United Nations General Assembly workshop on conservation and management tools, including area-based management and environmental impact assessments New and Emerging Uses in ABNJ:

Trends of new and emerging uses of, and experimental activities in, areas beyond national jurisdiction and implications for the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction. Duncan Currie LL.B. (Hons .) LL.M. (Hons.) [email protected] May 6, 2013

New and Emerging Uses Overview

• New use

– not implemented when UNCLOS was concluded. Emerging = still not implemented/postulated.

• Overview

– Offshore energy – CO2 injection and storage – Geoengineering – SRM (Solar Radiation Management) or CDR (Carbon Dioxide Removal) • Any technologies that deliberately reduce solar insolation or

increase carbon sequestration from the atmosphere on a large scale that may affect biodiversity (CBD Decision X/33 para 8 (w))

– Aquaculture and biotechnology

• Legal and governance issues • Questions

Offshore Energy OTEC -Ocean Thermal Energy Conversion

BARD Offshore 1 Wind farm

Wave energy converter

Lockheed Martin

ABB

Evwind.es

ABB Methane Hydrates

US Navy Research Laboratory Reuters

CO2 Injection and Storage CO2 injection into basalt CO2 storage

PNNL

Carbon Sequestration and Storage

Ametistova et al., 2002 Sleipner gas field: -Statoill

Geoengineering: Increase Ocean Albedo and Cloud Whitening Microbubbles

Powdered chalk

Seitz 2010

J. MacNeill 2008 Barney Balch

Marine cloud brightening

Smoke generators Russell et al 2012

Russell Seitz 2011

Other climate geoengineering proposals Olivine, or calcium carbonate e.g. limestone

Dump crop residue in deep ocean

© 2012-R.Weller

Upwelling sustainableaglandtenure.com

Dam the ocean?

Jack Cook, Woods Hole

NASA

Ocean Fertilisation Ocean fertilization: “Any activity undertaken by humans with the principal intention of stimulating primary productivity in the oceans”3

[3] Ocean fertilization does not include conventional aquaculture, or mariculture, or the creation of artificial reefs.

Resolution LC-LP.1(2008) on the Regulation of Ocean Fertilization ‘Haida Salmon Restoration Project’

2008: LC/LP Agreed that, given the present state of knowledge, ocean fertilization activities other than legitimate scientific research should not be allowed. Legitimate scientific research: those proposals that have been assessed and found acceptable under the assessment framework. Rio+20: Stressed concern about potential impacts

Goddard Earth Sciences Data and Information Services Center

Potential Biotechnology Uses Ocean based Seaweed Carriers

Ocean Aquaculture

GM Fish?

Aquabounty

Or bacteria? Seaweed Energy Solutions AS

Bryce Groark

Nancy Sefton

New Types or Intensifying Uses and Cumulative Impacts FADs

High Seas Bottom Trawling Deep seabed Mining

ISA

UNGA Res.61/105, 64/72, 66/68 • conduct impact assessments + transparency • manage bottom fishing activities to prevent significant adverse impacts • encounter protocols • implement measures • Not authorise vessels to fish unless done

Greenpeace

Environmental Management Plan • Prior environmental impact assessment • Transparency • APEIs (Areas of Particular Environmental Interest)

Some postulated effects Ocean fertilisation

Changes phytoplankton productivity, diversity, food web, anoxia, acidification, gases

Enhanced weathering Ocean biomass storage

Excess alkalinity Damage benthic environment, local leakage

Carbon storage – Severe local acidification damaging deep oceans sea ecosystems Carbon storage – Leakage reservoirs

Some postulated effects SRM

Ocean effects: if SRM means more CO2 is dissolving in ocean because cooler temperatures. No direct effect on ocean acidification? SRM may decrease ocean productivity

Cloud brightening May change primary production (change in light intensity and temperature near deployment sites) Increased Albedo Decreased light penetration, temperature changes on plankton, composition of sea surface microlayer change, exchange of CO2 and other gases affected.

Carbon Dioxide Removal (CDR) and Solar Radiation Management (SRM) Method

Ocean effects?

Method

Ocean effects?

Ocean fertilisation (iron, phosphorus, nitrogen)

9

Space based – sunshields in space

?

Upwelling modification

9 9

Injection sulphates into upper atmosphere – scatter sunlight

?

9 9 9

Increase cloud reflectivity

9

Increase surface albedo

9

Enhanced weathering e.g. carbonate, silicate rocks Enhanced ocean alkalinity Production biomass e.g. algae Bio-energy carbon capture and storage (ECCS) – biofuels+CCS Ocean biomass storage

9

Ocean CO2 Storage – liquid, solid, water column, geological

9

Key Principles Precautionary Principle

Rio Principle 15; ICJ in Pulp Mills

on the River Uruguay; ITLOS Advisory Opinion

Ecosystem Approach JPOI, Fish Stocks Agreement Environmental UNCLOS Art 206; Rio Principle 17; Impact Assessments largely ignored in high seas Marine Protected Areas

JPOI: representative networks of MPAs by 2012; Aichi target: protect 10% by 2020.

General International Law • State responsibility – ILC Draft Articles • Responsibility to ensure that activities within their

jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction – UNCLOS art 194(2), CBD art 3, Rio Declaration Principle 2, Pulp Mills para 193, Nuclear Weapons para 29

• Duty to carry out environmental impact assessment

– Trail Smelter, Advisory Opinion, CBD Art 14, ITLOS Art 106, ICJ Pulp

Mills

• Precautionary approach

– ICJ, Principle 15, LC Article 3.1,

• Obligations of due diligence

– Pulp Mills para 101, ITLOS Advisory Opinion para 110,111

• But limited relief, defences available (force majeure, necessity)

UNCLOS 192

obligation to protect and preserve the marine environment

194

Prevent, reduce, control pollution, stop spreading, deal with all sources of pollution, protect, preserve rare/fragile ecosystems, habitats

195

not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.

196

prevent, reduce, control pollution of marine environment resulting from the use of technologies or introduction of alien/new species to a particular part of the marine environment, which may cause significant and harmful changes.

206

assess the potential effects of activities on the marine environment which may cause substantial pollution of or significant and harmful changes to the marine environment

210

adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping

87, 238 240

freedom of scientific research - with due regard for the interests of other States (Art 87(2) and rights and duties of other States (Art 238). In compliance with all relevant regulations including those for the protection and preservation of the marine environment (240) 15

CBD Art 3

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

Art 7

Identify processes and categories of activities which have/ likely to have significant adverse impacts on conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques

Art 4

Convention applies…In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.

16

CBD Decision XI/21 Climate related geo engineering “Noted the lack of science-based, global, transparent and effective control and regulatory mechanisms for climate-related geoengineering, the need for a precautionary approach, and that such mechanisms may be most necessary for those geoengineering activities that have a potential to cause significant adverse transboundary effects, and those deployed in areas beyond national jurisdiction and the atmosphere, noting that there is no common understanding on where such mechanisms would be best placed”

• Voluntary guidelines on EIAs and SEAs – decision VIII-28 and lately Decision XI/18 (for marine)

– took note, and subject to BBNJ processes.

London Convention and Protocol • LC (87 Parties) LP (34 Parties) • LC: Grey list and black list (permit or prohibited) • LP: Reverse list – prohibited unless listed • Disposal of CO2 into water column or on seabed not permitted under London Protocol.

• LP Exceptions: – Placement not disposal (Art 4.2) – Disposal related to seabed mineral exploitation (4.3)

London Protocol Annex I

– inert, inorganic geological material – vessels and platforms or other man-made structures at sea – organic material of natural origin – carbon dioxide streams from carbon dioxide capture processes for sequestration as long as:

(Annex I): • disposal is into a sub-seabed geological formation; and • they consist overwhelmingly of carbon dioxide. They may contain incidental associated substances derived from the source material and the capture and sequestration processes used; and • no wastes or other matter are added for the purpose of disposing of those wastes or other matter.

Governance –patchy and gaps • No legally binding

framework for geoengineering, new uses including – cross-sectoral governanceimpacts on oceans, other sectors, assessment, regulation for biodiversity – MPAs, EIAs, SEAs – and measures

CO2 sequestration in water column, seabed

LP – not in water column, seabed Geological storage: regulated under LC/P

Ocean fertilization, crops

Regulated under LC/P

Biomass storage

LC/LP

Weathering

LC/LP

Aerosol

VC/MP, LRTAP –Limited

Albedo Enhancement – cloud whitening etc

?

Biotechnology

? Many outside RFMO mandate

Smart rocks

?

Dams

?

Environmental Modification in warfare and Space law • 1976 ENMOD Convention:

– "environmental modification techniques" refers to any technique for changing - through the deliberate manipulation of natural processes the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space

• Prohibits military or other hostile use

• Protocol I(1977) to 1949 Geneva Conventions

– Art 35.3 prohibits methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

• Outer Space treaty

– Experiment that would cause potentially harmful interference with activities as other States trigger consultation before proceeding (art IX).

Some questions • How to assess cross-sectoral benefits?

– Many geoengineering benefits, detriments may be on global scale a well as local

• How address intergenerational equity?

– E.g. if CO2 from CS return to atmosphere over century to millennium timescales?

• EIA and SEA: How take into account effects from existing uses – cumulative across sectors and across time

• How address effects, control activities? • How to prevent rogue experiments and activities in ABNJ? • When effects are distributed across globe, how to address uneven benefits • •

and detriments? If impacts primarily terrestrial but activity ocean based, how control? And vice versa What about abrupt discontinuation of SRM? How ensure transparency, participation, contain risks, co-ordinate science, control effects, liability and redress?