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Implications of Current Developments in International Liability for the Practice of Marine Geo-engineering Activities

Published online by Cambridge University Press:  29 November 2013

Jung-Eun KIM*
Affiliation:
Korea Institute of Ocean Science and Technology, Republic of Korea oceankim@kiost.ac

Abstract

Ocean fertilization was first introduced as a carbon dioxide mitigation technique in the 1980s. However, its effectiveness to slow down climate change is uncertain and it is expected to damage the marine environment. Consequently, international law, including the London Convention/Protocol and the Convention on Biological Diversity, limits this activity to scientific research purposes. The applicability and scope of existing treaties for regulating this activity have been reviewed within international legal systems, in particular within the London Protocol. The establishment of a liability regime with respect to these activities has also been raised during a discussion on regulation of ocean fertilization under the London Protocol. One of the key purposes of the liability regime could be to make ocean users more cautious when exploring and exploiting the oceans through charging cleaning costs or imposing compensation for damage. This paper aims to identify such a preventative effect of the international liability regime, in particular, state liability.

Type
Articles
Copyright
Copyright © Asian Journal of International Law 2013 

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Footnotes

*

Researcher, Korea Institute of Ocean Science and Technology. This paper is based on a paper presented at the 3rd NUS-AsianSIL Young Scholars Workshop 2012. I wish to thank the National University of Singapore and the Asian Society of International Law for inviting me to the Workshop.

References

1. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994) [UNCLOS].

2. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046 U.N.T.S. 120 (entered into force 30 August 1975); Protocol of 1996 to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (the London Protocol), 1972, 7 November 1996, IMO Doc. LC/SM 16 (entered into force 24 March 2006, amended on 2 November 2006, amendment entered into force 10 February 2007) [LP]; Convention on Biological Diversity, 22 May 1992, 1760 U.N.T.S. 79 (entered into force 29 December 1993) [CBD].

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7. LC/SG 34/INF.3, supra note 3.

8. IMO, “Report of the Working Group on Ocean Fertilization”, LC/SG 31/WP.3/Rev.1, 22 May 2008, 1.

9. LC/SG 34/INF.3, supra note 3.

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13. LC/SG 34/INF.3, supra note 3 at 1.

14. Ibid.

15. Ibid., at 6.

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20. LC/SG 34/INF.3, supra note 3.

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25. Lampitt et al., supra note 12 at 3933−4.

26. Huesemann, supra note 21 at 246.

27. Participants at the UN Conference on Sustainable Development held in June 2012 at Rio de Janeiro adopted a resolution which includes a note of concern on “the potential environmental impacts of ocean fertilization” and recalls decisions taken by relevant international organizations “consistent with the precautionary principle”, UN, “Report of the United Nations Conference on Sustainable Development”, 20–22 June 2012, A/CONF/216/16, para. 167. Also see decisions on ocean fertilization adopted by the Conference of the Parties under the Convention on Biological Diversity (see decisions referred to in infra note 41).

28. LC/SG 34/INF.3, supra note 3 at 5.

29. Ibid.

30. Ibid.

31. UNCLOS, supra note 1, art. 1(1)(5): “(5)(a) ‘dumping’ means: (i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; (ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea; (b) ‘dumping’ does not include: (i) the disposal of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures; (ii) placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention.”

32. For a discussion on the definition of dumping under the London Protocol, see the following subsection.

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34. Ibid.

35. UNCLOS, supra note 1, art. 56(1)(a).

36. HONG, Gi-Hoon and SOHN, Hyojin, “A Preliminary Analysis on the International Management System for the Ocean Fertilization with Iron at High Seas” (2008) II Journal of the Korean Society for Marine Environmental Engineering 138 at 146Google Scholar

37. Ibid.

38. UNCLOS, supra note 1, art. 56.

39. Ibid., art. 246 (5)(a).

40. Ibid., art. 197.

41. CBD, “Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth Meeting”, UNEP/CBD/COP/DEC/IX/16, 9 October 2008, 19−30 May 2008. This prohibition is reaffirmed in Decision X/33 which was adopted by the COP 10 in 2010 and in Decision XI/20 adopted by the COP 11 in 2012. See CBD, “Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Tenth Meeting”, UNEP/CBD/COP/DEC/X/33, 29 October 2010 at 5; CBD, “Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Eleventh Meeting”, UNEP/CBD/COP/DEC/XI/20, 5 December 2012.

42. UNEP/CBD/COP/DEC/IX/16, supra note 41 at 7.

43. Ibid.

44. LC/SG 34/INF.3, supra note 3 at 16; IMO, “Report of the Thirty-Fourth Meeting of the Scientific Group of the London Convention and the Fifth Meeting of the Scientific Group of the London Protocol”, IMO, LC/SG 34/15, 24 May 2011 at 14−17.

45. IMO, “Resolution LC-LP.1 (2008) on Regulation of Ocean Fertilization”, adopted on 31 October 2008.

46. Ibid.

47. Ibid.

48. LP, supra note 2, art. 2.

49. Resolution LC-LP.1 (2008).

50. See also para. 8 of the Resolution LC-LP.1 (2008), and art. 1.4.2.2 of the London Protocol. Dumping is defined as “any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; any deliberate disposal into the sea of vessels, aircraft, platforms or other man-made structures at sea; any storage of wastes or other matter in the sea-bed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea; and any abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal”. Dumping does not include “the disposal into the sea of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or other man-made structures. 2. Placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Protocol.”

51. Ibid., para. 8.

52. Gi-Hoon HONG, “An Analysis of Development Trend of Rules to Govern Geo-Engineering Businesses under the London Protocol” in Gi-Hoon HONG, ed., the Global Governance of Climate Geo-Engineering and London Protocol (Seoul: ORUEM Publishing House, 2011)Google Scholar

53. Ibid.

54. For the original four options, see Annexes, in IMO, “Ocean Fertilization-Report of the 4th Meeting of the Intercessional Working Group on Ocean Fertilization”, LC 34/4, 27 July 2012.

55. LC 34/WP.4, supra note 4.

56. Ibid., Annexes 2 and 3.

57. IMO, “Regulation of Ocean Fertilization and Other Activities-Proposal to Amend the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes or Other Matter, 1972 to Regulate Placement of Matter for Ocean Fertilization and Other Marine Geo-engineering Activities”, submitted by Australia, Nigeria, and Republic of Korea, 11 April 2013, LC 35/4.

58. IMO, “Report of the Thirty Second Consultative Meeting and the Fifth Meeting of the Contracting Parties”, November 2010, LC 32/15 at 15.

59. Ibid., at 16.

60. Ibid. The report by the drafting group of the assessment framework notes that the footnote implies Article 235 of the UNCLOS.

61. See ftn 21, IMO, “Assessment Framework for Scientific Research Involving Ocean Fertilization (adopted on 14 October 2010)”, Annex 6, LC 32/15, supra note 58.

62. Principle 2 of the Rio Declaration of Environment and Development, Rio de Janeiro, Brazil, UNCED, June 1992, online: 〈http://www.unep.org〉; Principle 21 of the Declaration of the United Nations Conference on the Human Environment (the Stockholm Declaration), Stockholm, Sweden, 1972, UN, A/CONF/48/14/REV.1.

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65. BRUNNÉE, Jutta, “The Stockholm Declaration and the Structure and Processes of International Environmental Law”, in Myron H. NORDQUIST et al., eds., The Stockholm Declaration and Law of the Marine Environment, Centre for Oceans Law and Policy (The Hague/London/New York: Martinus Nijhoff Publishers, 2003) 67−84Google Scholar

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67. KISS, Alexandre, “The Destiny of the Principles of the Stockholm Declaration”, in Nordquist et al., supra note 65 at 61Google Scholar

68. Brunnée, supra note 65 at 76Google Scholar

69. Ibid.

70. Ibid.

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74. ILC, “Survey of Liability Regimes Relevant to the Topic of International Liability for Injurious Consequences Arising Out Of Acts Not Prohibited by International Law (International Liability in Case of Loss from Transboundary Harm Arising Out Of Hazardous Activities)”, Geneva, Switzerland, 24 June 2004, A/CN.4/543 at 81.

75. Birnie and Boyle, supra note 63 at 218Google Scholar

76. Ibid.

77. Ibid.

78. Barboza, supra note 71 at 67Google Scholar

79. MAGRAW, Daniel Barstow, “Transboundary Harm: The International Law Commission's Study of ‘International Liability’” (1986) 80 American Journal of International Law 305 at 307 CrossRefGoogle Scholar

80. A/CN.4/501, supra note 73 at 4.

81. UNEP CBD, “Liability and Redress for Damage Resulting from the Transboundary Movements of Living Modified Organisms – Review of Existing Relevant Instruments and Identification of Elements”, 31 July 2001, UNEP/CBD/ICCP/2/3 at 2.

82. Barboza, supra note 71 at 26Google Scholar

83. Ibid., at 25.

84. Birnie and Boyle, supra note 63 at 217Google Scholar

Robert Perry BARNIDGE Jr. “Due Diligence Principle under International Law” (2006) 8 International Communities Law Review 81 at 81−86Google Scholar

85. UNEP CBD, “Liability and Redress in the Context of Paragraph 2 of Article 14 of the Convention on Biological Diversity: An Analysis of Pertinent Issues”, UNEP/CBD/EG-L&R/1/2/Rev.1, (9 August 2005) at 4; state responsibility will still be able to be applied without actual or potential damage. This implication is found only in a few domestic laws. A/CN.4/501, supra note 73 at 4.

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88. Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment [1984] I.C.J. Reps. 246 at 290. Also see a discussion on customary international law relating to marine environmental protection, Churchill and Lowe, ibid., at 332.

89. ILC, “Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, with Commentaries”, Yearbook of the International Law Commission (2006)Google Scholar

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92. Ibid.

93. Birnie and Boyle, supra note 63 at 223−224Google Scholar

94. A/CN.4/501, supra note 73 at 5.

95. UNCLOS, supra note 1, art. 235.

96. Ibid., art. 235(3).

97. Ibid., art. 139.

98. Ibid.

99. Ibid.

100. Advisory Opinion on Responsibility and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion [2011] the Seabed Disputes Chamber, List of Cases No: 17, at 74−5.

101. UNCLOS, supra note 1, art. 263(3).

102. Ibid., art. 94(4)(c).

103. WEGELEIN, Florian H. Th., Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (Leiden: Martinus Nijhoff Publishers, 2005) at 350 Google Scholar

104. LP, supra note 2, art. 15.

105. Ibid., art. 2.

106. Ibid., art. 3.4.

107. Ibid, arts. 3.1, 3.2.

108. Ibid., arts. 4, 5.

109. Ibid.

110. Ibid., art. 6.

111. Ibid., art. 9.

112. Ibid., art. 10.3.

113. Art. 12, Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 10 June 1995, 1102 U.N.T.S. 27 (entered into force 9 July 2004) [Barcelona Convention].

114. IMO, “Development of Procedures Regarding Liability Arising from Dumping-Overview of Liability Issues under Multilateral Environmental Agreements Relevant for the Purpose of the London Protocol”, LC 29/9, 21 September 2007, at 3Google Scholar

115. Art. 16, Protocol on Environmental Protection to the Antarctic Treaty, 1991, 30 I.L.M. 1461 (entered into force 14 January 1998); Antarctic Treaty, 1 December 1959, 402 U.N.T.S. 71 (entered into force 23 June 1961).

116. Ibid.

117. Art. 6, Annex VI, Protocol to the Antarctic Treaty, supra note 115.

118. Ibid. This Annex has not yet entered into force.

119. Liability cannot be imposed when an unforeseeable natural disaster of an exceptional character causes the environmental emergency, and if all reasonable preventative measures are taken in advance: ibid., art. 8, Annex VI.

120. Ibid., art. 6(3), Annex VI.

121. Ibid., art. 10, Annex VI; Kiss and Shelton, supra note 91, at 1137−8.

122. Art. 4, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, supra note 89.

123. Art. 48, Draft Articles on Responsibility of States for Internationally Wrongful Acts, supra note 89.

124. Patricia BIRNIE et al., International Law and the Environment (New York: Oxford University Press 2009) at 235Google Scholar

125. Unlike the CCS, which is considered eligible as a clean development mechanism, ocean fertilization has not yet been conceived as having such eligibility within the relevant international organizations.

126. Birnie and Boyle, supra note 63 at 212Google Scholar

127. Principle 15 of the Rio Declaration, supra note 62.

128. ITLOS, “Responsibility and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area”, the Seabed Dispute Chamber of the International Tribunal for the Law of the Sea, 1 February 2011, Case No. 17, at 6−7.

129. Ibid., at 7.

130. ISA, “Proposal to Seek an Advisory Opinion from the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea on Matters Regarding Sponsoring State Responsibility and Liability”, submitted by the Delegation of Nauru, the Council of the International Seabed Authority, ISBA/16/C/6, 5 March 2010.

131. Ibid., at 2; UNCLOS, supra note1, art. 139.

132. Advisory Case No. 17, para. 9(b)(v).

133. Ibid., at 5−6.

134. Ibid., at 6.

135. Ibid., paras. 64−71.

136. Ibid.

137. Ibid., para. 110.

138. Ibid., paras. 215−17.

139. Ibid., para. 176.

140. Ibid., paras. 201−3.

141. Ibid., paras. 100−205.

142. Ibid.

143. Ibid.

144. ITLOS Case No. 17, para. 198. See in the Area in ISA, “Draft Regulation 30 of the Regulations on Prospecting and Exploration for Polymetallic Sulphides”, 4 May 2010, ISBA/16/C/L.5.

145. LP, supra note 2, art. 15.

146. Ibid., art. 13.1.5.

147. LP, art. 11, Annex 2.

148. Ibid., art. 15.

149. UN, “Reports of International Arbitral Awards-Trail Smelter Case (United States, Canada)”, 16 April 1938 and 11 March 1941, Vol. III, 1905−82, at 1980.

150. Sreenivasa Rao, supra note 73 at 20−21Google Scholar

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