5. Exploring future research agenda on GE in international law
The fundamental question for future legal research - recognizable from endeavors to internationally govern other transboundary and novel human activities- is how to regulate and govern GE effectively. GE encompasses novel, contentious and technology-intensive activities, and our insufficient understanding of the goals we seek to achieve hinders the development and adoption of effective regulatory solutions.
One of the persistent and contested issues pertains to determining legally (un)acceptable levels of environmental harm (ie, legally significant thresholds of ‘substantial’ or ‘significant’ harm) and identifying cumulative impacts(1) Article 1(6) of BBNJ (n 24) defines “cumulative impacts” as ‘the combined and incremental impacts resulting from different activities, including known past and present and reasonably foreseeable activities, or from the repetition of similar activities over time, and the consequences of climate change, ocean acidification and related impacts’. on the environment. This is also the case for GE activities, as it will be challenging to assess ecological impact of particular GE projects in light of other activities, including climate mitigation and adaptation measures. This means that we need to better understand how legal norms and instruments may enable legal communities (international and national alike) to incorporate knowledge acquired from scientific research and to regulate GE on the basis of the best available science and scientific information.
Further, a central task for legal scholars, in this author’s view, is to explore what international legal approach (or approaches) may be suitable to achieve the desired goals within GE. The suitability of a measure can be determined by its capacity to adequately stimulate sustainable behaviour by the actors involved in GE projects. This raises questions about the contents, shape and normative effects of future legal instruments, eg, full or partial prohibition, criteria and standards, ‘hard’ or ‘soft’ law measures or a combination of both. Considering that GE techniques will be designed and performed not only by scientists but, quite likely, by commercial actors, it will be necessary to develop rules which stimulate innovative solutions without compromising the relevant international law principles, including the precautionary principle.
The following criteria for a future legal framework may generally be discerned from the work of international legal actors such as IMO, CBD and ILC: (1) legally binding (as proposed by IMO); (2) science-based, (3) global, (4) transparent, and (5) subject to effective regulatory control mechanisms. This inspires several fundamental questions: what kind of legal instrument on GE is realistic and desirable for the international community to work for? Should this be a new, sui generis and binding instrument on GE, what other options are available – and perhaps more feasible - for international law-makers to resort to?
Some scholars have proposed to adopt an international ‘no-use’ agreement (on SRM) that would combine prohibitions and restrictions of ‘specific harmful activities or technologies without placing undue restrictions on legitimate and desirable activities.’.(2) Gupta (n 9). They reasonably argue that, to develop such novel regime(s) for SRM, it may be necessary to apply legal techniques familiar from other multilateral regimes while also taking account of the unique characteristics of each GE approaches.
Law-making efforts in other areas of international law such as cyber security or outer space show that, in the absence of a competent sectoral organization or another robust institutional framework, it may be impossible to move beyond non-binding, ‘soft’ norms.(3) Kravik (n 43). However, the binding character of commitments is not a sufficient or appropriate criterion to assess the effectiveness of an instrument in question. For GE it could, for example, be more decisive to direct norm-creating efforts to the discussion and development of more specific due diligence standards and criteria.
Considering the complexity and fragmentation of international law on GE, presently governed by various sectoral instruments as well as by general provisions of international law, it is also crucial to find solutions which ensure coherence across the complex and fragmented regulatory landscape of sectoral and universal provisions on GE. As discussed earlier, BBNJ provides for a promising ‘bridge’ between various global and regional instruments and provisions, at least with regard to the protection of oceans against harmful impacts of GE. However, the fragmentation and coherence of international law in the context of GE is largely an unplowed field in legal research.
Last but not least, it remains open, by whom legal norms and standards for GE will (and should) be adopted. Judging by experience in other technology-intensive and dynamic sectors, it may be predicted that commercial and other non-State stakeholders will develop their own due diligence standards and best practices for GE to supplement or fill the gaps in the public regulation. Commercial actors may also use this opportunity to emancipate from slow, ineffective and perhaps burdensome public laws by developing self-regulation.(4) Freeland, S., Huthison, K. and Sim, V. (2018). How Technology Drives Space Law Down Under: The Australian and New Zealand Experience. Air and Space Law, 43(2), 129-147. https://doi.org/10.54648/aila2018010. While vast literature on legal pluralism already exists in other fields,(5) de Sousa Santos, B. (2020). Toward a new legal common sense: law, globalization, and emancipation. CUP. there is need for further research on how this will evolve in the field of GE, including transnational law perspectives and the issue of how such pluralistic approaches to GE could be adequately incorporated in the future GE governance.