Download geneva dialogues 7.4.11[1]. - Graduate Institute of International and

“If Climate Negotiations Cannot Do it,
What Will? Considering ‘Plan B’:
Climate Geoengineering”
Geneva Dialogues, 7 April 2011
Catherine Redgwell
Professor of International Law
Faculty of Laws
University College London
[email protected]
What is geoengineering?
• Includes all methods which involve deliberate largescale 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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• RS Report concludes that ‘the safest and most
predictable method of moderating climate change is to
take early and effective action to reduce emissions of
greenhouse gases’ (‘Plan A’).
• acknowledges that geongineering methods - CO2
removal (CDR) (‘slow and sure’) and solar radiation
methods (SRM) (‘quick and dirty’) – could be useful to
support other efforts to mitigate anthropogenic climate
change (but geoengineering not a ‘magic bullet’;
potential, & complementary, ‘Plan B’). Could do it, but
side effects and risks. Reduce uncertainties through
further R & D.
• Chapter 4 addressed to Governance issues (including
law)
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• These uncertainties echo the 2007 Assessment Report of
the IPCC, which identified potential mitigation measures
including ‘geoengineering options, such as ocean
fertilization to remove CO2 directly from the atmosphere’
whilst also noting that such methods remain ‘largely
speculative and unproven, and with the risk of unknown
side-effects’
• Geoengineering will be considered across all three
working groups of the IPCC in its fifth assessment report
(2014) with the (first) Joint IPCC Expert Meeting of
Working Groups I, II and III on Geoengineering to be held
in 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 to
ethical, social and legal factors
• Whether, and under what conditions, any geoengineering
methods are actually deployed will be determined as much
by social, legal, economic and political factors as by scientific
and technical factors
• Governance BEFORE deployment: “It would be highly
undesirable for geo-engineering methods… to be deployed
before appropriate governance mechanisms are in
place.”(Royal Society Report). How much before??
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Governance of geoengineering
• No ‘one size fits all’ solution; nor is it helpful to
speak of geoengineering methods en bloc
• Key points of distinction all of which bear on
governance, such as: time scale (speed of
implementation; 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 them
out.
• Science-based distinctions (eg CDR, SRM) and
Governance-based distinctions according to method
and 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 intergenerational equity; compensation (eg perturbations of weather
systems, impacts on precipitation) and liability issues (channelling
and limiting for example), capacity building and technology
transfer (proprietary interests or freely available?).
• No single treaty or institution with a sufficiently broad mandate to
address all aspects of geoengineering, particularly bearing in mind
this diversity of methods and their impacts. Likely a combination of
local/national/regional/international regulation (as for climate
change itself).
• Generally applicable instruments (eg ENMOD; UNFCCC. CBD);
those applicable to particular methods or areas (eg LC/LP; Outer
Space Treaty); and customary international law (eg no harm
principle)
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Key Questions:
• The big picture: Who decides whether, and when, to conduct
research and/or deploy? The ‘international community’ or those
State(s) actually engaged in the activity? If the former, is the climate
change regime the appropriate embodiment of ‘the international
community’ for the purpose of representative decision-making on
whether 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, or can
they be adapted, to address particular geoengineering techniques?
Consider: (i) Object and purpose; (ii) the regulated
behaviour/substances; (iii) flexibility/methods for adaptation; (iv)
institutions; (v) mechanisms for enforcement or compliance and/or
liability (vi) participation.
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Existing approaches to the question of the extent of
international legal regulation of geoengineering
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Catalogue existing treaties by virtue of geographic
and 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 machinery
exists, if any?
How widespread is participation? Is it a ‘living
instrument’ or a ‘sleeping treaty’?
Is there an exit?
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Snapshot of potentially applicable
international rules and instruments
• Certain generally applicable customary obligations, such as the
general obligation on States to regulate actors and activities under
their jurisdiction and control so as not to cause transboundary harm to
other States, or to areas beyond national jurisdiction; duty to notify and
to consult [note frailties of cil – no institutional building or permitting
regime for example]
• Range of treaty instruments could apply to specific geo
engineering methods, eg ENMOD, LRTAP, Ozone Convention and
Outer Space Treaty for SRM methods depending on their location and
effects; UNCLOS, CBD, LC/LP, regional marine pollution instruments
for CDR (ocean fertilization in particular). Even for encapsulated
activities wholly within the State, without likely transboundary effects
there may be additional obligations to conduct EIA, and to refrain from
activities on or near, or mitigate impacts on, areas protected under
international instruments (world heritage, wetlands etc).
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Generally applicable instruments: the 1992
UNFCCC and 1997 KP
• No explicit mention of geoengineering
• General obligation to ‘use appropriate methods, e.g. impact
assessment… with a view to minimising adverse effects on…the
quality of the environment of projects or measures undertaken to
mitigate or adapt to climate change’.
• Establishes a significant institutional structure for international
governance of the climate regime, and the climate change
secretariat already cooperates with the other two Rio Conventions
(the CBD and UNCCD) on mutually supportive activities,
suggesting a possible role for fostering linkages and developing
common approaches.
• For all carbon capture techniques, question of eligibility for
certification under the KP (or a successor arrangement, if any)
under the clean development mechanism (CDM) or joint
implementation (JI) – though questions of such eligibility are only
one element in wider decision-making processes regarding
whether the technology should proceed.
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1976 Convention on the Prohibition of Military or any
Other Hostile Use of Environmental Modification
Techniques (ENMOD)
• concerned to establish limits on use of environment as a weapon or
an instrumentality of military operations; recognises value of enmod
for peaceful purposes and that ‘it could improve the interrelationship
of man and nature and contribute to the preservation and improvement
of the environment for the benefit of present and future generations’
• Applies to ‘any technique for changing – through the deliberate
manipulation of natural processes – the dynamics, composition or
structure of the earth, including its biota, lithosphere, hydrosphere and
atmosphere, or of outer space’
• Fundamentally, however, concerned to prevent military or other hostile
uses of enmod techniques, not to regulate their peaceful use eg to
combat climate change [note some make argument geoengineering =
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 should
the substances placed in the atmosphere (eg chemical
aerosols) constitute ‘air pollution’ (‘the introduction by
man… of substances or energy into the air’) which the
Parties pledge to limit and reduce and such substance
‘results in deleterious effects of such a nature as to
endanger human health, harm living resources and
ecosystems and material property and impair or interfere
with amenities and other legitimate uses of the
environment’; obligation only to exchange info re
discharge of ‘air pollutants which may have adverse
effects’ . Would need amendment/new protocol and only
regional in scope (ECE treaty)
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• 1985 Convention on the Protection of the Ozone Layer
and 1987 Montreal Protocol requires States Parties to
‘take appropriate measures in accordance with [its
provisions] to protect human health and the environment
against adverse effects resulting or likely to result from
human activities which modify or are likely to modify the
ozone layer’ and take steps to prevent anthropogenic
sources of modification including ‘hydrogen substances’,
‘water’ and various other substances (Annex I, as
amended)
• Question of applicability will turn, inter alia, on ‘adverse
effects’ and scope of Annex I list of regulated substances
• Would likely need amendment and remit confined to
impact on ozone layer
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Problems of treaty interpretation
• (Good) intent or (bad) result? If, say, a substance
introduced 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 to
avert catastrophic climate change) negate the potential or
actual adverse effects on [the atmosphere] [the ozone
layer]?
• ‘Clash’ of the precautionary principle: avoid
research/deployment given potential side effects of
geoengineering or promote research/deployment in the
face of uncertainties and risks posed by climate change
itself?
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Ocean Iron Fertilization – 1972 London
Convention (LC) and 1996 Protocol (LP)
• the question of control over geoengineering research and
experimentation has already arisen
•
In 2008 the parties to the global 1972 LC (replaced by the
1996 Protocol for States party to both), adopted a
resolution agreeing that ocean fertilization is governed by
the treaty but that legitimate scientific research is
exempted from its definition of dumping
• The assessment framework being developed by the
Scientific Groups under the LC/LP will provide the
parameters for assessing whether a proposed ocean
fertilisation activity is ‘legitimate scientific research’
consistent with the aims of the Convention
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Geoengineering and the 1992 Convention on
Biological Diversity (CBD)
•
The parties to the 1992 CBD debated adopting a moratorium on all ocean
fertilization activities but ultimately followed the LC/LP approach
•
States parties are requested (and other governments ‘urged’) to ensure that
ocean fertilization activities do not take place until there is an adequate
scientific basis on which to justify such activities and a ‘global transparent
and effective control and regulatory mechanism is in place for these
activities’. An exception is made for small-scale research studies within
‘coastal waters’ for scientific purposes, without generation or selling of carbon
offsets 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, in
line and consistent with decision IX/16 C, on ocean fertilization and biodiversity
and climate change, and in accordance with the precautionary approach, that
no climate-related geo-engineering activities take place until there is an
adequate scientific basis on which to justify such activities and appropriate
consideration 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 climate
change which, inter alia:
• “Invites Parties and other governments, according to national
circumstances and priorities…to [e]nsure…in the absence of science
based, global, transparent and effective control and regulatory
mechanisms for geo-engineering…that no climate-related geoengineering 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 the
environment and biodiversity and associated social, economic and
cultural impacts, with the exception of small scale scientific
research studies that would be conducted in a controlled
setting…and only if they are justified by the need to gather specific
scientific data and are subject to a thorough prior assessment of the
potential impacts on the environment”
• Decisions of COP not legally binding; US not a party; and treaty
mandate 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 treaty
provides a blanket prohibition on geoengineering [unless for military/hostile
purposes], though the possibility exists; some texts could be adapted to
address 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 to
unintended consequences of research/deployment
•
Governance framework for research needn’t necessarily be legally binding:
Royal Society Report recommended a voluntary research governance
framework, eg code of conduct for scientific research into geoengineering
techniques, drafted by scientific community through existing organisations (eg
WMO, ICSU, IPCC) [Conclusions, Recommendation 7]; bottom-up, ‘user
group’ 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 adverse
harm? Balancing of harm (eg to environment) against
benefit of geoengineering?
• Requirement of prior notification? Prior consent? To/by
whom?
• 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 and
Technology 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, Report
together with formal minutes, oral and written evidence, HC 221, 18 March
2010, available at:
www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/221/221.pdf)
(US House of Representatives Committee on Science and Technology gave
simultaneous consideration to geoengineering reflected in the 2010 Report by
Chairman Bart Gordon Engineering the Climate: Research Needs and
Strategies for International Coordination available at www.science.house.gov)
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PREAMBLE TO THE OXFORD DRAFT PRINCIPLES FOR
THE 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 international
community has failed to reduce greenhouse gas emissions and urgent
action is needed to prevent catastrophic climate change then it may be
necessary 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, potential
geoengineering techniques have been thoroughly investigated to
determine, which, if any, techniques will be effective in addressing the
issue of climate change without producing unacceptable environmental
and socio-economic impacts;
Recognising that there are a variety of proposed geoengineering
techniques which differ both in what they are trying to achieve (Solar
Radiation Management or Carbon Dioxide Removal) and how they are
trying 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;
• Noting that there is no empirical evidence to suggest researching
geoengineering techniques will undermine climate change mitigation
efforts;
• Emphasizing the importance of proceeding cautiously with
responsible research so as to assess the potential advantages and
disadvantages of proposed geoengineering techniques, recognizing
that failure to do so will not reduce the probability that such techniques
may be resorted to, but will mean that such resort will take place in the
absence of a sufficient evidence base on which to determine which
techniques carry the least risk;
• Stressing that research into geoengineering techniques does not lead
inevitably to deployment, and that principles to govern research may
need to be adapted to guide decisions regarding deployment, if any;
• Recognising that the regulation of geoengineering research by
existing national, regional and international laws and regulations may
be sufficient, but that governance gaps may emerge requiring the
creation 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 public
good
• Principle 2: Public participation in geoengineering
decision-making
• Principle 3: Disclosure of geoengineering research and
open 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 delivery
of a geoengineering technique should not be prohibited,
and may indeed be encouraged to ensure that deployment
of a suitable technique can be effected in a timely and
efficient manner, regulation of such techniques should be
undertaken in the public interest by the appropriate bodies
at the state and/or international levels.
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Principle 2: Public participation in
geoengineering decision-making
• Wherever possible, those conducting geoengineering
research should be required to notify, consult, and ideally
obtain the prior informed consent of, those affected by the
research activities. The identity of affected parties will be
dependent on the specific technique which is being
researched - for example, a technique which captures
carbon dioxide from the air and geologically sequesters it
within the territory of a single state will likely require
consultation and agreement only at the national or local
level, while a technique which involves changing the
albedo of the planet by injecting aerosols into the
stratosphere will likely require global agreement.
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Principle 3: Disclosure of geoengineering
research and open publication of results
• There should be complete disclosure of research plans
and open publication of results in order to facilitate better
understanding of the risks and to reassure the public as to
the integrity of the process.
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Principle 4: Independent assessment of
impacts
• An assessment of the impacts of geoengineering research
should be conducted by a body independent of those
undertaking the research; where techniques are likely to
have transboundary impact, such assessment should be
carried out through the appropriate regional and/or
international bodies. Assessments should address both
the environmental and socio-economic impacts of
research, including mitigating the risks of lock-in to
particular technologies or vested interests.
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Principle 5: Governance before deployment
• Any decisions with respect to deployment should
only be taken with robust governance structures
already in place, using existing rules and
institutions wherever possible.
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COMMITTEE EXPOUNDED FURTHER
PRINCIPLES:
6. We conclude that the key principles should not include
the precautionary principle as a discrete principle
7. Decisions to be based on the best scientific evidence,
including social science
8. Regulatory measures to be able to respond rapidly
9. Regulatory measures to be imbued with a high level of
flexibility to be able, for example, to encompass new
technologies as they emerge; and
10. Prohibition of geoengineering techniques for military
purposes
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