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Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity Some aspects of the current international legal framework constitute binding rules within the meaning of Article 38 of the Statue of the International Court of Justice. Binding rules include treaties, customary law, and general principles of law. Other aspects are not legally binding but nonetheless provide guidance to States. Modern treaties often establish institutions and procedures in order to ensure implementation. This usually includes quasi-legislative bodies such as a Conference of the Parties or other Governing Body of the treaty which meets regularly and which has the mandate to decide on details not set out in the treaty and expert bodies which offer interpretations of treaty articles. Decisions taken by such quasi-legislative bodies are, as such, not binding unless the treaty so provides. However, the distinction between binding and non-binding has become difficult to draw in treaty regime practice and decisions of the Governing Body may be referred to as an aid when interpreting the provisions of a treaty. Governing Body decisions decide on technical details that are unresolved by the treaty, and specify how Parties are to implement and develop the regime. In practice, Parties usually implement the decisions even if they are not legally enforceable, as Parties consider the matters dealt with in the decision a practical necessity. Apart from existing rules and guidelines, it is important to keep in mind that many international regimes and institutions have a potential mandate that would allow them to address geoengineering, or some aspects of the topic, even if they have not done so to date. Additional guidance may be provided by relevant institutions, e.g. the UNEP 1980 guidelines on weather modification.17 In addition, there are other aspects that could be of interest or relevance, regardless of their legal status. These could include, for instance, self-organized standards by the scientific community18 or recommendations by relevant civil society organizations.19 17 Provisions for Co-operation between States in Weather Modification, Decision 8/7/A of the Governing Council of UNEP, 29 April 1980. 18 Rayner et al. (2009). 19 E.g., Open Letter to the Climate Response Fund and the Scientific Organizing Committee, 4 March 2010 (http://www.etcgroup.org/ sites/www.etcgroup.org/files/publication/pdf_file/AsilomarENG190310.pdf). 112
CHAPTER 2 Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity GENERALLY APPLICABLE INTERNATIONAL LAW AND PRINCIPLES There are some overarching rules of international law that are common legal ground and apply to all States, and that might apply to any concepts currently discussed as “climate-related geoengineering”. The fundamental pillars of international law include State sovereignty on the one hand and the maintenance of international peace, security and cooperation (or “good-neighbourliness”)20 on the other. Treaties (see Chapter 3 below) apply only to those States that are Party to them. Moreover, since there is no specific treaty on geoengineering, the regulatory scope of potentially applicable treaties is limited to their material scope. In contrast, customary law applies to all States regardless of whether they are a Party to, and bound by, a particular treaty.21 Some aspects of customary law, reviewed here, have a scope that is relevant, or may be relevant, to geoengineering concepts in general. The legal meaning of “principles” is not clear or agreed in international law. However, for the purpose of this study, the question of whether classification as a “principle” has specific legal implications is not decisive. It may be more useful to focus on the distinction between binding and non-binding rules and principles and on interpreting their specific content in each case. However, the concept of “principles” is relevant in practice, even if its implications are not fully agreed.22 The following identifies rules and principles that could apply to geoengineering as part of a governance framework. However, the status of some concepts as legal principles or rules is disputed. In addition, the precise meaning of some concepts may be unclear. 2.1 STATE RESPONSIBILITY AND LIABILITY OF PRIVATE ACTORS State responsibility describes the rules governing the general conditions under which a State is responsible for wrongful actions or omissions, and the resulting legal consequences. The rules on State responsibility presuppose a breach of an international obligation by a State. However, they do not define the requirements of the obligation which is said to have been breached. Instead, they deal with the consequences of such a breach. In this sense, the International Law Commission (ILC) uses the term “secondary rules”. The rules on State responsibility were codified and developed by the Inter natio nal Law Commission’s articles on responsibility of States for internationally wrongful acts (annex to UNGA resolution 56/83 of 12 December 2001), which for the most part reflect customary law. The rules relevant to this study are customary law, although some other concepts in the draft articles on State responsibility may not be universally accepted. 20 See Articles 2 and 74 of the Charter of the United Nations. 21 Except for so-called “persistent objectors”. 22 The two concepts of ius cogens (or jus cogens) and obligation erga omnes also exist as two distinct categories of obligations, ius cogens being more narrow than obligations erga omnes. Generally speaking, a ius cogens rule describes a peremptory norm—“a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (article 35 of VCLT). However, there are very few rules that are likely to be universally recognized as ius cogens (they include, for instance the prohibition of genocide or slavery). An obligation erga omnes is an obligation of a State towards the international community as a whole (as opposed to individual States), and all States can be held to have a legal interest in its protection. Details on the legal implications of these concepts have been under debate for a long time. This study suggests that the two concepts of ius cogens and obligations erga omnes do not have practical relevance for geoengineering at this stage. 113
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