The International Law of Sub-Seabed Carbon Dioxide Storage

Transcription

1 The International Law of Sub-Seabed Carbon Dioxide Storage A Special Report to the MIT Carbon Sequestration Initiative August 2005 Mark A. de Figueiredo Massachusetts Institute of Technology Laboratory for Energy and the Environment 77 Massachusetts Avenue, Room E Cambridge, MA Tel: (617) Fax: (617) defig@mit.edu

2 I. Introduction... 4 II. United Nations Convention on the Law of the Sea (UNCLOS)... 7 A. Background... 7 B. The Convention State Sovereignty and Maritime Interests Protection and Preservation of the Marine Environment Marine Scientific Research Dispute Settlement C. Sub-Seabed Carbon Dioxide Storage in the UNCLOS Regime UNCLOS is applicable to sub-seabed storage because its jurisdiction includes seabed and subsoil Transport to a storage reservoir via a pipeline from shore would not constitute dumping under UNCLOS Carbon dioxide storage using a vessel, platform, or man-made structure at sea would be defined as dumping under UNCLOS, but is not necessarily prohibited Carbon dioxide storage related to the exploration and exploitation of natural resources (i.e. the recovery of oil or natural gas) would come under a state s sovereign rights Marine scientific research related to carbon dioxide storage would be allowed if conducted in compliance with the protection and preservation of the marine environment Clarification may be needed on whether the storage of carbon dioxide may be considered pollution of the marine environment as defined by UNCLOS. 15 III. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) A. Background B. The Convention Categorization of Wastes Precautionary Approach C. Sub-Seabed Carbon Dioxide Storage in the London Convention Regime Carbon dioxide is not specified in the London Convention Annex I list of wastes that are prohibited from being dumped. Clarification may be required on whether carbon dioxide would come under the definition of industrial waste Because the London Convention only addresses the sea and does not specifically address the seabed or subsoil, sub-seabed carbon dioxide storage is probably not governed by the London Convention In the alternative, even if sub-seabed storage is deemed to be governed by the London Convention, transport to a storage reservoir via a pipeline from shore would not constitute dumping Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources would not constitute dumping under the Convention D. London Protocol Inclusion of References to Seabed and Subsoil Categorization of Wastes... 19

3 The International Law of Sub-Seabed Carbon Dioxide Storage 3 3. Precautionary Approach Polluter Pays Principle Dispute Settlement E. Sub-Seabed Carbon Dioxide Storage in the London Protocol Regime Unlike the London Convention, the London Protocol explicitly governs the seabed and subsoil. Therefore, sub-seabed carbon dioxide storage is governed by the London Protocol regime Carbon dioxide is not included in the Annex I list of wastes or other matter which are permitted to be dumped Transport to a storage reservoir via a pipeline from shore does not constitute dumping under the Protocol Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources does not constitute dumping under the Protocol Sub-seabed carbon dioxide storage from man-made structures at sea would be defined as dumping under the London Protocol and therefore prohibited because carbon dioxide is not on the list of wastes or other matter permitted to be dumped IV. Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) A. Background B. The Convention Pollution from Land-Based Sources (OSPAR Annex I) Pollution by Dumping (OSPAR Annex II) Pollution from Offshore Sources (OSPAR Annex III) C. Sub-Seabed Carbon Dioxide Storage in the OSPAR Regime and the Report from the Group of Jurists and Linguists The jurisdiction of the OSPAR Convention includes the seabed and subsoil Transport to a storage reservoir via a pipeline from land is not prohibited Placement of carbon dioxide using a pipeline from land that is connected to a pipeline system in the maritime area is not prohibited Placement of carbon dioxide from a vessel is prohibited except for the purposes of a scientific experiment Placement of carbon dioxide from an offshore installation related to hydrocarbon production is not prohibited, depending on the source of the carbon dioxide V. Implications for Current and Prospective Carbon Dioxide Storage Operations VI. Conclusion VII. Appendix A. Abbreviations B. Parties to UNCLOS (as of February 1, 2005) C. Parties to London Convention (as of October 14, 2004) D. Parties to London Protocol (as of October 14, 2004) E. Parties to OSPAR Convention (as of March 9, 2005) F. Annex I of London Convention (Black List) G. Annex I of London Protocol (White List) H. Annex II, Article 3 of OSPAR Convention (White List)... 43

4 A Special Report to the MIT Carbon Sequestration Initiative 4 THE INTERNATIONAL LAW OF SUB-SEABED CARBON DIOXIDE STORAGE A Special Report to the MIT Carbon Sequestration Initiative Mark A. de Figueiredo MIT Laboratory for Energy and the Environment August 2005 ABSTRACT Carbon dioxide capture and storage involves the capture of carbon dioxide from a stationary source and its injection into a suitable storage reservoir, such as a subterranean or sub-seabed geologic formation. Increasing attention, especially in Europe, is being paid to the use of sub-seabed formations, such as offshore oil and gas reservoirs and deep saline formations. Some international marine conventions would appear to govern the general subject area, including covering sub-seabed geologic formations under the definition of marine environment. As carbon dioxide capture and storage progresses toward large-scale commercialization, there is a need to take into account the international marine agreements that bear upon the technology s legality, including the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol, which will eventually replace the London Convention), and regional agreements such as the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention). Under all these agreements, there is some method of carbon dioxide storage that would appear to be valid. The injection of carbon dioxide into sub-seabed geologic formations for the purposes of climate change mitigation has already begun in Norway, and there are plans to store carbon dioxide associated with offshore natural gas operations in Norway and Australia. Despite claims to the contrary, these projects appear to be valid under international law. I. INTRODUCTION In the face of increasing evidence of possible changes in the global climate as a result of anthropocentric causes 1 and the expectation that widespread use of fossil fuels will continue for the foreseeable future, 2 carbon dioxide capture and storage (CCS) is becoming part of the portfolio of options that many industrialized countries are considering to manage greenhouse gas emissions. 3 CCS involves the capture of carbon Ph.D. Candidate, Technology Management and Policy, Massachusetts Institute of Technology; J.D. Candidate, University of Virginia School of Law. I thank David Reiner and Howard Herzog for their helpful comments. 1 CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS (J.T. Houghton et al. eds., 2001). 2 U.S. ENERGY INFORMATION ADMINISTRATION, ANNUAL ENERGY OUTLOOK 5 (February 2005). 3 See, e.g., AUSTRALIAN GOVERNMENT, SECURING AUSTRALIA S ENERGY FUTURE 143 (2004); Norway State Secretary Øyvind Håbrekke, Address at the OSPAR Workshop on the Environmental Impact of

5 The International Law of Sub-Seabed Carbon Dioxide Storage 5 dioxide from a stationary source and its injection into a suitable storage reservoir, such as a sub-terranean or sub-seabed geologic formation. 4 Increasing attention, especially in Europe, is being paid to the use of sub-seabed formations, such as offshore oil and gas reservoirs and deep saline formations. 5 In fact, the Norwegian firm Statoil already reinjects by-product carbon dioxide into a saline formation beneath the North Sea as part of its operations at the offshore Sleipner natural gas field. 6 CCS has begun to be discussed among governments and scientific groups comprising the international climate policy community, including the Intergovernmental Panel on Climate Change, 7 the United Nations Framework Convention on Climate Change, 8 and the seventeen-country Carbon Sequestration Leadership Forum. 9 Nevertheless, the storage of carbon dioxide in sub-seabed geologic formations has not been specifically addressed in any multilateral environmental agreements that are currently in force. Some /international marine conventions would appear to govern the general subject area, including covering sub-seabed geologic formations under the definition of marine environment. Relevant international conventions include the 1982 United Nations Convention on the Law of the Sea (UNCLOS) 10 and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention). 11 Regional marine agreements are also relevant to CCS, but are specific to a particular marine environment. For example, the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) is specific to the North- Placement of Carbon Dioxide in Geological Structures in the Maritime Area (Oct. 26, 2004); U.K. DEPARTMENT OF TRADE AND INDUSTRY, OUR ENERGY FUTURE CREATING A LOW CARBON ECONOMY 90 (2003); U.S. DEPARTMENT OF ENERGY, OFFICE OF FOSSIL ENERGY, CARBON SEQUESTRATION TECHNOLOGY ROADMAP AND PROGRAM PLAN 9 (2004). 4 See, e.g., Howard Herzog & Dan Golomb, Carbon Capture and Storage from Fossil Fuel Use, in ENCYCLOPEDIA OF ENERGY 277, 280 (C.J. Cleveland et al. ed., 2004), available at 5 U.K. Department of Trade and Industry, supra note 3 at 90; Address by Norway State Secretary Øyvind Håbrekke, supra note 3. 6 Tore Torp & John Gale, Demonstrating Storage of CO 2 in Geological Reservoirs: The Sleipner and SACS Projects, 29 ENERGY 1361, 1362 (2004). 7 Intergovernmental Panel on Climate Change, Report of the Nineteenth Session of the Intergovernmental Panel on Climate Change (IPCC), Decision 7, at 7 (2002), available at Intergovernmental Panel on Climate Change Working Group III, Special Report on Carbon Dioxide Capture and Storage, at (last visited Feb. 27, 2005). 8 Report of the Conference of the Parties on its Seventh Session, Part Two: Action Taken by the Conference of Parties, at 50, U.N. Doc. FCCC/CP/2001/13/Add.1 (2001), available at 9 John J. Fialka, Industrial Nations Seek to Cut Emissions, WALL ST. J., June 25, 2003, at B2. See also, Carbon Sequestration Leadership Forum, About the CSLF, at (last visited Feb. 27, 2005). 10 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (1982), reprinted in Official Text of the United Nations Convention on the Law of the Sea, U.N. Sales No. E.83.V.5 (1983) and 21 I.L.M (1982) [hereinafter UNCLOS]. 11 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature Dec. 29, 1972, 26 U.S.T. 2406, 1046 U.N.T.S. 120 [hereinafter London Convention].

6 A Special Report to the MIT Carbon Sequestration Initiative 6 East Atlantic. 12 A summary of major regional marine conventions and action plans and their corresponding marine environments is shown in Table 1. Table 1: Regional Marine Conventions and Action Plans 13 Marine Environment Antarctic/Southern Ocean Arctic Baltic Sea Black Sea Caspian Sea East Asian Seas Eastern Africa/Western Indian Ocean Mediterranean Sea North-East Atlantic North-East Pacific North-West Pacific Red Sea/Gulf of Aden ROPME Sea/Kuwait South Asian Seas South Pacific South-East Pacific West and Central Africa Wider Caribbean Sea Convention/Action Plan CCAMLR PAME Helsinki Convention Bucharest Convention CEP COBSEA Nairobi Convention Barcelona Convention OSPAR Convention COCATRAM NOWPAP Jeddah Convention Kuwait Convention SACEP Noumea Convention Lima Convention Abidjan Convention Cartagena Convention The purpose of this paper is to clarify the state of international law with respect to the storage of carbon dioxide in sub-seabed geologic reservoirs. Part II analyzes UNCLOS, which entered into force in Although 148 countries are bound to UNCLOS, 14 it has not been ratified by the United States. 15 The United States is bound to the 1958 Geneva Conventions on the Law of the Sea which preceded UNCLOS, 16 but has chosen 12 Convention for the Protection of the Marine Environment of the North-East Atlantic, opened for signature Sept. 22, 1992, 32 I.L.M [hereinafter OSPAR Convention] 13 See U.N. ENVIRONMENT PROGRAMME, REGIONAL SEAS: STRATEGIES FOR SUSTAINABLE DEVELOPMENT (2002). 14 U.N. Division of Ocean Affairs and the Law of the Sea, Chronological List of Ratifications of, Accessions and Successions to the Convention and the Related Agreements (Feb. 1, 2005), at 15 An international agreement (treaty, convention, etc.) is an agreement between two or more states that is intended to be legally binding. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 301(1) (1987). In the United States, the President has the power, by and with the advice of the Senate, to make treaties. U.S. CONST. art. II, 2, cl. 2. An agreement enters into force when all the negotiating parties have expressed consent to be bound, or as otherwise provided in the agreement. RESTATEEMNT (THIRD) OF FOREIGN RELATIONS LAW 312(1) (1987). 16 The 1958 Geneva Conventions on the Law of the Sea are: Convention on the Territorial Sea and the Contiguous Zone, opened for signature Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205; Convention on the Continental Shelf, opened for signature Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311; Convention

7 The International Law of Sub-Seabed Carbon Dioxide Storage 7 to follow many of the UNCLOS provisions, including those related to maritime commerce. 17 UNCLOS establishes an international legal order for seas and oceans, including the seabed and subsoil. Part III of the paper reviews the London Convention, which regulates the pollution of the sea by dumping of wastes and other matter, and the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol), which although not yet in force, is intended replace the London Convention. 18 Part IV looks at the applicability of CCS under one particular regional marine agreement: the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), 19 including initial views set out by the Group of Jurists and Linguists to the OSPAR Convention on the compatibility of the Convention with CCS under various placement scenarios. 20 The OSPAR Convention is particularly relevant because of European interest in sub-seabed storage of carbon dioxide in the North Sea. 21 Finally, Part V focuses on the implications of international law on current and prospective carbon dioxide storage operations. II. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS) A. Background UNCLOS is the result of a series of three conferences on the law of the sea that began in the aftermath of World War II when jurisdictional questions arose regarding ownership of the ocean s assets. 22 The First United Nations Conference on the Law of the Sea (UNCLOS I), held in 1958, resulted in four Geneva Conventions: the Convention on the Territorial Sea and Contiguous Zone; 23 Convention on the Continental Shelf; 24 Convention on the High Seas; 25 and Convention on Fishing and Conservation of Living Resources. 26 The Geneva Conventions were ratified by the United States Senate. They on the High Seas, opened for signature Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82; Convention on Fishing and Conservation of the Living Resources of the High Seas, opened for signature Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S John R. Stevenson & Bernard H. Oxman, Comment, The Future of the United Nations Convention on the Law of the Sea, 88 AMER. J. INT L. L. 488, 490 (1994) Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 and Resolutions Adopted by the Special Meeting, opened for signature Nov. 7, 1996, 36 I.L.M. 1 [hereinafter London Protocol]. 19 OSPAR Convention, supra note OSPAR COMMISSION, REPORT FROM THE GROUP OF JURISTS AND LINGUISTS ON PLACEMENT OF CARBON DIOXIDE IN THE OSPAR MARITIME AREA (2004). 21 See, e.g., Address by Norway State Secretary Øyvind Håbrekke, supra note The United Nations Convention on the Law of the Sea Hearing Before the House Comm. on Int l Relations, 108th Cong. 68, 73 (2004) (testimony of Prof. John Norton Moore, University of Virginia School of Law). 23 Convention on the Territorial Sea and the Contiguous Zone, opened for signature Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S Convention on the Continental Shelf, opened for signature Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S Convention on the High Seas, opened for signature Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S Convention on Fishing and Conservation of the Living Resources of the High Seas, opened for signature Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S. 285.

8 A Special Report to the MIT Carbon Sequestration Initiative 8 have since been superseded by UNCLOS, however, the United States is bound to the Geneva Conventions because it is not a signatory to UNCLOS. Following UNCLOS I and the Geneva Conventions, the United States initiated discussions to define the maximum breadth of the territorial sea and the extent of navigational freedom through straits. 27 This was due to a number of claims against the United States threatening its navigational interests. 28 The Second United Nations Conference on the Law of the Sea (UNCLOS II), held in 1960, focused on the limits of the territorial zone and fishing rights, but failed to produce any substantive agreement. 29 The Third United Nations Conference on the Law of the Sea (UNCLOS III) met for ninety-three weeks between December 1973 and December 1982, 30 and resulted in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Convention entered into force November 16, 1994, and had 148 parties as of February 1, Under Article 311 of UNCLOS, the Convention prevails over the 1958 Geneva Conventions. 32 A few countries, including the United States, have not ratified UNCLOS, but are still bound to the previous Geneva Conventions. The United States main concern has been the deep seabed mining and technology transfer provisions of UNCLOS. 33 For example, UNCLOS states that deep seabed mining activities be carried out for the benefit of mankind as a whole and taking into particular consideration the interests and needs of developing States, 34 with decision making authority granted to an International Seabed Authority. 35 The deep seabed mining provisions were renegotiated in a 1994 Agreement that came into force in 1996 and supersedes the deep seabed mining provisions of UNCLOS. 36 The Agreement, to which the United States is a signatory, amends some of the discretionary powers of the International Seabed Authority and eliminates mandatory technology transfer provisions. 27 Hearing, 108th Cong. at Id. 29 Amy degeneres Bennett, Comment, UNCLOS III: Pollution Control in the Exclusive Economic Zone, 55 LA. L. REV. 1165, 1175 (1995). 30 CONGRESSIONAL RESEARCH SERVICE, CRS ISSUE BRIEF FOR CONGRESS: THE LAW OF THE SEA CONVENTION AND U.S. POLICY CRS-1 (Sept. 29, 2003). 31 U.N. Division of Ocean Affairs and the Law of the Sea, supra note UNCLOS, supra note 10, art President Ronald Reagan remarked that while most provisions of the draft convention are acceptable and consistent with United States interests, some major elements of the deep seabed mining regime are not acceptable. President Ronald Reagan, Statement on United States Participation in the Third United Nations Conference on the Law of the Sea (Jan. 29, 1982), available at 34 UNCLOS, supra note 10, art Id. art Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, opened for signature Jul. 28, 1994, U.N. GAOR, 48th Sess., 101st plen. mtg., Annex, U.N. Doc. A/RES/48/263/Annex (1994), reprinted in 33 I.L.M. 1309, Annex at 1313 (1994) [hereinafter Agreement].

9 The International Law of Sub-Seabed Carbon Dioxide Storage 9 Although the United States is not a party to UNCLOS, its policy has been to act in a manner consistent with the UNCLOS provisions relating to traditional uses of the sea. 37 Some scholars argue that accession of the United States is unnecessary because the United States can rely on customary international law. 38 However, other scholars argue that accession is vital to United States national security and economic interests. 39 In early 2004, the United States Senate Foreign Relations Committee unanimously recommended that the full Senate give its advice and consent to UNCLOS ratification. 40 The Bush Administration is on record as supporting accession to UNCLOS. 41 B. The Convention The goal of UNCLOS is to provide a codification of the law of the sea in order to promote the peaceful uses of the seas and oceans, equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment. 42 UNCLOS is divided into 17 parts and 320 articles. Its jurisdiction includes the seabed, ocean floor and subsoil. 43 UNCLOS establishes rules which include state sovereignty and maritime interests, the protection and preservation of the marine environment, marine scientific research, technology transfer, and dispute settlement. Under UNCLOS, dumping is defined as any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made 37 Ambassador Sichan Siv, Statement in the U.N. General Assembly on Oceans and Law of the Sea (Nov. 27, 2001). 38 See, e.g., The United Nations Convention on the Law of the Sea Hearing Before the House Comm. on Int l Relations, 108th Cong. 44, 46 (2004) [hereinafter Hearing] (testimony of Frank J. Gaffney, Jr., President, The Center for Security Policy); Hearing, 108 th Cong. at 56 (testimony of Dr. Peter M. Leitner, Author, Reforming the Law of the Sea Treaty: Opportunities Missed, Precedents Set, and U.S. Sovereignty Threatened). Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 102(2) (1987). Customary international law has the same binding force under international law as treaties. See Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARVARD LAW REVIEW 815, 818 (1997). 39 See, e.g., Deputy Assistant Secretary for Oceans and Fisheries David Balton, Address at the Brookings Institution (May 4, 2004); Rear Admiral William L. Schachte, Jr., Address at the Brookings Institution (May 4, 2004). See also, Hearing, 108th Cong. at 4 (statement of Rep. Tom Lantos); Hearing, 108th Cong. at 29 (testimony of Admiral Michael G. Mullen, Vice Chief of Naval Operations, U.S. Department of the Navy). 40 See, Senator Richard G. Lugar, Address at the Brookings Institution (May 4, 2004). 41 Because the rules of the Convention meet U.S. national security, economic, and environmental interests, I am pleased to inform you that the Administration of President George W. Bush supports accession of the United States to the Convention. Statement of Ambassador Sichan Siv, supra note 37. See also, Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention Hearing Before the Senate Comm. on Foreign Relations, 108th Cong. (2003) (testimony of John F. Turner, Assistant Secretary, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State), available at 42 UNCLOS, supra note 10, pmbl. 43 Id.

10 A Special Report to the MIT Carbon Sequestration Initiative 10 structures at sea. 44 UNCLOS specifies that dumping does not include the placement of matter for a purpose other than mere disposal thereof State Sovereignty and Maritime Interests Under UNCLOS, a state has full sovereign rights over its land territory and internal waters. 46 A state also has full sovereign rights over its territorial sea, which is a belt of sea that extends up to 12 nautical miles from a baseline determined in accordance with the Convention (normally the low-water line along the coast), and includes the airspace above the sea and the bed and subsoil beneath the sea. 47 Within its territorial sea, a state may regulate the preservation of the environment, and the prevention, reduction and control of pollution. 48 A state s sovereignty over its territorial sea is subject only to a right of innocent passage for vessels engaging in continuous and expeditious transit through the territorial sea. 49 Figure 1: UNCLOS Maritime Areas Contiguous to the territorial sea is an area known as the contiguous zone. The contiguous zone may extend up to twenty-four miles from the same baseline used to determine the territorial sea. 50 Within the contiguous zone, a state may exercise the 44 Id. art. 1, para Id. 46 Id. art Id. art. 3. The normal baseline is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. Id. art Id. art Id. art Id. art. 33.

11 The International Law of Sub-Seabed Carbon Dioxide Storage 11 control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory and territorial sea. 51 A state is provided with certain sovereign rights in an exclusive economic zone (EEZ) extending up to 200 miles beyond the territorial sea. 52 In particular, a state has sovereignty over the exploration, exploitation, conservation, and management of natural resources in the waters of the EEZ, as well as the seabed and subsoil. 53 A state also has sovereignty over other activities for the economic exploitation and exploration of the zone, such as energy production from water, currents, and winds. 54 Within its EEZ, a state may regulate installations and structures, marine scientific research, and the protection and preservation of the marine environment. 55 The sovereignty that a state has over its EEZ is subject to the right to allow operation of ships, aircraft, and the laying of submarine cables and pipelines. 56 The continental shelf of a coastal state is defined as the seabed and subsoil of the submarine areas that extend beyond the territorial sea to the outer edge of the continental margin, or to a distance of 200 miles from the baseline if the continental margin does not extend to that distance. 57 The continental shelf, as defined by UNCLOS, may not exceed 350 miles from the baseline. 58 A coastal state may exercise sovereign rights over its continental shelf for the purposes of exploring and exploiting its natural resources. 59 All states are permitted to lay submarine cables and pipelines on the continental shelf. 60 If a state chooses to exploit natural resources beyond 200 miles of the baseline, it is required to make annual payments after five years, the payments increasing gradually over time from 1% of value or volume of production to 7% of value or volume. 61 The payments are distributed by the International Seabed Authority, taking into account equitable sharing criteria, such as the interests of developing states. 62 The 1994 Agreement modifies the decision-making processes of the International Seabed Authority and representation on its Council. 63 It is important to note, however, that virtually all geologic structures containing hydrocarbons are likely to be found within a coastal state s jurisdiction and therefore would not be regulated by the International Seabed Authority. 64 Beyond the EEZ is an area known as the high seas. 65 No state may exercise sovereignty over the high seas. All states have freedom of navigation, overflight, the 51 Id. 52 Id. art Id. art Id. 55 Id. 56 Id. art Id. art Id. 59 Id. art Id. art Id. art Id. 63 Agreement, supra note 36, Annex 1, Stevenson & Oxman, supra note 17, at UNCLOS, supra note 10, art. 86.

12 A Special Report to the MIT Carbon Sequestration Initiative 12 laying of submarine cables and pipelines, constructing installations, and marine scientific research. 66 Activities related to resource development in the high seas are subject to authorization by the International Seabed Authority Protection and Preservation of the Marine Environment In general, all parties to UNCLOS have an obligation to protect and preserve the marine environment, 68 including taking all measures necessary to prevent, reduce and control pollution of the marine environment from any source. 69 These measures are to minimize the release of toxic, harmful or noxious substances by dumping. 70 In taking these measures, states are to act so as not to transfer damage or hazards from one area to another or transform one type of pollution into another. 71 With regard to dumping, states are to attempt to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution. 72 Although under the 1958 Convention of the High Seas to which the United States is bound, a duty exists to create laws to protect against marine pollution from seabed exploration, 73 there is no explicit obligation as in the case of UNCLOS. Note that the Convention does very little in the way of regulating land-based sources of marine pollution, as delegates to UNCLOS III doubted their competence to deal with such issues Marine Scientific Research Coastal states have the exclusive right to regulate, authorize and conduct marine scientific research conducted within their territorial seas 75 and EEZs. 76 Research should not unjustifiably interfere with other legitimate uses of the sea under UNCLOS and should be conducted in compliance with the protection and preservation of the marine environment. 77 In general, coastal states are to grant their consent for marine scientific research projects by other States in their EEZs, but may withhold consent if the research relates to the exploration or exploitation of living resources, drilling into the continental shelf, or construction of installations and structures. 78 An implied consent doctrine applies, where a party may proceed with a marine scientific research project six months after a description of the project has been provided to the coastal state, unless the coastal state withholds consent within four months of receiving the information. 79 All states 66 Id. 67 Id. art Id. art Id. art Id. 71 Id. art Id. art Convention on the High Seas, supra note 25, art Stevenson & Oxman, supra note 17, at UNCLOS, supra note 10, art Id. art Id. 78 Id. 79 Id. art. 252.

13 The International Law of Sub-Seabed Carbon Dioxide Storage 13 have the authority to conduct marine scientific research in the high seas 80 and deep seabed. 81 These provisions are a change from the 1958 Convention on the Continental Shelf, which requires any marine scientific research on the continental shelf to obtain the consent of the coastal state Dispute Settlement If a dispute arises concerning the interpretation of UNCLOS, the Convention provides four potential options for dispute settlement: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal, and a special arbitral tribunal. 83 If parties do not accept the same procedure for settling the dispute, the dispute must be submitted to arbitration, which is conducted by the arbitral tribunal or the special arbitral tribunal. 84 The special arbitral tribunal has limited jurisdiction, and may only arbitrate disputes related to fisheries, protection and preservation of the marine environment, marine scientific research, and navigation, including pollution from vessels and by dumping. 85 Regardless of venue choice, the court or tribunal may consult with scientific or technical experts to sit with the court in a dispute involving scientific or technical matters; the experts sit with the court, but do not have the right to vote. 86 A potential weakness in UNCLOS is that states have been reluctant to accept the jurisdiction of international courts and arbitrators. 87 C. Sub-Seabed Carbon Dioxide Storage in the UNCLOS Regime 1. UNCLOS is applicable to sub-seabed storage because its jurisdiction includes seabed and subsoil. UNCLOS specifies that the sovereignty of a coastal state over its territorial sea and contiguous zone extends to the seabed and subsoil. 88 Within its EEZ, a coastal state is provided sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources of the seabed and its subsoil. 89 Within its continental shelf (the seabed and subsoil of the submarine areas extending beyond the territorial sea), a state has sovereign rights for exploring and exploiting natural resources. 90 Thus, the geologic formations that would be used for carbon dioxide storage fall within the jurisdiction of UNCLOS. 80 Id. art Id. art Convention on the Continental Shelf, supra note 24, art. 7, para UNCLOS, supra note 10, art Id. 85 Id. Annex 8, art Id. art Stevenson & Oxman, supra note 17, at UNCLOS, supra note 10, art Id. art Id. art. 77.

14 A Special Report to the MIT Carbon Sequestration Initiative Transport to a storage reservoir via a pipeline from shore would not constitute dumping under UNCLOS. Dumping as defined by UNCLOS means the deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea. 91 UNCLOS does not define the term wastes or other matter. Any storage mechanism for carbon dioxide that was not a man-made structure at sea, such as a pipeline that transported the carbon dioxide from land directly to the sub-seabed point of injection, would not be dumping under UNCLOS. In addition, UNCLOS protects the laying of submarine pipelines in the EEZ and beyond Carbon dioxide storage using a vessel, platform, or man-made structure at sea would be defined as dumping under UNCLOS, but is not necessarily prohibited. Even if a carbon dioxide storage mechanism was used that fell under the UNCLOS definition of dumping (i.e. the storage mechanism included a vessel, platform, or manmade structure, and assuming arguendo that carbon dioxide was determined to fall under the UNCLOS definition of waste ), the dumping is not necessarily prohibited by UNCLOS. Rather, UNCLOS requires that states adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping. 93 These laws and regulations are expected to be based on rules, standards and recommended practices and procedures established by competent international organizations; 94 the London Convention, described later in this paper, would be the appropriate source of international law. Thus UNCLOS does not necessarily prohibit dumping of wastes or other matter, but rather would defer to the London Convention s interpretation of pollution by dumping. 4. Carbon dioxide storage related to the exploration and exploitation of natural resources (i.e. the recovery of oil or natural gas) would come under a state s sovereign rights. A state has sovereignty over the exploration and exploitation of the natural resources within its EEZ and continental shelf, which includes the seabed and subsoil. 95 It is standard industry practice to inject carbon dioxide into oil reservoirs to increase the amount of oil that can be produced, a technique known as enhanced oil recovery. 96 Reinjection of carbon dioxide into geologic formations is also used in the production of natural gas with high carbon dioxide content, as is the case with the Sleipner natural gas field in the North Sea. 97 Both of these uses are consistent with the sovereign rights of a coastal state over its continental shelf. 91 Id. art Id. arts. 58, 79, Id. art Id. 95 Id. arts. 56, See Herzog et al., supra note 4, at See Torp et al., supra note 6, at 1362.

15 The International Law of Sub-Seabed Carbon Dioxide Storage Marine scientific research related to carbon dioxide storage would be allowed if conducted in compliance with the protection and preservation of the marine environment. Under UNCLOS, all states have the right to conduct marine scientific research, subject to compatibility with the Convention. 98 The research must be conducted with the consent of the relevant coastal state, and in compliance with UNCLOS provisions for the protection and preservation of the marine environment. 99 Those provisions require that states take the best practicable means to prevent, reduce, and control pollution of the marine environment. 100 Marine scientific research associated with the sub-seabed storage of carbon dioxide (such as research taking place in the seabed and subsoil of the territorial sea or continental shelf) is permissible under UNCLOS, as long as it is conducted in accordance with the relevant provisions of the Convention. 6. Clarification may be needed on whether the storage of carbon dioxide may be considered pollution of the marine environment as defined by UNCLOS. UNCLOS defines pollution of the marine environment to be the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities. 101 Under the UNCLOS provisions for the protection and preservation of the marine environment, states are to take all measures that are necessary to prevent, reduce and control pollution of the marine environment from any source, using best practicable means. 102 Pollution of the marine environment is not necessarily prohibited as long as best practicable means are used for its prevention, reduction and control. In addition, UNCLOS prohibits the transformation of one type of pollution into another. However, UNCLOS does not provide guidance on exemplary transformations of pollution. Thus guidance may be needed in assessing how the storage of carbon dioxide for the mitigation of greenhouse gas emissions is defined under the UNCLOS definition of pollution of the marine environment. III. CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER (LONDON CONVENTION) A. Background 98 UNCLOS, supra note 10, art Id. art Id. art Id. art Id. art. 194.

16 A Special Report to the MIT Carbon Sequestration Initiative 16 The 1972 London Convention was enacted to create a legal regime for land based sources of marine pollution. 103 Land based sources were not addressed by the 1958 Geneva Conventions and UNCLOS had not yet been negotiated. In preparation for the United Nations Conference on the Human Environment (Stockholm Conference), the Intergovernmental Working Group on Marine Pollution was established to formulate proposals for the protection and preservation of the marine environment. 104 As a result of a 1970 report by the United States Council on Environmental Quality predicting increases in the level of ocean dumping and widespread deterioration of marine environments, 105 the United States submitted a draft convention on ocean dumping to the Working Group. 106 The Working Group met several times between June 1971 and June 1972 to discuss the draft proposal, which eventually was adopted as what is now known as the London Convention on December 29, The London Convention has been ratified by 80 parties, including the United States, and went into force on August 30, B. The Convention The objective of the London Convention is to promote the effective control of all sources of pollution of the marine environment and to take all practicable steps to prevent the pollution of the sea by the dumping of wastes or other matter that is liable to create hazards to human health, living resources and marine life. 109 Under the Convention, dumping is defined as any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea. 110 The London Convention specifies that dumping does not include the placement of matter for a purpose other than the mere disposal thereof. 111 In addition, the London Convention does not govern off-shore processing of mineral resources or the disposal of wastes related to the exploration, exploitation and associated off-shore processing of seabed mineral resources. 112 Under the London Convention, sea is defined as all marine waters other than the internal waters of States Categorization of Wastes The London Convention divides wastes into three categories: wastes that are prohibited from being dumped, wastes that may be dumped under a prior special permit, and wastes 103 David Hassan, International Conventions Relating to Land--Based Sources of Marine Pollution Control: Applications and Shortcomings, 16 GEO INT L. ENVT L. L. REV. 657, 664 (2004). 104 Id. at COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL PROTECTION AGENCY, OCEAN DUMPING: A NATIONAL POLICY 34 (1970). 106 Jill S. Murakami, Comment, The Dumping of the New Carissa: An Analysis of the Emergency Provisions of the London Convention, 8 PAC. RIM L. & POL Y. J. 705, 711 (1999). 107 Id. 108 International Marine Organization, Parties to the London Convention (Oct. 14, 2004), at London Convention, supra note 11, art Id. art 3, para Id. 112 Id. 113 Id. para. 3.

17 The International Law of Sub-Seabed Carbon Dioxide Storage 17 that may be dumped under a prior general permit. The dumping of wastes listed in Annex I to the London Convention is prohibited. 114 The Annex I list of prohibited wastes (black list) is reproduced in Appendix F to this paper. In addition, the London Convention was amended in November 1996 to prohibit the dumping of industrial wastes, defined as those wastes generated by manufacturing or processing operations. 115 Annex II to the London Convention lists those wastes whose dumping is allowed only under a prior special permit. 116 The dumping of all other wastes not included in Annex I or Annex II requires a prior general permit. 117 The criteria governing the issue of permits are set forth in Annex III of the London Convention, and include characteristics and composition of the matter, characteristics of dumping and method of deposit, and general characteristics. 118 Permits are to be issued by an appropriate authority designated by the contracting party to the Convention Precautionary Approach In implementing the London Convention, parties are to be guided by a precautionary approach to environmental protection. 120 Precautionary approach under the London Convention is defined as taking preventative measures when there is reason to believe that substances or energy introduced in the marine environment are likely to cause harm even where there is no conclusive evidence to prove a causal relation between inputs and their effects. 121 C. Sub-Seabed Carbon Dioxide Storage in the London Convention Regime 1. Carbon dioxide is not specified in the London Convention Annex I list of wastes that are prohibited from being dumped. Clarification may be required on whether carbon dioxide would come under the definition of industrial waste. Under the London Convention, the dumping of wastes listed in Annex I to the Convention is prohibited. 122 Carbon dioxide is not included in this list of banned substances. However, Annex I was amended in 1996 to disallow the dumping of industrial wastes, defined as those waste materials generated by manufacturing or processing operations. 123 The Convention does not provide guidance as to what constitutes manufacturing or processing operations. Therefore, clarification may be needed as to the status of carbon dioxide under Annex I of the Convention. Clarification 114 Id. art. 4, para Id. Annex 1, para Id. art. 4, para Id. 118 Id. Annex III. 119 Id. art. 6, para Fourteenth Consultative Meeting of Contracting Parties to London Convention, Res. LDC.44(14) (1991). 121 Id. 122 London Convention, supra note 11, art Id. Annex 1, para. 11.

18 A Special Report to the MIT Carbon Sequestration Initiative 18 may also be needed as to the interpretation of the Convention s precautionary approach with respect to sub-seabed storage. At the request of the United Kingdom, the London Convention established a Working Group on CO 2 Sequestration in Geological Structures to identify key legal and scientific issues. 124 The Working Group will report its findings at the Convention s Twenty-Seventh Consultative Meeting in Because the London Convention only addresses the sea and does not specifically address the seabed or subsoil, sub-seabed carbon dioxide storage is probably not governed by the London Convention. As defined by the London Convention, sea means all marine waters other than the internal waters of states. 126 There is no indication in any part of the Convention that this definition is meant to include anything other than the waters, i.e. unlike UNCLOS, the London Convention makes no reference to seabed or subsoil. Therefore it is unlikely that the Convention would apply to sub-seabed carbon dioxide storage. 3. In the alternative, even if sub-seabed storage is deemed to be governed by the London Convention, transport to a storage reservoir via a pipeline from shore would not constitute dumping. Even assuming, arguendo, that the London Convention is deemed to have jurisdiction over sub-seabed carbon dioxide storage, there would still be methods of storing carbon dioxide that would not constitute dumping under the Convention. Under the Convention, dumping applies to the deliberate disposal at sea of wastes or other matters from vessels, aircraft, platforms, or other man-made structures at sea. 127 Methods of carbon dioxide storage not using vessels, platforms, or man-made structures at sea would be permissible. For example, a pipeline transporting carbon dioxide from shore to the sub-seabed injection point would not constitute dumping under the Convention. 4. Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources would not constitute dumping under the Convention. The London Convention states that the disposal of wastes arising from, or related to the exploration, exploitation and associated off-shore processing of sea-bed mineral resources will not be covered by its provisions. 128 Thus, even if the London Convention is deemed to have jurisdiction over sub-seabed carbon dioxide storage, the use of carbon dioxide storage in the production of sea-bed mineral resources, such as oil or natural gas recovery, would be allowed. 124 INTERNATIONAL MARITIME ORGANIZATION, REPORT OF THE TWENTY-SIXTH CONSULTATIVE MEETING OF CONTRACTING PARTIES TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER 27 (2004). 125 Id. at Id. art. 3, para Id. 128 Id.

19 The International Law of Sub-Seabed Carbon Dioxide Storage 19 D. London Protocol The London Protocol was developed to eventually replace the London Convention. 129 Its objective is to protect and preserve the marine environment from all sources of pollution and take effective measures to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter. 130 As of October 14, 2004, twenty-one of the required twenty-six countries ratified the London Protocol, 131 and the International Marine Organization predicts that the London Protocol may go into force in Inclusion of References to Seabed and Subsoil Like the London Convention, dumping under the London Protocol includes any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea. 133 However, the London Protocol adds that dumping also includes the storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea. 134 As with the London Convention, the London Protocol specifies that dumping does not include the placement of matter for a purpose other than the mere disposal thereof, or the disposal of wastes associated with off-shore processing of mineral resources. 135 In addition the London Protocol does not govern the disposal of wastes related to the exploration, exploitation and associated off-shore processing of seabed mineral resources. 136 Under the London Protocol, sea is defined as all marine waters other than the internal waters of States, as well as the seabed and the subsoil thereof; it does not include sub-seabed repositories accessed only from land. 137 The London Protocol s references to seabed and subsoil in the definitions of dumping and sea are absent in the London Convention. 2. Categorization of Wastes The London Protocol prohibits the dumping of any wastes or other matter with the exception of those listed in Annex I. 138 Those seeking to dump wastes listed in Annex I must obtain a permit; the rules concerning permit issuance are listed in Annex II to the Protocol. 139 The Annex I list of approved wastes (white list) is reproduced in Appendix G to this paper. 129 London Protocol, supra note Id. art International Marine Organization, supra note INTERNATIONAL MARINE ORGANIZATION, REPORT OF THE TWENTY-SIXTH CONSULTATIVE MEETING OF CONTRACTING PARTIES TO LONDON CONVENTION 2.10 (2004). 133 London Protocol, supra note 18, art. 1, para Id. 135 Id. 136 Id. 137 Id. para Id. art. 4, para Id.