«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
arrangements. In this respect, three overarching objectives can guide us:
a) to avoid negative transboundary environmental and health risks and impacts;
b) to avoid political tension and conflicts, in particular resulting from unilateral action, as well as legal disputes; and
c) as a more technical matter, to coordinate scientific research.
In addition, and on this basis, we suggest that the international governance of geo-engineering
should be guided by the following more concrete criteria:
a) It should implement a precautionary approach in respect of the risks of geoengineering;
b) It should facilitate broad international participation and acceptance;
c) It should avoid or at least minimize any direct or indirect undermining of climate mitigation efforts;
d) It should aim at a high level of legitimacy, including through (public) participation and transparency, in particular with respect to (i) general rule-making, (ii) casespecific decision-making on any proposed concrete geoengineering activity in the field, and (iii) any actual permitted geoengineering activity, e.g. through monitoring and reporting; and
e) It should allow for a sufficient level of flexibility in order to be able to respond to new scientific knowledge as well as the evolving public debate on geoengineering.
We base our thinking about appropriate arrangements for the international governance of geoengineering on these criteria and objectives, bearing in mind the potential for trade-offs between them, especially as regards international participation and acceptance.
In view of these objectives and criteria, in particular two types of geoengineering techniques pose significant direct risks of transboundary effects (i.e. effects on other countries or areas beyond national jurisdiction) and, consequently, political tension, and thus are in need of international governance: marine techniques such as ocean fertilisation or ocean liming, and atmospheric solar radiation management such as injection of sulphate aerosols into the atmosphere. Other techniques, in particular those encapsulating or removing carbon from the atmosphere, such as "artificial tress" or enhanced weathering, would not appear to have similar transboundary effects. The international governance of marine geoengineering techniques and solar radiation management techniques thus deserves, according to current knowledge, priority attention.
As regards the normative approach, we recommend a general prohibition of geoengineering activities that entail significant transboundary risks, combined with the possibility of exemptions. The prohibition would in principle also apply to research activities such as field experiments, but not to e.g. modelling (on research see also below). In general, there is a broad range of binding and non-binding tools, instruments and legal techniques to choose from, with the general approach ranging from a general prohibition (with exemptions) to a general permission (with specific restrictions). A general prohibition with exemptions on the basis of clear criteria would best reflect a precautionary approach in (i) minimizing environmental and health risks, including minimising the risk of undermining climate mitigation efforts, as well as (ii) defusing the potential for international conflicts and disputes. This overall approach could
be specified as follows:
Options and Proposals for the International Governance of Geoengineering
a) Clarity on which activities are prohibited could best be achieved by a positive list of the geoengineering techniques covered by the prohibition. Although an overall definition covering all geoengineering techniques might be useful as a political and normative reference point, it would inevitably be vague and would, on its own, not provide sufficient normative certainty. In order to build in flexibility and as guidance to states, the governance regime could provide a non-exhaustive list of the criteria used in establishing the prohibition and determining its scope in combination with a regular review of the positive list.
b) The clear framing of the exemptions should enable legitimate research to proceed (see below) and thus facilitate international acceptance of the governance approach.
Exemptions should be granted based on a transparent decision-making process applying strict and clear criteria.
c) Decision-making on both the positive list of prohibited geoengineering activities (including its review) and exemptions (including applicable criteria) should facilitate broad participation in decision-making. Depending on the circumstances, a nonbinding approach could be considered with a view to its evolving into binding law over time.
This approach does not necessarily mean that the actual decision-making needs to be centralised at the international level. For instance, the general prohibition and the criteria for exemptions could be stated at the international level, while leaving implementation of the corresponding rules, standards and procedures, including case-specific decisions to the national level. Such a vertical division of labour could facilitate acceptance and address concerns about international micro-management. At the same time, it would require appropriate structures at the international level for reporting and monitoring of national-level decisions and activities.
We suggest that the governance of geoengineering research best be integrated into the general governance arrangements. Research in the form of field experiments or other activities in the real world should not be addressed separately from, and earlier than, any "deployment" of geoengineering techniques. Such a separation of governance structures (and implied sequencing of their elaboration) seems problematic and non-advisable because (1) there is no clear-cut separation of the application of geoengineering techniques “for research” from the application “for other purposes” and (2) any such separate governance structures for research would be likely to provide an important precedent and blueprint for the governance of deployment (for other purposes). In our design, research would fall within the scope of and be integrated into the general governance and the prohibition, but it could proceed on the basis of case-specific exemptions, based on an environmental impact assessment, independent expert advice, and provided it implies a small-scale intervention only. This approach would not restrict or stifle research beyond what is necessary to minimise the risks that are posed by research activities in the same way as by any geoengineering activities for other purposes. At the same time, our approach could enhance transparency and legitimacy of research activities.
Existing international institutions only partially cover the issue area of geoengineering and fall short of providing a comprehensive governance framework that fulfils the objectives and criteria mentioned above and our normative approach. The LC/LP has developed a soft-law approach for the governance of geoengineering regarding marine techniques and is in the process of further developing this system and providing a more stable framework under international law. The normative approach pursued seems to be largely in line with the "general prohibition with exemptions" approach advocated here. However, the current proposals have yet to be adopted and enter into force. There might also be concern about
Options and Proposals for the International Governance of Geoengineering
whether the procedures and assessments are over-burdensome and the conditions difficult to satisfy in practice. Generally, the LC/LP is a comparatively small regime and the framework is limited to marine geoengineering techniques. The same is true for the limited activities under OSPAR, which are also limited in their regional scope. In part building on the approach of the London Convention/London Protocol, the CBD has developed some broader guidance and has served as a forum for more general discussions on geoengineering and its governance. The CBD framework does, however, not yet provide a stable basis and is not yet generally recognised as a or the central institution for discussing international governance of geoengineering. At the same time, other international institutions have hardly addressed geoengineering to a significant extent yet. This is a significant gap in particular regarding SRM techniques, especially atmospheric SRM such as aerosol injection.
Therefore, current international governance of geoengineering is characterised by the involvement of several institutions - mainly CBD, LC/LP and OSPAR. They form the beginning of an institutional complex with significant gaps/shortcomings and with an emerging interinstitutional division of labour in need of further clarification. First, the institutional landscape does not yet provide for a central institution that is clearly recognised as the central 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. Second, the existing institutional complex lacks regulation of SRM techniques. Increased regulatory capacity in international geoengineering governance also raises the question of how appropriate scientific input into decision-making can be provided. In addition, if geoengineering field experiments were to increase in number and scale, there would be scope for better international coordination of research and related exchange of information.
Our discussion of options for filling these governance gaps and for progressing towards a coherent and encompassing structure for international geoengineering governance is further premised on the following considerations: First, we focus on the use of existing institutions, rather than the creation of new ones, for reasons of “institutional economy” and because, in our assessment, international discussions on geoengineering have not yet reached a level that would likely support the creation of major new institutions in this field. Working with existing institutions may also yield results more quickly. We are also guided by an evolutionary approach that further develops and elaborates (and possibly expands) the existing institutional complex of international geoengineering governance, rather than a revolutionary centralisation in one institution.
We consider the CBD the prime candidate for becoming the central institution recognised as a first point of contact. By “central” we mean overarching but not supervisory. The CBD already fulfils this function to some extent, although not on a stable and prominent basis. Although its mandate is not unlimited, in particular the mandate to protect biological diversity allows pursuing a sufficiently broad precautionary approach, which could be further broadened if considered warranted by parties. Making the CBD the central institution in the field would appear to first of all suggest a conscious decision of its parties to establish appropriate stable structures (possibly including a work programme) to pursue targeted discussion of geoengineering on a regular basis. The establishment of such structures may help address concerns about a lack of priority and expertise in the CBD framework.