5.3.1 International law
Most of international law was developed before geoengineering was a significant issue and, as such, does not currently contain explicit references to geoengineering approaches. The ENMOD Treaty is a special case, as it addresses large scale modifications of the environment, albeit in the context of international humanitarian law. Recent developments under the LC/LP and the CBD have produced pertinent rules specifically on geoengineering in general or particular techniques. However, some of these rules have been adopted in the form of decisions by treaty bodies and are not binding in the strict legal sense.
Geoengineering is currently not as such prohibited by international law. Potential application of specific rules and restriction on geoengineering would depend on specific actual or potential impacts, depending on the rule in question. Whether such impacts would actually occur is difficult to assess or predict at this stage.445
There is minimal common legal ground regarding cross-cutting legal rules and principles that could apply to geoengineering. Customary law provides few rules applicable to all states and all geoengineering concepts. Their content is not specific enough to provide clear guidance as to specific geoengineering techniques. In addition, customary rules are subject to and can be derogated from by special rules agreed between states.446 For instance, arguably a state that is party to and complies with a particular environmental treaty regime would probably not be in breach of the customary rule on preventing transboundary environmental harm if the activity falls within the scope of the treaty and the state complies with it.
The precautionary principle or approach does not help in resolving the problem of
determining the “lesser evil”, i.e. choosing between the potential impacts of geoengineering and facing the impacts of climate change that are inevitable or assumed to happen without geoengineering.
The text of most treaties does not appear to provide for taking into account the overall “net”
effects on the broader environment in comparison to harm avoided and there are no corresponding decisions on who would evaluate such impacts and over what scale.447
The CBD decisions on geoengineering do not mean that the question of whether and how to consider international geoengineering governance is resolved.
445 Bodle (et al (2012) para 182 and 186.
446 Unless the rules have ius cogens status, which would raise additional questions. However, none of the rules discussed here are isu cogens.
447 Bodle et al (2012) 144.
Virtually all treaties examined impose procedural obligations on geoengineering activities falling within their scope of application.448 Most of them include some kind of reporting obligations regarding the implementation of the treaty, which could include geoengineering activities. There are several treaties with an obligation to conduct an impact assessment regarding certain activities, and ICJ has stated that there is a corresponding obligation under customary law. It is also argued that there is a general customary duty to cooperate, but it is unclear to what extent and under which conditions this would entail specific procedural obligations for a state pursuing in geoengineering activities.
In legal terms, the mandate of the CBD COP and many international regimes and institutions would allow them to address geoengineering, or some aspects of it, even if they have not done so to date. This raises questions regarding different treaties or institutions potentially
competing for addressing geoengineering with overlapping or inconsistent rules or guidance.449
The overall findings do not substantially deviate from the previous main legal studies.
Differences in detail are mostly academic.
5.3.2 EU and German law
With the exception of CCS there is currently no explicit regulation of geoengineering in EU law or in German law. However, existing environmental rules and standards of EU and German law do already apply to geoengineering techniques to some extent.
General provisions of EU and German law applicable to each of these techniques include the precautionary principle, the principle of the protection of the environment, basic individual rights including the right to freedom of research.
The injection of large amounts of sulfate aerosols into the stratosphere above Member States´
territory is permissible as long as it does not substantially contribute to exceeding the national emission ceiling according to Directive 2001/81/EC and the 39th Federal Immission Control Ordinance transposing the Directive into German law. This depends on the amount of SO2
injected into the stratosphere. However, the discharge of substances as sulfate aerosols out of or from aircraft is generally forbidden by section 7 (1) of the Federal Air Traffic Ordinance, but may be allowed for if any danger for human safety or property is excluded.
CCS is of special interest, as it is more developed, both technically and legally, than other CDR techniques. CCS is regulated by the CCS Directive including amendments to other Directives, which as of yet have been transposed to German law only to a small extent.
Air capture installations are not included in the annexes of EU and German legislation governing installations subject to licensing, but are regulated by the rules of the Federal Immission Control Act concerning installations not subject to licensing, especially the
obligation to be able to dispose of the produced waste in a proper way. However, this may not be sufficient to adequately cover the pollution risks of the chemicals involved in the process.
Biomass and biochar techniques are regulated to some extent by EU and German legislation on installations as well as legislation concerning the deposition of biomass into or on soils. With the exception of charcoal made of wood which has not been treated chemically, no sound legal
448 Bodle et al (2012) 144.
449 Bodle (2010) 321.
basis exists for the use of biochar as fertiliser. Biomass disposal without fertilising effect is generally not permissible according to EU and German Waste laws.
The increase of the pH value of waters as a result of enhanced weathering might interfere with EU and German legislation on waters requiring the preservation or attainment of a good ecological and chemical status of surface waters. Further examination is also required for an assessment of the conformity of this technique with Federal soil legislation.