Cryopower Unfrozen: No Carte Blanche under International Law for Sea Ice Geoengineering to Restore the Arctic Ocean
Abstract
Introduction
Asserting Power Through Sea Ice Restoration: A Cryopolitical Framework
Perhaps the most formidable obstacle ever encountered by the inquisitive human spirit, that barrier of millennial, if not primaeval ice which, in a wide and compact wall, enshrouds the mysteries of the North Pole.(Roald Amundsen, The Northwest Passage)32
The Legal Obligation to Restore Sea Ice: International Law as a Technology of Cryopolitics
The Due Diligence Obligation to Restore Arctic Sea Ice
The 2024 ITLOS Advisory Opinion on Climate Change is the most relevant starting point for assessing whether international law may require, or support, sea ice-restoration measures in the Arctic.55 In answering the question as to the specific obligations of states parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)56 to protect and preserve the marine environment in relation to climate change impacts—including ocean warming, sea level rise and ocean acidification—ITLOS recognized the existence of an obligation to restore the marine environment. The judges found that the obligation of restoration is part of the broader obligation to protect and preserve the marine environment under Article 192 of UNCLOS:
Where the marine environment has been degraded, the Tribunal is of the view that the term “preservation” may include restoring marine habitats and ecosystems. The term “restoration” is not used in article 192 of the Convention but flows from the obligation to preserve the marine environment where the process of reversing degraded ecosystems is necessary in order to regain ecological balance.57
A fundamental preliminary question, however, arises as to whether sea ice and the broader marine cryosphere fall within the concept of the “marine environment.” Article 1(4) of UNCLOS indirectly defines that environment by reference to marine waters, the airspace above them, the seabed and subsoil, and their living resources and ecosystems, but does not expressly mention sea ice.58 We must therefore demonstrate that the thawing of sea ice owing to climate change corresponds to a form of degradation of the “marine environment” under UNCLOS.
The legal obligation to restore the marine environment can also be traced from ICJ jurisprudence. The Court was tasked in 2023 by the UN General Assembly to clarify the obligations of states under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic GHG emissions.86 It is in response to this issue that the first instance of the notion of “restoration” also appears in the ICJ’s Advisory Opinion on climate change. Restoration is explicitly envisaged by the Court as part of “adaptation options” based on the Intergovernmental Panel on Climate Change (IPCC) reports.87 The ICJ decided that states party to the Paris Agreement have adaptation obligations and that their fulfilment “is to be assessed against a standard of due diligence”.88 The Advisory Opinion then affirms:
It is therefore incumbent upon parties to enact appropriate measures (examples of which are provided in Article 7, paragraph 9 [of the Paris Agreement]) that are capable of “enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change” (Article 7, paragraph 1 [of the Paris Agreement]). In this connection, parties must use their best efforts, in line with the best available science, with a view to achieving the aforementioned objectives. In this regard, the Court observes that the IPCC noted in 2023 that adaptation is a particularly pressing challenge in responding to climate change and that adaptation options exist that are effective in reducing climate risks in certain contexts, such as restoration of ecosystems […].89
Thus, it is made clear by the Court that the obligations of states to take adaptation measures are based on a standard of conduct, even when derived from the Paris Agreement. The language closely resembles that used by the ICJ earlier in the Opinion, where it outlined the elements required by due diligence—a standard of conduct that obliges states to adopt, to the best of their abilities and depending on their capacities as well as on scientific and technological information, appropriate and, if necessary, precautionary measures, along with relevant rules and international standards.90
to use all means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.92
In its analysis of “due diligence as the required standard of conduct,”94 the Court further clarified what is expected of states concerning the utilization of available technologies. According to the ICJ:
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.95
In this regard, the development of SIGE technologies raises the question of whether states could be expected to consider or even deploy them to restore Arctic sea ice and its diminishing properties. Indeed, this could contribute to reducing the risk of significant harm occurring to the environment, as Arctic sea ice is key to the climate system, and its melting, caused by climate change, has been shown to accelerate further warming, resulting in a vicious circle.96 In light of climate change, the risk of significant environmental harm is thus clear, and calls for due diligence. Hence, restoring sea ice becomes relevant for parties to the Paris Agreement in meeting their adaptation obligations,97 and more broadly for all states, since it can contribute to complying with their due diligence customary obligations to prevent significant harm to the climate system.
Arctic Sea Ice Restoration as a Form of Restitution
legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment.98
Therefore, the international responsibility of a state arises from the breach of an international obligation by an act or omission attributable to that state.103 Such responsibility may incur even where GHG emissions are produced by private actors, since the primary obligations of states with respect of climate change “include the obligation to regulate the activities of private actors as a matter of due diligence”.104 It is important to highlight that both acts and omissions are hence decisive in the context of climate change because many such international obligations are obligations of conduct:
With regard to obligations under customary international law, the Court observes that the most significant primary obligation for States in relation to climate change is the obligation to prevent significant harm to the climate system and other parts of the environment […]. Under this obligation, as well as under other obligations of conduct identified under question (a), a State does not incur responsibility simply because the desired result is not achieved; rather, responsibility is incurred if the State fails to take all measures which were within its power to prevent the significant harm. In this connection, the notion of due diligence, which calls for an assessment in concreto, is the relevant standard for determining compliance […].105
Consequently, it is not the harm or the GHG emissions per se that are decisive in determining the responsibility of a state, but rather, the state’s acts or omissions causing significant harm in breach of international obligations.106 The ICJ expressly clarified this, explaining that under the customary obligation to prevent significant harm to the climate system and other parts of the environment—as well as under other obligations of conduct the judges identified under question (a)—a state incurs responsibility on the basis of its failure to take “all measures which were within its power to prevent significant harm”, and not “simply because the desired result is not achieved”.107 A connection is then expressly made with the notion of due diligence, which stands as the “relevant standard for determining compliance” and involves an assessment in concreto for the performance of its obligations.108 Where a breach of any of these primary obligations is found, the state to which it is attributed commits an internationally wrongful act entailing its responsibility.109
Against this background, the Advisory Opinion examined various means of ensuring reparation. The ICJ listed restitution, compensation, satisfaction, or a combination thereof, as forms of reparation, and provided specific details for each.115 It is regarding restitution that the ICJ explicitly referred to the restoration of ecosystems and biodiversity damaged by GHG emissions as a form of reparation:
The Court observes that the remedy of restitution, which involves the re-establishment of the situation that existed before the wrongful act was committed, may prove difficult or unfeasible in the case of environmental harm, since such harm is often not easily reversible. Nonetheless, the Court considers that, in the circumstances of climate change caused by emissions of GHGs, restitution may take the form of reconstructing damaged or destroyed infrastructure, and restoring ecosystems and biodiversity. Whether or not these special forms of restitution are appropriate as reparation for damage suffered by States in relation to climate change is to be determined on a case-by-case basis. Such determinations cannot be made in the abstract.116
Therefore, if an internationally wrongful act is attributed to a state, and where causation establishes the existence of a nexus between this act and the injury suffered by states or individuals,117 the responsible state is obliged to provide reparation, which may take the form of restoring ecosystems. Yet, the ILC specifies that although a responsible state is under the obligation to make restitution, two exceptions should be taken into account: if that restitution is materially impossible, or if it involves “a burden out of all proportion to the benefit deriving from restitution instead of compensation.”118 The Advisory Opinion confirmed the latter by emphasizing that “in the event that restitution should prove to be materially impossible, responsible States have an obligation to compensate.”119 On this occasion, the Court also took the opportunity to reiterate its position in the Certain Activities Carried Out by Nicaragua in the Border Area case, emphasizing that compensation for environmental damage is owed both for damage caused to the environment “in and of itself” and for the expenses incurred by the injured states as a consequence.120
Furthermore, it must be noted that the ICJ considered the obligations relating to climate change to be erga omnes121:
all States have a common interest in the protection of global environmental commons like the atmosphere and the high seas. Consequently, States’ obligations pertaining to the protection of the climate system and other parts of the environment from anthropogenic GHG emissions, in particular the obligation to prevent significant transboundary harm under customary international law, are obligations erga omnes.122
The literature has noted, however, that this may not apply to all obligations identified by the ICJ, as the Advisory Opinion is not entirely clear regarding the erga omnes nature of treaty obligations. This ambiguity arises from the Court’s specification that the legal interest of all states parties lies in the protection of the “main mitigation obligations set forth in the climate change treaties.”123 Yet, it is evident from the language of the Court that, at the very least, the obligation to prevent significant transboundary harm under customary international law constitutes one of the erga omnes obligations. As a result, any state may invoke the responsibility of a state in breach of such obligations, as these are owed to the international community as a whole.124 The obligation of reparation must, however, be carried out in the interest of the injured state or of the beneficiaries of the obligations breached.125
Sea Ice Restoration Through Geoengineering? The Role of Law in Resisting Cryopower
Evaluating Whether SIGE Qualifies as “Restoration”
“Polar ice restoration should be considered in planning of 1.5 °C pathways.”(ICE911, 2018)136
From Scientific Uncertainty to Legal Precaution: Navigating the Future Cryopolitics of SIGE
Given the current scientific uncertainties surrounding SIGE and the pressing issues of climate change and ice thawing, controversies remain in scholarship on the merits of continuing geoengineering research in the Arctic. Siegert et al. argue that further research in geoengineering techniques is not an effective use of time and resources and point out the moral hazards (or “mitigation deterrence”) taking the form of complacency and predatory delay that can be associated with geoengineering.173 To them, “geoengineering proposals offer false hope that the effects of global warming can be avoided by means other than rapid, deep cuts to GHG emissions,” diverting attention from the critical priority of reducing these emissions.174 This approach is also echoed by Arctic Indigenous peoples, who have voiced concerns about proposed geoengineering solutions to combat climate change, declaring geoengineering a “false solution to climate change”.175 To quote Sarah Olsvig, the international chair of the Inuit Circumpolar Council (ICC):
when somebody approaches the Arctic and our homelands as Indigenous peoples and say[s], “We need your piece of land in the name of a greater good,” that’s exactly what happened when we were colonized.176
While some scholars contend that there is an urgent need to develop ethical approaches to SIGE and advocate for Indigenous-led climate actions,177 others argue that given the slow adoption of policies to address climate change, it is necessary to continue researching these unconventional practices. For example, Bodansky and Hunt acknowledge the uncertainties surrounding the different SIGE techniques but argue that they should be thoroughly investigated owing to the Arctic’s critical role in the climate system. Yet, they emphasize that these techniques should not be seen as a substitute for drastic action to reduce GHG emissions.178 Moore and al. also advocate along these lines, highlighting the insufficiency of political will for large-scale reductions in GHG emissions and criticizing Siegert et al. for undermining the “moral hazard of non-research.”179
applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks.184
Conversely, it has been argued that refraining from geoengineering could also cause serious environmental harm,188 leading to a “self-defeating scenario” in the application of the precautionary approach in the sense that it “simultaneously calls for actions that it also prohibits”.189 Indeed, when it comes to climate change, the risk of significant harm to the environment is “undisputably established”.190 Thus, some scholars have argued that the risks associated with not intervening in the Arctic cryosphere should also be taken into account.191 This standpoint can also be traced back to the UNFCCC, which states:
The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.192
It is doubtful, however, that the precautionary approach is intended to allow a blindfolded fuite en avant with any type of climate engineering—particularly with SIGE, which, as noted above, has yet to demonstrate its “cost-efficiency”. This concern is further accentuated by the risk of states relying on technological fixes as a substitute for broader political action. In that regard, the ICJ was cautious in its Advisory Opinion on Climate Change regarding the use of new technologies to prevent or mitigate relevant harm: “When technologies pose further risks, States are expected to use them with prudence and caution.”193
So far, only ocean fertilization appears in Annex 4, which regulates it by banning any deployment other than for legitimate scientific research.203 However, the text allows ocean fertilization to be “considered for a permit if it is assessed as constituting legitimate scientific research.”204 In order to clarify the notion of “legitimate scientific research,” an Assessment Framework for Scientific Research Involving Ocean Fertilization was adopted by LC/LP under Resolution LC-LP.2 in 2010.205 Although not binding, according to this Assessment Framework, the scientific activity should meet criteria such as:
the proposed activity should be designed to answer questions that will add to the body of scientific knowledge […]; Economic interests should not influence the design, conduct and/or outcomes of the proposed activity […]; The proposed activity should be subject to scientific peer review at appropriate stages in the assessment process […]; The proponents of the proposed activity should make a commitment to publish the results in peer reviewed scientific publications and include a plan in the proposal to make the data and outcome publicly available in a specified time-frame.206
While SIGE does not qualify as ocean fertilization, the LC/LP illustrates how states may apply the precautionary approach in the case of a MGE activity.
in accordance with the precautionary approach and Article 14 of the Convention, that no climate-related geo-engineering activities that may affect biodiversity take place, until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts, with the exception of small scale scientific research studies.210

