In a recently published article, ‘Unchartered Waters: Barriers to Ocean Carbon Removal in the High Seas under UNCLOS and BBNJ’, Stevens Connor assessed the UN Convention on the Law of the Sea (‘UNCLOS’) and the Recent Agreement on Marine Biodiversity of Areas beyond National Jurisdiction (‘BBNJ’) to ascertain the lawfulness of CDR activities in the high seas. In doing so, he underlined the necessity of testing ocean CDR methods to ascertain risks, while putting forward an approach with several levers to reach an equilibrium between the need to remove a high amount of carbon and marine solution concerns.
Key takeaways:
- Even though the UNCLOS does not directly regulate carbon sequestration, it includes rules guiding decision-making processes on the legality of ocean CDR. UNCLOS is a living instrument and includes various vague concepts and parts that may encompass ocean CDR. In addition, it comprises of several rules that risk the exclusion of CDR methods from its scope. Inconsistencies between such rules and the vague terminology of the document as well those between the rules render the realization of CDR activities in the high seas a complex endeavour.
- There are several UNCLOS rules posing significant barriers to CDR implementation in the high seas. No country can exercise sole control in the high seas as well as the seabed and soil under the waters of high seas.
- That said, there are activities that can be freely carried out in the high seas enumerated in Article 87 that can be interpreted to include marine CDR such as building ‘artificial islands and installations’ and carrying out scientific research. That said, the treaty does not clearly define the former concept and states are expected to take into account the interests of other states when carrying out activities in the high seas, further complicating the situation. Similarly, given that the treaty does not define the activities amounting to scientific research, it is unclear whether marine CDR activities fall within the scope of this term. Moreover, scientific activities should comply with all the regulations adopted in line with the UNCLOS and not unreasonably restrict other lawful uses of the high seas, further constraining the activities qualifying as scientific research.
- Moreover, all marine CDR activities should comply with the rules of the UNCLOS on pollution. Importantly, the portrayal of CO2 as a pollutant under the UNCLOS would risk blocking the realization of all of the marine CDR activities in the high seas.
- The BBNJ substantiates the UNCLOS by regulating conservation and utilization of marine biodiversity. It is not clear how area-based management tools (‘ABMTs’) utilized with the purpose of obtaining certain environmental goals will be used in practice. On the one hand, ABMTs can allow for various kinds of ocean CDR while considerably reducing possible harms inflicted by diverse methods to the environment. However, they can also be utilized without having significant climate benefits.
- Similarly, there are ambiguities regarding the effectiveness of the environmental impact assessments to be carried out under the BBNJ. Indeed, it is uncertain how the environmental impact assessments will help promote disclosure, liability and credibility, raising questions regarding its implications for marine CDR.
- Therefore, ocean CDR testing should be carried out in two stages, with territorial seas and enhanced economic zones being used to investigate the effects of extensive deployment prior to the realization of marine CDR activities in high seas. In addition, area-based management tools utilizing information from territorial seas and enhanced economic zones should be used regardless of whether or not the BBNJ enters into force. Lastly, the definitions of ‘pollution of the marine environment’ and ‘dumping’ under the UNCLOS should be amended to ensure that marine CDR activities are not constrained by these concepts.
Read the full paper here: https://transnat.org/post/uncharted-waters-barriers-to-ocean-carbon-removal-in-the-high-seas-under-unclos-and-the-bbnj#:~:text=