The Biodiversity Beyond National Jurisdiction treaty and its implications for marine-based carbon dioxide removal

Introduction

Atmospheric carbon dioxide removal has emerged as a critical component of contemporary climate change policymaking, and marine-based carbon dioxide removal methods (mCDR) may have to play a major role in the portfolio of negative emissions approaches we ultimately marshal. These options include:

1. Cultivation of macroalgae (seaweed), which takes up carbon dioxide via photosynthesis as it grows and can then either be sunk into the deep ocean or converted into products;
2. Ocean alkalinity enhancement (OAE), which entails adding alkaline materials, such as limestone, olivine or basalt, to the ocean to convert dissolved carbon dioxide in the water into carbonates and bicarbonate; and
3. Ocean iron fertilization, which entails adding iron to ocean waters to stimulate phytoplankton blooms to enhance carbon dioxide uptake. 

While interest in mCDR is growing rapidly, most techniques are still IN the early stages of development and require in-ocean testing to verify their carbon storage potential and other impacts. However, testing and deployment of mCDR in the world’s oceans requires a focus on notions of global governance given the important, and in some cases, potentially competing, interests of the global community, as well potential risks and resource tradeoffs.

The open oceans, beyond individual state jurisdiction, encompass over 60% of the ocean area (43% of the Earth’s surface) and 90% of its biomass. Governance in the open oceans is particularly fraught because the primary international treaty to govern this region, the United Nations Convention on the Law of the Sea (UNCLOS), provides sparse protection for ecosystems or species in this region. Moreover, below UNCLOS lies a fragmented set of treaties and agreements, “where biodiversity protection and equity appear to have ‘fallen through the cracks.’”

However, a new landmark treaty focused on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction – known as the biodiversity beyond national jurisdiction treaty or BBNJ – was agreed to in March. We will argue in this piece that BBNJ could have substantial, and salutary, implications for the future of mCDR testing and deployment in the open oceans. 

Overview of BBNJ 

The BBNJ will open for signature in September and is slated to enter into force 120 days after the 60th nation ratifies it. If and when that happens, the BBNJ will impose several new obligations on State parties. To meet those obligations, state parties will likely need to enact domestic laws, which may regulate the behavior of private individuals and entities under their jurisdiction in various ways. Thus, while the treaty itself is not directly binding on non-state actors, it will influence their activities in the ocean.

The overarching purpose of the BBNJ is to establish a “comprehensive global regime under the Convention [UNCLOS] to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.” Areas beyond national jurisdiction are defined under the treaty as the “high seas,” i.e. waters outside of any state’s Exclusive Economic Zone, and “the Area,” which is comprised of the seabed, and ocean floor and subsoil beyond limits of national jurisdiction.

Two of the key themes in the BBNJ, Area-Based Management Tools (ABMTs); and Environmental Impact Assessment (EIA); are particularly pertinent for assessing and regulating field research and/or full-scale deployment of mCDR approaches.

ABMTs and mCDR

The BBNJ defines an area-based management tool as “a tool, including a marine protected area, for a geographically defined area through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives ...” ABMTs establish a “system of rights and duties in a particular management area,” and can range from sectoral instruments to regulate a particular activity to cross-sectoral tools to regulate a number of activities, such as marine protected areas. 

Under the BBNJ, proposals for ABMTs are to be advanced by individual states or groups of states, with the Conference of the Parties to the Agreement making final decisions after consultation with the Parties and the treaty’s Scientific and Technical Body (STB) (Art. 17-19). Notably, however, the BBNJ recognizes that others should also be involved in decisions regarding ABMTs. It requires States, when developing proposals for ABMTs, to “collaborate and consult” with “relevant stakeholders,” including “civil society, the scientific community, the private sector, Indigenous Peoples and local communities” (Art. 17(2)).

ABMTs could ultimately exert substantial influence on the scope of research and deployment of mCDR approaches. While many mCDR approaches could potentially help the world community arrest climate change, they may also pose risks to ocean ecosystems, with high uncertainties given the fact that most approaches have been subjected to little or no field-testing. This might lead the parties to the BBNJ to impose ABMTs in certain regions of the open ocean to protect the interests of existing stakeholders, including fisheries.

For example, recent research indicates that certain OAE approaches could release toxic heavy metals, which could have adverse impacts on biodiversity in the open ocean (although a recent study suggests that these impacts may not occur in at least two phytoplankton groups, coccolithophores and diatoms when limestone is added to ocean waters). ABMTs might be adopted, for example, to preclude the use of OAE in ocean areas with high levels of biodiversity, or species that might be particularly affected by the process, or in coastal regions where the effects may spread beyond this area. Alternatively, the Parties to the BBNJ might adopt a “guardrail” approach to mCDR, requiring a series of threshold-based research protocols to assess potential positive and negative impacts. Or ABMTs might be fashioned to regulate the timing of alkalinization to avoid impacts on marine species during times of greatest production, or maximize one of its potential co-benefits, combatting ocean acidification. 

EIAs and mCDR

The EIA process seeks to evaluate the likely environmental impacts (both potentially beneficial and adverse) of a proposed project or development, as well as inter-related impacts, including socio-economic, cultural and health-related impacts. Despite some pressure to do so, the negotiating Parties ultimately opted not to carve out categories of activities that would automatically trigger an EIA. Yet the Parties did emphasize that they viewed EIA as a very good instrument for scrutinizing new activities in the open oceans, which could include mCDR.

Unlike the very vague EIA provisions of UNCLOS (section 4 of the treaty), the BBNJ outlines more precise obligations and affords more external scrutiny of assessments made by its parties. Under the BBNJ, a party with jurisdiction or control over a “planned activity” must initially determine if that activity might have “more than a minor or transitory effect on the marine environment,” or if “the effects of the activity are unknown or poorly understood (Art. 30.1).” 

If either of these conditions is met, the party with jurisdiction or control is required to conduct a screening process to determine if the activity might “cause substantial pollution or significant and harmful changes to the marine environment.” (Art. 30.1.b). If there are “reasonable grounds” to believe such impacts may occur, the controlling Party is required to conduct an EIA, which assesses key environmental and associated impacts, as well as alternatives to the planned activity and ways to prevent or mitigate potential negative impacts (Art. 31). Most mCDR activities will, at a minimum, require screening. Given the limited research into mCDR to date, especially the lack of field trials, the environmental effects of most techniques are still “unknown or poorly understood.” It may be that some techniques are found to cause “substantial pollution” and thus require a full EIA. 

Several mCDR techniques might be said to introduce “pollution” in marine environments. For example, in ocean iron fertilization, a substance—iron—would be introduced into the ocean where it may harm marine life or have other deleterious effects. Thus, prior to approving an ocean fertilization field trial, the controlling State may need to undertake an EIA to evaluate its risks. 

The state party with jurisdiction over mCDR projects would ultimately get to decide if it can proceed, but the BBNJ requires public notification to potentially affected Parties, and an opportunity to participate, including the submission of comments (Art. 32.1). The BBNJ requires that the controlling Party consider and respond to comments by potentially affected States. (Art. 32.1 & 32.5). The controlling Party is also required to submit its draft EIA report to the treaty’s Scientific and Technical Body and is required to respond to any comments made by the STB (Art. 33.3). The EIA provisions also require ongoing monitoring of the potential impacts of any activity that is approved under an EIA (Art. 35).

The BBNJ calls on its parties to “consider conducting strategic environmental assessments …” (Art. 39.1). Strategic Environmental Assessments (SEAs) “emerged as an extension of environmental impact assessment from the project level to strategic actions, that is, policies, plans and programmes.” Strategy-based SEAs, focused on “establishing strategic directions,” could be particularly pertinent for determining the potential role of mCDR within the portfolio of responses to climate change, including other forms of mitigation and adaptation. A strategy-based SEA “seeks to consider the entire gamut of current and potential uses and activities of a given area with a view to determining what combination best meets sustainability criteria.” As such, it would provide policy-makers with the opportunity to craft climate policy in an integrated fashion, taking into account trade-offs between different stakeholders’ interests in any given area of the oceans.

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