cbd-ts-66-en
cbd-ts-66-en
cbd-ts-66-en
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Part II: The Regulatory Framework for Climate-related Geo<strong>en</strong>gineering Relevant to the Conv<strong>en</strong>tion on Biological Diversity<br />
Previous draf<strong>ts</strong> of the articles on State responsibility had introduced the concept of “international crimes”, which<br />
included serious breaches of certain <strong>en</strong>vironm<strong>en</strong>tal obligations. However, that concept was subsequ<strong>en</strong>tly dropped<br />
and does not appear in the final outcome of the ILC’s work.23<br />
It is also notable that “a State may be responsible for the effec<strong>ts</strong> of the conduct of private parties, if it failed to take<br />
necessary measures to prev<strong>en</strong>t those effec<strong>ts</strong>.”24<br />
The rules on State responsibility do not define the obligations relating to geo<strong>en</strong>gineering in the s<strong>en</strong>se of determining<br />
which activities are permitted or prohibited. Instead, they provide a basic legal framework for geo<strong>en</strong>gineering<br />
activities that breach international law. In the abs<strong>en</strong>ce of specific rules, the rules on State responsibility provide<br />
a g<strong>en</strong>eral framework that se<strong>ts</strong> out the legal consequ<strong>en</strong>ces of geo<strong>en</strong>gineering activities that breach international<br />
obligations.<br />
State responsibility does not as such require fault or neglig<strong>en</strong>ce of the State. The conduct required or prohibited and<br />
the standards to be observed dep<strong>en</strong>d on the obligation in question. A regulatory regime may consider developing<br />
specific rules and standards for all or particular geo<strong>en</strong>gineering activities in this regard.<br />
The consequ<strong>en</strong>ces of State responsibility include legal obligations to cease the activity, to offer appropriate assurances<br />
and guarantees of non-repetition, if circumstances so require, and to make full reparation for the injury caused.25<br />
In view of the diverse geo<strong>en</strong>gineering concep<strong>ts</strong> and their pot<strong>en</strong>tially ext<strong>en</strong>sive and global impac<strong>ts</strong>, a regulatory<br />
regime may consider specific legal consequ<strong>en</strong>ces flowing from breaches of international obligations regarding<br />
geo<strong>en</strong>gineering.<br />
There is no uniform terminology in international law on the meaning of “liability”. In this study, the term “liability”<br />
refers to legal obligations on private actors—in contrast to the concept of and rules on State responsibility.<br />
States are not as such responsible for ac<strong>ts</strong> of private actors. However, a State might have to address private actors in<br />
order to fulfil i<strong>ts</strong> own obligation.26 A State could be in breach of an obligation if it failed to take necessary measures<br />
to prev<strong>en</strong>t effec<strong>ts</strong> caused by private actors (see above on State responsibility). The ext<strong>en</strong>t to which a State has to<br />
address private actors in order to fulfil i<strong>ts</strong> own obligation dep<strong>en</strong>ds on the obligation in question. For instance, the<br />
duty to prev<strong>en</strong>t transboundary harm (see below) requires the State to exercise due dilig<strong>en</strong>ce. A State may be failing<br />
to exercise due dilig<strong>en</strong>ce and thus be in breach of this obligation if it fails to exercise any legal or factual control<br />
over i<strong>ts</strong> private actors regarding transboundary harm.<br />
In addition, a State can be under an explicit and specific obligation to address private actors. Specifically, international<br />
law can impose a duty on States to provide, in their internal law, that non-State actors are liable for certain ac<strong>ts</strong>.<br />
(For instance, the 2010 Nagoya-Kuala Lumpur Supplem<strong>en</strong>tary Protocol on Liability and Redress to the Cartag<strong>en</strong>a<br />
Protocol on Biosafety requires States to address private actors through domestic rules on liability.) However, there<br />
is no g<strong>en</strong>eral obligation on States to do this.<br />
There are also international comp<strong>en</strong>sation schemes where non-State actors pay into a pool (e.g., oil pollution<br />
comp<strong>en</strong>sation schemes). However, there is no g<strong>en</strong>eral obligation on States to do this.<br />
Giv<strong>en</strong> the pot<strong>en</strong>tial impact of such activities, the existing obligations on States might be insuffici<strong>en</strong>t in requiring<br />
States to address private actors.<br />
23 In i<strong>ts</strong> work on State responsibility, the International Law Commission had considered whether a breach of a ius cog<strong>en</strong>s rule should be<br />
referred to as a separate category of “international crime”, as opposed to mere “international delic<strong>ts</strong>”. In the 1970s it proposed that an<br />
international crime should include “a serious breach of an international obligation of ess<strong>en</strong>tial importance for the safeguarding and<br />
preservation of the human <strong>en</strong>vironm<strong>en</strong>t, such as those prohibiting massive pollution of the atmosphere or of the seas”. However, it<br />
subsequ<strong>en</strong>tly dropped the concept of international crimes.<br />
24 ILC, on draft articles on responsibility of States for internationally wrongful ac<strong>ts</strong>, with comm<strong>en</strong>taries, in UN Doc. A/56/10 (Report of<br />
the International Law Commission on the work of i<strong>ts</strong> fifty-third session (23 April-1 June and 2 July-10 August 2001); p. 39.<br />
25 Articles 30 and 31 of the draft articles on State responsibility.<br />
26 Cf. article 139 of UNCLOS.<br />
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