Bodansky - May we engineer the climate.pdf

MAY WE ENGINEER THE CLIMATE?
DANIEL BODANSKY
University of Washington School of Lm,; 1100 N.E. Campus Parkway, Seattle, WA 98105, U.S.A.
Abstract. Not only is the science of climate engineering uncertain; the legal issues are also highly
uncertain. Although existing international law does not specifically limit the freedom of states to
undertake climate engineering, the international community would likely demand a say should
climate engineering move from the realm of speculation to concrete proposals. The experience of
other environmental regimes, however, suggests that developing an international decision-making
mechanism would be difficult, and that the international community might opt for a simple prohibition
on climate engineering on grounds of 'precaution'.
1. Introduction
The issues raised by proposals to engineer the climate are largely unprecedented.
So it should not be surprising that international law addresses them inadequately.
Existing international norms do not address climate engineering directly. And to the
extent these norms are indirectly relevant, they may not provide a reliable guide
to how the international community would react if climate engineering were to
emerge as a serious proposal. Thus, not only is the science of climate engineering
uncertain; the legal issues raised by climate engineering are also highly uncertain.
Four basic features of climate engineering make it legally and politically prob-
lematic:
(1) Climate engineering would represent a large-scale, intentional effort to
modify the environment. In this respect, it differs from the inadvertent 'climate
engineering' that we are engaged in already through activities such as burning
fossil fuels, cutting down forests, and so forth. Intentional and inadvertent effects
are not only viewed very differently from a moral standpoint; they also are generally
treated differently by the law.
(2) Climate engineering would have global impacts; every country in the world
would be affected.
(3) Climate engineering involves a high degree of uncertainty, both about the
problem that it is intended to address and its impacts. Although the purpose of
climate engineering would be benign, there is always the chance that it would go
awry and cause catastrophic harm.
(4) The effects of climate engineering are not likely to be uniform. Even if
climate engineering worked exactly as planned, some countries might still come
out worse off. In other words, climate engineering is likely to create losers as well
as winners.
Climatic Change 33: 309-321, 1996.
(~) 1996 Kluwer Academic Publishers, Printed in the Netherlands.

310 DANIELBODANSKY
These features of the climate engineering problem raise basic questions of
international governance:
9 Does one country have the right to make decisions about projects that are
specifically intended to affect the entire world? And, if not, how should deci-
sions be made? Should every country have the right to participate, or only
some countries?
9 How can we ensure that decisions are made on a sound scientific basis?
9 What provision should be made for the possibility of damage? Can we devise
a system of compensating the potential losers from climate engineering?
Such questions would pose serious problems even if the spatial scale of geoengi-
neering were national rather than international. But at least for national geoengi-
neering projects, such as local weather modification, we have a system of gover-
nance commensurate with the scale of the intended effects. In contrast, international
governance is far more rudimentary.
Given the magnitude of climate engineering projects, if climate engineering
were to move from the realm of speculation to actual proposals, we would be on
essentially uncharted legal grounds. As discussed below, the legal rules that have
developed for outer space and the oceans are generally permissive: they allow states
to use the global commons freely, subject only to very general standards to prevent
pollution, consult with others and so forth. But does this mean that, in practice, the
international community would recognize a right of unilateral action with respect
to climate engineering? And is it likely that a country such as the United States
would decide to proceed on its own?
The answer to these questions is likely to be no. The absence of an effective
process for making international decisions is far more likely to frustrate proposals
for climate engineering. Countries would be unwilling to incur the political costs
of proceeding without international approval; but there would be no effective way
of obtaining this approval. If this analysis is correct, then the ultimate obstacles to
climate engineering may not be scientific and technological; the ultimate obstacles
may be political.
In the next section, this article describes two precedents for climate engineering:
the weather modification proposals of the 1970s, and the 1977 Convention Pro-
hibiting Military Use of Environmental Modification Techniques. Then it surveys
existing international norms and mechanisms relevant to climate engineering pro-
posals. Finally, it briefly examines several analogues to climate engineering where
attempts were made to develop a system of international governance, to see what
lessons can be learned.
2. Precedents
By way of background, it is useful to review briefly the precedents for climate
engineering. The two most similar issues to receive international attention have

MAY WE ENGINEER THE CLIMATE? 311
been: (1) weather modification, and (2) the use of environmental modification
techniques for military purposes.
Weather modification has now largely fallen out of favor; but it was prominent
in the 1960s and 1970s. Projects were intended, among other things, to enhance
precipitation, modify hurricanes, dissipate fog and suppress hail. Many of the
projects were local in scope. But some had the potential for transboundary effects.
In response to these activities, in 1980 the U.N. Environment Programme
(UNEP) adopted international guidelines for cooperation in weather modification. 1
These guidelines recommend that states undertake prior environmental assessment
of weather modification activities that are likely to affect other states or the glob-
al commons. They also recommend that states exchange information; notify and
consult with other states that might be affected by weather-modification activities;
and provide information to the World Meteorological Organization. Finally, the
guidelines provide that "weather modification activities should be conducted in a
manner designed to ensure that they do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction".
One aspect of weather modification that raised particular concern in the 1970s
was the possibility of manipulating the environment for military purposes. Dur-
ing the Vietnam War, the U.S. military had experimented with rain enhancement
projects in Indochina to impede traffic along the Ho Chi Minh Trail. The con-
cem about environmental warfare led to the adoption of the so-called ENMOD
Convention in 1977, which prohibits the use of environmental modification tech-
niques that have 'widespread, long-lasting or severe effects'.2 ENMOD specifically
defines environmental modification techniques as including deliberate changes in
the weather or climate.
Although both the UNEP Weather Modification Guidelines and the ENMOD
Convention deal with related issues to climate engineering, neither instrument
is directly applicable. The Weather Modification Guidelines focus on regional
weather modification, not the global climate; they are applicable to modifica-
tions of atmospheric properties, not climate engineering more generally. Similarly,
the ENMOD Convention applies only to environmental modification for hostile
purposes, and specifically preserves the right to use environmental modification
techniques for peaceful purposes consistent with "generally recognized principles
and applicable rules of international law conceming such use". Thus, neither of
these instruments would directly govern climate engineering proposals, although
they perhaps provide some indication of how the international community might
respond if climate engineering were to be seriously proposed.

312 DANIEL BODANSKY
3. Existing International Norms and Institutions
If the weather-modification guidelines and the ENMOD Convention do not directly
govem climate engineering, what are the relevant principles and rules of intema-
tional law?
3.1. GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
First, a number of general principles of intemational environmental law are rel-
evant, which apply to all human activities, including climate engineering. Most
fundamentally, it is widely accepted that states have a duty to prevent significant
transboundary harm, including harm to the global commons. As discussed above,
this norm was specifically recognized in connection with weather modification in
the UNEP Guidelines.
The problem is that it is highly uncertain whether climate engineering will
cause significant harm. So we do not know in advance whether climate engineering
meets this first general legal test. Proponents of climate engineering argue that it
would be safe - and they may be correct. But many - perhaps most - people
view these assurances with some skepticism. Where the weather or climate is
concerned, prediction is no easy matter. Chlorofluorocarbons were also thought
to be completely safe back in the 1930s when they were first developed. Now, of
course, we know that they destroy stratospheric ozone.
In response to these difficulties in predicting environmental risk, a second princi-
ple has developed at the international level, widely referred to as the 'precautionary
principle'. 3 This principle says that, when there is a potential for irreversible or
catastrophic harm, the burden of proof should be placed on those proposing an
action - in cases of uncertainty, potentially harmful actions should not be allowed.
It may be confidently predicted that, should geoengineering move from the realm
of speculation to concrete proposal, the precautionary principle would be invoked
frequently and loudly at the international level.
Complementing the precautionary principle is the principle of intergenerational
equity. 4 Increasingly, states have acknowledged that they have a duty to protect
the environment for the benefit of future generations. This principle is relevant to
climate engineering, given the long time-frame of the potential effects.
Finally, states generally accept a number of procedural duties, including the
duty to undertake environmental assessments of proposed projects that may have
transboundary effects, the duty to provide notice to potentially-affected states,
and the duty to consult with those states. Again, these norms were recognized
in connection with weather modification in the UNEP Guidelines. Although it is
debatable whether these duties represent 'legal' norms, countries such as the U.S.
or Japan would probably accept that, before undertaking climate engineering, they
should notify and consult with other countries.

MAY WE ENGINEER THE CLIMATE? 313
All of these norms, of course, are very general and provide us with little specific
guidance about the permissibility of climate engineering. If the international system
had an effective judiciary, then these broad norms could be elaborated through
adjudication, just as, in the United States, broad principles such as due process
and equal protection are given meaning by the courts. But, generally speaking,
the international system lacks binding mechanisms to settle disputes. The U.S. has
dropped out of the World Court, for example, and could not be sued there, even if
it decided to proceed with climate engineering unilaterally. 5
The significance of these international environmental norms, then, is not in
imposing specific constraints on what countries may do. Instead, they are significant
in providing a general frame of reference. If climate engineering were to become
a concrete proposal, these norms would set the terms of the international debate
about whether to proceed.
3.2. U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE
In addition to these quite general principles of international environmental law,
a number of more specific treaties have been adopted that relate to climate engi-
neering. The treaty most directly relevant is the U.N. Framework Convention on
Climate Change (FCCC), 6 which was adopted in 1992 and entered into force in
March 1994. The Climate Change Convention has relatively little to say about
climate engineering specifically; but it is likely that the institutions created by
the Convention would provide the principal international fora for consideration of
climate-engineering proposals.
In terms of substantive obligations, the main focus during the negotiation of
the Climate Change Convention was on limiting emissions of greenhouse gases,
not on controlling other variables in the climate system. The only type of climate
'engineering' that anybody really considered was reforestation. With respect to
reforestation, the Convention establishes the ultimate aim of stabilizing concen-
trations of greenhouse gases in the atmosphere, and is neutral on the question of
whether this stabilization should be achieved by limiting emissions or enhancing
sinks. Otherwise, the only provisions of the Convention that are directly relevant to
climate engineering are, first, the provisions requiring scientific cooperation and,
second, the requirement that states minimize the adverse effects of projects under-
taken to mitigate climate change - including, of course, geoengineering projects.
Perhaps more important than the specific obligations contained in the Con-
vention are the institutions it creates. The Convention establishes a Scientific and
Technological Advisory Committee (the Subsidiary Body for Scientific and Tech-
nological Advice), which could be called upon to assess and provide advice on
climate engineering proposals. In addition, the Convention provides for a yearly
Conference of the Parties, which serves as the supreme body of the Convention.
These institutions would likely serve as the main fora for international discussions
of climate engineering.

314 DANIEL BODANSKY
3.3. OTHER RELEVANT TREATIES
3.3.1. Reflective Screens in Outer Space
Apart from the Climate Change Convention, several treaties would be relevant
to particular types of climate engineering taking place in particular parts of the
environment. Proposals to deploy a giant parasol over the earth to reflect incoming
solar radiation, for example, would be governed by the Outer Space Treaty of
1967, 7 to which the U.S. is a party. This treaty establishes essentially an open access
regime for outer space. National air space extends only to the top of the atmosphere;
beyond that, outer space, like the oceans, is 'the province of all mankind', and any
state is free to explore and use it. What this means is that, as a general matter, there
is no legal prohibition on using outer space for climate-engineering projects. The
Treaty contains only the type of general principles that we have already seen in the
UNEP Weather Modification Guidelines. It requires that parties "conduct all their
activities in outer space.., with due regard to the corresponding interests" of other
states, that they avoid "adverse changes in the environment of the Earth", and that
they consult with other states if there is a question about whether an activity may
cause an adverse effect (Art. 9). But the Treaty does not establish any mechanism
for making decisions or resolving disputes if states disagree about the desirability
of an outer space project.
3.3.2. Ocean Fertilization
Ocean fertilization would implicate two bodies of international law: the law of
the sea and the Antarctic Treaty System. Like outer space law, the law of the sea
establishes essentially an open access regime. The principal international agreement
is the 1982 U.N. Convention on the Law of the Sea (or UNCLOS), 8 which finally
entered into force in 1994. The Convention extends coastal state jurisdiction to 200
miles from shore, including jurisdiction over marine scientific research projects
(Art. 246). In addition, the Convention declares the deep ocean sea-bed to be 'the
common heritage of mankind', with collective decision-making institutions. But
with respect to the superjacent waters, where ocean fertilization would take place,
UNCLOS reaffirms the basic norm of the law of the sea, namely freedom to use
the high seas for peaceful purposes (Arts. 87-88). Specifically, the Convention
permits states to undertake marine scientific research without permission on the
high seas, beyond a coastal state's 200-mile exclusive economic zone (EEZ) (Art.
257). Moreover, although UNCLOS establishes quite broad rules on the prevention
of marine pollution (Arts. 192, 194), like the Outer Space Treaty it does not establish
any institutions with power to make decisions or restrict geoengineering projects
that are confined to the high seas. Thus, so long as ocean fertilization were done
more than 200 miles from shore, it would arguably be permissible under the Law
of the Sea Convention. 9
If ocean fertilization took place south of 60 ~ south latitude, then it would also be
subject to the Antarctic Treaty System, t~ which includes a treaty on the conserva-

MAY WE ENGINEER THE CLIMATE? 315
tion of Antarctic marine living resources I l as well as a protocol on environmental
protection. 12 Like other environmental treaties, the Antarctic treaties do not specif-
ically address purposeful efforts to modify the environment; instead, they set forth
more general principles of environmental protection and prohibit particular types
of pollution. To the extent that ocean fertilization would not harm the Antarctic
environment, it would not constitute pollution and would not be regulated under
the environmental protocol.
But, in contrast to the very limited governance arrangements for the high seas
and outer space, a quite highly developed system of international governance
has emerged for Antarctica, made possible by the manageable number of coun-
tries involved and the limited human uses of Antarctica. Although nothing in the
Antarctic treaties specifically prohibits ocean fertilization, proposals to fertilize the
Antarctic ocean would, as a political matter, almost certainly be subject to review
by the Antarctic Treaty parties. Moreover, the Antarctic environmental protocol
establishes a mandatory dispute settlement procedure, which other states might use
to challenge ocean fertilization projects.
3.3.3. Atmospheric Proposals
From an international law perspective, climate-engineering projects involving the
atmosphere - for example, injecting sulfates to reflect incoming sunlight or dis-
persing reflective balloons - would be the most problematic. Unlike outer space
and the oceans, the atmosphere is subject to national sovereignty; it is part of the
territory of the state below it. Purposefully putting sulfates or balloons into the
atmosphere with the intent that they be transported worldwide could thus be con-
sidered impermissible intervention in other states' affairs, unless the other states
consented. 13
Where does the atmosphere end and outer space begin? There is no accepted
definition. Some of the proposed definitions are functional: they focus on the
highest altitude for aircraft, or the lowest altitude of a stable orbit. Others pick a
specific distance from the surface of the earth, such as 100 miles. But regardless
of which definition is used, placing a space screen at a Lagrange point would be
in outer space; injecting sulfates by cannons or launching balloons would involve
the atmosphere.
Moreover, in addition to these general restrictions on engineering the atmo-
sphere, which flow from its territorial character, the United States is also a party to
the Long-Range Transboundary Air Pollution Convention (or LRTAP), 14 a regional
agreement among most European and North America countries. In 1985, a proto-
col was adopted under LRTAP which set specific limitations on sulfur emissions,
requiring countries to cut their emissions by 30% from 1980 levels. This proto-
col was replaced by a more stringent protocol in 1994, which establishes national
emissions limits based on 'critical loads'. 15 Although the United States is not a
party to either the 1985 or the 1994 sulfur protocol, a U.S. program to deliberately

316 DANIEL BODANSKY
inject sulfur into the atmosphere might nonetheless be questioned as contrary to
the spirit of LRTAP.
3.3.4. Reforestation
At the opposite extreme from atmospheric climate engineering, reforestation would
be the least problematic type of climate engineering. Unlike geoengineering pro-
posals that focus on areas of the global commons - such as the outer space or the
oceans - or on direct effects in another state's atmosphere, reforestation would take
place in a state's own territory. For this reason, it raises the fewest international law
problems. States have sovereignty over their territory, and can do whatever they
like, subject only to the general prohibition on causing transboundary harm. Thus,
if the U.S. wished to plant 1000 square miles of trees in Oklahoma, that would be
its decision. The main role of international law would simply be facilitative - i.e.,
to provide mechanisms, institutions and incentives to encourage reforestation in
other countries as well.
4. Prospects for Climate Engineering
What conclusions can we draw from this survey of the current legal landscape? In
general, climate engineering would be least problematic when undertaken within
a state's own territory, and most problematic when it involves direct attempts to
modify another state's territory. Overall, however, international law has relatively
little specific to say about climate engineering. It sets forth very general principles of
environmental protection. But these principles do not provide any straightforward
answer to the question: would climate engineering be legally permissible? Given
the uncertainties about climate engineering, the most important international rule
is likely to be the precautionary principle, which puts the burden on proponents of
climate engineering to prove that it is safe.
In general, we should be cautious about drawing conclusions from existing
legal rules, for the simple reason that these rules were not developed with climate
engineering in mind. For example, the Outer Space Treaty and the U.N. Convention
on the Law of the Sea provide for freedom of use of outer space and the oceans.
But this does not necessarily mean that, if climate engineering were to become a
reality, states would in fact accept the right of other states to use outer space or the
oceans for climate-engineering purposes.
Climate-engineering proposals are likely to raise concern among at least some
states. And states are likely to disagree about the merits of climate engineering, both
because of different evaluations of the risks and because climate engineering could
affect different states differently. Given these uncertainties and disagreements, the
critical question will be: how should decisions be made about whether to proceed?
There are three possibilities: (1) Countries could undertake climate engineering
unilaterally, subject only to some general international standards regarding assess-

MAY WE ENGINEER THE CLIMATE? 317
ment, notice, consultation and so forth. (2) An international decision-making mech-
anism could be established to review and authorize proposed climate-engineering
projects. (3) The international community could simply prohibit climate engineer-
ing. This has become a common approach in recent years for dealing with activities
whose environmental impacts are uncertain. In 1993, for example, countries agreed
to ban the dumping of low-level radioactive wastes at sea. Similarly, the Interna-
tional Whaling Commission has prohibited all whaling for commercial purposes.
Which of these alternatives is most likely? Generally, international law permits
unilateral decision-making. It imposes general standards, but leaves it up to each
country to decide how to implement and apply those standards. Thus, both the
Outer Space Treaty and the U.N. Convention on the Law of the Sea generally
permit unilateral decision-making in areas beyond national jurisdiction. Countries
can launch satellites and they can conduct marine scientific research on the high
seas without prior international approval.
Proposals to engineer the climate, however, might well be treated differently,
because the spatial scale and the potential risks are so large. Because climate
engineering would have global impacts, if it were under serious consideration by
the United States, other states would almost certainly demand a say. They would not
accept that the United States has the unilateral right to make decisions concerning
their climate. The question then would be whether the United States would be
willing to proceed anyway, in the face of this international concern, or would
accept international regulation.
There are few precedents, so it is difficult to predict how countries would act.
But the example of weather modification is instructive. In the 1960s and 1970s, the
United States had a project called Stormfury, which involved, among other things,
attempts to modify hurricanes. The project was initially planned for the Atlantic
and then the Pacific. One participant recalls that, in a planning meeting, the State
Department representative said: "Gentlemen, no and no in the Atlantic because
there are a lot more countries there. And if you want to do anything in the Pacific,
we no longer will be satisfied with acquiescence by Japan and China - we need an
affirmative assurance from each of them before we go ahead". 16
Of course, the United States causes transboundary harms all the time. Indeed,
the U.S. is more responsible than any other country for the buildup of green-
house gases in the atmosphere. Moreover, during the negotiation of the Climate
Change Convention, it strenuously opposed specific international limitations on its
emissions of greenhouse gases. Why would climate engineering be treated differ-
ently? In part, the difference may be between stopping an existing activity, and
forestalling a new one. In part, the difference is between numerous, small-scale
activities whose effects on the environment are incidental, and dramatic large-scale
activities specifically intended to alter the environment. Nobody thinks that any
kind of authorization is needed - at the national or international level - to use
cars or generate electricity, even though cumulatively these activities may have
global impacts. But the situation would presumably be very different for proposals

318 DANIELBODANSKY
for new, large-scale, purposeful human interventions in the environment such as
climate engineering.
In looking for precedents, it is difficult to think of any human intervention
in the environment comparable in scale to climate engineering. Perhaps the only
example is nuclear warfare. Despite early efforts following World War II to put
nuclear weapons under international control, the nuclear powers still retain uni-
lateral decision-making authority about when to use their weapons. This could be
viewed as a precedent for retaining unilateral decision-making on climate engi-
neering. The rationale for national control over nuclear weapons is that a nation's
self-preservation cannot be delegated to any other body. To the extent that climate
engineering is also a matter of self-preservation, the same argument could be made.
Ultimately, however, the comparison between climate engineering and control
over nuclear weapons does not hold up. In the context of nuclear weapons, the
threat to self-preservation is immediate and overwhelming. If we faced a similarly
immediate and overwhelming environmental threat- such as from an asteroid
headed on a collision course with earth - then it is possible that a country would
act unilaterally to prevent the harm. But climate change is a much more insidious
threat - the danger is long-term, difficult to detect, and, to some degree, uncertain.
In these circumstances, it seems unlikely that global warming would create the
sense of urgency and even panic that might cause a state to proceed unilaterally
with large-scale projects to modify the climate.
Assuming that the U.S. and other countries would, in practice, be unwilling to
implement climate engineering unilaterally, then collective decisionmaking would
be required. Discussions about climate engineering could take place in numerous
fora. The issue would undoubtedly be raised in the Conference of the Parties
to the U.N. Framework Convention on Climate Change; one possibility is that
a protocol on climate engineering would be negotiated under the auspices of
that treaty. Climate-engineering proposals could also be considered in the United
National Environment Programme and/or the World Meteorological Organization.
Proposals to place reflective screens in outer space would also probably be raised
in the U.N. Commission on the Peaceful Uses of Outer Space, which operates
under the auspices of the U.N. General Assembly; proposals to seed the southern
ocean with iron would probably be discussed by the palxicipants in the Antarctic
Treaty System; and, finally, proposals to inject sulfates into the atmosphere could be
discussed in the Executive Body of the Long-Range Transboundary Air Pollution
Convention.
So there is no lack of international institutions to consider climate engineering.
The problem is that none of these bodies currently has any real decision-making
authority. Consequently, collective regulation of climate engineering would require
the development of a new international decision-making mechanism.
Agreement on such a mechanism would be difficult. There are, of course,
some examples of international regulatory mechanisms operating in relatively
uncontroversial areas, such as aviation and telecommunications. But efforts to

MAY WE ENGINEER THE CLIMATE? 319
develop international decision-making mechanisms in the environmental field have
not been encouraging.
Consider, for example, the effort to develop an international decision-making
regime for Antarctic mineral resources. The 1959 Antarctic Treaty did not explicitly
prohibit countries from exploiting Antarctica's mineral resources. Arguably, it
created the same kind of open access regime that currently exists for outer space
and the high seas. Nevertheless, countries were unwilling to proceed with mineral
activities in Antarctica unilaterally. They recognized, correctly, that attempts to
exploit Antarctica's minerals would have been challenged by other states, thereby
undermining the fragile consensus on which the Antarctic Treaty system rests.
Rather than proceed unilaterally, the Antarctic Treaty parties attempted to develop
an international regulatory regime for Antarctic mineral resources. Over a ten-year
period, they negotiated a treaty, establishing very elaborate collective decision-
making procedures. 17
In the end, however, even the Antarctic minerals regime proved unsuccessful.
Following the completion of the negotiations, Australia and France changed their
mind and announced that they would not join the proposed Convention. Instead,
they proposed making Antarctica into a world park, off-limits to mineral exploita-
tion altogether. Despite the very substantial investment of time and effort by many
countries in developing an international regime, the Australian/French position
ultimately prevailed. The international community opted for a simple prohibition
on all mineral exploitation (at least for 50 years), rather than a system of collective
decision-making.
Developing an international regime for climate engineering would be an even
more difficult task. Antarctic mineral activities have comparatively small impacts,
limited to only a few countries. Thus, the proposed Antarctic Minerals Convention
was able to restrict decision-making to the countries directly concerned. In con-
trast, climate engineering would affect the entire globe, and arguably every country
should have a right to participate in the decision-making process. Moreover, despite
the comparatively simple nature of the Antarctic minerals problem, the Antarctic
Treaty parties were unable to reach any agreement on a liability regime for dam-
ages. The problem of liability would be considerably more complex for climate
engineering, given the difficulty of establishing cause-effect relationships.
What this experience illustrates is that even when there is strong pressure in
favor of a controversial activity, it is generally easier to prohibit an activity than
to regulate it. This has certainly been true at the international level, in part due
to the development of the 'precautionary principle', which in essence says: 'if in
doubt, don't'. In recent years, the international community has banned commercial
whaling, driftnet fishing, incineration of wastes at sea, and ocean dumping of
low-level radioactive wastes. In some cases, these bans were adopted despite
the existence of groups with strong vested interests in continuing the activity in
question. A ban on climate engineering might be even easier to adopt, given the
lack of a substantial political constituency in its favor.

320 DANIEL BODANSKY
Collective decision-making requires a sense of community - of trust in the
decision-making process and the decision-maker - that is still largely absent in
intemational society. Simply prohibiting an activity is far easier to do.
What can be done to improve the prospects for responsible international consid-
eration of climate engineering proposals? One lesson from the Intergovemmental
Panel on Climate Change is to get as many countries as possible involved as early
as possible. Countries will be much more likely to evaluate climate-engineering
proposals in a rational way if they are familiar with them.
Discussions of climate engineering need to proceed with an understanding that,
like any technology, climate engineering is a social and political problem as well
as a scientific one. Whether we can engineer the climate will depend not only on
its technical feasibility, but also on its political acceptability.
Notes
1. U.N. Environment Programme: 1980, Provisions for Cooperation between States in Weather
Modification, Decision 8/7/A of the Governing Council, 29 Apr. 1980.
2. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modifi-
cation Techniques, U.N. Treaty Ser. 1108, 151 (entered into force 5 Oct. 1978).
3. O'Riordan, T. and Cameron, J. (eds.): 1994, Interpreting the Precautionary Principle, Cameron
and May, London, 315 pp.
4. Weiss, E. B.: 1989, In Fairness to Future Generations: International Law, Common Patrimony
and Intergenerational Equity, Transnational, Dobbs Ferry, NY, 385 pp.
5. In an analogous situation, New Zealand's and Australia's attempts to challenge recent French
nuclear tests in the South Pacific proved unsuccessful.
6. U.N. Framework Convention on Climate Change, U.N. Doc. A/AC.237/18 (Part II), Add. 1,
reprinted in lnternat. Legal Materials 31, 851 (1992).
7. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies, U.N. Treaty Ser. 610, 205 (adopted 27
Jan. 1967, entered into force 10 Oct. 1967).
8. U.N. Doc. A/CONF.62/122, adopted 10 Dec. 1982, reprinted in Internat. Legal Materials 21,
1261 (1982).
9. Ocean fertilization would also be consistent with the London Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter, which applies only to the deliberate
disposal of wastes at sea, not to the "placement of matter for a purpose other than the mere
disposal thereof", Art. III(1)(b)(ii), U.N. Treaty Ser. 1046, 120 (adopted 29 Dec. 1972, entered
into force 30 Aug. 1975).
10. Antarctic Treaty, U.N. Treaty Ser. 402, 71 (adopted 1 Dec. 1959, entered into force 23 June
1961).
11. Convention on the Conservation of Antarctic Marine Living Resources, U.N. Treaty Ser. 33,
3476 (adopted 20 May 1980, entered into force 7 Apr. 1982).
12. Protocol on Environmental Protection to the Antarctic Treaty, adopted 4 Oct. 1991, reprinted
in Internat. Legal Materials 30, 1455 (1991).
13. Although states cause transboundary pollution on a regular basis, the difference is that the
transboundary effects of climatic engineering would be intentional, not inadvertent.
14. Adopted 13 Nov. 1979, entered into force 16 March 1983, reprinted in Internat. Legal Materials
18, 1442 (1979).
15. Critical loads are defined as "the highest load that will not cause chemical changes leading to
long-term harmful effects on the most sensitive ecological ecosystems" in a particular area.
Levy, M. A.: 1995, 'International Co-operation to Combat Acid Rain', Green Globe Yearbook
1995, Oxford Univ. Press, Oxford, pp. 59--68.

MAY WE ENGINEER THE CLIMATE? 321
16. Taubenfeld, H. J.: 1977, 'The Legal Uncertainties: A Lawyer Responds', in W. A. Thomas (ed.),
Legal and Scientific Uncertainties of Weather Modification, p. 69.
17. Wellington Convention on the Regulation of Antarctic Mineral Resource Activities, adopted 2
June 1988, U.N. Doc. AMR/SCM/88/78, reprinted in Internat. Legal Materials 27, 868 (1988).
(Received 17 April 1995; in revised form 31 January 1996)