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CCS - International Legislation

Transboundary movement of CO2


One challenge with CCS relates to the transport of the CO2. If the storage site is located in a different country than where the CO2 is captured, the CO2 must be moved between boundaries. This transboundary movement is as of today not legal under existing international framework. Another question arising in relation to the transport of CO2 is the legal status of CO2. Different international framework touch upon the treatment and movement of waste, but many of these questions remains unresolved.

London Convention and Protocol

The London Convention[1] covers the deliberate disposal at sea of waste or other matters from vessels, aircrafts and platforms. The convention does not explicit mention CO2, and there have been some discussion if CO2 falls within the definition of “waste”.  The London Convention currently prohibits any disposal of “industrial waste” into the sea. This means that if CO2 are regarded as “industrial waste”, it is absolutely prohibited to dump CO2 (e.g. by storing it beneath seabed). There is still no consensus between the parties whether CO2 is covered by this definition.

In 1996 the London Protocol was agreed with the purpose of modernising and updating the original Convention. Under this protocol all dumping of “waste” is prohibited, except from acceptable “wastes” included in a “reverse-list”. An amendment to the London Protocol was accepted in 2006, with the purpose of including CO2 to the “reverse-list”. With this amendment CO2 streams from CO2 capture processes for storage may be considered for storage below sea-bed.

Further Article 6 of the London Protocol prohibits the “export of wastes or other matter to other countries for dumping or incineration at sea”. The parties have interpreted the article as a prohibition to export of CO2 form a contracting party for injection into sub-seabed geological formations. To solve this problem of transboundary movement of CO2, the contracting parties made an amendment to Article 6. This provision makes it possible to transport CO2 from a contracting party. However, in accordance with Article 21, two-thirds of the contracting parties must accept the amendment before it can enter into force.   Currently only two parties (Norway and UK) have ratified the amendment.

http://www.iea.org/publications/insights/insightpublications/CCSReview_4thEd_FINAL.pdf p.76

This means that transboundary movement of CO2 is currently prohibited under the London Protocol, and it leaves the status regarding this legal issue unresolved. For more information on this subject and different legal options to allow transboundary movement of CO2 see: http://www.iea.org/publications/freepublications/publication/CCS_London_Protocol.pdf
http://www.imo.org/OurWork/Environment/LCLP/Pages/default.aspx

 

The Basel convention and the Bamako convention

Other international conventions touch upon the issue on transboundary movement of CO2. The Basel Convention[2] and The Bamako Convention[3] relates to the transport of hazardous waste, and the legal status of CO2 is an unresolved issue. If CO2 falls under the definitions of “hazardous waste”, the transportation of CO2 will be subject to these agreements, and might restrict movement of CO2 in relation to CCS projects. The problem has not yet been properly addressed under these conventions and leaves the legal status debated and uncertain. 

In 1995 a Ban amendment was agreed on between the parties to the Basel Convention. By this amendment the parties agree to ban the parties that are members of the OECD[4] or the EU and Liechtenstein from exporting hazardous waste to non-OECD countries for final disposal. The amendment has not yet entered into force. This means that if the amendment enters into force and CO2 is characterised as “hazardous waste” the export of CO2 from OECD to non-OCED countries will be prohibited.

 

OSPAR Convention

The OSPAR Convention[5] regulates human activities that can have an adverse effect on the marine area, marine ecosystems and to prevent and eliminate pollution in the North-East Atlantic. In 2007 two amendments to annex II and III was made, and allowed storage of CO2 in geological formations under the seabed. The CO2 can only be stored in accordance with an authorisation or permit given by the Party’s competent authority. This authorisation can only be given if a full risk assessment and management process has been completed in accordance with the competent authority. This permit should help ensure that the CO2 is safely stored in order to protect the marine environment and avoid any significant adverse effects. The Commission to the OSPAR Convention also adopted a decision to legally rule out the placement of CO2 into the water column of the sea and on the seabed because of “potential negative effects”. These amendments will enter into force for the parties that ratify them in accordance with the provisions for ratification. 

The issue of transboundary CCS is not mentioned in the OSPAR Convention and the new amendments does not consider the transportation of CO2, however, the regulations regarding CCS will create a legal framework for the contracting parties.

More information:
http://www.ospar.org/content/content.asp?menu=00120000000043_000000_000000
http://www.globalccsinstitute.com/networks/cclp/legal-resources/offshore-co2-storage/europe/ospar

MARPOL convention

The MARPOL convention[6] is a primary agreement for regulating pollution from ships, both accidental pollution and from routine operations. Article 2 defines different terms that can have an effect on CCS activities. Leakage of CO2 while shipping between jurisdictions could potentially apply to the definition of “harmful substance”. Further regulations for prevention of pollution by harmful substance carried by sea in packaged form are set in Annex III. These regulations contain detailed standards on packing, marking, labelling, documentation, stowage, quantity limitations, exceptions and notifications. In relation to transboundary CCS activities, some of these regulations might be subject to shipping of CO2 in gas cylinders or in liquefied form.

More information:
http://www.imo.org/About/Conventions/ListOfConventions/Pages/International-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx

Deployment of Transboundary CCS Activities

United Nations Convention on the Law of the Sea

UNCLOS[7] establishes a framework with the purpose of protection the world’s oceans and marine environment, which also include seabed and subsoil. UNCLOS does not expressly mentions CCS activities, but some of the provision included in the convention might have an impact on CCS.

Article 77 states that the costal state has exclusive rights to explore and exploiting their natural recourses on their continental shelf. Further according to Article 81, the states have the authorisation to regulate drilling on their continental shelf. In relation to CCS projects, this means that another state must get permission to undertake injections and storage in the jurisdiction of another state.

According to Article 79.1 “All states are entitled to lay submarine cables and pipelines on the continental shelf (…)”. The costal state must consent with the course of the pipelines (cf. Article 79.3), but may not impede them. This gives the parties relatively wide discretion to lay pipelines for transport of CO2 in relation to CCS activities.

The part of the sea that is beyond national jurisdiction can create a barrier to CCS activities. No state can claim sovereignty over any part of the “Area”. The “Area” means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction cf. Article 1.1 (1). This may limit the exploration of suitable geological storage sites, and injection in them. It generally means that CCS activities involving storage in international waters are precluded.


More information:
http://www.globalccsinstitute.com/networks/cclp/legal-resources/offshore-co2-storage/international-marine-legislation/unclos


[1] The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter

[2] The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal

[3] The Bamako Convention on the Ban on Import into Africa and the Control of Transboundary Movement and Managment of Hazardous Wastes within Africa

[4] Organistaion for Economic Co-operation and Development

[5] The Convention for the Protection of the Marine Environment of the North-East Atlantic

[6] The 1973 International Convention for the Prevention of Pollution from Ships and its Protocol of 1978

[7] United Nations Convention on the Law of the Sea





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