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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
Jung-Eun KIM*
Affiliation:
Korea Institute of Ocean Science and Technology, Republic of [email protected]
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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
Information
Asian Journal of International Law , Volume 4 , Issue 2 , July 2014 , pp. 235 - 260
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

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

29. Ibid.

30. Ibid.

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

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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.

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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.

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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.

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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.

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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).

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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].

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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.

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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.

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