Robert C Beckman and Director

Blue Economy, Green Grow Technology-led Marine Economy Development

Forum of Marine Science and Technology Xiamen, 2-3 November 2012

International Regulation of Low-carbon Marine Economy Development

Youna Lyons Senior Research Fellow

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Legal instruments : a historical perspective of the development of

international environmental law and the law of the sea

Part 1

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1. 1972 Stockholm Conference on the Human Environment

2. 1982 UN Convention on the Law of the Sea (UNCLOS)

3. 1992 UN Conference on Environment and Development (Earth Summit, Rio de Janeiro)

4. 2002 World Summit on Sustainable Development (Johannesburg Summit)

UNCLOS and Global conferences on Environment

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States have, in accordance with the Charter of the United Nations and the principles of international law,

the sovereign right to exploit their own resources pursuant to their own environmental policies,

and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Principle 21, 1972 Stockholm Declaration

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1973 International Convention for the Prevention of Pollution by Ships (MARPOL)

- MARPOL is the main IMO Convention covering prevention of pollution of the marine environment by ships from operational or accidental causes – Its 6 regularly modified annexes contain specialized regs;

- Annex VI concerns the prevention of air pollution from ship and entered into force on 19 May 2005

Post-Stockholm Pollution Conventions 1/2

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1972 London Convention

Convention on the Prevention of Marine Pollution from Dumping of Wastes and Other Matter, 1972

Adopted a few months after the Stockholm Conference

Designed to be replaced by the 1996 London Convention Protocol

Not originally an IMO Convention, but secretariat of the Convention is now the IMO

Post-Stockholm Pollution Conventions 2/2

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Negotiations began in 1973, just one year after the 1972 Stockholm Conference

Took into account the existing conventions on the marine environment – 1972 London and MARPOL 73/78

Part 12 on the protection of the marine environment was a major achievement of the conference

1982 United Nations Convention on the Law of the Sea

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1. 1992 United Nation Framework Convention on Climate Change (UNFCCC)

2. 1992 Convention on Biological Diversity

3. 1992 Convention to Combat Desertification

4. Rio Declaration (Resolution)

5. Agenda 21 (Action plan) (Chapter 17, Protection of the Oceans)

1992 UN Conference on Environment and Development

Principle 15

In order to protect the environment, the precautionary approach

shall be widely applied by States according to their capabilities.

Where there are threats of serious or irreversible damage,

lack of full scientific certainty shall not be used as a reason for

postponing cost-effective measures to prevent environmental

degradation.

Rio Declaration Principle 15 - Precautionary Approach

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Entered into force in 1994, near universal membership

Objective to stabilize greenhouse gas concentrations "at a level that would prevent dangerous anthropogenic (human induced) interference with the climate system."

A Framework Convention followed by 1997 Kyoto Protocol

Does not include reduction of emissions from shipping which are referred to negotiations trough the IMO (art.2(2) and art. 1(a)(vii))

1992 United Nations Framework Convention on Climate Change

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Pollution through Atmosphere/ Renewable energy from ocean

currents and tides

Part 2:

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Pollution of the marine environment means the introduction by man, directly or indirectly, of substances or energy into the marine environment (…) which result 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 (art.1(4))

UNCLOS Art 1(4): definition of pollution of the marine environment

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States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircrafts of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures . . .. (art.212(1))

Competent International Organizations – IMO for ships / ICAO for aircraft

UNCLOS : Obligation to take adopt laws and regulations and take other measures

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States shall enforce (…) such laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution from of the marine environment from or through the atmosphere . . . (art. 222)

UNCLOS : Obligation to enforce such laws and take other measures

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First adopted in 1997 (into force in 2005) to limit sulphur oxides and nitrous oxides as well as ozone depleting substances Introduction of Emission Control Areas (ECAs) to reduce

emissions further in designated areas Revised annex in 2008 to strengthen emissions limits (into

force in 2010) Does not concern all Greenhouse Gas Emissions and

especially not the most important and potent one: Carbon Dioxide (CO2) and methane But it reduces nitrogen oxide emissions: shipping is 7% of

global emissions

IMO – MARPOL Annex VI: Air pollution from ships

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Adopted in 2011

Mandatory technical measures for new ships and operational reduction measures for all ships

Energy Efficiency Design Index (EEDI) for new ships

Ship Energy Efficiency Plan (SEEMP) for all ships

Entry into force through tacit acceptance procedure in Jan. 2013.

IMO – MARPOL Annex VI, new Chap. 4: “Regulations on energy efficiency for ships”

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Measures in place to date are expected to be insufficient to satisfactorily reduce Greenhouse Gas emissions from international shipping

Market-based mechanisms are under consideration

Last MEPC meeting (October 2012) discussed it again

Several possibilities are still being explored and no clear path has been chosen

Unclear if and when CO2 emissions will be limited

IMO – Discussions on limitation of Greenhouse Gas emissions from shipping

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UNCLOS : Renewable energy from ocean and tides

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UNCLOS : Rights of Coastal State re renewable energy from ocean and tides

Wind-turbines, harvesting of wave energy and current power, ocean thermal energy conversion, tidal energy, submarine nuclear plants

Rights and obligations of states in the oceans depends primarily upon where the activities take place

Territorial sea - coastal State has sovereignty, subject to rules on passage of ships

EEZ – coastal State has sovereign rights with regard to activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds

The Area

200 M

Sea Level

12 M Contiguous zone

Territorial sea

12 M

Exclusive Economic Zone (EEZ)

Water Column, Sea-bed, Subsoil

Rise Deep Ocean

Inte

rnal

wat

ers

Terri

toria

l Sea

Bas

elin

e

(Extended Continental Shelf)

Continental Shelf Sea-bed, Subsoil, Sedentary Species

High Sea

Shelf

Lower Slope Animation by Arsana & Schofield, 2012

Upper Slope Plateu

or Terrace

UNCLOS : differentiated jurisdiction over different maritime zones

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Two geo-engineering solutions:

Ocean Fertilization and

Carbon Sequestration

Part 3

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Is a process by which products are spread in the ocean to stimulate primary productivity (photosynthesis) because it fixes carbon dioxide and stores it in the ocean while producing oxygen

Dumping of large quantities of iron have been considered for this because in some areas photosynthesis is limited by shortage of iron

Many scientists are concerned about possible harmful effects from such activities

Ocean Fertilization 1/6 What is it?

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Is it pollution or dumping under UNCLOS? Pollution of the marine environment:

Ocean Fertilization 2/6 – Is it pollution or dumping?

Dumping ?:

Introduced by man

Directly in the ocean

Likely to result in deleterious effects

Ecological risk is clear but is it outweighed by the benefits for the climate?

Yes

Yes

Deliberate disposal of waste at sea

Debated as ‘fertilizer’ is not thrown in the ocean for “disposal” but to serve a specific purpose

• If it is not “dumping”, which article of UNCLOS would apply?

• Article 194: 1. States shall take, .. all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, . .

• Article 196: 1. States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, . . .which may cause significant and harmful changes thereto.

Ocean Fertilization 3/6 – UNCLOS Articles 194 and 196

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COP of London has decided that fertilization of the ocean falls within the scope of 1972 LC and 1996 LP In 2007, Scientific groups made a statement of concern on iron

fertilization of the ocean for CO2 sequestration LC-LP COP resolutions: based on precautionary approach and

current state of knowledge, fertilization for scientific research is allowed but no large scale fertilization LC-LP COP (2010): Assessment framework for scientific research

involving ocean fertilization Various solutions are being considered for the LC-LP to further

regulate fertilization of the ocean and other geo-engineering activities through mandatory provisions

Ocean Fertilization 4/6 Views of the COP of the London Convention (LC) and Protocol (LP)

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COP 9 CBD (2008) endorses COP LC-LP decisions on ocean fertilization and urges CBD Member States to act accordingly

Reiterates that only small scale scientific research studies can be done given the precautionary approach, need for adequate scientific basis to justify such activities and regulatory mechanisms in place

Prior assessment of potential impacts needed prior to research studies

COP 10 CBD (2010) reiterated same Need for further cooperation with LC-LP

Ocean Fertilization 5/6 Parallel views of the COP of the Convention on Biological Diversity (CBD)

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UN General Assembly acknowledges and encourages precautionary notes and research undertaken by LC-LP and CBD

LC-LP 33rd COP (Nov. 2011) decided to investigate the possibilities for the Ocean Fertilization Assessment Framework to involve CBD and UNESCO-IOC for consistency and common reference materials

UNCLOS provides the framework Geo-engineering technologies can impact on the subject matter

covered by other treaties: e.g. Ramsar Convention on the protection of wetlands and Bonn Convention on migratory species

Cooperative mechanisms between treaties are needed

Ocean Fertilization 6/6 Prospects for future developments

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CO2 sequestration in sub-seabed geological formations Process consisting of separation of CO2 and transport to an offshore

geological formation for long-term isolation from the atmosphere - Risk of leakage into the marine environment

• Involves placing the CO2 in places like abandoned offshore oil wells

• Some concern that it could pollute the marine environment • Issue is whether it is covered by UNCLOS

Carbon dioxide sequestration – 1/3 What is it?

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• Article 208. Pollution from Seabed Activities Subject to National Jurisdiction – States, acting through competent international organizations

or diplomatic conference – Shall establish global and regional rules, standards and

recommended practices and procedures – To prevent, reduce and control pollution of the marine

environment arising from or in connection with seabed activities subject to their jurisdiction

• Carbon sequestration a “seabed activity” • Problem is that there is no competent international organization

responsible for seabed activities subject to national jurisdiction

Carbon dioxide sequestration – 2/3 Article 208 of UNCLOS

Definition of dumping in 1972 LC is limited to deliberate disposal of waste at sea (NOT in sub-seabed)

1996 London Protocol amended to expand definition of dumping to include disposal of waste into the seabed and subsoil

LC-LP COP 2007: Adoption of Guidelines for assessment of carbon dioxide streams for disposal into sub-seabed geological formations

Some doubt on legal status of Guidelines: Some argue that outside scope of London Convention Would not be binding on States not parties to 1996 Protocol

Carbon Dioxide Sequestration – 3/3 Is Dumping under 1996 LC Protocol

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Conclusions on International Law-Making Process

Part 4

• UNCLOS provides legal framework which enables the international community to adopt new global rules and standards to protect the marine environment

• UNCLOS supplemented by other conventions such as MARPOL and UNFCC for specific activities

• Law of the Sea is incorporating principles in International Environmental Law such as the Precautionary Approach

• Air Pollution from ships – new global rules and standards being adopted by IMO under the framework established in UNCLOS

• Dumping – 1996 Protocol updated 1972 Convention – COP is taking decisions that arguably go beyond “dumping”

Conclusions on air pollution and climate change

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1. Have been classified as “dumping” by COP of London Protocol

2. London Convention & Protocol intended to address pollution of ME from dumping– not to regulate all activities which pollute ME

3. Not all States are represented at COP of London Protocol

4. Might be better to classify these activities as pollution from new technologies (Art 196) or pollution from seabed activities (Art 208)

5. To keep pace with new technologies which cause pollution of the marine environment, it may be necessary to adopt regional or global rules, standards, procedures and practices

6. Better to adopt global rules and standards at global diplomatic conference where all states are represented

Conclusions on Ocean Fertilization and Carbon Dioxide Sequestration

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Robert Beckman and Youna Lyons

Centre for International Law (CIL) National University of Singapore

Email: CILDIR@NUS.EDU.SG CILLBLY@NUS.EDU.SG Website: WWW.CIL.NUS.EDU.SG

Thanks for Your Attention

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