Legal Considerations relevant to the Research of Ocean Alkalinity Enhancement

Steenkamp, Robert Craig; Webb, Romany M.

doi:https://doi.org/10.5194/sp-2023-8

Preprints

https://doi.org/10.5194/sp-2023-8

Preprints

29 Jun 2023

| 29 Jun 2023

Status: a revised version of this preprint was accepted for the journal SP and is expected to appear here in due course.

Legal Considerations relevant to the Research of Ocean Alkalinity Enhancement

Robert Craig Steenkamp and Romany M. Webb

Abstract. This article examines the legal considerations relevant to ocean alkalinity enhancement (OAE) and provides some best practice guidance for responsible (field) research of OAE. The article examines recent developments in international law in order to inform what may legally be required of researchers when planning and designing OAE research projects. To this end, the article acknowledges unavoidable differences in domestic legal systems but highlights the role of international law, especially as can be found in the London Convention and Protocol, in developing appropriate minimum rules and standards. The article notes that domestic legal systems may wish to account for such minimum international rules and standards when developing permitting conditions and laws for OAE research activities. Additionally, the article examines international agreements and customary international law that find general application to OAE research. This latter examination assists in the identification of areas where additional legal research may also be required. The article concludes by highlighting that it remains crucial for legal researchers to work with the scientific community and those from other disciplines to assist States in understanding the science-policy interface to develop a comprehensive legal framework for ocean-based carbon dioxide removal approaches. This will, in turn, guarantee that field research is carried out in a safe and responsible manner and in a manner that reduces the likelihood of adverse environmental and other consequences.

Received: 15 Jun 2023 – Discussion started: 29 Jun 2023

Download & links

Robert Craig Steenkamp and Romany M. Webb

Status: closed

RC1:
'Comment on sp-2023-8', Anonymous Referee #1, 21 Jul 2023

The manuscript is clear and well structured. The existing international legal framework is exhaustively and precisely presented and analyzed. This manuscript will undoubtedly serve as a reference on the state of public international law in this field, and on the questions still outstanding. However, the manuscript could go even further, on the one hand, by precisely defining OAE and the possible differences between OAE as a CDR and OAE as a method of mitigating ocean acidification (e.g.: in practice, exists a difference between the two methods or the difference is only a difference of intention? ) and secondly, by comparing geoengineering techniques applicable to the oceans to answer two additional questions: do the specificities of climate geoengineering require the creation of a specific legal framework? If not, how can we involve all the institutional players concerned in legal discussions on the framework for geoengineering (creation of a committee?)?

Citation: https://doi.org/10.5194/sp-2023-8-RC1
- AC1: 'Reply on RC1', Robert Steenkamp, 06 Sep 2023
  
  The authors wish to thank all three anonymous reviewers for their helpful comments. The comments were all well-received, have helped to clarify certain points in the text and have enhanced the overall quality of the chapter.
  Concerning specific comments of the reviewers:
  Reviewer 1: The point considering the differences between OAE as a CDR measure and as a measure to combat ocean acidification is well-taken. Combined with something that Reviewer 3 also noted, this distinction was modified. In this regard, the text was amended to reflect that projects should ensure that they fall within any agreed upon legal definition of OAE and that legal and scientific definitions might not always align.
  Reviewer 2: All “minor issues” mentioned by the reviewer have been incorporated at the relevant places in the text, including updated references to the now adopted BBNJ Agreement. As far as the initial comment of the reviewer concerning the need to distinguish deployment and research, this distinction has been elaborated on in section 5 (“Best practice guidance for OAE (field) research”). This distinction references the intention of research, the somewhat limited role of the assessment framework in practice and the importance of defining and evaluating the scale of a project, including the amount of CO₂ that a particular project intends to remove and store. These points are highlighted as some factors which might be indicative of distinctions between research and deployment.
  Reviewer 3: All “minor issues” have been incorporated into the text, including helpful suggestions associated with defining the meaning of terms such as “coherence” and what is meant when referring to UNCLOS as a framework agreement. Additionally, Reviewer 3’s comments referring to sources referred to in the text as well as including additional sources when necessary was well-take – several new references have now been cited.
  
  Citation: https://doi.org/10.5194/sp-2023-8-AC1
RC2:
'Comment on sp-2023-8', Anonymous Referee #2, 08 Aug 2023

Overall, this is an excellent chapter which provides an up-to date, well-structured and balanced assessment of legal considerations relevant to research of OAE. That said, taking into account that the authors focus on OAE research and argue that research and (commercial) deployment should be treated differently under international law, I would encourage the authors to include some further analysis on how to distinguish the two categories of activities concerned (what is the relevance of the LP assessment framework here?). Furthermore, I would recommend that the authors address the following minor issues before the manuscript is accepted for publication:
Line 29: The term 'common pool resource' requires clarification. Usage of this term is perhaps also not completely accurate in light of the different regimes of the various maritime zones under the international law of the sea.
Line 35: I recommend to include a clarification that States are bound to CIL unless they have persistently objected to the rule/principle concerned. In the context of OAE research, this may be relevant with regard to the precuationary principle/approach.
Line 115 (table 1): It is subject for debate whether Part VII of UNCLOS really only applies to the 'water column'. I would arge that the regime of the high seas also applies to the seabed and subsoil beyond the outer limits of the continental shelf unless Part XI of UNCLOS contains leges speciales.
Lines 237 et seq. (section 3.3): Taking into account that the BBNJ Agreement has meanwhile been formally adopted, section 3.3, whenever reference is being made to the 'draft agreement', needs to be updated.
Line 302: Taking into account that the ILC has taken the view that 'interpretative' COP decisions adopted by consensus, even if not legally binding as such, can be considered as subsequent agreements under Article 31 (3) (a) or subsequent practice under Article 31 (3) (b) of the VCLT, conclusion 7 is perhaps framed too broadly.

Citation: https://doi.org/10.5194/sp-2023-8-RC2
- AC2: 'Reply on RC2', Robert Steenkamp, 06 Sep 2023
  
  The authors wish to thank all three anonymous reviewers for their helpful comments. The comments were all well-received, have helped to clarify certain points in the text and have enhanced the overall quality of the chapter.
  Concerning specific comments of the reviewers:
  Reviewer 1: The point considering the differences between OAE as a CDR measure and as a measure to combat ocean acidification is well-taken. Combined with something that Reviewer 3 also noted, this distinction was modified. In this regard, the text was amended to reflect that projects should ensure that they fall within any agreed upon legal definition of OAE and that legal and scientific definitions might not always align.
  Reviewer 2: All “minor issues” mentioned by the reviewer have been incorporated at the relevant places in the text, including updated references to the now adopted BBNJ Agreement. As far as the initial comment of the reviewer concerning the need to distinguish deployment and research, this distinction has been elaborated on in section 5 (“Best practice guidance for OAE (field) research”). This distinction references the intention of research, the somewhat limited role of the assessment framework in practice and the importance of defining and evaluating the scale of a project, including the amount of CO₂ that a particular project intends to remove and store. These points are highlighted as some factors which might be indicative of distinctions between research and deployment.
  Reviewer 3: All “minor issues” have been incorporated into the text, including helpful suggestions associated with defining the meaning of terms such as “coherence” and what is meant when referring to UNCLOS as a framework agreement. Additionally, Reviewer 3’s comments referring to sources referred to in the text as well as including additional sources when necessary was well-take – several new references have now been cited.
  
  Citation: https://doi.org/10.5194/sp-2023-8-AC2
RC3:
'Comment on sp-2023-8', Anonymous Referee #3, 14 Aug 2023
This is a well-written and logically structured chapter on international law and OAE. The author’s acknowledge the role of domestic law in the introduction, but the focus of this article is, by and large, on rules at an international level. The authors build off existing literature on CDR and international law to provide a contemporary analysis of pertinent rules and developments for OAE. Most notably, this chapter reflects on two recent developments that have yet to be considered in detail in the literature: the potential implications of the new BBNJ Agreement and efforts currently underway that could see OAE added to the list of activities regulated by the 2013 London Protocol Marine Geoengineering Amendment. In considering these developments, this article makes a fresh contribution to the literature on international law and the governance of marine CDR proposals (in addition to OAE specifically). The analysis itself is generally presented in a way that is accessible to non-legal experts, and the authors are fair to point out the limitations of existing rules, as well as issues that require further legal research.
I nevertheless recommend that the authors address the following, minor issues prior to publication:
On page 3, around line 90, the authors suggest that international regulation of OAE “may need to be distinguished” based on the purpose of OAE (i.e. whether it is for CDR or for combatting ocean acidification). The reason for this suggestion is not apparent to the reader. If the technology is the same, and the environmental risks are the same, why would different governance be required for different purposes? This question is especially pertinent as the use of OAE for addressing one issue (i.e. CDR) will likely have co-benefits concerning the other (i.e. OA).

The audience of this chapter is intended to be broader than international lawyers. When talking about rights and freedoms under UNCLOS in various maritime zones, it is important to qualify for non-expert readers that these are subject to other obligations under that agreement, as well as other obligations under international law. For example, in Table 1, it states that “No State has sovereign rights. Freedom of the high seas applies and the zone is open for use to all states”. Statements like this need to be qualified for non-expert readers, to avoid giving a mistaken impression about the extent of rights and freedoms.

On page 6 at 140, the authors describe UNCLOS as a “framework agreement”, akin to the UNCBD and UNFCCC. There are significant differences between UNCLOS and these “framework” agreements, and some legal scholars would disagree with this characterisation. The authors should consider the explanation put forth by Alan Boyle in “Further Development of the Law of the Sea Convention: Mechanisms for Change” in this regard.

At conclusion 4 on page 9, the authors suggest that the LP assessment framework could inform the content of obligations under customary international law. Given the low level of state acceptance of this amendment to date, it is unclear why this would be the case. If the authors wish to pursue this argument, greater justification, including reference to relevant authority, is needed.

At the top of page 22, the authors state that, although the 2013 LP amendment is yet to enter into force, it appears to “have support within a fairly large segment of the international community”. Further evidence/justification is needed to support this claim, or it needs to be further clarified, especially as the low level of state acceptance suggests the opposite.

On page 22, the authors talk about the need for coherence. It would be helpful for non-legal experts to have an explanation of what this means and why it is considered important.

In the paragraph spanning lines 560-565, the authors make several normative claims, including that research should seek to minimise adverse social impacts and be designed to maximise benefits, ensuring equal distribution. I do not disagree with these claims, but they should be supported by reference to relevant literature on good CDR governance.

At conclusion 13, the authors refer to “established and developing principles surrounding international liability for operators and private actors”. It would be helpful if they could cite a few examples.

Double check that sources referred to in text are listed in the reference list, as this appears to be incomplete.
Citation: https://doi.org/10.5194/sp-2023-8-RC3
- AC3: 'Reply on RC3', Robert Steenkamp, 06 Sep 2023
  
  The authors wish to thank all three anonymous reviewers for their helpful comments. The comments were all well-received, have helped to clarify certain points in the text and have enhanced the overall quality of the chapter.
  Concerning specific comments of the reviewers:
  Reviewer 1: The point considering the differences between OAE as a CDR measure and as a measure to combat ocean acidification is well-taken. Combined with something that Reviewer 3 also noted, this distinction was modified. In this regard, the text was amended to reflect that projects should ensure that they fall within any agreed upon legal definition of OAE and that legal and scientific definitions might not always align.
  Reviewer 2: All “minor issues” mentioned by the reviewer have been incorporated at the relevant places in the text, including updated references to the now adopted BBNJ Agreement. As far as the initial comment of the reviewer concerning the need to distinguish deployment and research, this distinction has been elaborated on in section 5 (“Best practice guidance for OAE (field) research”). This distinction references the intention of research, the somewhat limited role of the assessment framework in practice and the importance of defining and evaluating the scale of a project, including the amount of CO₂ that a particular project intends to remove and store. These points are highlighted as some factors which might be indicative of distinctions between research and deployment.
  Reviewer 3: All “minor issues” have been incorporated into the text, including helpful suggestions associated with defining the meaning of terms such as “coherence” and what is meant when referring to UNCLOS as a framework agreement. Additionally, Reviewer 3’s comments referring to sources referred to in the text as well as including additional sources when necessary was well-take – several new references have now been cited.
  
  Citation: https://doi.org/10.5194/sp-2023-8-AC3

Status: closed

RC1:
'Comment on sp-2023-8', Anonymous Referee #1, 21 Jul 2023

The manuscript is clear and well structured. The existing international legal framework is exhaustively and precisely presented and analyzed. This manuscript will undoubtedly serve as a reference on the state of public international law in this field, and on the questions still outstanding. However, the manuscript could go even further, on the one hand, by precisely defining OAE and the possible differences between OAE as a CDR and OAE as a method of mitigating ocean acidification (e.g.: in practice, exists a difference between the two methods or the difference is only a difference of intention? ) and secondly, by comparing geoengineering techniques applicable to the oceans to answer two additional questions: do the specificities of climate geoengineering require the creation of a specific legal framework? If not, how can we involve all the institutional players concerned in legal discussions on the framework for geoengineering (creation of a committee?)?

Citation: https://doi.org/10.5194/sp-2023-8-RC1
- AC1: 'Reply on RC1', Robert Steenkamp, 06 Sep 2023
  
  The authors wish to thank all three anonymous reviewers for their helpful comments. The comments were all well-received, have helped to clarify certain points in the text and have enhanced the overall quality of the chapter.
  Concerning specific comments of the reviewers:
  Reviewer 1: The point considering the differences between OAE as a CDR measure and as a measure to combat ocean acidification is well-taken. Combined with something that Reviewer 3 also noted, this distinction was modified. In this regard, the text was amended to reflect that projects should ensure that they fall within any agreed upon legal definition of OAE and that legal and scientific definitions might not always align.
  Reviewer 2: All “minor issues” mentioned by the reviewer have been incorporated at the relevant places in the text, including updated references to the now adopted BBNJ Agreement. As far as the initial comment of the reviewer concerning the need to distinguish deployment and research, this distinction has been elaborated on in section 5 (“Best practice guidance for OAE (field) research”). This distinction references the intention of research, the somewhat limited role of the assessment framework in practice and the importance of defining and evaluating the scale of a project, including the amount of CO₂ that a particular project intends to remove and store. These points are highlighted as some factors which might be indicative of distinctions between research and deployment.
  Reviewer 3: All “minor issues” have been incorporated into the text, including helpful suggestions associated with defining the meaning of terms such as “coherence” and what is meant when referring to UNCLOS as a framework agreement. Additionally, Reviewer 3’s comments referring to sources referred to in the text as well as including additional sources when necessary was well-take – several new references have now been cited.
  
  Citation: https://doi.org/10.5194/sp-2023-8-AC1
RC2:
'Comment on sp-2023-8', Anonymous Referee #2, 08 Aug 2023

Overall, this is an excellent chapter which provides an up-to date, well-structured and balanced assessment of legal considerations relevant to research of OAE. That said, taking into account that the authors focus on OAE research and argue that research and (commercial) deployment should be treated differently under international law, I would encourage the authors to include some further analysis on how to distinguish the two categories of activities concerned (what is the relevance of the LP assessment framework here?). Furthermore, I would recommend that the authors address the following minor issues before the manuscript is accepted for publication:
Line 29: The term 'common pool resource' requires clarification. Usage of this term is perhaps also not completely accurate in light of the different regimes of the various maritime zones under the international law of the sea.
Line 35: I recommend to include a clarification that States are bound to CIL unless they have persistently objected to the rule/principle concerned. In the context of OAE research, this may be relevant with regard to the precuationary principle/approach.
Line 115 (table 1): It is subject for debate whether Part VII of UNCLOS really only applies to the 'water column'. I would arge that the regime of the high seas also applies to the seabed and subsoil beyond the outer limits of the continental shelf unless Part XI of UNCLOS contains leges speciales.
Lines 237 et seq. (section 3.3): Taking into account that the BBNJ Agreement has meanwhile been formally adopted, section 3.3, whenever reference is being made to the 'draft agreement', needs to be updated.
Line 302: Taking into account that the ILC has taken the view that 'interpretative' COP decisions adopted by consensus, even if not legally binding as such, can be considered as subsequent agreements under Article 31 (3) (a) or subsequent practice under Article 31 (3) (b) of the VCLT, conclusion 7 is perhaps framed too broadly.

Citation: https://doi.org/10.5194/sp-2023-8-RC2
- AC2: 'Reply on RC2', Robert Steenkamp, 06 Sep 2023
  
  The authors wish to thank all three anonymous reviewers for their helpful comments. The comments were all well-received, have helped to clarify certain points in the text and have enhanced the overall quality of the chapter.
  Concerning specific comments of the reviewers:
  Reviewer 1: The point considering the differences between OAE as a CDR measure and as a measure to combat ocean acidification is well-taken. Combined with something that Reviewer 3 also noted, this distinction was modified. In this regard, the text was amended to reflect that projects should ensure that they fall within any agreed upon legal definition of OAE and that legal and scientific definitions might not always align.
  Reviewer 2: All “minor issues” mentioned by the reviewer have been incorporated at the relevant places in the text, including updated references to the now adopted BBNJ Agreement. As far as the initial comment of the reviewer concerning the need to distinguish deployment and research, this distinction has been elaborated on in section 5 (“Best practice guidance for OAE (field) research”). This distinction references the intention of research, the somewhat limited role of the assessment framework in practice and the importance of defining and evaluating the scale of a project, including the amount of CO₂ that a particular project intends to remove and store. These points are highlighted as some factors which might be indicative of distinctions between research and deployment.
  Reviewer 3: All “minor issues” have been incorporated into the text, including helpful suggestions associated with defining the meaning of terms such as “coherence” and what is meant when referring to UNCLOS as a framework agreement. Additionally, Reviewer 3’s comments referring to sources referred to in the text as well as including additional sources when necessary was well-take – several new references have now been cited.
  
  Citation: https://doi.org/10.5194/sp-2023-8-AC2
RC3:
'Comment on sp-2023-8', Anonymous Referee #3, 14 Aug 2023
This is a well-written and logically structured chapter on international law and OAE. The author’s acknowledge the role of domestic law in the introduction, but the focus of this article is, by and large, on rules at an international level. The authors build off existing literature on CDR and international law to provide a contemporary analysis of pertinent rules and developments for OAE. Most notably, this chapter reflects on two recent developments that have yet to be considered in detail in the literature: the potential implications of the new BBNJ Agreement and efforts currently underway that could see OAE added to the list of activities regulated by the 2013 London Protocol Marine Geoengineering Amendment. In considering these developments, this article makes a fresh contribution to the literature on international law and the governance of marine CDR proposals (in addition to OAE specifically). The analysis itself is generally presented in a way that is accessible to non-legal experts, and the authors are fair to point out the limitations of existing rules, as well as issues that require further legal research.
I nevertheless recommend that the authors address the following, minor issues prior to publication:
On page 3, around line 90, the authors suggest that international regulation of OAE “may need to be distinguished” based on the purpose of OAE (i.e. whether it is for CDR or for combatting ocean acidification). The reason for this suggestion is not apparent to the reader. If the technology is the same, and the environmental risks are the same, why would different governance be required for different purposes? This question is especially pertinent as the use of OAE for addressing one issue (i.e. CDR) will likely have co-benefits concerning the other (i.e. OA).

The audience of this chapter is intended to be broader than international lawyers. When talking about rights and freedoms under UNCLOS in various maritime zones, it is important to qualify for non-expert readers that these are subject to other obligations under that agreement, as well as other obligations under international law. For example, in Table 1, it states that “No State has sovereign rights. Freedom of the high seas applies and the zone is open for use to all states”. Statements like this need to be qualified for non-expert readers, to avoid giving a mistaken impression about the extent of rights and freedoms.

On page 6 at 140, the authors describe UNCLOS as a “framework agreement”, akin to the UNCBD and UNFCCC. There are significant differences between UNCLOS and these “framework” agreements, and some legal scholars would disagree with this characterisation. The authors should consider the explanation put forth by Alan Boyle in “Further Development of the Law of the Sea Convention: Mechanisms for Change” in this regard.

At conclusion 4 on page 9, the authors suggest that the LP assessment framework could inform the content of obligations under customary international law. Given the low level of state acceptance of this amendment to date, it is unclear why this would be the case. If the authors wish to pursue this argument, greater justification, including reference to relevant authority, is needed.

At the top of page 22, the authors state that, although the 2013 LP amendment is yet to enter into force, it appears to “have support within a fairly large segment of the international community”. Further evidence/justification is needed to support this claim, or it needs to be further clarified, especially as the low level of state acceptance suggests the opposite.

On page 22, the authors talk about the need for coherence. It would be helpful for non-legal experts to have an explanation of what this means and why it is considered important.

In the paragraph spanning lines 560-565, the authors make several normative claims, including that research should seek to minimise adverse social impacts and be designed to maximise benefits, ensuring equal distribution. I do not disagree with these claims, but they should be supported by reference to relevant literature on good CDR governance.

At conclusion 13, the authors refer to “established and developing principles surrounding international liability for operators and private actors”. It would be helpful if they could cite a few examples.

Double check that sources referred to in text are listed in the reference list, as this appears to be incomplete.
Citation: https://doi.org/10.5194/sp-2023-8-RC3
- AC3: 'Reply on RC3', Robert Steenkamp, 06 Sep 2023
  
  The authors wish to thank all three anonymous reviewers for their helpful comments. The comments were all well-received, have helped to clarify certain points in the text and have enhanced the overall quality of the chapter.
  Concerning specific comments of the reviewers:
  Reviewer 1: The point considering the differences between OAE as a CDR measure and as a measure to combat ocean acidification is well-taken. Combined with something that Reviewer 3 also noted, this distinction was modified. In this regard, the text was amended to reflect that projects should ensure that they fall within any agreed upon legal definition of OAE and that legal and scientific definitions might not always align.
  Reviewer 2: All “minor issues” mentioned by the reviewer have been incorporated at the relevant places in the text, including updated references to the now adopted BBNJ Agreement. As far as the initial comment of the reviewer concerning the need to distinguish deployment and research, this distinction has been elaborated on in section 5 (“Best practice guidance for OAE (field) research”). This distinction references the intention of research, the somewhat limited role of the assessment framework in practice and the importance of defining and evaluating the scale of a project, including the amount of CO₂ that a particular project intends to remove and store. These points are highlighted as some factors which might be indicative of distinctions between research and deployment.
  Reviewer 3: All “minor issues” have been incorporated into the text, including helpful suggestions associated with defining the meaning of terms such as “coherence” and what is meant when referring to UNCLOS as a framework agreement. Additionally, Reviewer 3’s comments referring to sources referred to in the text as well as including additional sources when necessary was well-take – several new references have now been cited.
  
  Citation: https://doi.org/10.5194/sp-2023-8-AC3

Robert Craig Steenkamp and Romany M. Webb

Viewed

Total article views: 384 (including HTML, PDF, and XML)

HTML	PDF	XML	Total	BibTeX	EndNote
272	91	21	384	7	8

HTML: 272
PDF: 91
XML: 21
Total: 384
BibTeX: 7
EndNote: 8

Views and downloads (calculated since 29 Jun 2023)

Month	HTML	PDF	XML	Total
Jun 2023	13	4	3	20
Jul 2023	125	45	4	174
Aug 2023	85	26	7	118
Sep 2023	49	16	7	72

Cumulative views and downloads (calculated since 29 Jun 2023)

Month	HTML	PDF	XML	Total
Jun 2023	13	4	3	20
Jul 2023	125	45	4	174
Aug 2023	85	26	7	118
Sep 2023	49	16	7	72

Viewed (geographical distribution)

Total article views: 376 (including HTML, PDF, and XML) Thereof 376 with geography defined and 0 with unknown origin.

Country	#	Views	%

Latest update: 29 Sep 2023

Short summary

This article examines the legal considerations for research into ocean alkalinity enhancement (OAE). It analyzes relevant international law to identify minimum rules and standards that domestic laws may wish to incorporate. Domestic law should ideally align with international standards and assist researchers to design OAE research projects. Collaboration between different disciplines helps develop a comprehensive legal framework for responsible OAE research, minimizing negative impacts.


Total:	0
HTML:	0
PDF:	0
XML:	0