«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
• Providing a first-stop shop for relevant issues;
The International Renewable Energy Agency might be regarded as an example.
HOUSE OF COMMONS SCIENCE AND TECHNOLOGY COMMITTEE (UK), supra note 18 at para 30.
Barrett, supra note 16 at 10-11.; Karen N. Scott, Marine Geo-engineering: A New Challenge for the Law of the Sea, in 18TH ANNUAL AUSTRALIA NEW ZEALAND SOCIETY OF INTERNATIONAL LAW (ANZSIL) CONFERENCE (2010), http://hdl.handle.net/10092/4878 ; Lin, supra note 14 at 18.
Options and Proposals for the International Governance of Geoengineering
• Providing coherence and coordination of specialised and sectoral arrangements: How can the individual institutions and norms fit together in order to form a working institutional complex;
• Regular scientific and regulatory review.
It is important to stress that by “central” we mean overarching but not supervisory. The task would basically be to “manage” the institutional complex so that its different elements create synergy rather than conflict with each other. The CBD has already assumed some of these functions, but only to some extent. Whether new or existing institutions are used for geoengineering governance, or whether a central approach is preferred, there will be a need for coordination with other institutions. Establishing a new set or rules or pursuing geoengineering governance through a particular institution does not repeal or override the mandate of existing institutions. Other institutions could still address geoengineering in a different manner. States can act differently in different fora, depending e.g. on internal responsibilities, different balances of power or public interest.
However, the risks of fragmentation do not necessarily speak in favour of a completely centralised regime. There is empirical evidence suggesting that institutional fragmentation and interaction can produce synergies and improve governance. 556 In the case of ocean fertilisation governance, the interaction between the groundwork by the LC/LP, the CBD building on the LC/LP and the UN General Assembly recalling their outcomes could be regarded as an example of existing institutions coordinating their work and aiming at avoiding inconsistency. 557 Yet generally, governance conflicts arising from differing objectives, membership or means of governance could arise and should be avoided as much as possible. 558 Lack of coordination or a deliberately decentralised framework could lead to a fragmented governance with potentially competing or conflicting rules, unclear legal status and different political weight or scientific underpinnings. While e.g. UNESCO seeks to serve as an “honest broker” in a global discussion of geoengineering, 559 there has been open dispute about which role UNESCO’s IOC should have besides the LC/LP. At the IOC Assembly meeting in 2010, several member states suggested that there was no need to evaluate ocean fertilisation experiments and operations, because of the on-going work in other fora. 560 The US preferred that the legal aspects be exclusively dealt with by LC/LP and opposed IOC participation other than scientific and technical input 561 - which the IOC subsequently produced. 562 Gehring and Oberthür (2006) 318-321.
UNESCO Intergovernmental Oceanographic Commission (IOC), Report of the Twenty-fifth Session of the Assembly.
Paris, 16–25 June 2009. UNESCO Doc. IOC-XXV/3 para 385-386, 395 (2009), http://ioc-unesco.org.
Gehring and Oberthür (2006) 313.
UNESCO, Experts advocate geoengineering research programme- Summary of UNESCO expert meeting on 12 November 2011, 9 A World of Science (UNESCO), 11 (2011).
UNESCO DOC. IOC-XXV/3 para 142.
UNESCO Intergovernmental Oceanographic Commission (IOC), Report of the Forty-third Session of the Executive Council. Paris, 8–16 June 2010. UNESCO Doc. IOC/EC-XLIII/3 para 155 and Annex IX p. 19 (2010), http://iocunesco.org. India and the UK also noted their position in this respect in the official report.
DWR WALLACE ET AL., OCEAN FERTILIZATION. A SCIENTIFIC SUMMARY FOR POLICY MAKERS. IOC/UNESCO, PARIS(IOC/BRO/2010/2) (2010), http://unesdoc.unesco.org/images/0019/001906/190674e.pdf.
Options and Proposals for the International Governance of Geoengineering Therefore the need for coordination with other treaties and institutions will remain. For example, the role of the UNFCCC would logically be to possibly provide incentives for certain technologies (e.g. through CDM under the KP or other market mechanisms), but this role should respect the general approach of the CBD or other central geoengineering institution.
188.8.131.52 Who could perform overarching functions?
Since there is a range of different geoengineering concepts with potentially wide-ranging but mostly unknown effects, several international environmental or scientific institutions with governance functions could arguably address geoengineering on the basis that it falls within their respective remit. Most existing multilateral environmental agreements have established permanent institutional structures with broad mandates to implement the treaty. Although none of these treaties were drafted with geoengineering in mind, parties are in principle free to agree on an interpretation of the treaty provisions, for instance, by clarifying its scope, the mandate of the COP, or by giving special meaning to terms. 563 It has been argued that at present, no international treaties or institutions exist with a sufficient mandate to regulate the full spectrum of possible geoengineering activities. 564 However, some of the existing rules 565 and institutions could encompass the full range of geoengineering concepts. For instance, as for institutions there is no reason why the mandate of UNEP, for example, should not cover all geoengineering concepts currently discussed.
Whether the means and instruments at the disposal of these institutions and regimes are regarded as adequate or sufficient is of course a different matter. So far only the CBD has already explicitly addressed the full range of geoengineering from a governance perspective, provided that it affects biodiversity. From a global perspective, the different existing regimes and institutions that could address geoengineering have different legal and political weight, depending on various factors such as their respective levels of participation.
The following analysis focuses mostly on institutions that have been active in some form or other in geoengineering, and it excludes many non-active institutions as clearly unsuitable for overarching governance (e.g. the regime on outer space).
CBD The CBD appears willing to assume a central role in the governance of geoengineering and has already adopted initial steps in this regard. The CBD fulfils some functions of our proposed governance elements at least to some extent (see gap analysis above).
Pursuing this role is not outside the CBD’s mandate. The decisions were adopted by consensus within the framework of a treaty with near universal participation. At least politically this has made redundant potential concerns about whether the CBD’s mandate actually covers all geoengineering techniques. 566 Legally, the decisions could be regarded as an implicit interpretation of the mandate by parties. Besides, it is difficult to conceive of geoengineering Article 31(3(a), (b) and (4) of the VCLT.
Lattanzio and Barbour (2010) 3; Barrett (2008).
Cf. chapter 3.Concerns were raised 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 activities within CBD’s definition that may not at least potentially affect biodiversity and thus not fall within one of the CBD’s objectives, i.e. the conservation of biodiversity.
Apart from the shortcomings of the actual decisions on geoengineering analysed above (see sections 5.1.2 and 0), there are more general points that might argue against the CBD and which might be trade-offs to consider. One is that the US is not a party.
There are also concerns about scientific views being absorbed in CBD’s political process, as well as concerns that the CBD may be an ineffective “talking shop”. To some extent these concerns appear to be rooted in the normal process within a big multilateral regime with a very broad mandate (see above). In addition, the overarching functions we propose do not necessarily require a more solid and effective regime. By adopting the decisions on geoengineering the CBD may have already demonstrated that compared to other comparably large regimes is sufficiently flexible and pragmatic, e.g. in starting a process, inviting experts and providing basic guidance on an emerging specific issue.
Another question relates to how the overarching institution could relate to the other institutions (a) that are already involved in geoengineering governance and (b) that could become involved in future. Like the other overarching institutions, the CBD started by addressing ocean fertilisation, and drawing on work and expertise from specialised regimes such as the LC/LP. For the CBD as a central geoengineering governance institution, there is a governance gap in respect of formalising its link to other institutions in the field and clarifying the CBD’s role, e.g. for sharing research results. The current pragmatic approach and informal links are likely to work only as long as geoengineering stays at relatively low level politically.
In respect of the climate context, the CBD’s governance is on the face of it without prejudice to climate policy. However, the logic underpinning the CBD is different from the climate regime under the UNFCCC: Protecting biodiversity is different from reducing emissions and adapting to climate change (see above). These different paradigms could eventually lead to regime conflicts. In other areas, such as the Nagoya Protocol on ABS, the CBD regime adopted an approach whereby the CBD instrument stated that other institutions who are involved or want to be involved in governing this area should respect the CBD framework. 567 Adopting this approach for geoengineering governance would require careful consideration due to its potential for entrenching rather than mitigating or resolving regime conflicts.
In the emerging regime complex, the CBD is the only institution that has addressed geoengineering in general and provided overarching political guidance. There is also a mandate for the CBD bodies to do further work on the basis of the existing guidance. However, the CBD debate has been politicised to some degree and its intention about its future direction is not clear. It is also not clear whether there will be political impetus to actively develop further the guidance in a normative manner. The CBD has outlined further work on geoengineering governance but also acknowledged that regulatory mechanisms may not be best placed under it. It remains to be seen whether the shortcomings are outweighed by the advantage of having taken the initiative and having recourse to a strong institutional backbone including a scientific and a political level. 568 Cf. Article 4.1-4.3 of the Nagoya Protocol.
CBD decision X/33, para 9 (l)-(m); see also decisions X/29, para 57-62, X/13, para 4.