«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
Adverse impacts to biodiversity resulting from desert reflectors, as well as other geoengineering measures, could be contrary to the CBD’s overarching objective of conserving biodiversity and to these general conservation responsibilities. However, given the broadness of the objectives, it is not clear which adverse impacts on biodiversity would actually constitute non-conformity with the CBD. The same goes for the few more substantive obligations under the CBD. An assessment would have to be made in each individual case considering the scale of the desert reflectors, causation and the actual specific legal content of the CBD’s obligations.
Impacts to biodiversity may also interfere with the CMS, which aims at protecting migratory species, species’ habitats and migration routes. The treaty’s 116 Parties cover applicable areas for desert reflector siting including most of Saharan Africa. 233 For species listed as endangered under Appendix I, Parties have an obligation to conserve species’ habitats and to prevent or minimize factors contributing to endangerment (art. 3(4)). Parties are also required to prevent, remove, or minimize obstacles to migration (art. 3(4)). Installation of desert reflectors that serves to reduce or modify habitat, or where siting obstructs migratory pathways of endangered species, could contravene these provisions. As in the case of the CBD and other treaties for nature and ecosystems protection, the obligations of the CMS Convention are broad and general in nature 234, and it is difficult to determine in advance and abstract which particular activity involving desert reflector would not be in conformity with the CMS. For desert reflectors sited in areas of special cultural or natural heritage, the World Heritage Convention, could also apply. The World Heritage Convention seeks to protect both natural and cultural sites by obligating Parties to protect and conserve specially listed sites (art. 5), and more broadly, to do everything possible to identify, conserve, protect, and transfer to future generations natural heritage located within jurisdictions, regardless of whether the site is formally listed (art. 4). Examples of listed desert sites that require protection by Parties, both those whose territory the site is situated and to other State Parties, include Aïr and Ténéré Natural Reserves in Niger, and Tassili n'Ajjer in Algeria, both in the Sahara. Still, application would be limited as relatively few desert sites have been listed under the Convention. 235 The United Nations Convention to Combat Desertification (UNCCD) creates a framework for action to combat desertification and mitigate the effects of drought, taking a “bottom up” approach that focuses on national action plans and implementing local remedial measures such as drought contingency plans and resources conservation. 236 While geographically relevant, desert reflectors are unlikely to breach a specific and binding commitment.
See http://www.cms.int/about/Partylist_eng.pdf, As of 18 April 2012.
Birnie et al (2009) 684.
Hunter et al (2007) 1222.
Options and Proposals for the International Governance of Geoengineering 5.1.6 Installations in outer space Another SRM concept that has been discussed involves outer space: placing installations in outer space in order to reduce the incoming solar radiation on earth. There are different proposals which can be clustered in two groups: First, some proposals include installations positioned in the near-earth orbits, such as free-orbiting or satellite-supported mirrors, scatterers, de- or reflectors or other reflective material/substances. The installation could also be space dust or parasol spacecraft rings or swarms that would be placed in the equatorial plane. 237 Second, installations could be positioned in further away in an area between earth and sun which is known as inner Lagrange point (L1). At this position, gravitational attraction of sun and earth are equal. Less material loss due to weaker light-pressure forces would allow for less material-intensive and lighter weight scattering structures. Proposals include a superfine mesh of aluminum or swarms of reflecting discs. 238 Space-based technologies aim at blocking solar radiation before reaching the earth in order to reduce the atmospheric temperatures. Their actual impact and effectiveness would depend much on their design, material, location and quantity. 239 There is no experience to draw from, as none of these technologies have been implemented so far. Their realisation would require enormous technological and logistical demands including costs for research, launch and maintenance. Against this background, it is unlikely that geoengineering in outer space will be carried out in the near future. 240 Moreover, there are a number of uncertainties on their intended and unintended impacts on the climate system. The effects of the reduction of sunlight reaching the earth have not been fully assessed yet. The impacts on biodiversity of SRM techniques that aim to achieve uniform dimming (such as space-based geoeongineering technologies) are not fully understood and could have a broad range of predictable and unknown side effects. These include interference of the atmospheric cycling of nutrients, their deposition and recycling processes, in soil and in the ocean. It is also assumed that these techniques do not have the potential to restore temperatures at the regional level evenly, which would lead to a significant geographical redistribution of climatic effects. 241 This would also affect the global hydrology. Reduced sunlight could, for example, disturb the Asian and African monsoons which are crucial to food supplies in those regions. 242 Another risk is the rapidness inherent to this concept: atmospheric temperatures would respond very quickly, if solar radiation was changed on a large scale. If the application was interrupted, e.g. by a political decision to phase out its deployment, there could be a very quick fall-back to much warmer temperatures with unknown consequences. 243 Potentially, all space-based geoeongineering concepts fall within the scope of international space law. This would be the case if they were carried out in outer space, i.e. beyond airspace.
See for instance Mautner (1991).
Overview of all proposals in Royal Society (2009) 32 et seqq., United States Government Accountability Office (2011) 36 et seqq., McInnes (2010).
Bracmort et. al. (2011) 20.
Rocal Society (2009) 32, Bracmort (2011) 19.
Williamson et al (2012) 45.
Lin (2009) 6. On aerosols see Robock (2008) 13; Robock (2010).
Royal Society (2009) 32, Williamson et al (2012) 48 call this a ‘termination effect.’ Options and Proposals for the International Governance of Geoengineering The main difference between these areas is that under international law, states generally enjoy sovereignty in the airspace above their territories, whereas outer space is not subject to the jurisdiction of any state. However, there is no clear physical line between outer space and airspace. Furthermore, neither space law nor air law defines at which height outer space begins. This issue of definition and delimitation has been discussed for decades without a clear agreed outcome. It has been on the agenda of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the main international institution in this field, since 1960s. 244 There are a number of conceptual approaches to define the boundaries of outer space;
including the view that many years of practice had shown that there is no need for a clear definition. However, the area at 110 km above sea level is generally regarded as being part of outer space. 245 Moreover, this lack of clarity on the boundary is not decisive for geoengineering. Solar radiation measures would be carried out either below 80 km, i.e. in the mesosphere or lower, or clearly above 110 km. All discussed space-based technologies would be deployed beyond that height and therefore fall within the scope of space law. 246 International space law essentially consists of any applicable international customary rule, 247 any international customary space law 248 as well as international treaties focusing on outer space. The latter have been designed and adopted since the 1960s – at a time where exploration and use of the outer space was at its beginning and not all activities and their impacts were foreseen. 249 The treaties which are potentially relevant are the Outer Space Treaty, the Liability Convention, the Registration Convention, the Moon Treaty, the Liability Convention and the Rescue Agreement. The Outer Space Treaty lays down basic and fundamental principles. Its rules on many matters rather broad and non-specific. Therefore it has been complemented by additional agreements that include more detailed provisions on certain subjects. 250 Additionally, there are a number of UN General Assembly Resolutions on space law. These are not per se legally binding, but they can have legal relevance for interpreting binding rules, and they can reflect or evolve into binding customary law. 251 Committee on the Peaceful Uses of Outer Space, ‘Historical summary on the consideration of the question on the definition and delimitation of outer space’, Report of the Secretariat of 18 January 2002, A/AC.105/769.
Proelß (2010) 443, Hobe (2009) 32 suggest the following definition: ‘Outer space encompasses the terrestrial and the interplanetary space of the universe, whereby the delimitation of the Earth space around the Earth to outer space starts at least 110 km above sea level.’ Some authors argue that this line has become accepted as customary international law, cf. Vitt, E (1991) 46.
See also Proelß/Güssow (2011) 14.
cf. Article III Outer Space Treaty, Hobe (2009) 67.
Graf Vitzthum in: Graf Vitzthum (2010) 62.
Lafferranderie (2005) 6.
Zedalis (2010) 23, Malanczuk (1991) 781.
Hobe (2009) 27, the most important are: Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (UNGA Res. 1962 (VIII) of 13 December 1963); Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (UNGA Res. 37/92 of 10 December 1982), Principles Relating to Remote Sensing of the Earth from Outer Space (UNGA Res. 41/65 of December 1986); Principles Relevant to the Use of Nuclear Power Sources in Outer Space (UNGA Res. 47/68 of Options and Proposals for the International Governance of Geoengineering In addition, there are other institutions dealing with space activities under their particular mandate, e.g. the International Telecommunication Union (ITU), the Committee on Space Research (COSPAR), the Inter-Agency Space Debris Coordination Committee (IADC) or the Committee on the Earth Observation Satellites (CEOS). Important international forums that contribute to the further development of international space law include the International Institute of Space Law (IISL) and the Space Law Committee of the International Law Commission (ILA). So far, geo-engineering does not seem to be of the agenda of the relevant institutions addressing international space law. Climate change is one of the topics addressed by COPUOS. However, the focus has been on using space applications in order to observe climate change consequences. 252 The main basis for international space law is the Outer Space Treaty. It governs activities of states in the ‘exploration and use’ of outer space. Its 101 Parties include the main space nations. 253 In the literature, the legal status of outer space and the celestial bodies, as provided for in the treaty, is generally considered to be customary international law. 254 The basic principles of the Outer Space Treaty are not comprehensive. Moreover, important terms such as ‘exploration and use’, ‘outer space’, ‘space objects’, ‘damage’ and ‘harmful contamination’ are not defined. 255 Article I of the Outer Space Treaty generally deals with the main space activities, i.e.