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Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity There are a number of media-specific international treaties that cover research on certain technologies. Field research is fully prohibited only in exceptional cases. In most cases, the treaty recalls and addresses freedom of research by different means. Many treaties directly call for carrying out scientific research on their subject matter. Other treaties stimulate scientific knowledge by facilitating access of scientific exploration and research teams to areas that are not subject to the jurisdiction of States.178 In a few cases, certain types of research might be prohibited, for instance if it would encourage nuclear weapons test explosions prohibited by the Partial Test Ban Treaty (PTBT) or the Comprehensive Nuclear-Test-Ban Treaty (CTBT) or the development of biological weapons.179 In contrast, the ENMOD Convention, while prohibiting environmental modification techniques in armed conflict, is explicitly without prejudice to research for peaceful purposes. The Outer Space Treaty provides that experiments that “would cause potentially harmful interference with activities of other States” are subject to prior appropriate international consultation (ENMOD article IX). The Antarctic Treaty provides for freedom of scientific investigation in Antarctica and that scientific observations and results from Antarctica shall be exchanged and made freely available “to the greatest extent feasible and practicable”.180 The Antarctic Environmental Protocol explicitly mentions the value of the Antarctic as an area for the conduct of scientific research as a fundamental consideration in the planning and conduct of all activities in the Antarctic Treaty area.181 At the same time, it subjects research to the principles of Article 3 of the Antarctic Environmental Protocol.182 Moreover, scientific research is frequently institutionally incorporated in treaty regimes by integrated scientific advisory bodies such as under the Subsidiary Body for Scientific and Technological Advice under Article 9 of UNFCCC. These scientific bodies have been established as more or less integral parts of the decision-making systems of their respective regimes.183 Apart from these explicit references in binding law, international science is essentially self-organizing through institutions and non-binding rules.184 In conclusion, there are generally no general restrictions on research, including in situ experimentation, in international law outside the marine environment. The existing rules are mostly specific to certain media or a territory. 178 Livingston (1968). 179 Article I of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (1972). 180 Articles II, III of the Antarctic Treaty. 181 Article 3 of the Antarctic Environmental Protocol . 182 Ibid., Article 3 (4). 183 Andresen and Skjærseth (2007), p. 190. 184 Cf. the UNESCO Declaration on Science and the Use of Scientific Knowledge, http://www.unesco.org/science/wcs/eng/overview.htm. 142
CHAPTER 6 CONCLUSIONS Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity As an overarching concept including several distinct concepts and technologies, geoengineering is currently not as such prohibited by international law. Specific geoengineering activites and potential impacts of specific geoengineering concepts might violate particular rules, however. Additional information on geoengineering impacts would assist in the evaluation of such applicability and support the identification of gaps. It has been argued that at present, no international treaties or institutions exist with a sufficient mandate to regulate the full spectrum of possible geoengineering activities.185 However, there are existing rules that would apply to some geoengineering activities, and institutions with at least a partial mandate to address it. A summary of the applicability of the various treaties examined in this report to several geoengineering techniques is provided in annex III below. Most treaties, but not all, potentially provide for mechanisms, procedures or institutions that could determine whether the treaty in question applies to a specific geoengineering activity and could address such activities. In particular, most relevant treaties have in place a Conference of the Parties (COP) or other institution that can determine to what extent geoengineering can be addressed by the treaty in question and its bodies. Space law does not have the features of more modern environmental treaty regimes. It remains to be seen whether the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) would be suitable for elaborating specific guidance. Some rules analysed in this study could apply to particular geoengineering concepts and could restrict them depending on specific impacts. Whether such impacts would actually occur is difficult to assess or predict at this stage. Some rules do not require actual impacts but let potential or likely impacts suffice. Some general rules, such as for the prevention of transboundary environmental harm, may be intended to cover subsequent developments. In contrast, other rules may not be applicable, or may not provide a clear permission or prohibition of geoengineering. This study follows a cautious approach in applying or drawing conclusions from existing legal rules.186 In accordance with established methods of legal interpretation,187 it considers that rules that were adopted without considering geoengineering, and whose normative content is general or vague, are open to interpretation, and do not on the face of it speak in favour of or against geoengineering as such. One gap in international environmental governance is the lack of mechanism or treaty to deal with the assessment of technologies before they are commercialized. This gap was pointed out, for example, by the International Assessment of Agricultural Knowledge, Science and Technology.188 It has also been referred to repeatedly by civil society organizations concerned about the social and environmental impacts of new technologies in the context of UNFCCC.189 Before the tenth meeting of the Conference of the Parties to the Convention on Biological Diversity, ocean fertilization (and carbon capture and storage) were the only geoengineering concepts addressed as such at an international regulatory level, namely by the CBD and the London Convention/London Protocol (LC/LP). 185 Lattanzio and Barbour (2010), p. 3; Barrett (2008), p. 9. 186 As suggested by Bodansky as early as 1996; see Bodansky (1996), p. 316. 187 Cf. Article 31 and 32 of the Vienna Convention on the Law of Treaties. 188 McIntyre et al. (2009), p. 467; see ETC Group (2009a) and ETC Group (2011). 189 TWN Info Service on Climate Change (Sept11/02), 6 September 2011, Third World Network, http://www.twnside.org.sg/title2/ climate/info.service/2011/climate20110902.htm. 143
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PART I IMPACTS OF CLIMATE-RELATED G
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Part I: Impacts of Climate-related
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CHAPTER 1 MANDATE, CONTEXT AND SCOP
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CHAPTER 2 Part I: Impacts of Climat
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Table 5.1: Classification of CDR te
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Figure 5.1. Changes in primary prod
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Land and water requirements Part I:
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CHAPTER 7 SYNTHESIS Part I: Impacts
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ANNEX II Part I: Impacts of Climate
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ANNEX III REPORT AUTHORS, EDITORS A
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Betz G. (2011). The case for climat
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Glibert P M. (2008). Ocean urea fer
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