«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
London Convention/Protocol Ocean fertilisation experiments are now regulated quite comprehensively under the LC/LP including a risk assessment framework. The CBD has referred to and incorporated this work in Options and Proposals for the International Governance of Geoengineering its own decisions, which extended the application of the guidance beyond the smaller number of Parties to the LC/LP. In 2010, the LC/LP agreed to continue its work towards providing a more comprehensive “control and regulatory mechanism” for ocean fertilisation.
Even though the parties enjoy a wide discretion for interpreting the LC/LP’s mandate, the LC/LP is limited to marine techniques. Although it includes major shipping states, it is a small regime with just over 40 parties and does not include the US. The LC/LP is spatially and materially limited to “dumping” activities in marine waters other than internal waters. However, in practice the LC/LP has been given a much wider scope by the parties in respect of ocean fertilisation, because the parties decided to further regulate “placement” rather than “dumping”. By defining the scope of what is outside the scope of dumping (placement), parties implicitly define what would be covered by it.
Currently the regulatory approach is a general prohibition through the definition of “placement” with the possibility of an exemption subject to certain procedural an material requirements combined in an "assessment framework". The framework are a normative effort to define "legitimate" research, but there could be concerns that the criteria are too numerous and restrictive as to be manageable without further elaborate procedures.
The governance efforts appear to be science-driven and the work of the LC/LP is lacking in transparency regarding e.g. access to documents.
However, the LC/LP has been the most dynamic regime regarding geoengineering so far, and its previous work has been successful in providing standards. There are recent proposals for a amendments to the LC/LP that would basically transform the current regulatory approach into a binding regime with a mandate to address all marine geoengineering techniques. Marine geoengineering techniques included in a positive list would be prohibited unless the listing provides that the activity or the subcategory of an activity may be authorized under a permit, which is subject to conditions contained in an annex. The proposal only lists ocean fertilisation.
The proposed definition of marine geoengineering is markedly different from other definitions in that it refers to the potential to manipulate natural processes and, similar to the ENMOD Convention, to the potential for widespread, long-lasting or severe effects. The LC/LP does not seem suitable for a central regime covering geoengineering in general, but its technical work on ocean fertilisation could be taken up or provide a model for other specialised regimes.
The climate regime (UNFCCC/KP) The climate regime (UNFCCC/KP) seems to be an obvious candidate for addressing geoengineering. The regime is global and the UNFCCC includes the US, and it has a strong institutional structure and a scientific underpinning linked to the work of the IPCC.
Accordingly, there have been suggestions outside the climate negotiations to address geoengineering under the UNFCCC, for instance by a new protocol. However, the climate regime has not done any notable or systematic work on geoengineering yet. At this stage all options for introducing geoengineering could seriously jeopardize the current already overcomplex climate negotiations and make geoengineering part of the trade-offs that are part of them. For instance, states might push for crediting some geoengineering techniques.
The climate regime is not well-suited for avoiding repercussions for mitigation. First, the regime is in a difficult phase of. Geoengineering could seriously disrupt the already overcomplex negotiations. Second, allowing offsets and credits is part of the regime's core logic.
International climate law is based on distinguishing mitigation and adaptation.
Geoengineering does not easily fit into these categories. While all geoengineering techniques are intended to counteract climate change and its effects, they do not address emission Options and Proposals for the International Governance of Geoengineering reductions, or how to adapt to a changed climate. Nevertheless, several geoengineering approaches can also be considered as climate change mitigation or adaptation, or both, for example, some ecosystem restoration activities. Geoengineering could for instance be addressed by the flexible mechanisms under the KP even if it is otherwise addressed elsewhere by a different instrument or institution. In this regard, the Kyoto Protocol has recently allowed CCS into the CDM, although CCS does not reduce the production of emissions. Apart from the issue of crediting, treating geoengineering as mitigation or adaptation could for instance have implications for funding institutions and their eligibility criteria. Finally, avoiding environmental and health impacts of action taken on climate change is not a prominent objective of the UNFCCC/KP.
To the extent that the CBD and other fora continue to address geoengineering, the need for coordination and consistency with climate objectives and law should be assessed.
Other institutions / fora The OSPAR Convention is a regional environmental convention with limited spatial scope and 16 contracting parties not including the US. Its annexes differentiate between methods of pollution placement/activities, and its governance approach is similar to the distinction under the LC/LP between “dumping” and “placement”. Decisions by the overarching OSPAR Commission can become binding through an opt-out procedure. Amendments of 2007 to allow for CCS in sub-seabed formations under certain conditions are in force for eight parties and are accompanied by further guidance. Ocean CO2 storage in the water column and storage of CO2 on the seabed (not: under the seabed) continue to be prohibited. Although OPSAR is a modern and flexible regime, and could potentially be relevant to ocean fertilisation and ocean liming, so far its main relevance is for sub-seabed CCS in relation to a limited number of parties and in a specific marine region.
Geoengineering will be part of the IPCC’s Fifth Assessment Report. However, the first order drafts available so far made virtually no contribution to the governance debate, although the IPCC has the mandate to address issues beyond the mere physical science of geoengineering.
The UN General Assembly has a broad mandate and potentially high political legitimacy.
However, it has done little work on geoengineering so far apart from endorsing the work on geoengineering under the LP/LP and the CBD. The sheer amount of topics it addresses and its often politicised work make it an unlikely candidate for specific geoengineering governance.
However, it could potentially provide general guidance.
8.1.5 Options for Future Framework
From a governance perspective, the existing legal hooks are not strong enough to carry the political weight of geoengineering. We may think of different models of international geoengineering governance. First, geoengineering governance may be centralised in one institution, existing or new. Second, we may think of a system of specialised institutions developing next to each other without much coordination, for instance in respect of marine techniques, space, and atmosphere. Third, a central institution could establish global (minimum) standards comprehensively to be applied as a default, while leaving room for compatible, more specialised regimes. The existing framework seems to tend towards the third model, with the CBD as a central, but not sole comprehensive framework and LC/LP as specialised regimes. As the CBD and LC/LP have legally and politically occupied the field to
Options and Proposals for the International Governance of Geoengineering
some extent, it might be useful to think along those lines for future governance.
Generally Which governance structure would be able to fulfil the necessary governance criteria and functions while at the same time providing sufficient buy-in from actors who might be sensitive to perceived over-regulation or overly burdensome structures and requirements?
Question 1: Do we need an overarching international institutional framework, i.e. an international institution that addresses geoengineering comprehensively (all techniques, all aspects)?
Tentative Answer: A central institution has important advantages, in particular because it could establish minimum standards comprehensively across all geoengineering techniques. This would not necessarily mean that other institutions could not play a (more specialised) role.
Question 2: Could the CBD be/become this central institution or would we need to create it from scratch?
Tentative Answer: The CBD has already occupied the field to a certain extent and is the centre of gravity in current governance. It has started addressing geoengineering in general, from an overarching perspective. It might be logical to build on the CBD’s work. It is somewhat uncertain whether and to what extent the CBD framework could fulfill the governance criteria in the future, e.g. whether it would be possible to develop a more binding framework.
However, the CBD's weaknesses do not seem sufficient reason to depart from the CBD at present. What institutional features/capacities are currently lacking in international geoengineering governance and how might they best be provided? Is the CBD well-suited to fulfill all necessary functions? How would the CBD need to be further developed?
Question 3: What role for other institutions (e.g. the LC/LP)?
Tentative Answer: Other institutions with a more specialised mandate such as the LC/LP as regards marine geoengineering techniques could allow to complement and deepen the global governance system selectively where there is particular demand, and they could provide important impulses for the further development of the global framework. However, are there promising candidates for all priority areas? Are there any major gaps that would need to be filled? How could potential conflicts and overlaps be addressed? What else might be needed to shape the relationship between relevant institutions (especially between the central and specialised ones)? How would the LC/LP and other specialised regimes need to be further developed? For instance, do we need more guidance in respect of aerosol injection techniques, where they are outside the scope of e.g. the LC/LP?
Question 4: Do we need a separate institution for (coordination of) scientific research/assessment? Which existing institution might be able to fulfill such a function? Is there a governance gap?
Tentative Answer: Research could be governed completely separately from deployment, but that would not seem to make much sense. It is more plausible to govern deployment and on this basis define exceptions or other special governance aspects for research. This requires clarity regarding what qualifies as "deployment" in contrast to research. Criteria could include the intention, the method employed, the scale of the activity, the physical risk or the funding.
From the perspective of the physical risk of an activity, a large-scale research activity will pose the same physical risks as "deployment": only the method and purpose will be “scientific”, but the activity's potential impacts will be the same as deployment. On the other hand, it might be argued that following certain procedures and implementing safeguards is what constitutes research, and that therefore such activities should be treated differently.
Options and Proposals for the International Governance of Geoengineering Question 5: Which arrangements would be best suited to avoid the "moral hazard", i.e. how can geoengineering governance avoid incentives for reducing mitigation efforts or ambition?
Tentative Answer: Certainty on this point would possibly require amending the crediting rules under the climate regime. However, there is a high risk of opening the can of worms instead of sealing it more tightly. It might therefore be useful to elaborate geoengineering governance outside the climate regime that may be expected to frame geoengineering in terms of offsets against mitigation.
Question 6: What are other significant shortcomings or gaps in the current governance framework and how can it be improved?