«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
Oslo Protocol, Article 2 (2). See also the definitions on Article 1 (11) and 1 (12). Parties to the Oslo Protocol are besides EU member states also Canada, Norway and Macedonia, see “Status of Ratification” http://www.unece.org/env/lrtap/status/94s_st.htm (31 March 2012).
Rowlands (2007) 318.
Options and Proposals for the International Governance of Geoengineering 2000, 2005 and 2010. Parties also appear to have implemented these obligations overall successfully. 154 With regard to reporting requirements, Article 5 of the Oslo Protocol contains the obligation to report periodically on the levels of sulphur emissions with temporal and spatial resolution. For the first time under the LRTAP regime, 155 the Oslo Protocol established an Implementation Committee with the mandate to address implementation of the Protocol and cases of potential non-compliance.
The latest protocol adopted under the LRTAP Convention, the Gothenburg Protocol, 156 also sets emission ceilings, including for sulphur, but follows a different approach than the Helsinki and Oslo Protocols. It addresses four specific effects, still including acidification; the emission ceilings for the control of the pollutions causing them are means to this end. 157 Article 2 of the Gothenburg Protocol requires its parties to ensure “as far as possible” that “in the long term and in a stepwise approach”, the depositions and concentrations by 2010 do not exceed specified critical levels. The Gothenburg Protocol, like the Oslo Protocol, sets specific targets for each party, ensuring that those parties, whose emissions have especially negative impacts on the environment or human health and whose emissions can be reduced in an economical fashion, have higher targets than others. 158 Revisions of the Gothenburg Protocol were intended to conclude at the thirtieth session of the LRTAP Executive Board between 30 April and 4 May 2012. 159 In sum, the Helsinki, Oslo and Gothenburg Protocols contain gradually strengthened emission ceilings for SO2. These targets apply economy-wide to parties and do not directly regulate the introduction of SO2 into the stratosphere. A party conducting geoengineering measures on its territory involving SO2 aerosols would have to account for these emissions, against its overall SO2 emissions ceiling. The geoengineering activity could therefore contribute to a breach of obligations under these protocols only insofar as the amount of SO2 emitted for the geoengineering measure could lead to a party exceeding its emissions threshold. This depends on the amount of SO2 injected into the stratosphere. 160 In conclusion, the LRTAP Convention on its own does not contain provisions that are specific enough to prohibit or significantly restrict introduction of SO2 into the stratosphere. The views expressed by some that such geoengineering activities would be „contrary to the spirit of LRTAP“ 161are legally beside the point. The LRTAP Convention establishes a framework of procedural obligations on information exchange and consultation among parties, which could generally apply to the introduction of SO2 into the stratosphere. As the introduction of SO2 into the stratosphere is likely to fall within the scope of the LRTAP Convention, this convention provides a platform for further regulation of the introduction of SO2 into the stratosphere. The three protocols relating to sulphur establish reporting obligations for parties. The introduction For an overview of the status of implementation in 2006 see UNECE (2007) 29.
Beyerlin/Marauhn (2011) 152.
See UNECE Website, available at http://www.unece.org/env/lrtap/status/99multi_st.html (28 March 2012).
See UNECE (2007) 36.
Beyerlin/Marauhn (2012) 153.
See decision 2011/1 (contained in document ECE/EB.AIR/109/Add.1) paragraph 3.
Lin (2011) 18 and Rickels et al. (2011) 90.
Bodansky (1996) 313. This view is also expressed in Umweltbundesamt (2011) 32.
Options and Proposals for the International Governance of Geoengineering of SO2 into the stratosphere would be restricted to the extent that it would lead to exceeding a party’s emission ceiling under the protocols. Generally, the LRTAP regime is successful with high levels of implementation, but its limited geographical scope has to be taken into account.
188.8.131.52 Ozone Convention and Montreal Protocol According to science, the injection of H2S and SO2 into the stratosphere could result, at least seasonally and regionally, in increased ozone depletion. 162 Therefore, the Vienna Ozone Convention and its Montreal Protocol could potentially apply to this form of geoengineering.
Both treaties have been ratified by almost all states. 163 Article 2 (1) of the Ozone Convention requires its parties to take “appropriate measures” to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer. To this end, parties to the Ozone Convention are further obliged, among others, to develop, in accordance with their means and capabilities, appropriate laws and policies “to control, limit, reduce or prevent human activities” if they are at least likely to have adverse effects resulting from modification or likely modification of the ozone layer. 164 The Ozone Convention does not define which substances are considered as modifying or likely to modify the ozone layer, for the purpose of its provisions. However, Paragraph 4 of Annex I to the Ozone Convention contains a list of substances which “are thought to” have the potential to modify the chemical and physical properties of the ozone layer; 165 the Ozone Convention is therefore more specific than the LRTAP Convention. 166 Neither H2S nor SO2 are included in this list. As the list is non-exhaustive, this does not mean that activities involving these substances are not covered by the Ozone Convention.
At the same time, the fact that an activity modifies or is likely to modify the ozone layer alone does not trigger the obligation in Article 2 (1) of the Ozone Convention. 167 This is not made entirely clear in existing studies on the regulatory framework for geoengineering measures. 168 The activity would, in addition, have to result or be likely to result in “adverse effects”. Such effects are defined in Article 1 (2) as “changes in the physical environment or biota, including changes in climate, which have significant deleterious effects on human health or on the composition, resilience and productivity of natural and managed ecosystems, or on materials useful to mankind”. Thereby, the Ozone Convention requires a certain intensity of effects – they have to be “significant”, which appears to differ at least from just any deleterious effects. 169 The See with further references: Williamson et al (2012) 11 and 49.
The Vienna Convention and the original 1987 Montreal Protocol have 197 parties. Subsequent amendments to the Montreal Protocol have slightly fewer parties; cf.
Article 2 (2)(b) Ozone Convention. Article 2 (1) and 2 (2) are also discussed by Zedalis (2010) 22, as relevant to the injection of aerosols into the stratosphere.
For a more detailed discussion of this list see Rickels et al. (2011) 91.
Heintschel van Heinegg (2004) 1013.
In support of this argument see Zedalis (2010) 23.
For example, ETC (2010) 41.
Larsson (1999) 139.
Options and Proposals for the International Governance of Geoengineering injection of H2S and SO2 into the stratosphere could, by modifying the ozone layer, lead to an increase in ultra violet radiation to reach the Earth’s surface. The additional radiation, in turn, could potentially cause negative effects, especially on the productivity of ecosystems. 170 As with obligations in other treaties, it could be asked whether “adverse effects” could be interpreted as meaning “net” effects. In this case, adverse impacts of this geoengineering activity would be an “adverse effect” in the sense of the Ozone Convention only if they outweigh the negative impacts of climate change avoided by geoengineering. Some argue that although scientific models suggest that “adverse effects” will be possible, the Ozone Convention as such should not apply in light of the overall purpose of geoengineering. 171 Zedalis emphasizes that “[b]arring some untoward and unintended twist of fate, however, the palpable objective driving geoengineering is far from one planned to have or likely to have an adverse effect”. 172 However, it has been argued that the wording and ordinary meaning of the Ozone Convention, as the primary reference for interpretation under Article 31 VCLT, leave no room for a “net” approach to “adverse effects”. 173 Whether the effects are expected to be “significant” has to be established by science. It should be noted, however, that Article 2 (1) as well as Article 2 (2) (b) both refer to effects that are “likely to” occur. Therefore, it is not necessary that these effects are proven. 174 In sum, the injection of H2S and SO2 into the stratosphere could constitute a human activity, which modifies or is likely to modify the ozone layer and cause or is likely to cause adverse effects, according to Article 2 (1) of the Ozone Convention 175.
This result, however, does not trigger strict obligations for parties under the Ozone Convention. 176 Article 2 (1) of the Ozone Convention does not require its parties to take concrete measures to reduce ozone-depleting substances like H2S and SO2 could be considered to be. Article 2 (2) of the Ozone Convention, which obliges parties, among others, to use “systematic observations, research and information exchange” to achieve a better understanding and assessment of the effects on human activities on the ozone layer, and to adopt appropriate legislative or administrative measures, contains a chapeau paragraph which softens these requirements considerably. They only have to adhere to these obligations “in accordance with the means at their disposal and their capabilities”. 177 Article 2 (2) (b) also allows parties a wide discretion in determining which measures are considered to be “appropriate”. Therefore, it can be argued that the Ozone Convention does neither prohibit or significantly restrict the introduction of H2S and SO2 into the stratosphere, nor does it contain a Williamson et al (2012) 11 and 49.
Reichwein and Wiertz (2010) 22.
Zedalis (2010) 23.
Rickels et al. (2011) 91.
Rickels et al. (2011) 91.
For a restrictive evaluation of the potential effects of this geoengineering measure see Barrett (2008) 45.
Beyerlin/Marauhn (2011) 155. Umweltbundesamt (2011) 34, uses the term „contradict“ and might therefore be misleading in this regard („Die Ausbringung von Schwefelaerosolen würde daher den Vorgaben des Wiener Übereinkommens widersprechen, wenn anzunehmen ist, dass dadurch z. B. wegen der ausgebrachten Mengen die Ozonschicht geschädigt wird und dadurch Gesundheitsbeeinträchtigungen verursacht werden“ (emphasis added).
See also Beyerlin (2000) 168; Heintschel van Heinegg (2004) 1013.