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Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity 118 encourage international cooperation to supplement such national efforts and, where appropriate and agreed by the States or regional economic integration organizations concerned, to establish joint contingency plans. Moreover, an environmental impact assessment is required in many domestic legal orders. The requirement to carry out an environmental impact assessment has become customary international law and applies even in the absence of a treaty obligation to this effect. The ICJ has recently recognized that the accepted practice among States amounted to “a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource”.44 In the particular case before it, the ICJ also held that conducting an EIA was part of exercising due diligence.45 The judgment refers to particular industrial activities and does not necessarily establish a general requirement for a strategic environmental assessment. The ICJ left it to the States to determine the specific content of the impact assessment required. However, it also specified some details, including the following: • The duty involves “having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment”; • The impact assessment has to be carried out prior to the implementation of the activity; • Continuous monitoring of the activity’s effect on the environment is required. As a legal rule in customary international law, it is an important development that might require clarification as to its precise implications. There are cases in which the EIA process has been applied to geoengineering research with controversial outcomes. For example, the Lohafex ocean fertilization experiment carried out in January 2009 was conducted in spite of concern among non-governmental organizations and the German Federal Ministry of the Environment concerning the adequacy of the environmental risk assessment that was done, on the basis of the CBD decision on ocean fertilization, decision IX/16 C (see also section 3.3 below on the London Convention / London Protocol).46 The complexity of the climate system will in some cases make it difficult to assess the environmental impacts of geoengineering activities in advance as well as subsequently (see the complementary CBD study on the impacts of climate-related geoengineering on biological diversity). However, this might be an inherent issue rather than a regulatory gap. It may be worth considering whether and to what extent this could be addressed through different or more specific guidance regarding EIA and SEA. Some geoengineering techniques, such as artificial trees, would require cumulative deployment of relatively small interventions in order to be effective. An EIA of a single unit might not address such cumulative impacts, while an SEA would only presuppose that the cumulative deployment is part of a plan or programme as defined by the provision in question. In the context of trade and technologies, the International Assessment of Agricultural Knowledge, Science and Technology suggested considering the option of an intergovernmental framework for the comparative assessment of the environmental impact of new technologies as they evolve from initial scientific discovery through to possible “commercialization”.47 44 ICJ, Pulp mills on the river Uruguay, paras. 204–206. 45 Ibid. 46 http://www.bmu.de/english/press_releases/archive/16th_legislative_period/pm/42985.php and http://www.etcgroup.org/en/node/712. 47 McIntyre et al. (2009), p. 467; see ETC Group (2009a) and ETC Group (2011).
Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity 2.4 PRECAUTIONARY PRINCIPLE OR APPROACH There is no uniform formulation or usage for the precautionary principle or approach,48 and its legal status in customary international law has not yet been clearly established,49, 50, 51 although it has been invoked several times.52 Under the Convention on Biological Diversity, the precautionary approach is introduced in the preamble, where it is noted that “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat”. The decisions of the Conference of the Parties to the Convention have frequently been based on and stressed the importance of the precautionary approach,53 including in decision X/33, which addresses geoengineering (see section 3.1 below on CBD). Under the London Protocol, article 3.1 requires the application of the precautionary approach. Another legal formulation in the operative part of a treaty text with near universal application is Article 3(3) of the United Nations Framework Convention on Climate Change (UNFCCC).54 Almost all States have ratified the UNFCCC,55 including the US.56 While this renders the question of the precautionary principle/approach’s legal status in customary law less relevant, the precise consequences remain unclear. On the one hand, while all proponents of geoengineering stress that it is no substitute for reducing emissions, they would argue that it would contribute to fighting climate change:57 extracting carbon dioxide from the atmosphere reduces greenhouse gases, and solar radiation management has the potential to limit temperature increases. On this basis, it might be argued that lack of full scientific certainty should not be used as a reason for postponing geoengineering, provided that there are threats of serious or irreversible damage. Geoengineering proponents would argue that such threats exist, in view of the slow progress in reducing global emissions at source and the short time remaining during which emission trends need to be reversed (peak). On the other hand, faced with this same scenario, it may be argued that the precautionary approach would imply following the less risky action of implementing emission reductions. In fact, at the time it was drafted, Article 3(3) of UNFCCC was generally viewed as having the intention of postponing mitigation measures by referring to scientific uncertainty about climate change. In this context, an interpretation in support of geoengineering would 48 Cf. Principle 15 of the Rio Declaration; Article 3.3 of UNFCCC; Article 3 of the London Protocol; CBD Preamble; Birnie et al. (2009), p. 160. 49 Cf. Virgoe, J. (2009), p. 111; UK House of Commons Science and Technology Committee (2010), paras. 85–86. Güssow et al. (2009), p. 15, acknowledge a “considerable degree of unclarity (sic) as to its normative content and validity”, but apply Principle 15 of the Rio Declaration without further analysis as to legal status. 50 Cf. Article 11 of the 1982 World Charter for Nature and article 6 of the 2000 Earth Charter. 51 See generally Birnie et al. (2009), p. 152 ff.; UK House of Commons Science and Technology Committee (2010), para. 86. On the basis of the heading “principles” in Article 3.3 of UNFCCC, the present study uses the term “precautionary principle” without prejudice to this debate. 52 In its judgment on the Pulp mills on the river Uruguay case, the ICJ considered that a precautionary approach may be relevant in the interpretation and application of the provisions the treaty in question, but it rejected Argentina’s argument that it operates as a reversal of the burden of proof: cf. Memorial of Argentina of 15 January 2007, paras. 3.194-3.197 and 5.15. and the judgment, para. 164. (All documents available at www.icj-cij.org.) See also dissenting opinions of Judges Weeramantry and Palmer in the ICJ cases Nuclear Tests II, paras. 342 and 412; dissenting opinion of Judge Weeramantry in the Nuclear Weapons opinion, para. II.10.e; see also WTO Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), paras. 16 and 120–125; ITLOS Case No.17, “Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber)”, http://www.itlos.org; separate opinion of Judge Wolfrum in the ITLOS Case No. 10, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures (www.itlos.org); see also Marr (2000). 53 See for instance CBD decisions IV/10 para. 1; V/3 para. 5; VI/7 annex I, paras. 24 and 31; VI/26 annex, para. 1(e); VII/5 annex I, appendix 3, para. 2; VII/11 principle 6, guideline 6.2; VII/14, paras. 54 and 75. 54 United Nations Framework Convention on Climate Change, of 9 May 1992, 31 ILM 849 (1992), in force 1994. 55 Currently 194 Parties, http://unfccc.int/parties_and_observers/parties/items/2352.php. 56 The US is one of the major emitters and potential geoengineering States but is not Party to the Kyoto Protocol. 57 All proponents of geoengineering acknowledge and stress that it does not reduce anthropogenic CO 2 emissions levels. 119
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PART I IMPACTS OF CLIMATE-RELATED G
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