Geneva Dialogues 7.4

8/6/2019 Geneva Dialogues 7.4

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“If Climate Negotiations Cannot Do it,

What Will? Considering ‘Plan B’:Climate Geoengineering”

Geneva Dialogues, 7 April 2011

Catherine RedgwellProfessor of International Law

Faculty of Laws

University College London

[email protected]



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What is geoengineering?• Includes all methods which involve deliberate large-

scale intervention in the working of the Earth’s

natural climate system

• E.g. 2009 UK Royal Society Report Geoengineering

the Climate: Science, Governance and Uncertainty

divides methods between direct carbon dioxide

removal (CDR) such as ocean fertilization and air

capture, and solar radiation management (SRM) to

decrease warming eg. space sunshades, cloud

brightening, stratospheric particulates (‘aerosols’).





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• These uncertainties echo the 2007 Assessment Report ofthe IPCC, which identified potential mitigation measures

including ‘geoengineering options, such as oceanfertilization to remove CO2 directly from the atmosphere’whilst also noting that such methods remain ‘largelyspeculative and unproven, and with the risk of unknown

side-effects’

• Geoengineering will be considered across all threeworking groups of the IPCC in its fifth assessment report

(2014) with the (first) Joint IPCC Expert Meeting ofWorking Groups I, II and III on Geoengineering to be heldin June 2011 in Lima.



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All options together



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The Human Dimension(Public Attitudes, Legal, Social, & Ethical Issues)

• NOT plotted on this diagram; ‘blobs’ may migrate owing toethical, social and legal factors

• Whether, and under what conditions, any geoengineering

methods are actually deployed will be determined as muchby social, legal, economic and political factors as by scientificand technical factors

• Governance BEFORE deployment: “It would be highlyundesirable for geo-engineering methods… to be deployedbefore appropriate governance mechanisms are inplace.”(Royal Society Report). How much before??



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Governance of geoengineering

• No ‘one size fits all’ solution; nor is it helpful tospeak of geoengineering methods en bloc

• Key points of distinction all of which bear ongovernance, such as: time scale (speed ofimplementation; impact on global temperature);reversibility (including issues of economic and social

‘lock-in’); encapsulation; location of activities;(extent and nature of) impacts; and who carries themout.

• Science-based distinctions (eg CDR, SRM) andGovernance-based distinctions according to methodand its impacts (local or ‘wholly national’;transboundary; global)



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• Ultimately winners and losers, as for effects of climate change,raising serious governance issues of, inter alia: intra- and inter-generational equity; compensation (eg perturbations of weathersystems, impacts on precipitation) and liability issues (channellingand limiting for example), capacity building and technologytransfer (proprietary interests or freely available?).

• No single treaty or institution with a sufficiently broad mandate toaddress all aspects of geoengineering, particularly bearing in mind

this diversity of methods and their impacts. Likely a combination oflocal/national/regional/international regulation (as for climatechange itself).

• Generally applicable instruments (eg ENMOD; UNFCCC. CBD);those applicable to particular methods or areas (eg LC/LP; OuterSpace Treaty); and customary international law (eg no harmprinciple)



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Key Questions:

• The big picture: Who decides whether, and when, to conduct

research and/or deploy? The ‘international community’ or thoseState(s) actually engaged in the activity? If the former, is the climatechange regime the appropriate embodiment of ‘the internationalcommunity’ for the purpose of representative decision-making onwhether to engage in geoengineering, even if particular methods are

(also) regulated by particular treaty instruments?

• The detail: To what extent do existing treaty mechanisms apply, orcan they be adapted, to address particular geoengineeringtechniques? Consider: (i) Object and purpose; (ii) the regulated

behaviour/substances; (iii) flexibility/methods for adaptation; (iv)institutions; (v) mechanisms for enforcement or compliance and/orliability (vi) participation.



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Existing approaches to the question of the extent ofinternational legal regulation of geoengineering

Catalogue existing treaties by virtue of geographicand substantive scope:

• Where does the treaty apply?

• What activities/substances are regulated by it?

• What substantive standards, if any, apply(benchmarks, threshold of harm, etc)?

• What institutional and enforcement machineryexists, if any?

• How widespread is participation? Is it a ‘livinginstrument’ or a ‘sleeping treaty’?

• Is there an exit?



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Snapshot of potentially applicableinternational rules and instruments

• Certain generally applicable customary obligations , such as thegeneral obligation on States to regulate actors and activities under

their jurisdiction and control so as not to cause transboundary harm toother States, or to areas beyond national jurisdiction; duty to notify andto consult [note frailties of cil – no institutional building or permittingregime for example]

• Range of treaty instruments could apply to specific geoengineering methods, eg ENMOD, LRTAP, Ozone Convention andOuter Space Treaty for SRM methods depending on their location andeffects; UNCLOS, CBD, LC/LP, regional marine pollution instruments

for CDR (ocean fertilization in particular). Even for encapsulatedactivities wholly within the State, without likely transboundary effectsthere may be additional obligations to conduct EIA, and to refrain fromactivities on or near, or mitigate impacts on, areas protected underinternational instruments (world heritage, wetlands etc).



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Generally applicable instruments: the 1992UNFCCC and 1997 KP• No explicit mention of geoengineering

• General obligation to ‘use appropriate methods, e.g. impactassessment… with a view to minimising adverse effects on…thequality of the environment of projects or measures undertaken tomitigate or adapt to climate change’.

• Establishes a significant institutional structure for internationalgovernance of the climate regime, and the climate changesecretariat already cooperates with the other two Rio Conventions(the CBD and UNCCD) on mutually supportive activities,suggesting a possible role for fostering linkages and developingcommon approaches.

• For all carbon capture techniques, question of eligibility forcertification under the KP (or a successor arrangement, if any)under the clean development mechanism (CDM) or jointimplementation (JI) – though questions of such eligibility are only

one element in wider decision-making processes regardingwhether the technology should proceed.



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1976 Convention on the Prohibition of Military or anyOther Hostile Use of Environmental ModificationTechniques (ENMOD)

• concerned to establish limits on use of environment as a weapon or

an instrumentality of military operations; recognises value of enmodfor peaceful purposes and that ‘it could improve the interrelationshipof man and nature and contribute to the preservation and improvementof the environment for the benefit of present and future generations’

• Applies to ‘any technique for changing – through the deliberatemanipulation of natural processes – the dynamics, composition orstructure of the earth, including its biota, lithosphere, hydrosphere andatmosphere, or of outer space’

• Fundamentally, however, concerned to prevent military or otherhostile uses of enmod techniques, not to regulate their peaceful useeg to combat climate change [note some make argumentgeoengineering = hostile ]

• Largely a ‘sleeping treaty’ to date; back stop function (prohibition)



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International Regulation of SRM

• Regional 1979 LRTAP and (8) Protocols likewise do not

directly address geoengineering; only applicable shouldthe substances placed in the atmosphere (eg chemicalaerosols) constitute ‘air pollution’ (‘the introduction byman… of substances or energy into the air’) which theParties pledge to limit and reduce and such substance‘results in deleterious effects of such a nature as toendanger human health, harm living resources andecosystems and material property and impair or interferewith amenities and other legitimate uses of the

environment’; obligation only to exchange info redischarge of ‘air pollutants which may have adverseeffects’ . Would need amendment/new protocol and onlyregional in scope (ECE treaty)





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Problems of treaty interpretation

• (Good) intent or (bad) result? If, say, a substanceintroduced as a result of geoengineering has or is likely to

have an adverse or deleterious effect on [the atmosphere][the ozone layer] do ‘good intentions’ (geoengineering toavert catastrophic climate change) negate the potential oractual adverse effects on [the atmosphere] [the ozone

layer]?

• ‘Clash’ of the precautionary principle : avoidresearch/deployment given potential side effects of

geoengineering or promote research/deployment in theface of uncertainties and risks posed by climate changeitself?



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Ocean Iron Fertilization – 1972 LondonConvention (LC) and 1996 Protocol (LP)

• the question of control over geoengineering research andexperimentation has already arisen

• In 2008 the parties to the global 1972 LC (replaced by the1996 Protocol for States party to both), adopted a

resolution agreeing that ocean fertilization is governed bythe treaty but that legitimate scientific research isexempted from its definition of dumping

• The assessment framework being developed by theScientific Groups under the LC/LP will provide theparameters for assessing whether a proposed oceanfertilisation activity is ‘legitimate scientific research’consistent with the aims of the Convention



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Geoengineering and the 1992 Convention onBiological Diversity (CBD)

• The parties to the 1992 CBD debated adopting a moratorium on all oceanfertilization activities but ultimately followed the LC/LP approach

• States parties are requested (and other governments ‘urged’) to ensure thatocean fertilization activities do not take place until there is an adequatescientific basis on which to justify such activities and a ‘global transparentand effective control and regulatory mechanism is in place for theseactivities’. An exception is made for small-scale research studies within‘coastal waters’ for scientific purposes, without generation or selling of carbonoffsets or for any other commercial purposes (Conference of the Parties (COP)9 Decision IX/16 2008).

• Matter considered again in 2010:

• 2010 CBD SBSTTA 14 Report (to CoP) calls on the Parties to ‘[e]nsure, inline and consistent with decision IX/16 C, on ocean fertilization and biodiversityand climate change, and in accordance with the precautionary approach, thatno climate-related geo-engineering activities take place until there is anadequate scientific basis on which to justify such activities and appropriateconsideration of the associated risks for the environment and biodiversity and

associated social, economic and cultural impacts’



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• Nagoya COP 2010 adopted Decision X/33 on biodiversity and climatechange which, inter alia:

• “Invites Parties and other governments, according to national

circumstances and priorities…to [e]nsure…in the absence of sciencebased, global, transparent and effective control and regulatorymechanisms for geo-engineering…that no climate-related geo-engineering activities…that may affect biodiversity take place,until there is an adequate scientific basis on which to justify such

activities and appropriate consideration of the associated risks for theenvironment and biodiversity and associated social, economic andcultural impacts, with the exception of small scale scientificresearch studies that would be conducted in a controlledsetting…and only if they are justified by the need to gather specific

scientific data and are subject to a thorough prior assessment of thepotential impacts on the environment”

• Decisions of COP not legally binding; US not a party; and treatymandate extends (only) to conservation of biodiversity and sustainable

use of biological resources



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FINAL THOUGHTS – AND MORE QUESTIONS• Distinction between proscribing entirely certain (or all) geoengineering

activities and requiring States to act in a particular way

• Current state of international law supports the latter, i.e. that no existing treatyprovides a blanket prohibition on geoengineering [unless for military/hostile

purposes], though the possibility exists; some texts could be adapted toaddress particular geoengineering methods

• Governance framework in place BEFORE (IF) deployment (could be local,national for contained technologies; international for large-scale methods)AND, in short term, governance frameworks for research

• Will need flexibility to respond to changes in scientific knowledge and tounintended consequences of research/deployment

• Governance framework for research needn’t necessarily be legally binding:

Royal Society Report recommended a voluntary research governanceframework, eg code of conduct for scientific research into geoengineeringtechniques, drafted by scientific community through existing organisations (egWMO, ICSU, IPCC) [Conclusions, Recommendation 7]; bottom-up, ‘usergroup’ orientation (but issues of trust, transparency, control and enforcement)



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If legally binding, some design features:• Definition of activities to be regulated (threshold)• Total ban, or prohibit unless permitted (subject to

conditions), or permitted (subject to conditions) unless

prohibited?• Burden of proof: on proposer?• For activity to proceed and/or for liability for any/resulting

harm: no harm? Negligible harm? Significant adverseharm? Balancing of harm (eg to environment) againstbenefit of geoengineering?

• Requirement of prior notification? Prior consent? To/bywhom?

• Prior environmental impact assessment? Strategic

environmental assessment?• Monitoring, reporting and verification• Transparency and public participation in decision-making• Liability provisions? Compensation fund? Compliance?



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General Principles of Conduct for Research

• Submission to (UK) House of Commons Select Committee on Science andTechnology 2010:

Rayner, S., Redgwell C., Savulescu, J., Pidgeon, N. and Kruger, T.(2009) Memorandum on draft principles for the conduct of geoengineering research , (the ‘Oxford Principles’)

(reproduced in House of Commons Science and Technology Committee, The Regulation of Geoengineering, Fifth Report of the Session 2009-10, Reporttogether with formal minutes, oral and written evidence, HC 221, 18 March2010, available at:www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/221/221.pdf)

(US House of Representatives Committee on Science and Technology gavesimultaneous consideration to geoengineering reflected in the 2010 Report byChairman Bart Gordon Engineering the Climate: Research Needs and Strategies for International Coordination available at www.science.house.gov)



PREAMBLE TO THE OXFORD DRAFT PRINCIPLES FORTHE CONDUCT OF GEOENGINEERING RESEARCH

Recognising the fundamental importance of mitigation and adaptation

in combating climate change and its adverse effects;Acknowledging nonetheless that if, in the near future, the internationalcommunity has failed to reduce greenhouse gas emissions and urgentaction is needed to prevent catastrophic climate change then it may benecessary to resort to techniques involving deliberate large-scale

intervention in the Earth’s climate system (‘geoengineering’);Ensuring that, in the event such resort is necessary, potentialgeoengineering techniques have been thoroughly investigated todetermine, which, if any, techniques will be effective in addressing theissue of climate change without producing unacceptable environmental

and socio-economic impacts;Recognising that there are a variety of proposed geoengineeringtechniques which differ both in what they are trying to achieve (SolarRadiation Management or Carbon Dioxide Removal) and how they aretrying to achieve it (engineered solutions or interventions in ecosystems)so that each must be assessed on its own terms, rather than applying a

one-size fits all governance approach;



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• Noting that there is no empirical evidence to suggest researchinggeoengineering techniques will undermine climate change mitigationefforts;

• Emphasizing the importance of proceeding cautiously withresponsible research so as to assess the potential advantages anddisadvantages of proposed geoengineering techniques, recognizingthat failure to do so will not reduce the probability that such techniquesmay be resorted to, but will mean that such resort will take place in theabsence of a sufficient evidence base on which to determine whichtechniques carry the least risk;

• Stressing that research into geoengineering techniques does not leadinevitably to deployment, and that principles to govern research mayneed to be adapted to guide decisions regarding deployment, if any;

• Recognising that the regulation of geoengineering research byexisting national, regional and international laws and regulations may

be sufficient, but that governance gaps may emerge requiring thecreation of new rules and institutions;• Propose the following principles to guide research into

geoengineering techniques:



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• Principle 1: Geoengineering to be regulated as a publicgood

• Principle 2: Public participation in geoengineeringdecision-making

• Principle 3: Disclosure of geoengineering research andopen publication of results

• Principle 4: Independent assessment of impacts

• Principle 5: Governance before deployment



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Principle 1: Geoengineering to be regulated[as a][in the] public good.

• While the involvement of the private sector in the deliveryof a geoengineering technique should not be prohibited,

and may indeed be encouraged to ensure that deploymentof a suitable technique can be effected in a timely andefficient manner, regulation of such techniques should beundertaken in the public interest by the appropriate bodies

at the state and/or international levels.



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Principle 2: Public participation ingeoengineering decision-making

• Wherever possible, those conducting geoengineeringresearch should be required to notify, consult, and ideallyobtain the prior informed consent of, those affected by theresearch activities. The identity of affected parties will be

dependent on the specific technique which is beingresearched - for example, a technique which capturescarbon dioxide from the air and geologically sequesters itwithin the territory of a single state will likely require

consultation and agreement only at the national or locallevel, while a technique which involves changing thealbedo of the planet by injecting aerosols into thestratosphere will likely require global agreement.



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Principle 3: Disclosure of geoengineeringresearch and open publication of results

• There should be complete disclosure of research plansand open publication of results in order to facilitate better

understanding of the risks and to reassure the public as tothe integrity of the process.



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Principle 4: Independent assessment ofimpacts

• An assessment of the impacts of geoengineering researchshould be conducted by a body independent of those

undertaking the research; where techniques are likely tohave transboundary impact, such assessment should becarried out through the appropriate regional and/orinternational bodies. Assessments should address both

the environmental and socio-economic impacts ofresearch, including mitigating the risks of lock-in toparticular technologies or vested interests.



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Principle 5: Governance before deployment

• Any decisions with respect to deployment shouldonly be taken with robust governance structures

already in place, using existing rules andinstitutions wherever possible.



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COMMITTEE EXPOUNDED FURTHERPRINCIPLES:

6. We conclude that the key principles should not includethe precautionary principle as a discrete principle

7. Decisions to be based on the best scientific evidence,

including social science8. Regulatory measures to be able to respond rapidly

9. Regulatory measures to be imbued with a high level offlexibility to be able, for example, to encompass new

technologies as they emerge; and10. Prohibition of geoengineering techniques for military

purposes

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Geneva Dialogues 7.4