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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 Climate regime - UNFCCC / KP The climate regime seems to be an obvious candidate for addressing geoengineering. Apart from its mandate to address climate change, the regime has a strong institutional structure and a scientific underpinning linked to the work of the IPCC, which is providing scientific work on geoengineering in AR5 due in 2014. In addition, the US are party to the UNFCCC (albeit not to the KP). Accordingly, there have been suggestions outside the climate negotiations to address geoengineering under the UNFCCC, for instance by a new protocol. However, the UNFCCC and Kyoto Protocol have not addressed geoengineering concepts or governance. There were but few instances where geoengineering was mentioned in a marginal manner: 569 At one point the Executive Secretary of the UNFCCC warned that carbon dioxide removal techniques might have to be developed due to the slow process of the negotiations. A planned Joint IPCC Expert Meeting of several Working Groups on geoengineering sparked a submission by Bolivia to the UNFCCC demanding that the meeting’s agenda be changed so as not to consider it as an “option within the portfolio of mitigation options”. 570 Geoengineering was also included in a 2012 submission by the group of least developed countries containing a list of themes to be addressed at the regular research dialogue. However, the UNFCCC/KP still is the central regime for international climate policy and we address it as a potential central institution for geoengineering governance.

The climate regime -currently most likely the UNFCCC, potentially a new agreement adopted in 2015- would introduce a logic to geoengineering governance that is different from the current approach under the CBD and specialised regimes. The UNFCCC’s focus is on maximising effectiveness against climate change, combined with some environmental and other safeguards. The UNFCCC logic would be to focus on creating incentives for maximising CO2 sinks, as it does with forests and recently CCS. It is also highly likely to seek to combine this approach with market mechanisms and some environmental safeguards, as it does with the CDM and the currently developed so-called new market mechanisms. In addition, under the logic of the climate regime states would seek to obtain credits for doing geoengineering, e.g.

by defining accounting rules that quantify geoengineering activities as sinks. This pragmatic and specific approach could appear more attractive than the different logic underpinning the

CBD, and states might be more comfortable with using the UNFCCC’s institutional setup:

One possible scenario is that geoengineering would evolve not towards actual global deployment, but, for instance under the UNFCCC logic, towards being just another set of possible ways to address climate change. In this perspective, the UNFCCC logic could have the long-term positive effect of taking the political edge out of some aspects. The participation of the US would be an important additional factor. However, it remains doubtful whether the UNFCCC is also suitable for providing overarching central governance of geoengineering, as it is based on and deeply rooted in the mitigation and adaptation distinction. While the CDR techniques may fit into the category of sinks, SRM does not fit easily into these categories. The difficulty of fitting the key geoengineering techniques that most necessitate governance into the mitigation or adaptation structure of the climate regime could be an argument for keeping central and overarching geoengineering governance out of the climate regime. However, if and when crediting for geoengineering becomes a technical and political possibility, it could to this extent be addressed by flexible mechanisms under the KP or other crediting mechanisms On these instance see Bodle (2013) 466.

Bolivian Submission to Joint Workshop of Experts on Geoengineering", para 15; available at http:// unfccc.int.

Options and Proposals for the International Governance of Geoengineering under the UNFCCC or potential 2015 agreement, even if geoengineering is otherwise addressed elsewhere by a different instrument or institution.

There are also good reasons why the climate regime should continue to focus on its already highly complex body of rules and on-going negotiations on a future regime. At this stage all options for introducing geoengineering could seriously jeopardize the current climate negotiations and make geoengineering part of the trade-offs that are part of them. This could politicise geoengineering more than in the CBD, where it so far has not been made part of the bigger political packages.

Irrespective of the institutional governance structure, politically geoengineering is not separable from climate policy and the climate regime. If other fora begin or continue to address geoengineering, the need for co-ordination and consistency with climate objectives and law should be assessed. It could be that the existing formal and informal channels between the treaty regimes and international fora involved are sufficient.

UNEP UNEP is a further potential forum and actor for future geoengineering governance. It could come into play as an alternative or complementary to the CBD, and for overarching or specific geoengineering governance.

Since 1972 UNEP has served as the central UN body in the field of the environment with a mandate to “promote international co-operation in the field of the environment and to recommend, as appropriate, policies to this end”. Although UNEP has been an important player in catalyzing the negotiation of international agreements, its work has been hampered by a number of factors, including its broad mandate 572, its status as a subsidiary programme (as opposed to e.g. a specialised agency) and its limited resources. 573 In the course of the debates over recent years on improving UNEP’s organisational structure, two major options for institutional reform evolved: either upgrade UNEP to a UN specialised agency 574 or to strengthen UNEP within its legal status as a subsidiary programme. The outcome document of the Rio+20 Earth summit in 2012 followed the latter option: It invites the UNGA at its 67th session to “strengthen and upgrade” UNEP by inter alia establishing universal membership of the Governing Council, 575 providing for more secure funding, and strengthening engagement in key UN coordination bodies, the science-policy interface, information sharing, capacity building and technology access, participation of stakeholders. 576 In December 2012 the UNGA did establish universal membership and requested the Governing UN GA resolution 2997 (XVII), 15 December 1972 von Moltke (2001) argued that UNEP was given an impossible mandate.





For example, UNEP receives only a small contribution from the UN Regular Budget, accounting for less that 4% of UNEP financial resources. Apart from that, UNEP relies entirely on voluntary contributions, through the Environment Fund or in the form of earmarked funding for specific programme activities. These contributions are however highly variable. The total annual budget for 2012 was USD 239 million, UNEP Annual Report 2012, p. 113.

See Article 57 and 63 UN Charter.

The UNEP GC was originally composed of 58 member states representing the five UN regions.

UN Doc. A/CONF.216/L.1, “The future we want”, para 88.

Options and Proposals for the International Governance of Geoengineering Council to initiate the implementation of reforms proposed in the Rio+20 outcome document and to decide on future arrangements for the envisaged Global Ministerial Environment Forum. 577 The first session of the newly structured Governing Council was held in February 2013 and decided, inter alia, that future meetings will conclude with a high-level segment which is to provide strategic guidance, and that an open-ended Committee of Permanent Representatives is to function as an intersessional body. Furthermore, the Governing Council undertakes to ensure stakeholder participation and to promote a strong science-policy interface. 578 The Governing Council also agreed on its rules of procedure 579 and recommended that it be renamed “United Nations Environment Assembly”.

Despite restraints that significantly hampered the fulfilment of its objectives, 580 UNEP has played a significant normative role in catalyzing the negotiations of multilateral environmental agreements and in developing soft law instruments. Based on sequential ten-year Montevideo Programmes on Environmental Law, UNEP undertook the initiative to negotiate some of the most important instruments of international environmental law. 581 Its flagship project is the Regional Seas Programme which was launched in 1974 and has resulted in more than 30 regional conventions and protocols addressing the sustainable management and use of the marine and coastal environment. 582 UNEP also contributed significantly to the negotiation of the Ozone Convention and the Montreal Protocol, the CBD, CITES, the Convention on the Conservation of Migratory Species of Wild Animals, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, and the Stockholm Convention on Persistent Organic Pollutants. 583 For a number of these conventions, UNEP is carrying out secretariat functions. More recently, negotiations on an international agreement on mercury were initiated by UNEP in 2009 584 and completed under its auspices in January 2013. With regard to soft law instruments, UNEP has developed a number of guidelines and principles of conduct on environmental law. For example, a joint working group of UNEP and WMO prepared the 1980 Guidelines for National Legislation concerning Weather Modification, 585 which might provide impulses for future UNGA Res. 67/213.

UNEP GC, Draft decision prepared by the working group on institutional arrangements and rules of procedure, UNEP/GC.27/L.6. The officially adopted versions were not available at the time of writing.

UNEP GC, Draft decision prepared by the working group on institutional arrangements and rules of procedure, UNEP/GC.27/L.5.

Bauer (2007), notably limited autonomy and budget constraints.

Timoshenko (1994) 17; Petsonk (1990).

UNEP, Regional Seas Conventions. Online avaialble:

http://www.unep.org/regionalseas/programmes/conventions/default.asp Sands (2003) 83; Bauer (2007).

UNEP GC Decision 25/5 of 20 February 2009.

UNEP GC Decision 8/7/A of 29 April 1980.

Options and Proposals for the International Governance of Geoengineering geoengineering governance. Many of the UNEPs guidelines and principles have influenced the outcome of the negotiations on legally binding agreements. 586 As a potential forum for the regulation of geoengineering, UNEP has demonstrated its ability to identify environmental challenges at an early stage and to promote the development of international instruments. UNEP has the capacity to set the agenda, to provide scientific and legal input and to open a forum for negotiations. Many of the UNEPs initiatives for the negotiation of international environmental agreements have proven successful. More specifically, UNEP has addressed issues that are related to geoengineering, such as the 1980 Guidelines on Weather Modification, and the Ozone Convention and Montreal Protocol.

Despite this track record, given its background and the very recent beginning of institutional reform, questions remain as to UNEP’s ability and political weight regarding governance and normative functions in respect of geoengineering. While it is an option for overarching guidance, there is a risk that it will be unable to perform this function adequately, because it is slowed down by the need to implement its institutional reform, because it might be hesitant to touch this controversial topic, and because it might not have mustered sufficient political weight despite its reforms. Moreover, regime conflicts would have to be resolved as the CBD decisions are likely to remain in place and it is unclear whether UNEP activity would lead CBD to self-restraint.



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