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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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ICJ, Case concerning pulp mills on the river Uruguay (Argentina v. Uruguay), judgment of 20 April 2010, para 101.

Cf. Bodle et al (2012) 116.

Birnie et al (2009) 147; Bodle (2010) 307; Rickels et al (2011) 99; Bodle et al (2012) 116.

In the recent Pulp Mills case, the ICJ held that conducting an EIA was part of exercising due diligence in this particular case, ICJ, Pulp mills on the river Uruguay, para 204-206.

Cf. ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, commentary to Article 12, para 11 with references.

Options and Proposals for the International Governance of Geoengineering However, the distinction sheds light on the main problem with the obligation to respect the environment, namely that it is retrospective. Generally, the duty to respect the environment of other states or of areas beyond national jurisdiction or control does not mean that any environmental impact is for that reason generally prohibited. 56 It would be difficult to argue that a state is in breach of this obligation before the geoengineering activity has already taken place. International law provides only very limited means to obtain advance provisional measures in order to stop activities that could be in breach of international obligations. 57 5.1.2.2 Precautionary principle The precautionary principle or approach is frequently underlying arguments in favour of and against geoengineering. However, there is no uniform formulation or usage for the precautionary principle and its legal status in customary international law has not yet been clearly established, although it has been invoked several times in international cases. 58 The fact that some reject the term precautionary “principle” and prefer the term “approach” 59 highlights that even the legal meaning of “principles” is not clear or agreed in international law. 60 On the other hand, the concept of “principles” is relevant in practice and has a legal basis in some treaties, e.g. in article 3 UNFCCC, which is under the heading “principles”. This study uses the term “precautionary principle” for ease of reference and without prejudice to these concerns.

These conceptual legal uncertainties regarding the precautionary principle, as well as its openness regarding content, make it difficult to draw conclusions without imputing desired outcomes. However, there are explicit and implicit references to the precautionary principle in several documents and treaties, some of which are highly relevant for geoengineering governance, such as the CBD, the LC/LP and article 3(3) UNFCCC. The CBD decision X/33 on geoengineering is based on and stresses the importance of the precautionary approach. 61 In the geoengineering context, article 3(3) UNFCCC is of particular relevance because it incorporates the precautionary principle in the operative part of a treaty text with near universal participation, including the US. However, its precise legal consequences remain unclear.

A potential general legal implication of the precautionary principle relates to the burden of proof. For instance, it has been argued that when a proposed geoengineering activity has the potential for irreversible and catastrophic harm, the burden should be placed on those proposing the action62 - although the implications of this burden in practical terms are not Cf. Rickels et al (2011) 99; Bodle et al (2012) 115.

Bodle (2010) 308, with references to ICJ case law.

See generally Erben (2005); Birnie et al (2009) 157; Bodle et al (2012) 119 with further references; Recent cases include ICJ, Pulp Mills on the river Uruguay (Argentina v. Uruguay), judgment of 20 April 2010, www.icjcij.org; ITLOS case No.17, ”Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber)”, para 125-135, http://www.itlos.org.

See the overview in Birnie et al (2009) 154-155.

On the theoretical underpinning of the legal concept of “principles” see Rickels et al (2011)102.

See the section on this decision below.

Bodansky (2011) 15.

Options and Proposals for the International Governance of Geoengineering further elaborated. Another implication of the precautionary principle could be to ease or even shift the burden of proof after environmental impacts have occurred. For instance, a state to which a geoengineering activity is attributable would have to rebut the assumption that it changed the earth’s albedo and that this caused the alleged environmental harm. 63 Sectoral applications of the precautionary principle under specific regimes may adopt such or similar legal implications. 64 However, international state practice and precedents do not suggest that international law generally requires a state to prove that activities within its jurisdiction or control are environmentally safe. 65 In the recent Pulp mills on the river Uruguay case, the ICJ accepted that a precautionary approach “may be relevant” in the interpretation and application of the treaty in question. However, the court also stated that “it does not follow that it operates as a reversal of the burden of proof”. 66 The wording of the court is not clear as to whether this applies to the specific case or generally excludes a reversal.

The precautionary principle can cut both ways: From one point of view, scientific uncertainty is a reason to refrain from or slow down potentially harmful activities such as geoengineering.





From another perspective, scientific uncertainty regarding geoengineering should not be used as a reason to restrict geoengineering as a potential tool for helping to address global warming. Specific instances of the precautionary principle such as article 3(3) UNFCCC provide arguments in support of this second view - or at least against the notion that geoengineering would be against the precautionary principle. 67 Reading Article 3(3) UNFCCC at face value in this way, in support of geoengineering, would be unusual, but not evidently contrary to the wording. 68 This interpretation could also be supported to some extent by Article 4(1)(f) UNFCCC, 69 although this provision is not very specific and would only apply to geoengineering techniques that are regarded as mitigation or adaptation measures. 70 Against this background, recourse to the precautionary principle as a legal rule does not resolve the conflict between the objectives of avoiding the effects of global climate change vis a vis avoiding the risks of geoengineering - in particular as there are shades of grey between these two objectives. In contrast, Rickels et al argue that the precautionary principle can serve to balance conflicting objectives: In this view, because the precautionary principle(s) in different instruments can be satisfied to different degrees, they therefore allow for determining which degree of environmental damage can be accepted in order to advance the comprehensive goal of climate protection. 71 This view appears to boil down to an overall costBodle (2010) 307.

See for instance ITLOS case No.17, ”Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber)”, para 125-135, http://www.itlos.org; Jessen (2012) 77.

Birnie et al (2009) 158.

ICJ, Pulp mills on the river Uruguay, para 164.

Bodle (2010) 310-311; Rickels et al (2011) 102.

Bodle (2010) 310.

Requiring all Parties to employ appropriate methods “with a view to” minimising adverse effects of their mitigation and adaptation measures on the economy, public health and the quality of the environment Bodle et al (212) para 62.

Rickels et al (2011) 101-103.

Options and Proposals for the International Governance of Geoengineering benefit analysis of geoengineering across the board, but it is not clear why the legal effect of the precautionary principle should be to endorse this particular method. In addition, this view appears to contradict the findings that many environmental legal rules that could potentially apply to geoengineering are not open to “net” approaches.

While the precautionary principle still means many things in different contexts, 72 it can provide guidance on dealing with scientific uncertainty - so far mainly by procedural safeguards. On the other hand, it has been argued that if the precautionary principle is applied in isolation, there is a risk of perpetuating the scientific uncertainty that gives rise to its application in the first place. 73 As long as the precautionary principle embodies the core arguments both for and against geoengineering, all the common ground it can provide is to establish interpretative guidance and procedural safeguards for dealing with scientific uncertainty. At least in the current state of international law, the precautionary principle does not provide a sufficient legal tool for making essentially political decisions about conflicting objectives and managing risks. 74 5.1.2.3 Duty to undertake an environmental impact assessment Several treaties and international documents relevant to geoengineering contain an obligation or a reference to carrying out environmental assessments. The duty to conduct an environmental assessment is included in several treaties such as Article 14 CBD, Article 206 UNCLOS, Article 4(1)(f) UNFCCC (to some extent) and regional instruments such as the UNECE Espoo Convention, which also has a Protocol on strategic environmental assessment (SEA).

Notably, Article 14(1)(b) of the CBD provides a near-global obligation in this regard, to which CBD COP decision X/33 on geoengineering refers, and the CBD COP has developed guidelines for its implementation. 75 The LC/LP’s rules on ocean fertilisation are complemented by additional non-binding guidance including a risk assessment framework, which provides detailed steps for completion of an environmental assessment, including risk management and monitoring. 76 The LC/LP Assessment Framework is not legally binding in form or in wording. In addition, participation in the London Convention and London Protocol is not comparable to, for instance, the CBD or the UNFCCC in terms of number of Parties. However, the LC/LP Assessment Framework was incorporated by reference in the CBD COP10 decision on ocean fertilisation.

In addition, the ICJ has recently recognised that the accepted practice amongst states amounted to “a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource”. 77 Birnie et al (2009 155.

Rickels et al (2011) 102.

See also Birnie et al (2009) 161.

CBD DecisionVI/7, U.N. Doc. UNEP/CBD/COP/6/20 at 93.

Resolution LC-LP.2(2010) on the assessment framework for scientific research involving ocean fertilization, adopted on 14 October 2010. For the Assessment framework see the draft elaborated by the Scientific Group of the London Protocol and the Scientific Group of the London Protocol, LC/SG/32/15, Annex 2.

ICJ, Pulp mills on the river Uruguay, para 204-206.

Options and Proposals for the International Governance of Geoengineering While the ICJ left it to the states to determine the specific content of the impact assessment required, it specified some details, most notably including that the obligation involves continuous monitoring of the activity’s effect on the environment. As a legal rule in customary international law, this is an important development that might require clarification as to its precise implications.

In respect of SEA, there is numerous guidance in non-binding documents and treaty regimes such as the CBD, 78 but there is not sufficient evidence to assume a customary obligation to carry out SEA. The SEA Protocol to the Espoo Convention provides binding rules and entered into force in 2010, but its 23 European parties so far provide relatively small impetus to a global obligation. The ICJ judgment in the Pulp Mills case refers to particular industrial activities and does not necessarily establish a general requirement for a SEA. There is therefore no globally applicable obligation to integrate SEA of proposed geoengineering policies, plans or programmes into potential geoengineering policy development.



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