Non-human agents and the Law
Updated: Oct 4, 2021
In June 2017 Science published a paper by Andreassen et. al. with the title ‘Massive blow-out craters formed by hydrate-controlled methane expulsion from the Arctic seafloor’ (Andreassen et.al. 2017). The research team found evidence of large craters embedded within methane-leaking subglacial sediments in the Barents Sea, Norway. The thinning of the ice sheet at the end of recent glacial cycles decreased the pressure on pockets of hydrates buried in the seafloor, resulting in explosive blowouts. This created giant craters and released large quantities of methane (CH4) into the water above. Andreassen et. al. propose that these processes were likely widespread across past glaciated petroleum zones and that they also provide an analog for the potential future destabilization of sub-glacial gas hydrate reservoirs beneath contemporary ice sheets. If CH4 is allowed to leak into the air before being used, it rapidly absorbs the sun’s heat, warming the atmosphere and contributing to the positive feedback loop of climate change in the Arctic, as well as the rest of the Earth System.
The Arctic deglaciation also opens the way to the Arctic’s untapped natural resources. The Central Arctic Ocean beyond national jurisdiction is a global commons with many intersecting regional and sectoral interests, presenting complex governance challenges. The international community’s legal interest in such commons resources differs from traditionally defined sovereign legal interests, leading to a need for legal innovation.
To account for CH4 releases international law would need to account for the actorhood of the Earth System. The term -‘actor’ – in this paper refers to the already existing agency of the entire Earth System (i.e. physiological, meteorological, etc. changes), and the need for the international legal adaptability to new contingencies. Overall, the example of CH4 crates is used to assess the dynamics of international regulatory change and to inquire not only how climate change should be regulated but also when and where. However, the recognition as of an ‘actor’ in law is a climax of formalisation processes, and not always timely. The path to formalisation of the Earth System under international law would need to recognize the driving force of the Earth System including the climate change-induced physical changes within it, such as the CH4 blowouts. Can, then, a greenhouse gas be an actor in international law?
CH4 is considered a greenhouse gas, like CO2, and both types of emissions need to be addressed in an effective reduction of the impacts of climate change. However, like CO2, complex metabolic heat production and CH4 emissions need to be translated into the language of the law. The global impact of greenhouse gases requires a global response from a global regulatory framework, which would not only evaluate CH4 emissions as objects but as actors of the Earth System.
A key part of the international climate regime has been the establishment of complex international carbon markets as a dominant climate mitigation strategy (Dehm 2018). However, issues associated with climate change permeate national boundaries: emissions or actions in one state will have adverse consequences in another, and in areas over which states have no jurisdiction or sovereignty. How can responsibility be allocated in situations such as the CH4 emissions both directly human-induced, and the blow out crates, which are the consequence of climate change?
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K. Andreassen et. al., ‘Massive blow-out craters formed by hydrate-controlled methane expulsion from the Arctic seafloor’, 2017, Science 6341, at 948
J. Dehm, “One Tonne of Carbon Dioxide Equivalent (1tCO2e)” in Jessie Hohmann and Daniel Joyce (ed), International Law’s Objects (2018).