CE-Regulation under International Agreements
When asked about the legal limits of deploying CE, legal experts primarily consult three international conventions, each of which covers partial aspects:
→ The London Convention (Convention for the Prevention of Marine Pollution by Dumping of Wastes and Substances) and its successor, the London Protocol – relevant to marine CDR methods.,
→ The Convention on Biological Diversity (CBD), potentially relevant to both CDR and RM methods,
→ The Vienna Convention for the Protection of the Ozone Layer (RM methods only), including the associated Montreal Protocol on Substances that Deplete the Ozone Layer.
The London Protocol as paradigm
The London Convention of 1972 was one of the first international treaties to make marine protection an international responsibility. It was amended in 1996 by the London Protocol for those states or Parties that signed the new protocol. Both instruments were developed primarily with the intention of regulating the discharge of hazardous waste and other substances into the oceans. Because CDR methods, such as iron fertilisation, also introduce substances into marine waters, the Convention can apply where such cases are concerned. Criticism is levelled at the fact that not quite 90 states have acceded to the Convention, while the London Protocol has only attracted 40 Parties, meaning that neither has universal validity. The Convention is, nonetheless, regarded as one that sets globally binding standards for marine protection. This is partly because the London Convention is flanked by the UN Convention on the Law of the Sea, the maritime law regime recognised by almost every country in the world. For example, the UN Convention on the Law of the Sea indirectly declares the standards contained in the London Convention and potentially also those set out in the London Protocol as applicable to all states, even those that have not signed them so far.
International conventions are designed to enable additions and allow specific rights and obligations of the signatory states to be extended and supplemented at a later date. This makes it possible to apply conventions to new phenomena unknown at the time of negotiation. It is also a great advantage when it comes to marine CDR methods, and has made it possible in recent years for the London Protocol to be gradually extended to include CDR. Although the amendments have not yet entered into force because they have to be ratified by the Parties to the London Protocol, the first step has been taken. For example, the scope of application has been made broader so that in future, marine geoengineering (marine CDR) can be regulated under the Protocol. Although only iron fertilisation has been included in the list of CDR measures so far, the Parties have agreed that the scope of the Protocol can be widened to cover other substances released into marine waters, such as those used in enhanced weathering. The Protocol has thus been made future-ready. Legal experts are confident that the London Protocol can serve as a paradigm for how international treaties can be adapted to regulate international use of CDR. Discussions are still underway, however, as to when the introduction of substances via CDR measures would be contrary to marine conservation in a given instance. The extent to which introducing substances influences or alters marine habitats plays a role, and this is an aspect that needs to be examined using an assessment framework before an experiment is carried out. Hence the admissibility of a CDR measure under the provisions of the London Protocol always depends on the specific case.
Biodiversity conservation so far the priority
By its very nature, the London Protocol relates only to substances discharged into the sea and thus only to some of the measures in the global CE portfolio. Additional regulatory frameworks are consequently needed. One example of such an international framework is the Convention on Biological Diversity (CBD). The CBD was negotiated with the aim of conserving biodiversity and entered into force in 1993. Under the CBD, every state has the obligation to use its natural resources sustainably and to prevent transboundary harm. With 196 Parties in total, the CBD applies almost universally. The US has not ratified the CBD, however, and is not bound by its provisions.
At the CBD Conferences of the Parties in both 2010 and 2012, unanimous decisions were adopted according to which the CBD should also be observed in matters of climate engineering. This means, among other things, that “in the absence of science based, global, transparent and effective control and regulation, mechanisms for geo-engineering and in line with the precautionary approach [...] no climate-related geo-engineering activities are carried out that may have impacts on biodiversity until an adequate scientific basis for the justification of such activities exists.” However, prevailing opinion is that these stipulations are not binding.
Unlike the London Protocol, the CBD is not designed to regulate specific activities. Instead, its potential role in regulating climate engineering is to identify categories and procedures for monitoring and assessing climate engineering’s potential impact on biodiversity. The problem is that the obligations contained in the CBD are formulated in relatively weak terms. In this respect, it remains to be seen how and to what extent they can be applied in cases of climate engineering. But given the large number of Parties, they could well have a great knock-on effect in policymaking terms.
The challenge of proving harm
A current debate is underway as to when and under what conditions specific international frameworks actually apply. This is seen in the example of the Vienna Convention for the Protection of the Ozone Layer. Parties to the Vienna Convention are obliged to prevent the environmental release of substances that can destroy the ozone layer. They are only obliged to intervene, however, when it is clearly evident that a certain class of substances or a certain process is harmful. Causal proof is required in each case. The Vienna Convention could in principle apply where salt water droplets are released to induce cloud formation or when particles are introduced into the stratosphere, because both of these RM methods could contribute to ozone layer depletion. The problem, however, is that such proof can only be provided if RM experiments are carried out on a grand scale.
The examples outlined above show that there are already several frameworks that can be used to govern and manage CDR and RM activities between their parties. Ultimately, however, these conventions and agreements are only effective if the signatory states not only enshrine corresponding rights and obligations in their national legislation, but also enforce them. Without this kind of arrangement, effective regulation of the methods involved would be impossible to achieve.
It is also essential that states coordinate their CE measures and report their activities so they can act as one worldwide. If CE measures are actually implemented in the future, then a global accounting system will be needed to keep records of the individual activities in the various countries and their contribution to both the carbon dioxide and the radiation balance – not least to determine whether the global goal of reducing carbon emissions will actually be achieved.
An example from a different policy arena shows that it is possible to coordinate activities on an international scale: The International Atomic Energy Agency in Vienna is a scientific and technical organisation to which member states report their activities worldwide, and is also responsible for the monitoring and further development of related safety standards. It remains to be seen, however, whether a general accounting and monitoring system for climate engineering could be established along similar lines. ◆