Global warming is an undisputed international problem. The discourse surrounding this issue has attracted disparate opinions from lawmakers, investors, and the public among others. One of the ideas and approaches that have been adopted is iron fertilization. Iron fertilization is a form of geoengineering, which involves the intentional introduction of the micronutrient iron into certain areas of the ocean with the aim of increasing plankton productivity, which in turn transfers the atmospheric Carbon (IV) oxide to the ocean. This mitigation strategy has spurred heated debates due to the interests of businesses that seek to use iron fertilization for countering carbon emissions. International law mandates states to secure and conserve marine environments and respond in a preventive way in scenarios of scientific indecision. The discussion in this paper considers some of the international as well as maritime laws that deal with the application of iron fertilization as a method of mitigating global warming.
Iron Fertilization Overview
Iron fertilization is one of the earliest approaches that were adopted to reduce the greenhouse effect. It involves the addition of a large quantity of iron and other micronutrients to the ocean to improve the productivity of microscopic marine plants to the extent that they increase the intake of atmospheric carbon by the ocean, eliminate it from the atmosphere, and subsequently enhance the global climate. Due to the scientific uncertainties facing the application of iron fertilization, the Convention on Biological Diversity (CBD) prohibited its application until uncertainties were resolved using international regulatory techniques (Verlaan 448). The London Convention and Protocol is one of those major steps that have been taken to develop the regulations.
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The advocates of iron fertilization believe that handing iron to areas where it is deficient in the ocean, will assist in the requisition of the atmospheric carbon that encourages global warming. Investors believe that iron fertilization will provide an opportunity to get carbon credits that can be sold through particular market machinery. Nonetheless, several environmental activists, scientists, and controllers have questioned the unpredictable effect of trying to maneuver the complicated marine ecosystems, the viability of using iron fertilization to sequester carbon, and the efficiency of the market apparatus to propel these plans (Warner 428). Furthermore, since iron fertilization programs are often conducted in the high seas that are covered by the domestic legal administrations, it remains uncertain which sources of laws should be used in monitoring the programs, especially the current small-scale activities as well as the large-scale programs that are organized in conjunction with the private organizations (Scheiber and Paik 207). Some of the programs have been considered dangerous with uncertain effects. Therefore, as Scott (111) insists, it is important for governments and corporations to familiarize themselves with the existing laws and policies that regulate iron fertilization activities and how to maneuver through the challenges and the existing uncertainties.
Current Relationship between Ocean Iron Fertilization and the Law
One of the main ways of controlling the application of iron fertilization is through international laws since most areas that are appropriate for iron fertilization are found along the high seas, which are covered by the boundaries of coastal countries, but they are economic zones. So far, three main international law treaties are used to regulate iron fertilization. These laws include “the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity as well as the London Convention and Protocol” (Warner 436).
Law of the Sea
The fundamental legal guidelines that are used to protect and preserve oceans and their contents are explained in the UNLOS. This treaty obligates all states to ensure that activities on their territories do not tamper with the environment beyond their jurisdiction. With respect to this provision, the UNLOS mandates all countries to operate both individually and cooperatively in developing strategies that aid in curtailing, minimizing, and regulating effluence in the marine surrounding. Moreover, they have prevented the transfer of dangerous substances to other regions (Blaustein 840).
According to the description of the pollution in Article 1(4) of the treaty, the characteristic of a substance does qualify as a pollutant, but the insidious impact it causes to the environment. This definition seems to exclude ocean iron fertilization considering the argument of its supporters. The outcomes of iron fertilization activities have not been disastrous as indicated in Article 1(4) and there is no prima facie evidence to confirm that it would lead to deleterious effects. Moreover, by supplying the deficient areas of the ocean with the necessary iron, the production of phytoplankton is likely to rise, which in turn raises the food chain supply (Scott 116). The main challenge for ocean iron fertilization with respect to Article 1(4) is the precautionary doctrine. The principle points out that in cases where there are suspicions that irreversible damage may occur, the absence of scientific proof should not deter stakeholders from inventing strategies to curtail environmental pollution. Furthermore, the onus on justifying whether the activity is harmful or harmless to the environment lies in the individuals or institutions seeking to promote the activity.
Contrary to most environmental laws, the Law of Sea does not explicitly permit the application of the precautionary doctrine. Nonetheless, some activists have hinted to an implied approval of the precautionary theory going by the definition of pollution in the treaty, which partly considers activities that lead or may lead to a deleterious impact. With respect to the latter interpretation, there has been a growing need to circumvent pollution without considering the available scientific proof of imminent threat (Blaustein 840). Hence, any institution or individual that intends to practice an environment-related activity has the onus to prove that the activity has no deleterious effect.
Nevertheless, the challenge of using the precautionary principle is that it aims at tackling the issues of pollution to the environment with respect to climate change. In essence, when addressing the possible threat that the mitigation strategies may pose to the environment unlike the deleterious greenhouse effect, the doubts cast upon ocean iron enrichment become blurred (Scheiber and Paik 204). Supporters of iron fertilization activities argue that the uncertainty on the possible deleterious effects of the global warming mitigation idea should not discourage its application if it can help in reducing global warming. The latter rational argument and the lack of an explicit provision approving the application of precautionary principle inhibit the use of the doctrine in ocean iron-enrichment activities (Verlaan 454). The aforementioned issues do not imply that iron fertilization is not adequately addressed by the UNCLOS. Article 194 mandates countries to make efforts in eliminating pollution through all forms including dumping. Dumping underscores the intentional discarding of trash or other substances (Nicol, Bowie, Jarman, Lannuzel, and Merwe 203). Furthermore, the treaty demands that states should initiate policies that aid in monitoring and curtailing dumping. The policies match the global standards. The provisions of the UNCLOS are intertwined with those of the Convention on Biological Diversity and London Protocol as explored in the subsequent sections of this paper.
The Convention on Biological Diversity (CBD)
The CBD seeks to preserve biodiversity and promote proper maintenance of its contents, which comprises genetic resources. The marine conservation and protection agenda started in the 1990s soon after the Jakarta Mandate. Subsequently, the issue of ocean iron enrichment emerged in 2008 when recommendations were made to discourage extensive iron fertilization (Pinet 437). It also discouraged states from endorsing the activities of iron fertilization unless those planning to conduct such activities provide sufficient scientific proof showing any potential dangers and the international standard regulations governing the activities.
On the other hand, CBD permitted small-scale iron fertilization activities if the activities are supported with evidence of initial scrutiny on their effect on the ocean. Moreover, it differentiated between the programs conducted to accomplish certain scientific purposes and those that are performed to sequester carbon for commercial use. It prohibited the latter purpose. Nonetheless, the provisions are allegedly ambiguous especially when it comes to determining what falls within a small-scale activity considering the extensive size of oceans. Furthermore, the CBD seeks to limit the access of the coastal waters and the high seas, which are possibly the most useful areas for scientists as they lack a lot of iron. Presumably, the intention for limiting scientists from using the high seas was to ensure that they use areas, which are within the jurisdiction of the coastal states so that they can be covered by the domestic laws (Pinet 439). Nonetheless, the CBD calls for the freezing of deliberate iron enrichment experiments mainly because there are no clear international rules governing the issues.
The London Convention and Protocol
The London Convention and Protocol is one of the international regulation mechanisms that directly deal with the issue of iron fertilization. It bars states from disposing of substances before conducting research that reveals the impact of the substance on the environment, getting a license, and adhering to the rules set out in the protocol. It legalizes the discarding of five key types of materials and expressly endorses the use of the precautionary principle as explained in Article 3 of the Protocol. Nonetheless, it creates an exception clause for discarding, which cannot be deemed as dumping as long as that discarding does not contravene the goals of the convention and protocol (Eccleston 28). The London Protocol/Convention defines iron fertilization as any manmade activity that intends to enrich the oceans. The protocol further emphasizes that valid scientific activity should involve a given intention apart from given dumping. It hence permits ocean iron enrichment if that activity complies with the criteria of a valid scientific activity.
However, the protocol does not enlist the activities that qualify as valid scientific activities, thus not giving a limitation to scientists, businesspersons, or scholars who are interested in getting involved in such activities (Nicol et al. 205). This aspect does not mean that the provision is ambiguous. It provides that a research framework should be developed to help in examining the proposals to conduct iron fertilization activities. Scientists should prepare this research framework in line with the London Convention and Protocol regulations. Nonetheless, if the guidelines are absent, then the Protocol encourages the licensing body to approach the issue with prudence and prepare good regulations to ensure that the marine environment is conserved by adhering to the standards set by the Protocol (Warner 436). Nonetheless, any iron fertilization program that is not conducted in line with the valid scientific research guidelines is classified as dumping.
The Risk Assessment and Management for Scientific Research was endorsed in 2009 to help in monitoring the activities of iron fertilization. The latter guidelines were adopted by considering the Kyoto Protocol. The application of the Kyoto Protocol was relevant because iron fertilization deals with the elimination of greenhouse, which is evidently an international problem. The Kyoto Protocol seeks to facilitate the implementation of Article 2 of the UN Framework Convention on Climate Change, which provides that measures should be taken to control the greenhouse gas levels to a point that they do not affect the climate negatively. Considering Article 3(3) of the Protocol, states can reduce the effect of global warming by either enhancing efficiency or improving storage. The initial part of the latter statement suggests that the mitigation methods such as iron fertilization can be utilized. Nonetheless, Article 3(3) further highlights certain activities related to the removal and storage that actually comprise modification of land-use as well as forestry. In this instance, it exempts ocean iron enrichment. Nevertheless, this exclusion is not through prescription, which creates ambiguity in the interpretation.
Carbon markets such as the Chicago and European Climate Exchange have prohibited the use of iron fertilization credits whilst voluntary markets have carbon retrieved from iron fertilization activities. If the Kyoto Protocol intends to prevent the iron fertilization credits, then stakeholders must seal the loopholes that exist in the texts (Eccleston (22). Conversely, organizations or individuals who intend to initiate an ocean iron-enrichment program must pass the Risk Assessment and Management for Scientific Research or be considered as dumping programs. A number of requirements must adhere to during the assessment. The program must define the constraints of the program, the nature of the site for conducting the program, and a description of the effect of the disposed of materials. Moreover, the program must reveal the potential adverse impacts of the activity and intervention methods. The sponsors of the activity are also expected to justify the main theories associated with the activity coupled with how countries that are affected will be assisted. Sponsors who qualify to get the license should be issued with a permit to operate for a specific period and area (Warner 433). Furthermore, it should update the Secretariat on the condition of the activity and comply with the issued standards. Once all these aspects are achieved, the documents should be published for the public to share their opinions.
Nonetheless, the London Protocol and Convention do not address the issue of limitations in terms of practicing ocean iron fertilization on the high seas and on small scale. The fact that this Protocol was preceded by the CBD and chose to remain silent on the latter, it can be interpreted that it annulled the initial restrictions. Apart from the silence portrayed by the London Protocol, other groups such as the Intergovernmental Oceanographic Fertilization (IOC) have condemned the call of limiting scientists from accessing the high seas, which are known to be productive. Nonetheless, small scale is an ambiguous term that approved large-scale ocean micronutrient enrichment in several ways (Antes, Hansjürgens, Leather, and Pickl 202). Due to these conflicts on the use of iron fertilization, the IOC team advised the London Protocol to employ two main ideas. The initial idea involved forming an independent committee made up of policymakers from various sectors such as businesspersons and environment activists among other players. This team would discuss the existing potential threats that iron fertilization might cause to the environment. The team would be granted veto powers in case it came across any activity that is considered a threat to the environment. The IOC stressed the need to encourage the protocol to allow sponsors who have valid scientific reasons to conduct iron fertilization to proceed, whilst inspecting those that simply wanted to sequester carbon through ocean iron enrichment for commercial purposes and approve them only when environmental protection methods are initiated and executed.
In line with the aforementioned proposals, in 2008, the IOC met to modify the earlier suggestions further. They urged the London Protocol and Convention to collect any new information about iron fertilization to help during the examination of the projects. For instance, it is believed that the CBD is changing its initial position of prohibiting iron fertilization projects and instead encouraging global supervision of the mitigation tool’s activities. The latter is one of the developing information that the Protocol can utilize when developing policies to monitor iron fertilization projects. Nonetheless, the London Protocol and Convention should be discreet when applying the CBD proposals since they are silent on the examination steps that should be used in determining the valid scientific iron enrichment activities. Additionally, it does not explain the scientific steps that should be taken as a defensive measure to safeguard the marine environment (Scheiber and Paik 207). In essence, the CBD proposals should not be applied by the Protocol without sealing the exiting lacunas.
So far, the steps that the Protocol took after considering the recommendation from IOC and CBD are still blurred. It is also still not clear the position of the Convention on the restriction set out by the CBD. Nonetheless, the Protocol has not yet drafted any laws to issue sanctions for any contraventions. Whilst most sponsors have opted to adhere to the regulations voluntarily, it is unpredictable the actions that the London Convention and Protocol could take in case of a private organization sequester carbon through iron fertilization for financial intentions and particularly if they do that on large scale (Verlaan 458). According to Markus and Ginzky (479), the uncertainties complicate the process for sponsors to go ahead with iron fertilization projects not knowing the ultimate position of the law with respect to the size and purpose of the project. Hence, any group that intends to initiate the latter program must first join other stakeholders in addressing the regulation stalemates.
Indeed, UNCLOS holds a similar stand as shown in the preamble, which asserts that marine issues are intertwined and should be tackled in unity. Domestic laws remain silent on iron fertilization since the high seas, which are the most iron-deficient areas, are beyond the jurisdiction of any country. A sponsor would not need the permission of a country to conduct an iron fertilization project on the high seas, but rather international consent (Scheiber and Paik 207). Therefore, sponsors must ensure that treaties that deal with the marine environment are altered to promote the maximum utilization of ocean iron-enrichment projects to reduce global warming. However, these amendments to international treaties must not contravene the spirit of regional and domestic laws.
According to Antes et al. (202), the international legal alterations must not ignore the London Convention as well as the Kyoto Protocol. The indefinite language in their texts must be changed. The London Convention could be amended to exempt iron dust, which has an adverse negative on the marine environment and the climatic system as a whole. In essence, the amendments would help in preventing any prospective intentional addition of elements to the marine environment. On the Kyoto Protocol, a modification should be made to monitor the carbon markets to prohibit sponsors from iron fertilization credits and in particular, when they seek to renew their licenses. This aspect would discourage organizations from initiating iron fertilization projects for commercial intentions rather than reducing the greenhouse effect.
In accord with the above alterations, a novel legal structure that combines the disjointed treaty responsibilities is necessary so that countries can know if the sponsors operating in their jurisdiction are complying with the global laws and customs. The international players should also clearly distinguish between small-scale and large-scale iron fertilization activities, which should be regulated with strict rules. One of the main ways of achieving the latter is through government sponsorship. Since states want to maintain a good image in the international community, they may not sponsor any activity that is injurious to their environment and interfere with the world climate system. Moreover, any group intending to initiate the project should share the information with the public through scholarly analyzed reports once the project is complete. This move will allow interested public members to contribute where they find faults. Moreover, the regulators must give special attention to the method used by the project sponsors.
It is also important to consider the number of iron fertilization projects that can be performed at any given time. The number of small-scale projects should be in tandem with the ocean capacity supported by scientific evidence. Monitoring the number of projects carried out in the ocean will help the licensing institution to avoid getting involved in cataleptic marine environment obliteration. Notably, the candidates should also be asked to deliver sufficient risk examination reports, as the National Environment Policy Act (NEPA) demands. A proper risk examination will assist both the licensing body as well as the candidates to consider the potential threats that the project poses to the environment before launching the project. These provisions should apply to both large-scale and small–scale projects.
However, it would be arguably prudent to issue stricter rules on large-scale projects. This aspect should include accountability for the issue during the term of the contract of performing an iron fertilization project. For instance, if there were increased productivity of algae due to the iron enrichment, which consequently reduces the concentration of oxygen in the marine environment leading to deleterious effects, then license terms would provide that the project operators provide mitigation strategies. Such terms should be driven by strict liability principles assuming that the actor had the motive to commit the obliteration. Furthermore, since the venture is entirely risky, it is advisable to use strict liability standards (Markus and Ginzky 490). Moreover, it is important to consider the prospective legal framework of iron fertilization so that applicants are flexible to acclimatize to the new changes in the law.
The United States is one of the countries that have been at the forefront in amending laws to tackle the loopholes that exist in relation to iron fertilization and preventing such activities arguing that it would be deleterious. For example, Planktons Inc. attempted to conduct an iron fertilization program, but it was buried after the US Environmental Protection Agency (EPA) noted that such a move would breach the provisions of its regulations in the Ocean Dumping Act and demanded that the company must first produce comprehensive information on how the act was likely to affect global warming. Unable to produce the information demanded, Planktons Inc. argued that the project could not be effective in the boundaries of the US. Therefore, such strict American rules and those discussed above will be effective in regulating iron fertilization activities according to different stakeholders.
Conclusion
Iron fertilization faces support and opposition of almost similar magnitude as a global warming mitigation tool. Despite the ongoing disputes on ocean iron fertilization especially in relation to its safety and the nature of laws that should govern it, sponsors should proceed with the projects as long as they can affirm their safety. The international community is currently working on a legal framework to regulate ocean iron-enrichment programs effectively whilst taking care of regional and domestic interests. Nonetheless, that does not mean there are no laws that guide the projects. The UNCLOS, the CBD, the London Convention, and the Kyoto Protocol are rich sources of environmental law that guide the iron fertilization activities for anyone interested in this global warming mitigation method to consider. Hence, as the international community conducts more research to understand the mitigation method, the applicants should initiate the safest methods of conducting iron fertilization whether on a small or large scale.
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