«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
The normative tools and instruments at the international level provide a broad and flexible
range in several aspects, for instance:
• the legal status, e.g. rules binding under international law or not (e.g. COP decisions);
• whether the subject of governance is the activity in question or the effects of an activity (see above section 4);
• the degree to which an aspect is governed at the international level or left to the national level or to self-regulation by non-state actors;
• the normative level of specificity and detail, e.g. clear permissions or prohibitions, more general guiding principles, scope for discretion in implementation, procedural and substantive aspects, rules and exceptions.
In contrast to international law, EU law and domestic legal systems at least in principle provide a clear allocation of legal competences and established mechanisms for implementation and enforcement. International law offers a particular range of instruments the political aspects of which have to be considered as well when assessing their suitability. For example establishing new binding rules usually requires some form of specific consent of the party to be bound, different rules and governance arrangements may overlap, and governance arrangements that are not formally binding under international law may still be politically effective.
There are links between the normative and the institutional perspective (see below): For instance, both perspectives need to consider whether there should be general rules or guidance that apply to all geoengineering techniques (centralised approach) or whether there should be separate rules for particular geoengineering techniques (decentralised). Similarly, the issue of potential normative conflicts has to be addressed. Another parallel to the institutional perspective is that there are several legal orders in which normative instruments could be anchored: international law, EU law and domestic legal orders, plus self-regulating approaches (by non-state actors) within these spheres.
6.4.2 The institutional perspective: The emerging institutional complex of geoengineering The international governance framework for geo-engineering can be understood as an emerging institutional complex. The analysis of international governance has increasingly moved from the exploration of specific institutions to the investigation of “institutional complexes”, “regime complexes” or “governance architectures”. 488 An institutional complex can be defined as a set of two or more international institutions (including international regimes and international organisations) that co-govern a particular issue area in international relations. 489 Many if not most issue areas of global governance have become to be affected significantly by more than one international institution. The analysis above shows that the emerging issue area of geo-engineering is also addressed by various institutions (including the CBD, the London Convention/London Protocol and others).
Raustiala and Victor 2004; Biermann et al. 2009; Oberthür and Stokke 2011; Keohane and Victor 2011.
Options and Proposals for the International Governance of Geoengineering Institutional complexes can take different shapes. In this respect, a first important criterion for differentiating between them is the level of centralisation, viz. institutional integration. 490 At the more integrated end of the spectrum, institutional complexes may be dominated by one core institution that defines the guiding principles and determines the general policy direction that is accepted and implemented by other elemental regimes and organisations. The leading role of the core institution may, but does not have to be expressly defined in normative terms.
The World Trade Organisation (WTO) may be considered a prime example in international trade. In the field of environmental governance, the Montreal Protocol may be considered as an example as regards the protection of the ozone layer. 491 At the other end of the spectrum, institutional complexes may encompass various unrelated regimes and organisations. For example, it has been argued that the international governance of plant genetic resources is shared between various international institutions, including the WTO, the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, the UPOV Convention, the World Intellectual Property Organization (WIPO) and the CBD, in ways that lack integration. 492 Many institutional complexes fall somewhere in between these extremes in providing for some degree of integration.
For example, the CBD regime for access to and benefit-sharing from genetic resources (ABS) as further elaborated through the 2010 Nagoya Protocol provides some general guidance to other institutions. At the same time, the Nagoya Protocol explicitly provides that any specialised international ABS instrument takes precedent over the Nagoya Protocol within its scope of application and for its parties, but only provided that the special instrument “is consistent with, and does not run counter to the objectives of the Convention and this Protocol” (Art. 4.4). 493 The Nagoya Protocol elaborates and specifies the normative lex specialis rule. Two aspects are particularly interesting: First, the Nagoya Protocol explicitly recognises that a subsequent specialised instrument takes priority over the Nagoya Protocol. This provides clarity and avoids legal uncertainty over conflicting regimes. Second, the Nagoya Protocol steps back only on the condition that its general policy direction is not jeopardised. It thus provides freedom to establish separate regimes, but combined with the implicit threat that it will continue to apply if parties do not design the non-central regime compatible with the central regime of the Nagoya Protocol.
Institutional complexes can be characterized by different types of divisions of labour among the institutions comprising it. For example, different elemental institutions may specialise on various regulatory subsets or sectors of the overall issue area. In climate governance, for example, the International Civil Aviation Organization (ICAO) focuses on emissions from international aviation while the Montreal Protocol for the protection of the ozone layer addresses certain industrial greenhouse gases. 494 Institutions within a complex may also specialise on the supply of certain governance functions such as the creation of knowledge, regulation, capacity building, or enforcement, as is apparent in Arctic governance. 495 Biermann et al. 2009; Keohane and Victor 2011.
Biermann et al. 2009, 20.
Raustiala and Victor 2004; Jungcurt 2008.
See Oberthür and Pozarowska 2013.
Keohane and Victor 2011; Liu 2011.
Options and Proposals for the International Governance of Geoengineering Furthermore, elemental institutions my spatially apply to or specialise on certain geographic regions, as is implicated in the differentiation under the CBD (areas under national jurisdiction), UNCLOS (maritime zones), and the Antarctic Treaty System (Antarctica). In principle, the degree of centralisation/integration could also be considered a type of a division of labor.
Another important characteristic of the relationship of the different elemental institutions of a broader governance architecture is the level of inter-institutional conflict or competition. The level of synergy and conflict between institutions is not least rooted in the degree of compatibility or competition of their objectives. For example, the relationship between the WTO and multilateral environmental agreements employing environmental trade restrictions has been described as conflicting not least because there is a tension between the respective institutional objectives of free trade and environmental protection. The level of interinstitutional conflict/competition is likely to have an impact on efforts to enhance governance within an institutional complex. 496 The co-governance of an issue area by various institutions can be shaped by political decisionmaking. Institutional complexes were traditionally described as having evolved “naturally”, i.e.
without much deliberate political design of the relationship between the elemental institutions.
However, this changed with the increasing awareness of states and other actors that more frequently than not multiple institutions affect the governance of individual issue areas. Today, there is increasing attention to actively shape and manage inter-institutional relationships. One potential objective is to achieve an appropriate division of labour between the various institutions, including an adequate level of centralisation. However, there is no institution with the authority and mandate to assign and prescribe a division of labour to other institutions.
The means for such collective governance of institutional complexes are mainly confined to decision-making within the individual institutions and, to a lesser extent, include cooperation among them. 497 6.4.3 Preliminary choice of main governance options In this section we assess and chose, on the basis of the objectives and criteria developed above, appropriate governance elements. This preliminary and abstract assessment is the basis for the subsequent analysis of whether the existing international governance of geoengineering adequately contains these elements and which gaps remain.
126.96.36.199 Assessment from normative perspective From a normative perspective, based on an initial and cursory assessment of the governance criteria, in particular the scientific uncertainty and the need to avoid political conflict, a general restriction in principle of geoengineering activities, combined with clear criteria for exemptions seems to best match the objectives and criteria developed above.
Geoengineering activities are potentially high risk because of their intended impact at global scale. The risk relates to the potential environmental and human health impacts as well as political tension. The latter is particularly relevant because it can materialise regardless of the scientific proof of potential environmental or health impacts.
Oberthür and Pozarowska (2013).
Oberthür and Stokke (2011).
Options and Proposals for the International Governance of Geoengineering A further argument for a restriction in principle is based on the climate context and the criteria of not undermining efforts to reduce emissions: While there are scientific methodologies to analyse and explain physical risks at least approximately, the risk that geoengineering developments would lead countries and other actors to be less committed to mitigation is socio-political in nature. As such, this risk is particularly difficult to counter and is likely to be persist for any future governance arrangement that permits geoengineering: Any means mitigating the impacts of climate change is almost certain to reduce the pressure to advance mitigation efforts. From this perspective, a restriction in principle could serve as a political signal that emission reductions are the default climate policy and geoengineering would only be an exception, which could serve as a safeguard against a potential slippery slope away from emission reductions.