«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»

b) Specific scientific input to underpin other governance functions, e.g. in order to update or amend general guidance or rules: International governance, in particular political functions and decision-making, should be informed by sound scientific knowledge and input. Scientific input should be separate from political decisionmaking (see above). Based on the experience with existing regimes, this might be more of an institutional rather than a normative issue.

c) Input to specific individual assessments and decisions such as permits: In order to fulfil the objectives and criteria developed above, it does not currently seem indispensable that the international level provides more than general guidance as to the conditions under which the national level should allow for exemptions from the general prohibition, e.g. the quality of the assessments required. The assessment framework developed under the LC/LP is an example of quite detailed and comprehensive guidance.

The criteria of legitimacy, transparency and participation call for some elements that provide information to other states, the governance institutions and the public. This should take the form of appropriate structures for reporting and monitoring of national-level decisions and activities. This regulatory instrument is generally well-established at the international level, and virtually all potentially applicable treaties impose some procedural obligations on geoengineering activities falling within their regulatory scope.

6.4.3.2 Assessment from institutional perspective Governance of geoengineering in all likelihood also requires institutions over and above bare rules. Assuming a need for at least minimal international governance, under which regimes or in which fora should governance be exercised?

The emerging set of existing institutions that co-govern geoengineering does not yet display a clear inter-institutional division of labour or have a clear “centre of gravity”. Rudiments of a sectoral and/or spatial specialisation may be discerned in activities within the LC/LP and possibly OSPAR regarding marine geo-engineering techniques. While discussions under the CBD have so far had the broadest scope, it is unclear whether the CBD may head towards forming a centre of an emerging governance architecture. While awareness of the multi

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Options and Proposals for the International Governance of Geoengineering

institutional involvement has been rising, 501 the institutional complex is still very much to be shaped.

In this respect, core questions to be investigated are (1) which functions the overall governance architecture will have to fulfil (partly related to the objectives and criteria discussed above), (2) which of these functions should and could be performed by a central regime (or a limited set of regimes) forming the core of the governance architecture, and (3) which functions could be performed to what extent by various existing institutions and how their relationship to each other may be shaped. In a first step, it may be important to clarify whether it would be useful to have a central institution in the governance architecture, and if so, for which functions. In such a scenario, the question arises of whether a new or an existing institution could best fulfill the necessary functions.

A core rationale for a central institution, or for a limited number of institutions building this core, would be to provide overarching political guidance, and possibly the elaboration of uniform standards to be applied, globally and across sectors, which would also ensure that potential gaps that may emerge from a patchwork of specialised regulations are minimized.

The mandate of many international regimes and institutions would allow them to address geoengineering or some aspects of it. Some of these institutions have already started to address geoengineering. This could lead to different treaties or institutions potentially competing for addressing geoengineering with overlapping or inconsistent rules or guidance. Given the common feature of intended global climate impacts and the ensuing political significance, there are good reasons for a central institution providing overarching functions and guidance.

In addition, the CBD has already addressed geoengineering in an overarching manner.

Although it is difficult to say whether and to what extent the CBD might continue to further develop this guidance, the decisions are in place and have to some extent occupied the field.

At the same time, there is a rationale for delegating governance tasks to specialised institutions and thus institutional decentralisation. Even with a central institution, the diversity of geoengineering techniques, their stages of development and their potential impacts will remain a challenge. The greater expertise of specialised institutions may enable the elaboration of tailor-made solutions for particular sectors and areas, and the strengthening of particular governance functions such as the creation of scientific knowledge. Such specialised institutions may also spearhead governance developments that might at first be impossible to initiate in an overarching regime, but which might be taken up at a later stage. Political and legal barriers may obviously limit the feasibility of a “rational design” of the governance architecture along these rationales and therefore also require attention. Similarly, specialisation is already enshrined to some extent in the existing governance architecture, most importantly through the initiatives of the LC/LP.

Against this background, and based on the criteria developed above, in abstract the following

governance design would seem appropriate from an institutional perspective:

• A central institution recognised as a first point of contact providing the opportunity for actors to discuss crosscutting issues, develop overarching guidance (across other relevant institutions) and raise emerging issues; developing general principles and perspectives, and facilitating the exchange of information. This does not exclude division of labour with specialised regimes.

Cf. the CBD study on the regulatory framework: Bodle et al (2012), and the recent mandate by CBD COP11 to the Executive Secretary to disseminate and update the studies, decision XI/20 para 13 and 16(a).

Options and Proposals for the International Governance of Geoengineering

• Flexibility to respond to new knowledge and political developments. This is particularly challenging for binding rules, but also for institutional structures. This element would seem to require an institutional structure and procedures with a permanent or at least regular ability to meet, discuss and update existing governance. At the international level, treaty regimes with institutions such as COPs and subsidiary bodies provide a potential model, in addition to organisations that are established as part of and in order to implement a specific normative treaty.

• Ability to address potential regime conflicts - e.g. through more or less formalised or informal linkages and coordination, or voluntary normative division of labour.

• A clear separation of scientific input from political decision-making could also be relevant from the institutional perspective in that it might be facilitated through institutional arrangements. It is a means to reconcile the scientific uncertainty and need for updated scientific input with the potential for political tension and the need for political legitimacy and responsibility (see above).

6.4.3.3 Research as a cross-cutting issue A key question in the geoengineering debate is whether and how to address further geoengineering research as part of a governance framework. The main concern relating to research is that governance of geoengineering would stifle further research. 502 Generally, freedom of research is highly valued and legally protected in many jurisdictions. A specific aspect is related to the specific purpose of geoengineering, as some argue that research is needed in order to obtain reliable information about feasibility and risks. Are there reasons for governing research at the international level? Should there be a distinction between research and deployment? Are there useful and feasible criteria for this distinction? Should there be a separate governance structure?

While research is a cross-cutting issue across all criteria and all geoengineering techniques, not all objectives and criteria developed above may seem equally suitable for addressing research.

For instance, it could be explored to what extent the objectives of political buy-in and avoiding political conflict might be significantly affected by research. The same goes for ensuring continuing mitigation efforts - e.g. in relation to funding for geoengineering research.

However, key objectives and criteria for international governance also apply to research activities, notably avoiding environmental and health impacts (and political tension). Finding out more about the feasibility, risks and impacts of geoengineering will at some stage require real-world field experiments that would have to be gradually scaled up in order to know the impacts of a particular technique and whether it is effective. There have already been field experiments, most prominently on ocean fertilisation, but also on SRM. 503 To what extent should international law privilege research activities even if they could cause severe impacts, on the grounds that this is the only way to know for sure that a geoengineering technique causes such impacts?

At the heart of this challenge is the question of what constitutes research and what could be a reason for privileging it. The geoengineering debate has so far distinguished research and field See for instance the views collected by USGAO (2011) 49-69.

Markus and Ginzky (2011); “Geoengineering experiment cancelled amid patent row”, Nature online, 15 may 2012, doi:10.1038/nature.2012.10645; Izrael (2009); “World's biggest geoengineering experiment 'violates' UN rules, The Guardian, 15. October 2012, http://www.guardian.co.uk/environment/2012/oct/15/.

Options and Proposals for the International Governance of Geoengineering trials from deployment mainly implicitly by referring to an activities’ impacts, its scale, its purpose (e.g. commercial or not), or the method of preparing and conducting it.

One key rationale for governance derives from the (actual, potential or alleged) environmental and health impacts, and applies regardless of whether the activity is carried out as “research” or not. 504 For field experiments, the physical impacts of the actual activity are the same. Once the modelling and “indoor” stage is left behind, the distinction between research and deployment becomes increasingly artificial and at some scale there will factually be no difference to deployment. The Solar Radiation Management Governance Initiative distinguishes between large field trials and deployment on the basis of whether the activities lead to environmental effects of a sufficient magnitude, spatial scale or duration that affect climate significantly. 505 Apart from the problem of determining “significant” effects, in particular in advance, this criterion is not useful from a governance perspective because it is retrospective: If it is the very purpose of field trials to find out whether such effects occur, then it will be known only after the activity is carried out. In this sense it does not seem desirable nor practicable to apply different rules for the same type of activity depending on whether it is for a “good” scientific purpose or a “bad” deployment purpose.

Distinguishing research by the scale of the activity could be a way of avoiding significant impacts. However, this poses the same problems as generally defining geoengineering by the scale of the activity (see above). In addition, it seems obvious that research can be large-scale.

Scale is therefore not useful in determining in abstract whether an activity is research or not.

However, scale could generally be one useful element amongst others in deciding which activities could be permitted - similar to the LC/LP’s concept of “legitimate” research (see below the section on ocean fertilisation).