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The International Law of Sub-Seabed Carbon Dioxide Storage 3

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The International Law of Sub-Seabed Carbon Dioxide Storage 3 The International Law of Sub-Seabed Carbon Dioxide Storage A Special Report to the MIT Carbon Sequestration Initiative August 2005 Mark A. de Figueiredo Massachusetts Institute of Technology Laboratory for Energy and the Environment 77 Massachusetts Avenue, Room E40-455 Cambridge, MA 02139-4307 Tel: (617) 253-3770 Fax: (617) 253-8013 Email: [email protected] http://sequestration.mit.edu/ I. Introduction................................................................................................................... 4 II. United Nations Convention on the Law of the Sea (UNCLOS)................................... 7 A. Background............................................................................................................. 7 B. The Convention....................................................................................................... 9 1. State Sovereignty and Maritime Interests....................................................... 10 2. Protection and Preservation of the Marine Environment................................ 12 3. Marine Scientific Research............................................................................. 12 4. Dispute Settlement.......................................................................................... 13 C. Sub-Seabed Carbon Dioxide Storage in the UNCLOS Regime ........................... 13 1. UNCLOS is applicable to sub-seabed storage because its jurisdiction includes seabed and subsoil........................................................................................... 13 2. Transport to a storage reservoir via a pipeline from shore would not constitute “dumping” under UNCLOS............................................................................ 14 3. Carbon dioxide storage using a vessel, platform, or man-made structure at sea would be defined as “dumping” under UNCLOS, but is not necessarily prohibited. ....................................................................................................... 14 4. Carbon dioxide storage related to the exploration and exploitation of natural resources (i.e. the recovery of oil or natural gas) would come under a state’s sovereign rights............................................................................................... 14 5. Marine scientific research related to carbon dioxide storage would be allowed if conducted in compliance with the protection and preservation of the marine environment. ................................................................................................... 15 6. Clarification may be needed on whether the storage of carbon dioxide may be considered “pollution of the marine environment” as defined by UNCLOS. 15 III. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) ...................................................................................... 15 A. Background........................................................................................................... 15 B. The Convention..................................................................................................... 16 1. Categorization of Wastes ................................................................................ 16 2. Precautionary Approach.................................................................................. 17 C. Sub-Seabed Carbon Dioxide Storage in the London Convention Regime........... 17 1. Carbon dioxide is not specified in the London Convention Annex I list of wastes that are prohibited from being dumped. Clarification may be required on whether carbon dioxide would come under the definition of “industrial waste”.............................................................................................................. 17 2. Because the London Convention only addresses the sea and does not specifically address the seabed or subsoil, sub-seabed carbon dioxide storage is probably not governed by the London Convention..................................... 18 3. In the alternative, even if sub-seabed storage is deemed to be governed by the London Convention, transport to a storage reservoir via a pipeline from shore would not constitute “dumping”. .................................................................... 18 4. Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources would not constitute “dumping” under the Convention. ... 18 D. London Protocol.................................................................................................... 19 1. Inclusion of References to Seabed and Subsoil .............................................. 19 2. Categorization of Wastes ................................................................................ 19 The International Law of Sub-Seabed Carbon Dioxide Storage 3 3. Precautionary Approach.................................................................................. 20 4. Polluter Pays Principle.................................................................................... 20 5. Dispute Settlement.......................................................................................... 20 E. Sub-Seabed Carbon Dioxide Storage in the London Protocol Regime ................ 20 1. Unlike the London Convention, the London Protocol explicitly governs the seabed and subsoil. Therefore, sub-seabed carbon dioxide storage is governed by the London Protocol regime....................................................................... 20 2. Carbon dioxide is not included in the Annex I list of wastes or other matter which are permitted to be dumped.................................................................. 21 3. Transport to a storage reservoir via a pipeline from shore does not constitute “dumping” under the Protocol. ....................................................................... 21 4. Carbon dioxide storage in conjunction with the off-shore processing of seabed mineral resources does not constitute “dumping” under the Protocol............ 21 5. Sub-seabed carbon dioxide storage from man-made structures at sea would be defined as “dumping” under the London Protocol and therefore prohibited because carbon dioxide is not on the list of wastes or other matter permitted to be dumped....................................................................................................... 21 IV. Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) ................................................................................................. 22 A. Background........................................................................................................... 22 B. The Convention..................................................................................................... 22 1. Pollution from Land-Based Sources (OSPAR Annex I)................................. 23 2. Pollution by Dumping (OSPAR Annex II)..................................................... 23 3. Pollution from Offshore Sources (OSPAR Annex III)................................... 24 C. Sub-Seabed Carbon Dioxide Storage in the OSPAR Regime and the Report from the Group of Jurists and Linguists ........................................................................ 24 1. The jurisdiction of the OSPAR Convention includes the seabed and subsoil.26 2. Transport to a storage reservoir via a pipeline from land is not prohibited.... 26 3. Placement of carbon dioxide using a pipeline from land that is connected to a pipeline system in the maritime area is not prohibited. .................................. 26 4. Placement of carbon dioxide from a vessel is prohibited except for the purposes of a scientific experiment................................................................. 27 5. Placement of carbon dioxide from an offshore installation related to hydrocarbon production is not prohibited, depending on the source of the carbon dioxide................................................................................................. 27 V. Implications for Current and Prospective Carbon Dioxide Storage Operations......... 28 VI. Conclusion .................................................................................................................. 30 VII. Appendix............................................................................................................ 32 A. Abbreviations........................................................................................................ 33 B. Parties to UNCLOS (as of February 1, 2005)....................................................... 34 C. Parties to London Convention (as of October 14, 2004) ...................................... 36 D. Parties to London Protocol (as of October 14, 2004) ........................................... 37 E. Parties to OSPAR Convention (as of March 9, 2005) .......................................... 38 F. Annex I of London Convention (Black List)........................................................ 39 G. Annex I of London Protocol (White List)............................................................. 42 H. Annex II, Article 3 of OSPAR Convention (White List)...................................... 43 A Special Report to the MIT Carbon Sequestration Initiative 4 THE INTERNATIONAL LAW OF SUB-SEABED CARBON DIOXIDE STORAGE A Special Report to the MIT Carbon Sequestration Initiative Mark A. de Figueiredo† MIT Laboratory for Energy and the Environment August 2005 ABSTRACT Carbon dioxide
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