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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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Options and Proposals for the International Governance of Geoengineering and London Protocol. The LC/LP Assessment Framework was incorporated by reference in CBD decisions on ocean fertilisation. 522 In 2010, the LC/LP agreed to continue its work towards providing “a global, transparent and effective control and regulatory mechanism for ocean fertilisation activities and other activities that fall within the scope of the London Convention and London Protocol and have the potential to cause harm to the marine environment”. 523 In its own view, the LC/LP “governing bodies have steadily moved towards developing a more binding regulation of ocean fertilization”. 524 In 2012 a proposal was submitted containing a new LP article directed at regulating marine geo-engineering activities and two new annexes: one listing those marine geo-engineering activities that are regulated, with only ocean fertilisation listed so far, and another annex referring to a generic placement assessment framework for marine geoengineering activities. 525 The current, non-binding governance of ocean fertilisation and the amendment proposal under the LC/LP for a binding regime would by and large correspond to our proposed main governance elements: The elaborate framework and permit structure provides for a general prohibition 526 of ocean fertilisation (and other listed geoengineering activities under the amendment proposal) with the possibility for exempting legitimate research according to conditions and criteria also set forth in the framework.

The risk of unilateral action on ocean fertilisation could be high, as it has already materialised in the public controversy over the LOHAFEX experiment 527 and in an experiment in 2012 by a private actor off the Canadian coast. 528 However, it is a different question to what extent this risk remains if the LC/LP governance framework is implemented in more detail or becomes binding. The potential impacts of ocean fertilisation on the environment and human health are still largely unknown or ambivalent. 529 6.5.1.12 Governance of research There are several suggestions from outside international institutions on governance of research. For instance, scientists have drafted a set of five “high-level principles” that should CBD COP decision IX/16 C; X/29 para 13(e) and 57-62; X/33 para 8(w)-(x).

Resolution LC-LP.2(2010), para. 5; IMO (2010).

Report of the 34th Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, LC Doc LC 35/15 of 23 November 2012, para 4.3.

Report of the 34th Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, LC Doc LC 35/15 of 23 November 2012, para 4.5.

Currently though the definition of “placement”. By defining the scope of what it outside the scope of the LP, parties implicitly define what would be covered by it.

Although this and other experiments were not designed for geoengineering purposes, Williamson et al (2012) 58.

Report of the 34th Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, LC Doc LC 35/15 of 23 November 2012, para 4.1-4.3 and annex 3; for media reaction to the experiment cf. also “World's biggest geoengineering experiment 'violates' UN rules, The Guardian, 15. October 2012, http://www.guardian.co.uk/environment/2012/oct/15/.

Markus/Ginzky (2011) 478; Williamson et al (2012) 58-61.

Options and Proposals for the International Governance of Geoengineering guide and govern geoengineering research. 530 These five “Oxford principles” include geoengineering to be regulated as a public good, public participation in decision making, disclosure of geoengineering research and open publication of results, independent assessment of impacts and having in place clear governance arrangements before deployment. The principles are fairly general in the sense that their content is not (yet) geoengineering-specific as they could be proposed in relation to many potentially risky and controversial new technologies and concepts. They could reasonably apply to any research involving potential risks to the environment, and they partly overlap with the established legal rules in terms of transparency and participation. While they are intended to serve as a starting point for discussing how geoengineering research should be conducted, 531 they appear as yet inadequate to address the particular challenges presented here. For instance, the crucial question of which research activities should perhaps not be allowed appears to be not addressed or left to an undefined public interest and the requirement that the public be involved in determining it.

The fifth principle, that governing arrangements be made clear prior to any actual use of the technologies, implicitly entrenches the distinction between research and “actual use” without a clear rationale for it. More generally, the Oxford Principles do not appear adequate for fulfilling the political aspects of governance necessary to achieve the objectives outlined above.

The same goes for the five similar principles recommended as the outcome of the Asilomar conference in March 2010. 532 However, as a starting point for governance they demonstrate that the science community is aware of the wider implications and of the need to act responsibly within a political context. The Oxford principles are currently being developed further in a UK research project. 533 The Solar Radiation Management Governance Initiative (SRMGI) 534 has taken these ideas further and provided a more detailed assessment of governance needs for different research activities. The general approach taken by the SRMGI proposals is to identify in abstract categories of research that could require more or less stringent governance at the different governance levels. The recommendations so far do not represent consensus, but attempts to stake out the grounds of discussions so far. On this basis it identified little support for a ban on “indoors” research. 535 Generally these initiatives have so far focused on more abstract principles and considerations without linking them to specific international governance design proposals.





Rayner (2009); Rayner (2010) 13; http://geoengineering-governance-research.org/the-oxford-principles.php.

The UK Parliament Committee Report endorsed the Oxford Principles as a starting point for developing future governance arrangements, while concluding that some aspects of the suggested five key principles needed further development,, House of Commons Science and Technology Committee (2010) 35.

International Conference on Climate Intervention Technologies, Asilomar Conference Center, March 22-26, 2010, Pacific Grove, USA, http://www.climate.org/resources/climate-archives/conferences/asilomar.html.

Geoengineering Governance Research - CGG, http://geoengineering-governance-research.org/.

http://www.srmgi.org/.

Workshop Ecologi Institute, Berlin, 5./6. November 2012.

Options and Proposals for the International Governance of Geoengineering 6.5.1.13 Overview table As a summary of this section, the following table provides a simplified overview of the

assessment of current governance of geoengineering techniques:

Table 2: Overview: Assessment of current governance of geoengineering techniques

–  –  –

6.5.2 Gaps in the existing governance From a normative perspective, there are some legal rules of international law that apply to all or some geoengineering techniques and might regulate them. However, the scope and effect of these rules depend on the potential environmental impact of the activity, which is currently difficult to assess or predict (see section 5). A key shortcoming of these rules for governance purposes is their lack of specificity and thus legal certainty, and their retroactive nature: They Acknowledging scientific uncertainty regarding the available knowledge.

Higher if vegetation was changed at large scale.

Options and Proposals for the International Governance of Geoengineering are mainly suitable for being invoked after the geoengineering activity has taken place, but they are insufficient for providing guidance regarding procedures and safeguards in advance of a geoengineering activity - whether research or deployment. In addition, the customary rules are not embedded in an institutional structure that could provide a forum and procedures for agreement and decision-making.

There already are regimes that specifically address geoengineering, although there is no clear central structure (see above). In contrast, several regimes could address geoengineering or have briefly done so but do not appear active in governance terms. For instance, the Rio+20 outcome briefly mentioned only ocean fertilisation in a brief paragraph, but clearly made no governance effort. 538 Another example is the ENMOD Convention, the rules of which would apply to geoengineering only in armed conflict, and which has no institutional underpinning to provide guidance at present. The gap analysis therefore focuses on the few regimes that are active in this regard.

From a pragmatic point of view, political feasibility is an important aspect. This would have to take into account the extent to which existing structures are likely to continue to address geoengineering. In particular, it requires assessing to what exent the current and potential future work of the CBD and LC/LP are legally and factually occupying the field, and how this pre-determines the choice of fora and content. This section focuses on CBD and LC/LP since these seem to be the only institutions that have adopted relevant and specific regulation/rules.

OSPAR has addressed some specific aspects of CCS in the ocean, but is regionally limited to a specific region and does not seem to be taking geoengineering issues further.

6.5.2.1 CBD decisions as overarching governance With the explicit exclusion of CCS, the CBD’s general decision X/33 of 2010 and the follow-up decision XI/20 in principle address all geoengineering techniques that fall within its broad definition - although the definition is a shortcoming. The CBD decisions are partially in line with our general normative approach: They explicitly pursue a precautionary approach and the text shows the intention to prohibit geoengineering activities in principle, subject to exceptions. The CBD also has broad participation with almost universal participation, which could help in avoiding unilateral action, although the US is not a party to the CBD. The CBD is also in line with our approach in that decision XI/20 emphasises that climate change should primarily be addressed through mitigation under the UNFCCC, 539 and in noting that governance should focus on activities that have the potential to cause significant transboundary harm. 540 It generally notes the difficulty of governing geoengineering, especially since current geoengineering approaches are not sufficiently effective, safe and affordable. 541 However, there are also several shortcomings (see section 4): On the basis that the decisions are not binding as such, the chapeau’s wording in para 8 of decision X/33 is weak and does not “The future we want”, UN GA Res. 66/288, para 167: “We stress our concern about the potential environmental impacts of ocean fertilization. In this regard, we recall the decisions related to ocean fertilization adopted by the relevant intergovernmental bodies, and resolve to continue addressing with utmost caution ocean fertilization, consistent with the precautionary approach”.

XI/20, para. 4.

XI/20, para. 8.

XI/20, para. 6 Options and Proposals for the International Governance of Geoengineering provide much normative or political weight. Further, the wording of para 8 in decision X/33 is ambiguous in places. The definition only includes large-scale activities and is too broad to adequately serve normative purposes on its own. The additional definitions in the follow-up decision confuse the issue rather than clarify. The exemptions regarding research activities are ambiguous in that they refer to the scale of the activity with weak additional guidance.



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