Webb, Romany M.

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The ITLOS Advisory Opinion andMarine GeoengineeringRomany M. Webb 2024-05-25T09:16:51On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) releasedits long-awaited advisory opinion on climate change. The opinion was requested in2022 by the Commission of Small Island States on Climate Change and InternationalLaw, which asked ITLOS to opine on States’ obligations to address climate changeunder the United Nations Convention on the Law of the Sea (UNCLOS). More than40 states, international organizations, and NGOs submitted written comments onthe request, and many others participated in oral hearings hosted by ITLOS. Therewas little discussion, either in the written statements or at the oral hearing, of so-called “marine geoengineering” activities that seek to use the ocean to combatclimate change. The ITLOS advisory opinion similarly pays little attention to marinegeoengineering, expressly mentioning it in just one paragraph (out of 441).Unsurprisingly, given this cursory treatment, the advisory opinion does little toclarify the legal status of marine geoengineering, raising more questions than itanswers. In particular, this post argues that ITLOS’ reasoning suggests that marinegeoengineering activities—or at least a subset of them—might be viewed as botha source of marine pollution and a means of preserving the marine environment.But ITLOS fails to provide useful guidance on whether, when, and how marinegeoengineering activities might be pursued. Instead, ITLOS seems content to leavethose determinations to other treaty bodies.The Potential Use of Marine Geoengineering toCombat Climate ChangeBroadly defined, marine geoengineering refers to a suite of activities that involvedeliberate intervention in the marine environment to manipulate natural processes,and thereby combat climate change. Geoengineering techniques are often dividedinto two broad categories. The first, known as greenhouse gas (GHG) removal,seeks to mitigate climate change by pulling GHGs – most commonly carbon dioxide– out of the atmosphere and durably storing them. The second category of marinegeoengineering activities, known as solar radiation management or modification(SRM), do not directly target GHGs. Rather, SRM approaches seek to lessenthe impacts of climate change by reflecting sunlight into outer space. Given thesignificant differences between GHG removal and SRM (both in terms of theirobjectives and how they work), some have argued that they should not be lumpedtogether under the “geoengineering” moniker. But that term continues to be widelyused in international discussions.- 1 -Marine geoengineering first came to the attention of the international communityin 2007, when a U.S.-based company—Planktos—announced plans to undertakea project aimed at removing and storing carbon dioxide. Specifically, Planktosproposed to use an approach known as ocean fertilization, whereby iron orother nutrients are added to the ocean with the goal of stimulating the growth ofphytoplankton, which uptake carbon dioxide through photosynthesis and convertit into organic carbon. The hope is that the carbon will end up in the deep ocean,where it will remain stored for long periods, but that has not yet been proven. (Formore on the scientific uncertainties regarding ocean fertilization, see here.)The Planktos proposal never went ahead, but it did prompt the internationalcommunity to consider whether and how ocean fertilization should be regulated.Much of the discussion has occurred under the 1972 Convention on the Preventionof Marine Pollution by Dumping of Waste and Other Matter (London Convention)and the 1996 Protocol to that Convention (London Protocol). In 2008, the partiesdetermined that “the scope of the London Convention and Protocol includesocean fertilization activities,” and adopted a non-binding governance frameworkfor those activities. Later, in 2013, the parties to the London Protocol adopted anamendment on marine geoengineering. The amendment currently only applies toocean fertilization, but the parties are considering expanding it to also apply to otherGHG removal and SRM activities, specifically:1. Ocean alkalinity enhancement, whereby alkaline materials are added to theocean, with the aim of triggering a series of chemical reactions through whichcarbon dioxide in the water is converted into other forms of dissolved inorganiccarbon, thus enabling the ocean to uptake more carbon dioxide from theatmosphere.2. Macroalgae cultivation, which involves growing kelp or other types of seaweedthat uptake carbon dioxide and stores it, in the form of organic carbon, in theplant biomass. That biomass can then, at least in theory, be sunk into the deepocean to sequester the carbon it contains.3. Marine cloud brightening, which aims to increase the brightness and thus thereflectivity of certain clouds. One commonly discussed approach for marinecloud brightening involves injecting sea salt spray or other materials into clouds.4. Ocean albedo modification using microbubbles or reflective particles, whichinvolves spraying or injecting microbubbles of air into surface ocean waters, withthe goal of increasing the ocean’s reflectivity.It should be noted that these are not the only marine geoengineering activitiesthat scientists have proposed or that are currently being researched. They have,however, been the focus of recent discussions under the London Conventionand Protocol. Those discussions have not, to date, resulted in any legally bindinginstruments to regulate marine geoengineering. The 2013 amendment is intendedto be binding but has not yet entered into force. For that to happen, the amendmentmust be ratified by two-thirds of the 53 parties to the London Protocol, but only sixStates have stepped up so far. As a result, there is significant uncertainty as to howmarine geoengineering activities will be treated, and different countries have takendifferent approaches.- 2 -Given the slow rate of progress under the London Convention and Protocol, some(myself included) had hoped that the ITLOS advisory opinion might shed additionallight on the regulation of marine geoengineering activities. But, in fact, the advisoryopinion raises more questions than it answers.ITLOS’ Findings With Respect to States’ Obligationsto Control Marine Pollution from GHG EmissionsAs has already been widely reported, one of the key conclusions in the ITLOSadvisory opinion is that “anthropogenic GHG emissions into the atmosphereconstitute pollution of the marine environment within the meaning of article 1,paragraph 1, subparagraph 4, of” UNCLOS (para 179). To reach that conclusion,ITLOS broke the definition of marine pollution in article 1 of UNCLOS into its threeconstituent parts, noting that: “(1) there must be a substance or energy; (2) thissubstance or energy must be introduced by humans, directly or indirectly, into themarine environment, and (3) such introduction must result or be likely to result indeleterious effects” (para 161). ITLOS further clarified that, while the thee “criteriaare cumulative” (i.e., all of them must be met), the definition of marine pollution inUNCLOS is otherwise broad and “general in that it encompasses whatever satisfiesthe criteria” (para 161).ITLOS’ finding that anthropogenic GHG emissions constitute marine pollutiontriggers the application of article 194 of UNCLOS, which declares that “States shalltake . . . all measures . . . that are necessary to prevent, reduce and control pollutionof the marine environment from any source.” ITLOS noted that article 194 “leavesit to each State to determine what measures are necessary” but concluded thatthe determination must be made “objectively” taking into account, among otherthings, the best available science on climate change and the international rulesand standards adopted to address it (paras 206-207). After surveying both, ITLOSdeclared that article 194 of UNCLOS “imposes upon States a legal obligation . . .to reduce [GHG] emissions” (para 223). It characterizes that obligation as one of“due diligence,” requiring each State to “put in place a national system” to controlemissions, and effectively enforce that system (among other things) (para 235).ITLOS’ focus on reducing GHG emissions makes sense given that it is the singlemost important action required to combat climate change. However, the latestclimate science makes clear that emissions reductions alone will not be sufficient,and GHG removal will also be required. The Intergovernmental Panel on ClimateChange’s Sixth Assessment Report, which is quoted extensively in the advisoryopinion, found that GHG removal will be essential to achieve the goals of the 2015Paris Agreement, which ITLOS says should inform the assessment of the measuresnecessary to combat pollution. Despite that, though, the advisory opinion doesnot discuss the potential use of GHG removal to address pollution of the marineenvironment from anthropogenic GHG emissions.The reasoning in the advisory opinion suggests that ITLOS does not view GHGremoval and other forms of marine geoengineering as ways of addressing climate-- 3 -related pollution but rather as potentially polluting activities. Indeed, in the soleparagraph discussing marine geoengineering, ITLOS warned that “Article 195of [UNCLOS] requires States, in taking measures to prevent, reduce and controlpollution of the marine environment, not to transfer . . .damage or hazards from onearea to another or transform one type of pollution into another” (para 231). ITLOSthen went on to state: “Marine geoengineering would be contrary to article 195 if ithas the consequence of transforming one type of pollution into another” (para 231).The advisory opinion does not explore when marine geoengineering activitiesmight involve pollution of the marine environment. ITLOS’ finding that GHGemissions result in marine pollution is illustrative, however. Activities like oceanfertilization would meet the three criteria for marine pollution identified by ITLOS:(1) a substance (e.g., iron) (2) is introduced into the marine environment throughhuman activities (e.g., discharge from a vessel into ocean waters) and (3) couldhave deleterious effects (e.g., causing algae booms and/or nutrient robbing). Thesame might be said of various other marine geoengineering activities, such as oceanalkalinity enhancement and marine cloud brightening.All of this suggests that, where a State uses or allows marine geoengineering, itcould be found to have engaged in or allowed a polluting activity in violation ofUNCLOS (at least in some circumstances). However, other parts of the ITLOSadvisory opinion suggest that marine geoengineering could be viewed as a means ofpreserving and protecting the marine environment, which States have an obligationto do under UNCLOS.ITLOS’ Findings With Respect to States Obligations’to Protect and Preserve the Marine EnvironmentIn the advisory opinion, ITLOS recognized that climate change is negativelyimpacting the ocean in various ways, including through ocean acidification andwarming, both of which pose serious risks to marine species. ITLOS furtherrecognized that, “even if anthropogenic GHG emissions were to cease, thedeleterious effects on the marine environment would nevertheless continue owingto the extent of GHGs already accumulated in the atmosphere” (para 199). Certainmarine geoengineering techniques—particularly those involving GHG removal—could be used to mitigate those effects.That is notable because, under article 192 of UNCLOS, “States have the obligationto protect and preserve the marine environment.” The ITLOS advisory opiniondescribed this obligation as “broad [in] scope, encompassing any type of harmor threat to the marine environment,” including those arising from climate change(paras 385 and 388). States thus have an obligation to protect the marineenvironment from climate-related impacts. Moreover, to the extent that climatechange has already damaged the marine environment, states may need to takesteps to remedy that damage. In this regard, the advisory opinion stated: “Wherethe marine environment has been degraded, the Tribunal is of the view that the term“preservation” may include restoring marine habitats and ecosystems” (para 386).- 4 -However, since the word “may” was used, the exact scope of States’ obligation isuncertain.In the advisory opinion, ITLOS noted that participants identified three broadcategories of actions that could be taken to protect and preserve the marineenvironment in the context of climate change: (1) climate change mitigation actions,(2) climate adaptation and resilience actions, and (3) actions to protect marineecosystems that sequester carbon dioxide. ITLOS confirmed that states havean “obligation” to reduce GHG emissions and are “require[d] to implement  . . .resilience and adaptation actions as described in the climate change treaties.”ITLOS did not, however, explicitly address States’ obligations with respect toprotecting marine ecosystems that sequester carbon dioxide. ITLOS noted that“carbon sequestration” could be enhanced “through measures to restore the marineenvironment” but did not provide any further guidance on the precise measuresStates can, should, or must take. Many marine geoengineering activities havethe potential to increase carbon sequestration in the ocean, while also helping tomitigate ocean acidification and other negative impacts from climate change. Giventhat, does article 192 of UNCLOS allow, or even require, States to pursue thoseactivities? And, if so, how does that square with ITLOS’ warning that the activitiesmight violate article 195?ConclusionThe ITLOS advisory opinion does little to resolve the long-standing uncertaintyregarding the legal status of marine geoengineering activities. On the contrary,the opinion raises more questions than it answers. ITLOS seems content to leavethose questions to others. Indeed, in the advisory opinion, ITLOS noted that “marinegeoengineering has been the subject of discussions and regulations in variousfora,” including the London Convention and Protocol. But after nearly twenty years,the regulatory framework for marine geoengineering adopted by the parties tothe London Convention and Protocol is still not, strictly speaking, legally binding.Perhaps the advisory opinion will spur the parties into action.- 5 -

The ITLOS Advisory Opinion and Marine Geoengineering

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The ITLOS Advisory Opinion and Marine Geoengineering

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