CIENCIAS SOCIALES (BLOQUE 2: VIVIR EN SOCIEDAD)

Concerns over attempts to manipulate the weather by the United States of America during the Vietnam War brought about the United Nations Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (ENMOD).567 _{ENMOD requires that States do not}

engage in military or any other hostile use of environmental modification techniques which will have widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.568 _{The term}

environmental modification techniques has been used to refer to any technique for changing, through the deliberate manipulation of natural processes, the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.569 _{While there is no definition as}

to long lasting, widespread or severe in the Convention, during negotiations it was agreed that widespread would mean ‘over an area of several hundred square kilometres’ and long lasting would be ‘over a period of months or a season’ and

severe would be ‘any serious or significant disruption or harm to human life, natural or economic resources or other assets’.570

The negotiators envisaged that techniques such as changing the weather patterns, upsetting the ecological balance of a region and changes in the ocean currents would all be contrary to the aims of the ENMOD Treaty.571 _The

ENMOD Treaty is supplemented by the 1977 Protocol I Additional to the 1949

567 _{Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification}

Techniques, opened for signature on 18 May 1977, ATS 1884 No. 2, entered into force 10 December 1976.

568 _{Article I, Convention on the Prohibition of Military or any Other Hostile Use of Environmental}

Modification Techniques, opened for signature on 18 May 1977, ATS 1884 No. 2, entered into force 10 December 1976.

569 _{Article I, Convention on the Prohibition of Military or any Other Hostile Use of Environmental}

Modification Techniques, opened for signature on 18 May 1977, ATS 1884 No. 2, entered into force 10 December 1976.

570 _{L C Green, The Contemporary Law of Armed Conflict (2}nd _{ed.) (2000) at 138.} 571 _Ibid.

Geneva Convention on the Laws of Armed Conflict572 _{which prohibits the use}

of methods and means of warfare which are intended, or may be expected, to cause widespread, long term and severe damage to the natural environment.573

While the act of ocean fertilisation may be the deliberate ‘modification of the environment in order to sequester CO2 or feed fish’, and international law

prohibits the deliberate modification of the environment as a hostile act, it is difficult to see how the claim that ocean fertilisation due to the manipulation of the environment could be interpreted as a hostile act,574 _{particularly as a result of}

the need to continually replenish the nutrient in order to sustain the bloom. The only way it could be seen as such is where it is deliberately used to ‘clog up harbours and estuaries’ in order to slow the progress of shipping or pollute the waterways with harmful algal blooms.

Conclusion

The issues raised by the statements of concerned scientists resulted in the first attempt at creating some sort of formal agreement on ocean fertilisation, with the CBD moratorium. But this moratorium received a lot of criticism from both the commercial and research fraternities as inept and hastily construed. Further work was needed. The real key would be using precaution in any future ocean fertilisation activity so as not to create a ‘tragedy of the commons’ scenario. While it is clear that the release into the ocean of substances with a recognised tendency to cause harm is clearly contrary to the aims of the LOSC, the London Convention and the London Protocol, the claim by many commentators that ocean fertilisation is prima facie contrary to the aims of the LOSC, the London Convention

572 _{Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the}

Protection of Victims of International Armed Conflicts, opened for signature on 6 June 1977, 1125 UNTS (1979) 3-608, entered into force 7 December 1978.

573 _{Article 35 (3) Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating}

to the Protection of Victims of International Armed Conflicts, opened for signature on 6 June 1977, 1125 UNTS (1979) 3-608, entered into force 7 December 1978.

574 _{Kelsi Bracmort, Richard K Lattanziof, Emily C Barbour, ‘Geoengineering: Governance and Technology}

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and the London Protocol and therefore constitutes dumping is not substantiated. The aim of ocean fertilisation is to improve the environment, not cause harm. Furthermore, for the purposes of the draft framework on ocean fertilisation under the London Convention/Protocol ocean fertilisation for legitimate scientific research, for the time being at least, is defined as placement, not dumping.

While some States may encounter difficulty in trying to implement the draft framework within their domestic law, there is also the problem of interpreting and implementing international law generally on the issues raised by ocean iron fertilisation and ocean urea fertilisation. One thing that States have in their favour is the power to make new law in relation to such activities, as well as the power to strictly enforce domestic regulations within domestic waters.

The most comprehensive document produced so far on the approval of ocean fertilisation experimentation is the assessment framework drafted by the Meeting of the Scientific Group of the London Protocol. Though there is a great deal of detail on the process of developing and logistical issues surrounding ocean fertilisation, there are still some fundamental differences between the requirements of scientists, commercial operators and policymakers. Consequently, there is still some way to go before a legally binding agreement is in place.

The next chapter examines domestic law in relation to the use of ocean fertilisation as a climate mitigation measure as well as for seafood production. The majority of the law considered is Australian, both at the federal and state level.

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There is far greater capacity to regulate ocean fertilisation activities at a domestic level than internationally. This chapter has selected key Australian legislation and other legal instruments in an attempt to demonstrate how ocean fertilisation activities could be regulated in a domestic situation.

AUSTRALIAN LEGISLATION

Introduction

Under the United Nations Convention on the Law of the Sea, Australia has rights and responsibilities to protect and properly manage the marine area falling within its jurisdiction. This is reflected in a number of Australian Commonwealth Acts including, but not limited to, the Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008, Protection of the Sea (Prevention of Pollution from Ships) Act 1983, Seas and Submerged Lands Act 1973, Fisheries Management Act 1999, Environment Protection (Sea Dumping) Act 1981 (Cth) and the

Customs Act 1901. The principal legislation for regulating these activities within Australian jurisdiction is the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

In the management of any marine-based project such as ocean fertilisation in waters under Australian jurisdiction, comprehensive legislation at either state or federal level is essential. This chapter provides an overview of Australian domestic marine related legislation that may be useful for the management and regulation of ocean fertilisation activities in Australian marine areas.