Regulating Scientific Ocean Fertilization under the Law of the Sea Bremen Environmental Law Conference 2011 Till Markus Forschungsstelle für Europäisches Umweltrecht Bremer Graduiertenkolleg für Meereswissenschaften (GLOMAR) Universität Bremen
Contents From Rundamental Research Towards Climate-Enginering? General Rules and Principle Under International Law Regulation of Scientific Ocean Fertilization Experiments Under the London Convention and Protocol Model Permit Regime for Climate-Engineering R&D? Conclusions
Climate-Engineering or Fundamental Research Duration & Scale Societal interests in R&D Culture & Fundamental Rights Last exit option Science has to take risks! Dangers inherent research Manhatten dilemma! Prevent unilateral action Moral Harazrd: Reduce incentives to mitigate Fundamental Research Climate Engineering
General rules and Principles under Framework Regimes Applicability of: Customary International Law: no transboundary harm, prior notification, consultation, and cooperation, EIA UNFCCC, CBD, UNLCOS, Guiding principles: Precaution, sustainability If not adequately governed by these instruments, their development must be considered
Identifying a Forum for the Development of Law on OF 2007 Statement of Concern CBD-decisions IX/16 (2008) and X23(2010) 2008 non-binding Resolution OF falls within the scope of LC/LP (mandate) Prohibit OF other than legitimate scientific research Assessment framework decides on legitimacy of research, i.e. whether it is not contrary to the aim of
Scope and Objectives of the LC/LP Two Instruments - One Family! London Convention (in force since 1972, 86 Parties) One of the first environmental agreements to protect the marine environment from human activities Promote effective control of all sources of pollution and particularly prevent pollution by dumping, (Arts. I LC, 2 LP) London Protocol (in force 2006, 37 Parties) Modernize the Convention and eventually replace it
Ocean Fertilization Under the LC/LP Regulatory approach under London Convention and Protocol London Convention: Black, Grey & White List London Protocol: Reverse List Approach Ocean fertilzation as dumping (Art. III(1)LC & Art. 1.4. LP)? any deliberate disposal at [into the] sea of wastes and other matter Dumping does not include: placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of the Convention (Protocol).
Indeterminacy Indeterminacy but damages cannot be ruled out! Likely to depend on scale & duration Resolution LC-LP.1(2008): Legitimate scientific [ ] regarded as placement [ ] Legitimate scientific research is defined as those proposals that have been assessed under framework (adopted in November 2010) Assessment framework includes tools for determining whether OF is contrary to the aims of and thus legitimate SR OF activities other than legitimate scientific research should not be allowed
Criteria to Assess Regulatory Options Global, transparent and effective control and regulatory mechanism for ocean fertilization activities and other activities Compatibility between the LC/LP Consistency with prior work and resolutions on OF Flexibility and adaptability to address emerging activities Compatibility with the assessment framework 2010 Tacit agreement not to amend LC National regulatory implications Take into account work undertaken in other fora, in particular, under the CBD and in UNESCO-IOC Be compatible with higher ranking law, i.e. UNCLOS
10 Regulatory Options & Assessment Framework for OF Option 1: Statement of concern Option 2: Simple resolution Option 3: Simple resolution built upon LC-LP.1(2008) Option 4: Interpretative resolution, Art. 31(3)(a) VCT Option 5: An amendment to Annex I to the London Protocol Option 6: Amendments to Annex I and the definition of dumping Option 7: Amendments to definition of dumping and exclusion Option 8: A new, stand-alone article in the Protocol on OF NZ & Aus: Amendment to Annex I of the Protocol Canada: Establish a Placement Regime!
The Assessment Framework A Tool to Determine Legitimate Scientific Research Two-Step: 1. Initial Assessment (legitimacy) Proposal should be designed to answer questions that will add to the body of scientific knowledge [ ] and not reasonably be achieved by other methods Economic interests should not influence the design, conduct and/or outcomes of the proposed activity; no direct economic gains! The proposed activity should be subject to a scientific peer-review at appropriate stages in the assessment process. Proponents shall commit to publish results in p.-rev. scientific journals and make publicly available in a specific time 2. Environmental Impact Assessment (not contrary to the aims )
A Model Regulation for Governing Other CE-Science? Global, transparent and effective control and regulatory mechanism & scientific assessment! Flexibility and adaptability to address emerging activities Permit (Governance before deployment!) Impact assessment Proposal be subject to a scientific peer-review Monitoring, Reporting, data exchange Add to the body of scientific knowledge not reasonably be achieved by other methods No direct economic gains! Proponents shall commit to publish and make publicly available
Conclusions OF as science and as CE-Technique is neither adequately understood nor regulated (yet ) However, a forum to govern OF has been identified Regulation is on the way If regulation is adopted in line with the proposed criteria, it may provide new aspects to the international law on science and emerging CE-Science in the future
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