Tuomas Kuokkanen 1
3 Regulatory and management aspects relating to geoengineering techniques
3.3 Geoengineering as a governance issue
Several environmental agreements were concluded and a number of environmental institutions were established as a response to the first generation problems. Such agreements dealt with the protection of the marine environment from various sourc-es, such as the dumping of waste and other matter at sea.
Subsequently, environmental regimes emerged as a tool through which to exercise environmental management. For example, several framework agreements, such as the UN Framework Convention on Climate Change and the Convention on Bio-logical Diversity, were concluded. Gradually, the proliferation of environmental agreements and increased specialization has led to fragmentation, which in certain instances may have led to inefficient or even conflicting results.49 In order to enhance
full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible costs…
46 For example, Helga Nowotny pointed out that environmental threats could not be solved ‘in the accus-tomed way – if ever at all’, and that it was necessary to switch the rhetoric, as she put it, ‘from solving problems to managing them’. See Helga Nowotny, ‘A New Branch of Science, Inc’, in Harvey Brooks and Cherster L. Cooper (eds), Science for Public Policy (Pergamon Press, 1987) 61–76, at 71.
47 World Commission on Environment and Development, Our Common Future (1987) 1.
48 See Bodle, ‘Climate Law and Geoengineering’, supra note 3 at 460 (‘The precautionary principle embod-ies the core arguments both for and against geoengineering’).
49 See Tuomas Kuokkanen, ‘Relationships between Multilateral Environmental Agreements and Other Agreements’, in Tuula Honkonen and Ed Couzens (eds), International Environmental Law-making and Diplomacy Review 2011, University of Eastern Finland – UNEP Course Series 11 (University of Eastern Finland, 2013) 19–32. See also Louis J. Koze, ‘Fragmentation of International Environmental Law: An Ocean Governance Case Study’ in Ed Couzens and Tuula Honkonen (eds), International Environmental
cooperation and synergies, regime interaction has recently gained more and more support in both practice and theory.50 It is common, for example, for multilateral environmental regimes to cooperate with regimes that are operating in the same field.
For instance, the UNFCCC and the CBD both engage in a wide range of cooperative activities with other conventions and bodies.51
Turning to geoengineering, one can first ask whether a new treaty should be con-cluded to regulate geoengineering. On reflection, it appears that a new treaty would not be a viable option. First, the objective of the treaty would not be clear as geoengineering activities could either be promoted or limited. This controver-sial starting point would make it difficult to regulate and manage geoengineering.
Second, given the existing applicable treaty provisions and rules of customary international law, there is no urgent need to regulate geoengineering. If there is a need to regulate specific geoengineering techniques, such as ocean fertilization,52 this could be done through an existing regime, such as the LC/LP.
This said, there is a concern that, given the ambivalent and controversial nature of geoengineering, the currently applicable rules and possible future rules could lead to unclear or conflicting results. Such an outcome could be due to specialized regimes which each have their own scope of application. One could identify a number of potential conflicts. For example, attempts to cool the climate through geoengineering techniques might lead to a conflict with regimes protecting air quality, the ozone layer, biological diversity and the marine environment.
Law-making and Diplomacy Review 2008, University of Joensuu – UNEP Course Series 8 (University of Eastern Finland, 2009) 11–30.
50 For a comprehensive discussion, see Margaret A. Young (ed.), Regime Interaction in International Law.
Facing Fragmentation (Cambridge University Press, 2012).
51 For a comprehensive discussion on the CBD, see, for instance, ‘Cooperation with other conventions and international organizations and initiatives’, Note by the Executive Director, UN Doc. UNEP/CBD/
COP/10/17 (2010). With regard to environmental agreements, such activities include cooperation with the third Rio Convention, this being the United Nations Convention to Combat Desertification (UN Convention to Combat Desertification in Countries Experiencing Serious Drought and or Desertifica-tion, Particularly in Africa, Paris, 17 June 1994, in force 26 December 1996, 33 International Legal Materials (1994) 1309, <http://www.unccd.int>). In addition, the CBD cooperates with the five other biodiversity-related conventions through the Liaison Group of Biodiversity-related Conventions. The object of the Liaison Group is to explore options for enhancing synergies, avoid duplication of efforts and improve the coherent implementation of the biodiversity-related conventions. Moreover, the CBD has cooperation with other relevant conventions and agreements. Such cooperation includes, for example, cooperation with the UNEP Regional Seas Conventions in connection with the work on marine and coastal biodiversity.
For more information on the UNEP Regional Seas Programme, see <http://www.unep.org/regionalseas>
(visited 21 July 2012).
52 See Rio+20 Outcome Document ‘The Future We Want’ (2012), available at <http://www.uncsd2012.org/
content/documents/727The%20Future%20We%20Want%2019%20June%201230pm.pdf> (visited 30 March 2013), para. 167: ‘[w]e stress our concern about the potential environmental impacts of ocean fertilization. In this regard, we recall the decisions related to ocean fertilization adopted by the relevant intergovernmental bodies, and resolve to continue addressing with utmost caution ocean fertilization, consistent with the precautionary approach’. See also <http://www.un.org/en/sustainablefuture>.
For this reason, it would be important to seek to preserve the coherence of the legal system by avoiding ineffective fragmentation.54 This could be done by clus-tering multilateral environmental agreements (MEAs)55 and by enhancing syner-gies among them.56 One recent example to this effect is the synergies process among the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,57 Rotterdam Convention on Prior Informed Consent58 and the Stockholm Convention on Persistent Organic Pollutants.59 The process led first to the establishment of an ad hoc joint working group among the Basel, Rotterdam and the Stockholm Conventions60 and, subsequently, to extraor-dinary simultaneous meetings of the Conferences of the Parties (COPs) of the three Conventions.61 By way of analogy, it would be important that appropriate
53 See Nele Matz-Lück, ‘Norm Interpretation across International Regimes: Competences and Legitimacy’, in Young, Regime Interaction, supra note 50, 201–234, at 205–209. See also United Nations Secretary-General’s High-level Panel on Global Sustainability, Resilient People, Resilient Planet: A Future worth Choosing (United Nations, 2012), available at <http://www.un.org/gsp/report> (visited 11 March 2012), para 220: ‘Accountability and coherence at the international level are also indispensible for advancing sustainable development’. See also Rio+20 Outcome Document, supra note 52, at para. 76:
[t]he world leaders committed to resolve to strengthen the institutional framework for sustainable de-velopment, which will, inter alia: …(c) underscore the importance of interlinkages among key issues and challenges and the need for a systematic approach to them at all relevant levels; (d) enhance coher-ence, reduce fragmentation and overlap and increase effectiveness, efficiency and transparency, while reinforcing coordination and cooperation…’.
54 See, for example, Harro van Asselt, ‘Managing the Fragmentation of International Climate Law’, in Erkki J. Hollo et al, Climate Change and the Law, supra note 3, 329–357. See also ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, The Erik Castén Institute Report 21/2007.
55 For discussion, see, for instance, Kong Xiangwen, ‘Clustering of MEAs’, in Marko Berglund (ed.), Inter-national Environmental Law-making and Diplomacy Review 2004, University of Joensuu – UNEP Course Series 1 (University of Joensuu, 2005) 207–209; Kerstin Stendahl, ‘Clustering of MEAs – Lessons Learned, Rio+20 and Beyond, in Tuula Honkonen and Ed Couzens (eds), International Environmental Law-making and Diplomacy Review 2011, University of Joensuu – UNEP Course Series 11 (University of Joensuu, 2013) 59–70.
56 For discussion, see Cam Carruthers, ‘Does the World Need a Super-COP? Integrated Global Decision-Making for Sustainable Development’, in Marko Berglund (ed.), International Environmental Law-mak-ing and Diplomacy Review 2004, University of Joensuu – UNEP Course Series 1 (University of Joensuu, 2005) 211–223; Kerstin Stendahl, ‘Enhancing Cooperation and Coordination among the Basel, Rot-terdam and Stockholm Conventions’, in Tuula Kolari and Ed Couzens (eds), International Environmental Lawmaking and Diplomacy Review 2007, University of Joensuu – UNEP Course Series 7 (University of Joensuu, 2008) 127–141.
57 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 22 March 1989, in force 5 May 1992, 28 International Legal Materials (1989), <http://www.basel.int>.
58 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Rotterdam, 11 September 1998, in force 24 February 2004, <http://www.pic.int>.
59 Convention on Persistent Organic Pollutants, Stockholm, 22 May 2011, in force 17 May 2004, 40 In-ternational Legal Materials (2001) 532, <http://www.pops.int>.
60 ‘Cooperation and coordination between the Basel, Rotterdam and Stockholm Conventions’, Basel Con-vention Decision VIII/8 (2007); ‘Cooperation and coordination between the Rotterdam, Basel and Stockholm Conventions’, Rotterdam Convention Decision RC-3/8 (2006).
61 The first simultaneous extraordinary meetings of the Conferences of the Parties of the three Conventions were held in Bali, Indonesia in 2010 while the second round of simultaneous COPs was held in Geneva in May 2013.
cooperation among competent regimes take place in connection with geoengi-neering issues.
4 Conclusions
Geoengineering appears to be an example of a complex, ambivalent, fragmented and controversial problem. For some, geoengineering appears to be a possible solution;
while for others it is rather a problem itself. In view of these fundamentally different starting points, the regulatory and management options for addressing geoengineer-ing are likewise ambiguous and controversial.
This does not, however, mean that it would not be reasonable or rational to try to regulate or manage geoengineering techniques. First, there are already a number of treaties and customary law rules which would be applicable. This is, for instance, the case with regard to ocean-based geoengineering, in relation to which many treaty provisions and customary rules are applicable. As to the possible future rules, it would be logical to operate through existing regimes as opposed to concluding a com-pletely new agreement. For instance, steps have already been taken to start to regulate ocean fertilization. Lastly, it would be important to avoid fragmentation, to aim at synergy and interaction among different regimes, and to preserve coherence of the international environmental legal system. Such regime cooperation, in particular among the CBD, LC/LP and UNFCCC, would be important also in relation to regulating and managing ocean based geoengineering.62
Overall, international environmental law and future law-making is not necessarily able to provide one universal normative answer to geoengineering. Rather, the legal and policy position depends on context. Indeed, geoengineering techniques and their potential adverse effects require contextual problem solving and management through environmental regulations and regimes.
62 See the account of the simulation exercise by Cam Carruthers in Part IV of the current Review.