Current international environmental law

2.1 Applicable law

At the international level, legally binding measures have not to date been adopted for the direct regulation of geoengineering. However, there are a number of interna-tional conventions and rules of customary law that could apply to geoengineering techniques.

Regarding ocean-based geoengineering, several treaty provisions are applicable. First of all, the 1982 United Nations Convention on the Law of the Sea (UNCLOS)¹² sets out a comprehensive legal framework¹³ for the activities conducted in ocean space.

For example, UNCLOS contains specific provisions on the rights and obligations in different maritime zones, protection and preservation of the marine environment, navigation and marine scientific research.¹⁴

Second, there are many global and regional marine conventions which have been concluded in addition to, or on the basis of, UNCLOS.¹⁵ For example, there are a number of regional marine conventions¹⁶ as well as conventions dealing with spe-cific sources of marine pollution, such as marine pollution incidents,¹⁷ pollution by

12 United Nations Convention on the Law of the Sea (UNCLOS), Montego Bay, 10 December 1982, in force 16 November 1994, 21 International Legal Materials (1982) 1261. So far, the Convention has been complemented by two implementing agreements: the 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, New York, 28 July 1994, in force 28 July 1996, 33 International Legal Materials (1994) 1309; and the Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995, in force 11 December 2001, 34 International Legal Materials (1995) 1542, <http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agreement/

CONF164_37.htm> (visited 20 July 2013).

13 To underline the importance of the UNCLOS, Koh, the President of the Third United Nations Confer-ence on the Law of the Sea, has described the Convention as ‘a constitution for the oceans which will stand the test of time’. See Remarks by T. B. Koh, reproduced in UN, The Law of the Sea: Official Text of the UNCLOS with Annexes and Index (United Nations, 1983) xxxiii.

14 See, for instance, part II (territorial sea and contiguous zone); part V (exclusive economic zone); part VII (high seas); part XII (protection and preservation of the marine environment); part XIII (marine scien-tific research).

15 Part XII of UNCLOS (Art’s 192–237), dealing with the protection and preservation of the marine envi-ronment, requires parties to establish further rules, regulations and procedures on the protection of the marine environment. A large number of complementary agreements include more specific substantive provisions on marine issues than UNCLOS itself. See UN Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Obligations of States Parties under the United Nations Convention on the Law of the Sea and Complementary Instruments (United Nations, 2004), available at <http://www.un.org/depts/

los/doalos_publications/publicationstexts/E.04.V.5.pdf> (visited 7 July 2013).

16 See, for instance, UNEP Regional Seas Programme, <http://www.unep.org/regionalseas> (visited 7 July 2013).

17 See International Convention on Oil Pollution Preparedness, Response and Co-operation, London, 30 November 1990, in force 13 May 1995, <http//www.imo.org>; and the Protocol on Preparedness, Re-sponse and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, London, 15 March 2000, in force 14 June 2007, <http//www.imo.org>.

dumping and vessel-based pollution. All of these agreements may also be relevant in relation to specific geoengineering techniques. Moreover, there are many other environmental agreements (for example, those relating to air protection,²⁰ biodiver-sity²¹ and space issues²²) which could also be relevant.

In addition to treaty law, general principles of law and rules of customary interna-tional law would be applicable. For example, states have a duty to prevent trans-boundary pollution²³ and to carry out an environmental impact assessment for all large-scale projects that may have significant adverse impacts in a transboundary context.²⁴ In case of violation of a legally binding obligation, the state responsibility doctrine²⁵ would be applicable. Furthermore, states could have recourse to dispute settlement procedures.

2.2 Steps taken so far

So far, only two international regimes have taken steps to regulate geoengineering techniques specifically. Namely, these steps have been taken by the parties to the London Dumping Convention and to the 1996 Protocol thereto (LC/LP);²⁶ and the parties to the Convention on Biological Diversity (CBD).²⁷

18 See Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Lon-don, 13 November 1972, in force 30 August 1975, 11 International Legal Materials (1972) 1294; 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, in force 24 March 2006, <http://www.imo.org>.

19 See International Convention for the Prevention of Pollution from Ships, 1973, first signed 2 November 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), adopted 17 February 1978.

The combined instrument entered into force on 2 October 1983, 12 International Legal Materials (1973) 1319, <http://www.imo.org> (visited 7 July 2013).

20 See Convention on Long-Range Transboundary Air Pollution, Geneva, November 13 1979, in force 16 March 1983, 18 International Legal Materials (1979) 1442, <http://www.unece.org/env/lrtap/>; and Protocols relating thereto.

21 See Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 International Legal Materials (1992) 822, <http://www.biodiv.org>.

22 See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and other Celestial Bodies, London, Moscow, Washington, 27 January 1967, 610 United Nations Treaty Series 205.

23 According to customary international law, states have an obligation to ensure that activities within their jurisdiction or control do not cause damage to the environment or areas beyond national jurisdiction.

This principle dates back to the Roman law principle sic utere tuo ut alienum. The principle has been re-ferred to in several decisions by the International Court of Justice as well as in several conventions and declarations.

24 See Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), I.J.J. Reports (2010), para’s 204–206.

25 See, for example, James Crawford, International Law Commission’s Articles on State Responsibility: Introduc-tion, text and commentaries (Cambridge University Press, 2003).

26 See supra note 17. For the time being, the LC and LP are applied in parallel. Eventually, the LP will replace the LC. See UN Doc. UNEP/CBD/SBSTTA/16/INF.29 (2012), supra note 8, at 30.

27 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 Inter-national Legal Materials (1992) 822, <http://www.cbd.int> (visited 7 July 2013).

The LC/LP is in a process of elaborating ‘a global, transparent and effective control and regulatory mechanism for ocean fertilization activities and other activities that fall within the scope of the LC and LP and have the potential to cause harm to the marine environment’.²⁸ In 2008, parties to the LC/LP adopted a resolution in which they agreed ‘that, given the present state of knowledge, ocean fertilization activities other than legitimate scientific research should not be allowed’.²⁹ Two years later, the parties adopted an assessment framework to make decisions on which activities qual-ify as ‘legitimate scientific research’.³⁰ In 2013, Australia, Nigeria, and South Korea jointly proposed amendments to the Protocol (LP) which would formally extend the Protocol’s remit beyond ocean fertilization to include other possible forms of marine geoengineering.³¹

In 2010, parties to the CBD adopted a decision which affirms the approach taken by the LC/LP on ocean fertilization. The decision includes a definition of ‘geoengi-neering’³² and addresses geoengineering in general, stating that no climate-related geoengineering, with the exception of small scale research, should take place until certain conditions are met.³³ In 2012, the parties to the CBD adopted a new decision on geoengineering, which mainly confirms the 2010 decision.³⁴

28 See IMO, ‘Climate Change and the London Convention and Protocol’, available at <http://www.imo.

org/blast/blastDataHelper.asp?data_id=31012&filename=21643LondonConventionclimatechangeTED webversion.pdf> (visited 4 July 2013).

29 Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, para. 8.

30 Resolution LC-LP.2 (2010) on the Assessment Framework for Scientific Research Involving Ocean Fer-tilization.

31 See Australian Government, ‘Australia working to protect the international marine environment’, press release, 16 May 2013, available at <http://www.environment.gov.au/minister/archive/burke/2013/

mr20130516.html> (visited 4 July 2013).

32 See CBD decision X/33 (2010):

[w]ithout prejudice to the future deliberations of the definition of geoengineering activities, understand-ing that any technologies that deliberately reduce solar insolation or increase carbon sequestration from the atmosphere on a larger scale that may affect biodiversity (excluding carbon capture and storage from fossil fuels when it capturers carbon dioxide before it is released into the atmosphere) should be consid-ered as forms of geoengineering which are relevant to the Convention on Biological Diversity until a more precise definition can be developed. It is noted that solar insolation is defined as a measure of solar radiation energy received on a given surface area in a given hour and that carbon sequestration is defined as the process of increasing the carbon content of a reservoir/poll other than the atmosphere.

33 ‘Biodiversity and climate change’, CBD decision X/33 (2010).

34 ‘Climate-related geoengineering’, CBD decision XI/20 (2012).

3 Regulatory and management aspects relating to