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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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Decision X/33 also introduces the new and potentially problematic concept of “justified” scientific research, leaving unclear whether it is meant to be different from the concept of “legitimate” research used in the CBD and LC/LP decisions on ocean fertilisation. 542 The follow-up decision XI/20 of 2012 addresses these main shortcomings only in some minimal respect. It reaffirms decision X/33 but does not add normative content, except in noting that the precautionary approach and customary international law are an insufficient basis for regulation. In some respects the decision might be regarded as a step backwards in terms of clarity. While decision X/33 included a preliminary definition of geoengineering, the 2012 decision lists four possible options, including the previous preliminary definition of 2010, a definition provided by the expert groups, and two different IPCC definitions. The CBD does not express any preference for a definition. 543 The main normative gap remains that the unclear definition and wording do not provide adequate certainty which activities are intended to be restricted or allowed.

In other respects, the CBD has made small first steps towards providing an international forum for assessing and further developing scientific knowledge and guidance. Following the 2012 reports, CBD COP11 provided a mandate for distributing this information to other regimes, for updating the reports and for making available voluntary reporting by parties through the clearing-house mechanism. 544 The CBD also requests SBSTTA to consider the outcome of the IPCC Fifth Assessment Report. 545 Regarding institutional design, the CBD has a permanent institutional structure with regular meetings for further developing guidance. Its structures and procedures are similar to most COPs under multilateral environmental treaties. There is a subsidiary body for providing technical input, while COP decisions are adopted in public by consensus of party delegates with political mandates. There have been concerns among scientists about the CBD process, 546 but these would seem to be based on a general uneasiness about translating scientific views into political negotiations and the political compromises decisions - which is perhaps regrettable but normal in the context of negotiating a specific COP decision under a major and large multilateral regime. Besides its general guidance, however, the CBD has not established or outlined procedures for dealing with geoengineering activities and left the implementation of its guidance to the parties.

Generally, the CBD has at least factually, to a small extent legally and to a larger extent politically occupied the field by providing general and overarching governance covering all geoengineering activities in principle. The nascent governance elements in the follow-up CBD COP decisions X/33, para 8(x) and X/29, para 59; cf. Royal Society (UK) (2009) 41.

XI/20, para. 5 XI/20, paras. 9 and 15 XI/20, para. 14 At the Workshop on International Governance of Geoengineering, Ecologic Institute, Berlin, 5-6 November 2012 see the summary in Annex II.

Options and Proposals for the International Governance of Geoengineering decision XI/20 in 2012 indicate that the CBD seeks or is willing to play a central role. On the other hand, the CBD has relied heavily on the work done under the LC/LP, adding its own guidance while at the same time referring back to the LC/LP. Therefore the institutional set-up and the guidance are not fully clear and the place of the CBD in the international governance of geoengineering is not fully established. One ensuing question is whether the CBD is capable of further developing its governance, in particular of further differentiating between different geoengineering techniques, which might be necessary, depending on further developments.

6.5.2.2 LC/LP In terms of substance, the LC/LP has factually and to a large extent politically occupied the field

for ocean fertilisation governance:

The handling by the LC/LP of the 2012 ocean fertilisation experiment could be an indication that the governance framework in place avoids potential political conflict. 547 The assessment framework also appears to address potential environmental and health impacts as far as possible at this stage. It also incorporates a precautionary approach and seems to be without prejudice to climate policy. The framework addresses research through elaborate criteria for “legitimate research” that is exempt from the prohibition and the proposed amendments would allow for flexibility regarding different marine geoengineering techniques. The parties have also begun to address the need for science overviews on ocean fertilisation and consider developing a web-based repository of references relating to the application of the Assessment Framework, which the US supports. 548 However, there are general and technical shortcomings: In terms of participation the LC/LP is a relatively small and specialised regime that does not include the US, 549 although it covers a significant part of global shipping. 550 The small number of parties may have contributed to what so far appears to be a largely science-driven approach. The proposed governance framework is flexible in that it could include other marine geoengineering techniques, although it remains to be seen to what extent the amendment proposals are adopted and enter into force. Even then, the LC/LP is generally limited to marine geoengineering techniques.





Although the general normative approach under the LC/LP for ocean fertilisation is similar to our general normative approach of a general prohibition with exemptions, under the amendment proposal marine geoengineering activities would first have to be included in the list of restricted activities.

The fact that the LC/LP is a small and more technical regime under the UNCLOS might be a reason why its work does not appear to have attracted much publicity in the media and in the 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/.

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 4.25-4.27 There were 87 Parties to the London Convention and 42 Parties to the London Protocol as of 29 October November 2012. The US is party to the LC and has signed but not ratified the LP.

The Parties represent about two thirds and one third, respectively, of global merchant shipping tonnage (IMO press briefing 50/2010, 20 October 2010).

Options and Proposals for the International Governance of Geoengineering eye of the general public. This might have been beneficial so far as it might have enabled focused and less politicised work, but this could change with growing interest in geoengineering. As a more technical matter in terms of transparency, ? it is difficult to find and access documents via the IMO.

6.5.3 Conclusions from gap analysis: Which geoengineering techniques should be subject to international governance?

The analysis above shows the current institutional and normative approach to be as follows:

The main gaps are that certain techniques, in particular atmospheric SRM by aerosol injection, are not covered by governance and regulatory structures that are adequate according to our proposed main governance elements. Although it may be tempting to seek legal guidance from cross-cutting general rules and principles of international law, and to apply them to new issues such as geoengineering, there is a risk of imputing the desired normative content into such rules. Overburdening general rules in this manner could be detrimental to their acceptance and legal value. 551 In this respect the existing legal hooks do not carry the political weight of geoengineering. 552 There is a central and almost global forum, the CBD, with provisional overarching governance ambition. There also are specific fora, mainly LC/LP and to some extent OSPAR, which within their mandate have extended their application to ocean fertilisation and ocean CCS. The central forum draws on the work in one of the specific fora. However, the institutional set-up and the guidance are not fully clear and the place of the CBD in the international governance of geoengineering is not fully established. The LC/LP is much advanced from a normative perspective, but it is a specialised and comparatively small regime with limited material scope.

Although its work has been taken on by other regimes in the past, it is not clear to what extent this could continue. The overarching international governance structure is also weak in terms of providing or compiling scientific assessments, providing a common forum for keeping developments under review and discussing common approaches.

6.6 Options for filling the governance gaps This section explores options for filling the normative and institutional governance gaps identified above. The suitability of existing institutional and normative elements for filling these gaps depends on the geoengineering technique in question and the governance objectives and criteria. Only a few institutions are viable options. On the basis of existing governance efforts, one key question is whether and to what extent the CBD and the LC/LP could realistically fill the remaining governance gaps, perhaps with the LC/LP as a sectoral and model regime within the emerging regime complex. We will also analyse other institutions such as the UNFCCC.

The weaknesses of the existing governance also pose the question whether new institutions could or should step in and assume governance functions. If new institutions appeared to be necessary, it would have to be analysed whether they should or would be able to have a central or complementary role. This could not only lead to competing institutions and forum shopping, Bodle (2013) 464.

Bodle (2010) 321.

Options and Proposals for the International Governance of Geoengineering but also to forum shifting, where a new institution de facto takes over functions from existing institutions. 553 The existing and potential new regimes should be moulded into a coherent framework that fulfils the governance criteria effectively and efficiently. Particular aspects to be addressed

include:

• institutional anchoring and co-ordination, in particular the degree to which governance should be embedded in institution(s), mandate and flexibility;

• relationship between policy level and science level;

• incentive for states to join the regime complex.

6.6.1 Options for overarching functions

6.6.1.1 Is there a need for an overarching institution addressing geoengineering?

It has been suggested that the main types of geoengineering, SRM and CDR, were so different that to formulate an overarching governance framework covering all geoengineering research and deployment was neither practicable nor desirable. 554 In contrast, some favor a centralised approach, with one institution or treaty, such as an additional protocol to the UNFCCC, addressing geoengineering. 555 Regarding a potential role of a central institution in the design

of the governance regime complex for geoengineering, the basic general options are:

• A central institution fulfilling overarching functions.

• No (additional) overarching functions and central institution (bearing in mind that the CBD has already started providing initial elements of overarching geoengineering governance).

• Intermediate forms: One scenario could be incremental change through the CBD plus complementary institutions providing other governance functions. Such institutions could be (i) a new, small and flexible political forum providing impulses to existing fora;

or (ii) e.g. more specialised expertise in sectoral fora such as oceans or atmosphere.

Some of the gaps identified above could suggest a need for one or more central institutions institution assuming at least some overarching governance functions. Useful overarching

functions include:

• Expressing the general prohibition in principle combined with specific exemptions;

• Developing other general overarching principles;



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