In October 2013, the
Parties to the London Dumping Convention (to be more precise: the 1996 Protocol
to the Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter) adopted amendments aimed at regulating marine
geo-engineering. This is the first time the international community adopted
binding legal rules on climate engineering. Climate engineering, or
geo-engineering, is the deliberate interference with the Earth’s climate to
achieve a cooling effect, thus mitigating global warming. A range of very
different techniques are being researched at the moment, usually divided into
two groups: solar radiation management (SRM) and carbon dioxide removal (CDR).
SRM techniques are for instance the injection of sulphur aerosols in the
stratosphere to block the sun light, thus mimicking volcanic ashes in the stratosphere
after a volcanic eruption (stratospheric aerosol injection, SAI), and the injection
of fine sea water particles in clouds to increase the reflective capacity of
clouds (marine cloud brightening, MCB, sometimes also referred to as cloud
seeding). CDR techniques are for instance the emission of fertilizers such as
iron into the ocean to stimulate a
bloom of phytoplankton, which are responsible for a large share of the carbon take
up (ocean iron fertilization, OIF), large scale afforestation, and direct air
capture of greenhouse gasses (DAC).
Each of these techniques
has its own pros and cons. Some are considered to be potentially dangerous
because of the large scale at which they have to be used to be effective and
the risk of unexpected negative side effects. It, for instance, has been
estimated that for stratospheric aerosol injection to be effective, a more or
less continuous emission of aerosols by a very large number of aircraft (perhaps
as many as a thousand) is needed to keep a constant blanket of aerosols in the
atmosphere. As this technique does not interfere at all with the amount of
carbon in the atmosphere, generations to come have to continue applying this
technique. Stopping the emission of aerosols will trigger a very sudden drastic
warming effect. Other negative consequences of SAI are side effects, such as potentially
drastic changes in precipitation in some regions, ongoing ocean acidification and
potential harm to the ozone layer. Ocean fertilization leads to eco-system
changes and may affect fish stocks. There are many reports that describe the
pros and cons of the various geo-engineering techniques. In Germany, the Kiel
Earth Institute published a good report
in English. In the Netherlands, the Rathenau Institute published an up-to-date and
very well accessible report
in Dutch in December 2013.
As is often the case
with the development of new techniques and technologies, the law regulating
these is lagging behind. This, however, does not mean that climate engineering
is completely unregulated at the moment. International law that applies to
(some forms of) climate engineering, can be divided into four categories:
- International
customary law. The no harm principle limits the use of techniques that may have
an irreversible negative side effect for certain states (in the 1997 Gabčíkovo-Nagymaros
case, the International Court of Justice stated that in the field of environmental protection, vigilance and prevention are
required on account of the often irreversible character of damage to the
environment and of the limitations inherent in the very mechanism of reparation
of this type of damage). An
assessment of the potential negative impacts on the environment of other states
is required as a consequence of this principle (as was concluded by the ICJ in
the 2010 Pulp Mills case). Other international environmental law principles
that are relevant here are the precautionary principle and the principle of
intergenerational equity.
- International
human rights conventions may apply, although both advocates and critics of
climate engineering use human rights as an argument in favour of and against
the deployment of geo-engineering techniques (climate engineering is necessary
to protect human rights which will be affected by climate change, or: climate
engineering may negatively impact on human rights in case of unexpected failure
or negative side-effects)
- Existing treaties
that more or less explicitly deal with climate engineering. The best example before
the adoption of the 2013 amendments to the London Protocol is the 1976 Convention
on Environmental Modifications (ENMOD convention). Although this convention is mainly
aimed at environmental modifications with a hostile intend, it also sets some
conditions to environmental modifications for peaceful purposes, such as climate
engineering. Climate engineering is allowed under the ENMOD Convention,
provided that a State does not develop and employ climate engineering on its
own (international cooperation is needed), the deployment has to contribute to
international economic and scientific collaboration aimed at improving the
environment, and States have to take into account the needs of developing countries.
- Existing
treaties that happen to be applicable to a certain climate engineering
technique, such as the 1979 Convention on long range transboundary air pollution
which sets a cap on various emissions, such as sulphur emissions, thus limiting
the use of sulphur for stratospheric aerosol injection.
The adoption of
amendments to the London Protocol referred to in the first sentence of this
blog fit within the third category, but is special because it is the first time
that climate engineering has been explicitly targeted by international law. Through
the amendments, a new article and two new annexes are inserted into 1996
Protocol. The new article states that “Contracting Parties shall not allow the
placement of matter into the sea from vessels, aircraft, platforms or other
man-made structures at sea for marine geo-engineering activities listed in
Annex 4, unless the listing provides that the activity or the sub-category of
an activity may be authorized under a permit”. Annex 4 then lists ocean fertilization
as a prohibited activity, with the exception of legitimate scientific research.
Such research has to be permitted and assessed under the criteria laid down in
Annex 5. Annex 5 has extensive provisions for the permitting process at the domestic
level by the parties to the protocol, on consultation, prior assessment, site
selection, risk management, monitoring, scientific peer review, etc., etc. States have to adopt
legislation so as to implement these new provisions. Once ratified, these amendments
will thus lead to legislative activity in all of the 44 parties to the protocol.
They will serve as a benchmark for all future geo-engineering law, both at
international and national level.
Posts
