New Zealand Law Students Journal
Last Updated: 29 May 2014
GEOENGINEERING IN INTERNATIONAL LAW AND POLICY: NEW CHALLENGES FOR ENVIRONMENTAL LAW
Anthropogenic climate change will likely pose grave risks to society during
the course of this century. An increase in average global
temperature of between
1.1 and 6.4 degrees Celsius from the year 2000 to 2100 is predicted.1
Effects of climate change include a decrease in sea ice and glacier
cover, accelerated sea level rise, more frequent extreme
such as heat waves, cyclones and droughts, and irreversible impacts on
biodiversity including species extinction;
significantly, these effects are
already becoming evident.2
As efforts to limit greenhouse gas emissions stagnate, geoengineering techniques, which aim to manipulate the environment, are rising to the forefront of climate policy debate. Although historically geoengineering has been regarded as somewhat of a fringe topic, barely appearing in
the 2007 report of the Intergovernmental Panel on Climate
LLB (Hons)/BSc (in progress), University of Canterbury.
2 ML Parry, OF Canziani, JP Palutikof, PJ van der Linden and CE Hanson
(eds) Contribution of Working Group II to the Fourth Assessment Report to
the Intergovernmental Panel on Climate Change (Cambridge University Press,
Cambridge, 2007) at 8-22.
(IPCC),3 its status is fast changing. In the last few years it has
been the subject of reports by the House of Commons4 and the Royal
Society, and has also received attention from the United Nations General
Assembly.5 In 2014 the IPCC in its Fifth Assessment Report will
consider geoengineering across its working groups.
Geoengineering raises novel issues of law and policy that pose
challenges for the established scheme of international environmental
article tackles these issues in four parts. First, a basic scientific
understanding of the various schemes is provided.
Then, the legal and policy
challenges involved are outlined, before examining the current legal framework
Finally, the future of geoengineering in policy and
law is discussed.
A. The Science of Geoengineering
The term “geoengineering”, or “climate engineering”, refers to “the
deliberate large-scale manipulation of the planetary environment
3 B Metz, OR Davidson, PR Bosch, R Dave, and LA Meyer (eds) Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, 2007) at [11.2.2], which referred to geoengineering as being “largely speculative and unproven.”
4 House of Commons Science and Technology Committee The Regulation of
Geoengineering (Fifth Report of Session 2009-10, March 2010).
5 Oceans and the Law of the Sea GA Res 62/215,
A/RES/62/215 (2007) at ; Oceans and the law of the Sea GA Res 64/71,
A/RES/64/71 (2009) at -.
counteract anthropogenic climate change.”6 Instead of
conventional carbon emissions reduction techniques, geoengineering aims to alter
the climate in a more direct, intentional
and specific way. Scientists,
engineers and entrepreneurs have proposed many different methods of
geoengineering. Although there
are some broad similarities between them, it is
difficult to make generalisations in terms of policy issues; there are marked
in terms of each method, its cost, the degree of international
cooperation required for deployment of the scheme, and the degrees
of risk and
uncertainty involved. Due to the degree of scientific complexity involved, only
a basic outline can be given here, but
it is sufficient for this article’s
A basic categorisation of geoengineering into two main types can be
(1) Carbon dioxide removal. In these methods, carbon is removed from the atmosphere or captured and sequestered before it is released into the atmosphere.
(2) Solar radiation management. This involves the limitation of the
amount of solar radiation (sunlight) striking the Earth.
Several methods of geoengineering which fall into one or the other of these
categories will now be examined.
1. Ocean iron fertilisation
An example of a carbon dioxide removal proposal is iron fertilisation. This method would introduce iron to nutrient-deficient areas of the upper ocean, triggering the growth of phytoplankton blooms which are
essentially large clusters of phytoplankton, in that area.
6 The Royal Society Geoengineering the Climate: Science, Governance and
Uncertainty (RS Policy Document 10/09, 2009) at 15.
are carbon-rich, and when they die at least 20 to 30 per cent of their
biomass sinks and becomes suspended in deep currents. This
means that carbon is
thus effectively isolated from the atmosphere for
There are, however, several disadvantages and sources of uncertainty involved in iron fertilisation. For it to work, centuries of sustained activity on a large geographical scale would most likely be required, which is rather impractical given the uncertainties and fluctuations of human society.8 In addition, the potential and effectiveness of iron fertilisation depends strongly upon choice of location, and the variables that determine effectiveness have not been isolated. It is unclear how long the carbon would be isolated for, and how much of the phytoplankton would be isolated. Furthermore, field trials have not yielded particularly positive results: predominantly, the phytoplankton blooms were quickly devoured by zooplankton, krill, and fish.9
Moreover, there are considerable side effects of iron fertilisation on
ocean ecosystems, including increased ocean acidification,10
and the production of toxic algae.11 This method could
potentially lead to an increase in the release of methane and nitrous
oxide – worsening
7 R Rayfuse and others “Ocean Fertilisation and Climate Change” (2008)
23 IJMCL 1.
8 TM Lenton and NE Vaughn “The radiative forcing potential of different climate geoengineering options” (2009) 9 Atmos Chem Phys Discuss
2559 at 2591.
9 Rayfuse and others, above n 7, at 9.
10 HD Matthews and others “Sensitivity of ocean acidification to geoengineered climate stabilization” (2009) 36 Geophys Res Letters L10706.
11 CG Tricka and others “Iron enrichment
stimulates toxic diatom production in high-nitrate, low-chlorophyll
(2010) 107 Proc Nat Acad Sci 5887.
climate change.12 It is as yet unclear how these side effects
could be mitigated.
There are several other carbon removal methods involving the oceans,
including sub-seabed sequestration of carbon dioxide,13 injection of
carbon dioxide (CO2) directly into the water column14 and
weathering techniques to increase the alkalinity of the oceans and
therefore enhance the solubility pump.15
2. Carbon capture and sequestration
Another idea is to capture and sequester CO2 emitted from
coal-fired power plants. Options for places to store the CO2
long-term include: depleted oil and gas formations, coal seams that are
unsuitable for mining, and non-potable saline aquifers.16 A
limitation of this method is that so far it has only been tested on coal-fired
power plants – to be effective, it needs to
be applied to the many other
industrial activities that emit CO2.
The obvious risk in carbon capture methods is a CO2 leak, which
could be fatal to those in the surrounding area. It is also unclear how well
12 M Lawrence “Side-effects of ocean iron fertilization” (2002) 297 Science
13 A Weeks “Sub Seabed Carbon Dioxide Sequestration as a Climate
Mitigation Option” (2007) 12 Ocean & Coastal LJ 245.
14 Rayfuse, above n 7, at 3.
15 L Harvey “Mitigating the atmospheric CO2 increase and ocean
acidification by adding limestone powder to upwelling regions” (2008)
113 J Geophys Res 113.
16 P Marston and P More “From EOR to CCS” (2008) 29 Energy LJ 421 at
can be contained, and remain captured.17 There is also the
probable limit of CO2 that can be stored. Nor does carbon capture
address the ultimate problem: emission of CO2. More
real-world testing is needed: without this, it is impossible to know the
answers to these key questions.
Reforestation is a popular option for CO2 removal. Forests are a huge carbon sink; scientists estimate that if all deforested land were converted back to forests, atmospheric CO2 would be reduced by 40 to
70 ppm. However, creating new forests is only the first step. A
sustainable forest takes time to establish, and for reforestation to create a
viable carbon sink forests must have proper protection
to prevent future deforestation or degradation that can lead to carbon
emissions.18 Biodiversity, species and ecosystems relevant to the
native environment must be considered when planting.
Reforestation is likely the safest and least uncertain geoengineering method. One important caveat is that not all land is equal when it comes to reforestation. Tropical regions are in general much more suitable than the mid-latitudes for reforestation initiatives.19 This is because of another significant effect that forests can have: a decrease in albedo, or the reflectivity of the earth, due to the dark colour of forest canopies. A decrease in albedo generally leads to an increase in
temperature because more solar energy is absorbed into the
17 M Latham “The BP Deepwater Horizon” (2001) 36 Wm Mary Env L &
Pol’y Rev 31 at 44.
18 JG Canadell and others “Managing Forests for Climate Change
Mitigation” (2008) 320 Science 1456 at 1456.
However, the albedo effects vary by region: forests which substitute for
snow-covered ground in boreal areas will ultimately decrease
albedo, whereas in
tropical regions more forests would result in increasing cloud formation,
causing albedo to increase.
Thus, reforestation is most effective in tropical
4. Stratospheric aerosols
Sulfate particles, or aerosols, when injected into the stratosphere cause
dimming as they scatter and absorb incoming sunlight. This
leads to global
cooling. These effects have already been studied via naturally occurring
processes such as the emission of ash during
the 1991 Mt Pinatubo eruption. In
the 15 months following that incident the average global temperature
by about 0.6 degrees Celsius.20 Studies suggest
that a source 15 to 30 times that of the current non-volcanic sources
of sulfur to the stratosphere would
be required to balance warming associated
with a doubling of CO2;21 a concerted global effort would
Side effects of aerosol use include adverse consequences for the hydrological
cycle potentially leading to drought,22 and further ozone
depletion,23 although concerns about increased acid rain are
demonstrably unfounded.24 A practical issue is the short
23 Rasch, above n 21, at 4031.
24 At 4032.
lifetime (one to two years) of aerosols; continuous deployment would be
needed to maintain cooling. Conversely, aerosols cannot be
removed from the
atmosphere once they have been released, which means that their effects need
to be comprehensively studied
if they are to be released on a wide
scale.25 A positive effect suggested by some studies, however, is
that more diffuse radiation allows plants to photosynthesise more effectively,
increasing their carbon sink capacity.26
5. Cloud whitening
Spraying a fine seawater mist into low-level marine clouds causes them to
reflect more sunlight and thus increases the Earth’s
albedo. One proposal
would deploy this method using a fleet of around 1,500 unmanned ships, and it
estimates this technique would
be sufficient to reverse the warming effect of a
doubling of CO2.27
Advantages of this method are: it uses natural and renewable resources, it is considerably cheaper than many other proposals,28 and it utilises already existing technologies. The major risk involved is that regional weather patterns could be disrupted in unpredictable ways. A critical drawback of this scheme, and indeed all solar radiation management schemes is that they only address the warming problem, and not any of the other problems associated with increased CO2 concentrations such
as increased ocean acidification.
25 A Robock “20 Reasons Why Geoengineering May Be A Bad Idea” (2008)
64(2) Bulletin of the Atomic Scientists 14 at 17.
26 L Gu and others “Response of a Deciduous Forest to the Mount
Pinatubo Eruption” (2003) 299 Science 2035.
27 J Latham and others “Global Temperature
Stabilization via Controlled Albedo Enhancement of Low-level Maritime
(2008) 366 Phil Trans Roy Soc A 3969 at 3985.
It is clear that generalised thinking about geoengineering only yields
limited conclusions. The methods vary widely: some are undeveloped
proven negative side effects (such as iron fertilisation), while others (such as
cloud whitening and aerosol injection) are
comparatively well developed and
plausible. No scheme is free of side effects.
There are also some commonalities. First, it is clear that for the successful deployment of any of these options some kind of international agreement would be needed, either because of the inherent trans-boundary effects or because of the practical need for geoengineering to be implemented around the globe. In addition, though the degree of risk varies between schemes there is an inherent measure of uncertainty involved: scientists acknowledge that although climate models are improving, the complexity and chaotic nature of the system means total confidence in any given scheme is impossible.29 It should be noted, however, that although uncertainty can never be fully eliminated, it can be significantly reduced in many cases by further research and testing. Indeed, for all schemes more development is needed to create a viable proposal. Finally, another inherent disadvantage of all geoengineering techniques, when compared to the alternative approach of emissions reduction, is that if deployment stops (in the cases of iron fertilisation, cloud whitening, or aerosols), or if carbon escapes from sequestration, rapid warming is likely to ensue,
which would have unprecedented catastrophic effects on the
29 Robock, above n 25, at 17.
30 Lenton, above n 8, at 2595.
B. A Policy Basis for Geoengineering ... And Some Issues to
1. An argument for geoengineering
There is a strong argument for the development of viable
geoengineering proposals. Scientifically, the problem of
change is well-documented and agreed upon. Increasing CO2 emissions
lead to a rising global average temperature, which causes adverse consequences
such as melting sea ice, rising sea levels,
more frequent extreme weather events
like drought31 and wildfire,32 increased ocean
acidification,33 and large-scale extinctions.34 The
scientific community is largely in agreement that climate change is occurring
and will continue to occur, with only limited disputes
arising as to the extent
of the change and its regional consequences.35
International efforts to limit greenhouse gas emissions have thus far failed due to political, socio-economic and technological inertia, and the evidence suggests this trend will continue.36 Even if the political will to
limit emissions emerges there is a fast-closing window of
31 C Schar and others “The Role of Increasing Variability in European
Summer Heatwaves” (2004) 427 Nature 332 at 335.
32 T Brown and others “Assessing Climate Change and Fire Danger” (2008)
89 Bull Am Meteorological Society 788.
33 J Orr and others “Anthropogenic Ocean Acidification over the Twenty-
First Century and Its Impact on Calcifying Organisms” (2005) 437
34 Hansen and others “Global Temperature Change” (2006) 103 Proc Nat’l
Acad Sci US 14288 at 14292.
35 See IPCC, above n 1, at 5.
36 As documented in C Redgwell “Geoengineering the Climate” (2011) 5
CCLR 178 at 178-179.
to avoid a significant temperature increase.37 In addition,
climate change could be far more rapid and severe than we can predict, due to
net positive feedbacks in the carbon cycle
such as the release of CO2
from the decomposition of peatlands, wetlands and permafrost,38
the release of CH4 from marine gas hydrates39 and
reduced albedo from melting of ice and snow.40
Therefore, the basic argument is that knowledge of geoengineering techniques,
and plans to put those techniques into action, are needed
in the (unfortunately
likely) event that emissions reduction strategies fail.
2. A stop-gap measure
However, scientists and policymakers agree that geoengineering should be a temporary, stop-gap measure only.41 This is imperative for three reasons. First, many methods (such as cloud whitening and stratospheric aerosols) only counter warming, not other effects of increased CO2 concentration, which themselves can have devastating effects on the environment. Secondly, none of the proposals outlined above can be sustained indefinitely, meaning that when they end it is important the climate does not simply return to its non-altered state of
carbon overabundance. Finally, in addition to climate change
37 See S Kallbekken and N Rive “Why Delaying Emission Reductions is a
Gamble” (2007) 82 Climatic Change 27.
38 See EA Davidson and IA Janssens “Temperature Sensitivity of Soil
Carbon Decomposition and Feedbacks to Climate Change” (2006) 440
39 JG Fyke and AJ Weaver “The Effect of Potential Future Climate Change on the Marine Methane Hydrate Stability Zone” (2006) 19 J Climate 5903 at 5916.
40 See G Walker “The Tipping Point of the Iceberg” (2006) 441 Nature 802.
41 See Royal Society, above n 6.
problems remain and need to be addressed as part of a long-term solution,
such as the depletion of resources, environmental pollution
destruction. Put simply, even taking the possibility of geoengineering into
account, human society cannot simply continue
as normal: emissions reduction
efforts must continue.
A common argument against geoengineering is that there is a high risk of it
being viewed as a viable alternative to emissions reduction,
rather than merely
a supplement. This would mean states and individuals feel no imperative to
make the long-term lifestyle changes
necessary to address climate
change.42 Several counterarguments can be made. First, the prospect
of actual implementation of geoengineering programs may well generate the
political will necessary to implement more aggressive mitigation policies,
rather than deploy a radical geoengineering
even if geoengineering would undermine mitigation, it may well become
the only realistic option to
deal with climate change: it would at least hold
the temperature constant while buying time for the development of alternative
and more gradual and less costly emissions limitations and
adaptation measures. It is clearly “dangerously myopic” to
geoengineering as a climate policy option altogether.43
3. The need for further research
It is equally clear that geoengineering proposals are largely speculative, with perhaps the exception of reforestation even the most developed schemes require significantly more research and testing before
implementation. This supports the point already made
42 Robock, above n 25, at 17.
43 W Davis “What does “Green” mean?”
(2009) 43 Ga L Rev 901 at 923.
geoengineering should only ever be a Plan B, a supplement to emissions
reduction measures to be used as a last resort.
The precautionary principle, applied to geoengineering, states that in the
face of risk and uncertainty geoengineering experiments
and deployment must be
treated with caution.44 This is clearly justifiable. It should be
noted, however, that there are inherent difficulties in applying this
since “it forbids all courses of action, including regulation.
Taken seriously, it is paralyzing, banning the very steps that
requires.”45 It must be kept in mind the precautionary
principle can be argued both ways: it requires us to take any step
avoid the dangerous and uncertain consequences of anthropogenic
climate change. The precautionary principle must not scare us off
In fact, further research must occur – having made the negative
point that geoengineering schemes should not be deployed until there is
sufficient research, the positive point is just as important. It is vital
for law and policy to support geoengineering research and testing within the
bounds of proper
caution. Some level of regulation is necessary. The mere idea
of geoengineering as having radical side effects and being highly
cause unintended consequences must not deter further research and development
in order to overcome current scientific
If real-world testing does not occur, Davis puts forward a worst-case
scenario: desperate countries faced with large-scale famine,
44 JR Nash “Standing and the Precautionary Principle” (2008) 108 Colum L
Rev 494 at 498.
45 C Sunstein “Irreversible and Catastrophic” (2006) 91 Cornell L Rev 841
depression or war might well unilaterally decide to deploy a crash
geoengineering project. In the absence of scientific information
would probably be ineffective or actively counterproductive. Even if it was
partially successful in mitigating climate
change, the side effects might not be
ameliorable without prior research.46 Hence there is a vital need to
engage in real-world experimentation. Further to this, a range of different
proposals must be seriously
looked into so as to diversify future options. It is
clear that law is needed – but the challenge will be to build a legal
regime through which the risks can be managed, but without inhibiting or
C. Governance Challenges
A range of issues exists. First, questions of global equity arise. Deployment of geoengineering on any significant scale will undoubtedly have trans-boundary effects, which may be positive or negative. The existing global playing field is wildly uneven both in terms of political power and wealth, and in relation to regional and local variations in potential vulnerability to the effects of climate change. Indeed, there are only a few countries that have technical capacity to engage in geoengineering, and many geoengineering techniques, such as iron fertilisation or cloud whitening, could potentially be carried out unilaterally by individual states or even companies or wealthy individuals. This raises questions of who would have the authority to undertake geoengineering in ways that might be advantageous to some but not others. Bronsen points out geoengineering offers a perfect
excuse for industrialised countries to “evade historical
46 Davis, above n 43, at 906.
rather than reducing emissions.”47 Geoengineering has a
huge potential to disproportionately affect countries that generally lack
political power and technological know-how.
Furthermore, some states are likely
to benefit from climate change due to, for instance, changing rainfall patterns
or longer crop
growing seasons – how are their interests to be represented
in any regime?48 Any system needs to be developed with global equity
considerations at its core.
The issue of multinational companies is similarly fraught, as the profit
motive makes it difficult for a company to have the global
good at heart. As
Robock puts it, geoengineering could pose issues “analogous to those
raised by pharmaceutical companies and
energy conglomerates whose products
ostensibly serve the public, but who often value shareholder profits over the
public good.”49 The global climate is too important to entrust
to private hands. Thus, it is important for geoengineering development to be
regulated and transparent in research, rather than solely privately
The final issue arises in relation to a more general lack of scientific knowledge. For instance, it is difficult to know exactly how much geoengineering would be required to “offset” anthropogenic climate change. Moreover, we do not know Earth’s “ideal” mean temperature. This issue can be somewhat reduced by ongoing research. We can see that a legal framework should be constructed to maximise the potential
benefits and minimise the risks of geoengineering. However,
47 D Bronson “Geoengineering: A Gender Issue?” (2009) Women in Action
83 at 86-87.
48 K Scott “Marine Geoengineering” (paper presented at ANZSIL 18th
Annual Conference, Canberra, 2010) at 7.
49 Robock, above n 25, at 17.
complex policy issues raise challenges that must be addressed in any such
D. Current Regulation
The current legal picture is diverse, fragmented, and relatively sparse; it
reflects how recently geoengineering has burst into global
awareness and how
little is understood. There is no single treaty or institution governing
geoengineering; rather, there are a multitude
of instruments that could be
construed so as to apply to geoengineering. It is uncertain how far these
existing rules can be adapted
to regulate geoengineering actors and activities.
Indeed, in some cases it is unlikely that the possibility of geoengineering to
counter climate change was contemplated at the time of drafting. Nonetheless,
some are potentially applicable to all geoengineering,
whereas others can only
apply to particular schemes.
1. 1977 Convention on the Prohibition of Military or Any
Hostile Use of Environmental Modification Techniques (the
The 1977 Convention prohibits military or other hostile uses of “environmental modification techniques”, which art II defines broadly as “any technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the Earth”, having widespread, long-lasting or severe effects (art I).
However, peaceful use of such techniques consistent with
50 Convention on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques 1108 UNTS 151 (opened
for signature 18 May 1977, entered into force 5 October 1978).
applicable rules of international law is expressly permitted (art III).
Geoengineering would appear to fall under these provisions.
The principal importance of this convention lies in its prohibition upon
hostile uses of climate modification. However, it is institutionally
instance offering no regulation around when “peaceful use” of
environmental modification techniques might be
allowed. Moreover, its approach
is essentially prohibitory. These factors make it ill suited for adaptation as a
2. 1972 London Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter (the
This convention applies to disposal of waste material in any area of the water column (arts III (1), (3)). The definition of dumping does not include placement of matter for a purpose other than mere disposal, as long as it is not contrary to the aims of the Convention (art III(1)(b)ii). On the face of it the convention would probably not cover iron fertilisation, and opinions are divided as to whether it would prohibit experimental injection of CO2 into the water column.53
Later amendments have introduced provisions specifically relevant to
geoengineering. Under a 1996 Protocol, which has limited
51 Redgwell, above n 36, at 183.
52 Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter 1046 UNTS 120 (opened for signature 29
December 1972, entered into force 30 August 1975).
53 See R Warner “Preserving a balanced ocean” (2007)
14 AILJ 99 at 111.
direct injection of CO2 into the water column is
prohibited.54 However, amendments permitting storage of CO2
under the seabed were adopted on 2 November 2006.55 Guidelines
in respect of sub-seabed sequestration56 would require parties to
issue a permit for the sequestration subject to stringent conditions being
fulfilled (s 9), including rigorous
studies and geological assessments of the
proposed site (ss 3, 4, 6).
In 1997, the Scientific Bodies to the Convention issued a “statement of concern” in response to field trials of iron fertilisation. They noted its potential to have negative impacts on the marine environment and human health, stated that “knowledge about the effectiveness and potential environmental impacts ... currently is insufficient to justify large-scale operations,”57 and stated that the London Convention is competent to address the issue of iron fertilisation, urging states to use “utmost caution”.58 This statement was highly significant in that it specifically recognised iron fertilisation as a method of geoengineering, and promoted caution among member states. It is clear that the
Scientific Bodies recognised the current uncertainty and risks of
54 1996 Protocol to the London Convention 1972 (opened for signature 7
November 1996, entered into force 24 March 2006).
55 International Maritime Organisation Notification of amendments to Annex 1 to the London Protocol 1996 LC-LP.1(1)/Circ.5, 27 November 2006.
56 International Maritime Organization Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations LC 29/4 (2007).
57 International Maritime Organization Statement of Concern Regarding Iron
Fertilization of the Oceans to Sequester Carbon Dioxide LC-LP.1/Circ/14 (2007).
58 International Maritime Organization Report of the Twenty-Ninth Consultative
Meeting and the Second Meeting of the Contracting Parties LC 29/17 (Dec 14,
2007) at [4.23.1]-[4.23.5].
fertilisation. As such, it is undoubtedly a step forward in terms of sheer
recognition of the issues. However, the Scientific Bodies
essentially took a
precautionary approach, without encouraging further research. Moreover, it
should be noted this is only a soft
law statement, rather than a rule binding on
the parties to the Convention. Nevertheless, it is a valuable
3. 1992 Convention on Biological Diversity (the CBD)59
Under this Convention, parties must introduce environmental impact assessment
procedures for proposed projects that are likely to
have significant adverse
effects on biodiversity in order to avoid or minimise such effects (art 14).
Parties also have a duty to
cooperate in the conservation and sustainable use of
biological diversity beyond national jurisdiction, directly or through competent
international organisations (art 5). Methods of geoengineering that affect
biodiversity, such as iron fertilisation and reforestation,
would fall under
these broad provisions.
Although the parties debated adopting a moratorium on ocean fertilisation activities,60 they ultimately (and rightly) followed the London Convention approach. Parties are urged to ensure ocean fertilisation activities do not occur until there is an adequate scientific basis and a “global transparent and effective control and regulatory mechanism is in place for these activities”. An exception is made for small-scale research within “coastal waters” for scientific purposes
only.61 Further to this theme, a 2010 report under the CBD called
59 Convention on Biological Diversity 1760 UNTS 79 (opened for signature
5 June 1992, entered into force 29 December 1993).
60 Subsidiary Body on Scientific, Technical and Technological Advice
Recommendation XIII/6 (2008).
61 Ninth Meeting of the Conference of the Parties to the Convention on
Biological Diversity, Decision IX/16 (2008).
parties to ensure “that no climate-related geo-engineering activities
take place until there is an adequate scientific basis
on which to justify such
activities and appropriate consideration of the associated risks for the
environment and biodiversity and
associated social, economic and cultural
impacts,” with the exception of small scale research studies conducted in
setting.62 The sheer lack of scientific knowledge and
uncertainty surrounding iron fertilisation was clearly a key influence behind
These developments, along with the London Convention, may indicate an
emerging norm discouraging geoengineering or at least
iron fertilisation. This is an essentially precautionary approach, although the
recognition of the need for small-scale,
controlled research is a significant
development. It is also only weakly precautionary in that there are no specific
a state which does choose to undertake large-scale iron
4. 1985 Convention for the Protection of the Ozone
Under this convention there is an obligation to protect the environment
against adverse effects resulting from human activities that
modify, or are
likely to modify, the ozone layer (art 1). It has a well-developed compliance
procedure established pursuant to the
1987 Montreal Protocol.64
This convention therefore has a limited effect.
63 Convention for the Protection of the Ozone Layer 1513 UNTS 323
(opened for signature 22 March 1985, entered into force 22 September
64 Montreal Protocol on Substances that Deplete the Ozone Layer 1522
UNTS 3 (opened for signature 16 September 1987, entered into force 01
aerosol injection could potentially breach this obligation, as it
has adverse effects on the ozone layer, no other geoengineering
discussed would be affected.
5. 1982 United Nations Convention on the Law of the Sea
UNCLOS has several implications for ocean iron fertilisation and other marine
methods of geoengineering. Parties have general obligations
to protect and
preserve the marine environment (art 192), and to take individual or joint steps
to prevent, reduce and control the
pollution of the marine environment from any
source (art 194). In addition, there is an obligation not to transfer, directly
damage or hazards from one area to another (art 195).
States’ parties must assess as far as practicable the potential effect
planned activities under their control which may cause substantial pollution
or significant and harmful changes to the
marine environment and to publish
reports of their results (arts 204 and 206). Iron fertilisation schemes could
under each of these provisions.
The provisions that would require research into planned geoengineering activities are of particular interest. Based on the London Convention, the CBD and UNCLOS, it is arguable that a precautionary norm has developed around iron fertilisation. In varying degrees under these agreements states’ parties are urged to be cautious in developing and
deploying iron fertilisation.
Under UNCLOS there is also a duty to cooperate on a global and regional basis
in the protection of the marine environment, for the
purpose of formulating
rules, standards and recommended practices for protection, as well as promoting
studies, undertaking scientific
research programmes and encouraging the exchange
of information (art 197). This could have significant implications for the
of marine geoengineering policy, but it would be better if this duty
also existed in relation to other forms of geoengineering. Nevertheless,
an important provision that shows international recognition of the need to
cooperate in research around, and protection of,
the marine environment. It
recognises the marine environment is a shared resource at the centre of global
Marine scientific research is a freedom of the high seas (arts 87(1)(f),
256, 257), and some argue that marine geoengineering activities should likewise constitute a freedom of the high seas.66 This is accurate to the extent of geoengineering research activities. Even so, high seas freedoms must be exercised with due regard for the interests of other states (art
86) and in accordance with other provisions of the convention (for example,
art 240), and marine scientific research must be undertaken
for the benefit of
mankind (art 140). These articles are highly applicable to marine geoengineering
UNCLOS could potentially also apply to aerosol injection, if such injection
took place from ships or if it had an impact on the marine
addition, launch of aerosols from foreign-flagged vessels in the 12-mile
territorial sea would not be permitted
without the express consent of the
coastal state, because such activity does not constitute “innocent
passage” (art 9).
6. Regional Agreements
Some regional agreements could have limited application to geoengineering.
For instance, the 1979 Convention on Long-range Transboundary
for Europe and North America67 regulates sulfur emissions and
has evolved a compliance mechanism to address breaches of its provisions. It
aims to address acidification
from sulfur deposits created mainly by
industrial sources. Nonetheless, it could have implications for geoengineering
extent that geoengineering processes contributed to exceeding fixed
national sulfur emissions ceilings: aerosols are sulfate
Another example is the 1986 Noumea Dumping Protocol to the 1986
Noumea Convention.69 The dumping of CO2 in high seas
areas by a party would be subject to the issue of a general permit from the
party to its flag vessel (art 6). This would
in effect require parties to
introduce an environmental impact assessment process before issuing a permit for
an ocean geoengineering
67 Convention on Long-Range Transboundary Air Pollution 1302 UNTS
217 (opened for signature 13 November 1979, entered into force 16
68 Redgwell, above n 36, at 185.
69 Protocol for the Prevention of Pollution of the South Pacific Region by Dumping (signed 25 November 1986, entered into force 22 August 1990) to the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (signed 24 November 1986, entered into force 22 August 1990).
70 Warner, above n 53, at 114.
E. Options for the Legal Future
It can be seen there are a plethora of potentially applicable instruments.
International law hardly presents a blank slate. However,
there is an alarming
lack of principled regulation, which poses potential threats to marine and
land-based ecosystems and the climate
in general. In particular, the current law
does not adequately address the necessity of further research and real-world
although the provisions in relation to iron fertilisation
discussed above present a hopeful backdrop. Nor does it address
for an agreement between as many countries as possible, and in particular with
powerful countries, or the supplementary
nature of geoengineering.
An international regime to regulate and manage geoengineering is desirable
– perhaps necessary – to adequately tackle
the problem of climate
change. The deployment of some options, such as reforestation, would not require
an international consensus
in terms of safety. However, an international
instrument would still be greatly helpful in relation to the effectiveness of
methods: reforestation is more likely to be effective if pursued in more
states. Several options for the legal future will be considered
1. A multilateral geoengineering treaty
Some advocate for a global overarching instrument which would “provide
both the catalyst and the forum for examining
options at the international level,”71 setting out common
principles of application to both research and deployment activities. This
instrument would need to include tools
such as environmental impact assessment,
monitoring, cooperation and liability, and would
also need to establish appropriate institutions that are to provide advice on science and engineering matters, take policy decisions on which technologies should be developed and how information should be shared, and resolve disputes. Scott advocates for this instrument to be developed as a protocol to the 1992 UN Convention on Climate Change, since geoengineering needs to be seen in the context of other measures including emissions reductions and adaptation.72
Geoengineering fits well into this context. It would not be appropriate,
conversely, for the instrument to be developed under UNCLOS, as the issue of
geoengineering is far larger than the law of the sea.
It is important this instrument not only incorporates the interests of those
states well-equipped to carry out geoengineering research
and deployment, but
also vulnerable states that would be adversely affected by geoengineering or
climate change in general. A broad
state membership is important, and global
equity concerns must be at the heart of any such international
2. An international research body
To be effective, the treaty would have to create an institutional structure for a centre for research, development and deployment of geoengineering technology. A multilateral research program would make the use of geoengineering feasible scientifically by determining which options best offset global mean temperature increases with minimal side effects. A range of geoengineering schemes should be investigated with an eye to precisely ascertaining their effects, fully investigating and countering all possible side effects, and making the scheme technically and economically possible. Outdoor testing,
although crucial, should be highly controlled and on as small a scale
72 Scott, above n 48.
reasonably possible, and should be preceded by notice and consultation with
other countries that could conceivably be affected.73
International collaboration on geoengineering research is vital not only
scientifically but to develop norms of cooperative transparency
build mutual confidence and trust, ameliorate political tensions and lend
political legitimacy to the project.
Mechanisms for the provision and
acquisition of information about parties’ capabilities, planning,
decision-making processes would be
This would also set the stage for development of more norms and decisions
surrounding the actual deployment of geoengineering, if
3. A norm discouraging geoengineering?
Others advocate for a norm discouraging geoengineering altogether, and this is severely problematic. This view could preclude the use of geoengineering as even a last resort in the event of catastrophic climate change, or could result in the equally catastrophic use of a poorly researched geoengineering scheme.75 Although geoengineering should be approached with extreme caution, it should not be actively discouraged as geoengineering research is key to mitigating climate change. The provisions in the London Convention, the CBD and
UNCLOS may be taken as a guide to an advisable level of
73 Davis, above n 43, at 944.
74 At 941.
75 At 936-937.
4. Soft law
Some see a multilateral treaty as “neither likely nor
desirable”:76 unlikely because the appetite for law making in
the climate change context is low and undesirable because a “one size fits
approach cannot be taken beyond the identification of key guiding
principles or concerns of general application. Redgwell thinks
a more realistic
step forward would be adoption of guiding principles for geoengineering
governance, which could be embedded in soft
law and used by the key
geoengineering stakeholders to guide decision-making on geoengineering research
in particular.77 Another advantage of a soft law approach is that
the lack of binding provisions could make powerful, technologically advanced
more likely to cooperate.
I disagree. It is true that climate change law has been slow to progress. Of
course, it is not inconceivable that geoengineering regulation
would suffer the
same global collective inertia. However, one only has to look at the speed at
which the parties to the London
Convention and Protocol issued a
“statement of concern” to see that the will and impetus for
regulation very much exists. And, unlike carbon mitigation
efforts, geoengineering development would involve small, achievable steps
would not run against the flow of international economics.
It is also fair to say that no single approach can be taken to all methods of geoengineering. An integrated and concerted approach to research and the development of geoengineering policy can be taken. Indeed, such an overarching approach is necessary to deal with all the
interrelated and overlapping effects of various types of
76 Redgwell, above n 36, at 188.
77 At 188.
Although soft law guidelines could be a good starting point, and indeed could
usefully be incorporated into a treaty, ultimately something
more is needed, in
the form of an international agreement.
Geoengineering cannot be society’s Plan A to mitigate the effects of
anthropogenic climate change. However, if conventional
efforts to counter
climate change fail, we will need an insurance policy. Currently several methods
of geoengineering have been proposed
or tested; none, however, are presently
viable and all are troubled by uncertainty as to both effectiveness and
potential for negative
It is vital that viable forms of geoengineering are developed. For this to
occur, we need real-world research and experimentation
to occur. Thus,
international law must remain open to research, and indeed must
actively promote and facilitate it,
while maintaining caution around
actual deployment of geoengineering. A multilateral effort is clearly needed,
due to the inherently
trans-boundary effects of geoengineering, global equity
concerns, and the difficulties and costs of effective large- scale
The current law proves inadequate to effectively regulate
geoengineering. Although several existing instruments could be applied
geoengineering, and it is arguable that a precautionary principle is developing
in relation to iron fertilisation, the
law is ultimately piecemeal and
insufficient. A precautionary principle alone is not enough; positive
support for geoengineering
research and policy development is
An overarching international framework to provide a centre for geoengineering research and policy is recommended. A multilateral treaty, possibly as a protocol to the 1992 UN Convention on Climate Change, would be ideal as the structural basis for such an organisation. Although at this point it is only possible to speak in aspirational terms, the increasing level of awareness, debate and discussion surrounding geoengineering gives hope for these aspirations to become a reality.