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2013 CCLR 108 (2013)
Regulating Ocean Fertilization under International Law: The Risks

handle is hein.journals/cclr2013 and id is 116 raw text is: Regulating Ocean Fertilization under International Law: The Risks Karen N. Scott* This paper explores the regulatory regime for ocean fertilization under the dumping regime, which comprises the 1972 London Convention and 1996 Protocol. It assesses the extent to which ocean fertilization is presently subject to mandatory and voluntary controls and provides an overview of the proposals currently under active consideration designed to develop a comprehensive regime for ocean fertilization. Whilst acknowledg- ing the benefits of regulation and the importance of environmental protection, this paper concludes with a warning against considering ocean fertilization in isolation from the broader context of geoengineering and climate change more generally. 1. Introduction In July 2012 the Haida Salmon Restoration Corpo- ration made international headlines when it delib- erately dumped loo metric tonnes of iron sulphate into the ocean off the coast of western Canada.' The scheme, which dumped five times more iron into the ocean than any of the previous thirteen iron fertilization experiments carried out to date,2 was ostensibly designed to both increase local salmon populations and to sequester carbon dioxide. The scheme was not authorised by the Canadian govern- ment,4 did not comply with international guide- lines on ocean fertilization5 and was condemned by the international community.6 Despite the fact that ocean fertilization has been subjected to greater regulatory and policy scrutiny than any * Professor in Law, University of Canterbury, New Zealand. 1 Jeff Tollefson, Ocean-fertilization Project off Canada Sparks Furore 490 Nature (October 25 2012) 458, at 458. 2 Tollefson, ibid. For an overview of the thirteen experiments carried out to date, see Doug Wallace et al., Ocean Fertilization: A Scientific Summary for Policy Makers (Paris: IOC/UNESCO, 2010), at 3. 3 Tollefson, Ocean-fertilization, supra, note 1, at 458. 4 See the Statement by the Delegation of Canada on the Issue of the Ocean Fertilization Incident off the West Coast of Canada in July 2012, reproduced in the Report of the Thirty-Fourth Consultative Meeting and the Seventh Meeting of the Contracting Parties (LC 34/15), 23 November 2012, Annex 3. 5 Ibid. other geoengineering method so far, and a volun- tary moratorium on fertilization for purposes other than scientific research is in place,7 this incident demonstrates the limits of the current regime. This article will explore the developing regime for ocean fertilization with particular emphasis on the question of regulatory control. Although the States party to the 1972 London Convention8 and 1996 Protocol9 adopted a comprehensive risk assessment framework for scientific research involving ocean fertilization in 2010, 1 this instru- ment is not binding and does not apply to fertiliza- tion projects such as the Haida Salmon scheme, which do not constitute scientific research. Discus- sions with respect to how these standards should be made binding under the dumping regime are 6 See the Statement of Concern Regarding the Iron Fertilization in Ocean Waters West of Canada reproduced in the Report of the Thirty-Fourth Consultative Meeting, supra, note 4, Annex 7. 7 Resolution LC.LP.1 (2008) on the Regulation of Ocean Fertiliza- tion (31 October 2008). 8 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, London, 13 November 1972, in force 30 August 1975, 11 International Legal Materials (1972), 1358. 9 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, in force 24 March 2006, 36 International Legal Materials (1997), 7. 10 Resolution LC.LP.2 (2010) on the Assessment Framework for Sci- entific Research Involving Ocean Fertilization, 14 October 2010. 108 | Regulating Ocean Fertilization under International Law CCLR 2|2013

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