Gaps in the existing governance

From a normative perspective, there are some legal rules of international law that apply to all or some geoengineering techniques and might regulate them. However, the scope and effect of these rules depend on the potential environmental impact of the activity, which is currently difficult to assess or predict (see section 5). A key shortcoming of these rules for governance purposes is their lack of specificity and thus legal certainty, and their retroactive nature: They

536 Acknowledging scientific uncertainty regarding the available knowledge.

537 Higher if vegetation was changed at large scale.

are mainly suitable for being invoked after the geoengineering activity has taken place, but they are insufficient for providing guidance regarding procedures and safeguards in advance of a geoengineering activity - whether research or deployment. In addition, the customary rules are not embedded in an institutional structure that could provide a forum and procedures for agreement and decision-making.

There already are regimes that specifically address geoengineering, although there is no clear central structure (see above). In contrast, several regimes could address geoengineering or have briefly done so but do not appear active in governance terms. For instance, the Rio+20 outcome briefly mentioned only ocean fertilisation in a brief paragraph, but clearly made no

governance effort.⁵³⁸ Another example is the ENMOD Convention, the rules of which would apply to geoengineering only in armed conflict, and which has no institutional underpinning to provide guidance at present. The gap analysis therefore focuses on the few regimes that are active in this regard.

From a pragmatic point of view, political feasibility is an important aspect. This would have to take into account the extent to which existing structures are likely to continue to address geoengineering. In particular, it requires assessing to what exent the current and potential future work of the CBD and LC/LP are legally and factuallyoccupying the field, and how this pre-determines the choice of fora and content. This section focuses on CBD and LC/LP since these seem to be the only institutions that have adopted relevant and specific regulation/rules.

OSPAR has addressed some specific aspects of CCS in the ocean, but is regionally limited to a specific region and does not seem to be taking geoengineering issues further.

6.5.2.1 CBD decisions as overarching governance

With the explicit exclusion of CCS, the CBD’s general decision X/33 of 2010 and the follow-up decision XI/20 in principle address all geoengineering techniques that fall within its broad definition - although the definition is a shortcoming. The CBD decisions are partially in line with our general normative approach: They explicitly pursue a precautionary approach and the text shows the intention to prohibit geoengineering activities in principle, subject to

exceptions. The CBD also has broad participation with almost universal participation, which could help in avoiding unilateral action, although the US is not a party to the CBD. The CBD is also in line with our approach in that decision XI/20 emphasises that climate change should primarily be addressed through mitigation under the UNFCCC,⁵³⁹ and in noting that

governance should focus on activities that have the potential to cause significant

transboundary harm.⁵⁴⁰ It generally notes the difficulty of governing geoengineering, especially since current geoengineering approaches are not sufficiently effective, safe and affordable.⁵⁴¹ However, there are also several shortcomings (see section 4): On the basis that the decisions are not binding as such, the chapeau’s wording in para 8 of decision X/33 is weak and does not

538 “The future we want”, UN GA Res. 66/288, para 167: “We stress our concern about the potential environmental impacts of ocean fertilization. In this regard, we recall the decisions related to ocean fertilization adopted by the relevant intergovernmental bodies, and resolve to continue addressing with utmost caution ocean fertilization, consistent with the precautionary approach”.

539 XI/20, para. 4.

540 XI/20, para. 8.

541 XI/20, para. 6

provide much normative or political weight. Further, the wording of para 8 in decision X/33 is ambiguous in places. The definition only includes large-scale activities and is too broad to adequately serve normative purposes on its own. The additional definitions in the follow-up decision confuse the issue rather than clarify. The exemptions regarding research activities are ambiguous in that they refer to the scale of the activity with weak additional guidance.

Decision X/33 also introduces the new and potentially problematic concept of “justified”

scientific research, leaving unclear whether it is meant to be different from the concept of

“legitimate” research used in the CBD and LC/LP decisions on ocean fertilisation.⁵⁴²

The follow-up decision XI/20 of 2012 addresses these main shortcomings only in some minimal respect. It reaffirms decision X/33 but does not add normative content, except in noting that the precautionary approach and customary international law are an insufficient basis for regulation. In some respects the decision might be regarded as a step backwards in terms of clarity. While decision X/33 included a preliminary definition of geoengineering, the 2012 decision lists four possible options, including the previous preliminary definition of 2010, a definition provided by the expert groups, and two different IPCC definitions. The CBD does not express any preference for a definition.⁵⁴³ The main normative gap remains that the unclear definition and wording do not provide adequate certainty which activities are intended to be restricted or allowed.

In other respects, the CBD has made small first steps towards providing an international forum for assessing and further developing scientific knowledge and guidance. Following the 2012 reports, CBD COP11 provided a mandate for distributing this information to other regimes, for updating the reports and for making available voluntary reporting by parties through the clearing-house mechanism.⁵⁴⁴ The CBD also requests SBSTTA to consider the outcome of the IPCC Fifth Assessment Report.⁵⁴⁵

Regarding institutional design, the CBD has a permanent institutional structure with regular meetings for further developing guidance. Its structures and procedures are similar to most COPs under multilateral environmental treaties. There is a subsidiary body for providing

technical input, while COP decisions are adopted in public by consensus of party delegates with political mandates. There have been concerns among scientists about the CBD process,⁵⁴⁶ but these would seem to be based on a general uneasiness about translating scientific views into political negotiations and the political compromises decisions - which is perhaps regrettable but normal in the context of negotiating a specific COP decision under a major and large multilateral regime. Besides its general guidance, however, the CBD has not established or outlined procedures for dealing with geoengineering activities and left the implementation of its guidance to the parties.

Generally, the CBD has at least factually, to a small extent legally and to a larger extent politically occupied the field by providing general and overarching governance covering all geoengineering activities in principle. The nascent governance elements in the follow-up

542 CBD COP decisions X/33, para 8(x) and X/29, para 59; cf. Royal Society (UK)(2009)41.

543 XI/20, para. 5

544 XI/20, paras. 9 and 15

545 XI/20, para. 14

546 At the Workshop on International Governance of Geoengineering, Ecologic Institute, Berlin, 5-6 November 2012 - see the summary in Annex II.

decision XI/20 in 2012 indicate that the CBD seeks or is willing to play a central role. On the other hand, the CBD has relied heavily on the work done under the LC/LP, adding its own guidance while at the same time referring back to the LC/LP. Therefore the institutional set-up and the guidance are not fully clear and the place of the CBD in the international governance of geoengineering is not fully established. One ensuing question is whether the CBD is capable of further developing its governance, in particular of further differentiating between different geoengineering techniques, which might be necessary, depending on further developments.

6.5.2.2 LC/LP

In terms of substance, the LC/LP has factually and to a large extent politically occupied the field for ocean fertilisation governance:

The handling by the LC/LP of the 2012 ocean fertilisation experiment could be an indication that the governance framework in place avoids potential political conflict.⁵⁴⁷ The assessment framework also appears to address potential environmental and health impacts as far as possible at this stage. It also incorporates a precautionary approach and seems to be without prejudice to climate policy. The framework addresses research through elaborate criteria for

“legitimate research” that is exempt from the prohibition and the proposed amendments would allow for flexibility regarding different marine geoengineering techniques. The parties have also begun to address the need for science overviews on ocean fertilisation and consider developing a web-based repository of references relating to the application of the Assessment Framework, which the US supports.⁵⁴⁸

However, there are general and technical shortcomings: In terms of participation the LC/LP is a relatively small and specialised regime that does not include the US,⁵⁴⁹ although it covers a significant part of global shipping.⁵⁵⁰ The small number of parties may have contributed to what so far appears to be a largely science-driven approach. The proposed governance framework is flexible in that it could include other marine geoengineering techniques,

although it remains to be seen to what extent the amendment proposals are adopted and enter into force. Even then, the LC/LP is generally limited to marine geoengineering techniques.

Although the general normative approach under the LC/LP for ocean fertilisation is similar to our general normative approach of a general prohibition with exemptions, under the

amendment proposal marine geoengineering activities would first have to be included in the list of restricted activities.

The fact that the LC/LP is a small and more technical regime under the UNCLOS might be a reason why its work does not appear to have attracted much publicity in the media and in the

547 Report of the 34th Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter , LC Doc LC 35/15 of 23 November 2012, para 4.1-4.3 and annex 3; for media reaction to the experiment cf. also “World's biggest geoengineering experiment 'violates' UN rules, The Guardian, 15. October 2012, http://www.guardian.co.uk/environment/2012/oct/15/.

548 Report of the 34th Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter , LC Doc LC 35/15 of 23 November 2012, para 4.25-4.27

549 There were 87 Parties to the London Convention and 42 Parties to the London Protocol as of 29 October November 2012. The US is party to the LC and has signed but not ratified the LP.

550 The Parties represent about two thirds and one third, respectively, of global merchant shipping tonnage (IMO press briefing 50/2010, 20 October 2010).

eye of the general public. This might have been beneficial so far as it might have enabled focused and less politicised work, but this could change with growing interest in

geoengineering. As a more technical matter in terms of transparency, ? it is difficult to find and access documents via the IMO.

6.5.3 Conclusions from gap analysis: Which geoengineering techniques should be subject to international governance?

The analysis above shows the current institutional and normative approach to be as follows:

The main gaps are that certain techniques, in particular atmospheric SRM by aerosol injection, are not covered by governance and regulatory structures that are adequate according to our proposed main governance elements. Although it may be tempting to seek legal guidance from cross-cutting general rules and principles of international law, and to apply them to new issues such as geoengineering, there is a risk of imputing the desired normative content into such rules. Overburdening general rules in this manner could be detrimental to their acceptance and legal value.⁵⁵¹ In this respect the existing legal hooks do not carry the political weight of geoengineering.⁵⁵²

There is a central and almost global forum, the CBD, with provisional overarching governance ambition. There also are specific fora, mainly LC/LP and to some extent OSPAR, which within their mandate have extended their application to ocean fertilisation and ocean CCS. The central forum draws on the work in one of the specific fora. However, the institutional set-up and the guidance are not fully clear and the place of the CBD in the international governance of geoengineering is not fully established. The LC/LP is much advanced from a normative perspective, but it is a specialised and comparatively small regime with limited material scope.

Although its work has been taken on by other regimes in the past, it is not clear to what extent this could continue. The overarching international governance structure is also weak in terms of providing or compiling scientific assessments, providing a common forum for keeping developments under review and discussing common approaches.