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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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Typically, geoengineering techniques are subdivided into overarching categories of either carbon dioxide removal (CDR) or solar radiation management (SRM). The CDR category includes techniques that are intended to remove CO2 from the atmosphere and therefore one of the main contributors to climate change. CDR techniques involve two steps: removal of CO2 from the atmosphere and subsequent long-term storage of the captured CO2 in order to take it out of circulation for a climatically relevant period. Several techniques are being discussed for each step. SRM techniques aim at changing the earth’s energy balance by reducing the incidence and subsequent absorption of short-wave solar radiation. There is no consensus as to the full scope of activities that ought to be included under these categories and as geoengineering, and a number remain subject to debate, e.g. afforestation and carbon capture and storage.

Options and Proposals for the International Governance of Geoengineering

Contemporary definitions have evolved over time and share commonalities, although there is no standard or uniform use. However, the majority of existing geoengineering definitions share the same primary elements of activity, purpose, intent, and scale. The purpose of including “intent” and “purpose” as a requirement is to be exclusive, eliminating activities where the resulting climate impacts are e.g. cumulative or perceived to be collateral, or have climate-warming impacts. However, from a normative perspective it is questionable why the same activity would be or would not be considered geoengineering, merely because it serves a certain subjective purpose or not - the impacts are the same. In addition, it is not clear why some definitions use both intent and purpose. Conventional definitions identify geoengineering as “large” in scale, relating to more to the magnitude of impacts, but also to the size of the efforts, although altering the climate would more than likely necessarily entail a sizeable level of activity. However current definitions mostly fail to specify a standard of measurement for what is “large.” While all existing definitions have strengths and weaknesses, the definition developed by an expert group in the impact study for the CBD appears to the most convincing to date: “A deliberate intervention in the planetary environment of a nature and scale intended to counteract anthropogenic climate change and/or its impacts.” However, the definition has weaknesses that would make it insufficient for a regulatory purpose if applied by itself.

Alternatively, geoengineering could be preliminarily defined as: “Activities designed and undertaken with the purpose of producing environmental change on a regional or global scale, primarily for counteracting anthropogenic climate change or reducing its warming impacts, through, inter alia, removal of greenhouse gases from the atmosphere or reducing solar insolation.” We suggest that any definition, including the CBD’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, supplementary option is to envisage a process or institution providing further guidance in advance or on a case by case basis.

1.2 The existing legal framework

1.2.1 International Law Besides the established traditional sources of international law, this study also looks at instruments and governance tools that may be not binding in the 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.

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. However, it might be difficult to show which precise effects resulted from the particular geoengineering activity and which harm it caused. In addition, although the obligation to respect the environment requires a due diligence standard on a case by case

Options and Proposals for the International Governance of Geoengineering

basis, 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. It would also be legally difficult to demand provisional measures on the basis of a potential future breach of this obligation before the geoengineering activity has already taken place.

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. Conceptual legal uncertainties as well as its openness regarding content make it difficult to draw conclusions without imputing desired outcomes. 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.





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-à-vis avoiding the risks of geoengineering. All the common ground it can currently 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.

Several treaties and international documents relevant to geoengineering contain an obligation or a reference to carrying out environmental assessments. 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. The ICJ has recently recognised that the accepted practice amongst states amounted to a general “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”. 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.

Unless there are specific rules taking precedence, the rules on state responsibility apply to all existing or new obligations regarding geoengineering and provide a general framework for determining the legal consequences of breaches. It is unclear whether a state could avoid responsibility by relying on circumstances precluding wrongfulness, in particular necessity. The ILC Articles on State Responsibility do not include institutions or procedures to enforce these obligations. In addition to the rules on state responsibility, the ILC has also pursued concepts addressing harmful effects of hazardous acts that do not contravene international law.

However, at this stage these proposals do not amount to customary law and it remains to be seen to what extent they could influence legal aspects of geoengineering.

Although under the general rules on state responsibility states are generally not responsible for the conduct of private actors, a state may be responsible for its own conduct in relation to the conduct of private actors if it failed to take necessary measures to prevent the conduct or its effects. Whether and to what extent a state has an obligation to take such measures depends on the obligation in question and the particular case.

Other concepts mentioned in the environmental debate are e.g. sustainable development and inter-generational equity. Although these and other concepts are frequently mentioned in key instruments and documents, there is no consensus about their legal status and precise content.

Options and Proposals for the International Governance of Geoengineering

The ENMOD Convention is a special case, as it addresses large scale modifications of the environment, albeit in the context of international humanitarian law. Although the ENMOD Convention is not directly applicable in peacetime and was not designed to govern contemporary geoengineering technologies, it is argued that some of its concepts could be considered and useful in addressing geoengineering governance.

Besides decisions on ocean fertilisation, the CBD has also addressed reengineering in general in two COP decisions 2010 and 2012. Decision X/33 of 2010, para 8(w) appears to be the only allencompassing governance measure at this level to date: Although the CBD geoengineering decision is not binding, it represents the consensus of 193 parties - albeit not including the US.

As a result of political compromise, the language of the decision text is not entirely clear. The core of the operative part of paragraph 8(w) is the guidance that no climate-related geoengineering activities that may affect biodiversity take place. It is difficult to imagine geoengineering activities that reach a scale sufficiently large to fulfil the definition, but do not have any effect on biodiversity. The decision thus covers all geoengineering techniques currently discussed.

The CBD decision’s intended restriction of geoengineering appears to be subject to three provisos: First, the operative part as a whole is worded as a transitional measure intended to apply “in the absence of science based, global, transparent and effective control and regulatory mechanisms for geoengineering”. Second, the restriction is to apply “until there is an adequate scientific basis on which to justify” geoengineering activities, which includes a comprehensive risk assessment. Third, it exempts small-scale scientific research studies, provided that they fulfil certain conditions. With regards to implementation, it appears to be subject to the determination of each Party whether the conditions for the second and third proviso are met.

The subsequent CBD COP decision XI/20 of 2012 does not add normative content over and above decision X/33. It might be regarded as a step backwards in terms of clarity, but it makes small steps towards providing elements of a governance framework. Besides the on-going debate on semi-legal and de facto implications of COP decisions within treaty regimes, the decisions also send a political signal that would be difficult to ignore in practice, solely on the grounds that they are not binding.

In accordance with the terms of reference, ocean fertilisation is not addressed in the legal analysis of specific geoengineering techniques, but we include it in our analysis of governance options, because the existing regulatory efforts on this area provide an important precedent and potential governance model.

Stratospheric aerosol injection: It can reasonably be argued that stratospheric aerosol injection by introducing H2S and SO2 into the stratosphere is at present not as such prohibited or significantly restricted by the main international treaties governing the emission of those substances. Although the impacts of this geoengineering technique could also be addressed under international law in the area of biodiversity protection, the obligations of the relevant treaties do not establish clear and precise obligations that would allow for determining potential infringements in

Abstract

at this stage.



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