Robert,
You have raised a series of questions about the proposed amendment that I will attempt to answer – references are to your paragraphs. Apologies for some of the formatting around bullets that got messed up when I pasted the text in. A quick point about the London Protocol (LP). It is not a conventional Protocol to a Convention but a standalone instrument that will eventually replace the London Convention (LC). Para 1 – Extension of the remit of the LP It is clearly understood that this proposal extends the remit beyond the original regulatory remit but still within the overall remit of protecting the marine environment given in LP Article 2 i.e. "…protect and preserve the marine environment from all sources of pollution…". This is consistent with the argument used to extend the LP in 2006 to cover CO2 storage in sub-seabed geological formations. It is perfectly legitimate for Parties to a Convention/Protocol to extend its remit provided it is within its overall aims and objectives. In addition, the LC and LP both regard non-dumping activities such as marine geoengineering as a "placement" activity. In the LP placement is defined as "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" (Article 1.4.1.2). This amendment proposal is designed to ensure that any permitted marine geoengineering activity is not contrary to the aims of the Protocol. With regard to the definition of "marine geoengineering": - As is said in para 12 of the covering paper, the definition is necessarily broad so as to provide for the flexibility to respond to new activities and techniques in the future. As far as I am aware, the LP Parties have no intention to regulate all activities that could fall within the definition of "marine geoengineering". So the definition of marine geoengineering is essentially an initial filter and further consideration then has to be given to what should be regulated and that activity would have to be defined to be included in the proposed Annex 4. Thus, you should not look at the definition of marine geoengineering in isolation but look at the package i.e. the definition plus the listing in Annex 4. In this context, note what is said in para 13 of the covering paper. - The definition of the activity in Annex 4 would be the operative definition for any regulation and only activities defined in Annex 4 would be regulated. - For the proposed flexible mechanism to work, we believe we need an overall definition of marine geoengineering or a similar term to encompass all potential activities that we might want to list in Annex 4. Any suggestions for an alternative term? - As the definition of ocean fertilisation already adopted by the Contracting Parties (CPs) to the London Convention and London Protocol (LP) covers activities beyond those designed to counteract climate change i.e. fisheries enhancement, the definition of marine geoengineering cannot be limited to just activities designed to counteract climate change. Also, since the definition of ocean fertilisation is included in Annex 4, Russ George’s activities would be caught as those activities are not considered to be conventional aquaculture or mariculture. Para 2 – Regulation of marine geoengineering under the LP and its relationship to other environments It is well understood that the marine environment is connected to the terrestrial and atmospheric environments and there is no intention to compartmentalise the regulation of activities responding to climate change without consideration for effects in other environments. Indeed LP article 3.3 states "In implementing the provisions of this Protocol, Contracting Parties shall act so as not to transfer, directly or indirectly, damage or likelihood of damage from one part of the environment to another or transform one type of pollution into another." However, the sea does have a separate legal regime established by the UN Convention on the Law of the Sea (UNCLOS) and the LC/LP works within that regime. Any regulation of marine geoengineering has to work with the UNCLOS framework. The proposed LP amendment as it stands would only regulate ocean fertilisation research where the main regulatory issue is protection of the marine environment. The LP is thus the appropriate instrument for govern marine geoengineering research. However, guidance from a global geoengineering regime would be needed to ensure that the research produces the required information to assess its efficacy, acceptability, verifiability etc for climate mitigation purposes. However, I suggested back in 2009 that there is no reason why regulation of marine geoengineering activities including deployment could not be managed by the LP based on an agreement between the LP and whatever global geoengineering regime might be established so that the LP implemented the requirements of that regime – see *http://www.oceanstewardship.com/IOSF%202009/Keynotes_2009/CVivian_2009.pdf*<http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=4&cad=rja&ved=0CEEQFjAD&url=http%3A%2F%2Fwww.oceanstewardship.com%2FIOSF%25202009%2FKeynotes_2009%2FCVivian_2009.pdf&ei=xXzaUYizNMHW0QXduYHYBg&usg=AFQjCNHFY9znsd6Un2jrhQyh3pDy5HPIRA&sig2=Fis170Y8QNrccKopz_bRsw&bvm=bv.48705608,d.d2k>. This could ensure effective and streamlined regulation of marine geoengineering. Scott made a similar suggestion in a recent paper where she stated: "Where geoengineering activities are authorised in principle it is highly likely that other bodies such as the IMO or the UN Committee on the Peaceful Uses of Outer Space are better placed than the geoengineering protocol conference of parties to develop detailed regulation designed to protect the environment and other rights of all states. It is suggested that the task of developing detailed regulation is consequently devolved to the appropriate body, taking into consideration the principles, definitions and other constraints provided for in the geoengineering protocol." - Scott, K. (2013) International law in the Anthropocene: responding to the geoengineering challenge. Michigan Journal of International Law, 34(2) 309-358 at: *http://mjilonline.org/?p=600* <http://mjilonline.org/?p=600> Para 3 - Meaning of terms * - Widespread, long-lasting and severe* - were derived from the ENMOD Convention where ‘understandings’ were agreed about their meaning – see this document for the meanings: - - * http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=A951B510E9491F56C12563CD0051FC40 *<http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=A951B510E9491F56C12563CD0051FC40> * - Legitimate scientific research* - – This was first referred to in Resolution LC-LP.1 (2008) where it stated "…for the purposes of this resolution, legitimate scientific research should be defined as those proposals that have been assessed and found acceptable under the assessment framework". Subsequently, it was also referred to in the Ocean Fertilisation Assessment Framework (OFAF) itself where it states in section 1.2. "This Framework provides a tool for assessing proposed activities on a case-by-case basis to determine if the proposed activity constitutes legitimate scientific research that is not contrary to the aims of the London Convention or Protocol". Also, it states in section 1.3.3 "The determination that a proposed activity is legitimate scientific research, and is not contrary to the aims of the London Convention and Protocol, should only be made upon completion of the entire assessment framework". * - Potential harm, practicable and natural processes* - These do not seem to require definition. However, I believe ‘practicable’ has a definition in UK law going back to the Alkali Acts of the 19th Century. Para 4 – Appropriate regulatory mechanisms The ‘flexible mechanism’ envisaged is in 2 parts. 1. Firstly, amendments to the body of the LP (article 1 definition and new article 6 bis) require adoption by a two-thirds majority vote of the Contracting Parties which are present and voting and then enter into force for the Contracting Parties which have accepted it on the sixtieth day after two-thirds of the Contracting Parties have deposited an instrument of acceptance of the amendment. This ratification process took 10 years for the LP to get the 26 ratifications and could take longer for this proposed amendment given that there are currently 42 LP Parties. 2. Secondly, amendments to annexes (LP article 22) have to be adopted by a two-thirds majority vote of the Contracting Parties present and voting. They enter into force for each Contracting Party immediately on notification of its acceptance to the Organization or 100 days after the date of their adoption at a Meeting of Contracting Parties, if that is later, except for those Contracting Parties which before the end of the 100 days make a declaration that they are not able to accept the amendment at that time. However, in the case of the proposed amendment bringing in proposed new Annexes 4 and 5, they cannot enter into force before the amendments to the main body of the LP. In addition, the Parties are currently discussing a procedure for considering the listing of an activity in proposed Annex 4 that would precede a formal amendment proposal as described above in 4.2. This includes consultation with external bodies. Consequently, I think that any future additions to proposed Annex 4 will be thoroughly consulted on before being adopted. Para 5 – Competence of LP Parties regulatory bodies As indicated in 2 above, the LP Parties are competent to deals with assessing marine geoengineering research activities. The national bodies that implement the LP are generally environmental/marine environmental regulators. A body responsible for geoengineering in general would not be competent to deal with the marine environmental protection aspects of any proposed marine geoengineering activity. See also point 2 above for comments about joined up regulation of marine geoengineering deployment activities. The Governing Bodies of the LC and LP have each established Scientific Groups that meet jointly to provide scientific advice to them on a wide range of issues. In developing the OFAF, the Intergovernmental Oceanographic Commission was involved along with individual marine scientists from some Parties. Delegations supporting the amendments do not wish to unduly interfere with marine scientific research and have carefully considered this matter. However, this proposed amendment would allow ocean fertilisation field experiments to take place, subject to passing the OFAF, while meeting the requirements of CBD Decision X/33(8)(w). Without the proposed amendment, it is unlikely that this could happen. Para 6 – Need for subsequent treaty changes It is indeed the case that Annex 4 provides for permits only for ‘legitimate scientific research’ and this is consistent with Resolution LC-LP.1 (2008). However, the process to amend annexes described in 4.2 above provides a reasonable means to amend proposed Annex 4.1 if and when required. Your concern at a potential constraint in this paragraph appears contrary to your point in paragraph 4 where you appear to want a more demanding process. Para 7 – Legitimacy of extending remit of the LP As indicated in point 1 above, the amendment proposal is addressed at protecting the marine environment and preventing marine pollution from certain placement activities. The LC/LP are clearly right to be concerned about the potential impacts on the environment and human health of ocean fertilisation research activities that take place in the marine environment. After all, research would be taking place because we do understand enough about the activity. Your 2 scenarios are very strange since they posit an assessment that weighs the potential benefits to human health of an experiment against the potential harm to the marine environment. However, it is usually the case with activities that fall under the LC and the LP that they are assessed for the potential harm to both human health, e.g. via contamination of fish that are eaten by humans, and the marine environment. This is clear in the definition of pollution in the LP where it includes "…hazards to human health..". Chris. On Tuesday, 21 May 2013 17:52:40 UTC+1, Robert Chris wrote: > Having just last week submitted my doctoral thesis, I now have some > space to focus on other things. > > This proposed amendment raises all manner of difficulties associated with > trying to regulate an ill-defined activity in an ill-defined context for > ill-defined purposes. There are problems of legitimacy, credibility and > practicality. A number of these difficulties have already been > identified by other respondents. Most of these arise from attempts to > extend the London Convention and Protocol (LCP) into territory they were > never intended to cover. The LCP was designed to stop dumping of > physical wastes at sea. It frames the marine environment as distinct and > largely disconnected from other environments (e.g. land or atmosphere). > > Activities conceived as responses to global warming will always have > impacts across multiple environments and therefore attempts to > compartmentalise them by regulating activities in one without consideration > for secondary and tertiary effects in others, are bound to give rise to > anomalies. These anomalies will inevitably risk bringing the regulation > process into disrepute, and probably undermine the prospects of carrying > out the research needed to establish whether any form of marine based > geoengineering has real (as opposed to theoretical) potential as part of a > suite of responses to global warming. I suggest further work is > necessary on this document. > > Consider the following questions: > > What precisely is meant by normative terms such as *widespread*, *potential > harm*, *long-lasting*, *practicable*, *natural processes*, *severe*, *reduced > to a minimum*, *legitimate scientific research*? Given the scope for > disagreement when converting such expressions into action, how do those > seeking to interpret these provisions ensure that their decisions will be > respected. > > The general reference to ‘marine geo-engineering’ appears redundant and > therefore a source of potential confusion. The substance of this > proposal is limited to ocean fertilisation as defined in Annex 4.1.1. If > further regulation is proposed, as suggested in the Introduction para. 1, > it should be subject to full consultation and not arise from any less > demanding process enabling the extension of this proposal as contemplated > in the Introduction para. 9. > > As drafted, Annex 4 requires that all proposed activity receive prior > approval. Are those responsible for discharging the LCP’s ‘established > assessment and permit mechanisms’ competent to opine on geoengineering > activities whose nature and purpose is far removed from what has > conventionally been understood by dumping at sea and whose implications > extend beyond the mere protection of the marine environment, important > though that is? How can they be prevented from undermining legitimate > research by procedural means which introduce undue delay, cost or excessive > bureaucracy? > > Annex 4 also provides for permits to be issued only for ‘legitimate > scientific research’. This implies the need for further treaty changes > if the research shows that there is good reason to move to large-scale > deployment. Is that a reasonable constraint given that it could defer > for many years the move from research to deployment, effectively empowering > the LCP to take control of important climate change policy decisions whose > benefits extend far beyond its remit? The argument here is not about > whether ocean fertilisation becomes adopted as a deployable activity in > combating climate change, but whether the LCP is the proper place for such > a decision to reside. > > What is the legitimacy for extending the ambit of the LCP from its > original purpose of controlling marine pollution from the dumping of wastes > at sea, to encompass all ‘new challenges to the marine environment’ > (Introduction para. 20)? If the LCP’s primary objective is to preserve > the marine environment, why should its deliberations about research permits > for ocean fertilisation depend upon the LCP’s assessment of the ‘potential > impacts on human health and the environment’ from the research? Is the > implication that they might assess the potential impacts of Experiment A on > human health to outweigh the potential harm to the marine environment, and > therefore allow it; while Experiment B, might be rejected not because of > any significant harm it might have on the marine environment but rather > because the LCP considers it not to have adequate potential benefit for > human health? That appears to be a ,long way from where the LCP started. > This is not a reason for the LCP not to assume such responsibilities but if > it does, it should not be done by stealth. > > > > On Friday, May 17, 2013 12:23:03 PM UTC+1, Wil Burns wrote: >> >> >> FYI, Australian move to ban OIF under the London Convention: >> http://www.smh.com.au/environment/water-issues/australia-seeks-to-limit-ocean-geoengineering-20130515-2jmkn.html >> -- >> Dr. Wil Burns, Associate Director >> Master of Science - Energy Policy & Climate Program >> Johns Hopkins University >> 1717 Massachusetts Avenue, NW >> Room 104J >> Washington, DC 20036 >> 202.663.5976 (Office phone) >> 650.281.9126 (Mobile) >> [email protected] >> >> http://advanced.jhu.edu/academic/environmental/master-of-science-in-energy-policy-and-climate/index.html >> >> SSRN site (selected publications): http://ssrn.com/author=240348 >> >> >> Skype ID: Wil.Burns >> >> Teaching Climate/Energy Law & Policy Blog: >> http://www.teachingclimatelaw.org >> >> -- You received this message because you are subscribed to the Google Groups "geoengineering" group. 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