Marine Geo-engineering: A New Challenge for the Law of the Sea

In light of the apparent failure to agree to directly address climate change through emissions reductions, attention is increasingly focusing on alternative options to reduce the impacts of climate change. Some of these options involve engineering the earth to reduce the impact or affect of climate change; in particular, marine geo-engineering is seeking to explore ocean-based climate change mitigation measures. One of these options – the sub-seabed sequestration of carbon dioxide – has recently (and controversially) been addressed by the 1996 London Protocol to the 1972 London (Dumping) Convention. The parties to the 1996 Protocol have also asserted that this instrument has jurisdiction over ocean fertilization activities and are currently developing guidelines designed to permit fertilization for the purpose of science only. Neither sequestration nor fertilization fits entirely comfortably within the dumping regime, and it is clear that other geo-engineering schemes (such as those involving the deposit of devices into the ocean and the placement of dams across straits) will fall outside of the regulatory remit of these instruments. This paper will explore the extent to which the law of the sea is capable of responding to the marine geo-engineering challenge, and whether the current regulatory tools provide the appropriate regulatory framework for proactive management of marine geo-engineering. This paper will conclude with an outline of a proposal for the development of a regime to regulate emerging climate change mitigation technologies. Whilst policy questions and general principles relating to geo-engineering are arguably best addressed within the regime established by the 1992 United Nations Framework Convention on Climate Change, detailed regulation and management of geo-engineering technologies is better suited to institutions and regimes that have specialist expertise in the area of the technology in question. The proposal developed in the final part of this paper attempts to address both these requirements