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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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On the other hand, most techniques are currently at the conceptual, modelling or small field experiment stage. Ocean fertilisation might be regarded as having reached regional scale, and some experiments have sparked considerable public and political debate. In addition, many geoengineering techniques are, if applied under national jurisdiction, currently unlikely to have significant transboundary impacts (see also section 6.5.1). This could require less or no international restrictions. More generally, there are concerns about stifling what might be regarded as legitimate research, a concern which ultimately is about attracting broad participation in a governance regime. The challenge is therefore to address concerns about the potential environmental, human health and political impacts and climate context, while not being overly restrictive. Of course, what is “overly” is a matter for debate. Generally, the concerns can be adequately and sufficiently addressed through defining exceptions to the general rule that geoengineering activities should in principle be prohibited. But these concerns do not seem strong enough to abandon the general rule or reverse rule and exception. 498 Therefore, the main choice in our preliminary regulatory approach, in simplified terms, is the assessment that the particular characteristics of geoengineering and the objectives and reasons for governance warrant a prohibition of geoengineering activities as a general rule combined with exceptions under well-defined circumstances. 499 As we argue below, this includes research activities such as field experiments.

For this approach of general prohibition with exception(s), taking into account the current potential of transboundary impacts of geoengineering techniques, there are many options for designing a restriction in terms of substance and procedure. Unless a total ban is intended, a restriction would mean that some form of permission has to be obtained before the activity can take place. This approach allows for normative certainty while keeping options open for regulatory fine-tuning through setting more or less elaborate and strict requirements for the granting of permits. A corresponding design option at the level of decision-making rules could be e.g. positive approval, silence procedure, a certain majority in order to deny the permission or requiring only a minimum number of supporters to grant the permission. As to general legal form, non-binding approaches can be considered in view of other factors such as In the context of the precautionary principle and pesticide regulation, cf. the interview with executive director of the European Environment Agency, “EEA chief: 'Scientific uncertainty is not a justification for inaction'”, 4 March 2013, http://www.euractiv.com/climate-environment/eea-chief-scientific-uncertainty-interview-518183.

For a default presumption against geoengineering deployment cf. Lin (2009) 23.

Options and Proposals for the International Governance of Geoengineering participation in and political weight of the regime in question, with a view to evolving into binding law over time. 500 It is important to note at the outset that this general approach does not mean that all details need to be set at the international level. Nor does the governance framework at the international level necessarily have to be binding. Geoengineering as an international issue does not (yet) seem mature enough for a new, separate binding instrument, although there are proposals under the LP to amend this instrument and establish binding rules for ocean fertilisation that could also be extended to other marine geoengineering (see section 6.5.1). In any event, soft law could be developed further so that if and when the time is ripe, it could be incorporated into binding rules.

Another issue to consider from a normative perspective is whether to provide for taking into account such overall “net” effects of a geoengineering activity. In general terms the geoengineering debate is often framed as setting the potential impacts of geoengineering against avoiding the potential impacts of climate change. In essence this is a cost-benefit approach that appears to be limited to measurable impacts (caused or avoided). The precautionary principle on its own does not resolve the conflict between avoiding the effects of global climate change vis a vis avoiding the risks of geoengineering. Most potentially applicable environmental treaties do not appear to provide for this (see section 5 on the existing legal framework). Arguing for a “netting” approach when applying these existing rules would in many cases ignore the policy choices that were already made in establishing the rule in question. Another problem in incorporating a “netting” approach into the normative design of a governance framework would be the assumption that there is either perfect knowledge that enables conclusive “netting” in advance, or the belief that the “not perfect but the best available knowledge at this stage” is a sufficient and legitimate basis for decision-making.

Against this background, we do not support anchoring the netting approach in a governance framework. It is part of a wider debate and a political decision that our approach does not impede or prejudge.

A general prohibition with exemptions is a particular challenge in respect of a definition of geoengineering. The restrictive nature of this regulatory technique calls for clarity and legal certainty, so that states implementing the governance and the relevant actors, but also the public, know what to expect. Potentially negative implications of being classified as “geoengineering”, in particular for regulatory purposes, play a role as well. Yet due to the broad range of geoengineering techniques, any overarching definition for regulatory purposes is unlikely to be sufficiently comprehensive to capture all relevant techniques while being sufficiently precise to exclude uncontroversial techniques or scale of activities. The political weight of overarching guidance as well as the guidance across specialised regimes would benefit from clarity and legal certainty in this respect, even where governance is not binding.





As argued in section 4, we suggest that any overarching 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 exclusive, or nonexclusive, allowing for adaptation and interpretation as new methods and scenarios develop.

Cf. Ginzky (2011) 478.

Options and Proposals for the International Governance of Geoengineering Another option is to envisage a process or institution providing further guidance in advance or on a case by case basis. For the sake of legal certainty and a level playing field, in any specialised governance regime an overarching definition framing the regulatory context should be combined with a positive list. To provide for flexibility, clear procedures and criteria for amending this positive list should be established.

A particular technical issue regarding a definition of geoengineering is whether it should include the element of large scale (see above section 4 on definition). If it did, an activity that is small scale would strictly speaking not fulfil the definition, therefore not qualify as geoengineering and from the outset not fall under the governance framework. Again, this shows the importance of distinguishing different purposes and contexts of a definition as part of a governance framework: It may be useful to have a definition that describes geoengineering in general terms, such as the CBD expert group’s in order to define the issue, in particular to provide guidance in a decentralised approach. However, such a definition would not be fit to serve the specific normative purpose of providing legal certainty, clarity and sufficient predictability of which specific activities are subject to the governance framework and a general prohibition. In addition, past experience and current debate show that geoengineering raises concerns at stages prior to large-scale activities, whether relating to environmental and health impacts, political tension or public unease. Against this background, the governance framework with the prohibition in principle should apply regardless of scale, while leaving open the possibility of making a small scale a core criterion for granting an exemption. A positive list complementing a general definition would provide clarity in this respect. To some extent, this would leave the case-specific implementation of deciding what is “small-scale” to states granting exemptions.

A key component of the governance framework is to clearly separate scientific input and political decision-making. The particular characteristics of geoengineering that lead us to choosing a restriction in principle as a main governance element also mean that this normative element has a strong political aspect. It is not a question of mere scientific input. The governance framework comprises both scientific and political functions. Political legitimacy lies at the heart of resolving conflicts between environmental objectives. It is essentially a political decision whether pursuing climate protection can justify the potential and actual risks posed by geoengineering activities. The same goes for more technical issues such as what qualifies as geoengineering and should be addressed by international governance. The political governance function works both ways and could also legitimise an otherwise controversial geoengineering activity.

The form, mandate and powers of the political level as well as the measures available to it need to be carefully considered in order to aim at broad participation, retain flexibility to adapt to future developments, ensure meaningful scientific input and facilitate compliance. A political function does not mean over-regulation in that there has to be a political decision on each individual proposed geoengineering activity. The political guidance can take a variety of forms, from mere consideration of scientific input by a political forum or body such as a COP, to authoritative and binding decisions on whether a specific activity is permitted or not.

Governance at the international level could merely consist of clear guidance and rules laying down the conditions under which geoengineering activities are permitted or prohibited. For the scientific community, it might be difficult to accept that this issue is discussed, possibly misunderstood and simplified by delegates with political mandates. However, the distinction between scientific input and political decision-making has been a common feature of virtually all modern international environmental treaties and institutions. Although uncommon, specific

Options and Proposals for the International Governance of Geoengineering

procedural safeguards at the political level could be considered if need be, such as requiring consensus or a specific majority for not following scientific opinion or proposals.

In parallel to the political function of international governance, one objective and function of international governance is facilitating the coordination of research activities in order to avoid cross-interference and to ensure the validity of results. Science coordination also has policy relevance (see above). As international (and national) governance of geoengineering advances, demand for international scientific and technological assessments is likely to grow. From a normative perspective, it is useful to distinguish between three aspects international

governance could address:

a) The general current state of knowledge on geoengineering and its risks: While it seems useful to have more general overviews in this respect, it does not seem to be a necessary element of international governance to be prescribed or regulated. It might be sufficient to rely on the work in the various national and international research programmes. However, a mandate to regularly compile and perhaps assess the current knowledge could be useful;



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