«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
Tentative Answer: Some suggested particular gaps include:
• Clearly separating scientific input and political decision-making. These two functions do not necessarily have to be performed at the same governance level.
Where deployment does not seem to raise serious problems, e.g. with artificial trees, there is no need for governing research and also no need for defining the boundary between research and deployment.
• The US is not a party to the main regimes in the emerging governance complex.
• Another problem is that the context in which geoengineering is discussed in not reflected in the current normative framework: In general terms the debate is often framed as setting the potential impacts of geoengineering against avoiding the potential impacts of climate change. However, the text of most environmental treaties does not appear to provide for taking into account such overall “net” effects of an activity, and there are no corresponding decisions on who would evaluate such impacts and over what scale. The precautionary principle on its own does not resolve the conflict between avoiding the effects of global climate change vis a vis avoiding the risks of geoengineering.
• Aerosol injection is one of the potentially more realistic geoengineering techniques.
However, it probably falls outside the scope of the LC/LP is not addressed by the specialised regimes for air quality.
Question 7: Is there a special need to specifically address private actors (based on the recent ocean fertilisation experiment off the Canadian coast)?
Tentative Answer: International law generally does not address private actors (exceptions are irrelevant here). Clear guidance regarding the obligations of states regarding private actors is desirable, e.g. a permit requirement.
8.2 Summary Summary report of the Workshop on International Governance of Geoengineering, 5-6 November 2012, Ecologic Institute, Berlin, Germany. It was held as part of the UBA research project “Approaches to regulating the research and deployment of geoengineering” (FKZ 3711 11 101).
The objective of the workshop was to discuss and assess specific governance options and proposals at the international level. A discussion paper was distributed before the workshop.
The workshop was under Chatham House rules and did not aim at reaching a consensus view on specific issues. The following minutes reflect views raised and discussed during the workshop. This summary does not report in detail the presentations given by speakers, which are collected as separate files and are part of the this report, as is the list of participants.
The workshop discussed and touched upon a number of issues in more or less depth. Some of the issues that were not discussed in detail are reported in bullet point format.
8.2.2 Background presentations
After presenting the background and aims of the workshop, a number of presentations set the scene for discussing specific issues. Ralph Bodle (Ecologic Institute) presented an overview of the state-of-play in selected fora, including an overview on existing international legal rules and regimes that are potentially relevant for geoengineering. Simone Schiele (CBD secretariat) explained the developments on geoengineering under the CBD, including decision X/20 of COP11 in October 2012. Harald Ginzky (UBA) presented the developments under the LC/LP, including its key resolutions (of 2008 and 2010), the adoption of a risk assessment framework for ocean fertilisation activities, and current proposals for a binding framework. Andy Parker (Harvard Kennedy School) presented the Solar Radiation Management Governance Initiative (SRMGI), an NGO-driven initiative with the aim to accelerate progress on the governance of geoengineering.
8.2.3 General points
General points discussed included:
• Geoengineering concepts had dual-use potential and therefore the intention behind a particular activity mattered for governance purposes.
• Geoengineering concepts could be classified into “encapsulated” activities, e.g. artificial trees, and open interventions with the physical environment.
• The criteria and objectives for governance design should distinguish between those that were essential and those that were merely desirable.
• The “criteria” in the discussion paper were not all criteria in the strict meaning of the term. Some were presumptions and objectives. Some were normative, some were political assessments, some both.
• It was noted that not all governance criteria listed in the discussion paper can be achieved at the same time and to the same degree. Different governance designs were likely to fulfil different criteria and objectives to different degrees. It was a political choice to be made, based on an assessment of these design options.
• There was a tension in the criteria between their purpose of restricting or facilitating geoengineering.
Options and Proposals for the International Governance of Geoengineering 8.2.4 Governance design
Participants made the following points and discussed the following issues:
• It was clarified that the range of governance design options included more than the simple alternatives of either one central, general regime or specialised regimes without a centre of gravity. These were just basic options and did not imply a “one size fits all” governance structure. The institutional perspective was broader than just treaties.
• There was a governance gap in respect of SRM and atmospheric geoengineering.
• Some participants argued that a technique-specific governance was best, because specialised regimes were effective. It was also argued that it could be left open whether a central institution was needed.
• Any division of labour between governance regimes would ultimately require some form of coordination, regardless of preferred or actual roles. Forum shopping was likely, but regime conflict was not necessarily a bad thing. It could mean more compliance and enforcement opportunities and more options for trying out different governance designs.
• The ILC was mentioned as a possible option for developing rules and principles, possibly as part of their new mandate to work on protection of the atmosphere. However, the ILC might take a long time to develop such guidance and it might not be sufficiently specific to be more than a contributory guidance regarding useful for geoengineering
• An international geoengineering agency with a comprehensive mandate was highly unlikely
• Several participants stressed transparency and public participation as elements of “good governance”. One participant argued that existing mechanisms were not very participatory.
The UNFCCC was at least an option, because the US is a party, it had a strong institutional structure and mechanisms. However, is had not been very successful in achieving its primary objective. Moreover, addressing geoengineering under the UNFCCC regime could open a can of worms (as argued in discussion paper).
8.2.5 In particular: CBD
The current and potential future role of the CBD was a recurrent issue during the workshop.
Some participants questioned whether the CBD’s mandate and expertise was sufficiently broad to address geoengineering in general and to give general guidance in this respect. It could be regarded as a sectoral agreement that is assuming a role it is unable to fulfil. For instance, small-scale research had no impact on biodiversity. In particular, how much further could CBD guidance go if in the medium-term there was no risk to biodiversity? In addition, geoengineering might benefit biodiversity, which could call into question the CBD’s credibility.
Participants also questioned the CBD’s suitability from a technical and scientific point of view.
For instance, the COP9 decision did not make scientific sense and used unsuitable terms such as “coastal waters”. Some regarded the previous processes under the CBD as being politicised to an extent that might suggest regulatory capture. Others argued that it was for parties to decide whether an issue could be addressed by the CBD. Although not every party had been
Options and Proposals for the International Governance of Geoengineering
comfortable with the CBD as a forum during the negotiations on previous decisions on geoengineering, no party was prepared to contend that the CBD was not an appropriate forum.
Some participants argued that the CBD was unsuitable because it did not include the US.
However, no participant questioned the work under the LC/LP on these grounds.
Other issues raised included:
• The problems identified with the CBD were not structural, but due to political will.
8.2.6 Normative perspective
One participant questioned the premise that current international law did not prohibit geoengineering as such. The duty to prevent transboundary harm required due diligence that is proportionate to the potential harm. For ultra-hazardous activities such as geoengineering, this amounted to an obligation of result. The nature of geoengineering was such that it was impossible to exclude damages with sufficient certainty. From that point of view, geoengineering was prohibited without needing recourse to the precautionary principle.
However, others challenged the notion that any geoengineering activity could be classified as ultra-hazardous.
One participant argued that a reversal of the burden of proof was impossible from a scientific point of view because it was impossible to prove a negative. However, it was pointed out that this was not true from a legal point of view, because the legal concept of “proof” was not necessarily the same as the scientific concept. It was possible and not uncommon in legal terms to require, and to perform, proving a negative, in order to e.g. obtain a permit or avoid liability.
A new treaty seemed was an unlikely option, as it was too complex and time consuming to negotiate. Existing mechanisms were the appropriate option. However, some new law-making would be required and could be not much faster to achieve than a new treaty. In addition, the ad hoc approach applied by the existing regimes so far led to governance gaps, e.g. regarding liability. A mechanism was needed to identify such gaps. Moreover, the existing governance regimes were not designed for close monitoring and dispute resolution, as this was unusual in environmental regimes. Arms control might provide examples and models in this regard.
Other issues raised included:
• Binding rules could be used as a “backstop”
• The LC/LP and the recent proposals under this regime showed the possible development of geoengineering governance from soft law to hard law
• Whether customary law was actually of practical relevance.
• There are different negotiating cultures in different regimes, which are e.g. influenced by which ministry is leading at the national level.
8.2.7 Moral hazard
Some particpants questioned why one of the objectives of geoengineering governance should be to ensure that geoengineering remained a “plan B”. If geoengineering techniques pproved to be safe and effective, there was no reason to refrain from using them as measures to adrress climate change. This would be not be a precautionary approach. To the contrary, it was also Options and Proposals for the International Governance of Geoengineering precautionary to gain more knowledge about whether geoengineering could be an option.
However, it was also argued that governance should prevent a lock-in. An exit strategy should be part of the governance structure.