The next week has the potential to bring important developments for international governance of marine carbon dioxide removal (CDR). That\u2019s because the parties to the London Convention and London Protocol are meeting from October 28 to November 1 in London to discuss, among other things, governance of ocean alkalinity enhancement and ocean sinking of biomass (e.g. seaweed) for carbon storage. The parties are expected to consider a resolution, urging them to \u201cact on a voluntary basis to\u201d ensure that such activities only occur as part of a \u201clegitimate scientific research\u201d project, and to defer or not allow deployment. It is unclear if the parties will adopt the resolution. It is still in draft form and much of the wording is in square brackets, indicating that it has not yet been agreed amongst the parties. Even if the resolution is adopted, it would not be binding in the same way as a formal international agreement, but it could still impact how countries regulate marine CDR.<\/p>\n
Background<\/strong><\/p>\n Understanding the ramifications of this decision requires context and background. The Intergovernmental Panel on Climate Change has<\/a> concluded\u00a0that CDR will be needed, alongside deep emissions cuts, to limit global warming to 1.5 to 2o<\/sup>C in line with the goals of the Paris Agreement. Delayed action on emissions cuts may require even more (and more expensive) CDR \u2013 the 2024 United Nations Emissions Gap Report<\/a> released this week found that 2023 greenhouse gas emissions set a new record, and current emissions reduction pledges for 2030 are insufficient to meet temperature goals.<\/p>\n A variety of CDR techniques are currently being explored and, in some cases, deployed. Some are land-based, while others use the ocean. Ocean-based approaches that are currently receiving attention include (1) ocean fertilization<\/a>, (2) ocean alkalinity enhancement<\/a>, and (3) seaweed cultivation and sinking<\/a>. As noted in a 2021 National Academies of Sciences (NAS)\u00a0report<\/a>, these approaches have the potential for substantial carbon sequestration, but key questions remain about their efficacy, benefits, and risks. In order to answer these questions, further research, including in-ocean research, is needed. But in-ocean research could implicate various international and domestic laws that might affect whether, when, where, and how projects take place.<\/p>\n Marine CDR Governance under the London Convention and Protocol<\/strong><\/p>\n Two key international laws applicable to certain forms of marine CDR are the\u00a01972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter<\/a>\u00a0(London Convention) and the\u00a01996 Protocol to the Convention<\/a>\u00a0(London Protocol). Both the London Convention and London Protocol aim to limit ocean dumping. The London Protocol, agreed to 20 years after the London Convention, was intended to update and eventually replace the London Convention. However, before that can happen, all of the countries that are party to the London Convention must ratify the London Protocol. Many haven\u2019t yet done so. The U.S., for example, is a party to the London Convention but has not yet ratified the London Protocol.<\/p>\n Both the London Convention and London Protocol require parties to adopt domestic laws to regulate the \u201cdumping\u201d of \u201cwaste and other matter\u201d at sea. Dumping is defined broadly to mean \u201cthe deliberate disposal of waste or other matter at sea from vessels, aircraft, platforms, or other manmade structures.\u201d In both agreements, the definition of \u201cdumping\u201d excludes the \u201cplacement of matter for a purpose other than mere disposal thereof, provided that such placement is not contrary to the aims of\u201d of the agreements. Legal scholars have long debated whether and when marine CDR activities fit into the definition of \u201cdumping,\u201d whether they qualify for the \u201cplacement\u201d exemption, and whether marine CDR activities are contrary to the aims of the agreements (see here<\/a> for example).<\/p>\n Parties to the London Convention and Protocol have sought to provide clarity on these issues through a series of resolutions adopted over the last 16 years. First, in 2008, the parties adopted a\u00a0resolution<\/a> dealing specifically with ocean fertilization. The resolution stated that ocean fertilization projects involving \u201clegitimate scientific research\u201d \u201cshould be regarded as placement of matter for a purpose other than mere disposal,\u201d and thus not be classed as dumping, provided they are \u201cnot contrary to the aims of the\u201d the London Convention and Protocol. The parties subsequently, in 2010, adopted a\u00a0framework<\/a>\u00a0for assessing research projects. The framework sets out criteria for evaluating whether a project qualifies as \u201clegitimate scientific research,\u201d including a requirement that \u201ceconomic interests should not influence the design, conduct and\/or outcomes of the [research].\u00a0 There should not be any financial and\/or economic gain arising directly from the experiment or its outcomes.\u201d The 2010 framework further states that, even if a project is found to involve legitimate scientific research, \u00a0countries \u201cshould\u201d only conclude that the project is not contrary to the aims of the London Convention and Protocol, and thus not treat it as dumping, if \u201cconditions are in place to ensure that . . . environmental disturbance would be minimized and the scientific benefits maximized.\u201d<\/p>\n The 2008 resolution and 2010 assessment framework are not legally binding. But, in 2013, the parties to the London Protocol adopted an\u00a0amendment<\/a>\u00a0that is intended to be. The amendment deals with the \u201cplacement of matter into the sea\u201d for the purpose of \u201cmarine geoengineering,\u201d which the parties defined to mean:<\/p>\n \u201ca deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and\/or its impacts, and that has the potential to result in deleterious effects, especially where those effects may be widespread, long lasting or severe.\u201d<\/p><\/blockquote>\n The amendment requires parties to the London Protocol to prohibit \u201cthe placement of matter into the sea\u201d in connection with listed marine geoengineering activities \u201cunless the listing provides that the activity . . . may be authorized under a permit.\u201d Only ocean fertilization has been listed so far. The listing only allows for the issuance of permits for ocean fertilization research (not deployment) and only if certain requirements are met. Some in the marine CDR community have expressed concern that the requirements are difficult to meet and thus could hinder needed research. Particular concerns have been expressed about the requirement that research not result in any \u201cfinancial and\/or economic gain,\u201d with some arguing that this could prevent privately-funded research that is intended to advance commercial interests.<\/p>\n The 2013 amendment has not yet entered into force. For that to happen, it must be ratified by two-thirds of the parties to the London Protocol. That seems unlikely in the near future given that, in the 10 years since the amendment was adopted, only six of the 55 parties to the London Protocol have ratified it. Moreover, even if (or when) the amendment does enter into force, it will only be legally binding on London Protocol parties. Countries, like the U.S., that are only party to the London Convention won\u2019t be legally bound by the amendment. Nor will countries that have failed to sign-onto either agreement. The amendment might still influence their actions, however.<\/p>\n Recent Developments under the London Convention and Protocol<\/strong><\/p>\n At their last meeting in October 2023, parties to the London Convention and Protocol considered options to advance governance of marine geoengineering. They focused specifically on two marine CDR approaches\u2014ocean alkalinity enhancement and biomass cultivation for carbon removal (including seaweed cultivation and sinking) \u2014and two solar radiation management techniques\u2014marine cloud brightening and surface albedo enhancement. (Solar radiation management is distinct from CDR. Whereas CDR aims to mitigate climate change by removing and durably store carbon dioxide from the atmosphere, solar radiation management techniques seek to lessen the impacts of climate change by reflecting solar radiation into outer space.)<\/p>\n In 2022, the parties agreed to evaluate those four approaches, and how they should be governed. As part of that effort, the parties requested scientific expertise from a Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) Working Group 41<\/a>, which is working on scientific analysis of the approaches (a report is expected next year). Also as part of the effort, in 2022, the parties established the Legal Intersessional Correspondence Group (LICG) on Marine Geoengineering. LICG has been meeting regularly to advance governance discussions. One issue the LICG has explored is whether the 2013 London Protocol amendment can and should be expanded to apply to a broader range of marine geoengineering activities. (As noted above, currently the amendment only applies to ocean fertilization, but additional activities could be listed under the amendment in the future.)<\/p>\n While GESAMP and LICG continue their work, the parties have taken some initial steps to clarify their thinking on marine geoengineering governance. At the 2023 meeting, the parties adopted\u00a0a \u201cStatement on Marine Geoengineering<\/a>,\u201d in which they concluded that \u201cthere is considerable uncertainty regarding [all four techniques\u2019] effects on the marine environment, human health and on other uses of the ocean.\u201d However, in the parties view, \u201ceach of the four . . . techniques . . . has the potential for deleterious effects that are widespread, long-lasting or severe.\u201d Given this, the parties determined that use of the techniques, other than in connection with \u201clegitimate scientific research, should be deferred.\u201d<\/p>\n The parties also endorsed the 2010 assessment framework as the appropriate frame for evaluating legitimate scientific research, writing:<\/p>\n \u201cThe governing bodies are of the view that the requirements set out in the [2010] Assessment Framework for Scientific Research Involving Ocean Fertilization . . . form the appropriate basis for the assessment of proposed research and development projects relating to marine geoengineering, and strongly encourage the[] application thereof.\u201d<\/p>\n<\/blockquote>\n What\u2019s next? Options Before the Parties<\/strong><\/p>\n In the lead-up to next week\u2019s meeting of the parties to the London Convention and Protocol, the LICG issued a number of progress reports and updates on its work in early August. The reports outline different actions that the parties might wish to consider to advance the governance of marine geoengineering.<\/p>\n Amend the 2013 amendment to the London Protocol on marine geoengineering<\/em><\/p>\n The first option on the table is for the parties to list additional marine geoengineering activities under the 2013 London Protocol Amendment. As noted above, currently, only ocean fertilization is listed, and the listing provides that only research projects may move forward. As previously reported on this blog<\/a>, last year, the LICG concluded that other marine CDR approaches (including several forms of ocean alkalinity enhancement and biomass sinking) may be eligible for listing under the amendment. Listing additional activities would mean that, if \/ when the 2013 Amendment enters into force, it would provide a legally binding framework for regulating those activities. Questions have, however, been raised about the viability of listing additional activities.<\/p>\n First, the 2013 amendment has not yet entered into force, as it has only been adopted by six London Protocol Parties. As the LICG has noted, it may take considerable time for the amendment to enter into force. Second, there are questions as to the legal permissibility of amending the 2013 amendment before it enters into force, although the LICG has concluded that parties likely do have authority to add new categories of activities to the amendment now. Third, even if it is expanded and does enter into force, the amendment would not bind parties not yet party to the London Protocol (like the U.S.).<\/p>\n\n