Introduction
We are at a moment of profound development in understanding how international law applies to climate change. Recently issued advisory opinions from the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and regional human rights courts have clarified country obligations, under international law, to mitigate and adapt to the climate crisis. (For background on the advisory opinions, see here.)
At the Sabin Center, we’ve been exploring what these developments might mean for marine carbon dioxide removal (mCDR) governance under the London Convention and Protocol. Last month, we published a white paper on international legal principles and guidelines that should guide decisions regarding the use of mCDR. We are now summarizing key findings from that paper in a three-part blog series. The first, available here, described the application of the precautionary approach and the prevention principle. In this blog post—the second in the series—we continue the discussion with a focus on two other equally important guidelines—due diligence and environmental impact assessments. Both stand for the proposition that parties the London Convention and Protocol should, in evaluating mCDR, consider its potential climate mitigation benefits.
Due Diligence
Due diligence refers to the obligation of States to put in place, and vigilantly enforce, national regulatory systems to ensure that activities that take place within their jurisdiction or control do not cause harm. Due diligence can be seen as a guide to how countries must act to uphold other obligations. For example, due diligence is not explicitly referenced in the text of either the London Convention or Protocol, but it informs the way that States implement and uphold their obligations to protect the marine environment under those instruments. Thus, States that are party to the London Convention and Protocol must put in place domestic rules and measures to ensure prevention of pollution from dumping at sea, and vigilantly enforce those rules on public and private actors.
Due diligence guides countries in how they must uphold obligations to mitigate climate change. In its Advisory Opinion on Climate Change, the ICJ wrote that “the standard of due diligence for preventing significant harm to the climate system is stringent,” meaning that “a heightened degree of vigilance and prevention is required” relative to other due diligence obligations. This echoes findings by other international courts, including ITLOS’ conclusion that “the standard of due diligence States must exercise in relation to marine pollution from anthropogenic GHG emissions needs to be stringent,” meaning that a State must do “whatever it can in accordance with its capabilities and available resources to prevent, reduce and control marine pollution from anthropogenic GHG emissions.”
The stringent due diligence standards countries must meet in addressing climate change do not themselves dictate specific approaches that countries must implement. There are a variety of options to address climate change, ranging from emissions cuts and fossil fuel production limits to land and mCDR, among other strategies. Countries must fully assess these different options and deploy those that are readily available to help mitigate climate change. As the ICJ wrote,
“the availability of technological means to prevent or mitigate relevant harm influences what can reasonably be expected of a State. Where a risk can be addressed with readily available technologies, States are expected to use them. However, when technologies pose further risks, States are expected to use them with prudence and caution.”
The decision whether countries are required to deploy a technology, like mCDR, thus turns on whether it is “readily available” and whether it poses further risks. A governance framework that facilitates further research would aid countries in assessing these questions.
Countries are also required to pursue scientific information to inform their responses to threats of significant harm, like climate change. As the ICJ wrote, when it is highly probable that significant harm will occur, “due diligence . . . requires States to actively pursue the scientific information necessary for them to assess the probability and seriousness of harm.” This imposes clear obligations on countries to pursue scientific information on climate change. It also implies an obligation on countries to pursue scientific information on whether technologies, like mCDR, are readily available to mitigate the harms from climate change.
Environmental Impact Assessments
International rules on the use of environmental impact assessments (EIAs) can guide countries in the way they assess proposed climate mitigation techniques. According to the ICJ, under customary international law, countries have an obligation to “undertake an environmental impact assessment where there is a risk that [a] proposed . . . activity may” cause “significant” transboundary environmental damage. Prior to undertaking or authorizing a project that has the potential to cause transboundary environmental damage, countries must conduct a preliminary assessment to determine whether there is a risk of significant damage. Projects that are found to present such risks must undergo a more comprehensive environmental impact assessment. Under international law, the assessment must be completed prior to the commencement of the project, but countries otherwise have broad discretion in conducting the assessment.
Neither the text of the London Convention nor London Protocol explicitly mention EIAs. However, parties to both instruments have developed assessment frameworks for certain activities to determine whether they comply with the provisions of the treaties. These are the 2012 guidelines for assessment of sub-seabed carbon dioxide storage, and a 2010 assessment framework for scientific research involving ocean fertilization. Both frameworks require countries to consider environmental impacts of projects. A key distinction between the two is in how they direct parties to consider the broader climate change context within which projects take place. For sub-seabed storage projects, parties are directed to frame their evaluation within the context of other climate mitigation approaches, like emissions reductions. This could come, for example, through an evaluation of their commitments to mitigate climate change under the Paris Agreement. For ocean fertilization projects, no such required consideration is included.
International rules on the application of EIAs indicate that parties to the London Convention and Protocol must consider climate benefits when conducting EIAs for mCDR activities. In regulating activities with regard to climate change, international courts have set specific guidelines around how States should conduct EIAs – namely that States must assess the climate impacts of activities within their EIAs. As the ICJ wrote in its Advisory Opinion on Climate Change, “possible specific climate-related effects must be assessed as part of EIAs at the level of proposed individual activities, e.g. for the purpose of assessing their possible downstream effects.” Applied in the context of conducting EIAs for mCDR activities, this implies that countries must assess both their potential environmental harms and their potential to help mitigate climate change.
The procedural obligation to conduct an EIA does not suggest a substantive outcome—i.e., countries are not required to approve or reject a project based on whether they will result in environmental or climate benefit or damage. Still, the requirement to conduct an EIA should ensure that countries fully consider the potential benefits and harms of a given project, and thus help to ensure they uphold their obligations to prevent transboundary damage from climate change.
Conclusion
Due diligence and EIA requirements guide parties in how they should meet their obligations under the London Convention and Protocol. In the context of mCDR governance, countries should apply their stringent due diligence obligations to consider mCDR’s potential climate mitigation benefits. They should pursue scientific information to aid in their assessment of whether mCDR approaches are readily available to mitigate the risk of harm from climate change. Further, when conducting EIAs for mCDR activities, parties should similarly consider climate impacts, include climate mitigation potential.
As discussed above, this blog summarizes arguments that are more fully fleshed out in our white paper on the same topic, which is available here. This is the second in a three-part blog series that discusses the findings of that paper and places them in context. The previous blog analyzed the application of the precautionary approach and the prevention principle to mCDR governance under the London Convention and Protocol. The final upcoming blog will analyze the governance of sub-seabed sequestration of carbon dioxide under the treaties.