By Mika Klaus

Introduction

Geo-engineering are active interventions in the climate system on planetary-scale to offset the build-up of greenhouse gases. This could be, for example, injecting sulphate particles into the atmosphere in order to reduce incoming sunlight which could offset the higher temperature caused by the build-up of greenhouse gases. Using geo-engineering techniques is not without risks. Every geo-engineering method has side effects that are worrisome and, moreover, unknown harms could occur when geo-engineering takes place on a large scale.[i] There is still a lot of uncertainty around the (long-term) effects of geo-engineering techniques. However, geo-engineering could be a promising method to attack climate change. But more research on geo-engineering and its effects is needed.

At this moment, there is no specific geo-engineering regulation. There are some treaties that could apply to geo-engineering, but geo-engineering in general is not regulated.[ii] In literature there is near unanimous agreement that deployment of geo-engineering should be regulated, however, how geo-engineering should be regulated, if it even is feasible, is the question.[iii]

Two types of geo-engineering

Geo-engineering techniques could be distinguished in two types: solar radiation management (SRM) and carbon dioxide removal (CDR). The reason for this distinction is that both types have different benefits, potentials, risks, limitations, costs, speeds, and uncertainties.[iv] SRM aims to make the Earth more reflective in order to decrease the warming influence of greenhouse gases. Ways to do this could be brightening the surface of the Earth, or inserting reflective matter into the atmosphere or in the space between the sun and the Earth. SRM techniques do not stop climate change, because the roots of climate change are not addressed. SRM only reduces the planetary heating, but its advantage over CDR is that it works quicker. CDR aims to remove greenhouse gases from the atmosphere in order to reduce the total amount of greenhouse gases in the atmosphere. Because CDR techniques remove the greenhouse gases, it attacks the climate change at its roots. However, it takes longer to recognize the impacts of CDR in comparison to SRM.[v]

Current legislation applicable to geo-engineering

At this moment, there is no specific regulation for geo-engineering. Although there could be some regulation applicable to geo-engineering, these provisions are either not precise, have an uncertain scope, are applicable to limited circumstances, have indirect applicability, or govern particular geographic domains. This leads to a fragmented patchwork of regulation with gaps and overlaps.[vi] Moreover, it is not certain in which ways geo-engineering techniques will develop, so it could be possible that judges, regulators and decision-makers interpret the existing law differently, which makes it not applicable (anymore).[vii]

In 2010, steps were taken towards regulation of geo-engineering research by geo-engineering scientists and advocates during a week-long meeting at the Asilomar Conference Grounds in California. The aim was to develop self-regulation, however, there was strong criticism from inside and outside the community. The criticism focused on a lack of transparency, concerns over personal commercial interests and the limitations of self-regulation. Because of lack of legitimacy, the meeting resulted in a modest statement.[viii]

Regulation of SRM techniques

Regarding SRM techniques, the following existing law may be applicable to SRM.

The United Nations Framework Convention on Climate Change (UNFCCC) is the leading global treaty on climate change. The objective of the UNFCCC is to stabilize greenhouse gas concentration in the atmosphere in order to prevent dangerous anthropogenic interference with the climate system (Article 2). In order to achieve the objective, the developed country Parties should take the lead in combating climate change and the adverse effects thereof (Article 3(1)). SRM could be recognized as a tool to combat climate change. The UNFCCC is primarily focused on the reduction of greenhouse gases. It is, however, possible that SRM techniques reduce climate change risks without affecting the concentrations of greenhouse gases in the atmosphere.[ix] In that case, it is questionable if the UNFCCC is still applicable.

The 1976 Environmental Modification Convention (ENMOD) is a more directly applicable treaty. In Article I it states that it prohibits hostile use of environmental modification techniques that have a widespread, long-lasting or severe effect to another State Party. Article II makes it clear that this includes SRM. The Article mentions that the term “environmental modification techniques” refers to changing the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space. Most SRM techniques do this. For example, injecting aerosols in the atmosphere changes the Earth’s atmosphere, placing deflectors in outer-space changes Earth’s outer space. Peaceful purposes of environmental modification are not prohibited (Article III). However, the treaty has no standing institutional support, the parties have only met twice, and a proposed third review was rejected in 2013. Therefore, ENMOD will not be able to adapt to changing circumstances.[x]

The injection of aerosols is subject to the jurisdiction and control of the state whose air space the aerosols are injected to. The international Convention of Long-range Transboundary Air Pollution (CLRTAP) lays down protocols on the control and reduction of certain pollutants in the atmosphere, including sulphur. Besides, if the effect of SRMs increases ozone depletion, then the injection could constitute a breach of the Convention for the Protection of the Ozone Layer.[xi]

Beyond the atmosphere the Outer Space Treaty (OST) applies. The treaty states that the outer space may only be used by states for peaceful uses. If an activity or experiment in the outer space harms interference with peaceful exploration and use of other space, then consultation may be requested.[xii] This treaty seems to be applicable in the case of deploying deflectors in outer space.

The Convention on Biological Diversity (CBD) has a broad scope, strong institutional support and almost universal participation. The objectives of the CBD are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (Article 1). When SRM techniques affect the Earth’s ecosystems, the CBD could be applicable. It is, however, not sure if SRM techniques will affect ecosystems, more research is needed to conclude this. Article 14 lays down the rule on the Contracting Parties that they should introduce environmental impact assessment for proposed projects with a view to avoid or minimize adverse impacts.[xiii]

Lastly, the customary law principle not to cause significant transboundary harm could be applicable to SRM techniques. This principle means that states may not permit activities in their own territory or within common spaces (high seas and outer space) without taking in consideration the interests of other states or the protection of the global environment. The principle lays down a duty to prevent, reduce and control transboundary pollution and environmental harm, and a duty to cooperate in mitigating transboundary risks and emergencies.[xiv]

Regulation on CDR techniques

The following existing law that is applicable to SRM techniques is also applicable to CDR techniques. First, the UNFCCC also seems to be applicable to CDR techniques. What is mentioned about the connection between SRM and the UNFCCC is also applicable to CDR and UNFCCC. CDR can be regarded as a way to combat climate change, and with CDR techniques it is possible to stabilize the concentrations of greenhouse gases in the atmosphere at a level that prevents dangerous anthropogenic interference with the climate system (Articles 3(1) and 2). Second, the ENMOD could also be applicable to CDR techniques, since CDR can also be regarded as an environmental modification technique. Ocean fertilization for instance, changes the Earth’s biota. Thirdly, the CBD might also be applicable to CDR techniques. For instance, ocean fertilization affects marine ecosystems.[xv] It will, most probably, impact biological diversity as well. Fourth, what is mentioned about the customary no-harm principle is also applicable to CDR techniques.

The United Nations Convention on the Law of the Sea (UNCLOS) has a widespread participation. Although some states, like the United States, still need to ratify the treaty, the provisions are mostly reflected in customary international law. UNCLOS lays down an obligation on states to protect and preserve the marine environment and to prevent, reduce and control pollution.[xvi] There is some discussion in literature if ocean fertilization falls under the definition of pollution of the UNCLOS. Article 1(1)(4) defines pollution as “the introduction by man, directly or indirectly, of substances or energy into the marine environment (…) which results or is likely to result in such delirious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”. It could be argued if ocean fertilization “results” or “is likely to result” in the aforementioned delirious effects because the same results also occurs naturally. Moreover, it could be argued that ocean fertilization has a net positive effect since phytoplankton blooms stimulate the base of the food chain.[xvii]

The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) and its Protocol (London Protocol) could be applicable to ocean fertilization, since it provides rules on marine pollution. The London Convention lays down prohibited substances. When Parties want to dump prohibited substances in oceans they have to undergo an environmental impact assessment, obtain a permit, and comply with monitoring requirements (Annex II). Under the London Protocol, there are five categories of permitted substances (Annex I). Article 3 of the Protocol requires Parties to take appropriate preventive measures when an activity is likely to cause harm. The London Protocol is stricter than the Convention in the case of permitted substances. The Annex Six Resolution specifically treated ocean fertilization and it made clear that ocean fertilization activities that are qualified as “legitimate scientific research” are allowed under the London Convention and Protocol. The Annex Six Resolution, however, does not specify when ocean fertilization can be regarded as “legitimate scientific research”.[xviii]

Rationale for geo-engineering regulation

Although there already may be principles applicable to geo-engineering, academics believe that geo-engineering is too important to become the victim of accidentally relevant rules. These rules are not specifically suited to the context of geo-engineering. Since the consequences and gains that might result from geo-engineering are of global scale, failing to have an appropriate legal framework could be disastrous for the planet and population.[xix] Moreover, academics find it important that effective regulation is in place when geo-engineering field researches are conducted. Since there are no specific international provisions applicable to geo-engineering at this point, geo-engineering methods could be applied by individual nations, corporations or wealthy individuals without concerning transboundary implications.[xx]

Economically oriented legal scholars state that geo-engineering techniques need to be regulated due to various market failures.[xxi] Generating knowledge through research and implementing geo-engineering are positive externalities, if they offer net benefits, and these should be encouraged. The costs of carrying out geo-engineering techniques are a collective action problem. If there is no regulation on this aspect, then failures in contribution occur. This also counts for negative externalities, for example harmful impacts of geo-engineering, which should be reduced by regulation. Moreover, it is best if public bodies coordinate geo-engineering research and implementation in order to maximize efficiency, to prevent interfering geo-engineering activities and to reduce conflicts.[xxii]

Other scholars state that regulation is needed in order to protect rights and to maintain solidarity.[xxiii] The rights that need to be protected are mainly fundamental human rights, for instance the right to a healthy environment.[xxiv] These rights should not be violated by geo-engineering regulation. In maintaining solidarity it is important to prevent international tensions while regulating geo-engineering.[xxv]

In general, there seems to be consensus among scholars that some form of international regulation on geo-engineering is needed, presumably as soon as possible. There are some critics, however, that argue that international regulation of geo-engineering should not be encouraged because it may give legitimacy to geo-engineering techniques and their risks. On the other side, advocates of geo-engineering argue that because of the risks there is greater need for more research and regulation. The better we understand the risks and benefits of geo-engineering, the better we can create a strong international geo-engineering governance framework.[xxvi] The question still remains how geo-engineering should be regulated.

Analysis

Some of the current legislation may be applicable to geo-engineering, but there is no specific geo-engineering regulation. This could lead to gaps and overlap in regulation. An earlier attempt to develop self-regulation on geo-engineering was not a success. It seems that CDR techniques are more specifically regulated by the UNCLOS and the London Convention and its Protocol. The treaties both apply to marine pollution, however, none of the treaties specifically state that CDR falls under the definition of marine pollution. It could be argued if CDR techniques are marine pollution, and therefore specific geo-engineering regulation is still needed. Moreover, as mentioned before, the consequences and gains of geo-engineering are of global scale and it could be disastrous for the planet if there is not an appropriate legal framework in place to address geo-engineering. Besides, since field researches already took place, it is important that there is an appropriate legal framework in order to prevent disastrous consequences. Thus, establishing an international geo-engineering treaty seems to be the solution, but what is the best way to start the process of international regulation?

Since there is still a lot of uncertainty about geo-engineering effects and consequences, I believe that starting with treaty negotiations is not the best way of coming to effective international regulation. The uncertainty will lead to imprecise and vague provisions that may not be effective at all. Moreover, since treaty negotiations represent the best-desires and capabilities of the parties, it could lead to inconclusive outcomes. It happened for instance to the CBD, the United States did not ratify the treaty while it is an important player in that field. The United States will probably be an important player in the field of geo-engineering research, so it is important that they will become a party to the treaty.

In order to avoid these ineffective results, it is a good idea to first collect more information about geo-engineering and its (side-)effects. Therefore, more research is needed, and also field research is needed. In my view, in order to securely execute the field research some provisions are needed. For instance, a risk assessment could be established. The risk assessments need to be checked by an authority. This could be a national authority or a multi-national authority, depending on which one is the quickest. Based on the risk assessment, the research group gets a red or green light to execute the field research. While executed, the field research will thoroughly be checked by the researchers and reports this to the controlling authority. If this is not done properly, the field research will immediately stop. Furthermore, international cooperation among researchers is desirable since geo-engineering will lead to large-scale consequences.

Eventually, this research process will lead to more certainty around geo-engineering. When we know enough about geo-engineering and its consequences, and the techniques are ready to be executed on large-scale, we will have enough knowledge to effectively regulate geo-engineering internationally. But, it must be noted, it is important that we establish international geo-engineering regulation before geo-engineering is executed on large-scale.

Concluding remarks

At this moment, there are some treaties that could be applicable to geo-engineering, but there is no specific regulation on geo-engineering. The treaties that could apply are, for instance, not precise, have an uncertain scope, or are only applicable to limited circumstances. Furthermore, it is not sure how geo-engineering will develop in the future and if the treaties that could be applicable right now, are still applicable in the future.

There are different objectives for regulation of geo-engineering. One of the objectives is that effective regulation is needed when field researches are conducted. When there are no specific principles in place, this could lead to transboundary implications. There is also an economic rationale for regulation of geo-engineering. The costs and negative externalities of geo-engineering lead to collective action problems. This needs to be regulated, because it will otherwise lead to market failures. Besides, some state that regulation on geo-engineering is needed in order to protect rights and to maintain solidarity.

Concluding, in order to effectively regulate geo-engineering internationally, there must be done some research and field-research first in order to understand geo-engineering more thoroughly. In order to securely execute geo-engineering, it is important that some provisions regarding that are established. Eventually, mankind has gained enough knowledge in the field of geo-engineering in order to establish effective international geo-engineering regulation.

[i] D.G. Victor (2008) “On the regulation of geoengineering.” Oxford Review of Economic Policy 24(2):322-336.

[ii] G.T. Davies (2009) “Law and Policy Issues of Unilateral Geoengineering: Moving to a Managed World.” Available at SSRN: http://ssrn.com/abstract=1334625.

[iii] J. Reynolds (2011) “The regulation of climate engineering.” Law, Innovation and Technology 3(1):113-136.

[iv] Committee on Geoengineering Climate: Technical Evaluation and Discussion of Impacts (2015) Climate Intervention: Carbon Dioxide Removal and Reliable Sequestration, Washington: National Academies Press and Committee on Geoengineering Climate: Technical Evaluation and Discussion of Impacts (2015) Climate Intervention: Reflecting Sunlight to Cool Earth, Washington: National Academies Press.

[v] Royal Society (2009) Geoengineering the Climate: Science, Governance and Uncertainty, at 2 and 3 and H.M. Osofsky and L.K. McAllister (2012) Climate Change Law and Policy, New York: Wolters Kluwer, at 7.1.

[vi] See J. Reynolds (2016) “Climate engineering, law, and regulation”, forthcoming in The Oxford Handbook on the Law and Regulation of Technology (R. Brownsword, E. Scotford, and K. Yeung, eds., Oxford University Press).

[vii] J. Reynolds (2016) “Climate engineering, law, and regulation”, forthcoming in The Oxford Handbook on the Law and Regulation of Technology (R. Brownsword, E. Scotford, and K. Yeung, eds., Oxford University Press).

[viii] See A.M. Florini (2000) Who Does What? Collective Action and the Changing Nature of Authority, in “Non-State Actors and Authority in the Global System” 15, 16 (R.A. Higgott et al.).

[ix] J. Reynolds (2016) “Climate engineering, law, and regulation”, forthcoming in The Oxford Handbook on the Law and Regulation of Technology (R. Brownsword, E. Scotford, and K. Yeung, eds., Oxford University Press).

[x] J. Reynolds (2016) “Climate engineering, law, and regulation”, forthcoming in The Oxford Handbook on the Law and Regulation of Technology (R. Brownsword, E. Scotford, and K. Yeung, eds., Oxford University Press).

[xi] Royal Society (2009) Geoengineering the Climate: Science, Governance and Uncertainty, 4.4.

[xii] Royal Society (2009) Geoengineering the Climate: Science, Governance and Uncertainty, 4.4.

[xiii] See J. Reynolds (2016) “Climate engineering, law, and regulation”, forthcoming in The Oxford Handbook on the Law and Regulation of Technology (R. Brownsword, E. Scotford, and K. Yeung, eds., Oxford University Press).

[xiv] P. Birnie et al. (2009) International Law & the Environment, 3^rd ed., Oxford: Oxford University Press.

[xv] This became clear in the LOHAFEX expedition, see https://www.awi.de/en/about-us/service/press/archive/lohafex-an-indo-german-iron-fertilization-experiment-what-are-the-effects-on-the-ecology-and-carb.html.

[xvi] Royal Society (2009) Geoengineering the Climate: Science, Governance and Uncertainty, 4.4.

[xvii] R.S. Abate and A.B. Greenlee (2010) “ Sowing Seeds Uncertain: Ocean Iron Fertilization, Climate Change, and the International Environmental Law Framework”, Pace Envtl. L. Rev. 27:555, at 572-89.

[xviii] Annex Six Resolution LC-LP.1 on the Regulation of Ocean Fertilizaton.

[xix] G.T. Davies (2009) “Law and Policy Issues of Unilateral Geoengineering: Moving to a Managed World.” Available at SSRN: http://ssrn.com/abstract=1334625.

[xx] See J. Reynolds (2015) “Why the UNFCCC and CBD Should Refrain from Regulating Solar Climate Engineering”, Geoengineering Our Climate Working Paper Series and Royal Society (2009) Geoengineering the Climate: Science, Governance and Uncertainty, xii.

[xxi] See C. R. Sunstein (1993) After the Rights Revolution: Reconceiving the Regulatory State, Cambridge: Harvard University Press and R. Posner (2014) Economic Analysis of Law, 9^th ed., New York: Wolters Kluwer.

[xxii] See also J. Reynolds (2016) “Climate engineering, law, and regulation”, forthcoming in The Oxford Handbook on the Law and Regulation of Technology (R. Brownsword, E. Scotford, and K. Yeung, eds., Oxford University Press).

[xxiii] T. Prosser (2010) The Regulatory Enterprise: Government, Regulation, and Legitimacy, Oxford: Oxford University Press and R. Brownsword (2008) Rights, Regulation, and the Technological Revolution, Oxford: Oxford University Press.

[xxiv]

[xxv] See also J. Reynolds (2016) “Climate engineering, law, and regulation”, forthcoming in The Oxford Handbook on the Law and Regulation of Technology (R. Brownsword, E. Scotford, and K. Yeung, eds., Oxford University Press).

[xxvi] J.J. Blackstock and C.S.J. Long (2010) “The Politics of Geoengineering”, Science, 327.