4. An appraisal of the contribution of international law to the governance of GE
The CBD and IMO instruments provide an illustration of the international law’s contribution to the shaping of GE governance by binding and ‘soft’ multilateral obligations for States to take precautionary measures and to apply specific evaluation criteria when authorizing GE projects. Thus, the international legal order constitutes an important component in the effective governance of GE because it shapes and develops legal norms for States (and, through national implementation, non-State actors). However, as argued in this section, international law has a much broader arsenal of solutions and tools to address GE, which has so far remained largely unused.
Generally, international law is slow to respond to technology-driven and rapidly evolving new sectors, GE not being an exception. It has been early recognized that a multilateral, cooperation-based approach is indispensable to regulate GE, an activity whose environmental impact is uncertain and which may potentially be used in a hostile manner.(1) Mayer, B. (2018). The international law on climate change. CUP, pp. 147-148. A universal, science-based approach to studies of large-scale weather modification was proposed by UNGA already in 1961,(2) UNGA Resolution 1721. (XVI)(1961). International cooperation on peaceful uses of outer space, C 1(a). followed by the statement by UNEP on the duty to cooperate in a spirit of good neighborliness with regard to weather modification projects.(3) Mayer (n 36), p.148. However, the international community has not yet reached a universal consensus on what an international governance framework for GE should be like.
The early initiatives of 1960s-early 1980s have not been consistently followed up in the UN-fora, including the UN Framework Convention on Climate Change (UNFCC), due to significant doubts dominating the discourse on the feasibility of GE-techniques.(4) Mayer (n 36), p.157. The UN Committee on Peaceful Uses of Outer Space (COPUOS) has also largely focused on the application of space technologies and applications for emission monitoring and control, rather than on legal solutions for SRM.(5) COPUOS. (2024). Space for sustainable development: technology and its applications, including the United Nations Programme on Space Applications. https://www.unoosa.org/res/oosadoc/data/documents/2024/aac_105c_1l/aac_105c_1l_411add_7_0_html/AC105_C1_L411Add07E.pdf; Some SRM techniques may fall within the scope of ‘space activities’ governed by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other celestial bodies (the Outer Space Treaty) London/Moscow/Washington, 19 December 1966, in force 10 October 1967, 610 UNTS 205. Despite the current realities of GE, many States resist even a proposal to initiate a multilateral work on GE. For example, at the UN Environmental Assembly (UNEA) in 2019, and repeatedly in 2024, Switzerland presented a proposal for a UNEA- resolution on SRM, justifying it by concerns with the lack of multilateral control and oversight over SRM.(6) Watts, J.(2024, February 22). Switzerland calls on UN to explore possibility of solar geoengineering. The Guardian. https://www.theguardian.com/environment/2024/feb/22/switzerland-calls-on-un-to-explore-possibility-of-solar-geoengineering. The resolution has been rejected both times by participating States.(7) Njagi (n 10).
Thus, the main progress towards multilateral GE-governance have so far been accomplished by the sectoral measures of CBD and the IMO described earlier in section 2. These examples serve to illustrate that GE governance evolves with the growing awareness about the potential risks and uncertainties of particular GE projects. An important lesson is also that the promotion of new legal instruments and provisions is facilitated by the existence of institutional frameworks which enable cooperation and dialogue among participating States.(8) Kravik, A. M. (2021). An analysis of stagnation of multilateral law-making – and why the law of the sea has transcended the stagnation trend. Leiden Journal of International Law, 34(4), 935-956. https://doi.org/10.1017/S092215652100039X. It is remarkable that, within the respective scopes of the underlying conventions, States Parties to CBD and the IMO have managed to adopt a prohibition or ‘moratorium’ on GE, subject to certain criteria and conditions. Their central contribution is, in this author’s view, the confirmation that the precautionary principle (and approach) is central for the regulation of GE. Notably, the 2013-amendment to LC/LP on marine GE also details the criteria for the application of the precautionary approach as it introduces provisions on the assessment of potential effects, risk management, monitoring and permit conditions.
However, despite their remarkable achievements on GE, sectoral organizations – even global ones – may not on their own meaningfully engage with the GE governance. GE, inherently liable to create lasting effects for both the atmosphere, biodiversity, oceans, and climate, should be governed by an international legal regime that is capable of tackling the interactions and interdependencies of these spaces.(9) Brunnée, J. (2019). The Rule of International (Environmental) Law and Complex Problems. In H. Krieger, G. Nolte & A. Zimmermann (Eds), The International Rule of Law: Rise or Decline? (pp. 211–C14.N136). OUP. https://doi.org/10.1093/oso/9780198843603.003.0014. This calls for an UN-level, universal development of principles and rules governing GE.
Furthermore, while law and legal instruments and norms are essential for an effective GE governance, their contribution may only be realized if backed-up by the interdisciplinary insights, approaches, stakeholders and institutions. It is crucial to develop and apply legal norms for environmental protection on the basis of scientific knowledge.(10) As Gupta (n 9) points out, the scientific community is not united in its views on GE; to the contrary, significant disagreement exists between scientists. A critical and persistent issue in the international law is how to create and operationalize such a co-opted regime which is capable of effectively incorporating these complex dimensions.(11)Low, S., Moore, N., Chen, Z., McManamen, K. & Blackstock J.J. (2013). Geoengineering Policy and Governance Issues. In T. Lenton & N. Vaughan (Eds.), Geoengineering Responses to Climate Change: Selected Entries from the Encyclopedia of Sustainability Science and Technology (pp. 169-191), p 188. Springer. https://doi.org/10.1007/978-1-4614-5770-1
The UN Agreement under the UN Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of the areas beyond national jurisdiction (BBNJ) is a fresh example of an international, binding framework agreement which attempts to cut across the established sectoral and regional divisions and to transcend the traditional boundaries of statehoods by including a broader range of stakeholders (including the indigenous communities).(12) New York, 19 June 2023, not in force. The text of the Agreement is available at https://www.un.org/bbnj/. The substantive reach of the BBNJ is broad and applies to all activities with regard to the areas beyond national jurisdiction (ABNJ). The precise geographic scope of the BBNJ is determined in accordance to UNCLOS provisions which contain ‘negative’ definitions of the high seas (Article 87) and the Area (Article 1(1)). Arguably, activities conducted in the atmosphere are also covered by the BBNJ to the extent it is necessary for protection of marine biodiversity in ABNJ. The Agreement recognizes the ocean-climate nexus.(13) Voigt, C. (2023). Oceans and Climate Change: Implications for UNCLOS and the UN Climate Regime. In Platjouw&Pozdnakova (n 28).
In this author’s view, the BBNJ is a crucial multilateral legal instrument in the emerging GE governance. The BBNJ re-affirms the relevance of environmental law principles such as precautionary principle (or approach), ecosystem approach and the use of the best available science and scientific information (Article 7). Importantly, it seeks to build bridges between existing environmental regimes and norms, by creating an institutional framework for cooperation and coordination by global and regional organizations. BBNJ also envisages creation of new, self-standing, institutions to be established under this Agreement, including Scientific and Technical Body (Article 49) whose task will, among other, be to issue recommendations for States Parties planning activities in ABNJ.
In the international legal order, including the above-mentioned instruments, States are generally responsible both for the adoption of legal standards for GE and for ensuring that natural and juridical persons under their jurisdiction comply with the required standards and norms when performing GE experiments and projects. Recently, the international legal order has opened up for attempts to transcend State sovereignty in order to protect the international community at large: eg, collective rights and interests of non-State stakeholders, including indigenous and local communities and future generations. This is demonstrated by advisory proceedings in climate cases before ICJ and ITLOS.(14) ITLOS. (2024, Advisory Opinion of 21 May 2024, Case No. 31). Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law; UNGA Resolution 77/726 of 29 March 2023 Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change (proceedings at the ICJ are on-going at the time of writing). The Inter-American Court of Human Rights (IACHR) and European Court of Human Rights (ECtHR) have also dealt with cases addressing legal obligations of States (and public authorities) with regard to climate change.(15) IACHR (November 15, 2017). Case OC-23/17 Advisory Opinion. The Environment and Human Rights. https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2017/20171115_OC-2317_opinion-4.pdf (English translation); ECtHR (2024). Case of Verein Klimaseniorinnen Schweiz and Othres v. Switzerland (Judgment, Application no. 53600/20).
The human-rights based approach is also advocated for by the UN Human Rights Council (UNHRC) as new climate protection technologies may interfere with the enjoyment of human rights, including the right to life, the right to a good environment and to access to justice and effective remedies.(16) UNHRC (2023). Impact of new technologies intended for climate protection on the enjoyment of human rights. A/HRC/54/47. https://www.ohchr.org/en/hr-bodies/hrc/advisory-committee/impact-of-new-technologies. Among other aspects, public awareness and participation is key to protect human rights against harmful impact of technologies, and transparency of GE-related decisions should be one of the central criteria for the future GE assessment framework.(17) See also IMO (2022) Background information on LP/LC ocean fertilization resolutions and the 2013 LP amendment. https://www.imo.org/en/MediaCentre/PressBriefings/pages/Marine-geoengineering.aspx These considerations are especially important with regard to the special needs of developing countries that are particularly vulnerable to climate change. Indeed, while GE projects are largely conceptualised in western countries, experiments are reportedly conducted in the southern hemisphere.(18) Chalmin (n 4).
By elucidating international responsibilities of States to protect affected and vulnerable States, communities and individuals from the harmful impact of climate change, rulings of international courts will have important legal implications for the regulation and governance of GE.(19) UNGA Resolution 77/726 of 29 March 2023 Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change. UNGA also highlights the special needs of developing countries that are ‘particularly vulnerable’ to these effects. ITLOS noted that marine geoengineering may be contrary to obligations envisaged in Article 195 UNCLOS if these activities result in transforming one type of pollution into another. Furthermore, States are under obligation to take all necessary measures to prevent, reduce and control pollution resulting from the use of technologies under their jurisdiction and control.(20) ITLOS (n 49) para 231.
Strengthening non-State-centric influence in the international law-making for GE is, in this author’s view, generally positive. At the same time, it is doubtful that international judiciary and non-State stakeholders are well-suited to deal with such emergency measures as GE. GE projects which ignore the existence of a treaty framework such as the Antarctic Treaty may result in an ‘international discord’.(21) Flamm, P., Shibata, A. (2024). ‘Ice sheet conservation’ and international discord: governing (potential) glacial geoengineering in Antarctica, International Affairs, iiae281. https://doi.org/10.1093/ia/iiae281. If States and international organizations continue to be passive spectators, rather than pro-active international law makers for GE, the international law on this unique and critical issue will still evolve, but in a less predictable way.