The International Law of Sub-Seabed Carbon Dioxide Storage · 2006. 12. 8. · The International Law of Sub-Seabed Carbon Dioxide Storage 5 dioxide from a stationary source and its

The International Law of Sub-Seabed Carbon

Dioxide Storage

A Special Report to the MIT Carbon Sequestration Initiative

August 2005

Mark A. de Figueiredo

Massachusetts Institute of Technology Laboratory for Energy and the Environment 77 Massachusetts Avenue, Room E40-455

Cambridge, MA 02139-4307

Tel: (617) 253-3770 Fax: (617) 253-8013 Email: [email protected]

http://sequestration.mit.edu/

I. Introduction................................................................................................................... 4 II. United Nations Convention on the Law of the Sea (UNCLOS)................................... 7

A. Background............................................................................................................. 7 B. The Convention....................................................................................................... 9

1. State Sovereignty and Maritime Interests ....................................................... 10 2. Protection and Preservation of the Marine Environment................................ 12 3. Marine Scientific Research ............................................................................. 12 4. Dispute Settlement .......................................................................................... 13

C. Sub-Seabed Carbon Dioxide Storage in the UNCLOS Regime ........................... 13 1. UNCLOS is applicable to sub-seabed storage because its jurisdiction includes

seabed and subsoil........................................................................................... 13 2. Transport to a storage reservoir via a pipeline from shore would not constitute

“dumping” under UNCLOS............................................................................ 14 3. Carbon dioxide storage using a vessel, platform, or man-made structure at sea

would be defined as “dumping” under UNCLOS, but is not necessarily prohibited. ....................................................................................................... 14

4. Carbon dioxide storage related to the exploration and exploitation of natural resources (i.e. the recovery of oil or natural gas) would come under a state’s sovereign rights............................................................................................... 14

5. Marine scientific research related to carbon dioxide storage would be allowed if conducted in compliance with the protection and preservation of the marine environment. ................................................................................................... 15

6. Clarification may be needed on whether the storage of carbon dioxide may be considered “pollution of the marine environment” as defined by UNCLOS. 15

III. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) ...................................................................................... 15 A. Background........................................................................................................... 15 B. The Convention..................................................................................................... 16

1. Categorization of Wastes ................................................................................ 16 2. Precautionary Approach.................................................................................. 17

C. Sub-Seabed Carbon Dioxide Storage in the London Convention Regime ........... 17 1. Carbon dioxide is not specified in the London Convention Annex I list of

wastes that are prohibited from being dumped. Clarification may be required on whether carbon dioxide would come under the definition of “industrial waste”.............................................................................................................. 17

2. Because the London Convention only addresses the sea and does not specifically address the seabed or subsoil, sub-seabed carbon dioxide storage is probably not governed by the London Convention..................................... 18

3. In the alternative, even if sub-seabed storage is deemed to be governed by the London Convention, transport to a storage reservoir via a pipeline from shore would not constitute “dumping”. .................................................................... 18

4. Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources would not constitute “dumping” under the Convention. ... 18

D. London Protocol.................................................................................................... 19 1. Inclusion of References to Seabed and Subsoil .............................................. 19 2. Categorization of Wastes ................................................................................ 19

The International Law of Sub-Seabed Carbon Dioxide Storage 3

3. Precautionary Approach.................................................................................. 20 4. Polluter Pays Principle.................................................................................... 20 5. Dispute Settlement .......................................................................................... 20

E. Sub-Seabed Carbon Dioxide Storage in the London Protocol Regime ................ 20 1. Unlike the London Convention, the London Protocol explicitly governs the

seabed and subsoil. Therefore, sub-seabed carbon dioxide storage is governed by the London Protocol regime....................................................................... 20

2. Carbon dioxide is not included in the Annex I list of wastes or other matter which are permitted to be dumped.................................................................. 21

3. Transport to a storage reservoir via a pipeline from shore does not constitute “dumping” under the Protocol. ....................................................................... 21

4. Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources does not constitute “dumping” under the Protocol............ 21

5. Sub-seabed carbon dioxide storage from man-made structures at sea would be defined as “dumping” under the London Protocol and therefore prohibited because carbon dioxide is not on the list of wastes or other matter permitted to be dumped....................................................................................................... 21

IV. Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) ................................................................................................. 22 A. Background........................................................................................................... 22 B. The Convention..................................................................................................... 22

1. Pollution from Land-Based Sources (OSPAR Annex I)................................. 23 2. Pollution by Dumping (OSPAR Annex II)..................................................... 23 3. Pollution from Offshore Sources (OSPAR Annex III) ................................... 24

C. Sub-Seabed Carbon Dioxide Storage in the OSPAR Regime and the Report from the Group of Jurists and Linguists ........................................................................ 24 1. The jurisdiction of the OSPAR Convention includes the seabed and subsoil.26 2. Transport to a storage reservoir via a pipeline from land is not prohibited.... 26 3. Placement of carbon dioxide using a pipeline from land that is connected to a

pipeline system in the maritime area is not prohibited. .................................. 26 4. Placement of carbon dioxide from a vessel is prohibited except for the

purposes of a scientific experiment................................................................. 27 5. Placement of carbon dioxide from an offshore installation related to

hydrocarbon production is not prohibited, depending on the source of the carbon dioxide................................................................................................. 27

V. Implications for Current and Prospective Carbon Dioxide Storage Operations......... 28 VI. Conclusion .................................................................................................................. 30 VII. Appendix............................................................................................................ 32

A. Abbreviations........................................................................................................ 33 B. Parties to UNCLOS (as of February 1, 2005)....................................................... 34 C. Parties to London Convention (as of October 14, 2004) ...................................... 36 D. Parties to London Protocol (as of October 14, 2004) ........................................... 37 E. Parties to OSPAR Convention (as of March 9, 2005) .......................................... 38 F. Annex I of London Convention (Black List)........................................................ 39 G. Annex I of London Protocol (White List)............................................................. 42 H. Annex II, Article 3 of OSPAR Convention (White List)...................................... 43

A Special Report to the MIT Carbon Sequestration Initiative 4

THE INTERNATIONAL LAW OF SUB-SEABED CARBON DIOXIDE STORAGE

A Special Report to the MIT Carbon Sequestration Initiative

Mark A. de Figueiredo†

MIT Laboratory for Energy and the Environment August 2005

ABSTRACT Carbon dioxide capture and storage involves the capture of carbon dioxide from a stationary source and its injection into a suitable storage reservoir, such as a sub-terranean or sub-seabed geologic formation. Increasing attention, especially in Europe, is being paid to the use of sub-seabed formations, such as offshore oil and gas reservoirs and deep saline formations. Some international marine conventions would appear to govern the general subject area, including covering sub-seabed geologic formations under the definition of marine environment. As carbon dioxide capture and storage progresses toward large-scale commercialization, there is a need to take into account the international marine agreements that bear upon the technology’s legality, including the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol, which will eventually replace the London Convention), and regional agreements such as the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention). Under all these agreements, there is some method of carbon dioxide storage that would appear to be valid. The injection of carbon dioxide into sub-seabed geologic formations for the purposes of climate change mitigation has already begun in Norway, and there are plans to store carbon dioxide associated with offshore natural gas operations in Norway and Australia. Despite claims to the contrary, these projects appear to be valid under international law.

I. INTRODUCTION In the face of increasing evidence of possible changes in the global climate as a result of anthropocentric causes1 and the expectation that widespread use of fossil fuels will continue for the foreseeable future,2 carbon dioxide capture and storage (CCS) is becoming part of the portfolio of options that many industrialized countries are considering to manage greenhouse gas emissions.3 CCS involves the capture of carbon † Ph.D. Candidate, Technology Management and Policy, Massachusetts Institute of Technology; J.D. Candidate, University of Virginia School of Law. I thank David Reiner and Howard Herzog for their helpful comments. 1 CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS 10-11 (J.T. Houghton et al. eds., 2001). 2 U.S. ENERGY INFORMATION ADMINISTRATION, ANNUAL ENERGY OUTLOOK 5 (February 2005). 3 See, e.g., AUSTRALIAN GOVERNMENT, SECURING AUSTRALIA’S ENERGY FUTURE 143 (2004); Norway State Secretary Øyvind Håbrekke, Address at the OSPAR Workshop on the Environmental Impact of


dioxide from a stationary source and its injection into a suitable storage reservoir, such as a sub-terranean or sub-seabed geologic formation.4 Increasing attention, especially in Europe, is being paid to the use of sub-seabed formations, such as offshore oil and gas reservoirs and deep saline formations.5 In fact, the Norwegian firm Statoil already re-injects by-product carbon dioxide into a saline formation beneath the North Sea as part of its operations at the offshore Sleipner natural gas field.6 CCS has begun to be discussed among governments and scientific groups comprising the international climate policy community, including the Intergovernmental Panel on Climate Change,7 the United Nations Framework Convention on Climate Change,8 and the seventeen-country Carbon Sequestration Leadership Forum.9 Nevertheless, the storage of carbon dioxide in sub-seabed geologic formations has not been specifically addressed in any multilateral environmental agreements that are currently in force. Some /international marine conventions would appear to govern the general subject area, including covering sub-seabed geologic formations under the definition of marine environment. Relevant international conventions include the 1982 United Nations Convention on the Law of the Sea (UNCLOS)10 and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention).11 Regional marine agreements are also relevant to CCS, but are specific to a particular marine environment. For example, the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) is specific to the North-

Placement of Carbon Dioxide in Geological Structures in the Maritime Area (Oct. 26, 2004); U.K. DEPARTMENT OF TRADE AND INDUSTRY, OUR ENERGY FUTURE – CREATING A LOW CARBON ECONOMY 90 (2003); U.S. DEPARTMENT OF ENERGY, OFFICE OF FOSSIL ENERGY, CARBON SEQUESTRATION TECHNOLOGY ROADMAP AND PROGRAM PLAN 9 (2004). 4 See, e.g., Howard Herzog & Dan Golomb, Carbon Capture and Storage from Fossil Fuel Use, in ENCYCLOPEDIA OF ENERGY 277, 280 (C.J. Cleveland et al. ed., 2004), available at http://sequestration.mit.edu/pdf/enclyclopedia_of_energy_article.pdf. 5 U.K. Department of Trade and Industry, supra note 3 at 90; Address by Norway State Secretary Øyvind Håbrekke, supra note 3. 6 Tore Torp & John Gale, Demonstrating Storage of CO2 in Geological Reservoirs: The Sleipner and SACS Projects, 29 ENERGY 1361, 1362 (2004). 7 Intergovernmental Panel on Climate Change, Report of the Nineteenth Session of the Intergovernmental Panel on Climate Change (IPCC), Decision 7, at 7 (2002), available at http://www.ipcc.ch/meet/rep19session.pdf; Intergovernmental Panel on Climate Change Working Group III, Special Report on Carbon Dioxide Capture and Storage, at http://arch.rivm.nl/env/int/ipcc/pages_media/ccs-report.html (last visited Feb. 27, 2005). 8 Report of the Conference of the Parties on its Seventh Session, Part Two: Action Taken by the Conference of Parties, at 50, U.N. Doc. FCCC/CP/2001/13/Add.1 (2001), available at http://unfccc.int/resource/docs/cop7/13a01.pdf. 9 John J. Fialka, Industrial Nations Seek to Cut Emissions, WALL ST. J., June 25, 2003, at B2. See also, Carbon Sequestration Leadership Forum, About the CSLF, at http://www.cslforum.org/about.htm (last visited Feb. 27, 2005). 10 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (1982), reprinted in Official Text of the United Nations Convention on the Law of the Sea, U.N. Sales No. E.83.V.5 (1983) and 21 I.L.M. 1261 (1982) [hereinafter UNCLOS]. 11 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature Dec. 29, 1972, 26 U.S.T. 2406, 1046 U.N.T.S. 120 [hereinafter London Convention].

http://sequestration.mit.edu/pdf/enclyclopedia_of_energy_article.pdf

http://www.ipcc.ch/meet/rep19session.pdf

http://arch.rivm.nl/env/int/ipcc/pages_media/ccs-report.html

http://unfccc.int/resource/docs/cop7/13a01.pdf

http://www.cslforum.org/about.htm


East Atlantic.12 A summary of major regional marine conventions and action plans and their corresponding marine environments is shown in Table 1.

Table 1: Regional Marine Conventions and Action Plans 13

Marine Environment Convention/Action Plan

Antarctic/Southern Ocean CCAMLR Arctic PAME

Baltic Sea Helsinki Convention Black Sea Bucharest Convention

Caspian Sea CEP East Asian Seas COBSEA

Eastern Africa/Western Indian Ocean Nairobi Convention Mediterranean Sea Barcelona Convention North-East Atlantic OSPAR Convention North-East Pacific COCATRAM North-West Pacific NOWPAP

Red Sea/Gulf of Aden Jeddah Convention ROPME Sea/Kuwait Kuwait Convention

South Asian Seas SACEP South Pacific Noumea Convention

South-East Pacific Lima Convention West and Central Africa Abidjan Convention

Wider Caribbean Sea Cartagena Convention The purpose of this paper is to clarify the state of international law with respect to the storage of carbon dioxide in sub-seabed geologic reservoirs. Part II analyzes UNCLOS, which entered into force in 1994. Although 148 countries are bound to UNCLOS,14 it has not been ratified by the United States.15 The United States is bound to the 1958 Geneva Conventions on the Law of the Sea which preceded UNCLOS,16 but has chosen

12 Convention for the Protection of the Marine Environment of the North-East Atlantic, opened for signature Sept. 22, 1992, 32 I.L.M. 1072 [hereinafter OSPAR Convention] 13 See U.N. ENVIRONMENT PROGRAMME, REGIONAL SEAS: STRATEGIES FOR SUSTAINABLE DEVELOPMENT 10-38 (2002). 14 U.N. Division of Ocean Affairs and the Law of the Sea, Chronological List of Ratifications of, Accessions and Successions to the Convention and the Related Agreements (Feb. 1, 2005), at http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm. 15 An international agreement (treaty, convention, etc.) is an agreement between two or more states that is intended to be legally binding. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 301(1) (1987). In the United States, the President has the power, by and with the advice of the Senate, to make treaties. U.S. CONST. art. II, § 2, cl. 2. An agreement enters into force when all the negotiating parties have expressed consent to be bound, or as otherwise provided in the agreement. RESTATEEMNT (THIRD) OF FOREIGN RELATIONS LAW § 312(1) (1987). 16 The 1958 Geneva Conventions on the Law of the Sea are: Convention on the Territorial Sea and the Contiguous Zone, opened for signature Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205; Convention on the Continental Shelf, opened for signature Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311; Convention

http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm


to follow many of the UNCLOS provisions, including those related to maritime commerce.17 UNCLOS establishes an international legal order for seas and oceans, including the seabed and subsoil. Part III of the paper reviews the London Convention, which regulates the pollution of the sea by dumping of wastes and other matter, and the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol), which although not yet in force, is intended replace the London Convention.18 Part IV looks at the applicability of CCS under one particular regional marine agreement: the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),19 including initial views set out by the Group of Jurists and Linguists to the OSPAR Convention on the compatibility of the Convention with CCS under various placement scenarios.20 The OSPAR Convention is particularly relevant because of European interest in sub-seabed storage of carbon dioxide in the North Sea.21 Finally, Part V focuses on the implications of international law on current and prospective carbon dioxide storage operations.

II. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS) A. Background UNCLOS is the result of a series of three conferences on the law of the sea that began in the aftermath of World War II when jurisdictional questions arose regarding ownership of the ocean’s assets.22 The First United Nations Conference on the Law of the Sea (UNCLOS I), held in 1958, resulted in four Geneva Conventions: the Convention on the Territorial Sea and Contiguous Zone;23 Convention on the Continental Shelf;24 Convention on the High Seas;25 and Convention on Fishing and Conservation of Living Resources.26 The Geneva Conventions were ratified by the United States Senate. They

on the High Seas, opened for signature Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82; Convention on Fishing and Conservation of the Living Resources of the High Seas, opened for signature Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S. 285. 17 John R. Stevenson & Bernard H. Oxman, Comment, The Future of the United Nations Convention on the Law of the Sea, 88 AMER. J. INT’L. L. 488, 490 (1994). 18 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 and Resolutions Adopted by the Special Meeting, opened for signature Nov. 7, 1996, 36 I.L.M. 1 [hereinafter London Protocol]. 19 OSPAR Convention, supra note 12. 20 OSPAR COMMISSION, REPORT FROM THE GROUP OF JURISTS AND LINGUISTS ON PLACEMENT OF CARBON DIOXIDE IN THE OSPAR MARITIME AREA (2004). 21 See, e.g., Address by Norway State Secretary Øyvind Håbrekke, supra note 3. 22 The United Nations Convention on the Law of the Sea Hearing Before the House Comm. on Int’l Relations, 108th Cong. 68, 73 (2004) (testimony of Prof. John Norton Moore, University of Virginia School of Law). 23 Convention on the Territorial Sea and the Contiguous Zone, opened for signature Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205. 24 Convention on the Continental Shelf, opened for signature Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311. 25 Convention on the High Seas, opened for signature Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82. 26 Convention on Fishing and Conservation of the Living Resources of the High Seas, opened for signature Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S. 285.


have since been superseded by UNCLOS, however, the United States is bound to the Geneva Conventions because it is not a signatory to UNCLOS. Following UNCLOS I and the Geneva Conventions, the United States initiated discussions to define the maximum breadth of the territorial sea and the extent of navigational freedom through straits.27 This was due to a number of claims against the United States threatening its navigational interests.28 The Second United Nations Conference on the Law of the Sea (UNCLOS II), held in 1960, focused on the limits of the territorial zone and fishing rights, but failed to produce any substantive agreement.29 The Third United Nations Conference on the Law of the Sea (UNCLOS III) met for ninety-three weeks between December 1973 and December 1982, 30 and resulted in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Convention entered into force November 16, 1994, and had 148 parties as of February 1, 2005.31 Under Article 311 of UNCLOS, the Convention prevails over the 1958 Geneva Conventions.32 A few countries, including the United States, have not ratified UNCLOS, but are still bound to the previous Geneva Conventions. The United States’ main concern has been the deep seabed mining and technology transfer provisions of UNCLOS.33 For example, UNCLOS states that deep seabed mining activities “be carried out for the benefit of mankind as a whole…and taking into particular consideration the interests and needs of developing States,”34 with decision making authority granted to an International Seabed Authority.35 The deep seabed mining provisions were renegotiated in a 1994 Agreement that came into force in 1996 and supersedes the deep seabed mining provisions of UNCLOS.36 The Agreement, to which the United States is a signatory, amends some of the discretionary powers of the International Seabed Authority and eliminates mandatory technology transfer provisions.

27 Hearing, 108th Cong. at 73. 28 Id. 29 Amy deGeneres Bennett, Comment, UNCLOS III: Pollution Control in the Exclusive Economic Zone, 55 LA. L. REV. 1165, 1175 (1995). 30 CONGRESSIONAL RESEARCH SERVICE, CRS ISSUE BRIEF FOR CONGRESS: THE LAW OF THE SEA CONVENTION AND U.S. POLICY CRS-1 (Sept. 29, 2003). 31 U.N. Division of Ocean Affairs and the Law of the Sea, supra note 14. 32 UNCLOS, supra note 10, art. 311. 33 President Ronald Reagan remarked that “while most provisions of the draft convention are acceptable and consistent with United States interests, some major elements of the deep seabed mining regime are not acceptable.” President Ronald Reagan, Statement on United States Participation in the Third United Nations Conference on the Law of the Sea (Jan. 29, 1982), available at http://www.reagan.utexas.edu/resource/speeches/1982/12982b.htm. 34 UNCLOS, supra note 10, art. 140. 35 Id. art. 137. 36 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, opened for signature Jul. 28, 1994, U.N. GAOR, 48th Sess., 101st plen. mtg., Annex, U.N. Doc. A/RES/48/263/Annex (1994), reprinted in 33 I.L.M. 1309, Annex at 1313 (1994) [hereinafter Agreement].

http://www.reagan.utexas.edu/resource/speeches/1982/12982b.htm


Although the United States is not a party to UNCLOS, its policy has been to act in a manner consistent with the UNCLOS provisions relating to traditional uses of the sea.37 Some scholars argue that accession of the United States is unnecessary because the United States can rely on customary international law.38 However, other scholars argue that accession is vital to United States national security and economic interests.39 In early 2004, the United States Senate Foreign Relations Committee unanimously recommended that the full Senate give its advice and consent to UNCLOS ratification.40 The Bush Administration is on record as supporting accession to UNCLOS.41 B. The Convention The goal of UNCLOS is to provide a codification of the law of the sea in order to promote “the peaceful uses of the seas and oceans, equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment”.42 UNCLOS is divided into 17 parts and 320 articles. Its jurisdiction includes the seabed, ocean floor and subsoil.43 UNCLOS establishes rules which include state sovereignty and maritime interests, the protection and preservation of the marine environment, marine scientific research, technology transfer, and dispute settlement. Under UNCLOS, dumping is defined as “any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made

37 Ambassador Sichan Siv, Statement in the U.N. General Assembly on Oceans and Law of the Sea (Nov. 27, 2001). 38 See, e.g., The United Nations Convention on the Law of the Sea Hearing Before the House Comm. on Int’l Relations, 108th Cong. 44, 46 (2004) [hereinafter Hearing] (testimony of Frank J. Gaffney, Jr., President, The Center for Security Policy); Hearing, 108th Cong. at 56 (testimony of Dr. Peter M. Leitner, Author, Reforming the Law of the Sea Treaty: Opportunities Missed, Precedents Set, and U.S. Sovereignty Threatened). “Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 102(2) (1987). Customary international law has the same binding force under international law as treaties. See Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARVARD LAW REVIEW 815, 818 (1997). 39 See, e.g., Deputy Assistant Secretary for Oceans and Fisheries David Balton, Address at the Brookings Institution (May 4, 2004); Rear Admiral William L. Schachte, Jr., Address at the Brookings Institution (May 4, 2004). See also, Hearing, 108th Cong. at 4 (statement of Rep. Tom Lantos); Hearing, 108th Cong. at 29 (testimony of Admiral Michael G. Mullen, Vice Chief of Naval Operations, U.S. Department of the Navy). 40 See, Senator Richard G. Lugar, Address at the Brookings Institution (May 4, 2004). 41 “Because the rules of the Convention meet U.S. national security, economic, and environmental interests, I am pleased to inform you that the Administration of President George W. Bush supports accession of the United States to the Convention.” Statement of Ambassador Sichan Siv, supra note 37. See also, Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention Hearing Before the Senate Comm. on Foreign Relations, 108th Cong. (2003) (testimony of John F. Turner, Assistant Secretary, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State), available at http://www.state.gov/g/oes/rls/rm/2003/25572.htm. 42 UNCLOS, supra note 10, pmbl. 43 Id.

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structures at sea”.44 UNCLOS specifies that dumping does not include the “placement of matter for a purpose other than mere disposal thereof”.45

1. State Sovereignty and Maritime Interests

Under UNCLOS, a state has full sovereign rights over its land territory and internal waters.46 A state also has full sovereign rights over its “territorial sea”, which is a belt of sea that extends up to 12 nautical miles from a baseline determined in accordance with the Convention (normally the low-water line along the coast), and includes the airspace above the sea and the bed and subsoil beneath the sea.47 Within its territorial sea, a state may regulate the preservation of the environment, and the prevention, reduction and control of pollution.48 A state’s sovereignty over its territorial sea is subject only to a right of innocent passage for vessels engaging in continuous and expeditious transit through the territorial sea.49

Figure 1: UNCLOS Maritime Areas Contiguous to the territorial sea is an area known as the “contiguous zone”. The contiguous zone may extend up to twenty-four miles from the same baseline used to determine the territorial sea.50 Within the contiguous zone, a state may exercise the

44 Id. art. 1, para. 1. 45 Id. 46 Id. art. 2. 47 Id. art. 3. The normal baseline is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. Id. art. 5. 48 Id. art. 21. 49 Id. art. 17. 50 Id. art. 33.


control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory and territorial sea.51 A state is provided with certain sovereign rights in an “exclusive economic zone” (EEZ) extending up to 200 miles beyond the territorial sea.52 In particular, a state has sovereignty over the exploration, exploitation, conservation, and management of natural resources in the waters of the EEZ, as well as the seabed and subsoil.53 A state also has sovereignty over other activities for the economic exploitation and exploration of the zone, such as energy production from water, currents, and winds.54 Within its EEZ, a state may regulate installations and structures, marine scientific research, and the protection and preservation of the marine environment.55 The sovereignty that a state has over its EEZ is subject to the right to allow operation of ships, aircraft, and the laying of submarine cables and pipelines.56 The “continental shelf” of a coastal state is defined as the seabed and subsoil of the submarine areas that extend beyond the territorial sea to the outer edge of the continental margin, or to a distance of 200 miles from the baseline if the continental margin does not extend to that distance.57 The continental shelf, as defined by UNCLOS, may not exceed 350 miles from the baseline.58 A coastal state may exercise sovereign rights over its continental shelf for the purposes of exploring and exploiting its natural resources.59 All states are permitted to lay submarine cables and pipelines on the continental shelf.60 If a state chooses to exploit natural resources beyond 200 miles of the baseline, it is required to make annual payments after five years, the payments increasing gradually over time from 1% of value or volume of production to 7% of value or volume.61 The payments are distributed by the International Seabed Authority, taking into account equitable sharing criteria, such as the interests of developing states.62 The 1994 Agreement modifies the decision-making processes of the International Seabed Authority and representation on its Council.63 It is important to note, however, that “virtually all” geologic structures containing hydrocarbons are likely to be found within a coastal state’s jurisdiction and therefore would not be regulated by the International Seabed Authority.64

Beyond the EEZ is an area known as the “high seas”.65 No state may exercise sovereignty over the high seas. All states have freedom of navigation, overflight, the

51 Id. 52 Id. art. 57. 53 Id. art. 56. 54 Id. 55 Id. 56 Id. art. 58. 57 Id. art. 76. 58 Id. 59 Id. art. 77. 60 Id. art. 79. 61 Id. art. 82. 62 Id. 63 Agreement, supra note 36, Annex 1, § 3. 64 Stevenson & Oxman, supra note 17, at 490. 65 UNCLOS, supra note 10, art. 86.


laying of submarine cables and pipelines, constructing installations, and marine scientific research.66 Activities related to resource development in the high seas are subject to authorization by the International Seabed Authority.67

2. Protection and Preservation of the Marine Environment

In general, all parties to UNCLOS have an obligation to “protect and preserve the marine environment”,68 including taking all measures “necessary to prevent, reduce and control pollution of the marine environment from any source”.69 These measures are to minimize the release of toxic, harmful or noxious substances by dumping.70 In taking these measures, states are to act “so as not to transfer…damage or hazards from one area to another or transform one type of pollution into another”.71 With regard to dumping, states are to attempt to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution.72 Although under the 1958 Convention of the High Seas to which the United States is bound, a duty exists to create laws to protect against marine pollution from seabed exploration,73 there is no explicit obligation as in the case of UNCLOS. Note that the Convention does very little in the way of regulating land-based sources of marine pollution, as delegates to UNCLOS III doubted their competence to deal with such issues.74

3. Marine Scientific Research

Coastal states have the exclusive right to regulate, authorize and conduct marine scientific research conducted within their territorial seas75 and EEZs.76 Research should not “unjustifiably interfere with other legitimate uses of the sea” under UNCLOS and should be conducted in compliance with the protection and preservation of the marine environment.77 In general, coastal states are to grant their consent for marine scientific research projects by other States in their EEZs, but may withhold consent if the research relates to the exploration or exploitation of living resources, drilling into the continental shelf, or construction of installations and structures.78 An implied consent doctrine applies, where a party may proceed with a marine scientific research project six months after a description of the project has been provided to the coastal state, unless the coastal state withholds consent within four months of receiving the information.79 All states

66 Id. 67 Id. art. 151. 68 Id. art. 192. 69 Id. art. 194. 70 Id. 71 Id. art. 195. 72 Id. art. 210. 73 Convention on the High Seas, supra note 25, art. 24. 74 Stevenson & Oxman, supra note 17, at 496. 75 UNCLOS, supra note 10, art. 245. 76 Id. art. 246. 77 Id. 78 Id. 79 Id. art. 252.


have the authority to conduct marine scientific research in the high seas80 and deep seabed.81 These provisions are a change from the 1958 Convention on the Continental Shelf, which requires any marine scientific research on the continental shelf to obtain the consent of the coastal state.82

4. Dispute Settlement

If a dispute arises concerning the interpretation of UNCLOS, the Convention provides four potential options for dispute settlement: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal, and a special arbitral tribunal.83 If parties do not accept the same procedure for settling the dispute, the dispute must be submitted to arbitration, which is conducted by the arbitral tribunal or the special arbitral tribunal.84 The special arbitral tribunal has limited jurisdiction, and may only arbitrate disputes related to fisheries, protection and preservation of the marine environment, marine scientific research, and navigation, including pollution from vessels and by dumping.85 Regardless of venue choice, the court or tribunal may consult with scientific or technical experts to sit with the court in a dispute involving scientific or technical matters; the experts sit with the court, but do not have the right to vote.86 A potential weakness in UNCLOS is that states have been reluctant to accept the jurisdiction of international courts and arbitrators.87 C. Sub-Seabed Carbon Dioxide Storage in the UNCLOS Regime

1. UNCLOS is applicable to sub-seabed storage because its jurisdiction includes seabed and subsoil.

UNCLOS specifies that the sovereignty of a coastal state over its territorial sea and contiguous zone extends to the “seabed” and “subsoil”.88 Within its EEZ, a coastal state is provided sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources of the “seabed and its subsoil”.89 Within its continental shelf (the seabed and subsoil of the submarine areas extending beyond the territorial sea), a state has sovereign rights for exploring and exploiting natural resources.90 Thus, the geologic formations that would be used for carbon dioxide storage fall within the jurisdiction of UNCLOS.

80 Id. art. 256. 81 Id. art. 257. 82 Convention on the Continental Shelf, supra note 24, art. 7, para. 8. 83 UNCLOS, supra note 10, art. 287. 84 Id. 85 Id. Annex 8, art. 1. 86 Id. art. 289. 87 Stevenson & Oxman, supra note 17, at 498. 88 UNCLOS, supra note 10, art. 2. 89 Id. art. 56. 90 Id. art. 77.


2. Transport to a storage reservoir via a pipeline from shore would not constitute “dumping” under UNCLOS.

“Dumping” as defined by UNCLOS means the “deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea”.91 UNCLOS does not define the term “wastes or other matter”. Any storage mechanism for carbon dioxide that was not a man-made structure at sea, such as a pipeline that transported the carbon dioxide from land directly to the sub-seabed point of injection, would not be “dumping” under UNCLOS. In addition, UNCLOS protects the laying of submarine pipelines in the EEZ and beyond.92

3. Carbon dioxide storage using a vessel, platform, or man-made structure at

sea would be defined as “dumping” under UNCLOS, but is not necessarily prohibited.

Even if a carbon dioxide storage mechanism was used that fell under the UNCLOS definition of “dumping” (i.e. the storage mechanism included a vessel, platform, or man-made structure, and assuming arguendo that carbon dioxide was determined to fall under the UNCLOS definition of “waste”), the dumping is not necessarily prohibited by UNCLOS. Rather, UNCLOS requires that states adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping.93 These laws and regulations are expected to be based on rules, standards and recommended practices and procedures established by “competent international organizations;”94 the London Convention, described later in this paper, would be the appropriate source of international law. Thus UNCLOS does not necessarily prohibit dumping of wastes or other matter, but rather would defer to the London Convention’s interpretation of pollution by dumping.

4. Carbon dioxide storage related to the exploration and exploitation of natural resources (i.e. the recovery of oil or natural gas) would come under a state’s sovereign rights.

A state has sovereignty over the exploration and exploitation of the natural resources within its EEZ and continental shelf, which includes the seabed and subsoil.95 It is standard industry practice to inject carbon dioxide into oil reservoirs to increase the amount of oil that can be produced, a technique known as enhanced oil recovery.96 Re-injection of carbon dioxide into geologic formations is also used in the production of natural gas with high carbon dioxide content, as is the case with the Sleipner natural gas field in the North Sea.97 Both of these uses are consistent with the sovereign rights of a coastal state over its continental shelf. 91 Id. art. 1. 92 Id. arts. 58, 79, 87. 93 Id. art. 210. 94 Id. 95 Id. arts. 56, 77. 96 See Herzog et al., supra note 4, at 280. 97 See Torp et al., supra note 6, at 1362.


5. Marine scientific research related to carbon dioxide storage would be allowed if conducted in compliance with the protection and preservation of the marine environment.

Under UNCLOS, all states have the right to conduct marine scientific research, subject to compatibility with the Convention.98 The research must be conducted with the consent of the relevant coastal state, and in compliance with UNCLOS provisions for the protection and preservation of the marine environment.99 Those provisions require that states take the best practicable means to prevent, reduce, and control pollution of the marine environment.100 Marine scientific research associated with the sub-seabed storage of carbon dioxide (such as research taking place in the seabed and subsoil of the territorial sea or continental shelf) is permissible under UNCLOS, as long as it is conducted in accordance with the relevant provisions of the Convention.

6. Clarification may be needed on whether the storage of carbon dioxide may be considered “pollution of the marine environment” as defined by UNCLOS.

UNCLOS defines “pollution of the marine environment” to be “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”.101 Under the UNCLOS provisions for the protection and preservation of the marine environment, states are to take all measures that are necessary to prevent, reduce and control pollution of the marine environment from any source, using best practicable means.102 Pollution of the marine environment is not necessarily prohibited as long as best practicable means are used for its prevention, reduction and control. In addition, UNCLOS prohibits the transformation of one type of pollution into another. However, UNCLOS does not provide guidance on exemplary transformations of pollution. Thus guidance may be needed in assessing how the storage of carbon dioxide for the mitigation of greenhouse gas emissions is defined under the UNCLOS definition of “pollution of the marine environment”.

III. CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER (LONDON CONVENTION)

A. Background

98 UNCLOS, supra note 10, art. 238. 99 Id. art. 239. 100 Id. art. 194. 101 Id. art. 1. 102 Id. art. 194.


The 1972 London Convention was enacted to create a legal regime for land based sources of marine pollution.103 Land based sources were not addressed by the 1958 Geneva Conventions and UNCLOS had not yet been negotiated. In preparation for the United Nations Conference on the Human Environment (Stockholm Conference), the Intergovernmental Working Group on Marine Pollution was established to formulate proposals for the protection and preservation of the marine environment.104 As a result of a 1970 report by the United States Council on Environmental Quality predicting increases in the level of ocean dumping and widespread deterioration of marine environments,105 the United States submitted a draft convention on ocean dumping to the Working Group.106 The Working Group met several times between June 1971 and June 1972 to discuss the draft proposal, which eventually was adopted as what is now known as the London Convention on December 29, 1972.107 The London Convention has been ratified by 80 parties, including the United States, and went into force on August 30, 1975.108 B. The Convention The objective of the London Convention is to promote the effective control of all sources of pollution of the marine environment and to take all practicable steps to prevent the pollution of the sea by the dumping of wastes or other matter that is liable to create hazards to human health, living resources and marine life.109 Under the Convention, dumping is defined as “any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea”.110 The London Convention specifies that dumping does not include the “placement of matter for a purpose other than the mere disposal thereof”.111 In addition, the London Convention does not govern “off-shore processing of mineral resources” or the disposal of wastes related to the exploration, exploitation and associated off-shore processing of seabed mineral resources.112 Under the London Convention, “sea” is defined as “all marine waters other than the internal waters of States”.113

1. Categorization of Wastes The London Convention divides wastes into three categories: wastes that are prohibited from being dumped, wastes that may be dumped under a prior special permit, and wastes

103 David Hassan, International Conventions Relating to Land--Based Sources of Marine Pollution Control: Applications and Shortcomings, 16 GEO INT’L. ENVT’L. L. REV. 657, 664 (2004). 104 Id. at 663. 105 COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL PROTECTION AGENCY, OCEAN DUMPING: A NATIONAL POLICY 34 (1970). 106 Jill S. Murakami, Comment, The Dumping of the New Carissa: An Analysis of the Emergency Provisions of the London Convention, 8 PAC. RIM L. & POL’Y. J. 705, 711 (1999). 107 Id. 108 International Marine Organization, Parties to the London Convention (Oct. 14, 2004), at http://www.londonconvention.org/PartiesToLC.htm. 109 London Convention, supra note 11, art. 1. 110 Id. art 3, para. 1. 111 Id. 112 Id. 113 Id. para. 3.

http://www.londonconvention.org/PartiesToLC.htm


that may be dumped under a prior general permit. The dumping of wastes listed in Annex I to the London Convention is prohibited.114 The Annex I list of prohibited wastes (black list) is reproduced in Appendix F to this paper. In addition, the London Convention was amended in November 1996 to prohibit the dumping of industrial wastes, defined as those wastes generated by manufacturing or processing operations.115 Annex II to the London Convention lists those wastes whose dumping is allowed only under a “prior special permit”.116 The dumping of all other wastes not included in Annex I or Annex II requires a “prior general permit”.117 The criteria governing the issue of permits are set forth in Annex III of the London Convention, and include characteristics and composition of the matter, characteristics of dumping and method of deposit, and general characteristics.118 Permits are to be issued by an “appropriate authority” designated by the contracting party to the Convention.119

2. Precautionary Approach

In implementing the London Convention, parties are to be guided by a precautionary approach to environmental protection.120 Precautionary approach under the London Convention is defined as “taking preventative measures when there is reason to believe that substances or energy introduced in the marine environment are likely to cause harm even where there is no conclusive evidence to prove a causal relation between inputs and their effects.”121

C. Sub-Seabed Carbon Dioxide Storage in the London Convention Regime

1. Carbon dioxide is not specified in the London Convention Annex I list of wastes that are prohibited from being dumped. Clarification may be required on whether carbon dioxide would come under the definition of “industrial waste”.

Under the London Convention, the dumping of wastes listed in Annex I to the Convention is prohibited.122 Carbon dioxide is not included in this list of banned substances. However, Annex I was amended in 1996 to disallow the dumping of industrial wastes, defined as those waste materials generated by manufacturing or processing operations.123 The Convention does not provide guidance as to what constitutes manufacturing or processing operations. Therefore, clarification may be needed as to the status of carbon dioxide under Annex I of the Convention. Clarification

114 Id. art. 4, para. 1. 115 Id. Annex 1, para. 11. 116 Id. art. 4, para. 1.. 117 Id. 118 Id. Annex III. 119 Id. art. 6, para. 1. 120 Fourteenth Consultative Meeting of Contracting Parties to London Convention, Res. LDC.44(14) (1991). 121 Id. 122 London Convention, supra note 11, art. 4 123 Id. Annex 1, para. 11.


may also be needed as to the interpretation of the Convention’s precautionary approach with respect to sub-seabed storage. At the request of the United Kingdom, the London Convention established a Working Group on CO2 Sequestration in Geological Structures to identify key legal and scientific issues.124 The Working Group will report its findings at the Convention’s Twenty-Seventh Consultative Meeting in 2005.125

2. Because the London Convention only addresses the sea and does not specifically address the seabed or subsoil, sub-seabed carbon dioxide storage is probably not governed by the London Convention.

As defined by the London Convention, “sea” means all marine waters other than the internal waters of states.126 There is no indication in any part of the Convention that this definition is meant to include anything other than the waters, i.e. unlike UNCLOS, the London Convention makes no reference to seabed or subsoil. Therefore it is unlikely that the Convention would apply to sub-seabed carbon dioxide storage.

3. In the alternative, even if sub-seabed storage is deemed to be governed by the London Convention, transport to a storage reservoir via a pipeline from shore would not constitute “dumping”.

Even assuming, arguendo, that the London Convention is deemed to have jurisdiction over sub-seabed carbon dioxide storage, there would still be methods of storing carbon dioxide that would not constitute “dumping” under the Convention. Under the Convention, “dumping” applies to the deliberate disposal at sea of wastes or other matters from vessels, aircraft, platforms, or other man-made structures at sea.127 Methods of carbon dioxide storage not using vessels, platforms, or man-made structures at sea would be permissible. For example, a pipeline transporting carbon dioxide from shore to the sub-seabed injection point would not constitute “dumping” under the Convention.

4. Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources would not constitute “dumping” under the Convention.

The London Convention states that the disposal of wastes arising from, or related to the exploration, exploitation and associated off-shore processing of sea-bed mineral resources will not be covered by its provisions.128 Thus, even if the London Convention is deemed to have jurisdiction over sub-seabed carbon dioxide storage, the use of carbon dioxide storage in the production of sea-bed mineral resources, such as oil or natural gas recovery, would be allowed. 124 INTERNATIONAL MARITIME ORGANIZATION, REPORT OF THE TWENTY-SIXTH CONSULTATIVE MEETING OF CONTRACTING PARTIES TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER 27 (2004). 125 Id. at 28. 126 Id. art. 3, para. 1. 127 Id. 128 Id.


D. London Protocol The London Protocol was developed to eventually replace the London Convention.129 Its objective is to protect and preserve the marine environment from all sources of pollution and take effective measures to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter.130 As of October 14, 2004, twenty-one of the required twenty-six countries ratified the London Protocol,131 and the International Marine Organization predicts that the London Protocol may go into force in 2005.132

1. Inclusion of References to Seabed and Subsoil Like the London Convention, dumping under the London Protocol includes “any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea”.133 However, the London Protocol adds that dumping also includes “the storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea”.134 As with the London Convention, the London Protocol specifies that dumping does not include the “placement of matter for a purpose other than the mere disposal thereof,” or the disposal of wastes associated with off-shore processing of mineral resources.135 In addition the London Protocol does not govern the disposal of wastes related to the exploration, exploitation and associated off-shore processing of seabed mineral resources.136 Under the London Protocol, “sea” is defined as “all marine waters other than the internal waters of States, as well as the seabed and the subsoil thereof; it does not include sub-seabed repositories accessed only from land”.137 The London Protocol’s references to “seabed” and “subsoil” in the definitions of dumping and sea are absent in the London Convention.

2. Categorization of Wastes

The London Protocol prohibits the dumping of any wastes or other matter with the exception of those listed in Annex I.138 Those seeking to dump wastes listed in Annex I must obtain a permit; the rules concerning permit issuance are listed in Annex II to the Protocol.139 The Annex I list of approved wastes (white list) is reproduced in Appendix G to this paper.

129 London Protocol, supra note 18. 130 Id. art. 2 131 International Marine Organization, supra note 93. 132 INTERNATIONAL MARINE ORGANIZATION, REPORT OF THE TWENTY-SIXTH CONSULTATIVE MEETING OF CONTRACTING PARTIES TO LONDON CONVENTION § 2.10 (2004). 133 London Protocol, supra note 18, art. 1, para. 4. 134 Id. 135 Id. 136 Id. 137 Id. para. 7. 138 Id. art. 4, para. 1. 139 Id.


3. Precautionary Approach Although the London Protocol applies a precautionary approach to environmental protection, the obligation is stated differently from the London Convention. Under the Protocol, the precautionary approach is defined as appropriate preventative measures taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.140 The Protocol uses the phrase “wastes or other matter” rather than the Convention’s phrase “substances or energy” in defining when preventative measures are to be taken. “Wastes or other matter” is defined only as “material and substance of any kind, form or description.”141

4. Polluter Pays Principle The London Protocol adds a “polluter pays” provision, stating that polluters shall bear the cost of any pollution.142 It also includes a provision stating that parties shall act so as not to transfer damage or likelihood of damage from one part of the environment to another or transform one type of pollution to another.143 The language of this provision mirrors a similar obligation under UNCLOS.

5. Dispute Settlement Finally, the London Protocol creates a dispute settlement through an arbitral tribunal.144 Parties are also allowed to use one of the dispute settlement options established under UNCLOS.145 The UNCLOS dispute settlement mechanisms may be used regardless of whether the disputing parties are also parties to UNCLOS.146 E. Sub-Seabed Carbon Dioxide Storage in the London Protocol Regime

1. Unlike the London Convention, the London Protocol explicitly governs the seabed and subsoil. Therefore, sub-seabed carbon dioxide storage is governed by the London Protocol regime.

Although the London Convention does not mention any jurisdiction over seabed or subsoil, the London Protocol states that dumping means “any storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea”.147 The London Protocol’s definition of “sea” includes the seabed and subsoil of all marine waters other than internal waters;148 the London

140 Id. art. 3, para. 1. 141 Id. art. 1, para. 8. 142 Id. art. 3, para. 2. 143 Id. para. 3. 144 Id. art. 16, para. 1. 145 Id. para. 2. 146 Id. 147 Id. art. 1, para. 4. 148 Id. para 7.


Convention does not include the provision related to seabed and subsoil. It is clear that the intent of the London Protocol is to regulate seabed and subsoil. Sub-seabed carbon dioxide storage would thus come under the regime of the London Protocol.

2. Carbon dioxide is not included in the Annex I list of wastes or other matter which are permitted to be dumped.

Under the London Protocol, the dumping of wastes or other matter is prohibited, with the exception of those substances listed in Annex I to the Protocol.149 Carbon dioxide is not included in this list. Therefore, unless the London Protocol is amended to include carbon dioxide in its Annex I list, the dumping of carbon dioxide would likely be contrary to the Protocol.

3. Transport to a storage reservoir via a pipeline from shore does not constitute “dumping” under the Protocol.

Although carbon dioxide is not included in the Annex I list, the London Protocol defines dumping as the “deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea” or the “storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea”.150 Thus, according to the London Protocol, carbon dioxide storage, whether defined as “disposal” or “storage”, would be prohibited only if involving a man-made structure at sea, such as an offshore platform. The storage of carbon dioxide using methods that would not incorporate man-made structures at sea would not be prohibited. As is the case with UNCLOS and the London Convention, under the London Protocol, a pipeline transporting carbon dioxide from shore to the sub-seabed injection point would not constitute “dumping”.

4. Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources does not constitute “dumping” under the Protocol.

The London Protocol does not govern the disposal or storage of wastes arising from, or related to the exploration, exploitation and associated off-shore processing of seabed mineral resources.151 Therefore, carbon dioxide storage in conjunction with oil or natural gas recovery would be permissible under the Protocol and would not constitute “dumping”.

5. Sub-seabed carbon dioxide storage from man-made structures at sea would be defined as “dumping” under the London Protocol and therefore prohibited because carbon dioxide is not on the list of wastes or other matter permitted to be dumped.

149 Id. art. 4, para. 1. 150 Id. art 1, para 4 (emphasis added). 151 Id.


However, in the case of carbon dioxide storage not associated with off-shore processing of seabed mineral resources, carbon dioxide storage incorporating a vessel, platform, or man-made structure at sea, would be prohibited under the London Protocol. This method of carbon dioxide storage would come under the Protocol’s definition of “dumping”.152 Because carbon dioxide is not included in the Protocol’s Annex I list of exempted wastes or other matter, the method would be prohibited.

IV. CONVENTION ON THE PROTECTION OF THE MARINE ENVIRONMENT OF THE NORTH-EAST ATLANTIC (OSPAR CONVENTION)

A. Background The OSPAR Convention replaces two previous marine conventions: the Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft,153 and the Paris Convention for the Prevention of Marine Pollution from Land-Based Sources.154 The parties to the Oslo and Paris Conventions saw the agreements as not adequately controlling certain sources of pollution, and therefore a replacement convention was sought to address all sources of pollution of the marine environment, adverse effects of human activities upon the marine environment.155 The OSPAR Convention is regional in nature, only addressing pollution of the North-East Atlantic. The Convention was signed at the Ministerial Meeting of the Oslo and Paris Commissions September 21-22, 1992, and entered into force March 25, 1998, with 15 countries as contracting parties, as well as the European Union.156 B. The Convention The objective of the OSPAR Convention is for parties to take all possible steps to prevent and eliminate pollution and take necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected.157 Like the London Protocol, OSPAR applies the precautionary principle and the polluter pays principle. As defined by OSPAR, the precautionary principle states that preventive measures are to be taken “when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about

152 Id. 153 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, opened for signature Feb. 15, 1972, 932 U.N.T.S. 3. 154 Paris Convention for the Prevention of Marine Pollution from Land-Based Sources, opened for signature Feb. 21, 1974, 13 I.L.M. 352. 155 OSPAR Convention, supra note 12, pmbl. 156 OSPAR Commission, Contracting Parties, at http://www.ospar.org/eng/html/cp/welcome.html (March 9, 2005). 157 Id.

http://www.ospar.org/eng/html/cp/welcome.html


hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects.”158

OSPAR divides the prevention and elimination of pollution into three categories: pollution from land-based sources (Annex I to the OSPAR Convention), pollution by dumping or incineration (Annex II to the OSPAR Convention), and pollution from offshore sources (Annex III to the OSPAR Convention). Each annex provides a distinct regime for the control and regulation of a separate set of potentially polluting activities.159 As a result, there is no overlap of activities and no activity is regulated by more than one regime.160 Any disputes must be submitted to an arbitral tribunal.161

1. Pollution from Land-Based Sources (OSPAR Annex I) OSPAR defines “land-based sources” as “point and diffuse sources on land from which substances or energy reach the maritime area by water, through the air, or directly from the coast”.162 The Convention specifies that land-based sources include “any deliberate disposal under the sea-bed made accessible from land by tunnel, pipeline or other means and sources associated with man-made structures placed in the maritime area”, other than for the purpose of offshore activities.163

Pollution from land-based sources is allowed, but must be strictly authorized or regulated.164 Pollution from point sources requires the use of best available techniques, while pollution from point and diffuse sources requires best environmental practice.165 Best available techniques means the latest state of development of processes, of facilities or of methods of operation which indicate the practical suitability of a particular measure for limiting discharges, emissions and waste.166 “Best environmental practices” means the most appropriate combination of environmental control measures and strategies.167

2. Pollution by Dumping (OSPAR Annex II)

Dumping under the OSPAR Convention includes any deliberate disposal in the maritime area of wastes or other matter from (1) vessels or aircraft; or (2) offshore installations, with maritime area including seabed and subsoil of the OSPAR region.168 OSPAR prohibits the dumping of any wastes or other matter, with the exception of those included

158 Id. art. 2, para. 2. 159 OSPAR COMMISSION, supra note 20 para. 6. 160 Id. 161 OSPAR Convention, supra note 12, art. 32, para. 1. 162 Id. art. 1. 163 Id. 164 Id. Annex 1, art. 2. 165 Id. art. 1. 166 Id. Appendix 1, para. 1. 167 Id. Appendix 1, para. 6. 168 Id. art. 1.


in a white list of wastes for which dumping is not prohibited.169 The white list is reproduced in Appendix H to this paper. Even if included on the list, dumping still requires authorization or regulation from “competent authorities”.170 The term “competent authorities” is not defined by the Convention. In addition, no placement of matter for a purpose other than that for which it was originally designed or constructed is allowed without authorization or regulation.171

3. Pollution from Offshore Sources (OSPAR Annex III)

Offshore sources under OSPAR are defined as “offshore installations and offshore pipelines from which substances or energy reach the maritime area”.172 Offshore installations include “any man-made structure…placed within the maritime area for the purpose of offshore activities”, where offshore activities involve “exploration, appraisal or exploitation of liquid and gaseous hydrocarbons”.173 The dumping of wastes from offshore installations is prohibited under OSPAR.174 However, the prohibition does not apply to discharges or emissions from offshore sources.175 In addition, no placement of matter for a purpose other than that for which it was originally designed or constructed is allowed without authorization or regulation.176

C. Sub-Seabed Carbon Dioxide Storage in the OSPAR Regime and the Report from

the Group of Jurists and Linguists In June 2002, the Group of Jurists and Linguists to the OSPAR Convention were asked by the OSPAR Commission to provide advice on the legal compatibility of OSPAR with the placement of carbon dioxide in the OSPAR maritime area.177 The final report was agreed to by the Group on May 18, 2004, and accepted by the OSPAR Commission at its June 28-July 1, 2004 Reykjavik meeting.178 The Group of Jurists and Linguists examined five possible placement options for carbon dioxide in the maritime area: (1) a pipeline pure and simple; (2) a pipeline working with a pipeline system in the maritime area; (3) shipment in a vessel for placement from the vessel; (4) placement from an offshore installation; and (5) placement from a structure which is neither part of a pipeline system nor an offshore installation.179 Note that an “offshore installation” has a particular meaning under OSPAR as being a structure related to the exploration, appraisal or exploitation of liquid and gaseous hydrocarbons.180

169 Id. Annex 2, art. 3, para. 1. 170 Id. Annex 2, art. 4, para. 1. 171 Id. Annex 2, art. 5. 172 Id. art. 1 173 Id. 174 Id. Annex 3, art. 3, para. 1. 175 Id. Annex 3, art. 3, para. 2. 176 Id. Annex 3, art. 3, art. 8. 177 OSPAR COMMISSION, supra note 20. 178 Id. para. 3. 179 Id. para. 13. 180 OSPAR Convention, supra note 12, art. 1.

Table 2: Conclusions of Report from the Group of Jurists and Linguists to OSPAR 181

Methods of placement in the maritime area

Applicable OSPAR annex Purposes of placement Conclusion

By pipeline pure and simple Annex I (a) Experiment

(c) Mitigating climate change

(d) Other mere disposal

Placements for purposes (a), (c) and (d) are not prohibited but are strictly subject to authorization or regulation.

By pipeline working with a structure in the maritime area that is not an offshore installation

Annex I (a) Experiment



Placements for purposes (a), (c) and (d) are not prohibited but are strictly subject to authorization or regulation.

By shipment in a vessel for placement from the vessel

Annex II (a) Experiment



Placements for purpose (a) are not prohibited, provided that they are in accordance with relevant provisions of the Convention.

Placements for purposes (c) and (d) are prohibited.

By placement from a structure in the maritime area that is neither part of a pipeline system nor an offshore installation

Annex II (a) Experiment



Placements for purpose (a) are not prohibited, provided that they are in accordance with relevant provisions of the Convention.

Placements for purposes (c) and (d) are prohibited.

By placement from an offshore installation

Annex III (a) Experiment

(b) Improving hydrocarbon production



In respect of CO2 arising from offshore activities: Placements for purpose (a) are not prohibited, provided placement is in accordance with relevant provisions of the Convention.

Placements for purposes (b), (c) or (d) are not prohibited, but are strictly subject to authorization or regulation.

In respect of CO2 arising from activities other than offshore activities: Placements for purpose (a) are not prohibited, provided placement is in accordance with relevant provisions of the Convention.

Placements for purpose (b) are not prohibited, but are strictly subject to authorization or regulation.

Placements for purposes (c) or (d) are prohibited.

181 OSPAR COMMISSION, supra note 20.


Therefore, a structure not related to these activities, although located in the maritime area, would not be an offshore installation as defined by OSPAR. The Group also examined four possible purposes for placement of carbon dioxide: (1) scientific experiment; (2) facilitating or improving the production of oil or gas; (3) mitigating the effects on climate change; and (4) “mere disposal,” other than for the purposes of mitigating the effects of climate change.182 The notion of “placement” is important because “dumping” under the OSPAR Convention specifically excludes “placement of matter for a purpose other than the mere disposal thereof”.183 The purposes that the Group specifies are possible purposes other than mere disposal.

1. The jurisdiction of the OSPAR Convention includes the seabed and subsoil. The OSPAR Convention defines its “maritime area” to be the internal waters and the territorial seas of the Contracting Parties, the sea beyond and adjacent to the territorial sea under the jurisdiction of the coastal state to the extent recognised by international law, and the high seas, including the bed of all those waters and its sub-soil.184 The definition encompasses the geologic formations that would be used for the storage of carbon dioxide.

2. Transport to a storage reservoir via a pipeline from land is not prohibited. The placement of carbon dioxide from a pipeline transporting carbon dioxide from shore to the sub-seabed injection point is not prohibited under the OSPAR Convention. This method of placement would come under OSPAR Annex I, which governs land-based sources, including both point and diffuse sources on land which reach the OSPAR maritime area,185 and sources associated with the deliberate disposal under the sea-bed made accessible from land by pipeline.186 The placement of land-based sources into the marine environment is permitted. Sub-seabed storage of carbon dioxide using a pipeline from land would come under the definition of land-based source. The Group of Jurists and Linguists concluded that such a placement is not prohibited as long as the pollution is strictly authorized or regulated, regardless of the purpose for carbon dioxide storage.187

3. Placement of carbon dioxide using a pipeline from land that is connected to a pipeline system in the maritime area is not prohibited.

The Group of Jurists and Linguists concluded that under Annex I to the OSPAR Convention, the use of an offshore pipeline system (described as a pipeline working with a structure in the maritime area that is not an installation related to hydrocarbon production) is not prohibited by the OSPAR Convention, regardless of the purpose for the

182 OSPAR COMMISSION, supra note 20, para. 14. 183 OSPAR Convention, supra note 12, art. 1. 184 OSPAR Convention, supra note 12, art. 1. 185 Id. 186 Id. 187 OSPAR COMMISSION, supra note 20, para. 15.


carbon dioxide storage.188 The pollution from such a system must be strictly authorized or regulated.189 If the pipeline system is connected to an offshore pipeline system, its legality will depend on the purpose for placement.

4. Placement of carbon dioxide from a vessel is prohibited except for the purposes of a scientific experiment.

The OSPAR Convention prohibits the “dumping” of all wastes or other matter.190 “Dumping” under OSPAR includes the deliberate disposal of wastes from vessels.191 The Group of Jurists and Linguists concluded that carbon dioxide storage for the purposes of mitigating climate change would constitute a deliberate disposal, and because carbon dioxide is not included on OSPAR’s list of exempted wastes which are permitted to be dumped, placement of carbon dioxide from a vessel for the purposes of mitigating climate change or any other disposal purpose would be prohibited.192 However, the Group concluded that scientific experiments related to carbon dioxide storage would fall under an exception to OSPAR’s dumping provisions, which allows for the “placement of matter for a purpose other than the mere disposal thereof”.193 Therefore, placement of carbon dioxide from a vessel for the purposes of a scientific experiment would be permitted if in accordance with other relevant provisions of the Convention.

5. Placement of carbon dioxide from an offshore installation related to hydrocarbon production is not prohibited, depending on the source of the carbon dioxide.

The OSPAR Convention creates a separate regime for activities associated with the production of hydrocarbons.194 The Group of Jurists and Linguists concluded that whether carbon dioxide storage is permitted under OSPAR will depend on the source of the carbon dioxide. If the carbon dioxide arises from hydrocarbon production activities, its placement is not prohibited, no matter the purpose of carbon dioxide storage.195 However, if the carbon dioxide arises from anything other than hydrocarbon production activities (such as land-based sources), its placement is allowed only if associated with the enhancement of hydrocarbon production or for the purposes of a scientific experiment.196 Carbon dioxide storage for any other placement purposes, such as for the mitigation of climate change, would be prohibited.197

188 Id. 189 Id. 190 OSPAR Convention, supra note 12, Annex 2, art. 3, para. 1. 191 Id. art. 1. 192 OSPAR COMMISSION, supra note 20, para. 20. 193 Id. para. 21. 194 OSPAR Convention, supra note 12, Annex.3. 195 OSPAR COMMISSION, supra note 20, para. 26. 196 Id. 197 Id. para. 27.


V. IMPLICATIONS FOR CURRENT AND PROSPECTIVE CARBON DIOXIDE STORAGE OPERATIONS

The injection of carbon dioxide into sub-seabed geologic formations for the purposes of climate change mitigation has already begun on a commercial level at the Sleipner natural gas field in the Norwegian territory of the North Sea. There are also planned projects involving offshore natural gas operations at Snøhvit in the Barents Sea and Gorgon off the northwestern coast of Australia. Despite claims to the contrary, these projects appear to be valid under international law.198 Statoil’s Sleipner project was the first commercial application of carbon dioxide injection as part of a mitigation strategy for greenhouse gas emissions.199 The Sleipner natural gas field is situated halfway between Norway and Scotland, 2500 meters beneath the floor of the North Sea. The natural gas retrieved from the field has 9% carbon dioxide content, and must be reduced to a carbon dioxide content of 2.5% to meet Norwegian commercial specifications.200 This is accomplished using an amine process to capture the carbon dioxide.201 The captured carbon dioxide is then compressed and injected into the Utsira saline formation located about 1000 meters below the seafloor.202 The decision to store the carbon dioxide was motivated by a Norwegian tax on carbon dioxide emissions (about $40 per tonne) and the lack of suitable fields for using the carbon dioxide for enhanced oil recovery.203 The Saline Aquifer CO2 Storage (SACS) project has been smonitoring the behavior of the injected carbon dioxide since the beginning of Sleipner’s operations in 1996, and the results to date indicate no leakage.204 Statoil is also developing Snøhvit, a natural gas operation in the Barents Sea.205 Natural gas will be produced from the Stø natural gas field at a depth of 2300 meters, and transported by pipeline to Melkøya Island.206 At Melkøya, the carbon dioxide will be captured at an on-shore facility and the natural gas liquefied to make LNG.207 The carbon dioxide will then be piped back to the field for storage and injected into the 198 See, e.g., PAUL JOHNSTON ET AL., OCEAN DISPOSAL/SEQUESTRATION OF CARBON DIOXIDE FROM FOSSIL FUEL PRODUCTION AND USE: AN OVERVIEW OF RATIONALE, TECHNIQUES AND IMPLICATIONS 40-41 (Greenpeace Research Laboratories Technical Note 01/99, 1999). 199 Howard Herzog, What Future for Carbon Capture and Sequestration? 35 ENVTL. SCI. & TECH. 148A, 151A (2001). 200 Id. 201 Gelein de Koeijer & Even Solbraa, High Pressure Gas Sweetning with Amines for Reducing CO2 Emissions, in PROCEEDINGS OF 7TH INTERNATIONAL CONFERENCE ON GREENHOUSE GAS CONTROL TECHNOLOGIES (E.W. Rubin et al., eds., forthcoming 2005). 202 Torp & Gale, supra note 6, at 1362. 203 Herzog, supra note 199, at 151A. See also, Norway Deputy Minister Oluf Ulseth, Address at the Carbon Sequestration Leadership Forum Ministerial Meeting (Sept. 14, 2004). 204 Rob Arts et al., Recent Time-Lapse Seismic Data Show No Indication of Leakage at the Sleipner CO2 Injection Site, in PROCEEDINGS OF 7TH INTERNATIONAL CONFERENCE ON GREENHOUSE GAS CONTROL TECHNOLOGIES (E.W. Rubin et al., eds., forthcoming 2005). 205 Valeria Criscione, Norwegian Offshore LNG Project Given Go-Ahead, FINANCIAL TIMES, June 3, 2002, at 5. 206 Olav Kårstad, Address at the IPCC Workshop for Carbon Capture and Storage (Nov. 19, 2002). 207 T. Maldal and I.M. Tappel, CO2 Underground Storage for Snøhvit Gas Field Development, 29 ENERGY 1403, 1404 (2004).


Tubåen formation at a depth of 2500 meters.208 Statoil estimates that 750,000 tonnes of carbon dioxide will be stored annually.209 The Gorgon natural gas field, located 130km off the north-west coast of Australia, is being by ChevronTexaco, Shell, and Exxon Mobil.210 Natural gas will be transported by a 70 kilometer pipeline to Barrow Island, where the natural gas will be processed into LNG and the carbon dioxide removed.211 The carbon dioxide will then be transported by pipeline and injected 2700-3000 meters into the Dupuy saline formation below Barrow Island.212 Take note of the differing carbon dioxide storage methodologies. At Sleipner, natural gas is stripped of excess carbon dioxide offshore and injected into an offshore deep saline formation. At Snøhvit, natural gas is stripped of excess carbon dioxide at an onshore facility, and injected into an offshore deep saline formation. At Gorgon, natural gas is stripped of excess carbon dioxide at an onshore facility, and injected into an onshore deep saline formation. Thus in all of the cases, the carbon dioxide derived from hydrocarbons originating offshore, however the carbon dioxide capture and storage mechanisms vary. Sleipner is valid under the London Convention because the Convention does not include the “seabed” in its definition of “sea”. Even under the London Protocol, Sleipner would be legal because the carbon dioxide derives from the offshore processing of seabed mineral resources. Natural gas is recovered from a seabed reservoir and processed offshore, including the injection of excess carbon dioxide associated with the natural gas. Note also that Sleipner is valid under UNCLOS because UNCLOS defers to the London Convention and Protocol on the issue of dumping. Because Sleipner takes place in the North-East Atlantic marine environment, the OSPAR Convention is implicated. Because the carbon dioxide is injected from an offshore installation and the carbon dioxide arises from offshore activities, Sleipner is valid under OSPAR. As with Sleipner, Snøhvit is legal under the London Convention because the Convention does not govern the seabed. Under the London Protocol, however, Snøhvit is legal due to a different rationale. Although the natural gas from the Snø field is a seabed mineral resource, processing of the natural gas takes place onshore. It is unlikely that the processing could be deemed “offshore processing of seabed mineral resources” or “disposal of wastes arising from, or related to the exploration, exploitation and associated off-shore processing of sea-bed mineral resources”, both of which are permissible under the London Protocol. If the legality of carbon dioxide injection was deemed to fall under this provision of the Protocol, it could lead to a slippery slope argument regarding when carbon dioxide ceases to be related to the exploitation and associated off-shore processing 208 Address by Olav Kårstad, supra note 206. 209 Maldal & Tappel, supra note 207, at 1405. 210 CHEVRONTEXACO AUSTRALIA ET AL., GUIDELINES FOR AN ENVIRONMENTAL IMPACT STATEMENT AND ENVIORNMENTAL SCOPING DOCUMENT FOR AN ENVIRONMENTAL REVIEW AND MANAGEMENT PROGRAMME FOR THE PROPOSED GORGON DEVELOPMENT 1 (2004). 211 Id. at 9. 212 Id. at 13.


of sea-bed mineral resources. A more cogent argument under the Protocol is that the legality of Snøhvit derives from the carbon dioxide being transported by pipeline from shore to the storage reservoir. Note that this would require the carbon dioxide to be transported directly to the storage reservoir, as opposed to carbon dioxide being injected from a man-made offshore installation. This argument would also ensure the project’s legality under the OSPAR Convention, which permits the placement of carbon dioxide using a pipeline from shore. Again the injection of carbon dioxide is legal under UNCLOS because of its legality under the London Convention and Protocol. Finally, in the case of Gorgon, although the natural gas derives from an offshore reservoir, multilateral marine agreements are not implicated with respect to the carbon dioxide storage provisions of the project. Carbon dioxide storage will use injection wells located on Barrow Island, rather than offshore injection as is the case with Sleipner and Snøhvit. Even if the deep saline aquifer extends beneath the seabed, because injection does not involve a vessel or an offshore installation, the project does not fall under the London Protocol. Note that Gorgon does not fall under the London Convention because injection is into a seabed and takes place onshore, and does not fall under the OSPAR Convention because the project does not take place in the North-East Atlantic marine environment.

VI. CONCLUSION As carbon dioxide capture and storage progresses toward large-scale commercialization, there is a need to take into account the international marine agreements that bear upon the technology’s legality, including UNCLOS, the London Convention, the London Protocol (which will eventually replace the London Convention), and regional agreements such as the OSPAR Convention. Under all these agreements, there is some method of carbon dioxide storage that would appear to be valid. In all the agreements analyzed, it appears that it would be permissible to transport carbon dioxide from shore to the sub-seabed injection point using a pipeline. In addition, all current and prospective carbon dioxide storage projects appear to be valid under international law. Carbon dioxide storage would not be considered “dumping” under the relevant conventions if it was designated “placement for a purpose other than the mere disposal thereof”. The OSPAR Group of Jurists and Linguists concluded that carbon dioxide storage for the purposes of climate change mitigation would constitute “dumping” (deliberate disposal of a waste) and not “placement”. However, the Group concluded that carbon dioxide storage related to scientific experimentation would be “placement” because the purposes would not be related to “disposal”. Thus in all the agreements, parties should seek clarification regarding whether carbon dioxide storage would be “storage” vs. “placement” vs. “disposal” vs. “dumping”. Nonetheless, this clarification is relevant only in so far as parties would seek to use vessels or man-made structures at sea as a method of carbon dioxide storage. Given that there are conceivably legal methods of storage which would not entail the use of vessels or man-made structures at sea, it may be prudent to focus research efforts on those carbon


dioxide methods known to be permissible under current and foreseeable international law. In the alternative, parties may wish to seek clarification, or even amendment, of multilateral agreements with respect to carbon dioxide capture and storage.


VII. APPENDIX


A. Abbreviations

CCS Carbon Dioxide Capture and Storage EEZ Exclusive Economic Zone London Convention Convention on the Prevention of Marine Pollution by Dumping of

Wastes and Other Matter London Protocol Protocol to the Convention on the Prevention of Marine Pollution

by Dumping of Wastes and Other Matter OSPAR Convention Convention for the Protection of the Marine Environment of the

North-East Atlantic UNCLOS United Nations Convention on the Law of the Sea (1982) UNCLOS I First United Nations Conference on the Law of the Sea UNCLOS II Second United Nations Conference on the Law of the Sea UNCLOS III Third United Nations Conference on the Law of the Sea


B. Parties to UNCLOS (as of February 1, 2005)213

Albania Algeria Angola

Antigua and Barbuda Argentina Armenia Australia Austria

Bahamas Bahrain

Bangladesh Barbados Belgium Belize Benin

Bolivia Bosnia and Herzegovina

Botswana Brazil

Brunei Darussalam Bulgaria

Burkina Faso Cameroon

Canada Cape Verde

Chile China

Comoros Cook Islands Costa Rica

Côte d'Ivoire Croatia Cuba

Cyprus Czech Republic

Democratic Republic of the Congo Denmark Djibouti

Dominica Egypt

Equatorial Guinea European Community

Fiji Finland France Gabon Gambia Georgia Germany

Ghana Greece

Grenada Guatemala

Guinea Guinea Bissau

Guyana Haiti

Honduras Hungary Iceland India

Indonesia Iraq

Ireland Italy

Jamaica Japan Jordan Kenya

Kiribati Kuwait

Lao People's Democratic Republic Latvia

Lebanon Lithuania

Luxembourg Madagascar

Malaysia Maldives

Mali Malta

Marshall Islands Mauritania Mauritius

213 U.N. Division of Ocean Affairs and the Law of the Sea, supra note 14.


Parties to UNCLOS (cont’d)

Mexico Micronesia (Federated States of)

Monaco Mongolia

Mozambique Myanmar Namibia Nauru Nepal

Netherlands New Zealand

Nicaragua Nigeria Norway Oman

Pakistan Palau

Panama Papua New Guinea

Paraguay Philippines

Poland Portugal

Qatar Republic of Korea

Romania Russian Federation

Saint Kitts and Nevis Saint Lucia

Saint Vincent and the Grenadines Samoa

Sao Tome and Principe Saudi Arabia

Senegal Serbia and Montenegro

Seychelles Sierra Leone

Singapore Slovakia Slovenia

Solomon Islands Somalia

South Africa

Spain Sri Lanka

Sudan Suriname Sweden

The former Yugoslav Republic of Macedonia

Togo Tonga

Trinidad and Tobago Tunisia Tuvalu Uganda Ukraine

United Kingdom of Great Britain and Northern Ireland

United Republic of Tanzania Uruguay Vanuatu

Viet Nam Yemen Zambia

Zimbabwe


C. Parties to London Convention (as of October 14, 2004)214

Afghanistan

Antigua & Barbuda Argentina Australia

Azerbaijan Barbados Belarus Belgium Bolivia Brazil

Canada Cape Verde

Chile China

Costa Rica Cote d'Ivoire

Croatia Cuba

Cyprus Dem. Rep. of the Congo

Denmark Dominican Republic

Egypt Finland France Gabon

Germany Greece

Guatemala Haiti

Honduras Hungary Iceland

Iran (Islamic Republic of) Ireland Italy

Jamaica Japan Jordan Kenya

Kiribati

Libyan Arab Jamahiriya Luxembourg

Malta Mexico Monaco Morocco

Nauru Netherlands

New Zealand Nigeria Norway Oman

Pakistan Panama

Papua New Guinea Peru

Philippines Poland

Portugal Republic of Korea Russian Federation

Saint Lucia St Vincent and the Grenadines

Seychelles Slovenia

Solomon Islands South Africa

Spain Suriname Sweden

Switzerland Tonga Tunisia Ukraine

United Arab Emirates United Kingdom

United States Vanuatu

Yugoslavia Hong Kong, China (Associate Member)

214 International Marine Organization, supra note 108.


D. Parties to London Protocol (as of October 14, 2004)215

Angola Australia Canada

Denmark Egypt France Georgia Germany Iceland Ireland

New Zealand Norway

South Africa Spain

St. Kitts and Nevis Sweden

Switzerland Tonga

Trinidad and Tobago United Kingdom

Vanuatu

215 Id.


E. Parties to OSPAR Convention (as of March 9, 2005)216

Belgium Denmark Finland France

Germany Iceland Ireland

Luxembourg The Netherlands

Norway Portugal

Spain Sweden

Switzerland The United Kingdom of Great Britain and Northern Ireland

European Union

216 OSPAR Commission, supra note 156.


F. Annex I of London Convention (Black List)

1. Organohalogen compounds. 2. Mercury and mercury compounds. 3. Cadmium and cadmium compounds. 4. Persistent plastics and other persistent synthetic materials, for example, netting and

ropes, which may float or may remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea.

5. Crude oil and its wastes, refined petroleum products, petroleum, distillate residues,

and any mixtures containing any of these, taken on board for the purpose of dumping. 6. Radioactive wastes or other radioactive matter. 7. Materials in whatever form (e.g. solids, liquids, semi-liquids, gases or in a living

state) produced for biological and chemical warfare. 8. With the exception of paragraph 6 above, the preceding paragraphs of this Annex do

not apply to substances which are rapidly rendered harmless by physical, chemical or biological processes in the sea provided they do not:

(i) make edible marine organisms unpalatable, or (ii) endanger human health or that of domestic animals.

The consultative procedure provided for under article XIV should be followed by a Party if there is doubt about the harmlessness of the substance.

9. Except for industrial waste as defined in paragraph 11 below, this Annex does not

apply to wastes or other materials (e.g. sewage sludge and dredged material) containing the matters referred to in paragraphs 1 - 5 above as trace contaminants. Such wastes shall be subject to the provisions of Annexes II and III as appropriate.

Paragraph 6 does not apply to wastes or other materials (e.g. sewage sludge and dredged material) containing de minimis (exempt) levels of radioactivity as defined by the IAEA and adopted by the Contracting Parties. Unless otherwise prohibited by Annex I, such wastes shall be subject to the provisions of Annexes II and III as appropriate.

10. (a) Incineration at sea of industrial waste, as defined in paragraph 11 below, and

sewage sludge is prohibited.


(b) The incineration at sea of any other wastes or other matter requires the issue of a special permit. (c) In the issue of special permits for incineration at sea Contracting Parties shall apply regulations as are developed under this Convention. (d) For the purpose of this Annex:

(i) “Marine incineration facility” means a vessel, platform, or other man- made structure operating for the purpose of incineration at sea. (ii) “Incineration at sea” means the deliberate combustion of wastes or other matter on marine incineration facilities for the purpose of their thermal destruction. Activities incidental to the normal operation of vessels, platforms or other man-made structures are excluded from the scope of this definition.

11. Industrial waste as from 1 January 1996. For the purposes of this Annex: “Industrial waste” means waste materials generated by manufacturing or processing operations and does not apply to:

(a) dredged material; (b) sewage sludge; (c) fish waste, or organic materials resulting from industrial fish processing

operations; (d) vessels and platforms or other man-made structures at sea, provided that material

capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent;

(e) uncontaminated inert geological materials the chemical constituents of which are

unlikely to be released into the marine environment; (f) uncontaminated organic materials of natural origin.

Dumping of wastes and other matter specified in subparagraphs (a) - (f) above shall be subject to all other provisions of Annex I, and to the provisions of Annexes II and III.

This paragraph shall not apply to the radioactive wastes or any other radioactive matter referred to in paragraph 6 of this Annex.


12. Within 25 years from the date on which the amendment to paragraph 6 enters into

force and at each 25 year interval thereafter, the Contracting Parties shall complete a scientific study relating to all radioactive wastes and other radioactive matter other than high level wastes or matter, taking into account such other factors as the Contracting Parties consider appropriate, and shall review the position of such substances on Annex I in accordance with the procedures set forth in article XV.


G. Annex I of London Protocol (White List)

1. The following wastes or other matter are those that may be considered for dumping

being mindful of the Objectives and General Obligations of this Protocol set out in articles 2 and 3:

.1 dredged material; .2 sewage sludge; .3 fish waste, or material resulting from industrial fish processing operations; .4 vessels and platforms or other man-made structures at sea; .5 inert, inorganic geological material; .6 organic material of natural origin; and .7 bulky items primarily comprising iron, steel, concrete and similarly unharmful

materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping.

2. The wastes or other matter listed in paragraphs 1.4 and 1.7 may be considered for

dumping, provided that material capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to fishing or navigation.

3. Notwithstanding the above, materials listed in paragraphs 1.1 to 1.7 containing levels

of radioactivity greater than de minimis (exempt) concentrations as defined by the IAEA and adopted by Contracting Parties, shall not be considered eligible for dumping; provided further that within 25 years of 20 February 1994, and at each 25 year interval thereafter, Contracting Parties shall complete a scientific study relating to all radioactive wastes and other radioactive matter other than high level wastes or matter, taking into account such other factors as Contracting Parties consider appropriate and shall review the prohibition on dumping of such substances in accordance with the procedures set forth in article 22.


H. Annex II, Article 3 of OSPAR Convention (White List)

1. The dumping of all wastes or other matter is prohibited, except for those wastes or

other matter listed in paragraphs 2 and 3 of this Article. 2. The list referred to in paragraph 1 of this Article is as follows:

(a) dredged material; (b) inert materials of natural origin, that is solid, chemically unprocessed

geological material the chemical constituents of which are unlikely to be released into the marine environment;

(c) sewage sludge until 31st December 1998; (d) fish waste from industrial fish processing operations; (e) vessels or aircraft until, at the latest, 31st December 2004.

3. (a) The dumping of low and intermediate level radioactive substances, including

wastes, is prohibited. (b) As an exception to subparagraph 3(a) of this Article, those Contracting

Parties, the United Kingdom and France, who wish to retain the option of an exception to subparagraph 3(a) in any case not before the expiry of a period of 15 years from 1st January 1993, shall report to the meeting of the Commission at Ministerial level in 1997 on the steps taken to explore alternative land-based options.

(c) Unless, at or before the expiry of this period of 15 years, the Commission decides by a unanimous vote not to continue the exception provided in subparagraph 3(b), it shall take a decision pursuant to Article 13 of the Convention on the prolongation for a period of 10 years after 1st January 2008 of the prohibition, after which another meeting of the Commission at Ministerial level shall be held. Those Contracting Parties mentioned in subparagraph 3(b) of this Article still wishing to retain the option mentioned in subparagraph 3(b) shall report to the Commission meetings to be held at Ministerial level at two yearly intervals from 1999 onwards about the progress in establishing alternative land-based options and on the results of scientific studies which show that any potential dumping operations would not result in hazards to human health, harm to living resources or marine ecosystems, damage to amenities or interference with other legitimate uses of the sea.

Documents

The International Law of Sub-Seabed Carbon Dioxide Storage · 2006. 12. 8. · The International Law of Sub-Seabed Carbon Dioxide Storage 5 dioxide from a stationary source and its