3. The state of international law development on GE: selected examples
No general prohibition of GE is found in international law, but legal scholars point out that deployment of GE techniques may violate fundamental principles and obligations of international environmental law such as precautionary principle, no-harm duty and the duty to notify and consult.(1) Proelss (n 5), pp. 205-211; Brent, K.A. (2021). Solar Geoengineering Is Prohibited under International Law. In B. Mayer & A. Zahar (Eds.), Debating Climate Law (pp. 274-284). CUP. https://doi.org/10.1017/9781108879064.021. Certain GE approaches may, if deployed with military or hostile purpose, violate Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD)(2) New York, 10 December 1976, in force 5 October 1978, 1108 UNTS 151. which prohibits States parties to ‘engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.’
Several states, international organizations, scientific bodies and local communities also have expressed scepticism towards GE.(3) Gupta, H. (2016). Geoengineering: Issues and Perspectives. Environmental Policy and Law, 46(1), 50-55. https://doi.org/10.3233/EPL-46103. However, as the international community predictably fails to reduce GHG emissions, development and application of GE remain on the table and even continues to grow, despite concerns with feasibility and safety of various GE techniques.(4) Njagi, D. (2024, March 1). Solar geoengineering rejected at 6th UN Environment Assembly. Devex. https://www.devex.com/news/solar-geoengineering-rejected-at-6th-un-environment-assembly-107157. Experimental and small-scale GE projects have already been conducted, even in the absence of a universally recognized international law and governance framework.(5) Lee, J. (2011, February 23). Eastern Pacific Emitted Aerosol Cloud Experiment (E-Peace). ClimateViewerNews. https://climateviewer.com/eastern-pacific-emitted-aerosol-cloud-experiment-e-peace/; UARCTIC. (2024, May 2). Seabed Curtain Project. Retrieved May 2, 2024, from https://www.uarctic.org/activities/thematic-networks/frozen-arctic-conservation/seabed-curtain-project/. Thus, a practically important question is not whether GE is prohibited or precluded by international law. In future, we should be prepared to answer whether the application of GE techniques – and what kind of techniques - is required by international law as a measure of last resort.(6) Corbett, C.R. (2022). The Climate Emergency and Solar Geoengineering. Harvard Environmental Law Review, 46(1), 197-260.
The IPCC defines geoengineering as a ‘broad set of methods and technologies that aim to deliberately alter the climate system in order to alleviate the impacts of climate change’.(7) IPCC. (2011). IPCC Expert Meeting on Geoengineering, p. 11 https://archive.ipcc.ch/pdf/supporting-material/EM_GeoE_Meeting_Report_final.pdf A central point of agreement across scientific communities is that effects of GE techniques are scientifically and ecologically uncertain, and require an approach based on precaution.(8) Gupta (n 9). The two major doubts lie, firstly, in our ability to correctly assess adverse impacts of GE and, secondly, in GE’s potential for the exacerbation of related environmental issues.(9) Royal Society (n 6) p. 18.
The two important examples of sectoral instruments are provided by the decisions of the Conference of the Parties (COP) to CBD(10) Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, 1760 UNTS 69 COP Decision X/33 https://www.cbd.int/decision/cop/?id=12299. and by member States of the IMO. Despite their different mandates and competences, both bodies have expressed largely similar concerns with GE and acknowledged each other’s work.(11) Gupta (n 9). Notably, both CBD and IMO instruments call for a precautionary approach to GE.
CBD’s preamble requires that ‘lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize’ ‘a threat of significant reduction or loss of biological diversity’. This Convention also sets out provisions on the environmental impact assessment and minimizing adverse impacts of proposed projects that are likely to have significant adverse effects on biological diversity (Article 14).
The 2008-moratorium on ocean fertilization adopted by the COP to CBD reiterates the relevance of the precautionary approach and calls for States to refrain from ocean fertilization ‘until there is an adequate scientific basis on which to justify such activities’.(12) CBD COP 9 Decision IX/16. (2008). Biodiversity and Climate Change. https://www.cbd.int/doc/decisions/cop-09/cop-09-dec-16-en.pdf. The moratorium was expanded in 2010 to include climate change-related large scale geoengineering activities that may affect biodiversity and adds the need for ‘appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts’.(13) COP 10 Decision X/33. (2010). Biodiversity and Climate Change. https://www.cbd.int/decision/cop/?id=12299 Albeit voluntary, non-binding international commitments, the 2008- and 2010-decisions are still important as expressions of the common will of CBD States Parties. The moratorium may be implemented in a binding form by national measures.(14) Morgera, E. (2011). ‘Far away, So close: A Legal Analysis of the Increasing Interactions between the Convention on Biological Diversity and Climate Change Law’, 2 Climate L., 2(1), 85-115, 98 https://doi.org/10.1163/CL-2011-027.
The IMO has addressed GE in the context of marine dumping and disposal of wastes at sea regulated in the London Convention on Dumping (the London Convention, or LC)(15) Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Washington/Moscow/London/Mexico City, adopted 29 December 1972, in force 30 August 1975, 1046 UNTS 120. and the 1996 Protocol (LP).(16) 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (amended in 2006). Unlike CBD, which prescribes for States Parties to take measures to protect biodiversity (of which a GE-moratorium is but one example), the LC/LP and their related instruments lay down an outright prohibition of marine dumping. An exception is allowed for dumping of specifically enlisted wastes, but it may only be conducted subject to permits issued by the relevant national authorities.(17) Annex I to LC (n 8). The LC/LP expressly envisages a precautionary approach to all marine dumping activities included in their scope.
The LC/LP does not expressly refer to GE, but recognizes that some of GE techniques share common features with the expressly included dumping activities. It is pointed out in literature that LC has from the outset had a broad scope, enabling it to encompass more than dumping at sea.(18) Scott, K.N. (2023). From ocean dumping to marine geoengineering: The evolution of the London Regime. In R. Rayfuse, A.J aeckel & N. Klein (Eds.), Research Handbook on International Environmental Law (pp. 240-263). Edward Elgar Publishing. https://www.elgaronline.com/edcollchap/book/9781789909081/book-part-9781789909081-19.xml. As the account below shows, the London dumping framework has continuously evolved to address novel activities (albeit not necessarily in a binding form), proving that a treaty regime is capable of being forward-looking and dynamic.
In 2006, LC/LP (Annex I) was amended to regulate offshore CO2 sequestration as a climate change mitigation measure.(19) Scott, ibid, p. 241. In 2008, the LC/LP framework was supplemented by a resolution which includes ocean fertilization activities into the LC/LP framework.(20) Resolution LC-LP.1. (2008). On the Regulation of Ocean Fertilization. https://wwwcdn.imo.org/localresources/en/KnowledgeCentre/IndexofIMOResolutions/LCLPDocuments/LC-LP.1%20(2008).pdf. Annex 4 added to LP by the Resolution LP.4(8), ibid. Rather than by highlighting large-scale activities as a matter of concern, the 2008 LC/LP -resolution differentiates between commercial ocean fertilization activities and scientific research involving ocean fertilization. It is pointed out that current knowledge on the effectiveness and potential environmental impacts of ocean fertilization is insufficient to justify activities other than legitimate scientific research on ocean fertilization. In 2010, IMO member States adopted an Assessment Framework for Scientific Research Involving Ocean Fertilization to determine, ‘with utmost caution’, whether a proposed ocean fertilization activity constitutes legitimate scientific research that is not contrary to the aims of the LC/LP.(21) Resolution LC-LP.2. (2010). On the Assessment Framework for Scientific Research Involving Ocean Fertilization. https://wwwcdn.imo.org/localresources/en/KnowledgeCentre/IndexofIMOResolutions/LCLPDocuments/LC-LP.2(2010).pdf
In 2013, the LP was amended to include marine geoengineering.(22) Resolution LP.4(8). (2013). On the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and Other Marine Geoengineering Activities, Article 6bis. Not in force. https://wwwcdn.imo.org/localresources/en/KnowledgeCentre/IndexofIMOResolutions/LCLPDocuments/LP.4(8).pdf. See also Bohman, B. & Ringbom, H. (2023). Marine Geoengineering to Abate Eutrophication in the Baltic Sea: How to Address Regulatory Voids and Uncertainty. In F.M. Platjouw & A. Pozdnakova (Eds.), Environmental Rule of Law for Oceans: Designing Legal Solutions (pp.108-122). CUP. https://doi.org/10.1017/9781009253741.013; Scott (n 24). The LP defines ‘marine geoengineering’ as a ‘deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/or its impacts, and that has the potential to result in deleterious effects, especially [but not exclusively – A.P.] where those effects may be widespread, long-lasting or severe’ (author’s italics).(23) Article 1 paragraph 5bis of LP, added by Resolution LP.4(8) (ibid). (2013). On the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and Other Marine Geoengineering Activities. The 2013-amendment to LP stands out among all other international instruments on GE: once in force, it will become ‘the first (and potentially only) global legally binding regime to explicitly regulate marine geoengineering for climate purposes’.(24) Scott (n 24).
In 2022, a Statement on Marine Geoengineering was adopted by States parties to LC/LP to encompass SRM techniques: marine cloud brightening and microbubbles/reflective particles/material.(25) IMO. (2022). Marine geoengineering techniques - potential impacts. https://www.imo.org/en/MediaCentre/PressBriefings/pages/Marine-geoengineering.aspx Regulation of these techniques is currently not included in the LC/LP, but IMO is conducting a legal and technical analysis to evaluate options for future action.
The relevance of the precautionary approach is also discernible in the international instruments on the protection of the atmosphere, e.g,. the Montreal Protocol(26) Montreal, 16 September 1987, 1522 UNTS 3, in force 1 January 1989. to the Vienna Convention on the Protection of the Ozone Layer.(27) Vienna, 22 March 1985, 1513 UNTS 293, in force 22 September 1988. With regard to intentional large-scale modification of the atmosphere, the International Law Commission (ILC) Draft Guidelines on Protection of the Atmosphere provide that such activities ‘should only be conducted with prudence and caution, and subject to any applicable rules of international law, including those relating to environmental impact assessment.’(28) International Law Commission. (2021.) Draft Guidelines on the protection of the atmosphere. Yearbook, II(2), Guideline 7. The ILC Draft Guidelines state that they do not deal with and are without prejudice to the polluter-pays principle, the precautionary principle and the common but differentiated responsibilities principle.(29) Guideline 2(2) (ibid). Albeit indirectly, the ILC acknowledges applicability of environmental principles to SRM projects. Regrettably, the resistance to fully recognize and substantiate these principles for the protection of the atmosphere illustrates that the international legal framework governing GE is debatable and far from being fully agreed to by States.
At the regional level, EU Directorate-General for Research and Innovation has called for a precautionary approach to GE (specifically, SRM) and encouraged, among other, to Announce a Europe-wide moratorium on using solar radiation modification technologies.(30) European Commission, 9 December 2024, Solar radiation modification technologies cannot fully address climate change, and responsible research on impacts is needed - advisors tell the European Commission https://research-and-innovation.ec.europa.eu/news/all-research-and-innovation-news/solar-radiation-modification-technologies-cannot-fully-address-climate-change-and-responsible-2024-12-09_en.