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The Day After Tomorrow: Ocean CO2 Sequestration and the Future of Climate Change

Posted on: Tuesday, 15 November 2005, 09:00 CST

By Scott, Karen N

I. INTRODUCTION

Climate change is increasingly described as one of the biggest challenges facing humanity in the twenty-first century.1 Over the last one hundred years, the average surface temperature has increased by 0.6 degrees Celsius,2 and the atmospheric concentration of carbon dioxide (CO^sub 2^) has increased by thirty-one percent since 1750.3 CO^sub 2^ is one of a number of greenhouse gases so called "because they act as a partial blanket for the thermal radiation from the surface [of the Earth] and enable it to be substantially warmer than it would otherwise be."4 Consequently, an increased CO^sub 2^ concentration in the atmosphere "is leading to climate change and will produce, on average, a global warming of the Earth's surface . . . ."5 In its 2001 Climate Change Report, the Intergovernmental Panel on Climate Change (IPCC) projects that temperatures will increase by 1.4 to 5.8 degrees Celsius by 2100. Predicted consequences of such an escalation include the melting of the Greenland and West Antarctic ice sheets, leading potentially to a rise in sea levels of up to seven meters; increased frequency of extreme weather events; and interference with ocean thermohaline circulation.6

Notwithstanding that the ultimate objective of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) is the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system,7 states remain reluctant to take the drastic measures required to reduce the emission of CO^sub 2^ and other greenhouse gases. It is therefore unsurprising that in recent years considerable attention has been devoted to developing technologies that reduce atmospheric CO^sub 2^ concentrations by means other than cutting greenhouse gas emissions. Processes being developed include the capture of CO^sub 2^ from point sources, the sequestration or storage of that CO^sub 2^ in deep saline aquifers or depleted oil and gas reserves on land and under the seabed, and the enhancement of the natural mechanisms that remove CO^sub 2^ from the atmosphere such as terrestrial vegetation, including forests and the oceans.

The ocean is both a natural sink and a reservoir for CO^sub 2^. CO^sub 2^ enters the oceanic carbon cycle as dissolved inorganic carbon by two biogeochemical mechanisms known as the solubility and biology pumps.8 These natural processes constitute a "sink" as defined by Article 1(8) of the UNFCCC.9 As a consequence, the ocean also provides a reservoir10 or store of an estimated 40,000 billion tons of CO^sub 2^, a quantity fifty times greater than the amount of CO^sub 2^ present in the atmosphere.11 However, the ocean does not provide a homogenous storage of CO^sub 2^. Twenty-three percent of global CO^sub 2^ is stored in the North Atlantic, constituting fifteen percent of the global oceans, in contrast to the Southern Ocean,12 which stores only nine percent of global emissions.13 Moreover, the majority of CO^sub 2^ is stored within the thermocline, which is the area of the ocean at depths less than 400 meters. Only seven percent of CO^sub 2^ is found deeper than 1500 meters.14 Unless CO^sub 2^ is sequestered geologically beneath the seabed, ocean storage is not a permanent mechanism of sequestration as the term "carbon cycle" indicates.15 The amount of time CO^sub 2^ will remain in the ocean before it is re-admitted to the atmosphere is uncertain. Estimates range from 100 to more than 1000 years depending on the region, but recent research has revised many of these estimates downwards.16

These natural processes are designed to achieve ultimate equilibrium between ocean, terrestrial, and atmospheric storage of CO^sub 2^. However, the response of the ocean carbon cycle to changes in atmospheric CO^sub 2^ levels is slow, being limited by both chemical and physical factors.17 As a result, both states and private enterprises are researching into methods to speed up these processes, as well as into other sequestration opportunities within the maritime environment. This article will explore the international legal framework applicable to three oceanic storage options: first, the geological storage of CO^sub 2^ beneath the seabed within saline aquifers or depleted oil and gas reserves; second, the direct injection of CO^sub 2^ into the mid or deep ocean from land, vessel, or offshore installation, which essentially utilize the solubility pump; and third, the enhancement of biological uptake of CO^sub 2^ by means of iron or nutrient fertilization strategies.18

Although deliberate CO^sub 2^ sequestration within the oceans has been described as merely speeding up or enhancing a natural process,19 serious concerns have been raised over the impact of increased CO^sub 2^ levels on the marine environment. Possible repercussions of oceanic CO^sub 2^ sequestration include sediment disruption and landslides,20 as well as consequences for marine biodiversity, particularly benthic communities, resulting from a change in the pH of the seawater.21 A further consideration is whether oceanic CO^sub 2^ sequestration is an effective storage method. Unless sequestered CO^sub 2^ is prevented from re-entering the atmosphere for at least 1000 years, it is likely that climate change may be made worse in the short to medium term.22

The function of the ocean as both a sink and a reservoir for CO^sub 2^ together with the right of states to enhance these processes is recognized by the UNFCCC.23 However, while the 1997 Kyoto Protocol endorses the development of CO^sub 2^ sequestration technologies,24 it appears that only the enhancement of terrestrial or forest sinks currently contributes towards a party's commitment to reduce greenhouse gases under the Protocol.25 Therefore, while CO^sub 2^ storage in the oceans does not appear to be prohibited by either the UNFCCC or the Kyoto Protocol, its endorsement by the latter instrument is equivocal.26 This notwithstanding, a number of states, including Norway, Australia, and Japan, are engaged in research into sequestration technologies. Moreover, oceanic CO^sub 2^ sequestration forms part of the climate change mitigation policies developed by both the United Kingdom27 and United States.28

Currently, there is no instrument that directly regulates oceanic CO^sub 2^ sequestration. Consequently, the legality of CO^sub 2^ disposal at sea depends upon an integrated network of global and regional instruments that seek to protect the marine environment, prevent pollution, and conserve marine biodiversity. There is no general rule of customary or treaty law preventing CO^sub 2^ sequestration in the oceans and its legality appears to depend primarily on the manner of its disposal. In the past, the legal implications of ocean storage have been largely neglected.29 More recently, the legal framework, which provides the parameters within which these activities inevitably take place, has received greater attention from governments,30 international organizations such as the OSPAR Commission,31 the United Nations,32 and academics.33 However, while geological sequestration, particularly in connection with the North Sea area, has benefited from relatively considered legal analysis,34 the same cannot be said of direct injection storage or ocean fertilization.35

The purpose of this article is to explore the extent to which oceanic CO^sub 2^ sequestration is compatible with the international law of the sea (broadly defined) and, where appropriate, regional regimes such as those that apply to the North Sea and to the Southern Ocean. The first half of Part II will focus on CO^sub 2^ sequestration beneath the seabed within the global framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and associated instruments such as the 1972 London Convention. The remainder of Part II will examine one regional seas agreement, namely, the 1992 Convention on the Protection of the Marine Environment of the North East Atlantic (OSPAR Convention). The North Sea and Arctic regions are particularly significant in the context of geological sequestration given that CO^sub 2^ is currently being injected beneath the seabed of Norwegian waters, and a number of parties, including the United Kingdom, regard CO^sub 2^ storage under the North Sea as a part of their climate change mitigation strategies.36 Moreover, the compatibility of CO^sub 2^ sequestration within the OSPAR marine environment with convention obligations recently has been considered by the OSPAR Group of Jurists and Linguists.37

In Part III, the direct injection of CO^sub 2^ into the water column will be examined, with particular attention paid to activities taking place on the seabed beyond the limits of national jurisdictions and on the high seas. This section will conclude with a short study on the application of the OSPAR Convention to direct injection activities in the light of a 2002 proposal (subsequently abandoned) to directly inject CO2 into waters off the coast of Norway.

In Part IV, ocean fertilization activities will be assessed within the general framework of UNCLOS and, in particular, within the context of its provisions in Pa\rt XIII regulating the conduct of scientific research on and in the oceans. A number of fertilization experiments have already been carried out in the Southern Ocean and, therefore, Part IV of this article will conclude with an examination of these activities within the framework of the 1991 Protocol to the Antarctic Treaty on Environmental Protection and the 1980 Convention on the Conservation of Antarctic Marine Living Resources. ;

In the penultimate section, the contribution that may be made to sequestration regulation and control by instruments seeking to protect marine biodiversity, as opposed to those controlling marine pollution, will be assessed. Finally, conclusions as to the overall compatibility of sequestration techniques with global and j selected regional instruments will be drawn in Part VI of this article.

II. GEOLOGICAL SEQUESTRATION OF CO2 BENEATH THE SEABED :

Injecting CO2 into deep saline aquifers or depleted oil and gas reserves is currently the most promising and least controversial method of oceanic CO2 sequestration. This method of storage is particularly suitable for large point sources of CO2 such as power stations and cement works, and in contrast to other means of ocean storage the necessary sequestration technologies have already been largely developed.38 Injecting high-pressure CO2 into oil and gas reserves as a means of extracting oil and gas, resulting in carbon sequestration, is now a relatively common mechanism employed in the oil and gas industry.39 CO2 storage capacity within depleted oil and gas reserves is estimated at 923 billion metric tons worldwide40 and even greater capacity is potentially offered by deep saline aquifers. When combined with other mitigation strategies, sufficient geological capacity may exist to sequester all future anthropogenic CO2 emissions.41

The most extensive geological sequestration projects beneath the seabed thus far have taken place within the North Sea region. To date over one million metric tons of CO2 have been injected into the Utsira saline aquifer 1000 meters below the Sleipner gas-condensate field installations in Norwegian waters as part of oil and gas extraction processes. The Sleipner project, which was authorized by Norway in 1996, is operated by Statoil and stores around three percent of Norway's annual CO2 emissions. In the light of the success of this project, a further storage site, known as Sn0hvit, was authorized in 2001 in the natural gas fields of the Barents Sea. This site is due to become operational in 2006 and, unlike the Sleipner site, is connected to its operations headquarters on land by a 160-kilometer pipeline.42 There are fewer negative environmental impacts associated with geological sequestration in contrast to other forms of oceanic CO2 storage. At its most extreme, the injection of CO2 beneath the seabed has the potential to induce seismic activity, such as earthquakes, which in turn may lead to landslides, tidal waves, and loss of containment of the injected CO2.43 However, such risks can be minimized by careful site selection and ongoing monitoring procedures.44 Less dramatic consequences may result from leakages of CO2 from a storage facility, which may cause localized changes in pH levels.45

A. GEOLOGICAL SEQUESTRATION OF CO2 WITHIN THE FRAMEWORK OF UNCLOS

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is widely regarded as providing a constitution for the oceans. Its significance is twofold. First, it codifies, and occasionally creates, the rights of states to use and exploit the resources of the sea. second, it imposes restrictions on those rights and introduces obligations in relation to the protection and conservation of the marine environment and the prevention of pollution.46

1. Is There a Right to Sequester CO2 Beneath the Seabed?

UNCLOS applies to both the seabed and its subsoil.47 The fact that sequestration beneath the seabed technically takes place in the geological formations found below the subsoil48 does not render the provisions of these conventions inapplicable. UNCLOS itself indisputably governs the exploitation of non-living, mineral resources as a consequence of its application to the "subsoil."49 This is notwithstanding the fact that for the most part these resources are actually found beneath the subsoil. Thus, "subsoil" should be defined so as to include all the geological formations found beneath the seabed for the purposes of the law of the sea. Moreover, a ideological approach to the interpretation of the environmental provisions of UNCLOS also supports such an interpretation. It was intended that activities taking place within the subsoil should be regulated so as to protect the marine environment. It would be anomalous if activities taking place within the strata beneath the subsoil with equal potential to impact the marine environment are not regulated likewise, particularly as there is no alternative regime governing activities within these zones. This conclusion is consistent with the position taken by both the U.K. government and the Group of Jurists and Linguists with respect to the OSPAR Convention.50

A coastal state has most extensive rights over activities taking place within its territorial sea, including the seabed and subsoil thereof, which extends to twelve nautical miles from its baseline.51 Subject to other provisions of UNCLOS52 and the rights of other states to innocent passage for their vessels,53 a coastal state has the right to exploit geological storage facilities beneath its territorial sea.

In practice, most suitable geological storage opportunities are likely to be located beyond the territorial sea, beneath the continental shelf within a state's Exclusive Economic Zone (EEZ) or under the high seas. For many states, their EEZ will coincide with their continental shelf. The EEZ, which is defined as "an area beyond and adjacent to the territorial sea,"54 may extend up to 200 nautical miles from the baselines from which the territorial sea is measured.55 The continental shelf comprises the seabed and subsoil thereof and extends to the outer edge of the continental margin or to a distance of 200 nautical miles from the baseline.56 Where the natural continental shelf extends beyond the 200 nautical mile limit a state may claim the shelf up to the continental margin to a maximum of 350 nautical miles from the baseline or 100 nautical miles from the 2,500 meter isobath, which is a line connecting the depth of 2,500 meters.57 Where a state has not claimed an EEZ or where the continental shelf extends beyond the 200 nautical mile limit, the super-adjacent waters are classed as high seas. For the purposes of geological sequestration of CO2 by a coastal state, the status of the water column is irrelevant.

A coastal state exercises exclusive sovereign rights over the continental shelf and its natural resources.58 "Natural resources" is defined under UNCLOS as consisting of "the mineral and other non- living resources of the seabed and subsoil together with living organisms belonging to sedentary species."59 In contrast to geological storage capacity, the resources highlighted in Article 77(4) are all susceptible to harvest or extraction. Nevertheless, although it is unlikely that the original twentieth century drafters of UNCLOS would have regarded geological storage capacity as a non- living resource for the purposes of Article 77(4), there is no doubt that from the perspective of a twenty-first century state, such capacity undoubtedly constitutes a natural asset or resource. There is considerable state practice within Northern Europe, North America, and Australia that demonstrates a perceived entitlement on the part of those states to exploit geological storage capacity within their continental shelves for CO2 sequestration.60 "Resource" is not a static concept, but one that evolves and is confined only by the ever-expanding parameters of imagination and technology. Where an evolutionary concept such as "resource" is embodied within a treaty, its interpretation cannot remain immune to subsequent developments in state practice.61 Accordingly, geological storage capacity should be regarded as a "non-living resource" for the purpose of Article 77(4) of UNCLOS.

On the continental shelf and within the EEZ, a coastal state has the exclusive right to authorize and construct installations for the exploitation of the seabed, which clearly includes platforms and structures erected in order to inject CO2 into saline aquifers beneath the seabed.62 Similarly, coastal states have an exclusive right to authorize and regulate drilling on the continental shelf63 and the traditional right to exploit the subsoil by means of tunneling is preserved by UNCLOS.64 Within the EEZ and on the continental shelf, a coastal state must respect the rights and duties of other states, including navigation rights, and must give notice of the location of their installations.65 However, where exploitation of the continental shelf takes place beyond the 200 nautical mile limit, payments or contributions in kind must be made to the International Seabed Authority, which distributes them to UNCLOS State Parties.66 The method of calculating pay- ' ments67 is premised on the basis that exploitation takes the form of minerals H extraction. It is unclear whether this provision should apply to the exploitation of the capacity to store CO2 beneath the seabed, and if so, how such a payment would be calculated.

The rights of non-coastal states to engage in geological sequestration activities within these zones without the permission of the coastal state are non-existent in the territorial sea and severely limited within EEZ and continental shelf areas. Within the EEZ other states are able to exercise a number of freedoms, including navigation, overflight, the laying of submarine cables and pipelines, and the exercise of other internationally lawful uses ofthe sea related to those freedoms.68 However, no other state may actually store carbon within a coastal state's continental shelf without the permission of that state.

Less straightforward are the rights of other states to transport CO2 via a pipeline laid across a coastal state's continental shelf. Assuming such a conduit is classed as a pipeline69 for the purposes of Articles 58(1) and 79(1), the coastal state must not impede its construction.70 Nevertheless, in addition to the right to impose conditions on its proposed route,71 a coastal state may take reasonable measures for the prevention of pollution from pipelines.72 It has been suggested that this provision may provide a coastal state with a de facto veto on the construction of pipelines transporting a polluting substance such as CO2 on its continental shelf.73 In addition, where a coastal state has claimed an EEZ all other states must comply with any legislation enacted by the coastal state to protect the marine environment or regulate scientific research.74

It is unlikely that geological sequestration will take place beyond the continental shelf within the Area, as defined by UNCLOS.75 To the extent that states do operate beyond zones of national jurisdiction, their activities will be subject to the conditions set out in Part XI of UNCLOS discussed below in the context of direct injection of CO2 into the deep sea.

Notwithstanding a basic right of coastal and, to a more limited extent, other states to exploit the resources of the seabed and its subsoil for the purposes of geological sequestration of CO2, it is necessary to consider the extent to which such a right is precluded or constrained by the specific provisions of UNCLOS to prevent pollution and protect the marine environment.

2. Obligations Imposed for the Protection and Conservation of the Marine Environment

A general obligation to protect and preserve the marine environment is provided for in Article 192 of Part XII of UNCLOS. The sovereign right of states to exploit their natural resources, including CO2 storage resources, is affirmed in Article 193 but coupled with a wide-ranging duty to protect and preserve the marine environment as a whole.76 States must "take all measures to prevent, reduce and control pollution" from any source,77 including measures "necessary to protect and preserve rare and fragile ecosystems."78 Pollution is defined in Article 1(1)(4) as

the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.79

Sequestration technologies and techniques are currently at a very early stage in their development. Research suggests that each method of disposal carries with it certain risks, but the state of scientific knowledge in connection with deep sea ecology, the ocean carbon cycle, and the impact of changes in pH on biodiversity is incomplete. While it can be asserted with confidence that a state owes an obligation under UNCLOS to regulate activities which are known to cause pollution, it is not clear that a similar obligation is owed where a causal link between an activity and consequent harm to the environment has yet to be established. In short, are states obliged under UNCLOS to take precautionary as well as preventative action to reduce and eliminate pollution, including pollution caused by the release of CO2, in the marine environment?

Unlike most modern environmental legal instruments and almost all regional seas agreements, UNCLOS does not expressly endorse an application of a precautionary approach to pollution prevention.80 However, textually, the definition of pollution in Article 1.1(4) of UNCLOS refers to the introduction of substances "which results or is likely to result in such deleterious effects as harm to living resources and marine life" as well as hazards to human health.81 Consequently, it may be argued that the obligations to prevent pollution are triggered even where no causal link has been proved between the activity and environmental harm as long as such harm is likely.

Adopting a teleological approach to treaty interpretation, it may be argued that only by employing a precautionary approach to the regulation of activities that have an impact on the environment will the goals of protection and preservation of the marine environment be achieved.82 Article 31 of the 1969 Vienna Convention on the Law of Treaties83 expressly permits parties to take into account subsequent practice in the application of the treaty and any relevant rules of international law applicable in the relations between the parties regarding its interpretation. Treaty interpretation may take account of subsequent developments in customary international law,84 although it has been noted that "such an evolutionary interpretation [must] not conflict with the intentions and expectations of the parties as they may have been expressed during the negotiations preceding the conclusion of the treaty."85 In fact, an interpretation of Articles 192 et seq. that applies a precautionary approach to environmental protection would not conflict with the intentions and expectations of the negotiating parties and is arguably consistent with the framework nature of Part XII of UNCLOS.

A thorough examination of whether the precautionary principle comprises customary international law or whether UNCLOS must now be interpreted so as to reflect a precautionary approach to environmental management is beyond the scope of this article.86 Nevertheless, it is worth noting that there is considerable practice that supports the assumption that UNCLOS, as a constitution for the oceans, is a dynamic and evolving instrument to be interpreted in light of not only the precautionary approach, but also the other concepts and principles outlined in Chapter 17 of Agenda 21.87 Paragraph 1 of Chapter 17 notes that in order to protect and sustainably develop the marine environment new approaches at a global, regional, and national level are required. Moreover, in accordance with the provisions of UNCLOS, parties must apply, inter alia, "preventive, precautionary and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it."88 In his 2002 report on Oceans and the Law of the Sea,89 the U.N. secretary General described Chapter 17 of Agenda 21 as complementing UNCLOS, with UNCLOS providing the legal framework on which Chapter 17 builds a program of action.90

More specifically, recent reports published in connection with, and General Assembly resolutions concerning, developments within the framework of UNCLOS endorse the interpretation of its pollution prevention and control provisions in light of the precautionary principle. The United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea91 has produced five reports to date.92 In those reports the concept of precaution has been noted as relevant to fisheries management,93 pollution prevention and control,94 managing risks to biodiversity, the environment of the high seas and other areas beyond national jurisdiction,95 protection of vulnerable ecosystems,96 and to general decisionmaking within the context of maritime activities.97 While not all of these references have been endorsed by the General Assembly, Resolution 58/240 adopted on March 5, 2004 invited "global and regional bodies, in accordance with their mandates, to investigate urgently how to better address, on a scientific basis, including the application of precaution, the threats and risks to vulnerable and threatened marine ecosystems and biodiversity in areas beyond national jurisdiction."98

Consequently, in connection with CO2 sequestration in the marine environment, the applicable obligations imposed on states under UNCLOS99 must be interpreted so as to implement a precautionary as well as preventative approach to the control and elimination of pollution. The application of the precautionary approach only guides environmental decisionmaking and does not in and of itself prescribe a specific course of action. Therefore, the conclusion that when engaging in CO2 sequestration activities states must adopt a precautionary approach under international law in their decisionmaking process does not in and of itself prohibit, nor impose specific conditions on, these activities.

The application of Part XII of UNCLOS to sequestration activities depends not just on whether its obligations are precautionary as opposed to merely preemptive, but also on whether they may be categorized as activities that pollute the marine environment. Unlike direct ocean injection and ocean fertilization strategies, the geological sequestration of CO2 is unlikely to impact negatively on the marine environment unless there is leakage. However, the fact that CO2 itself can harm marine life and also be hazardous to human health strongly suggests that it should be classed as a pollutant, thereby triggering the application of obligations imposed on states by Part XII of UNCLOS.

Part XII of UNCLOS creates a framework for pollution control and provides relatively little in the way of detailed regulation restricting polluting activities at sea. However, a number of its provisions are of particular note in the context of geological sequestration of CO2 beneath the seabed. Article 207, in conjunction with Article 194(3)(a), stipulates that states shall adopt laws and regulations to prevent, reduce, and control pollution from land- based sources, such as CO2 piped from land into deep saline aquifers under the seabed.100 Moreover, paragraph \1 of Article 207 exhorts states to adopt measures designed to minimize to the fullest extent possible the release of toxic, harmful, and noxious substances into the marine environment, such as CO2.101

Notwithstanding the recommendation to establish global rules to regulate land-based pollution,102 a binding instrument has yet to be adopted.103 Consequently, the regulation or prohibition of the release of CO2 into the seabed from land will be governed, if at all, by regional and/or national law, which must be consistent with the provisions of UNCLOS. In similar fashion, Article 208, in conjunction with 194(3)(c) and (d), provides a framework within which states must adopt laws and recommendations for the prevention of pollution from installations operating in connection with seabed activities.104 Both injection of CO2 into the seabed from installations as part of enhanced oil and gas recovery projects and injection from installations independent from minerals extraction fall within the remit of this provision.105 However, no global binding legal instrument has been adopted implementing these obligations.

Most important in this context are the broad obligations set out by Article 210 of UNCLOS regulating the dumping of wastes at sea.106 Dumping, defined in Article 1.1(5) as "any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea," appears to apply to the process of injecting CO2 into the seabed from a platform or vessel for sequestration purposes.107 Although no specific reference is made to the seabed, UNCLOS applies to all areas of the marine environment, including the seabed and its subsoil.108 As an unwanted byproduct of manufacturing or energy generating processes, CO2 clearly constitutes waste when it is disposed of for sequestration purposes alone. However, placement of waste in the marine environment for a "purpose other than mere disposal," such as the enhanced recovery of oil and gas, is excluded from the definition of dumping under UNCLOS.109

In common with Articles 207 and 208, Article 210 requires states to establish global rules to regulate dumping at sea.110 In contrast to the aforementioned articles, global rules on dumping were in fact adopted a decade before UNCLOS was concluded, under the auspices of the 1972 London Convention.111 The provisions of the 1972 London Convention apply not only to the high seas but also act as minimum standards which must be adhered to within a state's own jurisdiction.112 Coastal states, notably, are free to enact legislation applicable to their maritime zones which is stricter than the global standards and their permission is required in any case of dumping within their EEZ or on their continental shelf.113

The 1972 London Convention, which entered into force in 1975, is due to be superseded by the 1996 London Protocol, when it enters into force.114 Currently, the global standards referred to in Article 210 of UNCLOS are embodied in the 1972 London Convention.115 In the future it is presumed that these will be replaced with the standards as outlined in the 1996 London Protocol, although it is unclear whether this will take place upon entry into force of the Protocol or at some point thereafter when sufficient consensus has been achieved. The 1996 London Protocol makes a number of important changes to the dumping regime, many of which are relevant to the geological and, to a lesser extent, mid and deep oceanic CO2 sequestration.

In its definition of dumping, the 1972 London Convention does not directly refer to the subsoil of the seabed. Article III(1)(a) of the 1972 London Convention defines dumping as "any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms, or other man-made structures at sea." The applicability of the 1972 London Convention to the subsoil was in fact extensively debated during the 1980s and early 1990s within the context of radioactive waste disposal beneath the seabed.116 Advocates of radioactive waste disposal beneath the seabed argued that the repetition of the phrase "at sea" in the definition meant that dumping was defined in relation to both the mechanism of disposal, which must be from a vessel, aircraft, platform or other man-made structure at sea, and the ultimate resting place of the waste, namely, the sea, which is defined in Article 111(3) as all marine waters other than the internal waters of states.117 Hence, sub- seabed disposal of radioactive waste was excluded from the definition of dumping. Opponents of proposed sub-seabed disposal of radioactive waste argued that the phrase "at sea" in the definition of dumping should be interpreted only as a reference to the mechanism by which waste is disposed. Consequently, so long as the waste, including radioactive waste, is disposed of from a vessel, aircraft, or structure at sea, any such disposal constitutes dumping regardless of whether the waste ultimately came to rest upon or beneath the seabed. ' '8

The application of the 1972 London Convention to the subsoil beneath the seabed is arguably supported by a teleological or purposive approach to treaty interpretation. Article I of the 1972 London Convention provides for a general obligation to control all sources of pollution in relation to the marine environment and a further reference to the marine environment is made in the preamble. It is arguable that the term "marine environment" is broad enough to encompass the sea floor and subsoil thereof. This interpretation is supported by the endorsement of General Assembly Resolution 2749(XXV) in the 1972 London Convention's preamble.119 The resolution sets out a declaration of principles governing the seabed and its subsoil beyond the limits of national jurisdiction.120 Although the issue was debated at both the Seventh and the Thirteenth Meetings of the Parties,121 no consensus was achieved on whether the 1972 London Convention applied to the seabed and its subsoil.

In 1993 the Parties adopted Resolution LC.51(16), suspending any disposal of radioactive waste into sub-seabed repositories accessed from the sea, but they declined to affirm that such a disposal would constitute "dumping" within the meaning of the 1972 London Convention.122 Given that disposal activities which , take place beneath the seabed have the evident potential to impact the water column above and that there is no obvious alternative regulatory framework to govern disposal in sub-sea repositories accessed from vessels or platforms at sea, the 1972 London Convention should be interpreted as applying to deliberate disposal activities at sea irrespective of the ultimate resting place of the waste.123 By contrast, the 1996 London Protocol clearly defines "sea" as including the seabed and its subsoil,124 although it deliberately excludes "sub-seabed repositories accessed only from land" from its remit.125 Moreover, the definition of dumping expressly includes "any storage of wastes or other matter in the seabed and subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea."126

Both the 1972 London Convention and the 1996 London Protocol exclude the disposal of wastes arising from, or directly related to, the offshore processing of mineral resources from the definition of dumping.127 This appears to have the effect of excluding the geological sequestration of CO2 as part of enhanced oil and gas recovery from the remit of both instruments. Moreover, in common with the provisions of UNCLOS, the placement of waste for a purpose other than mere disposal is also excluded from the definition of dumping under both instruments.128 At least one commentator has suggested that this exception could be applied to the sequestration of CO2 which has been placed in a storage facility in order to ameliorate the impacts of climate change.129 However, such placement constitutes a very different situation from the sinking of a vessel or platform in order to create an artificial reef. The vessel or platform undergoes an alteration in its function in a manner which is deemed desirable. In contrast to this, no such change takes place in the function of sequestered CO2. Moreover, such a "placement" may be regarded as contrary to the aims and objectives of the dumping regime.130 However, it is arguable that the placement of CO2 beneath the seabed as part of a scientific experiment constitutes a purpose other than mere disposal. This is the position adopted in a report on carbon sequestration issued by the Group of Jurists and Linguists in respect of the OSPAR Convention.131

Assuming that both the 1972 London Convention and 1996 London Protocol are applicable to operations taking place below the subsoil of the seabed, it is unlikely that captured CO2 emissions from, for example, large power plants, would not be regarded as "waste," which is broadly defined as "material and substance of any kind, form or description."132 The 1972 London Convention operates a black/gray/ white list system whereby Annex I substances may not be dumped and all other substances may only be dumped in accordance with a special or general permit.133 CO2 is not listed in Annex I.

However, since 1996, the dumping of industrial wastes, denned as "waste materials generated by manufacturing or processing operations," has been prohibited.134 As noted above, CO2 emissions suitable for geological sequestration are likely to be captured from large single point sources such as cement works and power stations. While the former source of CO2 is undoubtedly derived from a manufacturing process, it is with less certainty that the latter can be described as a "processing operation." Consensus among the Parties has yet to be achieved on the definitive definition of industrial waste.135 If CO2 is regarded as constituting industrial waste, then its disposal beneath the seabed by means of injection from a vessel, platform, or \other man-made structure would appear to be prohibited by the 1972 London Convention and, as a consequence, Article 210 of UNCLOS.136 On the other hand, if the parties to the 1972 London Convention decide that CO2 does not constitute industrial waste as defined by Annex I, its disposal would appear to be permitted subject to the issue of a general permit by the party within whose territory the cargo is loaded, or piped if transported to a platform, or the party to whom the vessel is registered if the loading state is not a party to the 1972 London Convention.137

The position under the 1996 London Protocol regarding CO2 disposal from vessels, platforms, and other man-made structures is much simpler. The 1996 London Protocol adopts a reverse listing technique and prohibits the dumping of all wastes with the exception of those listed in Annex I.138 CO2 is not listed in Annex I and as a consequence, its disposal beneath the seabed and likewise within the water column is thereunder prohibited.

The issue of CO2 sequestration and its compatibility with the London dumping regime was first raised in 1999 at the Twenty-First Consultative Meeting. At the Twenty-Sixth Meeting, held in December 2004, it was agreed that the issue of sequestration within geological structures should be included in its work program under the lead of the United Kingdom. There is as yet no consensus among the parties as to whether CO2 sequestration activities are compatible with either the 1972 London Convention or the 1996 London Protocol.

To conclude, neither the geological sequestration of CO2 from land or at sea is expressly prohibited by UNCLOS. However, an interpretation of its provisions relating to dumping in the light of a precautionary approach and the 1972 London Convention strongly intimate that sequestration carried out from a vessel or man-made structure at sea for the sole purpose of disposal is not consistent with the current international legal framework. If states wish to pursue geological sequestration of CU2 unconnected to enhanced oil and gas recovery and beyond small-scale scientific experimentation projects, it appears that amendments to both the 1972 London Convention and the 1996 London Protocol are necessary. In the case of the former, CO2 would need to be excluded from the definition of industrial waste. In relation to the latter, CO2 would need to be added to Annex I.139 However, in implementing both the 1972 London Convention and the 1996 London Protocol, parties must apply a precautionary approach to the dumping of wastes and must take appropriate action where there is reason to believe that wastes are likely to cause harm, even where there is no conclusive evidence proving a causal relation between inputs and their effects on the environment.140

Sequestration effected from land, on the other hand, would not appear to be contrary to UNCLOS. Nevertheless, such activities must be carried out in a manner consistent with states' duties as provided for by UNCLOS in the light of a precautionary approach. Relevant obligations include the assessment of planned activities "which may cause substantial pollution" or "significant and harmful changes to the marine environment,"141 the distribution of the results of such assessments,142 and the monitoring of activities engaged in order to determine whether they are likely to cause pollution of the environment.143 Finally, in the unlikely event that sequestration activities are carried out in the Area, UNCLOS imposes specific obligations on states to protect the marine environment under Articles 209 and 145.144

B. GEOLOGICAL SEQUESTRATION OF CO2 BENEATH THE NORTH SEA: THE OSPAR CONVENTION

The framework provisions of UNCLOS undoubtedly envisage the promulgation of regional agreements to effect marine protection on a local basis.145 Regional agreements often provide necessary detail with respect to land-based sources of pollution, as well as regulate dumping more stringently than the 1972 London Convention. As noted above, the North Sea and Arctic regions are of particular significance in the context of geological sequestration of CO2 on account of the CO2 sequestration activities already taking place within those regions.146 Both regions are wholly or partially subject to the regime established by the 1992 Convention for the Protection of the Marine Environment of the North East Atlantic, otherwise known as the OSPAR Convention.147

In common with UNCLOS, the OSPAR Convention applies to both the seabed and its subsoil and arguably includes the geological formations found beneath the subsoil.148 Article 2(1)(a) provides for a general obligation to prevent and eliminate pollution, which is broadly defined to include harm to marine ecosystems as well as living resources.149 Moreover, in taking measures within a marine area, parties must apply the precautionary principle where there are reasonable grounds for concern that substances or energy introduced into the marine environment may harm living resources and ecosystems, even where there is no conclusive evidence of a causal relationship between the inputs and the effects.150 This relatively robust formulation of the principle should lead to a cautious attitude with respect to the authorization of geological sequestration projects within the OSPAR region. Moreover, states must adopt and apply best available techniques, best environmental practices, and, where appropriate, clean technology in their programs and measures carried out within the maritime area.151

The OSPAR Convention seeks to control all sources of pollution; if the Convention lacks detailed regulation with respect to a specific source of pollution the parties are encouraged to remedy such lacunae by adopting further annexes.152 Of particular interest are the provisions that relate to land-based sources of pollution, such as the release of CO2 from a pipeline into a sub-seabed storage facility, and those regulating dumping, where CO2 is disposed of from a vessel or, as is more likely in the context of geological sequestration, a platform or other installation. The Group of Linguists and Jurists discussed at some length whether there actually needs to be a "pollution" of the marine environment153 in order to trigger the application of the OSPAR Convention's environmental provisions. A number of members suggested that since no such "pollution" occurs in connection with geological disposal, the OSPAR Convention is inapplicable to such sequestration activities. Other members were of the view that all the environmental provisions, including the dumping standards, should apply regardless of whether pollution, as defined in Article 1(d), occurs.154 Undoubtedly, CO2 itself can be regarded as a polluting substance as it can lead to a reduction in pH levels and, in sufficient quantities, can even cause death. Moreover, the geological sequestration of CO2 is far from risk-free and any leakage of CO2 from a storage facility in sufficient quantities is likely to harm both living resources and local marine ecosystems. As a consequence, the OSPAR Convention should apply to all forms of CO2 sequestration within the ocean, the seabed, and the subsoil thereof.

It is indisputable that land-based CO2 disposal under the seabed is regulated by the OSPAR Convention; however, there appears to be no prohibition on the release of CO2 from a pipeline into an underground storage facility within the OSPAR maritime area. Article l(e) of the OSPAR Convention specifically defines land-based pollution as including sources associated with any deliberate disposal under the seabed made accessible from land by tunnel or pipeline. Although the parties to the OSPAR Convention agreed in 1998 to endeavour to cease all discharges, emissions, and losses of hazardous substances by the year 2020, CO2 is not included on the list of substances deemed worthy of priority action.155 Moreover, land-based sources of pollution are subject to relatively minimal regulatory obligations under the OSPAR Convention itself. Broadly, parties must take all measures to reduce and eliminate pollution in accordance with Annex I using the criteria outlined in Appendix II. '56 Obligations in Annex I appear to be limited to the requirement that all parties must regulate or authorize point source discharges, taking into account a number of factors, including the toxicity and persistency of the substance released as well as the impact, including transboundary effects, it may have on marine ecosystems. As noted above, parties must make use of best available techniques and practices in their regulation of pollution.

Consequently, while the OSPAR Convention sets out criteria that should be considered when assessing projects,157 there appears to be no general obligation to carry out an environmental impact assessment before releasing new substances, such as CO2, into the marine environment.158 Of course parties must comply with their general obligation to take all possible steps to prevent and eliminate pollution applying a precautionary approach to the authorization of activities.159 This may in practice result in an environmental impact assessment being undertaken.

The application of the dumping regulations provided for under the OSPAR Convention to geological sequestration of CO2 is complicated. The OSPAR Convention distinguishes between deliberate releases from vessels and deliberate releases from installations, regulating the former in Annex II and the latter in Annex III. The term "vessel" is given a relatively broad definition and includes waterborne craft of any type whatsoever, including air-cushion craft, floating craft, whether self-propelled or not, and other man-made structures in the maritime area and their equipment, but excluding offshore installations and offshore pipelines.160 In the case of dumping from vessels, the OSPAR Convention adopts a reverse listing policy and no waste may be \dumped unless it is listed in Annex II.161 Unless CO2 is defined as constituting "inert materials of natural origin"- meaning, solid, chemically unprocessed geological material the chemical constituents of which are unlikely to be released into the marine environmentdisposal appears to be prohibited. In the unlikely event that CO2 is to be regarded as being encompassed by this exception, its disposal would be subject to the authorization of the relevant contracting party taking into account guidelines developed pursuant to Article 6 of Annex II.162 The Group of Jurists and Linguists concluded that the dumping of CO2 from a vessel, broadly defined, is prohibited by the OSPAR Convention.163

Dumping from offshore installations is regulated by Annex III of the OSPAR Convention.164 The term "offshore installation" refers to structures placed within a maritime area for the purpose of "offshore activities,"165 defined as those carried out for the purpose of exploration, appraisal, or exploitation of liquid and gaseous hydrocarbons.166 Thus, CO2 disposal as part of an enhanced oil or gas recovery operation appears to be prima fade covered by the definition of dumping and regulated by Annex III, but a release from an installation erected for the sole purpose of CO2 disposal appears to fall outside the scope of Annex III regulation. CO2 disposal from an installation engaged in offshore activities is prohibited unless the release constitutes a discharge or emission from an offshore source.167 It is likely that CO2 released from an offshore oil or gas site and re-injected back into the subsoil of the seabed would therefore be exempted from the prohibition.

However, it is not clear that the text of this provision, which directly refers to "discharges and emissions from offshore sources" will exempt from Annex III regulation the injection of CO2 derived from other sources, such as power plants, into depleted oil and gas reserves in order to enhance recovery of oil and gas. The Group of Linguists and Jurists concluded that the Article 3(3) exemption in Annex III should be applicable to injection of CO2 as part of enhanced oil and gas recovery regardless of the source of the CO2.168 It should be noted that in any case, under Article 4 of Annex III, the use or discharge, including geological disposal, of substances such as CO2 must be strictly regulated or subject to authorization. Moreover, when authorizing or regulating the disposal of such emissions parties must implement, and not just take into account, relevant decisions and recommendations of the OSPAR Commission.

Thus far, the application of the OSPAR Convention to sequestration activities appears to be relatively straightforward. However, where CO2 is disposed of beneath the seabed from a structure in the marine environment that is neither part of a pipeline operation nor an offshore installation, the situation becomes more complicated. The OSPAR Group of Jurists and Linguists concluded in their report that such a disposal will be regulated by Annex II and, consequently, prohibited by the OSPAR Convention.169 Their reasoning is based on the broad definition of "vessel" under the OSPAR Convention, which includes man-made structures that are not offshore installations.170 This reasoning is undoubtedly correct in the context of direct injection of CO2 into the water column.

However, in the context of geological sequestration, this analysis appears to be at odds with the text of Article 1 (e), which defines "land-based pollution" as including "sources associated with any deliberate disposal under the sea-bed from land by tunnel, pipeline or other means and sources associated with man-made structures placed in the maritime area under the jurisdiction of a Contracting Party other than for the purpose of offshore activity."171 It thus appears that both methods by which a subsoil storage facility may be reachedpipelines or tunnels from land or structures placed within the marine environment that are not engaged in offshore activities-constitute pollution from land-based sources. The text does not appear to require that such structures are connected in any way to the land. Whether inadvertently or deliberately, the text of the OSPAR Convention distinguishes between the water column and the sub-seabed when defining that which comprises land-based sources of pollution as opposed to dumping. A literal application of Article 1 (e) therefore has the unfortunate consequence of categorizing geological disposal of CO2 from a structure not engaged in offshore minerals production as a source of land-based pollution, which is permissible subject to relevant regulation or authorization. The injection of CO2 into the water column from a structure that is likewise not engaged in offshore production is, by contrast, categorized as dumping and consequently prohibited by Annex II of the OSPAR Convention.

This is a regrettable distinction that may result in a potential application of the OSPAR Convention that is not consistent with the global rules as they apply to CO2 sequestration or with the overall objective of the OSPAR Convention to protect and preserve the marine environment. Therefore, a purposive interpretation of Article 1(e) is advocated whereby land-based sources of pollution include only those installations that are in some way attached to land, such as by a pipeline. Accordingly, CO2 disposal from all installations not engaged in offshore activities would be regulated under the auspices of Annex II regardless of whether the CO2 is injected beneath the seabed or into the water column.

Alternatively, it can be argued that where CO2 is injected beneath the seabed from an installation that ostensibly falls within the remit of Article 1(e), where CO2 is transported by vessel to that installation, the provisions of Annex II should automatically apply. Furthermore, if CO2 is piped for geological disposal from an offshore installation to a structure that does not engage in hydrocarbon activity, it might be argued that this structure should be regarded as connected to, and therefore part of, the offshore installation, which would result in such disposal being likewise classed as dumping and regulated by Annex III of the OSPAR Convention.

Finally, in common with both the 1972 London Convention and 1996 London Protocol, the OSPAR Convention does not categorize the placement of waste in the marine environment for purposes other than mere disposal as dumping.172 The Group of Jurists and Linguists concluded in their report that the placement of CO2 in the marine environment in order to mitigate the impact of global climate change did not constitute a purpose other than mere disposal.173 However, in their opinion the placement of CO2 beneath the seabed or in the water column for the purpose of scientific experimentation should not be regarded as dumping and would be permissible subject to the other provisions of the OSPAR Convention.174 Where such placement is effected from a vessel or other structure not engaged in an offshore activity, Article 5 of Annex II applies, requiring the authorization of, or regulation by, the competent authority in accordance with relevant criteria and guidelines developed by the OSPAR Commission.

However, placements effected from an offshore installation, which do not constitute an activity relating to the discharge or emission of substances from an offshore source, are not similarly regulated by Annex III. The regulation of placement for a purpose other than disposal in Annex III is thus far confined to the placement of actual offshore installations and pipelines.175 Accordingly, CO2 placed in the marine environment from an offshore installation for the purpose of scientific experimentation need not be authorized and is currently not regulated under the OSPAR Convention. This is a serious lacuna176 which needs to be addressed, particularly in the light of experimentation currently taking place within the North Sea.

In conclusion, CO2 sequestration beneath the seabed from land would not appear to be prohibited under the OSPAR Convention, although discharges must be regulated by the coastal state to minimize polluting emissions. CO2 disposal from a vessel and release of CO2 from an offshore installation are, on the other hand, prohibited under Annex II and Annex III of the OSPAR Convention, respectively, unless the release constitutes a discharge from an offshore source or is placed in the marine environment for a purpose other than disposal. Where CO2 is sequestered beneath the seabed from an installation which is not engaged in offshore activities, a literal interpretation of Article 1(e) would appear to suggest that it ought to be classed as a land-based source of pollution as opposed to dumping. Arguably, such an interpretation is inconsistent with the global rules on dumping and draws an unreasonable and unwarranted distinction between sequestration activities taking place beneath the seabed as opposed to within the water column. Consequently, a purposive interpretation of the OSPAR Convention is advocated which categorizes the CO2 disposal from any installation unconnected to land as dumping regardless of whether the CO2 ultimately rests on or beneath the seabed.

III. DIRECT INJECTION OF CO2 INTO THE WATER COLUMN

CO2 sequestration within the deep ocean was originally suggested in 1977 when Cesare Marchetti advocated injecting CO2 into the sinking thermohaline currents in the Mediterranean from where it would be transported into the deep Atlantic.177 Unlike geological disposal, direct ocean injection of CO2 is not a permanent form of sequestration. However, the removal of large amounts of carbon from the atmosphere for lengthy periods of time is predicted to allow the biosphere time to adjust to higher global temperatures.178

Direct ocean disposal of CO2 may be effected by two principal mechanisms. First, CO2 may be releas\ed from a pipeline, or, more likely, a droplet plume and pipe towed by a vessel, at an intermediate depth, where it will rapidly dilute.179 Alternatively, CO2 may be released from a pipeline attached to a vessel or, more likely, attached to an offshore installation, into the deep ocean (below 3000 meters) where, owing to the density of CO2 at such depths, it will form a "lake" on the seabed. Although the CO2 will eventually dissolve and be released into the atmosphere, this process will take at least several hundred years.180

This latter method of CO2 sequestration has proven controversial. Plans to inject CO2 off the coasts of Hawaii and Norway in 2002 were abandoned as a consequence of public protest.181 Moreover, successful deep ocean injection currently faces a number of engineering challenges182 and uncertainties over the speed with which CO2 is likely to be returned to the atmosphere.183

The impact of direct injection strategies on the local marine environment is widely predicted to be of greater significance than that associated with geological sequestration. The most immediate impact is likely to result from a decrease in the water's pH value, particularly around the release point.184 Deep-sea ecosystems are believed to be especially vulnerable to even very small changes in water pH. This vulnerability results from certain unusual characteristics of deep-sea fauna, including their low rate of biological activity and long life span.185 Moreover, although it is understood that the deep sea is, in fact, rich in species diversity,186 it is low in species density,187 and it is predicted that the stability of the deep-sea environment means that species are ill-equipped to withstand rapid changes in their environmental conditions.188 A recent study has concluded that exposure to increased levels of CO2 in seawater may lead to metabolic suppression, decreased biological activity, dissolution of exoskeletal compounds, loss of consciousness, and even death.189 In short, direct injection of CO2 into the largely unexplored deep-sea could have important consequences for "the ecology of the entire deep-sea."190

A. WATER COLUMN SEQUESTRATION OF CO2 WITHIN THE FRAMEWORK OF UNCLOS

1. Is There a Right to Sequester CO2 within the Water Column at Sea?191

Broadly, states' rights and duties in relation to the direct disposal of CO2 within the water column bear much in common with the rights to sequester CO2 beneath the seabed. Accordingly, many of the principles embodied in UNCLOS and discussed above are directly applicable here. The most extensive rights belonging to a coastal state apply within its territorial sea. However, owing to the depths required for this method of disposal, it is highly unlikely that direct injection of CO2 into the water column will take place less than twelve nautical miles from the coastline. A coastal state also has sovereign rights to explore and exploit the non-living resources of its EEZ and continental shelf,192 although it is debatable as to whether the capacity of the ocean to absorb CO2 can be categorized as a "non-living resource." Assuming that this is the case, any right to create a lake on the seabed, or within a natural depression on the sea floor, appears to be exclusive to the coastal state.193 Similarly, the right to construct installations such as platforms from which CO2 is injected within the EEZ or the continental shelf is also exclusive to the coastal state.194

Within a coastal state's EEZ, all other states are entitled under Article 58 of UNCLOS to exercise certain freedoms such as navigation, overflight, and the laying of submarine cables and pipelines.195 Whether a non-coastal state is able to dispose of CO2 from a vessel within an EEZ would depend on whether such activity falls into the category of "other internationally lawful uses of the sea related to these freedoms" outlined in Article 58.196 Arguably, if oceanic CO2 sequestration is not prohibited under international law, it should be regarded as an

' internationally lawful use of the sea. However, within the EEZ, the text of Article 58(1) specifies that these other uses must be related to the freedoms outlined, which would not embrace oceanic CO2 disposal.197 While navigation is a necessary first step in relation to CO2 disposal in the water column, the release of CO2 can hardly be described as incidental to it. In any case, all states must comply with coastal state legislation, which may regulate their activities, including scientific research, in order to protect the marine environment. Within the territorial sea a non-coastal state is more restricted in its rights. Ships registered to a non-coastal state's flag may not be denied the right of innocent passage,198 which is restrictively defined as navigation for the purposes of traversing the sea and must be continuous and expeditious.199 Accordingly, while a coastal state may not prevent a ship from traversing its territorial sea in order to dispose of CO2 elsewhere, no disposal may take place without its permission.200

Given the depths required for direct injection of CO2,201 it is likely that activities may take place on the high seas202 or within the Area,203 as defined by UNCLOS. The high seas are open to the exercise of a number of freedoms by all states, whether coastal or landlocked, which must be exercised with due regard to other users.204 Of particular interest in the context of direct injection of CO2 into the water column are the freedoms to construct installations permitted under international law and to engage in scientific research. Where CO2 is injected into the water column beyond national jurisdiction so as to form a "lake" on the seabed the provisions of UNCLOS relating to the Area apply. While the Area tends to be associated with mining activities, particularly beneath the subsoil, it is notable that it is defined so as to include the ocean floor as well as the seabed. Within the Area, parties to UNCLOS must regulate their activities in accordance with the Convention and other rules of international law205 and act "with reasonable regard to other activities within the marine environment."206 Notably, all ac

Source: Georgetown International Environmental Law Review

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