Professor Dr. Alexander Proelss on the current state of international legal frameworks regulating oCDR

In this episode of Plan Sea, hosts Anna Madlener and Wil Burns sit down with Professor Dr. Alexander Proelss, Chair in the International Law of the Sea and International Environmental Law, Public International Law, and Public Law at the University of Hamburg, to discuss the current state and recent developments of international legal frameworks regulating ocean-based carbon dioxide removal (oCDR). Alexander discusses the need for international law to ensure responsible regulation of oCDR, and offers insight into the relevant international agreements for oCDR research.

Alexander joins Anna and Wil to help make sense of the existing international landscape, as well as what they mean for the development and regulation of ocean-climate research. He explains that international law is essential to ensuring responsible development of oCDR — and yet there is no single international treaty governing it.  

He explains how the 1972 London Convention and the 1996 London Protocol (LC/LP) — originally designed to regulate the dumping of waste but later adapted to govern marine geoengineering — is the most relevant international framework to date, guiding the ocean-climate field. However, it has had slow progress in listing and regulating oCDR methods such as ocean alkalinity enhancement (OAE). Alexander discusses how today, the LC/LP interacts with the Paris agreement, the UN Convention on the Law of the Sea (UNCLOS), and the 2023 Biodiversity Beyond National Jurisdiction Agreement (BBNJ). He also offers insight into how new legislation in Germany could make the country a "front runner" by implementing the LC/LP, permitting scientific research of several oCDR approaches and marking a significant shift from its previously highly precautionary stance.

Alexander also discusses the tendency of international agreements to limit oCDR activities to scientific research and how regulation must balance risk mitigation with harnessing the benefits of oCDR. Looking ahead, he explains how a clear framework for governing commercial activity could help proven oCDR methods grow responsibly. 

To learn more about the latest state of international legal frameworks for oCDR, listen to the episode above, subscribe with your favorite podcast service, or find the entire series here. 

Plan Sea is a semi-weekly podcast exploring ocean-based climate solutions, brought to you by the Carbon to Sea Initiative and the American University Institute for Responsible Carbon Removal.

ACRONYMS/CONCEPTS:

• London Convention (LC): Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972
• London Protocol: 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972
• OAE: ocean alkalinity enhancement
• oCDR: ocean carbon dioxide removal
• CDR: carbon dioxide removal
• UNCLOS: UN Convention on the Law of the Sea
• EEZ: exclusive economic zones
• BBNJ: Biodiversity Beyond National Jurisdiction Agreement of 2023
• ICJ: International Court of Justice

Plan Sea is a semi-weekly podcast exploring ocean-based climate solutions, brought to you by the Carbon to Sea Initiative & the American University Institute for Responsible Carbon Removal.

Transcript

00:13 - Why Regulation Is Essential for Responsible Marine Carbon Removal

Wil (00:13): Hello everyone and welcome to a new episode of Plan Sea: Ocean Interventions to Address Climate Change. As always, I'm your host, Will Burns, co-executive director of the Institute for Responsible Carbon Removal at American University, and I'm joined by my co-host, Anna Madeiner, who's Senior Manager for MRV at the Carbon to Sea Initiative. On the pod, we often focus on the daunting scientific and technological issues that are associated with marine carbon dioxide removal. However, it's important from time to time to also visit the equally daunting questions of how to effectively regulate research and potential deployment of technologies that we know could have substantial impacts on an array of human interests. These range from the economic to cultural, as well as potential impacts on sensitive ocean ecosystems. Our guest today is at the forefront of scrutinizing such issues and suggesting ways forward. Professor Dr. Alexander Proelss is the Chair in International Law of the Sea and International Law, Public International Law and Public Law in the Faculty of Law at the University of Hamburg in Germany. In today's episode, we will engage with Alexander on a wide ranging span of legal topics that are pertinent to regulation of marine carbon dioxide removal at both the domestic and international level, where we are in the regulatory process and where we may be heading. As a law nerd of the team, I'm certainly excited about this discussion. What issues are of special interest to you, Anna?

Anna (1:50): I'm excited to listen and learn, as you say, I'm the MRV nerd, you're the law nerd, but in all seriousness, I am particularly excited to hear more about the recent changes and developments, I guess, in Germany. We'll certainly touch on some of the recent legislative changes that have passed the parliament in terms of regulating marine carbon removal and yeah, just hearing how things have evolved. It's going to be interesting. 

Wil (2:21): Yeah, I think so. So should we do it? 

Anna (2:23): Yes, let's bring him in. Hello, hi Alex, thanks for joining us. Let's start with a brief introduction. Could you please tell us who you are and what brings you here today? 

Alex (2:36): Sure. My name is Alexander Proelss. People call me Alex. I'm a professor for international law at the University of Hamburg based in Germany. For many years the international law of the sea and international environmental law have been my main fields of research and what is perhaps particularly relevant for our talk today is that I'm co-leading a government funded research mission called CDRmare, addressing from an interdisciplinary perspective all various issues of carbon dioxide removal as well as carbon storage. So that's basically it. And I think that is also what we're going to talk about. 

Anna (3:18): Yes, that's fantastic. Thank you. Wil and I are smiling because we're going to go back to our introduction and reduce your title, I think. We were having a blast…

Wil (3:29): Yeah, I got it off the website. It had like every kind of international law bachelor listed there. 

Alex (3:35): You see, this is kind of the German academic tradition when it comes to law that we are essentially expected to be generalists, which also implies that I'm teaching administrative and constitutional law in class, but then when it comes to research, of course, that is not doable. So we all have our special fields. But I know that it is a bit awkward to see those super broad denominations, something that nobody really can deal with properly. 

Anna (4:03): Yeah, I was having a blast because I was like, yeah, this is what I know from German universities, lots of titles. Well, you already alluded to it. I had the pleasure of meeting you in person in September, I think it was, where you co-organized an event by CDRmare, the research consortia that you mentioned. And I was quite struck by the fascination with which you talked about regulation and the various implications of it. It had some drama, it had some…it was just very entertaining, well, entertaining in the best kind of way. And so since then I've been really keen to invite you to the podcast because obviously regulation, both municipal, national and international laws is the foundation for responsible carbon removal. I'm wondering if you can spark some of that excitement here and broadly let the listeners in on why regulation is so fundamental to responsible research and carbon removal at large. 

Alex (5:02): Yeah. Well, Anna, the first thing I want to say is that that's very nice to hear that you enjoyed it because I guess that most people would consider regulation to be something extremely dry and perhaps a bit, a bit boring. 

Anna (5:18): That's what I thought it would be, right? And then that's, that's what I mean. 

Wil (5:21): Oh, how can, how, how? How can you think that? 

Alex (5:26): Exactly, Wil. Now, why do I think it is so important? Well, you see, when we talk about interventions into the environment of whatever kind, I'm absolutely convinced that we need to reduce all potential negative impacts. And at the same time, when we deal with activities that aim at contributing to fighting global warming, obviously, it is mandatory that the activities concerned will work. Otherwise, it's going to be a waste of time, a waste of effort, and a waste of money. That doesn't make sense to me. So ultimately, it really is all about creating a framework which will then govern the research, as well as any kind of potential deployment of the activities concerned in the future. And yes, I also think when it comes to areas such as the ocean, which is not just attributed to one specific state, but rather, as we sometimes say, the common heritage of humankind, then it is absolutely mandatory that whatever we do is coordinated with other potentially relevant stakeholders. And that includes other states, that includes human beings, that includes corporations, and so on and so forth. So all together, what we need is a framework that safeguards that any kind of activity which may interfere with the environment is done in accordance with the rule of law because that is what it's all about. And that creates certainty and that creates an environment where scientists but also corporations will know what happens if they conduct a certain endeavor. And that is what I think is so important about it. 

07:18 – The London Convention & Protocol: Where Marine Carbon Dioxide Removal Stands Today

Wil (7:18): Let's get into some of the regimes, both at the international level and the domestic level, that have been trying to do exactly what you've said. I want to start off with the London Convention and London Protocol, given the fact that they've been arguably the predominant regimes at the International level in terms of marine geoengineering to date. First of all, could you briefly outline the regulatory approach for marine geoengineering that's developed in the London Convention and the London Protocol from I guess starting in 2008 to the present? 

Alex (7:56): Sure, Wil. How much time exactly do I have? Because I may actually need a couple of minutes. Now, joking aside, let me perhaps start with saying that there is no international geoengineering treaty or something along these lines, but rather that, as you correctly said, Wil, there is this international treaty, or it's actually rather to the London Convention and the London Protocol, that were originally concluded with regard to the dumping of waste and other matter into the ocean environment. So when those treaties were concluded, nobody really had geoengineering in mind, but rather those regimes were developed for some other activity, which ultimately with the London Protocol was then prohibited. And I think we all agree that it's not wise to dump waste into the ocean, because you will definitely harm marine ecosystems. Now, at the same time, taking into account that many of the marine geoengineering activities are affiliated to the introduction, the placement, as the treaties say, of substances into the sea, it kind of appeared to be logical to use those existing instruments, which did not then have to be newly negotiated from scratch, in order to include new instruments and ultimately regulations concerning marine geoengineering activities. And all that started, as you correctly said, Wil, in I believe, 2007, 2008, when the first experiments on ocean iron fertilization were planned. And suddenly policymakers realized that, oh, gosh, we don't even know whether we're allowed to do this on the high seas. Can we do it? Or what kind of legal regulations do we need to take into account? And this is when all this big debate started. And ultimately resulting in a couple of non-binding declaration of the contracting parties, meaning the states parties to the London Convention and Protocol and in 2013 the adoption of an amendment specifically referring to marine geoengineering activities to those two treaties. I’ll perhaps leave it like that otherwise I'm going to talk for another one and a half hours on that issue. 

Wil (10:18): Okay, that sounds good. Well, we'll drill a bit deeper then on some of these topics. So a big topic, if we look at the original resolution in 2008, the focus on ocean iron fertilization, when we look in 2026, that seems to be a fairly low priority among marine carbon dioxide removal options that are being discussed or in terms of development of potential commercial activities. On the other hand, we have fairly kinetic activity when it comes to two other mCDR options, that being ocean alkalinity enhancement and macro algae sinking. Under the amendments to the London Protocol, the way they work, right, is there's an Annex 4, and you can list marine geoengineering activities under Annex 4, and then they're subject to the regulations that are provided for in the amendment. The parties originally just in the amendment listed ocean iron fertilization, but they've discussed adding ocean alkalinity enhancement and macroalgae sinking to this Annex, but they haven't done so yet. What do you view as the major points of contention at this point?

Alex (11:38): If I knew, Wil. It's really a bit of a weird story that we have now listed the very activity which, as you correctly say, seems to be one of the ones that are considered to be the least effective when it comes to carbon dioxide removal, at least that is what I learned from my fellow science colleagues, whereas other activities in particular, ocean alkalinity enhancement are considered to be potentially effective and quite effective, and they are not less. What is the reason for those activities not being listed? Together with one of my research associates, we tried to reach out in the context of a research project to several foreign ministries of a variety of states. Now, as you can expect, not all of them replied as is typical when state agencies receive requests from the scientists, but some did. What struck us was the fact that first, many states parties to the two instruments were really not that aware of what it's all about. So they didn't really get the point. And secondly, some states said that because they were not in favor of the activities concerned, also taking into account the big debate about ocean iron fertilization back in 2007 and 2008, they would rather refuse to contribute to including further activities on the list. Now this is a bit strange because at the same time the very same contracting states in their 2023 statement argued in favor of including further activity on that list. So I don't really…it's very difficult to make sense of this. I just think that there is still some kind of negative gut feeling about the activities concerned. So most states do not yet seem to be ready to include further activities on the list of the London Convention on Protocol. But it is a bit speculative what I'm saying here, I have to say, simply because it is absolutely difficult to find out the real reasons why it is not happening. 

Wil (14:05): Yeah, well, I'm a bit comforted that it's a mystery to you also, but I guess the talk will continue to ensue. Where do you think direct ocean capture, right, another potential mCDR approach, fits into this discussion? 

Alex (14:22): That's a very interesting question. Now let us then again think back at the exact wording of the two international treaties to which I referred before and they refer and use the term placement of matter into the sea. So what is necessary is a placement and that again means that something needs to be introduced into the marine environment. So if I get direct ocean capture right, then this is exactly not what we're talking about, but rather we simply take out CO2 that has already been stored in the ocean, but no extra substances with the exception of the ocean water, which is then going to stay within the marine environment, are added to the marine environment and that is why it is debatable whether it actually unfolds within the scope of the London protocol. The same is true, by the way, for artificial upwelling and downwelling, because also here, the only thing we do is we move parts of the water and transport it either up or down, but we do not introduce extra substances like ocean iron particles into the marine environment. So I guess that is the main difference. At the same time, some of our colleagues, Wil, discuss whether the sheer placement of the infrastructure that you need for direct ocean capture into the marine environment is enough in order to render the London Protocol applicable. I have to say that I'm a bit skeptical simply because if you take out the infrastructure after it has been used, then there is really nothing which you leave in the marine environments. So. If that is possible, technically, and I guess it is, perhaps that's a big difference to artificial upwelling where those huge plastic bags arguably will, in one way or the other, potentially remain in the marine environment, then the scope of the London Protocol is not applicable. But as I try to say, Wil, and you know this, of course, there's ongoing debate amongst legal scholars about whether or not the scope of the law and protocol is actually affected by these activities. 

Wil (16:53): Yeah, it's an interesting question. And they've obviously also talked about whether land-based electrochemical ocean alkalinity enhancement falls under the rubric, right? It seems, for the most part, probably not. 

Anna (17:07): Fascinating. 

Wil (17:11): We’ll lure you in. 

Alex (17:13): Well, just make one further remark, Will, because I'm inspired by what we are talking about. I mean, we may talk about the 2023 statement on marine geoengineering during our discussion, but I find it striking that the representatives of the state's parties referred to four techniques which they wanted to discuss to be included in the annex to the London Protocol and those four techniques also include marine cloud brightening and surface albedo enhancement. And I really wonder Will, is that really marine geoengineering because it is obviously not really connected with a placement of matter into the sea, but rather what is happening, either you raise something into the atmosphere. Or you place something onto the sea, which is arguably from a legal perspective, not the same. So I wonder, what exactly do states believe about the scope of the London Protocol? So there clearly is still a considerable scope for discussion. 

Wil (18:26): Yeah. And my understanding is that there's kind of been a second thought about marine cloud brightening, right? Where probably they now believe it shouldn't be included and it may be for the reasons that you think, right? And in terms of the marine bubbling, I think the argument that you often hear is that it's not the bubbles themselves, but it's the surfactants that might be used to maintain the duration of those bubbles that would fit under this rubric. Do you think that would make sense?

Alex (18:59): That's interesting and I could imagine that yeah, at least it is a potential argument that can be presented in order to make it fall within the scope of the long term. Still, I do see a difference if we compare it to the other activities that I discussed to be listed. So yeah, I'm sure I really have to put it this way. 

Wil (19:27): Again, it'll be interesting to continue to watch these deliberations. So this is a good segue. You talked about this statement. So in 2023, the parties issued this statement on marine geoengineering, and the parties to the protocol were encouraged to apply the risk assessment framework that the 2013 amendment had established to proposed marine geo-engineering projects, right? And I guess one question I have is, do you think it's advisable to potentially apply provisions of an amendment that hasn't been ratified yet, right? So it hasn't come into legal force and isn't even close to being ratified, right. I think it has six parties and it needs, what, 36 or 37. And so there hasn't been full-throated support of this amendment, and yet the recommendation is you should apply this risk assessment framework to your activities. You think that's a good idea? 

Alex (20:33): In general, I think that this assessment framework to which you refer in your question is perhaps the best document that we have available, right? So from that perspective, I do think it makes sense to follow it, even though, as you correctly say, the amendment, including the assessment frameworks, have not yet entered into force. And it is extremely unclear whether they ever will. So, we don't know. What I would like to stress at this juncture is that differentiation between binding law and what we call soft law meaning documents that have been adopted in terms of of a political decision or resolution but that have not become legally binding that there is no such clear cut distinction sometimes and there are other cases to which we could refer here a non-binding meaning soft law statement can be as effective as binding law. It really perhaps is not appropriate anymore for us legal scholars to kind of only treat as effective and valuable what is legally binding. That's a general remark which comes into my mind when I think about the development of international environmental law over the last couple of decades. And I also would like to add one thing. When it comes to interpretation of the meaning of provisions codified in the Binding Treaty, we know now that it is possible under certain circumstances to interpret this treaty in line even with what is called subsequent practice of the contracting parties. And both the International Law Commission of the United Nations as well as very recently the International Court of Justice, in the context of the climate change regime have confirmed that such non-binding declarations, if adopted anonymously, may have an impact on the interpretation of a treaty. Now, I know that this may sound very technical for some of the people that listen, but what it essentially means is that by adopting political statements, it is possible to indirectly amend the meaning of a binding treaty. That is very fascinating and I would like to add that the International Law Commission actually referred to the London Protocol as an example with regard to which a situation of subsequent practice has actually appeared. So that is certainly something we should keep in mind when we talk about whether or not it makes sense that this non-binding assessment framework is applied. First, there is nothing better in the world, at least not to my knowledge. Second, it may actually have a legal effect with regard to the interpretation of the London Protocol. Now, I hope that this was not too legalese, and if yes, I'm sorry, guys. 

Wil (23:54): How could it ever be too legalese? 

Alex (23:58): No, that's that's our, that’s our point Wil, but maybe not everybody agrees to that. 

Anna (24:04): This is Wil’s payback for the science episodes. 

Wil (24:12): Yeah, I think it's a fascinating development and probably one that parties will have to take more into account when they're making these quote-unquote non-binding resolutions of the future, right? Last question on London, and probably the most controversial of the questions I'll ask you, is the 2008 resolution of the London Convention and then the 2013 London Protocol Amendment limit marine geoengineering activities to quote, legitimate scientific research. And this has been a source of frustration I know for a lot of marine carbon removal companies, right? And the argument that they make is you establish this limit in terms of what can be done now, but you don't provide any kind of criteria or roadmap of how we could move beyond that and potentially regulate commercial activities, right, and no prospects for it. And in doing so, it limits the potential growth of the field. Do you think the parties should try to develop criteria for how these activities might be permitted to move to a commercial deployment under the conventions or is it too early? 

Alex (25:34): Oh, wow, this is kind of the elephant in the room, isn't it? Now, it's certainly something which now we are leaving the realm of the law, because this is really about what should happen in the future. And as you say, you can take very different opinions on the matter. I personally, and this is my very personal viewpoint, I generally think it makes perfect sense and it is in line with what we call precaution. That we first assess the potential environmental impacts of a certain activity before deploying it in practice and also for potential commercial purposes. So that's kind of my general attitude. At the same time, I understand that there is a certain level of concern to put it mildly because obviously if there is no roadmap it will be very difficult to create the necessary incentives to have the, if I may use that term, technology ready when we need to implement it. And climate science tells us, if I'm not mistaken, that the window of opportunity, if i use that term is getting ever closer, meaning we may just be forced to start to deploy carbon dioxide removal on a broad level in order to have the slightest chance to reach the global temperature goal of the Paris Agreement on climate change. So it really is a very, very difficult question. I still think with some of the activities, more science is required. But I think when it comes to alkalinity enhancement, it is possible to make the case that contracting parties should slowly start discussing what is the roadmap to the future. But I know that this will be very controversial what I'm saying. Not everyone will agree with me. No problem with that. But we need to balance the two perspectives. And that is very difficult, obviously. Now, why do I refer to ocean alkalinity enhancement? Because it seems and I'm happy to be corrected by the experts and the scientists that the negative consequences are... I shouldn't perhaps say not existing, but rather not the same as with some other activities because it seems that alkalinity enhancement may actually also counteract ocean alkalinization, which would actually be a positive side effect. 

Anna (28:29): On a local scale, potentially. 

Alex (28:31): Yes, Anna. So that should be kept in mind also, I guess, when deciding upon what is the next step. 

28:39 – Germany’s Regulatory Shift: From Precaution to Pragmatism

Anna (28:39): Yeah, truly, truly fascinating. And I want to use this as a segue into talking about the state of affairs, so to say in Germany at the moment. I think it's an exciting use case or example regarding the ratification or implementation of the London Convention and London Protocol. About two weeks ago, I think at the time of this recording, the German parliament passed a long awaited bill amending the high seas dumping act or the Hohe- See-Einbringungsgesetz in German. And as usual, we like to make them long, give them a long name for bills. And this is essentially, to my understanding, German's implementation or ratification, I'm not sure which is the right legal term, of the LCLP. Can you briefly outline what the change brought about and what it means for marine carbon dioxide removal in Germany?

Alex (29:29): Let me first start with the older High Seas Dumping Act, or rather old, that's not the right word, the original version of that piece of legislation. The High Seas Dumping Act indeed is an act by which Germany implemented the London Convention and Protocol. And Germany is one of the very few states that have already implemented parts. Of the 2013 amendment into national legislation, but they did so by even strengthening the environmental requirements enshrined in the London Protocol. Now, what does that mean? The original version of the High Seas Dumping Act established an absolute prohibition of dumping with the exception of those activities that were expressly permitted in that piece of legislation, and those were the ones that were codified in an annex when it comes to marine geoengineering to the act. And the only, this is not going to come as a surprise, the only activity that was included in that list was ocean iron fertilization, if used and implemented for legitimate scientific purposes. So any other activity was prohibited and could not be authorized if the activity concerned was planned to be conducted in waters under German jurisdiction or on the high seas from a vessel flying the German flag, because obviously Germany cannot regulate anything that takes place on, say, United States flag vessels, right? So this was the original piece of legislation, and that has now been amended. When it comes to marine geoengineering, this is really interesting because Germany is now one of the frontrunners of the entire development. The annex to this piece of legislation was amended to now include five marine geoengineering activities, always limited to scientific research. First, ocean iron fertilization, Well, we had that before. Second, enhancement of ocean alkalinity. Third. biomass sinking, fourth, storage in oceanic crusts, and number five, artificial upwelling, even though it seems to be the case that science is not considering that as the most effective of those options anymore. This means that it is now possible, I should be a bit more cautious, because the legislation has not yet entered into force. It was adopted by parliament, but it still needs to enter into force, which is going to happen in the future. The coming days and weeks. So this is not going to take long anymore. So it is now possible subject to a permit to be requested from the Federal Environmental Agency to conduct research on the five activities which I just mentioned. Second amendment, the legislator has included monitoring requirements with regard to any kind of potential negative environmental consequences. And third, and I would say that this was perhaps the most important from a political perspective, the most important of the amendments, the High Seas Dumping Act is also the act that regulates the export of CO2 streams for storage. And that is something which was prohibited in Germany on the basis of the same very international treaty. And what Germany now has made possible is to make use of the option to provisionally apply an international treaty provision which has not yet entered into force in order to make it possible to export its CO2 to other states on the basis of a bilateral agreement. And in particular, this applies to Norway, which has offered its continental shelf areas for CO2 storage. 

Anna (33:56): Yeah, and I think it seemed actually that the majority of the news and language around this bill was actually around the CO2 transport. And it was, for the geeks, for the nerds of us, we were aware that along with it came this amendment around CDR research, which I thought was also quite interesting, actually. It might just for non-German listeners seem like any other news on mCDR. Do you want to share a bit more about why you think or perhaps you don't think that this is an important step? As you said, now Germany is in some ways a frontrunner when it comes to regulating marine CDR. What were some of the arguments or processes behind this change? 

Alex (34:45): Yeah, Anna, that's a very interesting question. And it actually, it perhaps is a bit surprising that this legislation was ultimately adopted by the parliament. Why? All this is connected to a legal principle, which I already mentioned before, and this is the precautionary principle. And there are many, many different understandings of what this principle is. And if there is…I'm using two examples in order to clarify what I'm trying to say. And one is Germany and the other one is the US. So the German attitude is essentially, this is a bit like the German angst, right? It's like, oh, if there's some kind of uncertainty about potential negative environmental or health consequences of a certain conduct, we must not allow it. This is the traditional understanding also of the German Federal Environmental Agency, and that explains why originally the German piece of legislation concerning marine geoengineering was one of the strictest in terms of the environmental protection level because of the scientific uncertainties involved in those activities, right? If we contrast that to the US approach, which I'm obviously not an expert, but that is much more like... if there is scientific uncertainty, we should still do it and we should try it. And if something goes wrong, there's going to be massive liability. And that's kind of the two, the two colliding positions. And we could also see that in other contexts, right? If we think about the failed trade agreement between the European Union and the US, right, one of the most controversial questions was, is it possible to import and export genetically modified agricultural products from the US to Europe? And the European perspective, in particular, the German perspective was, oh, well, there's scientific uncertainty about potential negative consequences, so we shouldn't allow it. And that was very hard to understand for the US partners. So don't get me wrong. I'm not taking a position here. I'm just trying to flesh out why this piece of German legislation now is really something completely new because now... And I think this is also because of the state of science that has been produced within this research mission called CDRmare, which has always aimed at including the dialog with policymakers and regulators. And we were quite successful in doing so, that in general an atmosphere of trust has developed and that has resulted into compromise building. Which now is exactly what is embodied in this piece of legislation. So from that perspective, I think it's actually quite a positive development that we can observe here. 

Anna (37:53): I think it also sounds a bit like, I guess when they first implemented this, this was 2013. Now, to me, that feels somewhat like not that long ago, but it's actually been 13 years. And so in some ways, I'm expecting or thinking it might also reflect the result of inaction in the last 13 years, right? Maybe 13 years ago, it would have been possible to say, we can amend the worst consequences of climate change by reducing emissions, which we still, of course, have to do regardless. But now I guess the conversation has changed a bit because the science is telling us, well, even if we cut all emissions, we now have to do carbon dioxide removal. So there's a bit of an ethical or moral dilemma emerging where ruling something out for the chance of a negative effect is sort of opposed to the cost of inaction. 

Alex (38:51): I think that's absolutely true. 

Anna (38:54): I wanted to touch on one last point with respect to Germany, a very local conversation, which I do think is quite representative of the conversation around marine CDR in general. In that conversation or presentation you gave in September that I listened to, it was one of two events where I realized that while at that point still the German legislation of the exclusive economic zone or the German waters, the jurisdiction, of course, were prohibiting research on CDR, you did talk about the difference or the possibility of conducting research closer to the coast, if I remember that correctly. 

Alex (39:34): When it comes to the maritime zones and the question in what area is it allowed to do what exactly the German case is also quite special because it is a highly federalist state, which means that even marine areas are under the competence of either the federation or the federal states. And when it comes to the federal States, they are responsible and competent and that essentially includes all kinds of activities. For the internal waters and the territorial sea, which extend up to 12 nautical miles out to the sea. And the old, in particular, when it comes also to storing CO2, the prior legislation actually made it possible for the federal states to decide for themselves how they deal with that maritime zones. And essentially... Coastal states because of public pressure decided to not allow the storage of CO2. But when it comes to the EEZ, the Exclusive Economic Zone, that is a bit of a different story. It doesn't mean that it's only the federation that is responsible to legislate and regulate, But the question is, how will the federal states be, they actually like them? The capabilities of dealing with the matter. So it really is a very complex topic that is connected to the competence division based on federalism in general. 

41:09 – UNCLOS, BBNJ, and the Expanding International Ocean Framework

Anna (41:09): I guess the reason that I wanted to highlight it is generally speaking, and especially, I think for folks that are perhaps new to the world of marine CDR, the immediate understanding that prevails sometimes is that this is not legal yet, right? Because of, for example, the London Convention and London Protocol implementation and considerable ambiguity and also for a non-lawyer, the overwhelming amount of regulations that of course do fall into consideration for mCDR. I guess what fascinated me about this example is that Germany in particular was often perceived as a country where marine CDR research is not possible or not legal, when in reality there are individual situations, federal individual considerations that need to be considered where the research was actually legal. I think it's an important point because we obviously have activity around marine CDR in particular, as you mentioned, around ocean alkalinity enhancement and also direct ocean capture in the world taking place, all of which is legal. So yeah, I just wanted to highlight that, but I don't want to get carried away because  we wanted to talk about so much more. And zooming out entirely, let's move into international policy a bit. Notably the UN Convention of the Law of the Sea or short UNCLOS is a centerpiece of ocean environmental stewardship. What provisions of UNCLOS do you think are most pertinent in the context of marine CDR? And how is it operationalized? 

Alex (42:45): Thanks for that question. The UNCLOS, the United Nations Convention on the Law of the Sea, so often called the Constitution for the Oceans. And I think this description is quite fitting because it establishes a general framework that is applicable to essentially all ocean-based activity. No matter whether those activities were known at the time when that binding convention was adopted back in 1982 and entered into force in 1994. Now, this very constitution for the oceans is the first international, rather multilateral, treaty that included rules and regulations concerning the protection and preservation of the marine environment. And that included specific provisions on different sources of one of those provisions addresses pollution from dumping. Now that is obviously what is particularly important when it comes to UNCLOS. At the same time, this idea of UNCLOS being a constitution also implies that it establishes the general framework and that it must be specified. And when it comes to pollution from dumping activities, it is actually specified and it includes a reference to The London Convention and Protocol, even though implicitly, but it's clear that this is the specifying treaty. So it's quite fascinating because you have a general framework convention, and that general framework convention is specified and further developed by a more specific treaty. And this more specific treaty is then going to be implemented by the contracting parties within their domestic legal systems. So from that perspective, UNCLOS is the framework of it all. 

Anna (44:37): Under UNCLOS, very recently, a new agreement, the Biodiversity Beyond National Jurisdiction or BBNJ Treaty was recently ratified, if I used the right term now. I think the 60th country ratified it into national law and therefore it's now…

Alex (44:55): It entered into force. 

Anna (44:57): Entered into force, exactly. So this was I think celebrated quite widely because it does offer a wealth of new mechanisms and regulation of the sea. Can you talk a bit about how you think this new agreement may play a role in regulating marine CDR? 

Alex (45:14): The BBNJ agreement, this is important to say from the outset, refers to the high seas and the deep sea bed, those areas that are called areas beyond national jurisdiction, which means that no individual state is entitled to exercise sovereign rights about those areas, all right? So we are not talking about coastal waters now. That's very important. When it comes to any kind of activity that is conducted in those areas beyond national jurisdiction, the BBNJ agreement will become applicable, at least for its contracting parties. And those are 60 and something since January this year. When it comes to marine geoengineering, I think that what is going to become particularly relevant is the rules and regulations on environmental impact assessments. Now the BBNJ agreement establishes again a general framework. It's the first treaty that tells states when and how to conduct environmental impact assessments whenever they initiate certain activities or authorize permit certain activities to take place on the high seas. And this obviously also covers marine geoengineering. Now that being said, the BBNJ agreement also acknowledges that there are many special treaties out there which should not, and now I'm using the vocabulary of the BBNJ agreement, should not be undermined. The big legal question then is when does the BBNJ agreement undermine existing treaties such as the London Protocol? 

Anna (47:03): This is what I mean with drama. 

Alex (47:04): Here we go. Isn't that fascinating? So the big question really is, is the assessment framework under the London protocol applicable to marine geoengineering utilities? Does that meet the standards concerning environmental impact assessments that are envisaged to apply by the BBNJ agreement? My general view is yes. It meets the standards of the BBNJ agreement, which is why the London Protocol will arguably continue to apply. At the same time, when it comes to potential future, let me call this deployment and commercial activities, the contracting parties to the London protocol may come up with lower standards for environmental impact assessments. And should that be the case, then the BBNJ agreement is going to tell them, guys, this is not in line with international law. You need to fulfill the minimum standards that are included and codified in this BBNJ. 

Anna (48:16): And does it sort of through the back door, therefore, matter that the BBNJ is ratified by now more than 60 countries, whereas the London Convention is not? I mean, it's notably much less countries, right? Or is that not related? 

Alex (48:30): I have to tell you that I don't know the exact number of contracting parties of the London Protocol in mind…it should be a bit more, I think like 70 something. Is that correct? Wil, do you know? 

Wil (48:40): I think so… I'm trying to think the requirement was for two-thirds to ratify this last amendment and that required like 37. 

Anna (48:51): Oh, sorry, then I thought I had a different number in my mind. Never mind. 

Wil (48:55): I think it's very close. Okay. 

Alex (48:59): Yes, that's what I think. But does it matter? Yes, it matters. Because by the entry into force of the BBNJ agreement, this is going to produce political pressure to not undermine those general umbrella standards. And that will, in one way or the other, affect all more specific treaties, including the London Protocol. And then there is another issue, another issue which is included in the BBNJ agreement, and that is the rules and regulations concerning marine protected areas, which may obviously also be affected by potential marine engineering activities on the high seas. And again, should those marine protected area be established, then there's going to be stricter standards to apply. So yes, there clearly will be an impact on those activities. 

Wil (49:48): Yeah, one other twist, I think it'll be interesting to see if this gets teased out ultimately in BBNJ is, as you correctly indicated, it regulates activities on the high seas, but it also has a provision that says that if you're conducting activity in the coastal areas that has an impact on the High Seas biodiversity, right, it could be regulated. And arguably things like ocean alkalinity enhancement, right, that can have an impact on a certain part of the life cycle of a species that might ultimately be impacted when it's in a coastal area where these activities are taking place and then ranges into the high oceans. It potentially could apply in that case too, I think, but that's gonna require a lot of science. 

Alex (50:37): Absolutely Wil, and you're right in emphasizing that and that is the very important exception to this limited scope of application which I described before so I was perhaps a bit too too single-sided when saying that it's just the high seas and the area meaning the deep seabed it's also those activities which may impact those areas beyond national jurisdiction and that become very important too. You're absolutely right in that. 

51:06 – ITLOS

Wil (51:06): Yeah, we'll see, right? Because again, that's going to require some pretty granular science. And I just think in general, it'll be interesting to see, given all of the priorities, right, that the BBNJ will face as a new regime, right, if they take up marine geoengineering in earnest or not, right. Or in what timeframe, right I guess to be determined. Let's move on to the Tribunal of the Law of the Sea and the body that was established to settle disputes among parties to the Law and the Sea Convention. So in 2024, the Tribunals issued an advisory opinion, right? So it's not legally binding on the parties, but it's supposed to be looked at in good faith, right? This advisory opinion focused on the legal obligations of parties of the law of the sea to address climate change. And it found that greenhouse gas emissions fall into the rubric of marine pollution under the convention. And it said parties had clear obligations to prevent, reduce, and control such pollution. But then there was a very brief discussion of the potential role of marine geoengineering, right, in potentially meeting those obligations, and the tribunal said that such approaches would actually violate one provision of UNCLOS, which is Article 195, if they result, quote, in transforming one type of pollution into another. And so, a couple of questions for you in that context. First of all, do you agree with their analysis here that 195 would be applicable and do you think it would apply to all forms of marine carbon removal? 

Alex (53:00): This section to which you refer, Wil, in this advisory opinion of the International Tribunal for the Law of the Sea, that is, from my perspective, one of the most mysterious ones. Because it was included in a section and I personally think it wouldn't have been necessary to comment on the issue at all. But since some of the states that delivered written or oral statements in the proceedings mentioned Marine Geoengineering, the Tribunal seems to have felt obliged to at least briefly comment on it. With all due respect, I'm not that happy with that very section. And I can tell you why this very provision to which you referred, the prohibition of transforming one kind of pollution to a different type of pollution, that does not, according to my view, establish any kind of absolute prohibition. And in accordance with the logic of the tribunals. Advisory opinion, what it rather does is establishes a duty of conduct to which the standard of due diligence applies. And I think that would automatically mean that if a certain activity, a certain marine geoengineering activity is effective, removing carbon from the atmosphere to a significant extent, then it will not violate that very prohibition, even if there is minor localized damage to the marine environment. Why? Because in general, there will still be a significant contribution to fighting climate So what I'm trying to say here is There needs to be some kind of balancing involved with regard to the positive effects of carbon dioxide removal concerning climate change and the potential negative effects. It's not an absolute prohibition that Article 195 of UNCLOS establishes. And I should also add that in the very same section of this advisory opinion, the tribunal then referred to the work of the parties to the London Protocol, which to me seems to mean that the tribunal accepted that the main forum for discussing these issues is not unclosed, but rather the meeting of the parties to the London Protocol. And that again seems to imply that this cannot be understood in terms of an absolute prohibition. If, by the way, we accept for a second that there is any kind of transformation, of one type into another type of pollution at all, which I think will not always be. 

Wil (56:07): Yeah, I agree with all of that. I mean, in that second half of your answer, right, it's like, does upwelling and downwelling, for example, do that? Does ocean biomass sinking do that? I think that's a question. And I agree that there seems to have to be some kind of comparative risk assessment, right? If you take oil remediation methods, for example, by definition, they create some pollution, right? And yet I can't imagine you'd see the Tribunal saying, well, you can't engage in oil remediation, right, because for the same reason. So, yeah, it seemed to be a political component of this, but we'll see where it goes. 

Alex (56:48): Allow me to make a brief comment, Wil and Anna, because that fits so nicely. Do you know what? There was one new provision in the revised High Seas Dumping Act that recently was adopted by the German parliament, and that was a provision which makes it lawful to include substances into the marine environment for the purpose of oil remediation. Ha! Which was a big issue before, because if you establish an absolute prohibition of placement of matter into the sea, then you have a problem because that means that you cannot even react to an oil spill. 

57:23 - Marine CDR and Considerations Under the Paris Agreement

Wil (57:23): Wow, yeah, see that that is interesting because that's what I was thinking about this because I've been thinking about writing about the decision, right, and that was just the first example that jumped out to me. So let's move on to Paris then, right? Obviously these things that we're talking about are our efforts to deal with the climate, right. And so it makes some sense that Paris would have some purview. But one interesting question in that context is something that I've written about and you've thought about and others have thought about, which is this language in the Paris agreements preamble that says that the parties are required when they're responding to climate change, to take into account notions of human rights and sustainable development and intergenerational equity. In determining the measures that they take to combat climate change. How do you envision that these provisions might be pertinent to potential deployment of mCDR approaches, if at all? 

Alex (58:30): When it comes to the Paris Agreement, the first thing that comes into my mind is that when marine geoengineering, at least if we think about this in terms of carbon dioxide removal, seems to be covered by the concept of sinks. And the Paris agreement also includes a provision which in very vague vocabulary admittedly, requests states to increase sinks. That, first and foremost, of course, refers to their terrestrial things, meaning the things under their sovereignty. But I think the case can be presented that the Paris Agreement should generally also be considered to be applicable to the marine environment. If that is true, there is a certain indication that Paris does not establish an obstacle towards marine geoengineering. When it then comes to preamble, Wil, and to the vague statements that you can find here, I think that this obviously is not legally binding language, but what I would like to say is that those states that have subjected themselves to human rights and to their most fundamental international environmental legal obligations, they need to comply with human rights and those principles anyhow, regardless of the preamble to the Paris Agreement. And that is something that we have started to discuss in recent years. So if there is ocean-based activities conducted on board of a ship flying the flag of a certain state, does that mean that everything that is happening on board that ship and the activities that that ship is involved in are under the jurisdiction of that state? And does that also mean that the human rights to which that state has subscribed are going to be applicable with regard to those activities? That is one of the big issues discussed today. And I think generally the answer should be yes, because we should take our human rights seriously. We shouldn't just always point to the others, but we should also start with ourselves and accept that if we ratify human rights treaties, we should stick to the human rights, no matter where we conduct our activities. 

Wil (1:01:03): Yeah, let me ask you a follow-up on that. The advisory opinion on climate change from the ICJ also talks about human rights, right? It does. Kind of emphasizes it. But one of the things that it kind of left vague was that issue of territoriality, right, and whether you're responsible for protecting human rights within your own territories and within your quote unquote jurisdiction, which arguably means that if you're... Violating the human rights of others because of your activities, you don't necessarily have an obligation. What do you think? Is there extraterritorial application of human rights in this case? Or should there be? 

Alex (1:01:43): Gorgeous. This is becoming a really nerdy public legal scholars debate now, Wil. I mean, it really depends on whether or not the state concerned is a party to a regional human rights treaty. As you know, there are mainly two or three fundamental human rights systems in the world, and that is the European Convention on Human Rights, the Inter-American Convention on human rights and the African. On human rights. So, in all of those cases, we have a large body of jurisprudence by the Human Rights Court's concern that tell us that if, and this is the important part now, if the state exercises jurisdiction over persons, that means that it has to comply, it has to act in line with the human rights, the big question is, and a super controversial question, what does jurisdiction mean in a human right context? Because we use the same concept in a law of the sea context, in an international environmental law context, and in a Human Rights context, but it doesn't necessarily mean the same thing. Right. And the European Court of Human Rights has been somewhat stricter in its understanding of what effective jurisdiction over persons mean than the Inter-American Court of Human Rights, which has been extremely dynamic, in particular in the context of climate change. So there doesn't seem to be one size fits all standard in the world. But generally, I think there is a growing recognition of the fact that if states act extraterritorially, they have to respect their own human rights obligations. 

Anna (1:03:35): We're almost going into philosophy territory there now. 

Wil (1:03:38): Yes, it's going to be fascinating to watch, but again, I think the ICJ's really clear emphasis on human rights being an extremely important strand of obligations when it comes to climate change is something that's going be interesting to watch and the nexus of that with CDR in general and mCDR, right, is going to be fascinating to watch. I think that's a good place for us to stop. Anna, I fear to say we probably could go on for hours, but we'll spare you and our audience. 

Anna (1:04:15): In any case, if anyone at the beginning of this episode was questioning what I meant with a dramatic, fascinating overview of what law means in this context, I think now they know. Thank you so much. I thought it was very insightful. And I feel like we touched on a couple of points where, I don't know, to me, at least, I think you think of law as something rigid and fixed and it exists and you follow it, but you had a couple of perfect lawyers answers in there where both sides are true. 

Alex (1:04:53): There is so much more behind it, right? Yeah. Well, thank you so much for this kind invitation. For me, it was a big fun to talk to both of you. Thanks so much. 

Wil (1:05:06): Thank you very much, and thanks to our listeners. If you enjoyed this episode, please leave a comment or review and share this episode. If you want to suggest a specific topic for a future episode, please feel free to reach us through LinkedIn or via our email address, plansea@carbontosea.org. And with that, we say thank you to everyone and hear you next time. 

Anna (1:05:29): Thank you, bye.