Ocean Fertilization –
Legal Issues and
Institutional responses
Bettina Boschen
PhD Candidate
Utrecht Center for Water, Oceans and Sustainability
Law and the Netherlands Institute for the Law of the
Sea (NILOS)
Overview
• About Ocean Fertilization
– From scientific experiments to geo-engineering strategy
• International law and Ocean Fertilization
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Law of the Sea
International Environmental Legal Principles
Relevant treaty regimes
• Institutional Responses
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Finding a suitable forum
1972 London Convention and its 1996 Protocol on the
Prevention of Marine Pollution
• Assessment / Conclusions
About Ocean Fertilization
• Scientific research experiments on basis of suggestion that
the introduction of certain nutrients, or iron, will stimulate
growth of plankton
• Ocean iron enrichment experiments result in algal blooms
• Role of photsynthesisers in the carbon cycle and the natural
function of oceans as a carbon sink
• Assuming that algal blooms can be controlled, ocean
fertilization as a geo-engineering (CDR) strategy
Ocean fertilization as a geoengineering strategy
Definition geo-engineering:
“the deliberate large-scale manipulation of the planetary
environment to counteract anthropogenic climate change”
(2009 Royal Society Report)
Methods:
– Carbon Dioxide Removal (CDR)
– Solar Radiation Management (SRM)
Marine Geo-engineering:
– E.g. Ocean Fertilization (CDR)
– E.g. ‘Cloud Whitening’ or ‘Water Brightening’ (SRM)
Ocean Fertilization Experiments in
the High Seas
• 12 small scale research experiments between 1993 –
2005
• 2006 Planktos Corp. plans to conduct OF near Galapagos
islands
• 2007 Ocean Nourishment proposal to conduct OF in Sulu
sear / Philipines
• 2009 LOHAFEX experiment (Germany/India)
• 2012 Canada / Haida ocean fertilization incident
Ocean Fertilization Experiments in
the High Seas
Source: Boyd et al. (2007) ‘ Mesoscale Iron Enrichment Experiments’ Science Vol. 315, p. 612,
International Legal Framework The Law of the Sea
• 1982 UN Convention on the Law of the Sea – Constitution
for the Oceans (LOSC)
– Jurisdictional and substantive framework for the Oceans
• Activities taking place in maritime zones beyond national
jurisdiction:
• Part VII “High Seas”, Article 87 freedom of scientific
research
• Part XII “Protection and preservation of the marine
environment”
• Part XIII “Marine Scientific Research”
• LOSC refers to ‘competent organizations’ to regulate /
develop more specific rules
International Legal Framework International Environmental Legal
Principles
• Principles
– Obligation to prevent harm
– Obligation to prevent pollution
– Application of the precautionary principle
– Obligations to cooperate, exchange information and
conduct EIAs
• Limits of these principles
– Allow for broad interpretation
– No specific regulatory framework
International Legal Framework –
Relevant Treaty Regimes
• CBD
– CBD objective is the conservation of biodiversity
– Jurisdictional scope includes coastal areas and activities
taking place in the high seas.
• UNFCCC and Kyoto Protocol
– Climate Change regime but doesn’t cover geoengineering
– Carbon credits for reduction emissions (at source) not
through geo-engineering (except perhaps forestation)
• Antarctic Treaty System – 1991 Protocol on Environmental
Protection
• OSPAR Convention
Institutional Responses – Which
Forum?
Scientific Technical Reports
– UNESCO/IOC ad hoc Consultative Group on Ocean
Fertilization
– CBD (Convention on Biological Diversity) Subsidiary
Body on Scientific, Technical and Technological Advice
– SCOR & GESAMP (Scientific Committee on Oceanic
Research and Joint Group of Experts on the Scientific
Aspects of Marine Environmental Protection)
– London Convention and Protocol Scientific Groups
– UNEP World Conservation Monitoring Centre
– IPCC (Intergovernmental Panel on Climate Change).
Institutional Responses – Which
Forum?
Policy / Political responses
– 2007 London Convention/Protocol “Statement of
Concern”
– 2008 CBD COP Decision IX/16
– 2008 London Convention/Protocol “Resolution1”
– 2010 CBD COP Decision X/29
– 2010 London Convention/Protocol “Resolution2”
– 2007 - 2012 UNGA Annual Resolution on the Law of the
Sea and Ocean Affairs
Legal Response –
London Convention/Protocol
Legal Responses
– 2008 London Convention/Protocol “Resolution1”
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scope includes ocean fertilization
only legitimate scientific research should be allowed
case-by case assessment using an assessment framework
If not then contrary to the aims of the Convention
– 2010 London Convention/Protocol “Resolution2”
• Adoption of Assessment Framework for Scientific Research
Involving Ocean Fertilization’
– 2013 London Protocol amendment
Legal Response –
London Convention/Protocol
2013 London Protocol amendment
– New Art 6b “Contracting Parties shall not allow the placement
of matter into the sea [ … ] for marine geo-engineering
activities listed in Annex 4, unless the listing provides that the
activity or the sub-category of an activity may be authorized
under a permit”
– New Annex 4 to the Protocol
• Ocean fertilization as defined in the Annex may only be
considered for a permit if it is assessed as constituting
legitimate scientific research taking into account any
specific placement assessment framework.
– New Annex 5 to the Protocol
• Assessment Framework
Conclusions
• Decentralized nature of current international legal and
institutional framework presents significant challenge for
the regulation of geo-engineering activities.
• Rapid response through London Convention/Protocol to
address ocean fertilization but ad hoc approach to
regulation of geo-engineering.
• Missing policy discussion on the role of geo-engineering
methods and the mitigation of the effects of anthropogenic
climate change.
• Suggestion to include the geo-engineering discussion within
the UNFCCC framework as the appropriate forum to
develop general principles governing geo-engineering.