«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
Zedalis (2010) 23, also emphasizes that the LRTAP Convention will not be applicable in case this requirement is not fulfilled – completely independent from a political judgment about the desirability of geoengineering techniques.
See for a similar argument Rickels et al. (2011) 90.
Zedalis (2010) 21.
Zedalis (2010) 22.
Rickels et al. (2011) 90, also state that the enumeration of possible effects is not exhaustive but merely exemplary.
This is assessment is shared by Rickels et al. (2011) 90 and Zedalis (2010) 22.
Williamson et al (2012) 45.
Williamson et al (2012) 46.
Williamson et al (2012) 47.
Williamson et al (2012) 47.
Williamson et al (2012) 47.
Williamson et al (2012) 47.
Options and Proposals for the International Governance of Geoengineering against future negative impacts of climate change, which this measure avoids. 133 If interpreted in this way, “deleterious effects” would be determined as “net” effects. The LC/LP Resolution on the Assessment Framework for Scientific Research Involving Ocean Fertilization, for example, provides to a certain degree for such weighting. 134 This line of argument, however, is not reflected in the text of the LRTAP Convention. Rickels et al. discuss the same issue through a related argument: They ask how, for the case of a geoengineering measure, the potentially arising conflict between the objectives of two Conventions could be resolved. 135 In case of the LRTAP Convention, it could be argued along those lines that the objectives of the LRTAP Convention, including avoiding negative effects of an introduction of H2S and SO2 into the stratosphere, clashes with those of the UNFCCC, which include avoiding future negative impacts of climate change. While suggest to employ the precautionary principle to balance the conflicting objectives, the LRTAP Convention, 136 in its Article 1 (a), only refers to specific effects resulting from the introduction of substances or energy into the air and contains no explicit reference to the precautionary principle. 137 Therefore, regardless of the whether this approach is generally suitable, it does not appear to be justified in the case of the LRTAP Convention.
Also, the definition in Article 1 (a) of the LRTAP Convention does not require a minimum scale of deleterious effects.
It can be concluded that the introduction of H2S and SO2 into the stratosphere could, depending on the actual effects of such measures, potentially harm living resources and ecosystems, human health or interfere with other uses of the environment. As the elements describing “deleterious effects” are not cumulative, one of these elements would be sufficient to constitute “air pollution”. Other studies, also suggest that it is not possible to rule out that the injection of sulphate aerosols into the stratosphere will result in “deleterious effects“. 138 As the existence of deleterious effects is a precondition for the applicability of most of the LRTAP Convention’s obligations to the injection of sulphate aerosols into the stratosphere, this needs to be assessed on an on-going basis, as new scientific results about negative effects of this geoengineering measure become available.
Even if the introduction of H2S and SO2 into the stratosphere constitutes “air pollution” or “transboundary air pollution” within the meaning of the LRTAP Convention, this does not imply that such activities would be forbidden or restricted under its provisions. In fact, the LRTAP Convention does not prohibit any “air pollution”, article 2 merely requires parties to “endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution” (emphasis added). While this is a legally binding obligation, 139 its content is much softened by the terms “as far as possible” and Zedalis (2010) 23 emphasizes that “the palpable objective driving geoengineering is far from one planned to have or likely to have an adverse effect”.See also Reichwein and Wiertz (2010) 22.
See Resolution LC-LP.2 (2010). On the development of the assessment framework see Ginzky (2010) 73-74; for a discussion of the assessment framework in the context of the CBD see Bodle (2011) 320.
Rickels et al. (2011) 91.
See Rickels et al. (2011) 101.
In their discussion of the LRTAP Convention, Rickels et al. do note that the Convention does not contain an explicit reference to the precautionary principle, see Rickels et al. (2011) 90.
Rickels et al. (2011) 26.
In contrast, Beyerlin (2000) 155 states that this obligation only has a weak legal binding effect. However, a distinction needs to be made between the legal status of an obligation (part of a treaty) and the specificity of its content. As Klabbers (1996) 181, states: “ […] law can be more or less specific, more or less exact, more or Options and Proposals for the International Governance of Geoengineering “gradually”. Drafted in a similar fashion, Article 3 requires parties to develop, “by means of exchanges of information, consultation, research and monitoring, […] without undue delay policies and strategies which shall serve as a means of combating the discharge of air pollutants”. 140 It would be difficult to argue that this general provision entails an obligation to develop specific legal measures prohibiting the injection of aerosols in the stratosphere.
Referring to these obligations as a “prohibition” seems misconstrued in this respect. 141 Similarly vague, Article 6 of the LRTAP Convention requires parties “to develop the best policies and strategies including air quality management systems and, as part of them, control measures compatible with balanced development, in particular by using the best available technology which is economically feasible […]”. 142 The LRTAP Convention also contains provisions on information exchange and consultation, which are relevant to the introduction of H2S and SO2 into the stratosphere. In Article 8(a), the LRTAP Convention requires its parties to exchange information on “[d]ata on emissions […] of agreed air pollutants, starting with sulphur dioxide, […] or on the fluxes of agreed air pollutants, starting with sulphur dioxide, across national borders, […]”. Under this article, a party may have to provide a certain degree of transparency regarding the geoengineering measures it conducts, which involve SO2. In the context of transboundary pollution, Article 5 of the LRTAP Convention requires that parties, which are “actually affected by or exposed to a significant risk of long-range air pollution” conduct consultations with (potentially) polluting states.
Depending on its actual impacts, the introduction of H2S and SO2 into the stratosphere would, as explained above, likely fulfill all the elements of the definition in Article 1 (a) of the LRTAP Convention and constitute air pollution or even transboundary air pollution as defined by Article 1 (b). However, the obligations of the LRTAP Convention regarding air pollution are weak, 143 and are unlikely to restrict such geoengineering activities in a significant way. 144 In addition, as mentioned above, the LRTAP Convention is not explicitly based on the precautionary approach, which could narrow the potential for a more flexible interpretation.
However, some of its protocols explicitly include this approach, 145 and also explicitly regulate
less determinate, more or less wide in scope, more or less pressing, more or less serious, more or less farreaching; the only thing it cannot be is more or less binding.” LRTAP Convention, Article 3.
Rickels et al. (2011) 90: “ In the absence of reference to aspects of precaution, it is necessary that the negative environmental impacts caused by the introduction of aerosols or particles into the stratosphere are verified before the prohibition contained in CLRTAP can become applicable.“ See Beyerlin (2000) 155 and (Birnie et al (2009) 345.
Similar assessment by Beyerlin/Marauhn (2011) 150; see also Lin (2011) 18.
The Congressional Research Service (2010) concluded regarding the LRTAP Convention “It is uncertain which geoengineering activities CLRTAP would regulate, or how such regulation would be implemented.” As showed in the sections above, it appears possible to discuss the applicability and obligations under the LRTAP Convention for the injection of aerosols in the atmosphere.
Cf. the preambles of the 1994 Oslo Protocol on Further Reduction of Sulphur Emissions; 1998 Aarhus Protocol on Heavy Metals; 1998 Aarhus Protocol on Persistent Organic Pollutants (POPs); 1999 Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-level Ozone.
Options and Proposals for the International Governance of Geoengineering The Helsinki Protocol, the first protocol to the LRTAP Convention, adopted in 1985, aimed at the reduction of sulphur emissions or their transboundary fluxes by at least 30% by 1993, using 1980 as base year. 146 In contrast to the LRTAP Convention, the Helsinki Protocol established a specific target to reduce sulphur emissions or their transboundary fluxes. 147 The protocol was negotiated as a response to damage caused by acid rain – which may also be caused by the introduction of H2S and SO2 into the stratosphere, and, as discussed above, potentially harm, at least in specific cases, ecosystems. However, the reduction target in the Helsinki Protocol is outdated. The – at this time – 21 parties to the protocol all achieved their reduction targets for 1993, with all parties achieving more than 50% and 11 parties more than 60%. 148 In addition, the Helsinki Protocol also established reporting obligations, 149 which would include emissions resulting from the introduction of H2S and SO2 into the stratosphere. These obligations continue apply after 1993. For those parties that became parties to the Oslo Protocol (e.g. Belarus, Estonia, Russian Federation, and Ukraine), the reporting obligations of the Oslo Protocol factually superseded the Helsinki protocol. 150 The Oslo Protocol, adopted in 1994, obliges its 29 parties to reduce their sulphur emissions further – compared to the obligations of parties under the Helsinki Protocol. Article 2 (1) of the Oslo Protocol requires that “depositions of oxidized sulphur compounds in the long term do not exceed critical loads for sulphur” as listed in Annex I to the Protocol as “critical sulphur depositions in accordance with present scientific knowledge”. 151 This obligation serves as a long-term goal; its content is, however, softened by qualifications referring to „critical sulphur depositions“, and „as far as possible, without entailing excessive costs“. While the Helsinki Protocol set a target for all its parties to reduce their sulphur emissions by 30% by 1993, the Oslo Protocol contains in its Annex II individual, mandatory targets for each of its 29 parties. 152 This approach was chosen to achieve the highest possible reduction of sulphur emissions. The individual targets were developed based on the “regional acidification information and simulation model” of the International Institute for Applied Systems Analysis, which was used to estimate the vulnerability of ecosystems across Europe to pollution. 153 As a first step to implement the objective expressed in Article 2 (1) of the Oslo Protocol, emission ceilings are listed in Annex II, which become gradually more stringent, for most parties from the years The Helsinki Protocol has 25 Parties, see http://www.unece.org/env/lrtap/status/85s_st.htm (31 March 2012).
Helsinki Protocol, Article 2.
UNECE (2007) 24.
Helsinki Protokoll, Article 4 “Each Party shall provide annually to the Executive Body its levels of national annual sulphur emissions, and the basis upon which they have been calculated” and Article 5 “EMEP shall in good time before the annual meetings of the Executive Body provide to the Executive Body calculations of sulphur budgets and also of transboundary fluxes and depositions of sulphur compounds for each previous year within the geographical scope of EMEP, utilizing appropriate models. In areas outside the geographical scope of EMEP, models appropriate to the particular circumstances of Parties therein shall be used”.
UNECE (2007) 24. The reporting obligations are contained in Article 5 of the Oslo Protocol.
However, the obligation is softened by qualifications referring to „critical sulphur depositions“, and „as far as possible, without entailing excessive costs“.