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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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Apart from these potential technical needs for governance, some argue that enabling research could be a specific objective of a governance framework in a broader sense. There are two aspects to this: First, “enabling research” could merely mean that a governance framework for a certain topic should generally not stifle desired and acceptable research, a concern that has been raised in the governance debate. 478 Second, it could also mean that a governance framework should actively foster more geoengineering research. The reasoning is a scenario in which inadequate research funding leads to the inability to respond to catastrophic events. On this basis it is argued that international governance should be designed to encourage national spending, develop cost-sharing arrangements even such as international burden-sharing, and incentivize private investment. In addition, it is argued that international governance would generate legitimacy for this research area. 479 From a general governance perspective, this approach could mean a trade-off in which geoengineering research gains legitimacy, awareness and funding. In return, the public gains some transparency and control over what is happening in this area.

However, making this much broader objective of actively fostering research a governance objective appears to presuppose the policy choice that research should be pursued actively and strategically for the specific purpose of being ready for using geoengineering. Although the distinction between merely not stifling research and actively pursuing it might be difficult to draw, the latter appears to be close to the “slippery slope” argument and lock-in scenario, in which research at least factually paves the way for future deployment as a desirable outcome.

This could send an important policy signal away from mitigation and imply another trade-off.

Lane (2010) 53.

Bracmort et al (2010) 19-20; Gordon (2010) ii.

Bodansky (2012) 10.

Options and Proposals for the International Governance of Geoengineering In order to leave this implicit policy choice open, we do not consider actively fostering research to be a governance objective.

6.3.3 How to regulate and design governance The reasons for geoengineering governance outlined above are based on the current scientific knowledge on geoengineering concepts as well as the current public debate and an assessment of their wider implications e.g. for environmental risks and climate policy. Against this background, we would disagree that “it is almost impossible to determine governance requirements until the shape of any of the technologies under consideration is better known.” 480 A number of governance requirements already follow from the reasons outlined above as to why governance is considered necessary or desirable.

6.3.3.1 Precautionary approach The scientific uncertainties regarding most geoengineering concepts, combined with their purpose of having global impacts and their different transboundary risks, call for a precautionary approach. This is not a self-standing objective but a means to the closely linked end of avoiding environmental and other impacts. It is less relevant for research at the modelling and laboratory stage, but already applies to field experiments. The intensity of safeguards required will mainly depend on the geoengineering technique and the scale of the activity in question.

While this is a central aspect of geoengineering governance, the different views regarding its specific implications and its normative anchoring in international law have implications for governance design, e.g. when considering political buy-in. There is a risk that a specific governance approach clearly or implicitly endorses a particular but controversial aspect of the precautionary approach. This could jeopardise the buy-in from states and other actors that have different views. This risk has to be considered. On this basis, and for the purpose of developing governance options, it might be appropriate to detach the specific legal problems regarding the precautionary approach and instead see it as general approach to deal with scientific uncertainty. It at least provides reason and guidance for establishing procedural safeguards for dealing with scientific uncertainty regarding the potential impacts of geoengineering.

From a broader perspective, the precautionary principle on its own does not resolve a conflict between the objectives of avoiding the effects of global climate change vis a vis avoiding the risks of geoengineering. This is likely to be a political choice.

6.3.3.2 Political feasibility and buy-in An international governance framework should in principle aim at bringing on board as many states and other actors as possible, in particular those states that are likely to be capable and willing of pursuing geoengineering. This could contribute to avoiding impacts as well as to avoiding political conflict. Of course this criterion involves political assumptions, assessments and judgments about what could politically be feasible. More specifically aiming at buy-in in the sense of “acceptance” of the governance framework has several aspects, e.g. participation in the regime in the first place as well as acceptance of decisions taken within the regime and ensuring its implementation. In addition, governance can gain acceptance and buy-in across Rayner (2010) 62.

Options and Proposals for the International Governance of Geoengineering instruments, e.g. parties to the LC that are not also parties to the LP could for political reasons nevertheless consider to adhere to governance measures under the latter instrument.





However, political buy-in is only a means to an end and might also be subject to trade-offs. If other governance criteria and objectives needed to be unacceptably compromised, then the costs of ensuring participation could be considered to be prohibitive. It needs to be considered under which conditions it could be worth it not to have some key actors on board - because the trade-off between ensuring their participation and not fulfilling other governance criteria might be unacceptable.

6.3.3.3 Climate context and „moral hazard“ Geoengineering governance should avoid undermining efforts to reduce emissions. Most proponents of geoengineering stress that it is no substitute for reducing emissions, and that geoengineering proposals are primarily considered as complementary to other efforts to limit human-induced climate change. 481 In a 2012 decision, the CBD’s COP emphasised “that climate change should primarily be addressed by reducing anthropogenic emissions by sources and by increasing removals by sinks of greenhouse gases under the United Nations Framework Convention on Climate Change, noting also the relevance of the Convention on Biological Diversity and other instruments.” 482 This criterion is to address a plausible “moral hazard” argument that a geoengineering debate and activities have the potential to send political signals towards a departure from emission reductions, and to obstruct the climate change negotiations. For instance, introducing geoengineering would add another layer to the already over-complex climate negotiations.

The link between geoengineering activities and reducing emissions is further complicated by a potential scenario in which states might push for crediting some geoengineering techniques.

This is closely related to the question how geoengineering activities would fit into the established categories of “mitigation” and “adaptation” in international climate change law, in particular the few rules under the UNCCC and the Kyoto Protocol that could be of relevance to geoengineering. 483 A narrow view might hold that geoengineering does not easily fit into these categories: While all geoengineering techniques are intended to counteract climate change and its effects, they do not address emission reductions, and basically they do not address how to adapt to a changed climate. 484 Yet the strict distinction is not always clear: Some geoengineering approaches could be considered as climate change mitigation or adaptation, or even both, for example, some ecosystem restoration activities. 485 In addition, the Kyoto Protocol has recently opened the traditional distinction to some extent by allowing CCS into Bodle (2012) 119; ff., for instance, Williamson et al (2012) 8: „A rapid transition to a low-carbon economy is the best strategy to reduce such adverse impacts on biodiversity. However, on the basis of current greenhouse-gas emissions, their long atmospheric residence times and the relatively limited action to date to reduce future emissions, the use of geoengineering techniques has also been suggested as an additional means to limit the magnitude of humaninduced climate change and its impacts.“ Decision XI/20, para 4 As well as technology development and transfer, capacity buidling and finance, which are not of relevance here.

Bodle (2013) 469. Cf. USGAO (2011) viii, which classifies geoengineering as an response to climate change “other” than mitigation and adaptation.

Williamson et al (2012) 20.

Options and Proposals for the International Governance of Geoengineering the CDM, although CCS does not reduce the production of CO2. Against this background, if geoengineering were to move forward, there could be pressure to credit certain geoengineering activities that do not fit easily into the mitigation category. In addition, treating geoengineering as mitigation or adaptation could for instance have implications for funding institutions and their eligibility criteria. 486 6.3.3.4 Legitimacy, transparency and participation - Avoid a polarised public The international governance framework should also aim at avoiding a polarised public in particular through transparency and participation. The latter are considered elements of “good” governance and can contribute to a sense of legitimacy of geoengineering decisions. A polarised debate, perhaps similar to instances regarding climate change, would make it difficult for a state to adopt and implement any policy on geoengineering. 487 Legitimacy in that sense can be facilitated by a designing processes that are transparent and include appropriate participation. Transparency of process and geoengineering activities could be one of the means to achieve this end as well as to reduce the risk of political tension. Regarding the latter, transparency of geoengineering activities could involve e.g. requirements for publicity and reporting by states.

6.3.3.5 Flexibility A governance structure needs to allow for some flexibility in order to be able to react to new developments, because (i) there is a lack of scientific knowledge regarding geoengineering as well as climate science, and (ii) the public debate and interest at policy level is at the beginning. Flexibility in this sense should maintain an appropriate level of normative legal certainty and clarity. There are many options and potential elements for combining legal certainty with flexibility, including institutional arrangements and procedures for feeding in and discussing new scientific knowledge, for providing interpretative guidance (regarding e.g.

the scope and content of the governance regime), and for decision-making and amending rules.

6.4 General approach and main governance options This section describes our general approach to governance options from an institutional and normative perspective. Based on the governance criteria and the current state of geoengineering, it provides a preliminary assessment which governance elements might be most appropriate from both perspectives. The cross-cutting issue of addressing research is analysed in a separate sub-section.

6.4.1 The normative perspective: Instruments and techniques From a normative perspective, there is a broad range of binding and non-binding instruments and legal techniques that could be used for fulfilling the governance criteria developed above.

Potential instruments and regulatory techniques include, for instance: guiding principles;

establishing appropriate procedures for the relevant states and actors to agree on common ground and scientific basis; transparency obligations regarding procedure and information, Bodle (2013) 469.

Bodle (2013) 465.

Options and Proposals for the International Governance of Geoengineering e.g. impact assessments or reporting; and specific obligations such as permissions, restrictions or prohibitions. Some of these elements already exist and apply to some or all geoengineering techniques (see above section 5 on the existing legal framework).



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