First binding international law on climate engineering

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.