentrations of Greenhouse Gases” (2009) World Bank Policy Research
Working Paper 4938 at 15. Balancing positive global mean radiative forcing
of +4 W/m2, projected with a doubling of CO2 from pre-industrial levels, would
require reducing solar radiative forcing by approximately 1.8 percent; see
Royal Society, supra note 16 at 23. While most SRM options focus on reducing
the amount of incoming short-wave solar radiation, one approach, cirrus cloud
thinning, seeks to increase outgoing long-wave radiation by reducing the
optical death of cirrus clouds by injecting ice nuclei into regions of cirrus cloud
formation, which can induce a transition from homogeneous to heterogeneous
freezing. See Jón Egill Kristjánsson et al, “The hydrological cycle response to
cirrus cloud thinning” (2015) 42 Geophysical Research Letters 10,807.
25 Timothy Lenton, “The Global Potential for Carbon Dioxide Removal” in Roy
Harrison & Ron Hester, eds, Geoengineering of the Climate System (London,
UK: Royal Society of Chemistry, 2014) 53.
20 MacMartin, Ricke & Keith, supra note 14 at 2; Wil CG Burns, “Solar Radiation
Management and its Implications for Intergenerational Equity” in Wil CG Burns
& Andrew L Strauss, eds, Climate Change Geoengineering: Philosophical
Perspectives, Legal Issues, and Governance Frameworks (New York:
Cambridge University Press, 2013) 208 [Burns, “SRM & Intergenerational
Equity”].
26 TM Lenton & NE Vaughan, “The Radiative Forcing Potential of Different
Climate Geoengineering Options” (2009) 9 Atmospheric Chemistry & Physics
5539.
27 E Kriegler et al, “Pathways limiting warming to 1.5°C: a tale of turning around
in no time?” (2018) 376:2119 Philosophical Transactions Royal Society at
1; Sabine Fuss et al, “Negative emissions—Part 2: Costs, potentials and side
effects” (2018) 13:6 Environmental Research Letters at 2; Bellamy, supra note
12 at 532.
21 “Albedo is the fraction of incident sunlight that is reflected.” Albedo is
measured on a 0–1 scale. If a surface absorbs all incoming sunlight, its albedo
is 0; if it is perfectly reflecting, its albedo is 1. See Arctic Coastal Ice Processes,
“Albedo,” online: <www.arcticice.org/albedo.htm>.
3
Governance of Marine Geoengineering
of CDR technologies.28 The vast majority of these
scenarios contemplate deployment of one CDR
option, bioenergy with carbon capture and storage
(BECCS),29 a process by which biomass is converted
to heat, electricity, or liquid or gas fuels, coupled
with the capture of CO2 and storage in geological or
other reservoirs.30 Other frequently discussed CDR
technologies include direct air capture,31 biochar,32
enhanced mineral weathering,33 reforestation/
afforestation34 and soil carbon enhancement.35
technologies, including large-scale deployment of
BECCS, as well as the most widely discussed SRM
option, sulfur aerosol injection, have deepened,36
interest in other geoengineering approaches has also
increased. Indeed, many commentators contend
that the optimal approach, at least in the context
of CDR options, may be adoption of a portfolio of
approaches, all deployed at relatively modest scales.37
This has included increasing discussion of the
potential role of marine-based processes.38 As
defined by the parties to the London Protocol to the
Convention for the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter, marine
geoengineering means “a deliberate intervention
in the marine environment to manipulate natural
processes, including to counteract anthropogenic
climate change and/or its impacts.”39
As our understanding of the potential risks associated
with the most privileged negative emissions
28 Ottmar Edenhofer et al, “Climate Change 2014: Mitigation of Climate
Change Working Group III Contribution to the Fifth Assessment Report of
the Intergovernmental Panel on Climate Change” (2014) at 14–15; Espen
Moe & Jo-Kristian S Røttereng, “The post-carbon society: Rethinking the
international governance of negative emissions” (2018) 44 Energy Research
& Social Science 199. It should be emphasized that there are scenarios that
avoid the passing of the 2ºC threshold, while foregoing or minimizing the use
of CDR options. See Detlef P van Vuuren et al, “Alternative pathways to the
1.5°C target reduce the need for negative emission technologies” (2018) 8
Nature Climate Change 391; Johan Rockström et al, “A roadmap for rapid
decarbonization” (2017) 355 Science 1269.
The world’s oceans are a logical cynosure for
geoengineering research, as they cover 71 percent
of the planet’s area, currently remove 25 percent
of anthropogenic CO2 emissions and have great
potential to remove and store much more.40
29 Bellamy, supra note 12 at 532; Wil Burns & Simon Nicholson, “Bioenergy
with carbon capture and sequestration with storage (BECCS): the prospects
and challenges of an emerging climate response” (2017) 7:2 J Environmental
Studies & Sciences 527.
36 Risks associated with BECCS include potentially massive demands for land, with
serious implications for food security, large water demands, huge increased
appropriation of nitrogen and potential adverse impacts on biodiversity.
See Mathilde Fajardy et al, “BECCS deployment: a reality check” (2019)
Grantham Institute Briefing Paper No 28 at 5–8; RC Henry et al, “Food supply
and bioenergy production within the global cropland planetary boundary”
(2018) 13:3 PLOS ONE e0194695 at 1–17; Burns & Nicholson, supra note 29
at 529–30; S Kartha & K Dooley, “The risks of relying on tomorrow’s ‘negative
emissions’ to guide today’s mitigation action” (2016) Stockholm Environment
Institute Working Paper No 2016-08; Phil Williamson, “Emissions reduction:
scrutinize CO2 removal methods” (2016) 530:7589 Nature 153. Potential risks
associated with SRM include potential declines in food production associated
with changes in precipitation patterns, depletion of the ozone layer and rapid
climatic changes should the use of such technologies be suddenly terminated.
See Katherine Dagon & Daniel Schrag, “Exploring the Effects of Solar
Radiation Management on Water Cycling in a Coupled Land–Atmosphere
Model” (2016) 29 J Climate 2635; Burns, “SRM & Intergenerational Equity”,
supra note 20; Simone Tilmes, R Müller & R Salawitch, “The sensitivity of polar
ozone depletion to proposed geoengineering schemes” (2008) 320:5880
Science 1201.
30 Mathias Fridahl, “Introduction” in Mathias Fridahl, ed, Bioenergy with Carbon
Capture and Storage: From global potentials to domestic realities (Brussels:
European Liberal Forum, 2018).
31 AA Okesola et al, “Direct Air Capture: A Review of Carbon Dioxide Capture
from the Air” (2018) 413 Materials Science & Engineering, Conference 1 at
1–4; Jere Elfving, Cyril Bajamundi & Juho Kauppinen, “Characterization and
Performance of Direct Air Capture Sorbent” (2017) 114 Energy Procedia 6087;
Klaus Lackner, “The thermodynamics of direct air capture of carbon dioxide”
(2013) 50 Energy 38.
32 C Werner et al, “Biogeochemical potential of biomass pyrolysis systems
for limiting global warming to 1.5°C” (2018) 13 Environmental Research
Letters 044036; S Mia et al, “Long-Term Aging of Biochar: A Molecular
Understanding with Agricultural and Environmental Implications” (2017) 141
Advances in Agronomy 1. Biochar involves conversion of biomass, including
crop residues, non-commercial wood and wood waste, manure, solid waste,
non-food energy crops, construction scraps, yard trimmings, methane digester
residues or grasses, to a more stable form that can facilitate long-term storage
of carbon. This is effectuated either by medium-temperature pyrolysis, or
high-temperature gasification processes. See “The European Transdisciplinary
Assessment of Climate Engineering (EuTRACE): Removing Greenhouse Gases
from the Atmosphere and Reflecting Sunlight away from Earth” in Stefan
Schäfer et al, eds, Final report of the FP7 CSA project EuTRACE (2015) at 31.
37 Fajardy et al, supra note 36 at 3; Minx et al, supra note 7 at 3.
33 Christiana Dietzen et al, “Effectiveness of enhanced mineral weathering as a
carbon sequestration tool and alternative to agricultural lime: An incubation
experiment” (2018) 74 International J Greenhouse Gas Control 251; Lyla
L Taylor et al, “Simulating carbon capture by enhanced weathering with
croplands: an overview of key processes highlighting areas of future model
development” (2017) 13:4 Biology 20160868.
38 The judiciousness of conducting an assessment of the potential risks and
benefits of an array of climate geoengineering approaches was emphasized
by the IPCC in its special report on the implications of temperature increases
of 1.5°C. In their Summary for Policymakers, the drafters of the report
emphasized, at least in the context of CDR options, that “[f]easibility and
sustainability of CDR use could be enhanced by a portfolio of options
deployed at substantial, but lesser scales, rather than a single option at very
large scale.” IPCC, Global Warming of 1.5°C, supra note 8, SPM-23.
34 Derek Martin et al, “Carbon Dioxide Removal Options: A Literature Review
Identifying Carbon Removal Potentials and Costs” (submitted in partial
fulfillment of the requirements for the degree of master of science (Natural
Resources and Environment, University of Michigan, 2017) at 18–31.
39 Amendment to the London Protocol to Regulate the Placement of Matter for
Ocean Fertilization and Other Marine Geoengineering Activities, Report of the
Thirty-Fifth Consultative Meeting and the Eighth Meeting of the Contracting
Parties, UNEP, Res LP.4(8), Annex 4, LC 35/15 (2013) [Res LP.4(8)].
35 United Nations Environment Programme (UNEP), Emissions Gap
Report 61-2 (2017), online: <https://wedocs.unep.org/bitstream/
handle/20.500.11822/22070/EGR_2017.pdf>; Pete Smith, “Soil carbon
sequestration and biochar as negative emission technologies” (2016) 22:3
Global Change Biology 1315.
40 Jean-Pierre Gattuso et al, “Ocean Solutions to Address Climate Change
and Its Effects on Marine Ecosystems” (2018) Frontiers in Marine Science,
DOI:<10.3389/fmars.2018.00337>; Greg Rau, “Enhancing the Ocean’s Role
in CO2 Mitigation” in Bill Freedman, ed, Global Environmental Change (New
York: SpringerLink, 2014) 817.
4
Introduction
A turn toward marine geoengineering activities will
place significant new demands upon the international
law system to provide governance of the potential risks
and opportunities. However, the rules of international
law that will most likely be called on to provide
governance of marine geoengineering have mostly
developed in response to issues of quite different
type and scale. It is therefore important and timely
to assess the current capacity of the international
law system to provide governance of marine
geoengineering and what changes might be required.
This report thus proceeds as follows. The second
section provides an extensive survey of the different
types of marine geoengineering proposals that have
appeared in the scientific literature and the few that
have been the subject of field testing. This section
details the substance of these proposals and highlights
some of the environmental and social risks that have
been identified. The third section provides analysis
of various rules of international law that might be
relevant to marine geoengineering. This section
details the key oceans regimes that might be called
upon to govern proposals on marine geoengineering
activity, including the London Convention/London
Protocol treaties on marine dumping, the 1982 United
Nations Convention on the Law of the Sea (LOSC)41
and customary international law rules relating to
transboundary harm. The fourth section analyzes an
amendment to the London Protocol, which arguably
represents the most advanced attempt at marine
geoengineering governance to date, but which
has yet to come into force. The fifth section looks
at a recent LOSC negotiation process on high seas
biological diversity that may provide a new venue
for governance of marine geoengineering. The final
section concludes with a summary of key findings
and discussion of areas for reform of the international
law system that might assist in meeting future
demands for governing marine geoengineering.
41 United Nations Convention on the Law of the Sea, 10 December 1982, 1833
UNTS 3 (entered into force 16 November 1994) [LOSC].
5
Potential Ocean-based
Geoengineering Options
radiative balance.42 MCB is a geoengineering approach
that seeks to disperse sea salt particles into maritime
clouds. Sea salt particles are a major source of cloud
condensation nuclei, which in turn enhance cloud
droplet number concentrations, reducing cloud
droplet size. This results in an increase in droplet
surface, and thus albedo.43 This approach could also
As discussed above, the oceans have significant
potential as sites for geoengineering research, field
testing and possible implementation. There have been
numerous proposals for both SRM and CDR marine
geoengineering. The following provides an overview of
the more prominent marine geoengineering proposals.
SRM Proposals
MCB
42 John Latham et al, “Global temperature stabilization via controlled albedo
enhancement of low-level maritime clouds” (2008) 366:1882 Philosophical
Transactions Royal Society A [Latham et al, “Global temperature
stabilization”].
Low-level marine stratiform clouds cover
approximately 25 percent of ocean surfaces, and
usually have albedos of 0.3 to 0.7, which exert a
substantial cooling effect in terms of the earth’s
43 Ben Parkes, Alan Gadian & John Latham, “The Effects of Marine Cloud
Brightening on Seasonal Polar Temperatures and the Meridional Heat Flux”
(2012) International Scholarly Research Notices, Article ID 142872 at 1; J
Feitcher & T Leisner, “Climate engineering: A critical review of approaches to
modify the global energy balance” (2009) 176:1 European Physical J Special
Topics 87.
7
Governance of Marine Geoengineering
enhance the longevity of such maritime clouds,
potentially enhancing their cooling capacity.44
albedo under some circumstances,49 emphasizing
the need for substantial additional research.50
By way of example, one proponent of MCB has
proposed that it could be accomplished through the
deployment of up to 1,500 remote-controlled, windpowered “albedo yachts.” It is anticipated these vessels
would be capable of generating sufficient electricity
through turbines dragged in the water to create a mist
of seawater, which could in turn be lofted 1,000 metres
into the atmosphere to help create maritime clouds.45
Deployment of MCB could also pose several risks to
both ocean ecosystems and terrestrial landmasses.
The reduction of available light and ocean temperature
associated with MCB could potentially alter carbon
uptake of oceans by changing seawater chemistry
and phytoplankton production, which could in turn
affect other biogeochemical cycles and ocean ecology,
including fisheries and other aspects of marine
food webs.51 While it’s possible that this might not
significantly affect total biological productivity, there
is a risk that it could have significant impacts on the
vertical distribution of productivity, and alter other
factors important to the function of marine ecosystems,
such as the horizontal transport of ocean nutrients.52
Several studies have concluded that MCB deployed
at a large scale could offset the radiative effective
from a doubling of atmospheric CO2,46 while other
research has projected a more modest reduction of
35 percent of current radiative forcing.47 However, to
date, the potential effectiveness of this option has only
been assessed with global scale models, which have
poor spatial resolution. This precludes assessment
on the scale of individual clouds.48 Moreover, some
studies have found that MCB could even reduce
Moreover, depending on the scale of use, MCB could
also have serious impacts on global precipitation
patterns. While MCB might not have profound
impacts on aggregate global precipitation,53 several
studies have projected that deployment could result
in “sharp decreases” of precipitation in a number
of regions, including in South America, where it
could have detrimental impacts on the Amazon
rainforest.54 Regional cooling projected in some
49 Alan Robock et al, “Studying geoengineering with natural and anthropogenic
analogs” (2013) 121 Climatic Change 445; David Keith & Peter Irvine, “The
Science and Technology of Solar Geoengineering: A Compact Summary” in
Governance of the Deployment of Solar Geoengineering: Harvard Project
on Climate Agreements (November 2018) at 3; L Ahlmet al, “Marine cloud
brightening — as effective without clouds” (2017) 17 Atmospheric Chemistry
& Physics 13071. Moreover, MCB experiments usually assume uniform
distribution of emitted sea salt in ocean grid boxes. However, this fails to take
into account sub-grid aerosol coagulation within sea-spray plumes. One study
incorporating this factor into simulations concluded that it reduces the Cloud
Droplet Nuclear Concentrations (and the resulting radiative effect) by about 50
percent over emission regions, with variations ranging from 10 to 90 percent
depending on meteorological conditions. See GS Stuart et al, “Reduced
efficacy of MCB geoengineering due to in-plume aerosol coagulation:
parameterization and global implications” (2013) 13 Atmospheric Chemistry &
Physics 10385.
44 PW Boyd & CMG Vivian, eds, “High-Level Review of a Wide Range of
Proposed Marine Geoengineering Techniques” (2019) GESAMP Reports
& Studies No 98; John Latham et al, “Marine cloud brightening: regional
applications” (2014) 372:2031 Philosophical Transactions Royal Society A at
2.
50 Mark G Lawrence et al, “Evaluating climate geoengineering proposals in
the context of the Paris Agreement temperature goals” (2018) 9 Nature
Communications, art 3734 at 10; Camilla W Stjern et al, “Response to MCB
in a multi-model ensemble” (2018) 18 Atmospheric Chemistry & Physics 621;
Stephen H Salter et al, “Engineering Ideas for Brighter Clouds” (2014) 38
Issues Science & Technology 131.
45 Stephen Salter, Graham Sortino & John Latham, “Sea-going hardware for
the cloud albedo method of reversing global warming” (2008) 366:1882
Philosophical Transactions Royal Society A 3989; Christopher Mims, “‘Albedo
Yachts’ and Marine Clouds: A Cure for Climate Change?”, Scientific American
(21 October 2009).
51 Antti-Ilari Partanen et al, “Impacts of sea spray geoengineering on ocean
biogeochemistry” (2016) 43:14 Geophysical Research Letters 7600.
46 Cao Long et al, “Geoengineering: Basic science and ongoing research efforts
in China” (2015) 6:3–4 Advances in Climate Change Research 188; Latham et
al, “Global temperature stabilization”, supra note 42 at 3371.
52 Ibid; Nick J Hardman-Mountford et al, “Impacts of light shading and nutrient
enrichment geo-engineering approaches on the productivity of a stratified,
oligotrophic ocean ecosystem” (2013) 10:89 J Royal Society Interface.
47 G Bala et al, “Albedo enhancement of marine clouds to counteract global
warming: Impacts on the hydrological cycle” (2011) 37:5–6 Climate Dynamics
915.
53 Kari Alterskjær et al, “Sea-salt injections into the low-latitude marine boundary
layer? The transient response in three Earth system models” (2013) 118:21 J
Geophysical Research: Atmospheres 12,195.
48 H Korhonen, KS Carslaw & S Romakkaniemi, “Enhancement of marine cloud
albedo via controlled sea spray injections: a global model study of the
influence of emission rates, microphysics and transport” (2010) 10 Atmospheric
Chemistry & Physics 735.
54 Bala et al, supra note 47 at 2. See also A Jones & JM Haywood, “Sea-spray
geoengineering in the HadGEM2-ES earth-system model: radiative impact and
climate response” (2012) 12 Atmospheric Chemistry & Physics 10887.
8
Potential Ocean-based Geoengineering Options
A more interventionist approach in sea surface albedo
modification has been proposed by Leslie Field et
al.63 Their research suggests that the placement of
sheet-like or granular materials, such as hollow glass
microspheres on Arctic ocean surfaces, could effectuate
surface ice albedo modification in the region and
help tamp down projected temperature increases.64
The researchers concluded that the use of this glass
microspheres method could increase Arctic ice volumes
between 0.5 and one percent per year,65 as well as
substantially reducing temperatures in the region.66
modelling studies could also have impacts on the West
African monsoon and El Niño Southern Oscillation.55
MCB could also result in changes in soil moisture
content, manifested in notable areas of drying in
South America and the southern United States, while
increasing soil moisture in central Africa and India.56
Microbubbles/Foam
As far back as 1965, a President’s Science Advisory
Committee in the United States suggested that the
impending threat of climate change could be addressed
by “spreading very small reflecting particles over large
oceanic areas” to enhance ocean albedo.57 In 2011,
Russell Seitz expanded upon this concept, concluding
that the generation of reflective microbubbles over a
portion of the more than 300 million square kilometres
of fresh and salt water on the earth could potentially
offset all current radiative forcing associated with
anthropogenic emissions of CO2, methane, nitrogen
dioxide and halocarbons.58 He suggested that these
“hydrosols” could be produced by methods such as
expansion of air through vortex nozzles, mechanical
shakers or ultrasonic transducers.59 Julian Evans
et al.60 and Julia Crook et al.61 have also suggested
that increasing ocean albedo through creation of
surface bubbles or foam could have salutary impacts
on Arctic ice and temperatures. An experiment
conducted as part of the Geoengineering Model
Intercomparison Project Testbed also concluded that
this approach could effectuate a substantial reduction
in projected global mean surface temperatures.62
However, very little research on these approaches has
ensued to date,67 and issues abound in terms of their
potential effectiveness and cost.68 Moreover, some
researchers have raised concerns about potential
risks associated with large-scale deployment of these
options. These could include the potential to exacerbate
ocean acidification by increasing the efficiency of CO2
absorption in the oceans, potential environmental
impacts associated with artificial surfactants, potential
impacts on oceanic species through temperature
effects and reduction of sunlight, and potential
changes in regional precipitation patterns.69
CDR Proposals
OIF
The world’s oceans sequester approximately onethird of anthropogenic CO2 emissions,70 with about
80 percent of all atmospheric carbon ending up in
55 Lynn M Russell et al, “Ecosystem Impacts of Geoengineering: A Review for
Developing a Science Plan” (2012) 41:4 Ambio 350.
63 L Field et al, “Increasing Arctic Sea Ice Albedo Using Localized Reversible
Geoengineering” (2018) 6:6 Earth’s Future 882 at 884.
56 Jones & Haywood, supra note 54 at 10893.
64 Ibid.
57 President’s Science Advisory Committee, Restoring the Quality of Our
Environment: Report of the Environmental Pollution Panel 127 (November
1965), online: <www.documentcloud.org/documents/3227654-PSAC-1965Restoring-the-Quality-of-Our-Environment.html>.
65 Ibid at 896.
66 Ibid.
58 Russell Seitz, “Bright water: hydrosols, water conservation and climate
change” (2011) 105 Climatic Change 365 at 371.
67 National Research Council, Climate Intervention: Reflecting Sunlight to Cool
Earth (Washington, DC: National Academies Press, 2015) at 129.
59 Ibid at 366.
68 Ivana Cvijanovic, Ken Caldeira & Douglas G MacMartin, “Impacts of ocean
albedo alteration on Arctic sea ice restoration and Northern Hemisphere
climate” (2015) 10:4 Environmental Research Letters at 7; Robert L Olson,
“Soft Geoengineering: A Gentler Approach to Addressing Climate Change”
(2012) 54:5 Environment: Science & Policy for Sustainable Development 29 at
31.
60 JRG Evans et al, “Can oceanic foams limit global warming?” (2010) 42
Climate Research 155.
61 Julia A Crook, Lawrence S Jackson & Piers M Forster, “Can increasing
albedo of existing ship wakes reduce climate change?” (2016) 121:4 JGR:
Atmospheres 1549.
69 Alan Robock, “Bubble, bubble, toil and trouble: An editorial comment” (2011)
105 Climatic Change 383; Gabriel et al, supra note 62 at 606–08; Field et al,
supra note 63 at 900.
62 Corey J Gabriel et al, “The G4Foam Experiment: global climate impacts of
regional ocean albedo modification” (2017) 17 Atmospheric Chemistry &
Physics 595 at 602 (dispersal of highly reflective microbubble “foam” could
reduce projected global mean land temperatures from an IPCC RCP6.0
scenario by 0.51–0.70 Kelvin).
70 Laurent Bopp et al, “The Ocean: A Carbon Pump”, Ocean-Climate.org at 12,
online: <www.ocean-climate.org/wp-content/uploads/2015/03/ocean-carbonpump_ScientificItems_BD-2.pdf>; Field et al, supra note 63.
9
Governance of Marine Geoengineering
the oceans at some point in its life cycle.71 The role
of oceans as carbon sinks is primarily attributable
to two processes. First, the solubility pump drives
absorption of atmospheric carbon due to the
partial pressure differential between the ocean
and the atmosphere.72 This can facilitate storage of
CO2 in the oceans over a centennial time scale.73
iron deficiency reduces the amount of carbon that can
be exported via the biological pump.78 In support of
this proposition, researchers contend that 30 percent
of the 80 ppm CO2 drawdown during the last glacial
maxima may have been attributable to iron-driven
enhancement of phytoplankton productivity.79
The iron hypothesis stimulated substantial interest
in the past few decades in the geoengineering
approach known as OIF. OIF seeks to stimulate net
phytoplankton growth through dispersal of iron80 in
surface waters in areas characterized by high-nitrate,
low-chlorophyll (HNLC) conditions.81 OIF is one of the
few ocean-based geoengineering approaches that has
moved beyond conceptual development and modelling
to the stage of field testing.82 There have been 15 field
OIF experiments conducted to date, although some
of these were for non-geoengineering purposes.83
The second process, and the one most pertinent to
OIF, is the biological pump. The starting point for
this process is the fixation of dissolved inorganic CO2
in shallow ocean waters by phytoplankton in the
process of photosynthesis, converting the CO2 into
an organic form.74 While the bulk of fixed organic
carbon is remineralized in the upper layers of the
ocean and released to the atmosphere, a portion
is transported downwards by the sinking of dead
phytoplankton biomass and zooplankton fecal pellets
into the deep ocean and sediments (i.e., ocean floor).75
Carbon sinking to the level of sediments can be
sequestered for decades to centuries, or even longer.76
Some early assessments projected that OIF might
be able to offset as much as 25 percent of the
world’s annual carbon emissions.84 However,
additional research has resulted in more refined
estimates of the overall efficiency of phytoplankton
uptake in response to iron seeding declining.85
As a consequence, many recent analyses have
concluded that deployment of OIF, even at very
In the 1980s, oceanographer John Martin advanced
the “iron hypothesis,” contending that phytoplankton
growth in regions such as the Southern (Antarctic)
Ocean and equatorial Pacific are limited by iron
deficiencies, obviating the ability of these organisms to
utilize excess nitrate/phosphate.77 By implication, this
71 Howard Herzog, Ken Caldeira & John Reilly, “An Issue of Permanence:
Assessing the Effectiveness of Temporary Carbon Storage” (2003) 59:3
Climatic Change 293 at 302. It has been estimated that atmospheric
concentrations of CO2 would be one-third higher absent ocean storage of
carbon. See Richard Sanders et al, “The Biological Carbon Pump in the North
Atlantic” 129(B) Progress in Oceanography 200.
78 De La Rocha & Passow, supra note 74 at 87.
79 PW Boyd et al, “Mesoscale Iron Enrichment Experiments 1993-2005: Synthesis
and Future Directions” (2007) 315 Science 612.
72 Louis A Legendre et al, “The microbial carbon pump concept: Potential
biogeochemical significance in the globally changing ocean” (2009) 134
Progress in Oceanography 432.
80 To date, the most widely discussed form of iron to utilize in OIF is ferrous
sulfate, with other options including iron lignosite or solid forms of iron. See KH
Coale, “Iron Fertilization” in Steve A Thorpe & Karl K Turekian, Encyclopedia
of Ocean Sciences, 1st ed (Amsterdam: Elsevier Science, 2001).
73 Stephen A Rackley, “Ocean storage” in Carbon Capture and Storage, 1st ed
(Oxford, UK: Butterworth-Heinemann, 2010), ch 12.
81 Ken O Busseler et al, “Ocean Iron Fertilization — Moving Forward in a
Sea of Uncertainty” (2008) 319 Science 162; Phillip W Boyd et al, “A
mesoscale phytoplankton bloom in the polar Southern Ocean stimulated by
iron fertilization” (2000) 407 Nature 695. Approximately 20 percent of the
world’s oceans are classified as HNLC. See Jonathan William Pitchford &
John Brindley, “Iron limitation, grazing pressure and oceanic high nutrientlow chlorophyll (HNLC) regions” (1999) 21:3 J Plankton Research 525.
HNLC regions are predominantly in the subarctic Pacific, large regions of the
eastern equatorial Pacific and the Southern Ocean. See Coale, supra note
80 at 333. The Southern Ocean is the largest HNLC region of the global
ocean. See Stéphane Blain et al, “Effect of natural iron fertilization on carbon
sequestration in the Southern Ocean” (2007) 446 Nature 1070.
74 Stephen A Rackley, “Ocean storage” in Carbon Capture and Storage, 2nd ed
(Oxford, UK: Butterworth-Heinemann, 2017), ch 20; PM Williams, H Oeschger
& P Kinney, “Natural Radiocarbon Activity of the Dissolved Organic Carbon
in the Northeast Pacific Ocean” (1969) 224 Nature 256. Approximately half
of carbon fixation via photosynthesis is attributable to phytoplankton. See
Sallie W Chisholm et al, “Dis-Crediting Ocean Fertilization” (2001) 294:5541
Science 309. This is true despite the fact that marine phytoplankton comprise
less than one percent of the earth’s total photosynthetic biomass. See CL De
La Rocha & U Passow, “The Biological Pump” in Heinrich D Holland & Karl K
Turekian, eds, Treatise on Geochemistry, 2nd ed, vol 8 (Amsterdam: Elsevier,
2004) 93.
75 Andy Ridgwell, “Evolution of the ocean’s ‘biological pump’” (2011) 108:40
PNAS 16485 at 16485; Jennie Dixon, “Iron Fertilization: A Scientific Review
with International Policy Recommendations” (2009) 32:2 Environs 321 at
324–25.
82 Jeffrey McGee, Kerryn Brent & Wil Burns, “Geoengineering the oceans: an
emerging frontier in international climate change governance” (2018) 10:1
Austl J Maritime & Ocean Affairs 67.
83 Ibid.
76 Victor Smetacek et al, “Deep carbon export from a Southern Ocean ironfertilized diatom bloom” (2012) 487 Nature 313.
84 Hugh Powell, “Fertilizing the ocean with iron” (2008) 46:1 Oceanus 4.
85 United Nations Educational, Scientific and Cultural Organization &
Intergovernmental Oceanographic Commission, Ocean Fertilization: A
Scientific Summary for Policy Makers (2010).
77 JH Martin et al, “Testing the iron hypothesis in ecosystems of the equatorial
Pacific Ocean” (1994) 371 Nature 123; John H Martin, “Glacial-Interglacial
CO2 Change: The Iron Hypothesis” (1990) 5:1 Paleoceanography 1.
10
Potential Ocean-based Geoengineering Options
large scales, might only sequester between less
than a gigaton or a few gigatons of CO2 annually.86
There have also been proposals to stimulate ocean
productivity through macronutrient fertilization.
For example, in ocean regions where the limiting
nutrient is nitrogen, the addition of nitrogen-rich urea
might stimulate higher phytoplankton biomass.94
However, there are also serious potential risks to
assess in this context, including the potential for
creating hypoxic or anoxic environments that could
threaten marine species,95 declines in phytoplankton
diversity,96 and potential for eutrophication and
production of toxin-producing dinoflagellates.97
OIF could also pose substantial environmental
and social risks. Fertilization could substantially
alter ecological community composition in seeded
areas.87 The designed floristic shift to production
of larger, bloom-forming phytoplankton could
result in fundamental alteration of the base
of the food web and alter the biogeochemical
function of marine communities.88
Fertilization could also rob substantial expanses
of downstream ecosystems of critical nutrients,
and thus decrease primary production in those
areas.89 This could negatively impact production
of marine resources such as fish in downstream
regions, with potentially negative impacts on
livelihoods.90 Moreover, it could result in a net decline
in phytoplankton productivity, and thus negatively
impact the global carbon budget.91 Other potential
impacts of OIF could include proliferation of toxic
algal blooms that could threaten ocean ecosystems92
and the exacerbation of ocean acidification.93
Artificial Upwelling/Downwelling
Artificial upwelling seeks to stimulate primary
production in marine environments by drawing
nutrient-rich water from beneath the photic zone to
the surface.98 As is the case with OIF, stimulation of
phytoplankton production could lead to a drawdown
of atmospheric CO2 through the sinking of a portion
of particulate organic carbon to the ocean floor,
and sequestration for decades or centuries.99 It
might also produce co-benefits, including increases
in fish production and cooling of coral reefs.100
86 The Royal Society, Greenhouse Gas Removal (2018) (“upper limit for ocean
iron fertilisation is a CO2 sink of not more than 3.7 GtCO2 annually” at 44),
online: <https://royalsociety.org/~/media/policy/projects/greenhousegas-removal/royal-society-greenhouse-gas-removal-report-2018.pdf>; David
P Keller, “Marine Climate Engineering” in M Salmon & T Markus, eds,
Handbook on Marine Environmental Protection 261 (sequestration potential
of only a few gigatons of CO2 annually, even with fertilization of the entire
Southern Ocean, at 230); Aaron L Strong et al, “Ocean Fertilization: Science,
Policy, and Commerce” (2009) 22:3 Oceanography 236 (citing studies
projecting CO2 uptake with OIF of 0.9–1.5 GtC/year, at 244).
87 Caitlin G McCormack et al, “Key impacts of climate engineering on
biodiversity and ecosystems, with priorities for future research” (2016) 13 J
Integrative Environmental Science 103 at 115.
94 Uday Bhan Singh & AS Ahluwalia, “Microalgae: a promising tool for carbon
sequestration” (2013) 18 Mitigation & Adaptation Strategies Global Change
73 at 79; Patricia Glibert et al, “Ocean iron fertilization for carbon credits
poses high ecological risks” (2008) 56 Marine Pollution Bull 1049 at 1051.
88 Strong et al, supra note 86 at 256; Michelle Allsopp et al, “A scientific critique
of oceanic iron fertilization as a climate change mitigation strategy” (2007)
Greenpeace Research Laboratories Technical Note 07/2007 at 11.
89 Christine Bertram, “Ocean iron fertilization in the context of the Kyoto protocol
and the post-Kyoto process” (2010) 38 Energy Policy 1130 at 1133; John J
Cullen & Philip W Boyd, “Predicting and verifying the intended and unintended
consequences of large-scale ocean iron fertilization” (2008) 364 Marine
Ocean Ecology 295 at 298.
95 Julia Mayo-Ramsay, “Environmental, legal and social implications of ocean
urea fertilization: Sulu sea example” (2010) 34 Marine Policy 831 at 833;
Glibert et al, supra note 94 at 1051.
90 Anand Gnanadesikan et al, “Effects of patch ocean fertilization on
atmospheric carbon dioxide and biological production” (2003) 17:2 Global
Biogeochemical Cycles, art 1050 at 19–10; Bertram, supra note 89 at 1133.
97 Secretariat of the Convention on Biological Diversity, “Scientific Synthesis of the
Impacts of Ocean Fertilization on Marine Biodiversity” (2009) CBD Technical
Series No 45 at 31.
91 Strong et al, supra note 86 at 244.
98 Susie J Bauman et al, “Augmenting the Biological Pump: The Shortcomings
of Geoengineered Upwelling” (2015) 27:3 Oceanography at 17; Andrew
Yool, “Low efficiency of nutrient translocation for enhancing oceanic uptake of
carbon dioxide” (2009) 114:C8 J Geophysical Research (Oceans) at 2–3.
96 Glibert et al, supra note 94 at 1051.
92 Randall S Abate & Andrew B Greenlee, “Sowing Seeds Uncertain: Ocean
Iron Fertilization, Climate Change, and the International Environmental Law
Framework” (2010) 27 Pace Environmental L Rev 555 at 567; Ian SF Jones,
“Contrasting micro- and macro-nutrient nourishment of the ocean” (2011) 425
Marine Ecology Progress Series 281 at 291; Bertram, supra note 89 at 1132.
99 Yiwen Pan et al, “Achieving Highly Efficient Atmospheric CO2 Uptake by
Artificial Upwelling” (2018) 10 Sustainability, art 664 at 1; Phillip Williamson
et al, “Ocean Fertilization for Geoengineering: A Review of Effectiveness,
Environmental Impacts and Emerging Governance” (2017) 90 Process Safety &
Environmental Protection 475 at 479.
93 Andreas Oschlies et al, “Side effects and accounting aspects of hypothetical
large-scale Southern Ocean iron fertilization” (2010) 7 Biogeoscience
4017 (OIF could reduce pH in the Southern Ocean an additional 0.15 units
compared to current projections by 2110, at 4026).
100 Boyd & Vivian, supra note 44, at 61.
11
Governance of Marine Geoengineering
A range of devices has been proposed to facilitate
the upwelling process, including salt fountains,101
airlift pumps102 and wave-powered systems.103
be 0.03°C, 0.07°C and 0.23°C higher than under a
control experiment’s conditions, when upwelling
is ceased after 10, 20 and 50 years, respectively.107
Research to date has indicated that ocean upwelling,
even at large-scale deployment, would yield relatively
modest benefits in terms of carbon uptake by the
oceans, probably less than one gigaton annually.104
Some studies have even concluded that upwelling
could result in a net increase in atmospheric
concentrations of CO2.105 Moreover, should upwelling
be stopped at some point, it could result in a rapid
net increase in global temperatures. This is because
additional heat uptake of the planet associated
with artificial upwelling would be reversed with
the termination of deployment on a decadal time
scale, with the extra heat making its way back to
the sea surface.106 For example, Andreas Oschlies et
al. conducted a simulated experiment of artificial
upwelling and concluded that temperatures could
Ocean upwelling could also pose risks to ocean
ecosystems. The drawdown of CO2 into marine
environments could exacerbate ocean acidification,108
potentially decreasing ocean pH by 0.15 units beyond
present acidification projections.109 Artificial upwelling
could also substantially restructure ocean ecosystems,
including favouring larger phytoplankton, such as
diatoms,110 and resulting in a shift from oligotrophic
(nutrient-poor) to eutrophic (nutrient-rich) species.111
By contrast, ocean downwelling proposals would
seek to increase the rate of CO2 transfer to deep ocean
regions by enhancing the transport of carbon-rich cold
water into the deep ocean, a process known as the
“solubility pump.” To do so, downwelling options focus
on approaches that increase downwelling currents,
primarily by utilizing pumps that cool surface waters.112
However, several studies have concluded that this
approach would entail high costs and have a minimal
impact on atmospheric concentrations of CO2.113
101 The perpetual salt fountain would seek to induce nutrient upwelling by inserting
a pipe connecting deep seawater and surface seawater, then filling the pipe
with low-salinity deep seawater. Because the salinity of water inside the
pipe would be lower than the outside, it would create a buoyant force via
convective motion that would drive nutrients to the upper levels of the ocean.
See Shigenao Maruyama et al, “Artificial Upwelling of Deep Seawater Using
the Perpetual Salt Fountain for Cultivation of Ocean Desert” (2004) 60:4 J
Oceanography 563. See also H Stommel et al, “An oceanographical curiosity:
the perpetual salt fountain” (1956) 3:2 Deep Sea Research 152. This option
would likely be viable only in certain regions, including the Northern Pacific
Ocean, and some areas of the tropics and sub-tropics. See Dahai Zhang,
“Reviews of power supply and environmental energy conversions for artificial
upwelling” (2016) 56 Renewable & Sustainable Energy Rev 659 at 667.
Ocean Alkalinity/Ocean Liming
A number of researchers have proposed adding lime
(in the form of calcium oxide, calcium hydroxide,
or calcium carbonate),114 or silicate minerals such
102 An airlift pump is powered by compressed gas, usually air, which is injected
into the lower part of a pipe that transports a liquid that utilizes fluid pressure
to facilitate moving liquid in ascendant air flows in the same direction as the
air. See Wei Fan, “Experimental study on the performance of an air-lift pump
for artificial upwelling” (2013) 59 Ocean Engineering 47 at 48. Researchers
have mapped out a conceptual airlift pump system to upwell deep ocean
water, using a submerged vertical pipe and introducing compressed air into the
pipe near the upper end. See NK Liang & HK Peng, “A study of air-lift artificial
upwelling” (2005) 32 Ocean Engineering 731. See also Qicheng Meng et
al, “A simplified CFD model for air-lift artificial upwelling” (2013) 72 Ocean
Engineering 267.
107 Oschlies et al, supra note 104 at 4.
108 James E Lovelock & Chris G Rapley, “Ocean pipes could help the Earth to cure
itself” (2007) 449 Nature 403.
103 A wave-powered pump utilizes a buoy and a flapper valve that opens and
closes inside the pipe. The hingeing is designed to open and close at opposite
phases of the wave cycle, causing water to rise upward. See Kern E Kenyon,
“Upwelling by a Wave Pump” (2007) 63 J Oceanography 327. See also
Wei Fan et al, “Experimental study on the performance of a wave pump for
artificial upwelling” (2016) 113 Ocean Engineering 192.
109 Bauman et al, supra note 98 at 21.
110 L Zarauz et al, “Changes in plankton size structure and composition, during the
generation of a phytoplankton bloom, in the central Cantabrian Sea” (2009)
31:2 J Plankton Research 193.
104 Andreas Oschlies et al, “Climate engineering by artificial ocean upwelling:
Channeling the sorcerer’s apprentice” (2010) 37 Geophysical Research Letters
L04701 at 4; Philippe Ciais et al, “Carbon and Other Biogeochemical Cycles”
in IPCC, Climate Change 2013: The Physical Science Basis, Contribution of
Working Group I to the Fifth Assessment Report of the IPCC 550; Pan et al,
supra note 99 at 1.
111 Bauman et al, supra note 98 at 21.
112 S Zhou & PC Flynn, “Geoengineering Downwelling Ocean Currents: A Cost
Assessment” (2005) 71 Climatic Change 203 at 206–13.
113 Lenton & Vaughan, supra note 26 at 5553; The Royal Society, Greenhouse
Gas Removal (2018) at 65, online: <https://royalsociety.org/~/media/policy/
projects/greenhouse-gas-removal/royal-society-greenhouse-gas-removalreport-2018.pdf>.
105 Pan et al, supra note 99 at 2; S Dutreuil et al, “Impact of enhanced vertical
mixing on marine biogeochemistry: lessons for geo-engineering and natural
variability” (2009) 6 Biogeosciences 901 at 908.
114 Gemma Cripps et al, “Biological impacts of enhanced alkalinity in Carcinus
maenas” (2013) 71 Marine Pollution Bull 190 at 191. Calcium carbonate has
been suggested as the optimal mineral because of its ready availability at the
scales, which would be required for widescale deployment of ocean alkalinity
processes.
106 Oschlies et al, supra note 104 at 4; David P Keller, Ellias Y Feng & Andreas
Ochlies, “Potential climate engineering effectiveness and side effects during a
high carbon dioxide-emission scenario” (2014) 5 Nature Communications, art
3304, 8.
12
Potential Ocean-based Geoengineering Options
as olivine,115 to ocean surfaces. This approach is
usually referred to as artificial ocean alkalization
(AOA), or “enhanced ocean alkalinity.” Oceanic
dissolution of these minerals would increase total
alkalinity.116 This would, in turn, result in chemical
transformation of CO2, and storage in the ocean in
the form of bicarbonate and carbonate ions.117 For
example, the dissolution of one mole of calcium
carbonate is accompanied by the uptake of one
mole of CO2.118 AOA would accelerate processes that
would otherwise remove CO2 from the atmosphere
on time scales of up to thousands of years.119
There is a wide range of estimates for the potential
sequestration capacity associated with AOA. Tim
Lenton and Nem Vaughan concluded that AOA using
limestone could produce a modest drawdown of CO2
of 30 ppm relative to a baseline of 430 ppm.124 Other
studies, however, concluded that CO2 drawdown with
lime-based mineral dispersal could be much more
effective, with drawdown ranges from 166 to 450 ppm
by 2100.125 Peter Köhler et al. projected that olivinebased AOA could compensate for about nine percent
of anthropogenic CO2 emissions.126 However, all of
these projections should be approached with great
caution, as AOA research to date has not advanced
beyond desktop techno-economic assessment, or
bench-scale laboratory work.127 AOA could also help
to reduce the growing threat of ocean acidification,128
providing a potentially very important co-benefit.
A flotilla of ships could be deployed to distribute finely
ground limestone in selected parts of the oceans,120 or
limestone could be dissolved and pumped to the ocean
where local water supplies are readily available.121 An
alternative option to enhance ocean alkalinity would
be through dissolution of carbonate materials exposed
to flue gas CO2 and seawater. Research suggests that
contacting carbonate materials with seawater and
flue gases would increase alkalinity in the effluent
discharged back to the ocean.122 In the case of silicate
minerals, such as olivine, grains could be scattered
by vessels in the open ocean, or crushed olivine could
be scattered in coastal waters, taking advantage
of high abrasion of materials in these zones.123
There would also be some substantial logistical and
economic challenges associated with large-scale
deployment of AOA. AOA operations might require
increasing the global production of lime by 23
times,129 in the case of olivine.130 Substantial energy
requirements associated with production of lime from
limestone, as well as associated CO2 emissions, may
make this process impractical.131 Mining, transport and
discharge of quicklime could cost between US$0.5 and
US$2.8 trillion annually, equivalent to between 0.7 and
4.0 percent of GDP annually132 or $72 to $125 per ton of
sequestered carbon.133 Olivine dissolution in oceans
115 Lennart T Bach et al, “CO2 Removal With Enhanced Weathering and
Ocean Alkalinity Enhancement: Potential Risks and Co-benefits for Marine
Pelagic Ecosystems” (2019) 1 Frontiers in Climate art 7; P Köhler et al,
“Geoengineering impact of open ocean dissolution of olivine on atmospheric
CO2 surface ocean pH and marine biology” (2013) 8 Environmental Research
Letters 014009; J Hartmann et al, “Enhanced chemical weathering as a
geoengineering strategy to reduce atmospheric carbon dioxide, supply
nutrients, and mitigate ocean acidification” (2013) 51 Rev Geophysics 113.
124 Lenton & Vaughan, supra note 26 at 5553.
125 Ellias Feng et al, “Could artificial ocean alkalization protect tropical coral
ecosystems from ocean acidification?” (2016) 11:7 Environmental Research
Letters 074008 at 9.
126 Peter Köhler et al, “Geoengineering impact of open ocean dissolution of
olivine on atmospheric CO2, surface ocean pH and marine biology” (2013)
8:1 Environmental Research Letters 014009 at 8.
116 Miriam Ferrer González & Tatiana Ilyina, “Impacts of artificial ocean
alkalization on the carbon cycle and climate in Earth system simulations”
(2016) 43 Geophysical Research Letters 6493.
127 Stefano Caserini et al, “Affordable CO2 negative emission through hydrogen
from biomass, ocean liming, and CO2 storage” (2019) Mitigation & Adaptation
Stategies; Renforth & Henderson, supra note 117 at 32.
117 Phil Renforth & Gideon Henderson, “Assessing ocean alkalinity for carbon
sequestration” (2017) 55 Rev Geophysics 636 at 637.
118 LDD Harvey, “Mitigating the atmospheric CO2 increase and ocean acidification
by adding limestone powder to upwelling regions” (2008) 113 J Geophysical
Research C04028 at 2.
128 Harvey, supra note 118 (application of 4 gigatons of limestone per year
beginning in 2020 could “restore about 20% of the difference between the
minimum pH and preindustrial pH by 2220 and restore about 40% of the
difference by 2500” at 20); Tatiana Ilyina et al, “Assessing the potential of
calcium-based ocean alkalization to mitigate rising atmospheric CO2 and
ocean acidification” (2013) 40 Geophysical Research Letters 5909; Boyd &
Vivian, supra note 44 at 64.
119 D Archer, “Fate of fossil fuel CO2 in geologic time” (2005) 110 J Geophysical
Research C09S05 at 3.
120 Lenton & Vaughan, supra note 26 at 5553.
129 Ilyina et al, supra note 128 at 5911.
121 Haroon S Kheshgi, “Sequestering Atmospheric Carbon Dioxide By Increasing
Ocean Alkalinity” (1995) 20:9 Energy 915 at 917.
130 González & Ilyina, supra note 116 at 6494.
122 Phil Renforth, “The negative emission potential of alkaline materials” (2018) 10
Nature Communications 1 at 2; GH Rau & K Caldeira, “Enhanced carbonate
dissolution: A means of sequestering waste CO2 as ocean bicarbonate” (1999)
40:17 Energy Conversion & Management 1803.
131 Renforth & Henderson, supra note 117 at 3.
132 François S Paquay & Richard E Zeebe, “Assessing possible consequences of
ocean liming on ocean pH, atmospheric CO2 concentration and associated
costs” (2013) 17 Intl J Greenhouse Gas Control 183 at 187.
123 Jasper Griffioen, “Enhanced weathering of olivine in seawater: The efficiency
as revealed by thermodynamic scenario analysis” (2017) 575 Science Total
Environment 536.
133 P Renforth et al, “Engineering challenges of ocean liming” (2013) 60 Energy
442 at 448.
13
Governance of Marine Geoengineering
included under the blue carbon rubric. The rationale
is that some macroalgae grow on sandy sediments,
with burial rates for carbon of 0.4 percent of net
primary productivity. Moreover, there are substantial
amounts of production export of particulate organic
and dissolved organic carbon.142 The current natural
blue carbon sink is characterized as “huge,” perhaps
20 to 50 percent of the optimistic projections for the
sequestration potential of ocean fertilization, and 18
percent of ocean carbon sequestration in sediments.143
could also be extremely costly, given the need to finely
grind the mineral, although costs could be reduced
by application in more accessible coastal and shelf
environments.134 Estimates of costs associated with
using silicate rocks to achieve a 50 ppm drawdown
of CO2 could be in the range of US$60 to US$600
trillion.135 To put this number in perspective, global
GDP in 2019 is projected to be over US$88 trillion.136
Finally, AOA would pose a host of potential risks
to ocean ecosystems. The process could potentially
disadvantage marine organisms that are not able
to concentrate carbon within their cells under
conditions of increased alkalinity.137 AOA could also
cause spontaneous precipitation of calcium hydroxide.
This might adversely impact coral reefs, because
they are sensitive to high levels of turbidity.138 The
addition of non-carbon alkaline minerals to the oceans
could also alter primary and second production,
thereby increasing contaminant accumulation
in food chains via the release of minerals such as
cadmium, nickel, chromium, iron and silicon.139
There has been growing interest in the potential
role of enhancing blue carbon sinks to effectuate
atmospheric CDR. Recent research has indicated that
it may be possible to more than double current rates
of sequestration through restoration and creation
of coastal ecosystems.144 Moreover, there is serious
concern about declining rates of carbon sequestration
in many of these ecosystems, due to both climate
change and other anthropogenic stressors.145
There is substantial potential to expand kelp
forests, seaweed beds and mangroves, including
in deeper waters.146 Beyond the potential carbon
sequestration benefits that could flow from taking
these measures, there is also the potential for
substantial co-benefits, such as improved wastewater
treatment147 and alternatives to fossil fuels for
energy production,148 including providing feedstocks
Blue Carbon
The term “blue carbon” refers to carbon captured by
phytoplankton, as well as marine coastal macrophytes,
including mangroves, salt marshes, seagrass and
seaweed assemblages.140 Macroalgae is usually not
included under the rubric of blue carbon, because most
grows on rocks, where burial is precluded.141 However,
some researchers have contended that it should be
142 Dorte Krause-Jensen & Carlos M Duarte, “Substantial role of macroalgae in
marine carbon sequestration” (2016) 9 Nature Geoscience 737.
134 Francesc Montserrat et al, “Olivine Dissolution in Seawater: Implications for
CO2 Sequestration through Enhanced Weathering in Coastal Environments”
(2017) 51 Environmental Science & Technology 3960 at 3961.
143 Sophia C Johannessen & Robie W Macdonald, “Geoengineering with
seagrasses: is credit due where credit is given?” (2016) 11 Environmental
Research Letters 113001 at 1.
135 Lyla L Taylor et al, “Enhanced weathering strategies for stabilizing climate and
averting ocean acidification” (2016) 6 Nature Climate Change 402 at 406.
144 National Academy of Sciences, Negative Emissions Technologies and Reliable
Sequestration: A Research Agenda (2018) at 32, online: <http://nap.
edu/25259>.
136 World Population Review, “GDP Ranked by Country 2019”, online: <http://
worldpopulationreview.com/countries/countries-by-gdp/>.
145 Ibid; Alexander Pérez et al, “Factors influencing organic carbon accumulation
in mangrove ecosystems” (2018) 14 Biology Letters 20180237 at 1–5;
Elizabeth Mcleod et al, “A blueprint for blue carbon: toward an improved
understanding of the role of vegetated coastal habitats in sequestering CO2”
(2011) 9:10 Frontiers in Ecology & Environment 552 at 556.
137 Caserini et al, supra note 127; Gideon Henderson et al, “Decreasing
Atmospheric CO2 by Increasing Ocean Alkalinity” (2008) University of Oxford
Department of Earth Sciences and the James Martin 21st Century Ocean
Institute at 14.
138 Feng et al, supra note 125 at 7.
146 Ik Kyo Chung et al, “Installing kelp forests/seaweed beds for mitigation and
adaptation against global warming: Korean Project Overview” (2013) 70:5
ICES J Marine Science 1038; Calvyn FA Sondak et al, “Carbon dioxide
mitigation potential of seaweed aquaculture beds (SABs)” (2017) 29:5 J
Applied Psychology 2363 at 2368.
139 Gattuso et al, supra note 40 at 11; David P Edwards et al, “Climate change
mitigation: potential benefits and pitfalls of enhanced rock weathering in
tropical agriculture” (2017) 13:4 Biology Letters, art 337 at 4.
140 Francisco Arena & Fátima Vaz-Pinto, “Marine Algae as Carbon Sinks and
Allies to Combat Global Warming” in Leonel Pereira & JM Neto, eds, Marine
Algae: Biodiversity, Taxonomy, Environmental Assessment and Biotechnology
(Boca Raton, FL: CRC Press, 2014) 178 at 183; NOAA, National Ocean
Service, “What is Blue Carbon?”, online: <https://oceanservice.noaa.gov/
facts/bluecarbon.html>.
147 SP Shukla et al, “Atmospheric Carbon Sequestration Through Microalgae:
Status, Prospects, and Challenges” in JS Singh & G Seneviratne, eds, AgroEnvironmental Sustainability (Amsterdam: Springer Nature, 2017) 219 at 230.
148 Kai Ling Yu et al, “Recent developments on algal biochar production and
characterization” (2017) 246 Biosource Technology 2; Diana Moreira & José
CM Pires, “Atmospheric CO2 capture by algae: Negative carbon dioxide
emission path” (2016) 215 Bioresource Technology 371 at 376.
141 CM Duarte et al, “The role of coastal plant communities for climate change
mitigation and adaptation” (2013) 3 Nature Climate Change 961 at 961–62.
14
Potential Ocean-based Geoengineering Options
for the BECCS process that would avoid or lessen
dependence on terrestrial bioenergy crops.149
However, there are many challenges to enhancing
sequestration through blue carbon strategies,
including the high financial cost of some options,150
as well as ecological constraints to expanding the
scope of blue carbon sources, especially in openocean environments.151 Enhancing blue carbon
processes may also pose risks to ocean ecosystems,
including alteration of ocean surface albedo and
potential negative impacts on marine ecosystems
associated with ocean temperature changes,152 and
potential production of toxins and algal blooms
that could negatively impact ocean ecosystems.153
As discussed above, marine geoengineering
proposals will likely place new demands upon
the international law system to manage its risks
and opportunities. The following section therefore
examines how current international law might
govern ocean geoengineering research, field testing
and eventual deployment. It looks at what current
rules exist that might apply to ocean geoengineering
and what changes in rules might be needed.
149 Colin M Beal et al, “Integrating Algae with Bioenergy Carbon Capture and
Storage (ABECCS) Increases Sustainability” (2018) 6 Earth’s Future 524;
Charles H Greene et al, “Geoengineering, marine microalgae, and climate
stabilization in the 21st century” (2016) 5 Earth’s Future 278 at 279–80;
Andrew J Cole et al, “Using CO2 to enhance carbon capture and biomass
applications of freshwater microalgae” (2014) 6:6 Global Change Biology:
Bioenergy 637.
150 B Bharathiraja et al, “Aquatic biomass (algae) as a future feed stock for
bio-refineries: A review on cultivation, processing and products” (2015) 47
Renewable & Sustainable Energy Rev 634 at 637–38; Beal et al, supra note
149 at 533.
151 Rackley, supra note 74 at 538.
152 Antoine de Ramon N’Yeurt et al, “Negative Carbon via Ocean Afforestation”
(2012) 90:6 Process Safety & Environmental Protection 467 at 472.
153 Marc Y Menetrez, “An Overview of Algae Biofuel Production and Potential
Environmental Impact” (2012) 46:13 Environmental Science & Technology
7073 at 7079.
15
International Law and
Marine Geoengineering
consider the extent to which the international law
system will be able to adapt to govern the risks and
opportunities presented by technologies that can,
at the moment, only be pictured in the abstract.
The discussion above outlines a range of potential
marine geoengineering proposals. The proposals have
important differences in terms of purpose (i.e., CDR,
SRM or both), scale of application, likely effectiveness,
international cooperation required and the intensity
of environmental and social risk. It is also important
to keep in mind that aside from OIF and MCB, most
marine geoengineering proposals have not yet moved
beyond the lab-based stage of conceptual development
and modelling. It would likely take a decade or more
of further research and development before these
options could be deployed at significant scale.
International Law and the Oceans
There are various rules of international law
potentially relevant to the research, field testing and
implementation of marine geoengineering. The world’s
oceans are governed by a network of international
agreements to which various states have consented to
be bound. At the outset, we can consider agreements
that are wide-ranging or global in scope in terms of
the geographic scale of their operation and types of
issues covered. These global agreements have a wide
scale of application and provide general rules and
It is also likely that any approaches that might
ultimately be adopted will look quite different from
those currently in circulation in the scientific literature.
The following analysis of international law relevant
to marine geoengineering must therefore partly
17
Governance of Marine Geoengineering
principles for how states should conduct activities
in the world’s oceans. Two primary examples are
the LOSC and the 1992 United Nations Convention
on Biological Diversity (CBD).154 Moving downwards
in scale, various sectoral agreements govern specific
marine environmental and resource use issues, such
as the 1972 Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter
(London Convention),155 or activities in specific regions,
such the 1959 Antarctic Treaty System, various regional
seas conventions and regional fisheries management
organizations (RFMOs). Finally, in parallel with all
these international agreements are rules of customary
international law. These rules establish binding legal
rights and obligations for states concerning activities
conducted within or affecting the world’s oceans,
such as the duty to prevent activities from causing
significant transboundary harm and harm to areas
beyond the national jurisdiction of states, such as the
high seas.156 Viewed together, framework agreements,
sectoral agreements and customary international law
form a legal patchwork for oceans governance that
has arisen in response to issues such as maritime
access, fisheries access and management, sea-bed
mining, shipping pollution, undersea cables and MSR.
governance is further limited to specific geographical
regions. Framework agreements and customary
international law establish general rules that apply to
most or all states, but are often difficult to interpret and
apply to specific scenarios. They may be particularly
difficult to apply to new or novel problems that were
not anticipated at the time the agreement was formed.
There are also limited mechanisms to monitor and
enforce state compliance with rules in framework and
sectoral agreements, which often apply to conduct
in high-seas areas that are difficult and expensive
to observe. Significant weaknesses therefore exist
in international law that limit its capacity to govern
certain marine environmental issues and activities.
The aim of this section is to help guide geoengineering
researchers to assess the extent to which this
patchwork of treaty and customary international law
rules, as they are currently formulated, can govern
the research, field testing and implementation of
marine geoengineering. It considers the extent to
which existing rules of international law provide
substantive and procedural obligations relevant to
marine geoengineering, including whether states
may engage in marine geoengineering activities,
and rules concerning how such activities ought
to be conducted. This analysis seeks to inform
governance scholars and policy makers on gaps and
limitations in the current legal framework with a
view to further developing international law for the
governance of marine geoengineering activities.
This patchwork is, however, incomplete and
contains notable holes. States have yet to develop
robust international laws to govern some key
marine environmental issues such as biodiversity
conservation,157 marine bioprospecting (i.e., the
exploitation of marine genetic resources),158 ocean
acidification and the impacts of climate change on
the marine environment.159 Sectoral agreements often
have limited membership, based on state interest in
the issue the agreement seeks to govern. The capacity
of regional agreements to contribute to oceans
This section takes an integrated approach to
analyzing international law relevant to the
research, field testing and implementation of
marine geoengineering. To avoid the problem of
compartmentalizing that may arise from separately
considering each of the international law regimes
that might be implicated by marine geoengineering,
or by separately analyzing the application of
international law to each individual proposal, this
section instead seeks to provide a synthetic analysis
anchored around the following four questions:
154 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (entered into
force 29 December 1993) [CBD].
155 Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, 29 December 1972, 1046 UNTS 138 (entered into force 30
August 1975) [London Convention].
156 Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion,
[1996] ICJ Rep 226 at 241–42 [Threat or Use of Nuclear Weapons].
→ What is the purpose of the marine geoengineering
activity?
157 See Robin M Warner, “Conserving Marine Biodiversity in Areas Beyond
National Jurisdiction: Co-Evolution and Interaction with the Law of the Sea”
in Donald R Rothwell et al, eds, The Oxford Handbook of the Law of the Sea
(Oxford, UK: Oxford University Press, 2015).
→ Where will the marine geoengineering activity be
conducted and by whom?
→ What are the likely impacts of the activity?
158 See Joanna Mossop, “Marine Bioprospecting” in Rothwell et al, supra note
157 at 825.
→ Can a state or other actor be held liable if marine
geoengineering activities inflict damage?
159 See Tim Stephens, “Warming Waters and Souring Seas: Climate Change
and Ocean Acidification” in Rothwell et al, supra note 157 at 777; Robin
Warner, “Oceans in Transition: Incorporating Climate-Change Impacts
into Environmental Impact Assessment for Marine Areas Beyond National
Jurisdiction” (2018) 45:31 Ecology LQ 31 at 36–48.
These questions reflect the fact that marine
geoengineering activities may be conducted
18
International Law and Marine Geoengineering
by different actors, in different locations and
for different purposes. They also reflect the fact
that different proposals are also likely to present
different types and magnitudes of risk.
Research Activities
commonly accepted definition of “scientific research”
in international law that might otherwise be used
to interpret this term.163 However, MSR is commonly
construed as “any form of scientific investigation,
fundamental or applied, concerned with the marine
environment.”164 According to Tim Stephens and
Don Rothwell, MSR includes research activities for
which the object of study is the ocean and marine
environment, such as “physical oceanography, marine
chemistry and biology, scientific ocean drilling and
coring, geological and geophysical research and other
activities that have a scientific purpose.”165 Rules under
Part XIII of the LOSC will therefore apply to marine
geoengineering research activities that involve in
situ research in the marine environment, especially
where that research will enhance knowledge of the
marine environment.166 This would include research
activities to assess marine conditions for engaging in a
marine geoengineering activity (for example, assessing
water temperature and nutrient density for ocean
fertilization or marine upwelling), or the testing of
delivery mechanisms.167 The definition of MSR under
the LOSC does not distinguish between research
conducted purely to enhance scientific knowledge,
or research for applied and/or commercial purposes,
such as the exploitation of natural resources. Marine
geoengineering field tests, such as the placement of
ferrous sulphate for OIF or lime for ocean alkalinity
enhancement, will likely also qualify as MSR.
To encourage understanding of the natural world,
international agreements often distinguish
scientific research activities from non-research
activities. They commonly provide specific rules
on scientific research activities that might be
relevant to marine geoengineering research. Various
sectoral regimes contain provisions for scientific
research.161 However, the most detailed and generally
applicable rules of this type are contained in Part
XIII of the LOSC, which establishes rules to promote
and guide the conduct of MSR activities.162
However, not all marine geoengineering research
activities will qualify as MSR. Research activities
may fall outside the scope of Part XIII if they are not
conducted in the ocean, and/or do not primarily aim
to enhance understanding of the marine environment.
For example, marine geoengineering research
conducted in a laboratory would be beyond the
scope of the LOSC. Another example would be SRM
research activities conducted over the ocean. These
would arguably not constitute MSR if their objective
What Is the Purpose of the Marine
Geoengineering Activity?
The purpose of a marine geoengineering activity is
significant because different purposes may require
the application of different rules of international law.
Marine geoengineering activities can be conducted for
three broad purposes: scientific research, to respond
to climate change and associated impacts, and to
enhance marine productivity. Of course, some marine
geoengineering activities might be conducted with one
purpose in mind but have co-benefits. For example,
ocean fertilization can be conducted primarily to
enhance marine productivity and enhance fish stocks;
however, it may also have a co-benefit of drawing
down CO2. Similarly, enhanced kelp farming may
be proposed to increase the CO2 uptake of existing
carbon sinks, but might also boost kelp stocks for
food, agriculture or pharmaceutical purposes.160
The LOSC doesn’t have a specific definition of
activities that fall within MSR, and there is no
163 For further discussion of this issue in the context of whaling, see Brendan
Gogarty & Peter Lawrence, “The ICJ Whaling Case: missed opportunity
to advance the rule of law in resolving science-related disputes in global
commons?” (2017) 77:1 Heidelberg J Intl L 165.
160 See Chung et al, supra note 146; Tim Flannery, Sunlight and Seaweed: An
Argument for How to Feed, Power and Clean up the World (Melbourne: Text
Publishing, 2017).
164 Patricia Birnie, “Law of the Sea and Ocean Resources: Implications for Marine
Scientific Research” (1996) 10:2 Intl J Marine & Coastal L 229 at 241–42
[emphasis added].
161 See e.g. Convention for the Protection of the Marine Environment of the
North-East Atlantic, 22 September 1992, 32 ILM 1068, art 8 (entered into
force 25 March 1998) [OSPAR Convention]; Convention for the Protection
of the Marine Environment and the Coastal Region of the Mediterranean,
16 February 1976, 15 ILM 290, art 13 (entered into force 12 February
1978) [Barcelona Convention]; Convention for the Protection of the Natural
Resources and Environment of the South Pacific Region, 25 November 1986,
26 ILM 38, art 17 (entered into force 22 August 1990) [Noumea Convention].
165 Tim Stephens & Donald R Rothwell, “Marine Scientific Research” in Rothwell et
al, supra note 157, 559 at 562.
162 LOSC, supra note 41.
167 See also ibid.
166 See Alexander Proelss & Chang Hong, “Ocean Upwelling and International
Law” (2012) 43:4 Ocean Development & Intl L 371 at 373. Proelss and Hong
suggest that large-scale deployment activities aimed at delivering negative
emissions or enhancing marine productivity are not MRS, as the objective of
these activities is not to increase knowledge of the marine environment.
19
Governance of Marine Geoengineering
the 2014 Whaling in the Antarctic case.179 This case
involved a dispute between Australia and Japan
under the 1946 International Convention for the
Regulation of Whaling,180 rather than the LOSC.
Australia alleged that Japan’s Research Program in
the Antarctic (JARPA II) was a guise for commercial
whaling, which is prohibited by a moratorium on
such operations. The International Court of Justice
therefore had to determine whether scientific research
was the actual purpose of JARPA II. The court held
that such a determination “does not turn on the
intentions of individual government officials, but
rather on whether the design and implementation of
a programme are reasonable in relation to achieving
the stated research objectives....The research objectives
alone must be sufficient to justify the programme
as designed and implemented.”181 The court used the
objectives of the JARPA II program as the standard
against which it assessed the program’s design
and implementation. In approaching the issue this
way, the court thereby avoided providing a specific
definition of the meaning of scientific research.
would be to understand atmospheric conditions
and not potential impacts of SRM on the marine
environment.168 MCB experiments that aim to assess
the creation and albedo effects of seawater particles in
low-lying clouds therefore would not qualify as MSR.169
The LOSC provides states with a general right to
conduct MSR,170 but this right depends on where an
activity will be conducted. A state may conduct MSR
in their territorial waters171 and exclusive economic
zone (EEZ),172 in accordance with their own domestic
laws. However, if states wish to conduct MSR in the
territorial waters or EEZ of another coastal state,
they must first obtain that state’s permission.173 In
accordance with principles of state sovereignty,
coastal states have the exclusive right to decide
whether to allow other states to conduct MSR in
their territorial waters. However, under normal
circumstances, coastal states should permit MSR
activities in their respective EEZs.174 This is in keeping
with the general obligation that states have under the
LOSC to promote and facilitate MSR.175 In addition,
all states have the right to conduct MSR in highseas areas.176 These are areas beyond the national
jurisdiction of states (i.e., beyond the 200-nautical
mile limit of EEZs) and make up nearly 60 percent of
the world’s oceans.177 States therefore have a general
right to conduct marine geoengineering research
activities across a large part of the world’s oceans.
A court or tribunal could take a similar approach
to determining whether the methods of a marine
geoengineering research program are “appropriate”
under the LOSC. However, such an approach
would not be comprehensive. The LOSC provides
states with little guidance as to what appropriate
scientific methods would be in the context of a
specific marine geoengineering research activity,
beyond ensuring that they are reasonable in light
of the activity’s stated research objectives. In
practice, states might therefore have quite wide
discretion in how they interpret and apply this
obligation to marine geoengineering research.
However, the right of a state to conduct MSR in these
areas is qualified by several important obligations.
MSR must be conducted for peaceful purposes and
employ “appropriate scientific methods.”178 The
LOSC, again, does not elaborate on what appropriate
scientific methods might be, but a similar issue was
considered by the International Court of Justice in
In December 2018, Japan announced that due to
the ongoing criticism of its whaling program, it was
withdrawing from the International Convention for
the Regulation of Whaling and would recommence
commercial whaling.182 The Japanese whaling
168 See Stephens & Rothwell, supra note 165 at 562.
169 See e.g. Marine Cloud Brightening Project, online: <www.mcbproject.org/
about.html>.
170 LOSC, supra note 41, art 238.
171 Ibid, art 245.
179 Whaling in the Antarctic (Australia v Japan; New Zealand Intervening) [2014]
ICJ Rep 226 [Whaling in the Antarctic].
172 Ibid, art 246.
173 Ibid, arts 245–46.
180 International Convention for the Regulation of Whaling, 2 December 1946,
161 UNTS 72 (entered into force 10 November 1948).
174 Ibid.
181 Whaling in the Antarctic, supra note 179 at 97. The court held that the design
and implementation of the JARPA II whaling program was not reasonable
in relation to the program’s stated objectives, and that the killing of whales
therefore was not for the purpose of scientific research (at 227).
175 Ibid, art 239.
176 Ibid, art 257.
177 Katherine Zischka et al, “Marine Biodiversity Beyond National Jurisdiction—
Australia’s Continuing Role” (2018) Australian Committee for the IUCN 1,
online: <http://aciucn.org.au/index.php/publications/2018-marine-bbnj/>.
182 Justin McCurry & Matthew Weaver, “Japan confirms it will quit IWC to resume
commercial whaling”, The Guardian (26 December 2018), online: <www.
theguardian.com/environment/2018/dec/26/japan-confirms-it-will-quit-iwc-toresume-commercial-whaling>.
178 LOSC, supra note 41, art 240(b).
20
International Law and Marine Geoengineering
example shows that the international law system
has had significant difficulty policing the distinction
between scientific research and other types of activity.
This is important to bear in mind in considering
the prospects of the international law system
governing research on marine geoengineering.
MSR activities must also comply with the same rules
for environmental protection and pollution control
as all other activities.188 These rules are set out under
Part XII of the LOSC and include a general obligation
(based on customary international law) to protect
and preserve the marine environment,189 and more
specific obligations to prevent, reduce and control
pollution.190 (These obligations are examined in greater
detail below.) However, what is significant for marine
geoengineering research is that the LOSC does not
provide separate environmental protection standards
or rules for MSR. The environmental protection
obligations in Part XII of the LOSC will apply equally
to marine geoengineering research activities and
to full-scale deployment activities. A one-size-fitsall approach to marine environmental protection
may be desirable from a conservation standpoint;
however, it may not be appropriate for facilitating
responsible marine geoengineering research. For
example, the approach in Part XII of the LOSC would
not allow for the environmental impacts of a marine
geoengineering research activity to be weighed against
the risks of not conducting such research in the face
of the impacts of anthropogenic climate change.
Moreover, if a marine geoengineering research activity
qualifies as MSR, the state responsible for it must also
satisfy numerous rules that are designed to protect
the sovereign rights and interests of other states, and
also promote cooperation between states regarding
MSR. States have a general obligation to ensure that
research activities do not unjustifiably interfere with
other legitimate uses of the sea.183 More specifically,
states must prevent any installations or equipment
they use for MSR from interfering with shipping
routes, and ensure they are fitted with adequate
warning signals to prevent accidents.184 This provision
would be particularly relevant to upwelling and
downwelling research projects that might involve
the installation of large vertical pipes in the ocean.
States also have specific reporting requirements if
they intend to conduct MSR within the EEZ or on
the continental shelf of another state. They must
provide the relevant coastal state with information
regarding the intended research activity, including
its geographic location, research objectives and
methods.185 The researching state must also provide
the coastal state with the opportunity to participate
in the project, and a copy of the research results and
data if requested.186 Moreover, the researching state
must also ensure that results of any such research are
made internationally available as soon as possible.187
The rules for MSR under the LOSC largely focus on
balancing the rights of coastal states against the need
to develop better scientific knowledge of the world’s
oceans and marine environment. This is unsurprising,
given that the first rules for MSR were developed in
response to concerns by some developing country
coastal states that developed country researching
states might abuse freedoms to conduct MSR to
facilitate exploitation of natural resources and
infringe on their sovereign rights.191 However, this
focus on state sovereign rights has resulted in rules
of international law that vary between different areas
and provide no substantive guidance on how marine
geoengineering research should be conducted within
a state’s own jurisdiction, or in high-seas areas.
These rules could provide a de facto assessment
framework for marine geoengineering research
activities by providing a coastal state with the
opportunity to obtain and consider information
relating to a proposed activity. By requiring the state to
make results available to the international community,
these rules could also promote research transparency
and dissemination of results. However, these rules do
not apply to activities conducted by a state within
its own territorial sea, EEZ, or in high-seas areas.
188 Ibid, art 240(d).
183 LOSC, supra note 41, art 240.
189 Ibid, art 192.
184 Ibid, arts 261–62.
190 Ibid, art 194.
185 Ibid, art 248.
191 See Emmanuella Doussis, “Marine Scientific Research: Taking Stock and
Looking Ahead” in Gemma Andreone, ed, The Future of the Law of the
Sea: Bridging Gaps between National, Individual and Common Interests
(Amsterdam: Springer Nature, 2017) 87 at 87–90.
186 Ibid, art 249.
187 Ibid.
21
Governance of Marine Geoengineering
Marine Geoengineering to Address Climate
Change
technologies.196 This is not to say that the Paris
Agreement expressly requires states to develop
and implement CDR technologies. It does mean,
however, that states have scope to integrate marine
CDR proposals into their respective NDCs.197 This
scope is unlikely to extend to marine SRM proposals,
as they do not seek to limit GHG emissions.198
Marine geoengineering activities are primarily being
proposed to address climate change. Some proposals
aim to address climate change at a global level (i.e.,
ocean fertilization by reducing the level of CO2 in the
atmosphere). Others, such as MCB, might also be
used to address the impacts of climate change at a
regional or local level.192 It is therefore surprising that
geoengineering proposals are currently not explicitly
governed by international climate change law. In 2016,
CIGI published a special report on geoengineering and
the Paris Agreement by Neil Craik and Wil Burns.193
This report found that key provisions of the UNFCCC
and the Paris Agreement could arguably be interpreted
to include CDR proposals. The following draws on
key findings of that report and considers them in
the specific context of marine geoengineering.
The Paris Agreement does not, however, provide
more specific rules for the governance of CDR
technologies. There are currently no limits on the
extent to which states might incorporate CDR into
their NDCs.199 According to Natalya Gallo, David Victor
and Lisa Levin, 27 states have included blue carbon
in their NDCs, including “ocean carbon storage and
protection, replantation or management of mangroves,
salt marshes, sea grass beds, or other marine
ecosystems.”200 States have otherwise not expressly
included CDR in their NDCs.201 However, without clear
guidelines, there is a risk that states might be too
ambitious in relying on CDR technologies that have
yet to be adequately researched, developed and/or
implemented at scale.202 Craik and Burns also warn that
states could use promises of future CDR deployment
to justify otherwise “unambitious emission reduction
actions” in their NDCs.203 The UNFCCC contains
general principles that could mediate this, such as
sustainable development204 and precaution,205 but
does not extend these principles beyond general
understanding in international law or provide
further guidance on how they should be interpreted
to apply in the context of marine geoengineering
technologies. Furthermore, while the Paris Agreement
implicitly suggests that CDR will have an important
role to play in delivering negative emissions, it
does not otherwise provide a framework to govern
marine geoengineering activities for this purpose.
According to Craik and Burns, parties to the Paris
Agreement may include emissions reductions
attendant on deployment of CDR technologies as
part of their NDCs on emissions reduction.194 The
Paris Agreement does not mandate legally binding
emissions reduction targets by individual parties,
but is rather based on parties making non-binding
NDCs to reduce emissions. Article 4 establishes a
general goal for all states to reach peak GHG emissions
as soon as possible, and to establish a balance
between global GHG emissions and sinks by 2050.
Under article 5, states also have a general obligation
to enhance domestic GHG sinks and reservoirs.
However, it is up to the parties to determine what
actions they will take to meet these obligations and
communicate them to other states through NDCs.
As mentioned above, NDCs are not legally binding;
however, states have an “obligation of conduct”
to establish domestic measures to try and meet
their respective NDCs.195 According to Craik and
Burns, the definition of “sinks” and “reservoirs”
under the UNFCCC is arguably broad enough to
include the removal and storage of CO2 by CDR
196 Craik & Burns, supra note 193 at 6–7.
197 Ibid at 6.
198 Ibid at 8.
199 Ibid at 6–7.
200 Natalya D Gallo, David G Victor & Lisa A Levin, “Ocean commitments under
the Paris Agreement” (2017) 7 Nature Climate Change 833 at 833–34.
192 See case study below regarding MCB proposals to protect the Great Barrier
Reef. For a more detailed analysis, see Jan McDonald et al, “Governing
geoengineering research for the Great Barrier Reef” (2019) 19:7 Climate
Policy 801.
201 Jesse L Reynolds, “International Law” in Michael B Gerrard & Tracy Hester,
eds, Climate Engineering and the Law: Regulation and Liability for Solar
Radiation Management and Carbon Dioxide Removal (Cambridge, UK:
Cambridge University Press, 2018) 57 at 60.
193 A Neil Craik & William CG Burns, “Climate Engineering under the Paris
Agreement: A Legal and Policy Primer” CIGI, Special Report, 1 November
2016.
202 Craik & Burns, supra note 193 at 7.
194 Ibid at 1.
203 Ibid.
195 Jonathan Pickering et al, “Global Climate Governance Between Hard and Soft
Law: Can the Paris Agreement’s ‘Crème Brûlée’ Approach Enhance Ecological
Reflexivity?” (2018) 31:1 J Envtl L 1 at 14.
205 Ibid, art (3)(3).
204 UNFCCC, supra note 2, art (3)(4).
22
International Law and Marine Geoengineering
Marine Geoengineering to Enhance Marine
Productivity
waters, EEZs and in high-seas areas. Coastal states
have the exclusive sovereign right to exploit natural
resources (including fish stocks) within their respective
territorial seas and EEZs.211 They must also establish
proper conservation and management measures
to ensure that living resources within their EEZs
are not overexploited.212 Article 61(3) of the LOSC
states that these “measures shall also be designed
to maintain or restore populations of harvested
species at levels which can produce the maximum
sustainable yield.”213 There is no definition of the term
“restore” in the LOSC, but it does not seem untenable
to construe it to include marine geoengineering
activities that might boost fish-stock populations.
However, activities aimed at enhancing marine
productivity are still subject to other obligations
under the LOSC, including obligations on states to
protect and preserve the marine environment (see
“International Law on Environmental Harm,” below).
Some researchers have also suggested that ocean
fertilization and marine upwelling approaches
might be used to increase the abundance of fish
stocks.206 This raises questions about the extent
to which international fisheries law might apply
to marine geoengineering activities, even in cases
where fisheries enhancement is not a specific
objective. This body of international law governs the
exploitation of marine living resources. It is made up
of numerous treaties and international organizations,
including the LOSC, the 1995 United Nations Fish
Stocks Agreement (UNFSA)207 and 14 RFMOs.208
These agreements establish fishing rights209 and/or
conservation and management principles to prevent
overexploitation of fish stocks.210 Generally speaking,
these agreements and organizations establish rules
for fishing activities and industries, rather than
rules for activities that aim to stimulate or enhance
marine productivity per se. However, this does not
mean that marine geoengineering activities are
beyond the scope of international fisheries law.
Marine geoengineering activities will likely be of
interest to international fisheries governance bodies
that have adopted an ecosystem-based approach to
fisheries management. This is a holistic approach
to fisheries management that considers the effect
an activity will have on an ecosystem as a whole,
rather than just focusing on the impact it will have
on a single species.214 According to E. K. Pikitch et al.,
the purpose of this approach is to “sustain healthy
marine ecosystems and the fisheries they support.”215
The ecosystem-based approach has been adopted by
the UNFSA216 and several other RFMOs.217 While this
approach is generally directed at the impacts of fishing
activities on marine ecosystems, it could extend to
include the impacts of marine geoengineering activities
to enhance marine productivity. For example, under
the UNFSA, parties have an obligation to “assess
the impacts of fishing, other human activities and
Marine geoengineering for enhancing marine
productivity (OIF, for example) may fall within the
scope of marine living resources that are governed
under the LOSC. This treaty establishes general
rights and obligations concerning the exploitation
of marine living resources by states in territorial
206 See e.g. Randall S Abate, “Ocean Iron Fertilization and Indigenous Peoples’
Right to Food: Leveraging International and Domestic Law Protections to
Enhance Access to Salmon in the Pacific Northwest” (2016) 20 UCLA J Intl L &
Foreign Aff 45; Proelss & Hong, supra note 166 at 372.
207 United Nations Agreement for Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating
to the Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks, 4 December 1995, 2156 UNTS 3 (entered into force
11 December 2001) [UNFSA].
208 There are 14 separate RFMOs that primarily aim to achieve “long-term
conservation and sustainable use of the fish stocks under their management.”
See Rosemary Rayfuse, “Regional Fisheries Management Organizations” in
Rothwell et al, supra note 157, 559 at 562. These RFMOs are the International
Commission for the Conservation of Atlantic Tunas; the Indian Ocean Tuna
Commission; the Western and Central Pacific Fisheries Commission; the InterAmerican Tropical Tuna Commission; the Commission for the Conservation
of Southern Bluefin Tuna; the North-East Atlantic Fisheries Commission;
the Northwest Atlantic Fisheries Organization; the North Atlantic Salmon
Conservation Organization; the South Pacific Regional Fisheries Management
Organization; the Commission on the Conservation of Antarctic Marine Living
Resources; the General Fisheries Commission for the Mediterranean; the South
Indian Ocean Fisheries Agreement; and the Convention on the Conservation
and Management of Pollock Resources in the Central Bering Sea.
211 LOSC, supra note 41, arts 2, 56.
212 Ibid, art 61(2).
213 UNFSA, supra note 207 [emphasis added] contains a similar obligation to
“restore” fish populations under article 5(e).
214 EK Pikitch et al, “Ecosystem-Based Fishery Management” (2004) 305:5682
Science 346.
215 Ibid at 346.
216 United Nations Agreement for Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating
to the Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks, 4 December 1995, 2156 UNTS 3 (entered into force 11
December 2001).
209 See e.g. LOSC, supra note 41, arts 51, 61–70.
210 See e.g. UNFSA, supra note 207, art 5; Convention on the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central
Pacific Ocean, 5 September 2000, 2275 UNTS 43, art 5 (entered into force
19 June 2004); Convention on the Conservation and Management of High
Seas Fishery Resources in the South Pacific Ocean, 14 November 2009 [2012]
ATS 28, art 3 (entered into force 24 August 2012).
217 See Robin Warner, Kristina Gjerde & David Freestone, “Regional governance
for fisheries and biodiversity” in Serge M Garcia, Jake Rice & Anthony
Charles, eds, Governance of Marine Fisheries and Biodiversity Conservation:
Interaction and Coevolution (Oxford, UK: Wiley-Blackwell, 2014) 211.
23
Governance of Marine Geoengineering
environmental factors on target stocks and species
belonging to the same ecosystem or associated with
or dependent upon the target stocks.”218 A further
example is the 1980 Convention on the Conservation
of Antarctic Marine Living Resources (CCAMLR),
which governs marine living resources south of the
Antarctic convergence. The CCAMLR requires that
any marine harvesting and associated activities align
with conservation principles that maintain ecological
relationships between harvested, dependant and
related populations,219 and also prevent or minimize
the risk of changes in the marine ecosystem “which
are not potentially reversible over two or three
decades, taking into account…the effects of associated
activities [to harvesting] on the marine ecosystem
and of the effects of environmental change.”220
negative impacts on the marine ecosystem (such as
the risk of an OIF activity fundamentally altering
the base of the food web and “nutrient robbing”).
RFMOs that adopt the principle of ecosystem-based
management may still wish to consider proposed
marine geoengineering activities that fall within their
respective jurisdictions, especially if they are intended
to enhance the numbers of harvestable fish stocks.
RFMOs may also have the capacity to develop future
conservation and management measures for marine
geoengineering proposals such as ocean fertilization
and upwelling to enhance marine productivity.221
The purposes of marine geoengineering activities
are therefore very important in determining which
existing rules of international law might apply. Marine
geoengineering activities aimed at CDR and SRM
offer the more straightforward case. However, the
above analysis shows that such activities may have
multiple purposes, which will trigger the application
of rules of international law from disparate issue
areas (such as MSR and fisheries management) that
are not usually associated with climate change.
These ecosystem-based management provisions
of the UNFSA and CCAMLR are broad in scope
and may therefore be wide enough to include
marine geoengineering activities. The provisions
under the CCAMLR will likely only apply to marine
geoengineering activities with the express purpose
of enhancing harvestable stocks (i.e., fish species,
krill). The provisions under the UNFSA are, however,
likely to apply to any marine geoengineering activity
that may impact on target stocks, regardless of
whether marine productivity enhancement is the
primary purpose of the activity. States may therefore
have a general obligation under such treaties to
consider the impacts of marine geoengineering
activities, such as ocean fertilization and ocean
upwelling, on the ocean ecosystem as a whole, and
not just the capacity of these techniques to enhance
the population of a single harvestable species.
Where Will the Activity Be Conducted
and by Whom?
Location
States will have different rights and obligations
regarding marine geoengineering research, fieldtesting and deployment activities, depending on
where it will be conducted. As indicated above,
under the LOSC, states have different rights and
obligations depending on whether the activity
will be conducted within internal waters,
territorial waters, an EEZ or the high seas.
As a stand-alone legal principle, ecosystem-based
management is, however, unlikely to provide
states with specific obligations relevant to marine
geoengineering activities. States may have a general
obligation to consider the impacts of a proposed
activity on the ecosystem as a whole, but this general
obligation does not mandate specific EIA procedures.
It also does not provide clear guidance on how the
potential benefits of marine geoengineering activities
(such as enhancing the numbers of one species, and
the lessening of climate change risk, including on
marine species) should be weighed against potentially
Marine Geoengineering in Coastal Waters
Coastal states have exclusive sovereignty over
the waters, airspace, seabed and subsoil of their
internal waters and territorial sea, which typically
extends up to a limit of 12 nautical miles, measured
218 UNFSA, supra note 207, art 5(d) [emphasis added].
219 Convention on the Conservation of Antarctic Marine Living Resources, 20 May
1980, 1329 UNTS 47, art II(3)(b) (entered into force 7 April 1982) [CCAMLR].
221 The commission has a wide mandate to adopt new conservation measures for
activities “associated” with harvesting that may more broadly impact on the
Antarctic marine ecosystem. See e.g. CCAMLR, supra note 219, art IX(2)(i).
220 Ibid, art II(3)(c).
24
International Law and Marine Geoengineering
from their coastal baseline.222 States wishing to
conduct marine geoengineering activities within a
coastal state’s internal waters or territorial sea will
therefore need permission from that coastal state.
Moreover, as these areas are part of the sovereign
territory of the coastal state, marine geoengineering
activities in internal waters and the territorial sea
will be subject to the jurisdiction of the coastal
state’s domestic environmental and resource
management laws. These may include laws and
regulations related to marine spatial planning with
designated use zoning, environmental protection
and planning, pollution abatement and EIAs.223
framework for marine geoengineering activities carried
out within internal waters, territorial sea or an EEZ.
Case Study: MCB Proposals for the Great Barrier Reef
In 2017 and 2018, the Australian national
government and Queensland state government
allocated approximately AU$2million for
feasibility studies of local/regional-scale marine
geoengineering for the Great Barrier Reef (GBR).227
The GBR is the largest coral reef system in the
world and a UNESCO [UN Educational, Scientific
and Cultural Organization] World Heritage site.
In 2016 and 2017, the reef experienced two severe
bleaching events that resulted in damage across
two-thirds of the reef.228 The frequency and
severity of coral bleaching events will continue to
increase as a result of climate change.229 MCB has
been proposed as a potential means of reducing
sea surface temperatures on the reef and limiting
UV exposure to prevent coral bleaching events.230
For example, states that are party to the London
Convention and/or London Protocol should already
have detailed legislation in place implementing
their obligations to prevent marine pollution from
ocean dumping under these agreements.224 This
domestic legislation will be particularly relevant
to marine geoengineering activities that require
placement of matter into the ocean (i.e., OIF, alkalinity
enhancement, ocean sunshields). Some states
also have specific domestic legislation governing
weather modification and cloud seeding activities
that may be relevant to MCB proposals.225
Australia does not have domestic laws that
explicitly govern geoengineering research, field
testing or deployment. However, Australia’s
primary national environmental legislation, the
Environment Protection and Biodiversity Act
1999 (Cth) (EPBC Act), provides for a limited
development approval and EIA process that
might act as the starting point for governance
of MCB on the GBR. The difficulty is that the
EPBC Act applies only in a limited range of
circumstances. To trigger operation of the act,
the federal environment minister must first
assess whether the MCB proposal would have a
“significant impact” upon a matter of “national
environmental significance.”231 The GBR is listed
under the World Heritage Convention,232 and is
It is beyond the scope of this report to provide a
detailed analysis of how domestic law might apply
to marine geoengineering across all states. Instead,
the following Australian case study226 illustrates how
domestic law might provide a de facto governance
222 LOSC, supra note 41, arts 2, 3. The normal baseline is measured from the low
waterline along the coast, unless otherwise provided for in the LOSC (art 5).
For example, different rules apply for islands or atolls with fringing reefs (art
6), states with deeply indented coastlines of a fringe of islands (art 7), river
mouths (art 9), bays (art 10), ports (art 11), roadsteads (art 12), low-tide
elevations (art 13), states that have opposite or adjacent coastlines (art 15),
and baselines for archipelagic states (art 47).
223 For an overview of these rules in the context of Canada, the United States and
Australia, see Neil Craik, Jason Blackstock & Anna-Maria Hubert, “Regulating
Geoengineering Research through Domestic Environmental Protection
Frameworks: Reflections on the Recent Canadian Ocean Fertilization Case”
(2013) 7:2 Carbon & Climate L Rev 117; Albert C Lin, “US Law” in Gerrard &
Hester, supra note 201 at 154; Kerryn Brent et al, “Carbon Dioxide Removal
(CDR) Geoengineering” (2018) 92:10 Austl LJ 830.
227 “Boosting coral abundance on the Great Barrier Reef”, Small Business
Innovation Recipients, Advance Queensland (2018).
228 “Two-thirds of the Great Barrier Reef hit by back-to-back mass coral
bleaching”, ARC Center of Excellence Coral Reef Studies, online: <www.
coralcoe.org.au/media-releases/two-thirds-of-great-barrier-reef-hit-by-back-toback-mass-coral-bleaching>.
224 For example, Australia implements these obligations through the Environment
Protection (Sea Dumping) Act 1981 (Cth). Canada implements these
obligations through the Canadian Environmental Protection Act, 1999, SC
1999, c 33, Part 7, Division 3. The United States is a party only to the London
Convention, and implements its obligations through the Marine Protection,
Research, and Sanctuaries Act of 1972, 33 USC §§ 1401–1445 (1972).
229 See Lesley Hughes et al, “Lethal consequences: climate change impacts on the
Great Barrier Reef” (2018) Climate Council, online: <www.climatecouncil.org.
au/resources/climate-change-great-barrier-reef/>.
230 Marine Cloud Brightening for the Great Barrier Reef, online: <www.
savingthegreatbarrierreef.org/>.
225 For example, in the United States there are laws at the federal level that
require advance reporting and notification of weather modification activities.
See Weather Modification Reporting Act 1972, 15 USC §§ 330–330e
(1972). Similar legislation also exists in Canada. See Weather Modification
Information Act, RSC 1985, c W-5.
231 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 12,
18, 23, 24B, 75 [EPBC Act].
232 Convention Concerning the Protection of the World Cultural and Natural
Heritage, 16 November 1972, 1037 UNTS 151 (entered into force
17 December 1975).
226 For more detailed analysis, see McDonald et al, supra note 192.
25
Governance of Marine Geoengineering
marine geoengineering activities are permitted
and subject to an approval process under the
domestic laws of the relevant coastal state.241
specifically identified under the EPBC Act as a
matter of “national environmental significance.”233
However, the degree of risk posed to the natural
and social environment of the GBR by MCB
proposals may be influenced by the type and
scale of the activity. This will include whether
the proposal is directed at research, field testing
or implementation. The minister has broad
executive discretion to decide the significance
of the impact.234 It is quite possible that the
minister may decide that small-scale research
and/or field testing of MCB has (as a standalone
activity) an insignificant risk of impact upon
the GBR, such that it will not trigger the wider
environmental assessment and development
approval provisions of the EPBC Act. This national
environmental legislation might therefore fail
to assess the wider ecological and social risks of
SRM research that the proposal may involve.
Marine Geoengineering in Areas
Beyond National Jurisdiction
The high seas exist beyond the territorial waters and
EEZ of individual states, and are therefore open to
access by all states.242 On the high seas, all states enjoy
freedom of navigation, the right to conduct scientific
research, and the right to construct artificial islands
and installations.243 The domestic laws of states do
not generally apply in this area, except to the extent
that ships are bound by the domestic laws of their flag
state.244 However, marine geoengineering activities
on the high seas are subject to duties and obligations
that all state parties have under the LOSC, including
to protect and preserve the marine environment,
obligations relating to scientific research and the
construction of research installations (Part XIII).
Marine Geoengineering in EEZs
Coastal states have sovereign rights in their respective
EEZs, which extend up to 200 nautical miles from
their baseline.235 These sovereign rights include the
right to explore, exploit, conserve and manage natural
resources in the water column, seabed and sub-soil.236
According to Jesse Reynolds, marine CDR activities
that utilize the capacity of the ocean to store CO2 may
be considered exploitation of a “natural resource.”237
If so, coastal states would have the exclusive right
to engage in (or license others to engage in) marine
CDR activities within their respective EEZs.238
Other international agreements and regimes also
establish rules relating to activities in the high seas.
As mentioned above, various RFMOs establish
rules relating to certain high-seas areas for the
management of fisheries. Regional seas agreements
also provide states with additional substantive and
procedural obligations for the protection of the marine
environment of the high seas. Key examples include
the OSPAR Convention for the North-East Atlantic
and Arctic region,245 the Noumea Convention for the
South Pacific,246 the Barcelona Convention for the
Mediterranean Sea247 and the Lima Convention for the
South-East Pacific.248 These regional seas agreements
contain rules potentially applicable to marine
geoengineering activities, including broad rules for
environmental protection, prevention of pollution
from airborne sources, application of the precautionary
Coastal states also have jurisdiction to enact laws
to protect and preserve the marine environment in
their EEZ, and other states are required to comply
with any such domestic laws.239 Coastal states
also have jurisdiction to enact laws relating to
installations, structures and MSR.240 States wishing
to conduct marine geoengineering activities
in an EEZ must therefore determine whether
241 For example, under Australian domestic law, the dumping of material in
Australia’s EEZ is subject to a permit process, and ocean fertilization activities
are unlikely to be approved. Environmental Protection (Sea Dumping) Act
1981 (Cth) 4, 10A. For further discussion, see Brent et al, supra note 223.
233 EPBC Act, supra note 231, ss 12, 24B.
242 LOSC, supra note 41, art 87.
234 McDonald et al, supra note 192 at 6.
243 Ibid.
235 LOSC, supra note 41, art 57.
244 For further explanation, see Reynolds, supra note 201 at 80.
236 Ibid, art 56(1)(a).
245 OSPAR Convention, supra note 161.
237 Reynolds, supra note 201 at 76.
246 Noumea Convention, supra note 161.
238 Ibid at 81.
247 Barcelona Convention, supra note 161.
239 LOSC, supra note 41, art 56(b)(iii), 58(3).
248 Convention for the Protection of the Marine Environment and Coastal Area of
the South-East Pacific, 12 November 1981 (entered into force 19 May 1986)
[Lima Convention].
240 Ibid, art 56(b)(i), 56(b)(ii).
26
International Law and Marine Geoengineering
initial environmental assessment255 or a comprehensive
EIA.256 The Committee for Environmental Protection
established under the Madrid Protocol257 receives
and considers environmental assessments submitted
by a state, and then makes recommendations.
However, it is the Antarctic Treaty Consultative
Parties Meeting, held yearly under the 1959 Antarctic
Treaty, that ultimately decides on whether an activity
may proceed and, if so, under what conditions.258
principle, control of pollution from marine dumping,
EIA and the prevention of transboundary harm. State
parties to regional seas agreements will therefore
have additional obligations under international
law, if they wish to conduct marine geoengineering
activities within the relevant high-seas areas.
As stated above, due to its low iron content, the
Southern Ocean has been the site of many of the OIF
experiments carried out over the last two decades
(see “OIF,” above). Interestingly, OIF and other marine
geoengineering activities in the Southern Ocean may
trigger rules under the Antarctic Treaty System.249
The 1991 Protocol on Environmental Protection to
the Antarctic Treaty (Madrid Protocol) establishes
a framework for environmental protection of the
Antarctic continent and the Southern Ocean below
60o south latitude.250 The Madrid Protocol is aimed
at comprehensive protection of the Antarctic
environment and its ecosystems and so designates it
as a “natural reserve, devoted to peace and science.”251
The protocol contains fundamental principles for
environmental protection, including an obligation to
limit activities from having adverse impacts on “the
Antarctic environment and dependent and associated
ecosystems.”252 More specifically, parties to the Madrid
Protocol must prevent their activities from negatively
affecting Antarctic climate and weather patterns,
air and water quality, fauna and flora populations,
and threatened species.253 States within the Madrid
Protocol also have an obligation to avoid “significant
changes in the atmospheric, terrestrial (including
aquatic), glacial or marine environment.”254 Marine
geoengineering activities may be incompatible with
these principles, especially if they will significantly
alter the Antarctic marine environment.
As discussed above, the CCAMLR is the treaty
within the Antarctic Treaty system that governs
marine living resources in the Southern Ocean. The
CCAMLR utilizes an ecosystem-based management
approach to decision making that may be relevant
to future OIF activities in the Southern Ocean. In
terms of location, the jurisdiction of the CCAMLR
extends north (beyond the jurisdiction of the Madrid
Protocol) to the Antarctic convergence,259 which sits
roughly at latitude 55° south.260 Thus, the CCAMLR
may have extended geographical relevance to future
OIF activities in the Southern Ocean, in particular
for large-scale field testing or deployment.
Membership in Key International Agreements
In addition to where a marine geoengineering
activity will be conducted, it is also important to
consider who is planning to conduct it. Rules of
customary international law are generally binding
on all states. However, this is not the case for
international agreements. Under the doctrine of
state sovereignty, states must consent to be bound
by international agreements by ratifying, accepting
or otherwise expressing consent.261 The overall
capacity of an international agreement to govern
marine geoengineering activities therefore depends
on which states have consented to be bound by it.
The Madrid Protocol also establishes detailed
procedures for EIA. The general obligation to conduct
an EIA is set out in article 8, with more detailed rules
set out in Annex 1. All activities having more than a
“minor or transitory impact” must undergo at least an
Rules of international law generally do not directly
create obligations for non-state actors such as
individuals or corporations. However, to uphold their
255 Ibid at Annex 1, art 2.
256 Ibid at Annex 1, art 3.
249 The primary treaty in this system is the Antarctic Treaty, 1 December 1959,
402 UNTS 72 (entered into force 23 June 1961).
257 Ibid, art 11.
250 Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991,
[1998] ATS 6, art 3 (entered into force 14 January 1998) [Madrid Protocol].
258 Madrid Protocol, supra note 250 at Annex 1, arts 3(5), 4.
251 Ibid, art 2.
259 CCAMLR, supra note 219, art 1(1).
252 Ibid, art 3(2)(a).
260 Antarctic Convergence, Australian Antarctic Division, online: <www.antarctica.
gov.au/about-antarctica/environment/geography/antarctic-convergence>.
253 Ibid, art 2(b)(i)(ii)(iv)(v).
261 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art
11 (entered into force 27 January 1980).
254 Ibid, art 2(b)(iii).
27
Governance of Marine Geoengineering
obligations under international law, states may be
required to enact relevant domestic legislation that
applies to individuals and corporations under their
jurisdiction and control. For example, states must
enact and enforce domestic laws to uphold their
obligation to prevent transboundary harm under
customary international law (see “The ‘No-Harm
Rule’,” below). States parties to the LOSC also have
an obligation to adopt and enforce domestic laws
to protect and preserve the marine environment.262
Thus, international law may still be relevant to
marine geoengineering activities conducted by
individual researchers and corporations.
The following figures illustrate the extent to which
states are party to the key international agreements
that are most relevant to marine geoengineering.
Figure 1 shows membership of the global frameworkstyle agreements: the LOSC, UNFSA, CBD, UNFCCC
and the Paris Agreement. Figure 2 shows the following
sectoral agreements: the London Convention,263
London Protocol,264 Madrid Protocol, CCAMLR,
OSPAR, Noumea Convention, Barcelona Convention,
Lima Convention, Espoo Convention265 and ENMOD
Convention.266 Both tables show how many states
in total have ratified or assented to the agreements
and which key states have ratified or assented.267
The denomination as “key states” refers to those
where geoengineering research is being or has been
conducted or proposed, as well as other states that
have significant scientific and technical capacity to
engage in geoengineering activities in the future.
262 Examples include LOSC, supra note 41, art 210 (prevention of pollution from
marine dumping); art 211 (prevention of marine pollution from vessels); art 212
(pollution from or through the atmosphere). The LOSC also provides states with
corresponding duties to enforce domestic laws in arts 213–22.
263 London Convention, supra note 155.
264 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter, 7 November 1996, [2006] ATS 11
(entered into force 24 March 2006) [London Protocol].
265 Convention on Environmental Impact Assessment in a Transboundary Context,
25 February 1991, 1989 UNTS 309 (entered into force 10 September 1997)
[Espoo Convention].
266 Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques, 10 December 1976, 1108 UNTS 151
(entered into force 5 October 1978) [ENMOD Convention].
267 As of October 21, 2019.
28
International Law and Marine Geoengineering
Figure 1: Global Agreements
LOSC
UNFSA
CBD
UNFCCC
Paris
Agreement
168
90
196
197
181
Australia
ü
ü
ü
ü
ü
Canada
ü
ü
ü
ü
ü
Chile
ü
ü
ü
ü
ü
China
ü
û
ü
ü
ü
France
ü
ü
ü
ü
ü
Germany
ü
ü
ü
ü
ü
India
ü
ü
ü
ü
ü
Indonesia
ü
ü
ü
ü
ü
Japan
ü
ü
ü
ü
ü
Malaysia
ü
û
ü
ü
ü
New Zealand
ü
ü
ü
ü
ü
Philippines
ü
ü
ü
ü
ü
Russian Federation
ü
ü
ü
ü
û
South Africa
ü
ü
ü
ü
ü
South Korea
ü
ü
ü
ü
ü
Switzerland
ü
û
ü
ü
ü
United Kingdom
ü
ü
ü
ü
ü
United States
û
ü
û
ü
ü*
Total parties
Source: Authors.
*The Trump administration announced in 2016 that the United States would withdraw from the Paris
Agreement. Under article 28 of the Paris Agreement, the earliest the United States could give official
notification of its intention to withdraw was November 4, 2019; and the soonest the withdrawal
notice can take effect is one year after the notification has been received by the Depositary.
29
Governance of Marine Geoengineering
OSPAR
Convention
Noumea
Convention
Barcelona
Convention
Lima
Convention
Espoo
Convention
ENMOD
Convention
53
40
30
16
12
22
5
45
78
Australia
ü
ü
ü
ü
û
ü
û
û
û
ü
Canada
ü
ü
ü
ü
û
û
û
û
ü
ü
Chile
ü
ü
ü
ü
û
û
û
û
û
ü
China
ü
ü
ü
ü
û
û
û
û
û
ü
France
ü
ü
ü
ü
ü
ü
ü
û
ü
û
Germany
ü
ü
ü
ü
ü
û
û
û
ü
ü
India
û
û
ü
ü
û
û
û
û
û
ü
Indonesia
û
û
û
û
û
û
û
û
û
û
Japan
ü
ü
ü
û
û
û
û
û
û
ü
Malaysia
û
û
ü
û
û
û
û
û
û
û
New Zealand
ü
ü
ü
ü
û
ü
û
û
û
ü
Philippines
ü
ü
û
û
û
û
û
û
û
û
Russian Federation
ü
û
ü
ü
û
û
û
û
û
ü
South Africa
ü
ü
ü
û
û
û
û
û
û
û
South Korea
ü
ü
ü
ü
û
û
û
û
û
ü
Switzerland
ü
ü
ü
û
ü
û
û
û
ü
ü
United Kingdom
ü
ü
ü
ü
ü
û
û
û
ü
ü
United States
ü
û
ü
ü
û
ü
û
û
û
ü
CCAMLR
87
Madrid
Protocol
Total parties
London
Protocol
London
Convention
Figure 2: Sectoral Agreements
Source: Authors.
and most are also parties to the Paris Agreement.
These agreements establish rights and obligations
potentially relevant to marine geoengineering, but,
being part of framework agreements, these rights and
obligations tend to be broad and general in nature.
Thus, the global framework agreements relevant to
marine geoengineering activities have very good
Global framework-type agreements that establish
rules relevant to marine geoengineering activities
legally bind more states than sectoral agreements. For
example, all the key states for marine geoengineering,
except the United States, are parties to both the
LOSC and the CBD. All key states for marine
geoengineering are also parties to the UNFCCC
30
International Law and Marine Geoengineering
and severity of environmental risks and impacts
they present. There are numerous rules contained
in international agreements and in customary
international law that may be triggered by activities
that pose risks of environmental harm. Some rules
are only invoked by risks that are transboundary
in nature: that is, likely to harm the territory of
another state or an area beyond the jurisdiction of
the states, such as the high seas. Other rules exist
under international law that may be triggered
regardless of whether the activity presents risks that
are transboundary in nature. These include rules to
protect and preserve the marine environment, rules
for the protection of biodiversity and rules to control
specific sources of marine environmental pollution.
breadth of participation, but arguably suffer from
a lack of depth or specificity of obligations.
In contrast, by their very nature, the sectoral
agreements relevant to marine geoengineering will
have fewer state parties. However, these agreements
typically provide state parties with more specific
and detailed obligations. A notable example is the
Espoo Convention, which establishes detailed rules
for transboundary EIAs. The rules of the Espoo
Convention are relevant to marine geoengineering
activities likely to have transboundary impacts on
the territory of other states. However, apart from
Canada, only European states have ratified or assented
to the Espoo Convention. This significantly restricts
the Espoo Convention’s capacity to govern marine
geoengineering activities. Regional seas agreements
similarly bind only a small number of key states. Thus,
while sectoral agreements contain rules potentially
relevant to marine geoengineering activities, their
capacity to contribute to international governance
is constrained by the relatively small number of
states that have consented to be bound by them. The
greater depth of obligation in sectoral agreements
relevant to marine geoengineering activities is
offset by their reduced breadth of participation.
As illustrated in the first section of this report, marine
geoengineering activities may present numerous
risks of environmental harm. These risks will vary
depending on the specific proposal (i.e., OIF, AOA, blue
carbon enhancement, upwelling/downwelling, MCB
and microbubbles) as well as the scale at which it is
to be conducted. Large-scale field testing and fullscale deployment will likely present different types
of risks and/or a greater severity of risk than smallscale research activities. A key issue in identifying
and analyzing relevant rules of international law is
whether a marine geoengineering activity presents
risks of transboundary harm. Large-scale activities
and activities conducted in the high seas are more
likely to present such risks, and therefore trigger
rules relating to transboundary harm. By contrast,
small-scale activities conducted within a state’s
territorial waters or EEZ might pose negligible (if
any) risk of transboundary harm. It is therefore
important to separately consider both categories of
rules. This section begins by examining rules that
can only be triggered by marine geoengineering
activities that present risks of transboundary
impacts. It then considers rules that may be triggered
regardless of whether a marine geoengineering
activity risks having transboundary impacts.
This section demonstrates that scientists and policy
makers cannot take a one-size-fits-all approach when
considering how existing rules of international law
might apply to marine geoengineering. It is important
for scientists and policy makers to pay attention to
the location of a proposed marine geoengineering
activity and identify the state responsible for it.
This is because the relevant rules of international
law vary significantly depending on these two
parameters. These differences may be exacerbated
further, depending on the likely impacts of a marine
geoengineering activity, which are considered below.
What Are the Likely Environmental
Impacts of the Marine Geoengineering
Activity?
International Law on Transboundary
Environmental Impacts
The ENMOD Convention
The above two sections have considered how marine
geoengineering activities might give rise to different
obligations under international law depending on
the purpose of the activity, where the activity is
going to be conducted and which state is responsible
for it. In addition to these considerations, further
rules of international law may be relevant to marine
geoengineering activities depending on the nature
The ENMOD Convention268 contains rules
potentially applicable to transboundary harm from
geoengineering activities. ENMOD is essentially a
268 ENMOD Convention, supra note 266.
31
Governance of Marine Geoengineering
Cold War-era arms control agreement negotiated in
response to attempts by great powers to weaponize
environmental modification techniques such as
cloud seeding and large-scale use of defoliants.269
peaceful purposes, such as seeking to ameliorate
the effects of climate change or marine productivity
enhancement.276 ENMOD will therefore not likely
govern states’ marine geoengineering activities, so
long as they are conducted for peaceful purposes. This
means that ENMOD will only have the capacity to
govern risks of transboundary harm to other states in
very limited circumstances. It is therefore important
to consider whether rules of customary international
law can respond more widely to risks of transboundary
harm from marine geoengineering activities.
The phrase “environmental modification techniques”
is broadly defined in ENMOD as “any technique for
changing — through the deliberate manipulation of
natural processes — the dynamics, composition or
structure of the Earth, including its biota, lithosphere,
hydrosphere and atmosphere, or of outer space.”270
The ‘No-Harm Rule’
Marine geoengineering proposals such as MCB,
microbubbles, OIF, AOA, artificial upwelling/
downwelling and blue carbon activities
could therefore fall within the scope of this
definition, and potentially be governed by the
rules within the ENMOD Convention.271
Marine geoengineering activities may trigger
longstanding rules of customary international law
if they have the potential to cause harm to the
territory of other states, or to global common areas.
Prominent examples include the potential for OIF
to rob nutrients and decrease primary production
in downstream regions, and the risk that largescale MCB might decrease precipitation in different
regions of the globe (see “MCB,” above). These rules
are also relevant to marine geoengineering activities
conducted in high-seas areas, as they are likely to
have impacts beyond the sovereign territory of an
individual state. Under customary international law,
all states have an obligation to prevent activities under
their jurisdiction and control from causing significant
harm to the territory of other states and areas beyond
the individual jurisdiction and control of states,
such as the high seas.277 This rule is often referred
to as the “no-harm” rule. It has been incorporated
into binding international agreements, including
the CBD278 and the UNFCCC,279 and is a fundamental
principle of international environmental law.280
A central feature of ENMOD is a partial prohibition
on environmental modification techniques. The
prohibition is partial in that it only applies to
techniques that have “widespread, long-lasting or
severe effects” on other states.272 The prohibition is
also partial in that the environmental modification
technique must be carried out for a “military or
other hostile purpose.”273 That is, the prohibited
environmental modification techniques are those
intended to cause destruction, damage or injury to
another state.274 Peaceful environmental modification
is not prohibited. In fact, the ENMOD Convention
recognizes that environmental modification techniques
for peaceful purposes could play an important
role in protecting the global environment.275
In the context of marine geoengineering, the partial
prohibition on environmental modification under
ENMOD will not apply to activities conducted for
This rule can only be triggered by marine
geoengineering activities that present a risk of
269 See James Rodger Fleming, “The pathological history of weather and climate
modification: Three cycles of promise and hype” (2006) 37:1 Historical Studies
in Physical & Biological Sciences 3.
270 ENMOD Convention, supra note 266, art II.
276 See Brent, McGee & McDonald, supra note 275.
271 See Reynolds, supra note 201 at 102.
277 Threat or Use of Nuclear Weapons, supra note 156 at 29. The no-harm rule
was first recognized in Trail Smelter (United States v Canada) (Awards)
(1938 and 1941) 3 Reports of International Arbitral Awards 1905. These
rules have also been reformulated in non-binding multilateral declarations:
Declaration of the United Nations Conference on the Human Environment, UN
Doc A/CONF/48/14/REV.1 (16 June 1972) Principle 21; Declaration of the
United Nations Conference on Environment and Development, UN Doc A/
CONF.151/26/Rev. 1(3–14 June 1992) Principle 2.
272 ENMOD Convention, supra note 266, art I(1).
273 Ibid.
274 Ibid.
275 ENMOD Convention, supra note 266 (“Realizing that the use of
environmental modification techniques for peaceful purposes could improve
the interrelationship of man and nature and contribute to the preservation
and improvement of the environment for the benefit of present and future
generations” at Preamble). See also Kerryn Brent, Jeffrey McGee & Jan
McDonald, “The governance of geoengineering: an emerging challenge for
international and domestic legal systems?” (2015) 24:1 J L, Information &
Science 1 at 9; Reynolds, supra note 201 at 102.
278 CBD, supra note 154, art 3.
279 UNFCCC, supra note 2 at Preamble.
280 See Philippe Sands & Jacqueline Peel, Principles of International Environmental
Law, 3rd ed (Cambridge, UK: Cambridge University Press, 2012) at 191.
32
International Law and Marine Geoengineering
“significant” transboundary harm.281 There is no set
legal definition of this threshold, but it is commonly
understood to mean that the harm must be more
than “detectable,” but need not reach the level of
“serious” or “substantial.”282 Potentially relevant
factors for assessing severity of harm for marine
geoengineering activities may include the vulnerability
of the environment likely to be affected, the physical
and/or temporal scale over which impacts are likely
to be felt, and the irreversibility of the impacts.283
The no-harm rule is therefore more likely to apply
to large-scale field tests and full-scale deployment
activities than to small-scale research activities.
impacts from marine geoengineering activities, states
will still have an obligation to prevent significant
transboundary harm, so long as there are “plausible
indications of potential risks.”288 How this is to be
translated in practice in unclear, but at least in
theory it means that the no-harm rule may have
some capacity to govern marine geoengineering
activities, despite scientific uncertainty as to
the precise nature or scope of their impacts.
The no-harm rule also provides states with procedural
obligations that complement the substantive obligation
of prevention. States have a preliminary obligation
to ascertain whether a marine geoengineering
activity poses a risk of significant transboundary
harm or harm to the global commons.289 States can
satisfy this obligation by conducting a preliminary
risk assessment of proposed marine geoengineering
activities.290 Customary international law does not,
however, prescribe what the parameters of such an
assessment should be, so states have wide latitude
in how they interpret this obligation.291 Furthermore,
this obligation only applies to detectable risks, and
is unlikely to address unforeseeable risks that might
arise from marine geoengineering activities.
If a marine geoengineering activity poses a risk
of significant transboundary harm, the state(s)
responsible for the activity will have to satisfy several
different obligations. First and foremost, states have
a substantive obligation of “due diligence” to use
all means at their disposal to prevent significant
transboundary harm and harm to the global
commons.284 Exactly what this obligation should
entail will depend on the marine geoengineering
activity being proposed, but at a basic level states
must enact and vigilantly enforce domestic laws to
uphold this obligation.285 They must also ensure that
they are capable of enforcing these rules against public
and private actors.286 The Seabed Disputes Chamber
of the International Tribunal for the Law of the Sea
has suggested that “the precautionary approach is
also an integral part of the general obligation of due
diligence.”287 It would therefore be prudent for states
responsible for marine geoengineering activities
to adopt a precautionary approach. This means
that if there is insufficient scientific evidence as to
the specific scope or nature of potential negative
If the preliminary risk assessment indicates that
a marine geoengineering activity may present a
risk of significant transboundary harm, the state
responsible for the activity must then conduct a
transboundary EIA.292 The content of the EIA must
reflect the nature and magnitude of the specific marine
geoengineering proposal, and take into account
potentially adverse environmental impacts.293 It must
also be conducted prior to the commencement of
a marine geoengineering activity.294 In the case of
marine geoengineering research, it may be prudent for
states, as part of the EIA process, to consider whether
alternative, less risky options may achieve the same
281 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 at
101 [Pulp Mills].
282 International Law Commission, “Draft articles on Prevention of Transboundary
Harm from Hazardous Activities, with commentaries” (2001) II:2 YB
International Law Commission at 152.
283 Kerryn Brent, “The Certain Activities case: what implications for the no-harm
rule?” (2017) 20:1 Asia Pac J Envt L 28 at 53; David Reichwein et al, “State
Responsibility for Environmental Harm from Climate Engineering” (2015) 5
Climate L 142.
288 Ibid at 135.
289 Brent, supra note 283 at 53.
290 Activities in the Area, supra note 285 at 154.
284 Pulp Mills, supra note 281 at 101.
291 Brent, supra note 283 at 53–54.
285 Ibid at 197; Activities in the Area (Advisory Opinion), (2011) Case No 17 at
115 (International Tribunal for the Law of the Sea) [Activities in the Area].
292 Activities in the Area, supra note 285 at 104. See also Pulp Mills, supra note
281, which indicates that the duty to conduct an EIA is not just a fundamental
part of the no-harm rule, but a separate obligation under customary
international law (at 204).
286 Ibid. See also The South China Sea Arbitration (Philippines v China)
(Awards), (2016) Case No 2013-19 at 964–66, 973–75 (Permanent Court
of Arbitration). This decision was in the context of the general obligation to
protect and preserve the marine environment of the high seas under the LOSC,
article 192, which codifies the no-harm rule.
293 Pulp Mills, supra note 281 at 205; Activities in the Area, supra note 285 at
104.
287 Activities in the Area, supra note 285 at 128, 131.
294 Pulp Mills, supra note 281 at 205.
33
Governance of Marine Geoengineering
results, but this is not necessarily a legal requirement.295
The Espoo Convention establishes more comprehensive
guidelines for transboundary EIAs, including
obligations to involve the general public of the affected
state in the process.296 However, as noted above, the
Espoo Convention binds only a small number of states.
activities are unlikely to meet this threshold. Other
rules of international law may, however, be relevant
to small-scale activities and activities unlikely
to have significant transboundary impacts
Under customary international law, states have
wide discretion to determine what the content of a
transboundary EIA should be for a specific marine
geoengineering activity.297 If the EIA affirms the risk of
significant transboundary harm, the state responsible
for the marine geoengineering activity then has an
obligation to notify and consult with potentially
affected states.298 Customary international law does not
specify which states and/or international organizations
a proponent state should notify and consult with if a
marine geoengineering activity poses a risk of harm to
an area beyond national jurisdiction of states, such as
the marine environment of the high seas. Depending
on the nature of the risk, international agreements
may provide further guidance on who to notify with
regard to risks of harm beyond national jurisdiction.
For example, the LOSC and the CBD provide further
guidance on who to notify regarding risks of
harm to the marine environment and biodiversity,
respectively.299 However, these provisions only relate
to “imminent” risks of harm and may therefore be of
limited use for harm stemming from planned activities.
There are numerous rules in international agreements
that build on obligations under customary
international law that do not necessarily require
harm to cross territorial boundaries. These rules are
instead triggered by risks of environmental harm
per se and are therefore more likely to play a role
in governing marine geoengineering activities in
the near term. The most prominent are obligations
to protect and preserve the marine environment
under the LOSC; obligations directed at conserving
biological diversity under the CBD; and obligations
to protect the marine environment from pollution
as a result of marine dumping activities under
the London Convention and Protocol. As noted
above, other international agreements also contain
environmental protection provisions potentially
relevant to marine geoengineering activities. These
include the Madrid Protocol to the Antarctic Treaty,
RFMOs and regional seas agreements. However,
due to the limited number of parties and the
geographical scope of these agreements, they are
not examined further in this section. The following
sections analyze rules under the LOSC, CBD and
the London Protocol and Convention that may be
invoked by marine geoengineering activities that
pose risks of harm to the marine environment.
International Law on Environmental Harm
The no-harm rule provides states with several
obligations for marine geoengineering activities that
are likely to have transboundary impacts. The main
advantage of this rule is that it is legally binding and
enforceable against all states. However, states have
a considerable amount of discretion in how they
decide to interpret their obligations under this rule
in the context of marine geoengineering activities. A
further limitation is that the no-harm rule can only
be triggered by risks of harm above the threshold
level of “significant.” It is therefore unlikely to
substantially contribute to marine geoengineering
governance in the near term, as small-scale research
Marine Environmental Protection Rules under the LOSC
Marine geoengineering activities that risk harming
the marine environment may give rise to obligations
under Part XII of the LOSC, which establishes rules
for the protection and preservation of the marine
environment. Under article 192, states have a general
obligation to protect and preserve the marine
environment, and other articles in this part expand
on this obligation. Part XII of the LOSC essentially
codifies existing obligations under customary
international law, with the key difference that it
applies to marine geoengineering activities that
are conducted in, or impact on, the territory of the
state responsible for them, as well as activities that
may have transboundary consequences or that are
conducted in high-seas areas.300 Unlike the no-harm
295 See Anna-Maria Hubert & David Reichwein, “An Exploration of a Code
of Conduct for Responsible Scientific Research involving Geoengineering:
Introduction, Draft Articles and Commentaries” (2015) IASS, Potsdam Institute
for Science, Innovation and Society, University of Oxford, draft art 14; Neil
Craik, “International Law and Geoengineering: Do Emerging Technologies
Require Special Rules?” (2015) 5:2–4 Climate L 111 at 132–33.
296 Espoo Convention, supra note 265, art 2.
297 Pulp Mills, supra note 281 at 205.
298 Activities in the Area, supra note 285 at 104–68.
300 Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law and the
Environment, 3rd ed (Oxford, UK: Oxford University Press, 2009) at 387.
299 LOSC, supra note 41, art 198; CBD, supra note 154, art 14(1)(d).
34
International Law and Marine Geoengineering
ocean that will likely have a deleterious effect.307
OIF and AOA will likely satisfy this requirement,
as they will directly introduce substances into the
water column. However, it is less clear whether
other marine geoengineering proposals will meet
this requirement. MCB may indirectly result in the
deposition of salt particles on the surface of the
ocean,308 but this deposition alone may not present a
risk of “deleterious effects,” especially given that the
salt particles would originate from the same water
column. MCB may therefore fall outside the scope
of this definition.309 As noted above in the section
entitled “Microbubbles/Foam,” some microbubble
SRM techniques may involve placing materials, such
as glass microspheres, on the surface of the ocean,
but other techniques may use vortex nozzles or other
means to create bubbles or foam without introducing
matter. Ocean upwelling would involve the transfer
of water and nutrients within the ocean. The ocean
pipes are more likely to be considered “equipment” or
“installations” rather than a “substance,” and during
scientific research phases would be governed by
specific rules under articles 258–262 of the LOSC.310
It is therefore uncertain whether obligations under
articles 194, 195 and 196 (pertinent to marine pollution)
will apply to all marine geoengineering proposals.311
rule, article 192 also does not prescribe a threshold
level of harm, and is therefore of greater relevance
to small-scale research and field-testing activities.
Articles 194, 195 and 196 of the LOSC provide more
detailed provisions for the prevention of marine
pollution, including the obligation to take all measures
necessary to “prevent, reduce and control pollution
of the marine environment from any source.”301 This
obligation includes taking measures to minimize
the release of toxic, harmful and noxious substances
into the ocean.302 States also have obligations to
prevent, reduce and control pollution of the marine
environment from the use of technology.303 The
capacity of these provisions to contribute to marine
geoengineering governance hinges on the definition
of marine pollution, that is, “the introduction
by man, directly or indirectly, of substances or
energy into the marine environment, including
estuaries, which results or is likely to result in such
deleterious effects as harm to living resources and
marine life, hazards to human health, hindrance
to marine activities, including fishing and other
legitimate uses of the sea, impairment of quality for
use of sea water and reduction of amenities.”304
This definition is broad and has the potential to
apply to a wide range of impacts on the marine
environment from marine geoengineering activities,
including impacts on marine ecology.305 According to
Alan Boyle, the definition includes the ocean’s uptake
of atmospheric CO2 emissions and consequential
ocean acidification.306 It could therefore be argued
that marine CDR proposals qualify as a source of
marine pollution, regardless of any other impacts
they might have on the marine environment.
The LOSC does, however, establish procedural
obligations that will apply to all marine geoengineering
activities, in order to protect and preserve the marine
environment. All states have a duty to cooperate
with other states to protect and preserve the marine
environment,312 and to notify other states and
international organizations if there is an imminent
danger of harm to the marine environment.313 States
must also conduct an EIA for activities that may
cause “substantial pollution” or “significant and
harmful changes to the marine environment,”314
and states have ongoing monitoring obligations.315
It is important to keep in mind that the definition
of “marine pollution” under the LOSC is restricted
to activities that introduce substances into the
307 Karen N Scott, “Mind the Gap: Marine Geoengineering and the Law of the
Sea” in Robert C Beckman et al, eds, High Seas Governance: Gaps and
Challenges (Leiden: Brill Neijhoff, 2019) 33 at 45 [Scott, “Mind the Gap”].
301 LOSC, supra note 41, art 194(1) [emphasis added].
308 Boyd & Vivian, supra note 44 at 23.
302 Ibid, art 194(3).
309 See also Scott, “Mind the Gap”, supra note 307 at 45. Scott similarly queries
whether blue carbon enhancement, such as macroalgal afforestation, could be
classified as “pollution.”
303 Ibid, art 196.
304 Ibid, art 1(4).
310 See Proelss & Hong, supra note 166 at 373–75.
305 For further discussion, see Reynolds, supra note 201 at 76; Karen N Scott,
“International Law in the Anthropocene: Responding to the Geoengineering
Challenge” (2013) 34 Michigan J Intl L 309 at 335–36 [Scott, “International
Law in the Anthropocene”]; Harald Ginzky, “Marine Geo-Engineering” in
Markus Salomon & Till Markus, eds, Handbook on Marine Environment
Protection: Science, Impacts and Sustainable Management (Amsterdam:
Springer, 2018) 997 at 1000.
311 Scott, “Mind the Gap”, supra note 307 at 45.
312 LOSC, supra note 41, art 197.
313 Ibid, art 198.
314 Ibid, art 206.
306 Alan Boyle, “Law of the Sea Perspectives on Climate Change” (2012) 27 Intl J
Marine & Coastal L 831 at 832–33.
315 Ibid, art 204.
35
Governance of Marine Geoengineering
However, as with the duty to conduct an EIA under
customary international law, this obligation is very
general, and the LOSC does not prescribe what the
scope or content of an EIA should be for marine
geoengineering activities. In particular, the LOSC
does not provide any mechanisms to assess the risk
of harm that might result from not developing marine
geoengineering activities to reduce the impacts of
climate change on the marine environment.316
on the conservation and sustainable use of biological
diversity.”321 States have a general duty to cooperate
with one another and relevant international
organizations to conserve biological diversity.322
The CBD also establishes rules regarding EIAs.323
States must notify other states if an activity in their
jurisdiction and control poses a risk of imminent or
grave danger to biodiversity in the territory of another
state or in areas beyond national jurisdiction.324
The CBD
Aside from this obligation, the rules regarding
impact assessment merely require states to establish
appropriate EIA procedures in their own domestic
laws. However, the CBD does not stipulate what
the content or parameters of an EIA should be,
and provides little guidance on what would be
appropriate for marine geoengineering activities.325
Therefore, obligations established under the CBD are
expressed in very general terms, and their capacity
to contribute to marine geoengineering governance
is limited by frequent use of qualifying language.326
The CBD provides states with obligations to conserve
biological diversity, enable sustainable use of its
components, and the fair and equitable sharing of
genetic resources.317 The CBD’s definition of “biological
diversity” includes terrestrial, marine and other
aquatic ecosystems.318 Marine geoengineering activities
likely to impact on marine biodiversity and marine
ecosystems will therefore fall within the scope of this
agreement. All the marine geoengineering proposals
examined in this report have the potential to impact
on marine biodiversity. For example, OIF could alter
the base of the marine food web; OIF and ocean
upwelling could exacerbate ocean acidification and
thereby impact on marine ecosystems; AOA could
alter primary and secondary production if noncarbon alkaline materials are added to the ocean (see
“OIF,” above). Even MCB, which is to be conducted
in the atmosphere above the ocean’s surface, could
impact marine ecology and food webs by altering the
ocean’s carbon uptake. Rules under the CBD do not
differentiate between marine geoengineering research
activities, field testing or full-scale deployment. They
also apply to marine geoengineering activities carried
out within the territorial jurisdiction of a state, or
in areas beyond state jurisdiction, such as the high
seas.319 The CBD is therefore likely to be broadly
applicable to most marine geoengineering activities.
The CBD has attempted to establish additional rules
pertinent to geoengineering activities. In 2008, the
CBD Conference of the Parties (COP) adopted a nonbinding decision (decision IX/16) requesting states
to “ensure that ocean fertilization activities do not
take place until there is adequate scientific basis on
which to justify such activities.”327 The exceptions to
this request are “small-scale scientific research studies
in coastal waters.”328 In 2010, the parties to the CBD
adopted another non-binding COP decision (decision
X/33), this time for geoengineering activities more
generally. This decision “invites” states to ensure 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
Although broadly applicable, the CBD creates few
specific obligations relevant to marine geoengineering
activities. The CBD reiterates the duty to prevent
transboundary harm under customary international
law.320 It obliges states to identify activities “which
have or are likely to have significant adverse impacts
321 Ibid, art 7(c).
322 Ibid, art 5.
323 Ibid, art 14.
324 Ibid, art 14(d).
325 See also Ginzky, supra note 305 at 1007.
316 See also Scott, “Mind the Gap”, supra note 307 at 44.
326 Reynolds, supra note 201 at 96.
317 CBD, supra note 154, art 1.
319 Ibid, art 4. See also Ginzky, supra note 305 at 1007.
327 Decisions adopted by the Conference of the Parties to the Convention on
Biological Diversity at its Ninth Meeting, UNEP Dec IX/16, s C (“Biodiversity
and climate change”), UN Doc UNEP/CBD/COP/9/29 (2008) [CBD,
“Biodiversity and Climate Change”], online: <www.cbd.int/doc/decisions/cop09/full/cop-09-dec-en.pdf>. See also McGee, Brent & Burns, supra note 82.
320 CBD, supra note 154, art 3.
328 CBD, “Biodiversity and Climate Change”, supra note 327.
318 Ibid, art 2.
36
International Law and Marine Geoengineering
general obligations to prevent, reduce and control
pollution from dumping activities under the LOSC.338
The London Convention and Protocol complement
the LOSC by providing more detailed and specific
obligations in this regard. The London Convention
was negotiated in 1972 and aims to control sources
of marine environmental pollution, especially from
the dumping of waste and other matter at sea.339
The London Protocol was negotiated in 1996 with
the intention that it would succeed and replace
the London Convention.340 Its objectives are more
ambitious than the Convention’s, being to protect and
preserve the marine environment from all sources
of pollution, and eliminate pollution from dumping
activities.341 Unlike the Convention, the London
Protocol explicitly adopts a precautionary approach.342
Both agreements apply to activities conducted within
a state’s territorial sea, EEZ and on the high seas.343 The
London Convention and Protocol are therefore both
potentially relevant to marine geoengineering research,
field testing and deployment activities that introduce
substances into the ocean, such as OIF and AOA.
exception of small scale scientific research studies
that would be conducted in a controlled setting.”329
Decision X/33 was reaffirmed by the CBD COP in
2012330 and again in 2016.331 The 2016 decision noted
the need for more research to better understand
the impacts of geoengineering on “biodiversity
and ecosystem functions and services,”332 but this
should not be interpreted as negating decision X/33,
which essentially encouraged states not to engage in
geoengineering activities, marine-based or otherwise,
that might significantly affect biodiversity. Whether a
marine geoengineering activity should be prohibited
under this decision is therefore going to be a question
of scale. Activities would need to be conducted
at a large enough scale to affect biodiversity.333
These COP decisions are non-binding, which
means that state parties to the CBD are not legally
required to comply with them. They are nevertheless
persuasive.334 As noted above in Figure 2, the CBD
has near-universal membership. According to Harald
Ginzky, these decisions therefore “represent the
political will of almost all States worldwide.”335 The
widespread support for these decisions, however,
needs to be weighed against the use of hortatory
and qualified language.336 As noted by Reynolds, the
2010 decision “merely ‘invites’ states to ‘consider the
guidance’” provided by the decision.337 These decisions
do not provide states with clear, concrete obligations
concerning geoengineering activities, and therefore
only enhance the capacity of the CBD to govern
marine geoengineering activities by a small degree.
Before continuing, it is important to note that in
2013, parties to the London Protocol adopted a
resolution to amend the Protocol to specifically govern
marine geoengineering.344 This amendment has yet
to enter into force and therefore is not yet legally
binding on parties. For this reason, it is considered
separately below. Aside from this amendment, the
London Convention and Protocol apply only to
marine geoengineering activities that qualify as
“dumping.” Under both agreements, dumping means
the deliberate disposal of waste or other matter into
the sea “from vessels, aircraft, platforms or other
The London Convention and London Protocol
The London Convention and London Protocol are two
separate agreements that form an international regime
to govern the dumping of wastes at sea. States have
338 LOSC, supra note 41, art 210.
339 London Convention, supra note 155, art II.
340 See Strategic Plan for the London Protocol and London Convention, IMO
(2017) at 1, online: <www.imo.org/en/OurWork/Environment/LCLP/
Documents/Strategic%20Plan%20leaflet_final_web.pdf>. A number of states
that were party to the London Convention have since signed and ratified the
London Protocol. However, there are still a number of states that have not
done so. These two agreements therefore continue to operate concurrently,
with parties to both agreements bound to follow the stricter provisions of the
London Protocol.
329 CBD, UNEP, 10th Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Dec X/33 (2010) at para 8(w).
330 CBD, UNEP, 11th Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Dec XI/20 (2012) at para 1.
331 CBD, UNEP, 13th Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Dec XIII/14 (2016) at para 1.
341 London Protocol, supra note 264, art 2.
332 Ibid at para 5.
342 Ibid, art 3(1). In 1991, parties to the London Convention did, however,
agree to be “guided” by a precautionary approach when implementing
their obligations. See The Application of a Precautionary Approach in
Environmental Protection within the Framework of the London Dumping
Convention (1991) Res LDC.44(14).
333 Reynolds, supra note 201 at 98–99.
334 Scott, “International Law in the Anthropocene”, supra note 305 at 333.
335 Ginzky, supra note 305 at 1008.
336 Scott, “International Law in the Anthropocene”, supra note 305 at 332;
Reynolds, supra note 201 at 99.
343 London Convention, supra note 155, art III(3); London Protocol, supra note
264, art 1.7. Neither agreement applies to activities within the internal waters
of a state.
337 Reynolds, supra note 201 at 99.
344 Res LP.4(8), supra note 39.
37
Governance of Marine Geoengineering
man-made structures at sea.”345 It also includes
the deliberate disposal at sea of “vessels, aircraft,
platforms or other man-made structures.”346 If matter
is placed into the ocean for a purpose other than
mere disposal, it is not considered dumping so long
as it is not contrary to the aims of the Convention/
Protocol.347 This definition of dumping encompasses
marine geoengineering activities conducted from a
wide variety of structures and installations within
or near the ocean, but only if the activity involves
deliberately introducing matter into the ocean.348
therefore will be considered dumping. In 2010, parties
adopted a non-binding assessment framework to
help determine whether a proposed OIF activity
is legitimate scientific research.353 The parties have
not adopted a similar framework specifically for
AOA. However, AOA similarly involves placement
of matter into the ocean for a purpose other than
mere disposal. Large-scale field tests and full-scale
deployment activities will almost undoubtedly qualify
as dumping because they are likely to present risks of
harm to the marine environment. Small-scale research
activities may be exempt from this definition if they
do not present risks to the marine environment.
This requirement restricts the capacity of the
London Convention and Protocol to govern marine
geoengineering activities and presents similar
challenges to the definition of pollution under the
LOSC.349 OIF and AOA will satisfy this requirement, as
these proposals involve the deliberate introduction
of matter (i.e., iron or calcium carbonate) into the
ocean. Marine geoengineering activities that do not
deliberately introduce matter into the ocean, such
as MCB, ocean upwelling/downwelling and certain
microbubble techniques, will likely fall outside
the scope of this definition, preventing the London
Convention and Protocol from governing them.350
If a marine geoengineering activity qualifies as
dumping, it will be subjected to different rules under
the London Convention and the London Protocol.
The Convention adopts a “positive list” approach to
regulating dumping activities in that it specifically lists
substances that are prohibited from being dumped,
or that require a special permit to be dumped.354
Other substances may be dumped subject to a general
permit.355 The substances proposed for OIF and AOA are
not specifically listed, and therefore may be allowed via
a general permit.356 As such, the London Convention is
largely permissive of marine geoengineering activities.
Importantly, in 2008, the parties to the London
Convention and Protocol decided that OIF activities
are not dumping so long as they are for the purpose
of legitimate scientific research.351 However, OIF
activities for a purpose other than legitimate scientific
research, including activities that generate direct
financial gains,352 will be considered contrary to the
aims of the London Convention and Protocol and
On the other hand, the London Protocol takes a much
more restrictive approach to dumping activities.
It adopts a “reverse list” approach, which means
that it prohibits the dumping of all substances,
except those specifically listed.357 This list notably
does not include the substances likely to be used
in OIF or AOA activities.358 As a result, large-scale
OIF and AOA activities are most likely prohibited
under the London Protocol. Smaller-scale research
activities may be permitted, so long as they do not
risk harming the marine environment. As noted
above, parties have affirmed this approach for
OIF activities in several non-binding decisions.
Support for smaller-scale research is also reflected
in the approach taken by parties to governing ocean
345 London Convention, supra note 155, art III(1)(a); London Protocol, supra note
264, art 1.4.1.1.
346 London Protocol, supra note 264, art 1.4.1.2.
347 Ibid, art 1.4.2.2.
348 See also Reynolds, supra note 201 at 88; Scott, “Mind the Gap”, supra note
307 at 46.
349 The definition of pollution under the LOSC is adopted by the London Protocol,
supra note 264, art 1.10.
350 Ginzky, supra note 305 at 1002.
353 UNEP, 2010 OFAF, supra note 352.
351 Regulation of Ocean Fertilization, Report of the Thirtieth Meeting of the
Contracting Parties to the London Convention and the Third Meeting of the
Contracting Parties to the London Protocol, UNEP, Res LC-LP.1, Annex 6, LC
30/16 (2008) at para 3. See also Res LP.4(8), supra note 39. This amendment
is discussed in greater detail below.
354 London Convention, supra note 155, art IV(1)(a), Annex I. Annex II of the
London Convention lists substances that require a special permit to be dumped.
355 Ibid, art IV(1).
352 Assessment Framework for Scientific Research Involving Ocean Fertilization
(OFAF), Report of the Thirty-Second Consultative Meeting and the Fifth
Meeting of the Contracting Parties, UNEP, Annex 6, LC 32/15 (2010) at para
2.2.2 [UNEP, 2010 OFAF]. See also Kerryn Brent et al, “International law
poses problems for negative emissions research” (2018) 8:6 Nature Climate
Change 451 [Brent et al, “International law poses problems”].
356 Reynolds, supra note 201 at 89.
357 London Protocol, supra note 264, art 4.1.1, Annex 1.
358 For further analysis, see Scott, “International Law in the Anthropocene”, supra
note 305 at 338.
38
International Law and Marine Geoengineering
fertilization in the 2013 marine geoengineering
amendment,359 which is analyzed separately below.
alike, and detract from the capacity of these rules
to govern marine geoengineering activities.
The different obligations established by the
London Convention and Protocol regarding marine
geoengineering activities are summarized in
Figure 3, below.
International law contains numerous rules that require
states to prevent and/or minimize risks of harm to the
territory of other states and the marine environment.
These rules provide states with various obligations
depending on whether a marine geoengineering
activity is likely to have transboundary impacts,
is likely to impact on biodiversity or involves the
placement of matter into the ocean. The main problem
with these obligations is that they are typically very
general and open to broad interpretation. States
have limited guidance in how they should apply and
operationalize these obligations for specific marine
geoengineering activities. Moreover, in the case of
dumping activities, states have potentially three
different sets of obligations, depending on whether
they are party to the London Convention, London
Protocol or just the LOSC. The differential coverage
and complexity of rules applying to activities are
significant challenges for building confidence in marine
geoengineering activities such as OIF and AOA.
States therefore have different obligations concerning
OIF and AOA activities, depending on whether they
are a party to the London Protocol, or only the London
Convention.
States that are party to neither the London Convention
nor the London Protocol, but are parties to the LOSC,
will be bound by a third set of rules that merely
require them to “adopt” laws and regulations, and
take other “necessary” measures to prevent pollution
of the marine environment from dumping.360
Having three sets of rules in international law that
potentially apply to the same activity is likely to
cause confusion for researchers and policy makers
Figure 3: Application of the London Convention (LC) and London Protocol (LP) to Marine
Geoengineering
Is the activity “dumping”?
OIF
AOA/other
Is it “legitimate
scientific
research”?
Use 2010 OFAF
Yes
It is not
dumping
Is placement of matter for
purpose other than disposal
and is activity not contrary to
aims of LC/LP?
No
Yes
It is
dumping
It is not
dumping
No
It is
dumping
LC
LP
LC
LP
LC
LP
Activity is
allowed
without
permit
Activity is
allowed
without
permit
Activity is
allowed
subject
to permit
Activity is
prohibited
Activity is
allowed
without
permit
Activity is
allowed
without
permit
359 Res LP.4(8), supra note 39.
360 LOSC, supra note 41, art 210.
39
LC
Activity is
allowed
subject
to permit
LP
Activity is
prohibited
Governance of Marine Geoengineering
Can a State or Other Actor Be Held
Liable for Harm?
harm to the marine environment. However, many
of these obligations are expressed in general terms
and are open to wide interpretation, making it
difficult to pinpoint when a state has breached an
obligation. For example, under article 14(1)(a) of the
CBD, states have an obligation “as far as possible
and appropriate” to introduce “appropriate” EIA
procedures for activities that may significantly affect
biodiversity. It would be extremely difficult to identify
if a state has breached this obligation, as the CBD
does not set precise standards for the EIA and allows
states to raise the argument that an EIA was not
possible or was inappropriate in the circumstances.
The previous section examined rules that aim to
prevent or minimize risks of transboundary or
environmental harm under international law. In
other words, these rules aim to address harm before
it can occur. This raises the question: how would
international law respond to a marine geoengineering
activity if it resulted in transboundary harm or harm
to the marine environment? This section therefore
considers the extent to which states can be held
responsible and liable for harm caused by marine
geoengineering activities under existing rules of
international law. It examines the most prominent and
widely applicable of these rules, that is, customary law
rules of state responsibility and rules for responsibility,
liability and enforcement under the LOSC.
Establishing a breach of the duty to prevent significant
transboundary harm is also likely to be difficult, as this
rule provides states with little guidance as to when the
risks of harm from an activity will meet the threshold
level of significant to trigger obligations under this
rule. Furthermore, just because harm results from a
marine geoengineering activity does not mean a state
has breached its obligations under international law.
As noted above, the no-harm rule and other obligations
to protect and preserve the marine environment under
the LOSC provide states with a duty of due diligence to
take steps to avoid and minimize harm, but states do
not have to absolutely prevent harm from occurring.363
It is therefore possible for a marine geoengineering
activity to cause harm yet not qualify as a wrongful act.
State Responsibility
Under customary international law, states are
responsible for “wrongful acts,” and this responsibility
provides states with duties in relation to them,
including a duty to make reparations for material
damage caused by wrongful acts.361 Wrongful
acts are acts that breach a state’s international
legal obligations. For example, a wrongful act in
relation to marine geoengineering would occur if
a state authorized its scientists to conduct marine
geoengineering research within the EEZ of another
state without first obtaining that state’s permission;
this would constitute a breach of article 246 under the
LOSC. If a marine geoengineering activity results in
harm to the marine environment or another state, this
does not necessarily mean it is wrongful and will give
rise to rules of state responsibility. The rules of state
responsibility only apply if the harm results from the
breach of a state’s international legal obligations.362
A further challenge is proving attribution. It may
be challenging to identify a causal link to attribute
damage to a specific marine geoengineering activity.364
Marine geoengineering is not the only stressor on the
world’s oceans. Climate change, ocean acidification,
plastics and other human activities contribute
to marine pollution and have harmful effects on
the marine environment. It may be difficult to
distinguish whether harm is the result of a marine
geoengineering activity or another source. For example,
microbubbles have the potential to contribute to ocean
acidification, however, it may be difficult to attribute
any increase in acidity to a specific microbubble
activity, given that ocean acidification is also being
caused by high levels of CO2 in the atmosphere from
Establishing that a state has breached an international
legal obligation in relation to a marine geoengineering
activity, and that this breach resulted in harm, will
be difficult. As illustrated above, states have several
obligations to prevent transboundary harm and
363 See also Reynolds, supra note 201 at 119. But see also Kerryn Brent, “Solar
radiation management geoengineering and strict liability for ultrahazardous
activities” in Neil Craik et al, eds, Global Environmental Change and
Innovation in International Law (Cambridge, UK: Cambridge University Press,
2018) 161. Activities that qualify as “ultra-hazardous” may automatically
breach customary international law if they cause harm. However, whether
ultra-hazardous activities are subject to this different standard is disputed.
361 See e.g. Corfu Channel Case (United Kingdom v Albania), [1949] ICJ Rep 4 at
23; Case Concerning the Gabçikovo-Nagymaros Project (Hungary v Slovakia),
[1997] ICJ Rep 7 at 149. The rules of state responsibility are established under
customary international law, but have since been codified by the International
Law Commission. See “Report of the International Law Commission on the
work of its fifty-third session” (UN Doc A/56/10) YB Intl L Commission, vol 2,
part 2 (New York: UN, 2001) art 31.
364 For a discussion of this challenge in the context of SRM, see David Reichwein
et al, “State Responsibility for Environmental Harm from Climate Engineering”
(2015) 5:2–4 Climate L 142 at 161–64.
362 Ibid, art 31.
40
International Law and Marine Geoengineering
other human activities. From a legal perspective,
to qualify as a wrongful act the breach of a rule
must also be attributable to the state in question.
This may be challenging if non-government actors
conduct geoengineering experiments or activities
unbeknown to relevant state bodies/institutions.
the existing rules of customary international law on
state responsibility. Instead, they merely articulate
these rules in the context of marine environmental
protection provisions under Part XII of the LOSC.
A key difference, however, between the LOSC and
customary international law, is that the LOSC
provides states with compulsory dispute resolution
mechanisms.366 A state party to the LOSC may refer
a dispute about any provision under the LOSC to an
international court or tribunal for adjudication without
first requiring the other state’s consent. So long as
the other state in the dispute is party to the LOSC,
they will be taken to have given advance consent
to international adjudication by the International
Tribunal for the Law of the Sea, the International
Court of Justice, an arbitral tribunal as set out under
Annex VI of the LOSC, and/or a special arbitral tribunal
set out under Annex VIII of the LOSC.367 No matter
which court or tribunal is selected, it will have the
power to prescribe provisional (i.e., interim) measures
to prevent serious harm to the marine environment
while a dispute is being adjudicated.368 If a marine
geoengineering activity risks causing significant
harm to the marine environment and is the subject
of a dispute under the LOSC, it may be possible for
an international court or tribunal to respond to the
risks of the activity before they can materialize, or
before further harm can be caused. In this sense,
dispute resolution mechanisms under the LOSC
may provide more effective means to respond to
harm caused by marine geoengineering activities.
Rules of state responsibility may provide states with a
potential avenue to hold other states responsible and
claim reparations (including monetary compensation)
for harm caused by marine geoengineering activities.
However, these rules only provide a liability regime
insofar as harm is the result of breaching an existing
rule of international law. As such, they can only
respond to harm caused by marine geoengineering
activities in a limited number of circumstances.
Moreover, if an incident is disputed, it would be
up to the states in question to consent to submit
the dispute to the International Court of Justice or
International Arbitration Tribunal for determination,
or settle the dispute through other means, such as
bilateral negotiations. The practical operation of state
responsibility rules under customary international
law therefore depends heavily on the consent of
all states concerned. If consent is not present, and
absent any compulsory adjudication under a treaty,
international adjudication will likely be stymied.
State Responsibility and Enforcement Rules
under the LOSC
The LOSC also establishes rules for responsibility,
liability and enforcement of rules for the protection
of the marine environment. Articles 213–222 set out
rules that require states to enforce their domestic
laws against states and non-state actors within
their jurisdiction to minimize, prevent and control
pollution of the marine environment. Article 235
reiterates the rules under customary international
law, in that states are responsible for upholding
their obligations to protect and preserve the marine
environment. However, this rule also requires states
to ensure that avenues for recourse are available
within their domestic legal systems to provide
compensation for harm caused by pollution.365 It
also require states to cooperate to implement their
existing rules under international law and develop
further rules for state responsibility and liability
for marine environmental pollution. States have
yet, however, to develop more detailed rules. Taken
together, these rules do not significantly build on
This section demonstrates that there are numerous
existing rules of international law pertinent to marine
geoengineering activities. However, these rules were
negotiated for different purposes, and not specifically
for the governance of marine geoengineering.
The extent to which this patchwork of rules can
contribute to marine geoengineering governance
will vary, depending on the purpose of an activity,
where it is conducted, which state is responsible
for it and the types of impacts it is likely to have.
Interpreting how this patchwork will apply to a
specific marine geoengineering activity is complex,
and existing rules may provide little concrete guidance
as to how an activity ought to be conducted.
366 Ibid at XV(2).
367 For further explanation, see Bernard H Oxman, “Courts and Tribunals: The
ICJ, ITLOS, and Arbitral Tribunals” in Rothwell et al, supra note 157, 394 at
397–401.
368 LOSC, supra note 41, art 290. See also Oxman, supra note 367 at 398.
365 LOSC, supra note 41, art 235(2).
41
Governance of Marine Geoengineering
Efforts have been made under the London
Protocol to develop a specific framework for
marine geoengineering governance. To date, this
development represents the most specific response
of the international law system to demands of
marine geoengineering. The following section
therefore analyzes this development under the
London Protocol and considers the extent to which
it can strengthen the capacity of international
law to govern marine geoengineering.
42
Marine Geoengineering Amendments
under the London Protocol
by which this amendment was negotiated within
the ocean dumping regime has been extensively
analyzed elsewhere.371 This report considers instead
the related issue of whether the LP.4(8) amendment,
when it comes into force, can provide a comprehensive
governance framework for marine geoengineering
research, field testing and deployment.First, the
rules that the LP.4(8) amendment establishes for
ocean fertilization are analyzed, followed by the
framework it establishes for future governance
of other marine geoengineering activities.
In 2013, parties to the London Protocol negotiated
amendment LP.4(8) to enable this agreement
to specifically govern marine geoengineering
activities.369 The LP.4(8) amendment prohibits
OIF, except for activities that qualify as legitimate
scientific research. It also establishes a framework to
enable the London Protocol to govern other marine
geoengineering activities in future. The amendment
has yet to enter into force, but it is the first attempt
by states to negotiate a set of legally binding rules for
geoengineering governance within the international
law system. It is therefore recognized as a very
significant development, and a potential model for
future geoengineering governance.370 The process
371 See e.g. McGee, Brent & Burns, supra note 82 at 67; Kemi Fuentes-George,
“Consensus, Certainty, and Catastrophe: Discourse, Governance, and Ocean
Iron Fertilization” (2017) 17:2 Global Environmental Politics 125; Harald
Ginzky & Robyn Frost, “Marine Geo-Engineering: Legally Binding Regulation
under the London Protocol” (2014) 8:2 Carbon & Climate L Rev 82.
369 Res LP.4(8), supra note 39.
370 Ginzky, supra note 305.
43
Governance of Marine Geoengineering
Ocean Fertilization
management procedures. An OIF activity will only be
considered legitimate scientific research if all steps
of the framework have been satisfied to minimize
the impact on the environment and maximize the
scientific benefits from the activity, and if consent
has been sought from any other countries likely to be
affected by the activity.381 LP.4(8) and the 2010 OFAF
therefore provide a very cautious and restrictive
framework for ocean fertilization governance.
The LP.4(8) amendment operates through a positive
list governance approach. New article 6bis prohibits
geoengineering activities that are specifically
listed under Annex 4, which currently lists only
ocean fertilization activities. Ocean fertilization
is defined as “any activity undertaken by humans
with the principal intention of stimulating primary
productivity in the oceans,” except for “conventional
aquaculture, or mariculture, or the creation of
artificial reefs.”372 This is a broad definition that
includes ocean fertilization for the purpose of
addressing climate change, as well as activities that
primarily intend to enhance marine productivity,
such as the Haida Gwaii experiment, which involved
a salmon fishery off the coast of Canada.373 The
LP.4(8) amendment effectively prohibits all ocean
fertilization activities, except those carried out for
legitimate scientific research.374 Until other marine
geoengineering activities are listed under Annex 4,
they are permitted, so long as they do not otherwise
constitute dumping under the London Protocol,375
or are contrary to the objectives of the Protocol to
protect and preserve the marine environment.376
The LP.4(8) amendment to the London Protocol is
therefore a significant development in international
law. It may not yet be in force, but still provides
the most detailed provisions for the governance
of ocean fertilization activities agreed upon
to date. Moreover, it is the first attempt of the
international law system to develop binding
rules for any type of geoengineering proposal.
Framework for Marine
Geoengineering Governance
In addition to establishing specific rules for OIF, the
LP.4(8) amendment establishes a set of rules for the
governance of other types of marine geoengineering
technologies. The rationale for developing this
framework is that other marine geoengineering
technologies may be developed that will present
risks of harm to the marine environment and fall
within the scope of the ocean dumping regime.382
Other marine geoengineering activities can be
governed if parties agree to list them under Annex 4.
This annex system provides for greater flexibility in
governing future marine geoengineering proposals.
Under article 22 of the London Protocol, any party
can propose an addition to Annex 4 to prohibit other
marine geoengineering activities and provide for
any exceptions to the prohibition (i.e., carrying out
legitimate scientific research).383 Any additions to
Annex 4 must be accepted by a two-thirds majority of
the London Protocol parties and will enter into force
after 100 days.384 Unlike the process for amending
the text of the Protocol,385 parties do not need to
formally adopt amendments to Annex 4 before it
Whether a proposed ocean fertilization activity
constitutes legitimate scientific research will be
determined by the 2010 OFAF.377 This framework
requires the state responsible for a proposed marine
geoengineering activity378 to conduct an initial
assessment of the activity’s scientific attributes,
including whether the activity will lead to direct
economic gains379 and whether it will be subject to
scientific peer review.380 If the activity passes the
initial assessment, the state must then conduct
an EIA, which includes considering the site of the
proposed activity, likely environmental effects and risk
372 Res LP.4(8), supra note 39 at Annex 4, 1.1.
373 For an overview of this experiment, see Abate, supra note 205 at 52–57.
374 Res LP.4(8), supra note 39 at Annex 4, 1.3.
375 London Protocol, supra note 264, art 1.4.1–3.
376 Reynolds, supra note 201 at 90.
377 UNEP, 2010 OFAF, supra note 352; Res LP.4(8), supra note 39, at Preamble,
para 3.
378 A state will be responsible for an ocean fertilization activity if it is to be
conducted within their jurisdiction, if the nutrients to be placed into the ocean
were loaded from their territory or if it is the flagship state of the vessel being
used in the activity. See London Protocol, supra note 264, arts 9–10.
381 UNEP, 2010 OFAF, supra note 352 at 4.1–4.2.
382 See McGee, Brent & Burns, supra note 81 at 71.
383 London Protocol, supra note 264, art 22(1).
379 UNEP, 2010 OFAF, supra note 352 at 2.2.2; see also Brent et al,
“International law poses problems”, supra note 352.
384 Ibid, art 22(2)–(4).
380 UNEP, 2010 OFAF, supra note 352 at 2.2.3.
385 Ibid, art 21(3).
44
Marine Geoengineering Amendments
can enter into force.386 This means that new marine
geoengineering technologies can be more readily
governed.387 Although the London Protocol parties
have the option of adding new activities to Annex 4 at
the present time, it is important to bear in mind that
any additions will not actually take effect until the
LP.4(8) gains enough ratifications to enter into force.388
The general assessment framework for marine
geoengineering in Annex 5 has two broad purposes.
States can use the general assessment framework
to determine whether a marine geoengineering
activity listed in Annex 4 should take place. The
framework can also be used to develop additional
assessment frameworks that are tailored to specific
marine geoengineering proposals, just as the OFAF
has been tailored to the features of OIF research.
Either way, states must develop domestic laws or
regulations to ensure any permits they issue meet
the requirements of Annex 5.393 Annex 5 thus creates
a minimum standard that new specific assessment
frameworks must meet.394 This approach provides
some degree of flexibility in governing future marine
geoengineering activities by ensuring that parties
are not stuck with the same assessment framework
for all new marine geoengineering activities.395
If a new marine geoengineering activity is listed
under Annex 4 of the LP.4(8) amendment, the London
Protocol parties can decide to prohibit it outright,
or create exceptions where the activity might be
allowed, but subject to the issue of a permit to ensure
that any risks of harm to the marine environment
are minimized.389 Annex 5 of the LP.4(8) amendment
establishes a general assessment framework,
which is similar to the 2010 OFAF, which sets
out decision-making rules for states to apply to
marine geoengineering activities when considering
whether a permit should be granted. It includes
criteria for determining whether a proposed marine
geoengineering research activity is legitimate, rules
for consulting with potentially affected states, and
detailed provisions for carrying out EIAs and ongoing
monitoring of activities that are authorized.390
Moreover, London Protocol parties are only allowed
to authorize marine geoengineering activities if
marine environmental pollution can be minimized, so
that the activity is not thereby contrary to the aims
of the London Protocol.391 The general assessment
framework in Annex 5 of the LP.4(8) therefore requires
states to adopt a highly precautionary approach
when deciding whether to issue a permit for marine
geoengineering activities, in keeping with their
existing obligations under the London Protocol.392
The LP.4(8) amendment provides a detailed
framework for marine geoengineering governance
that has capacity to adapt to future scientific
and technological developments. It is a highly
precautionary framework,396 significantly informed
by expert scientific advice as well as the advice of
environmental policy makers and international
lawyers.397 It not only provides a model for future
geoengineering governance, but also provides
an example of the processes through which new
governance mechanisms for marine geoengineering
might be developed within existing international
organizations and treaty bodies.398 However, it
is important to keep in mind that LP.4(8) is an
amendment to protect the marine environment from
geoengineering technologies, not to govern research
or development of geoengineering technologies
per se. LP.4(8) is an amendment to an existing
environmental protection treaty and its capacity to
provide a comprehensive governance framework
for marine geoengineering activities will therefore
be limited by the aims, scope and membership
of the London Protocol itself. These limitations of
the London Protocol are set out further below.
386 Parties will be automatically bound by the amendment, unless they make a
declaration that they are unable to accept it. London Protocol, supra note 264,
art 22(4).
387 See Chiara Armeni & Catherine Redgwell, “International legal and regulatory
issues of climate geoengineering governance: rethinking the approach” (2015)
Climate Geoengineering Governance Working Paper Series 021 at 26–27,
online: <http://geoengineering-governance-research.org/perch/resources/
workingpaper21armeniredgwelltheinternationalcontext-3.pdf>.
393 Res LP.4(8), supra note 39, art 6bis(2).
388 London Protocol, supra note 264, art 22(6).
394 Ibid at Annex 5(2). See also Ginzky, supra note 305 at 1006.
389 Res LP.4(8), supra note 39 at Annex 5, para 26, establishes conditions for a
permit.
395 See also Anna-Maria Hubert, “Marine Scientific Research” in Salomon &
Markus, supra note 305, 933. Hubert describes the amendment overall as
flexible and adaptive in its design (at 944).
390 See also Karen Scott, “Geoengineering and the Marine Environment”
in Rosemary Rayfuse, ed, Research Handbook on International Marine
Environmental Law (Cheltenham, UK: Edward Elgar, 2015) 451 [Scott,
“Geoengineering and the Marine Environment”] at 460.
396 Scott, “Geoengineering and the Marine Environment”, supra note 390 at 460.
397 Ginzky & Frost, supra note 371 at 94.
391 Res LP.4(8), supra note 39 at Annex 5.26.7.
398 See ibid, 94–96. See also Fuentes-George, supra note 371, who analyzes the
institutional behaviour that led to this amendment.
392 See also Scott, “Mind the Gap”, supra note 307 at 50.
45
Governance of Marine Geoengineering
The LP.4(8) amendment may not be able to
govern all marine geoengineering activities
Ginzky and Robyn Frost, “activities which do not
place matter into the marine environment would
not come within the scope of the amendments.
For example, the extraction of sea water for the
purpose of cloud seeding in order to increase the
albedo effect would not fall within the scope of
the new regulation. Nor would a geoengineering
technique be regulated that, for example, involved
the introduction of energy into the ocean.”405
The LP.4(8) amendment defines “marine
geoengineering” as follows: “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.”399
The amendment has the capacity to govern AOA
activities, as they would involve the placement of
calcium carbonate or other matter into the ocean.406
The amendment could also apply to blue carbon
initiatives, such as enhanced kelp farming, if they
involve the placement of matter (i.e., nutrients)
into the ocean. The amendment will likely apply to
microbubble techniques that involve placing matter
into the ocean (i.e., glass microbeads). However, as
noted by Karen Scott, “the creation of microbubbles
through ‘the expansion of air saturated water
through vortex nozzles’ is likely to be excluded
from the remit of Article 6bis — since ‘matter’ is
effectively not ‘placed’ into the sea. Furthermore,
the regime does not cover schemes such as marine
cloud brightening which utilize the oceans as a tool
from which to effect geoengineering but which do
not involve the placement of matter therein.”407
Any activities that might be considered for listing
under Annex 4, and hence be governed by the LP.4(8)
amendment, must, as a threshold issue, fall within this
definition. The definition is wide enough to include
activities to address climate change, but also other
activities for other purposes, such as enhancing marine
productivity, or addressing ocean acidification.400
However, the definition excludes activities that are not
deliberately intended to manipulate natural processes
but may nevertheless manipulate natural processes
as a side effect. According to Ginzky, examples of
such activities include the laying of submarine cables
and the creation of artificial reefs.401 Moreover, the
definition applies only to activities that have the
potential to have “deleterious effects,” presumably
on the marine environment. This is in keeping with
the objectives of the London Protocol to protect and
preserve the marine environment.402 The threshold
for harm is, however, very low, in that an activity
need show only the potential of risk of harm, and
thus, harm does not actually need to eventuate.403
The LP.4(8) amendment is also unlikely to apply
to ocean upwelling/downwelling, as this involves
the transfer of water/nutrients from one part of
the ocean to another, rather than the introduction
of new matter.408 LP.4(8) therefore cannot
provide a comprehensive governance framework
for marine geoengineering activities, as key
proposals are currently beyond its scope.409
The main provision of the LP.4(8) amendment, article
6bis, further limits the capacity of the amendment
to govern marine geoengineering activities. Article
6bis prohibits “the placement of matter into the
sea from vessels, aircraft, platforms or other manmade structures at sea for marine geoengineering
activities listed in annex 4.” This has led several
international environmental law experts to conclude
that the amendment can govern only those marine
geoengineering activities that involve the placement
of matter into the oceans.404 According to Harald
The amendment does not consider the need to
address climate change
A further limitation of LP.4(8) is that it does not
consider the growing need to develop geoengineering
technologies to ameliorate climate change.
Admittedly, this amendment was negotiated prior
to the signing of the Paris Agreement, and the
399 Res LP.4(8), supra note 39, art 1 (5bis).
400 Ginzky & Frost, supra note 371 at 86.
405 Ginzky & Frost, supra note 371 at 86.
401 Ginzky, supra note 305 at 1005.
406 Scott, “Geoengineering and the Marine Environment”, supra note 390 at 459.
402 Ginzky & Frost, supra note 371 at 86.
407 Ibid at 459. See also Ginzky & Frost, supra note 371 at 86.
403 Ibid; Scott, “Mind the Gap”, supra note 307 at 48.
408 Ginzky, supra note 305.
404 Ginzky & Frost, supra note 371 at 86; Scott, “Geoengineering and the Marine
Environment”, supra note 390 at 461.
409 See Scott, “Geoengineering and the Marine Environment”, supra note 390 at
461.
46
Marine Geoengineering Amendments
activities and the wider risk of not engaging in such
activities (i.e., climate change continuing unabated).
assumptions about negative emissions contained
therein. The IPCC’s 5th Assessment Working Group
I Report was published in 2013, but the fact that
CDR geoengineering had been incorporated into
most pathway scenarios to limit global temperature
increase to 2oC was not yet widely publicized.410
At the time LP.4(8) was negotiated, geoengineering
therefore did not have as prominent a role in
international climate change policy as it does today.
In short, the LP.4(8) amendment focuses only on
the risks marine geoengineering activities might
pose to the marine environment, with a particular
emphasis on the placement of matter, without
considering the bigger picture of geoengineering
or climate change governance.414 Given the extent
to which CDR geoengineering is now incorporated
into international climate change policy, this is
a significant omission that further detracts from
the amendment’s capacity to comprehensively
govern marine geoengineering technologies.
It is possible that a closer linkage of the Paris
Agreement and London Protocol may emerge in the
future. However, although the London Convention
parties have previously carried out some important
work around CO2 sequestration in geological
structures,411 the LP.4(8) amendment’s failure to
directly consider wider issues posed by climate
change is conspicuous, especially as the LP.4(8)
amendment draws links to other international treaties,
organizations and broader environmental issues. The
preamble to the LP.4(8) amendment highlights the
need to conserve the marine environment and promote
sustainable use of the world’s oceans. It notes the COP
decisions of the CBD discouraging states from engaging
in geoengineering activities that might have an impact
on biological diversity. The preamble also notes the
IPCC’s 5th Assessment report and the expert meeting
it held in 2011 on geoengineering. It is therefore
surprising that the amendment makes no reference to
climate change as a significant environmental issue. It
does not acknowledge the risks climate change poses
to the marine environment, nor does it recognize
the broader objectives of the UNFCCC to stabilize
the levels of GHGs in the atmosphere.412 It also does
not require or encourage any cross-organizational
cooperation with the UNFCCC. Annex 5 requires
permits for marine geoengineering activities to, as
far as practicable, minimize environmental impacts
and “maximize benefits.”413 However, LP.4(8) also does
not provide governance mechanisms that allow for
any sort of risk-risk trade-off between the marine
pollution risks posed by marine geoengineering
The amendment has slow uptake with limited
potential parties
The LP.4(8) amendment needs to enter into force
before it can form a part of the London Protocol and
become legally binding on state parties. Under article
21, to enter into force, two-thirds of state parties to
the London Protocol must accept the amendment.415
As of October 22, 2019, 53 states are party to the
London Protocol,416 meaning that a minimum of 35
states must accept the LP.4(8) amendment for it to
enter into force. On face value, this does not appear
to be a prohibitively large number. However, uptake
of LP.4(8) has been slow. In the five years since the
LP.4(8) amendment was negotiated, only five parties
have accepted it (Estonia, Finland, the Netherlands,
Norway and the United Kingdom).417 The amendment
is therefore unlikely to enter into force and become an
operative part of the London Protocol anytime soon.
Even if the amendment enters into force, its capacity
to govern marine geoengineering activities will
not extend to the activities of all states. The LP.4(8)
amendment can only bind states that are party to the
London Protocol.418 As noted above, this is currently
only 53 states. This number is significantly less than the
410 See e.g. Sabine Fuss et al, “Betting on negative emissions” (2014) 4 Nature
Climate Change 850; Kevin Anderson & Glen Peters, “The trouble with
negative emissions” (2016) 354:6309 Science 182.
414 See also Karen N Scott, “Regulating Ocean Fertilization under International
Law: The Risks” (2013) 2 Carbon Climate L Rev 108 at 116.
411 Resolution LP.1(1) on the Amendment to Include CO2 Sequestration in
Sub-Seabed Geological Formations in Annex 1 to the London Protocol
(adopted 2 November 2006) (LC-LP.1/Circ.5), online: <www.imo.org/en/
KnowledgeCentre/IndexofIMOResolutions/London-Convention-LondonProtocol-(LDC-LC-LP)/Documents/LP.1(1).pdf>; Resolution LP.3(4) on the
Amendment to Article 6 of the London Protocol (adopted 30 October 2009).
415 See also Scott, “Geoengineering and the Marine Environment”, supra note
390 at 461.
416 IMO, “Status of IMO Treaties”, online: <www.imo.org/en/About/
Conventions/StatusOfConventions/Documents/Status%20-%202019.pdf>.
417 Ibid at 558.
412 UNFCCC, supra note 2, art 2.
418 See also Scott, “Geoengineering and the Marine Environment”, supra note
390 at 461.
413 Res LP.4(8), supra note 39 at Annex 5, para 28.
47
Governance of Marine Geoengineering
87 states in the London Convention,419 and represents
only one-quarter of the world’s states. As illustrated in
Figure 3 above, several key states (i.e., those with likely
capacity to engage in marine geoengineering activities)
are not bound by the London Protocol, including India,
Indonesia, Malaysia, Russia and the United States.
Furthermore, of those states in the London Protocol,
the LP.4(8) amendment will only bind those states that
accept it.420 The only key state to accept the LP.4(8)
amendment so far is the United Kingdom. As things
stand, the LP.4(8) amendment is therefore unlikely
to bind all key states that may engage in marine
geoengineering.421 This detracts from the amendment’s
capacity to govern marine geoengineering activities.
The capacity of LP.4(8) to bolster the capacity of
international law to govern marine geoengineering
technologies is significantly limited. The amendment
has some capacity to adapt to new technologies
and changes in scientific understandings. However,
this feature cannot help the LP.4(8) amendment to
overcome the shortcomings discussed above. For
the above reasons, international policy makers will
likely find it difficult to rely on this amendment alone
to comprehensively govern marine geoengineering
activities. It is therefore important to look beyond
the London Protocol and to consider how other
rules and regimes in international law might be
developed to contribute to the governance of marine
geoengineering activities. Current efforts to negotiate a
new international agreement to protect biodiversity in
areas beyond national jurisdiction (i.e., the high seas)
may provide an important opportunity to do this.
419 As of October 16, 2019, 87 states are contracting parties to the London
Convention. IMO, “Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter”, online: <www.imo.org/en/OurWork/
Environment/LCLP/Pages/default.aspx>.
420 London Protocol, supra note 264, art 21.
421 See also Ginzky & Frost, supra note 371 at 92.
48
Biodiversity Beyond National Jurisdiction —
An Opportunity to Strengthen Marine
Geoengineering Governance under
International Law?
A new agreement for BBNJ is not likely to provide
a perfect solution to the challenges of marine
geoengineering governance. As a new agreement,
it will face many similar hurdles to the LP.4(8)
amendment to the London Protocol, that is, scope,
membership and entry into force. However, despite
these limitations, it is essential that geoengineering
scientists and governance experts actively engage
with negotiation of this new agreement. This
is to ensure that whatever new rules might be
developed through BBNJ negotiations will enhance
the capacity of international law to govern marine
geoengineering activities and are not overly prohibitive
of responsible research and development.
Negotiations are presently under way to establish
a new agreement under the LOSC aimed at the
conservation of marine biodiversity beyond
national jurisdiction (BBNJ).422 If successfully
negotiated, this agreement will establish new rules
and obligations for activities on the high seas. This
section considers whether the negotiation of this
new agreement has the potential to fill some of
the gaps in the existing patchwork of international
law rules governing activities in the world’s oceans
and enhance the capacity of the international law
system to govern marine geoengineering activities.
422 Development of an international legally-binding instrument under the United
Nations Convention on the Law of the Sea on the conservation and sustainable
use of marine biological diversity of areas beyond national jurisdiction, GA
Res 69/292, UNGAOR, 69th Sess, UN Doc A/Res/69/292 (2015).
49
Governance of Marine Geoengineering
An Overview of BBNJ
the marine environment of the high seas.428 This
includes specifying thresholds and criteria for when
an EIA is required,429 provisions to address cumulative
impacts from activities,430 and establishing procedures
for the preparation and content of an EIA.431 The new
agreement may also list activities that automatically
require an EIA.432 The development of more specific
EIA rules and procedures for activities on the high seas
would fill a considerable gap in the existing patchwork
of international oceans governance, described above.
These rules have the potential to provide states,
researchers and policy makers with more specific
guidance on how EIAs ought to be conducted for
marine geoengineering activities in high-seas areas.
The process to develop a BBNJ agreement was initiated
by the United Nations General Assembly in its 2015
resolution 69/292.423 This resolution established a
preparatory committee open to all states to participate
in and develop a draft of a new treaty. The preparatory
committee adopted a set of recommendations to
form a draft text in July 2017.424 States participated
in the first round of negotiations in September 2018,
followed by a second round in March 2019 and a
third in August 2019; a final round is scheduled to
take place in the first half of 2020.425 A more detailed
draft text of the new agreement has been made
available, which includes different governance options
for negotiation.426 Although the precise content
of the new agreement remains unsettled, there is
undoubtedly a considerable degree of momentum
behind the development of a new BBNJ agreement.
Third, the BBNJ agreement intends to create rules
for capacity building and the transfer of marine
technologies.433 The precise content of these rules
has yet to be agreed, but their broad objective will
be to support states to achieve “conservation and
sustainable use of biological diversity in areas beyond
national jurisdiction.”434 This might be achieved
through capacity-building mechanisms that facilitate
the transfer of marine technology.435 Such rules could
potentially assist developing states to contribute to
marine geoengineering research and develop their
capacity to participate in any eventual deployment
activities. A new agreement for BBNJ could therefore
have significant implications for marine geoengineering
research, field testing and eventual deployment.
The BBNJ agreement is intended to establish rules for
various issues relating to activities in or affecting areas
of the marine environment of the high seas. These
issues were set out in the preparatory committee’s
2017 recommendations and have since been fleshed
out in more detail in the 2019 draft. The draft rules
pertinent to marine geoengineering activities are
as follows. First, the agreement aims to establish
area-based management tools for activities in the
high seas, such as rules for establishing marine
protected areas.427 Parties are yet to agree on the
precise objectives and operation of such tools, but
marine protected areas typically involve significant
restrictions on fishing and other extractive or harmful
activities in a defined area of the ocean. Such rules
could have significant implications for where marine
geoengineering activities can be conducted.
BBNJ and Geoengineering
Governance
The potential for the new BBNJ agreement to
contribute to geoengineering governance has already
been identified by several states and non-governmental
organizations (NGOs) in preparatory committee
meetings. In 2016, the African Group suggested that
marine geoengineering activities in high-seas areas
Second, the BBNJ agreement aims to establish detailed
EIA rules for activities conducted in, or likely to affect,
423 Ibid.
424 Report of the Preparatory Committee established by General Assembly
resolution 69/292: Development of an international legally binding
instrument under the United Nations Convention on the Law of the Sea on
the conservation and sustainable use of marine biological diversity of areas
beyond national jurisdiction, UNGAOR, UN Doc A/AC.287/2017/PC.4/2
(2017) at part III [Preparatory Committee Recommendations].
428 Draft BBNJ Agreement, supra note 426, Part III.
429 Ibid, art 24.
430 Ibid, art 25.
425 Intergovernmental Conference on Marine Biodiversity of Areas Beyond
National Jurisdiction, online: <www.un.org/bbnj/>.
431 Ibid, art 35.
426 Draft Text of an agreement under the United Nations Convention on
the Law of the Sea on the conservation and sustainable use of marine
biological diversity of areas beyond national jurisdiction, UNGAOR, A/
CONF.232/2019/6 (17 May 2019) [Draft BBNJ Agreement].
432 Ibid, art 29.
433 Ibid, Part V.
434 Ibid, Preparatory Committee Recommendations, supra note 424, art 6.1.
427 Preparatory Committee Recommendations, supra note 424, art 4; Draft BBNJ
Agreement, supra note 426, Part III.
435 Draft BBNJ Agreement, supra note 426, arts 43–46.
50
Biodiversity Beyond National Jurisdiction — An Opportunity to Strengthen Marine Geoengineering Governance under International Law?
should be specifically listed under the new agreement
as automatically requiring an EIA.436 In 2017, the High
Seas Alliance, an international environmental NGO,
argued that EIAs relating to geoengineering proposals
should be subject to an international decision-making
process under the BBNJ.437 These examples suggest
that, although the BBNJ agreement is intended to be
broad in its scope, some states and NGOs may use the
negotiation process as a vehicle to develop new rules
pertinent to marine geoengineering governance.
The negotiation of a new BBNJ agreement
presents both an opportunity and a risk for marine
geoengineering governance. The opportunity is
that a new agreement has the potential to fill key
gaps in the existing international law framework
for marine geoengineering activities in high-seas
areas.438 In particular, an agreement on BBNJ could
result in more detailed EIA rules that are easier to
operationalize for marine geoengineering activities.
There is, however, a risk that new rules under
the BBNJ could be overly restrictive and prevent
responsible research and development of marine
geoengineering. That is, they might not necessarily
be “fit for purpose” when it comes to the bigger
picture of marine geoengineering governance.
Given that this is an agreement to protect biological
diversity in the world’s oceans, and not an agreement
under the auspices of the UNFCCC, there is a further
risk that rules may be developed that do not allow
for risk-risk trade-offs to be made between the
risks of marine geoengineering and the risks of
climate change under business-as-usual scenarios.
This risk is not unfounded, as recent attempts
to govern geoengineering activities under the
CBD and the London Protocol have also failed to
develop mechanisms to allow for risk-risk tradeoffs. It is therefore essential that experts in marine
geoengineering science and governance actively engage
in the development of this new agreement and be
consulted in further drafting and negotiation processes.
436 “Summary of the Second Session of the Preparatory Committee on Marine
Biodiversity beyond Areas of National Jurisdiction, 26 August–9 September
2016”, IISD Reporting Services Earth Negotiations Bulletin, online: <http://
enb.iisd.org/vol25/enb25118e.html>.
437 “Summary of the Fourth Session of the Preparatory Committee on Marine
Biodiversity beyond Areas of National Jurisdiction, 10–21 July 2017”, IISD
Reporting Services Earth Negotiations Bulletin, online: <http://enb.iisd.org/
vol25/enb25141e.html>.
438 See also Scott, “Mind the Gap”, supra note 307 at 53–54.
51
Conclusion
The 2015 Paris Agreement has set a collective global
goal of holding temperatures to between 1.5 and
2oC above pre-industrial levels. However, after more
than two decades of UN negotiations, global GHG
emissions continue to rise.439 Current projections
indicate that even with full implementation of Paris
Agreement pledges, the planet is on a pathway to
a temperature increase of approximately 3.2oC by
2100, well beyond what is considered climatically
safe. As discussed in the first section of this report,
most integrated assessment model runs that hold
temperatures to within 1.5 and 2oC contemplate
large-scale deployment of technologies to draw
CO2 from the atmosphere. It is therefore becoming
increasingly clear that countries must expedite efforts
to reduce their GHG emissions, but that CDR will
almost assuredly be needed to hold climate change
within safe limits. Unlike CDR, SRM does not feature
in the integrated assessment models. However, it
may also have an important role in preventing global
temperatures from overshooting the Paris targets.
To date, sulfur aerosol injection and BECCS
proposals have taken centre stage in academic and
policy discussions on geoengineering. However, as
described above, there are numerous marine CDR
and SRM geoengineering proposals that also have the
potential to address anthropogenic climate change.
This report examined the following key proposals:
MCB, microbubbles, OIF, artificial upwelling/
downwelling, AOA and blue carbon enhancement.
These proposals are diverse in terms of their purpose,
scale of application, likely effectiveness, levels
439 See IPCC, Global Warming of 1.5°C, supra note 8 at 1.
53
Governance of Marine Geoengineering
international law rules on transboundary harm to
global commons are binding on all states, but similarly
suffer from a lack of specificity. Rules of international
law emanating from regional or sectoral agreements
generally have greater specificity, but restricted
participation and scope of geographical application.
The LP.4(8) amendment to the London Protocol is a
case in point. It was negotiated specifically to govern
marine geoengineering activities, but it does not
have nearly enough ratifications to enter into force.
The fourth section of the report highlights further
challenges that significantly limit the capacity of the
LP.4(8) amendment to govern marine geoengineering
activities. Together, the third and fourth sections
illustrate that applying this patchwork of rules
from the international law system to a specific
marine geoengineering activity is a complex task
that is not conducive to providing clear guidance
to states, researchers and funding bodies.
of environmental and social risks, and levels of
requisite international cooperation. Some marine
geoengineering techniques, such as kelp farming,
might be carried out purely within domestic waters,
with little risk that the effects might spread beyond
these areas. However, other marine geoengineering
proposals, such as OIF, AOA, MCB and marine
microbubbles, involve environmental and/or social
risks that are likely to have impacts in transboundary
or high-seas contexts. If marine geoengineering is to
contribute to the suite of climate change response
measures (i.e., mitigation, adaptation, technology
transfer, and financing), it will need to move beyond
the laboratory to small-scale field testing, largescale field testing and eventual deployment. As the
history of OIF research demonstrates, field testing
and deployment of marine geoengineering techniques
that have transboundary and/or high-seas impacts
will place new and significant demands upon the
international law system to provide governance
of their potential risks and opportunities.
With an eye to the future, the fifth section of this report
examines negotiations that were recently launched
under the LOSC to establish a new global treaty on
conservation of marine biological diversity in areas
beyond national jurisdiction. Under the international
law system, the high-seas areas have traditionally had
the least-developed rules of governance for resource
use, and hence are most vulnerable to exploitation.
The BBNJ negotiation process has therefore been
launched to develop new rules for high-seas areabased management, EIA and capacity building/
technology transfer to developing countries. While
the BBNJ negotiations are at an early stage, the fifth
section outlines how marine geoengineering activities
have been raised by several states and NGOs as a
topic for consideration. The BBNJ negotiation is both
an opportunity and a risk for marine geoengineering
governance. A new agreement has the potential to
fill key gaps in the existing international law for
marine geoengineering activities in high-seas areas;
however, it is also important that any BBNJ treaty is
not overly restrictive in terms of responsible research
and development of marine geoengineering in highseas areas. Recent attempts to govern geoengineering
activities under the CBD and the London Protocol
have failed to develop mechanisms to allow for
risk-risk trade-offs. It is therefore essential that
experts in marine geoengineering science and
governance actively engage in the negotiation of
any BBNJ agreement to ensure that its rules are
appropriate for marine geoengineering governance.
As illustrated by the third section of this report,
the international law system is based upon state
sovereignty (i.e., domestic jurisdiction over land,
internal waters, territorial seas and EEZ) and operates
primarily on the consent of states to various treaties
and rules of customary international law. The
international law system has, over time, developed
various rules in response to issues affecting the oceans,
such as maritime access, fisheries management
and pollution, resulting in a patchwork of global
framework agreements, sectoral agreements and
customary international law rules. This patchwork
of rules for ocean governance contains several
bodies of rules that might apply in governing marine
geoengineering activities. This includes rules under
global agreements, such as the LOSC, sectoral
agreements such as the London Convention and
Protocol, CCAMLR and the Madrid Protocol to the
Antarctic Treaty, regional seas agreements and RFMOs.
However, these bodies of rules were negotiated
for quite different purposes, and none were
specifically developed for the governance of marine
geoengineering. The extent to which this patchwork
of rules might contribute to marine geoengineering
governance will vary, depending on the purpose
of an activity, where it is conducted, which state is
responsible for the activity, and the types of impacts
it is likely to have. The global framework agreements
generally have wide coverage (i.e., membership of
most states, including key geoengineering states), but
lack specificity in their obligations. The customary
Marine geoengineering poses a new set of challenges
that international law must adapt and respond to.
54
Conclusion
These challenges include the environmental and
social risks posed by individual proposals. The LP.4(8)
amendment to the London Protocol demonstrates that
existing international agreements have the capacity
to respond to these challenges. However, the most
significant governance challenge stems not from
the proposals themselves, but from climate change
pathway models and policy. Rapid and dramatic cuts
in GHG emissions alone are unlikely to keep global
temperatures within safe limits, and geoengineering
technologies may therefore have an essential role to
play in meeting the temperature targets set by the
Paris Agreement. This reality must be acknowledged
by any new attempts in international law to govern
marine geoengineering. Moving forward, states,
policy makers and international lawyers will need
to develop tools that can balance the individual
risks of marine geoengineering proposals against
the imperative to address climate change.
Authors’ Note
We would like to acknowledge and thank Jan
McDonald, Marcus Haward, Chris Vivian and the
(anonymous) reviewers for their kind advice and
helpful comments on aspects of this report.
55
About the Authors
of International Law Oceans and International
Environmental Law Interest Group and a member of
the Centre of Marine Socioecology. She is admitted as
a solicitor to the Supreme Court of New South Wales.
Kerryn Brent is a lecturer in the Faculty of Law at
the University of Tasmania, and a deputy director
of the Australian Forum for Climate Intervention
Governance, Faculty of Law, University of Tasmania.
Kerryn researches in the field of international
environmental law, specializing in the governance
of solar radiation management (SRM) and carbon
dioxide removal (CDR) technologies. In 2017, Kerryn
was awarded her doctorate on the topic of customary
international law and the governance of stratospheric
aerosol SRM proposals. Since then, her research has
also focused on the governance of marine SRM and
CDR technologies. Her research has been published
in leading international journals, including Nature
Climate Change, and she has been invited to present
her research on geoengineering and international
law in Australia and overseas. Kerryn is currently
co-chair of the Australia and New Zealand Society
Wil Burns is a senior fellow at the Centre for
International Governance Innovation, and professor
of research and founding co-director of the Institute
for Carbon Removal Law & Policy at American
University’s School of International Service in
Washington, DC. He is co-chair of the International
Environmental Law Committee of the American branch
of the International Law Association. Previously,
he served as the founding co-executive director of
the Forum for Climate Engineering Assessment, a
scholarly initiative of the School of International
Service at American University. He also served as the
director of the Energy Policy & Climate program at
57
Johns Hopkins University in Washington, DC. Prior
to becoming an academic, he served as assistant
secretary of state for public affairs for the State of
Wisconsin and worked in the non-governmental
sector for 20 years, including as executive director of
the Pacific Center for International Studies, a think
tank that focused on implementation of international
wildlife treaty regimes, including the Convention
on Biological Diversity and the International
Convention for the Regulation of Whaling. He is
also the former president of the Association for
Environmental Studies & Sciences, former co-chair of
the International Environmental Law interest group of
the American Society of International Law and chair
of its International Wildlife Law Interest Group. He
served as founder and editor-in-chief of the Journal
of International Wildlife Law & Policy and Case Studies
in the Environment. He has published more than 80
articles and chapters in law, science and policy journals
and books, and has co-edited four books. He holds
a Ph.D. in international environmental law from the
University of Wales-Cardiff School of Law. His current
areas of research focus are climate geoengineering,
climate loss and damage, and the effectiveness of
the European Union’s Emissions Trading System.
Jeffrey McGee is an associate professor in climate
change, oceans and Antarctic law at the Faculty of
Law and Institute for Marine and Antarctic Studies
at the University of Tasmania. He is also director
of the Australian Forum for Climate Intervention
Governance at the University of Tasmania. Jeff serves
on the advisory boards of the Forum for Climate
Engineering Assessment and the Institute for Carbon
Dioxide Removal Law and Policy at American
University in Washington, DC. He is an assistant editor
of the journal Carbon and Climate Law Review and
serves on the editorial board of Review of European
Comparative and International Environmental Law,
International Environmental Agreements: Politics, Law,
Economics and Case Studies in the Environment.
58