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«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»

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The purpose of the activity under CBD impact study’s definition is “to counteract anthropogenic climate change and/or its impacts.” Generally, geoengineering is understood as seeking to reduce climate warming. Nevertheless, as other purposes are imaginable, a broader purpose of “producing environmental change on a regional or global scale” is used here, providing greater flexibility while also noting that this is “primarily for counteracting anthropogenic climate change or reducing its warming impacts.” Referring to climate “warming” rather than the impacts of climate change, provides further differentiation from adaptation measures. “Environmental change,” as opposed to climatic, is also intended to broaden the scope of potential purposes. It is open for discussion whether this broadens the scope too much.

The CBD impact study’s choice of definition links the level of scale to the intent and purpose of the activity. However, it is not clear whether small-scale application of techniques, such as for research, may be covered. Further, the exact level of scale appears to turn upon the subjective intent of the actor, where it could be said that if the activity is not intended to effect climate alteration, even where feasible, the activity is not of scale intended to counteract anthropogenic climate change and/or its impacts. The above alternative definition uses “activities designed or undertaken with the purpose of producing environmental change on a regional or global scale.” While still linked to intent and purpose, the separation of these two Options and Proposals for the International Governance of Geoengineering elements, via “or” reaches further beyond the actor’s intent. It also clarifies the trademark large-scale quality of geoengineering as occurring on a regional or global scale, not local.

Both definitions identify general categories of CDR and SRM, but do so, inter alia, by allowing room for other potential approaches and advances. Whereas the CBD impact study refers to “sunlight reflection methods,” the above definition substitutes “reducing solar insolation.” While both are appropriate, however, “solar” provides a slightly broader connotation, referring to heat or light relating to the sun and more closely to radiation, as opposed to only light. 37 The CBD impact study’s definition is a useful and plausible starting point, as it captures the essence of the current debate in clear terms. However, its openness its also its weakness when it comes to determining whether or not a specific activity falls under the definition. We suggest that any definition, including the CBD impact study’s, that is used as a basis for a regulatory purpose would have to be complemented by further details on determining and measuring broad terms such as scale. This can be achieved in several ways. One approach, also addressing the difficulty of crafting a sufficiently broad definition to cover a wide range of methods, would be to complement the definition with a positive list that expressly mentions specific techniques

-or activities- which are considered geoengineering. Such a list could be comprehensive and absolute, or left open, allowing for adaptation and interpretation as new methods and scenarios develop. Another option is to envisage a process or institution providing further guidance in advance or on a case by case basis.

Cf. the definitions in the online Oxford dictionary of “solar” and “insolation” to that of sunlight”.

Options and Proposals for the International Governance of Geoengineering 5 The existing legal framework While still small compared to the large amount of scientific literature, there have been a number of detailed legal analyses on how existing international law would apply to geoengineering techniques. 38 This section (project work package 2) builds on this previous work.

5.1 International Law

–  –  –

Similar to previous studies, this section (work package 2) addresses only those rules and institutions that apply to geoengineering or which could reasonably be expected to apply. 39 A useful, albeit not always exact distinction can be drawn between considering (i) rules governing the activity in question, e.g. releasing aerosols into the atmosphere and (ii) rules regarding the effects of an activity.

Questions regarding the potential status of obligations as ius cogens or obligations erga omnes do not have practical relevance for geoengineering at this stage. There are very few rules that are likely to be universally recognised as ius cogens, such as the prohibition of genocide or slavery, or erga omnes obligations. In addition, the details on the legal implications of these concepts have been under debate for a long time. 40 In addition to binding international law within the meaning of Article 38 ICJ Statute, this study also looks at instruments that may be not binding in this strict sense, but that provide politically or legally relevant guidance to states. In particular, it includes relevant institutions and quasi-legislative treaty bodies such as regular meetings of the Parties, depending on their mandate. On the basis of the traditional sources of international law, most of the decisions of such institutions are not as such binding (unless the treaty so provides). However, following the development and importance of treaty regimes with permanent institutions such as COPs, there are suggestions that COP decisions could be binding as such. 41 Yet there is hardly any state practice that could confirm that states are willing to accept this. One important implication and argument against this notion would be that a government could incur a legal obligation for the state it represents by not objecting to a COP decision although there was no clear prior or subsequent Parliamentary approval to such an obligation. In any event, the distinction between binding and non-binding is sometimes difficult to draw in international practice and particularly in treaty implementation. COP decisions, for instance, can express parties’ views on For instance, after initial overviews by Bodansky (1996), Zedalis (2010) and Bodle (2010), see Rickels et al (2011);





Bodle et al (2012). For other, more cursory overviews see for instance US GAO (2010); Umweltbundesamt (2011); Bodle (2013).

Cf. Bodle et al (2012) 111.

Bodle et al (2012) 113 fn. 22.

Cf. Churchill and Ulfstein (2000); Brunnee (2002); Gehring (2007); see also Frenzel (2011).

Options and Proposals for the International Governance of Geoengineering how to implement and develop the regime, and their relevance in practice may come close to binding rules.

For ease of reference, references to “states” in this study also include the EU unless otherwise stated. 42 5.1.2 Cross-cutting general rules There are cross-cutting international laws and other rules which, by virtue of their universal nature, are relevant to all geoengineering concepts.

5.1.2.1 Duty to respect the environment All states are under a general obligation to ensure that activities within their jurisdiction or control respect the environment of other States or of areas beyond national jurisdiction or control. The ICJ has held that this rule has become customary international law. 43 The finding of the ICJ builds on previous findings in the Trail Smelter arbitration 44 and several references in key international documents and treaties such as principle 2 of the Rio Declaration, 45 and article 3 CBD. The obligation has evolved in more recent formulations, in particular by the ICJ, to encompass the environment in general, as well as areas beyond national jurisdiction.

While it would in many cases not be a problem to detect geoengineering activities and to determine whether they can be attributed to a state, 46 it might be difficult to show which precise effects resulted from the particular geoengineering activity and which harm it caused. 47 For instance, a potential claimant state would have to establish a causal link between the particular geoengineering activity and changes in precipitation, as well as between those changes in precipitation patterns and specific environmental harm. 48 In view of the extent of the potential damage, reversing the burden of proof is being discussed on the basis of the precautionary principle. 49 Following the entry into force of the Treaty of Lisbon, cf. Articles 1, 3(2) and 47 Treaty of European Union (TEU), 216 Treaty on the Functioning of the Union (TFEU). According to Article 1 TEU, the EU replaced and succeeded the European Community (EC), which had entered into treaties prior to the Treaty of Lisbon.

ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion - General Assembly), ICJ Rep. 1996, 22, para 29; ICJ, Case concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Rep. 1997, 7, para 53; ICJ, Case concerning pulp mills on the river Uruguay (Argentia v. Uruguay), judgment of 20 April 2010, para 193 www.icj-cij.org. Note that the ICJ’s formulation is “activities within their jurisdiction and control”.

RIAA, Bd. III, 1905 ff., 1963-1965.

31 ILM 876 (1992); cf. principle 21 of the preceding 1972 Declaration of the UN Conference on the Human Environment (Stockholm Declaration), 11 ILM 1416 (1972).

See below on state responsibility.

Bodle et al (2012) 115-115.

Bodle (2010) 306-307.

See the section on the precautionary principle.

Options and Proposals for the International Governance of Geoengineering These factual difficulties are further complicated by legal uncertainties. This obligation has so far very rarely been subject of disputes which could have clarified its precise content. Although the ICJ has recently been more forthcoming in elaborating on its implications, the scope of the obligation it is not quite clear. In particular, it is not clear which degree of environmental harm would constitute a breach, and which measures states are required to take in order to prevent environmental harm. 50 The ICJ has also contributed to the lack of clarity. The wording “respect the environment” which the ICJ used in several cases, avoids the issue of whether a breach requires a certain degree of risk or harm. Moreover, it could indicate that the obligation also comprises a duty to actively prevent damage. The rationale behind it could be to provide an incentive for states to avoid conflicts with other states over environmental impacts. In its most recent judgment on this issue, the ICJ not only reiterates the obligation to respect the environment, but in another part of the decision refers to the “principle of prevention”. According to the ICJ, this principle means that a state “is thus obliged to use all the 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. 51 The ICJ does not mention this principle anywhere else in this judgment and it is unclear how it relates to the general obligation to respect the environment. In the passage introducing the “principle of prevention”, the ICJ first reiterates the general obligation established in the Corfu Channel case, which was not related to the environment, before pronouncing its specific meaning regarding the environment.

This explicit recourse could mean that the ICJ distinguishes two obligations: the (more recent) obligation to respect the environment and the (older) principle of prevention, as applied to the environment. Alternatively, it could also mean that the principle of prevention is part of the obligation to respect the environment. Given the significant overlap in the formulations and their objectives, the latter seems reasonable. 52 It is common ground that the obligation to respect the environment requires a due diligence standard and that the problem of which diligence is “due” depends on the particular case. 53 Apart from academic writing, the actual case law and state practice on this obligation is scarce and the ICJ’s statements are not entirely clear. 54 Against this background, it is suggested that drawing a distinction is between obligations of conduct and obligations of result should be used with caution in ascertaining when a breach has occurred. The distinction can be useful conceptually, but is not exclusive. 55 Cf. Rickel et al (2011) 99; ILC commentary on Art. 2 of the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, UN Doc A/56/10, para 6; Epiney, AVR 1995, 334; Beyerlin, Umweltvölkerrecht, para 119; Heintschel v. Heinegg, in: Ipsen (ed.), Völkerrecht, 1049 para 17.



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