Geo-engineering: a lack of regulation?

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Faculteit Rechtsgeleerdheid

Universiteit Gent

Academiejaar 2019-2020

CLIMATE ENGINEERING: A LACK OF

REGULATION?

AN IN-DEPTH ANALYSIS OF THE LEGAL FRAMEWORK SURROUNDING CLIMATE

ENGINEERING

Masterproef van de opleiding

‘Master in de Rechten’

Ingediend door

Pieterjan Declerck

(Studentennummer: 01509525)

Promotor: Prof. Dr.

AN CLIQUET

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i

PREFACE

“Here Phaethon lies, who in the sun God’s chariot fared. And though greatly he failed, more greatly he dared.” – Epitaph of Phaethon in Greek mythology.

The relationship between humanity and the environment has piqued my interest ever since I was a young man. At first, it was a passion for physics and biology which drove me towards the exploration of this topic, however growing up over the years has introduced me to the complex world of global warming and its accompanying issues. This dissertation is therefore in a way the culmination of my passion for science and my acquired legal knowledge throughout the years at Ghent University, allowing me to address this topic from a critical and academical perspective. In other words, this Master’s thesis can be seen as the symbolization of my personal growth on this topic, both legally and scientifically.

The citation at the top refers to the delicate balance humanity has tried to find ever since the beginning of times, concerning its place within the universe. In the myth, Phaethon attempts to steal the chariot of Helios – the God of the Sun in Greek mythology – in an effort to move the Sun through the sky himself. Sadly, although unsurprisingly, the myth ends with Phaethon being destroyed by Helios, as it is not the purpose of a man to take over the tasks of the Gods. Nevertheless, Phaethon received praise for his courage. Similarly, humanity’s quest to live in harmony with nature has taken a wrong turn in the last decades. As the Doomsday Clock keeps ticking, a new way of tackling climate change and its impacts on the Earth has come to light: climate engineering. Basically, climate engineering implies humanity taking over the role of nature and trying to manage the climate system itself. Of course, given the complexity of our climate system, there are potentially grave consequences waiting on the other side. Is the fate of humanity similar to that of Phaethon? Only time will tell.

Additionally, I would like to address the importance for this dissertation of participating in the Philip C. Jessup Moot Court Public International Law. In a way, taking part in this competition symbolized the summum of my learning process, as it helped me to significantly increase and refine my knowledge and research capabilities in international law. Therefore, I would like to firstly thank my promotor, prof. dr. An Cliquet, for her understanding and support as I combined both the Moot Court and dissertation this year. Secondly, my most sincere gratitude goes to my Jessup coaches for their valuable assistance and guidance, and to my co-delegates for the teamwork and accomplishments we shared; without them, this year would have been just a little less bright.

I would like to thank my father and brother, Noël and Mathias, for supporting me throughout this five year adventure in ways they probably do not realize themselves, and my friends and family, who were there to talk when I needed it the most. Finally, I would like to dedicate this work to my mother, who I’m sure watched over my shoulders throughout this journey, accompanying me along the way.

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ABSTRACT

Deze masterproef betreft het onderwerp van ‘climate engineering’, in het Nederlands het best vertaald als ‘klimaatinterventie’. Het onderwerp gaat over het menselijke ingrijpen in het klimaatsysteem van de Aarde, om zodoende de gevolgen van klimaatverandering tegen te gaan. Het gaat met andere woorden om een sterk wetenschappelijk onderwerp, dat ook nog maar recent op het toneel verscheen. De onderzoeksvraag is de volgende: is er een gebrek aan regulatie voor klimaatinterventies?

In het eerste Hoofdstuk wordt een brug gelegd tussen de wetenschappelijke en juridische wereld. Voor rechtsgeleerden is het noodzakelijk om eerst ingeleid te worden tot de verschillende technieken die begrepen worden onder ‘klimaatinterventie’. Het betreft twee grote categorieën aan technieken: Koolstofdioxideverwijdering en Zonnestralingsbeheer. De eerste categorie bevat verschillende technieken om actief koolstofdioxide te verwijderen uit de atmosfeer, alsook om ervoor te zorgen dat er niet meer koolstofdioxide in de atmosfeer terecht komt bij het opwekken van energie. De tweede categorie wordt als extremer gepercipieerd: het betreft het verminderen van zonne-energie die het aardoppervlak bereikt of het verhogen van de reflectiegraad van de Aarde (de albedo). Kort gezegd moeten deze technieken ervoor zorgen dat de Aarde niet zodanig opwarmt dat de catastrofale gevolgen eraan gekoppeld, intreden. Het eerste Hoofdstuk leidt de lezer in tot het probleem van klimaatverandering, alvorens de verschillende technieken van klimaatinterventie uit te leggen. Ten slotte wordt gepoogd om een algemene definitie voor klimaatinterventie te formuleren, aan de hand van verschillende criteria zoals intentie, schaal en doelstelling van de activiteit.

Het tweede Hoofdstuk is de kern van de masterproef en analyseert het huidige internationale rechtskader rond klimaatinterventie. Ten eerste worden bindende verdragen behandeld, zoals het VN-Zeerechtenverdrag, het Klimaatverdrag, het Verdrag tot bescherming van de ozonlaag, enzovoort. Daarnaast komen niet-bindende initiatieven aan bod, zoals de documenten die voortkwamen uit de VN-Klimaattoppen, Richtlijnen van de Royal Society, Richtlijnen voorgesteld door de Commissie voor Internationaal Recht, enzovoort. Ten derde komen de principes uit het internationaal milieurecht aan bod, zoals het preventiebeginsel, het voorzorgsbeginsel, de milieueffectrapportage, of gemeenschappelijke maar gedifferentieerde verantwoordelijkheden. Enkele van deze principes behoren tot het internationaal gewoonterecht en worden ook behandeld, het bekendste voorbeeld zijnde de artikelen inzake staatsaansprakelijkheid (ARSIWA). Uiteindelijk is het doel van Hoofdstuk II om een compleet beeld te schetsen van hoe klimaatinterventie binnen het huidige rechtskader past.

Het derde Hoofdstuk heeft een normatief doel en tracht enkele suggesties aan te reiken voor het toekomstige rechtskader inzake klimaatinterventies. Aan de hand van wat werd geconcludeerd uit de vorige twee Hoofdstukken, schetst dit Hoofdstuk hoe een internationaal rechtskader inzake klimaatinterventies er uit zou kunnen zien. Het gaat meer bepaald om een bespreking van welke verplichtingen er zouden moeten opgenomen worden in dit rechtskader, alsook over welke niet-bindende richtlijnen het zou moeten omvatten. Ten slotte gaat het om de algemene ratio waarbinnen een internationaal klimaatinterventieverdrag tot stand moet komen, met inbegrip van bijvoorbeeld de relatie mens-natuur, de algemene principes inzake duurzaamheid, alsook een analyse betreffende in hoeverre het huidige rechtskader ter inspiratie kan dienen.

Uiteindelijk gaat deze masterproef om een recente, dynamische en boeiende problematiek die een groot belang bevat voor de toekomst van onze samenleving. Dit toont overigens het belang aan van het reguleren van deze materie. Deze masterproef is zowel informatief als normatief en poogt een volledig beeld te geven van ‘climate engineering’ in het internationale recht.

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LIST OF ABBREVIATIONS

AR5 Fifth Assessment Report of the Intergovernmental Panel for Climate Change BECCS Bioenergy with Carbon Capture and Storage/Sequestration

CAS Commission for Atmospheric Sciences CBD Convention on Biological Diversity

CBDR(RC) Common but Differentiated Responsibilities (and Respective Capabilities) CCS Carbon Capture and Storage/Sequestration

CCT Cirrus Cloud Thinning CDR Carbon Dioxide Removal

CLRTAP Convention on Long-Range Transboundary Air Pollution COP Conference of the Parties

DAC Direct Air Capture ECJ European Court of Justice

EIA Environmental Impact Assessment

ENMOD Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques

EU European Union

GHG Greenhouse Gases

ICJ International Court of Justice ILA International Law Association ILC International Law Commission IMO International Maritime Organization

INDC Intended Nationally Determined Contributions IPCC Intergovernmental Panel on Climate Change ITLOS International Tribunal for the Law of the Sea

KP Kyoto Protocol

LC London Convention on the Prevention of Marine pollution by Dumping of Wastes and Other Matter

LP Protocol to the London Convention MCB Marine Cloud Brightening

MEA Multilateral Environmental Agreement NDC Nationally Determined Contribution NET Negative Emission Technology NGO Non-Governmental Organisation

OECD Organisation for Economic Cooperation and Development

OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic OST Outer Space Treaty

ppm Parts per million

REDD+ Reducing Emissions from Deforestation and Forest Degradation SAI Stratospheric Aerosol Injection

SDG Sustainable Development Goal SRM Solar Radiation Management

UN United Nations

UNCED United Nations Conference for Environment and Development UNCLOS United Nations Convention on the Law of the Sea

UNEA United Nations Environmental Assembly UNEP United Nations Environment Programme

UNFCCC United Nations Framework Convention on Climate Change UNGA United Nations General Assembly

UNRIAA United Nations Reports of International Arbitral Awards UNTS United Nations Treaty Series

US United States

VCLT Vienna Convention on the Law of Treaties WMO World Meteorological Organisation

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INTRODUCTION

“[K]nowing the force and the actions of fire, water, air, the stars, the heavens, and all other bodies that surround us, just as distinctly as we know the various skills of our craftsmen, we might be able, in the same way, to use them for all the purposes for which they are appropriate, and thus render ourselves, as it were, masters and possessors of nature.”

- René Descartes, Discourse on Method, Part VI (1637) Global warming and climate change have become the centre of attention throughout the twenty-first century. In recent years, it has undoubtedly been shown that their accompanying problems amount to what is now one of the most difficult challenges humanity has faced. The rise in greenhouse gas emissions that started with the industrial revolution has now reached a tipping point; the concentrations in the Earth’s atmosphere are high enough to cause the planet to warm rapidly and to continue to do so for the remainder of the century.1_{The consequences of this process may be disastrous for society and} its way of life, with the most prominent examples being the rise of sea levels, degrading quality of soil due to longer drought periods, extreme weather conditions causing more frequent natural disasters, and the collapse of most ecosystems we know today.2_{These changes in the climate in turn affect and threaten} some of humanity’s most important needs: the food we eat, the places we live, and even our physical health. It is therefore no surprise that tackling global warming is slowly, but surely making its way into the agendas of policy makers throughout the world. Policies concerning the reduction of greenhouse gas emissions arise together with the need for a more sustainably developed, decarbonized economic system. Global efforts for mitigation and adaptation are increasing, using renewable energy as their showpiece to stabilize or remove the effects of climate change.3_{On the one hand however, mitigation is a slow} process that also encounters obstacles – the fossil fuel and oil industries for example – and that is presently neither implemented, nor as highly regarded on all continents. On the other hand and equally important, recent research has indicated that these measures will most likely be insufficient to keep global warming below the desired level.4_{Therefore, the world now also points its attention towards the} application of other methods to reach the internationally set goals.5_{This is where geoengineering (also} called climate engineering)6_{joins the stage: the deliberate large-scale intervention in the Earth’s climate} system, with the aim of mitigating the adverse effects of global warming and climate change.7 Geoengineering has been called ‘the poster child of the Anthropocene’.8_{The myth of Phaeton cited in} the Preface is a relatable metaphor in the field of geoengineering. Similar to Phaeton’s will to control the sun, humanity has been exploring ways to influence the climate on Earth. The destruction of Phaeton at the end of the myth conveys a message concerning the dangers involved in developing these techniques, as they relate to the foundations of Earth’s climate system.

1_{This significant increase in human impact on the Earth’s geology and ecosystems has led to the proposal of distinguishing a}

new geological epoch called the ‘Anthropocene’. Even though this term has not yet been officially approved, it has become a widely used trivial term.

2_{See IPCC, 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment}

Report of the Intergovernmental Panel on Climate change. IPCC, Geneva, Switzerland, pp. 39-54, 64-73 (hereinafter: IPCC Synthesis Report 2014).

3_{Mitigation and adaptation are more thoroughly discussed in Chapter I.}

4_{See IPCC Synthesis Report (n. 2), pp. 20-25; see also e.g. CHAVEZ, A., A Napoleonic Approach to Climate Change: The}

Geoengineering Branch, in 5 Washington and Lee Journal of Energy, Climate and the Environment 93, 2013, pp. 103-111.

5_{UNFCCC Conference of the Parties, 21}st_{session, Adoption of the Paris Agreement, 12 December 2015, XXVII UNTC 7d.,}

Article 2 (Hereinafter: the Paris Agreement).

6_{Throughout this dissertation both terms are used, with preference for the term ‘climate engineering’.}

7_{The definition of geoengineering in itself is disputed, with notable efforts by the Royal Society and the Convention on}

Biological Diversity; the definition is discussed in detail in Chapter I.

8_{SCOTT, K., International Law in the Anthropocene: Responding to the Geoengineering Challenge, in 34 Michigan Journal}

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3 After World War II, both the US and the USSR commenced research activities in the field of weather modification.9_{The term ‘geoengineering’ was brought up in the 1970s by Italian physicist Cesare} Marchetti as an idea to dispose atmospheric carbon dioxide in the deep oceans, and at the same time Russian scientist Mikhail Budyko was the first to propose cooling of Earth’s climate by releasing aerosols into the atmosphere.10_{Throughout the second half of the twentieth century global research} steadily increased, receiving a major boost after the 1988 creation of the Intergovernmental Panel for Climate Change (IPCC) by the United Nations Environment Programme (UNEP).11_{Important progress} was made because of the reports published by the Royal Society in 2009 and 201112_{, the US Government} Accountability Office in 201013_{and the US National Research Council in 2010 and 2015}14_{. Finally, each} report of the IPCC since 1996 has discussed some of the technologies that are now accepted to belong to the field of geoengineering, the most important report being the 2014 Fifth Assessment Report, which includes several scenario’s relying on these technologies.15_{As of today, a variety of technologies in the} field are showing promising progress. Nevertheless, at the same time the uncertainties and possible dangerous consequences of using these technologies on a large scale are being discovered. Therefore, this scientific (r)evolution requires an adequate judicial framework that ensures proper development. The goal of this research, in short, is to give an introduction to a possible future legal framework in climate engineering, by starting from the scientific aspects underlying it and comparing them to the currently existing framework. Ultimately, this thesis tries to formulate an answer to its research question: is there a lack of regulation in the field of geoengineering?

In Chapter I, the term ‘climate engineering is more closely examined. Firstly, an introduction is given to the scientific aspects underlying the technologies used in climate engineering. Secondly, it includes the relation between climate engineering and mitigation and adaptation, and more generally situates the subject within the international environmental law context. This way, it serves as a bridge between the scientific and the judicial frameworks related to climate engineering, a necessary step to achieve the goals set forward for this thesis. Next, the feasibility of defining the concept of climate engineering is evaluated. First, a general definition that encompasses all technologies in the climate engineering field is assessed, based on the underlying science and the different underlying criteria applicable to it. Equally important however is to acknowledge that limiting a definition to ‘climate engineering’ only falls short of reality. Therefore, this Chapter consequently discusses the most notable categories of technologies within climate engineering independently: Carbon Dioxide Removal (CDR) and Solar Radiation Management (SRM). The several technologies falling under these two categories are stated and explained, after which the possible common grounds for technology-specific definitions are examined. Examples of these technologies are Direct Air Capture (DAC), Bioenergy with Carbon Capture and Storage (BECCS), Ocean Iron Fertilization (OIF), Marine Cloud Brightening (MCB) and Stratospheric Aerosol Injections (SAI).

9_{KEITH, D., Geoengineering the Climate: History and Prospect, in Annual. Review Energy Environ, 2000, pp. 245-284.} 10_{GERRARD, M. and HESTER, T., Climate Engineering and the Law: Regulation and Liability for Solar Radiation}

Management and Carbon Dioxide Removal (Cambridge University Press, 2018), p. 4.

11_{KEITH (n. 9) pp. 10-15.}

12_{Royal Society, Geoengineering the Climate: Science, Governance and Uncertainty, in London: The Royal Society, 2009, p.}

ix; Royal Society, Solar Radiation Management: The Governance of Research, in London: The Royal Society, 2011.

13_{US Government Accountability Office, A Coordinated Strategy Could Focus Federal Geoengineering Research and Inform}

Governance Efforts, GAO-10-903, 2010.

14_{National Research Council, Advancing the Science of Climate Change, in Washington DC: National Academies Press, 2010,}

chapter 15; National Research Council, Climate Intervention: Carbon Dioxide Removal and Reliable Sequestration, in Washington DC: National Academies Press, 2015.

15_{IPCC Synthesis Report 2014 (n. 2). Note that the full report contains over 5000 pages, spread over the research done by three}

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4 Chapter II discusses the currently existing legal framework in the climate engineering field. Situated within international environmental law, climate engineering is subject to the often difficult negotiations and consequent slow progress made at the international level. Political sensitivity, scientific uncertainty and the resulting lack of knowledge, or inability to find consensus due to other priorities have caused development in the climate engineering field to de facto come to a halt.16_{Nevertheless, an important} part of this thesis is to walk through the existing international rules that can be applied to the different climate engineering technologies. As of now, no internationally binding treaties or other instruments are in force that directly apply to climate engineering in general. There are however several binding documents that are relevant for the topic: the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol and Paris Agreement, the United Nations Convention for the Law of the Sea (UNCLOS) and the Convention on Biological Diversity (CBD) are some important examples.17 Next to that, nonbinding multilateral instruments can be applied to climate engineering, such as documents resulting from UN-summits, the most prominent examples being the Conferences on the Human Environment (Stockholm, 1972) and on Environment and Development (Rio de Janeiro, 1992). Also UNEP’s weather modification principles are relevant, and next to that there are multiple ‘soft law’ documents on climate change at the international level.18_{Finally, the principles of international} environmental law are important, even more so those that have been recognized as customary international law. Here, notable examples are the precautionary principle, the prevention of transboundary harm requirement and the principle of common but differentiated responsibilities. All these international rules are discussed in detail in Chapter II, supplemented with the scarce case law of the International Court of Justice (ICJ), ultimately providing an overview of the applicable legal framework on climate engineering that exists to date.

Finally, in Chapter III, the conclusions from both previous Chapters are combined. Based on the definitions extracted from the science behind the technologies used in climate engineering and the currently existing legal framework, Chapter III adopts a normative approach in order to answer the central question of this thesis: is there a lack of regulation in the climate engineering field, and equally important, what could a possible future legal framework look like? Since climate change affects the Earth as a whole, a legal framework regulating human large-scale activities to alter, affect, control or influence the climate is something of importance to humanity as a whole. There may be a global need for a specific climate engineering-related judicial framework, in which the principles and already existing international laws and principles are applied to the main technologies of climate engineering (CDR and SRM). Moreover, as humanity has started to show more affiliation towards the environment in recent years, the demand for acceptable regulation concerning the climate and its engineering will only increase. Societies ought to know what their governments can and cannot do. Therefore, the ultimate goal of this final Chapter is to provide possibilities for future legislators that have a progressive mindset in environmental affairs. Ultimately, climate engineering also poses philosophical questions concerning the relationship between humankind and nature. To conclude, some illustrations of guiding questions are: What are the gaps in the existing framework and how can we close them? What criteria should the world use to better tackle the problems in the climate engineering field? Can the principles of international environmental law be enforced in this field? How can we define technologies differently to make them fall under the scope of binding international treaties? Should we look at a new framework,

16_{For a recent example, see The Guardian, US and Saudi-Arabia blocking regulation of Geoengineering, 18 March 2019,}

available at https://www.theguardian.com/environment/2019/mar/18/us-and-saudi-arabia-blocking-regulation-of-geoengineering-sources-say.

17_{For full references to these sources, see infra Chapter II.}

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5 or be inspired by and build on the existing one? Should a new framework include general provisions, or is a technology-specific approach more appropriate?

Naturally, this thesis does not hope to provide clear-cut answers as a solution to all these questions. Alternatively, it tries to introduce new ideas which contribute to the debate on how to regulate the climate engineering field and its accompanying problems. In the light of this objective, the primary method used for this dissertation is a thorough literature study of the past decades, focusing on the years in which the topic of climate engineering received special attention in international legal doctrine. This approach also suits the recent and evolving character of the subject, as not much case-law or history is present concerning climate engineering specifically. The scope of the research is limited to the most prominent technologies that are currently brought forward under the umbrella of climate engineering. The dynamic character of the topic causes new developments to arise each month, creating the possibility of major breakthroughs whilst this thesis is being written or shortly after it has been finished. Investigating every form of human technology to counter climate change is therefore beyond its scope – lots of suggestions would also not fall under the definition of ‘large-scale’ interventions. Additionally, this thesis focuses solely on law at the international level and does not have comparative law of national legislation as its goal. The latter is only used in an informative or exemplary manner. Finally, in the recent past there has been an increase in discussions on topics indirectly related to climate engineering, such as its impact on human rights, its relation to national security, or its influence on intellectual property rights. These fall outside the scope of this research, however throughout the text certain sections are supplemented with suggestions for further reading on these topics in footnotes.

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CHAPTER I: DEFINING CLIMATE ENGINEERING

Before being able to address the possibilities of formulating definitions related to climate engineering, it is necessary to look at the scientific aspects that form its foundations. Therefore, this Chapter starts by giving a scientific background concerning the link between climate change and climate engineering (1). It tackles the process that forms the basis of climate change, also known as the ‘Greenhouse Effect’, and its importance for climate engineering techniques.19_{Additionally, the relationship between} mitigation and adaptation on the one hand, and climate engineering on the other hand, is clarified. In a second section of this Chapter, the possibility of formulating a general definition for climate engineering is examined, based on the different criteria that are used in practice (2). An alternative approach is adopted in the third and fourth section of the text. Instead of attempting to formulate a general definition, these sections focus on the possibility of working towards a technique-specific definition following the scientific division in practice. More specifically, with the technological knowledge present to date, climate engineering techniques are subdivided in two categories: Carbon Dioxide Removal (3) and Solar Radiation Management (4). Via an analysis of the scientific aspects underlying all these different techniques, this Chapter ultimately aims to assess whether or not common grounds exist for definitions on these techniques separately, or on climate engineering as a whole. Of equal importance is that the techniques discussed in this Chapter will be the once that are used in Chapter 2 concerning the legal framework surrounding climate engineering.

1. SCIENTIFIC BACKGROUND

Unsurprisingly, analysing a topic such as climate engineering necessarily implies having to include a connection between the judicial and the scientific world. Climate engineering can generally be seen as an array of techniques to counteract climate change and its effects.20_{Therefore, one cannot mention} climate engineering without knowledge of the underlying processes related to climate change. Importantly however, the goal of this text is not to give an elaborate explanation of the whole climate system and its operationalization in practice. Neither does this section focus on the legal framework surrounding climate change itself. Certain overlaps in the legal framework surrounding both topics are inevitable, however the main purpose of a scientific introduction within this text is primarily to familiarize legal scholars with the science behind climate engineering. Before being able to define what exactly climate engineering is, it is crucial to have a little more understanding on some of the details of our climate system and its evolution, as many of the climate engineering techniques focus on particular chemical processes or chemical elements present therein.21

For these reasons, this section firstly explains what exactly climate change is, with emphasis put on those specifically relevant processes for the field of climate engineering. Secondly, some more attention is given to the concepts of mitigation and adaptation, both crucial components of international climate change law, but not necessarily as important in the climate engineering context.

1.1 The ‘Greenhouse Effect’22 and its importance for climate engineering

The Earth receives almost all of its heating through solar radiation, i.e. light coming from the Sun. The Sun is a hot object and therefore emits high-energy radiation (e.g. the visible light spectrum or ultraviolet 19_{Throughout this dissertation, the word ‘technique’ is given priority because, as mentioned by BURGER and GUNDLACH}

in the book by GERRARD, M. and HESTER, T. (n. 10), p. 275: it is better to talk about ‘approaches or techniques’, as this includes not only technologies, but also activities in the climate engineering field.

20_{Of course, see the rest of this Chapter for an in-depth discussion on its definition.} 21_{To clarify, an illustration of a chemical process is the absorption of CO}

2 by the global hydrological cycles (the oceans);

illustrations of chemical elements are the use of iron to fertilize oceans, or spraying of sulphates in the upper atmosphere to block incoming sunlight.

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7 radiation). This energy is absorbed by Earth’s surface, i.e. both land and oceans. The Earth’s surface in turn also emits radiation, however this is much lower energy radiation, such as infrared radiation, which is invisible to the human eye. To be able to sustain life, there needs to be a balance between the amount of energy the Earth receives (heating) and the amount of energy the Earth reemits back into space (cooling). The atmosphere plays an important role in this process, because it is the reason why this balance can be kept continuously. Firstly, Earth’s atmosphere lets through most of the sunlight, such as the visible spectrum and some ultraviolet light. Secondly however, the atmosphere also traps some of the aforementioned infrared radiation coming from Earth’s surface, thereby preventing it from being released into outer space. Consequently, without our atmosphere, the Earth would be too cold to sustain life, since most of the absorbed heat would escape back into space (as illustration, this is the situation on the Moon). The relevance for climate engineering lies exactly in this function of the atmosphere. Earth’s atmosphere is composed of several gases, mostly oxygen (O2) and nitrogen (N). Both of these gases are transparent to infrared radiation; they play no role in the Greenhouse Effect. The gases that do contribute to the Greenhouse Effect are – conveniently – called greenhouse gases (GHGs). These gases are opaque, which is the term generally used to describe the trapping of infrared radiation coming from Earth’s surface. Examples of GHGs are water vapor (H2O), carbon dioxide (CO2), methane (CH4) and nitrous oxide (N2O). Consequently, the more these gases are present in the atmosphere, the more heat that would normally be able to escape back into space is instead retained on Earth, thereby warming the planet.23_{This phenomenon what is most commonly referred to as ‘climate change’. As has become clear} in recent years, anthropogenic GHG emissions have caused an enormous rise in these opaque gases present in the atmosphere, thereby threatening the long-term health of the planet.24_{To give some} illustrations, since 1750, more than 2 terratons of CO2 were emitted as a result of industrial processes.25 An important aspect of GHGs is that they differ in opacity: methane retains 28 times more heat than CO2, nitrous oxide 265 times more, and certain fluorocarbons retain up to 13 900 times more heat than CO2. Luckily, these extremely dangerous GHGs are emitted in much lesser quantities and are oftentimes regulated internationally (see infra Chapter II). Throughout this dissertation reference will be mostly made to CO2, although the importance of the other GHGs should certainly not be overlooked. The totality of GHG emissions in 2018 was 55.3 gigatons of CO2, of which 37.5 were fossil CO2 emissions from energy use and industry.26_{To put these numbers into perspective, the 1.5°C global warming goal} set forward by the Paris Agreement (see infra) requires a maximum of 25 gigatons of CO2 annually by 2030, whereas under the currently existing national plans there would be around 60 gigatons of CO2 emitted by 2030.27_{In 2018, there were 407.4 ppm CO}

2 in the atmosphere, whereas between ice ages of the past this was normally 180-280 ppm.28_{Finally, the IPCC’s most recent report of 2014 (Fifth} Assessment Report) stated that the Earth has a total carbon budget of 770 gigatons of CO2 (770 billion tons), which will be exceeded by 2030.29

23_{Note that the Earth’s oceans absorb most of the excess heat trapped in the atmosphere, caused by climate change; see}

MARSHALL, J., Geoengineering: A Promising Weapon or an Unregulated Disaster in the Fight against Climate Change?, in 33 Journal of Land Use & Environmental Law 183, 2017, p. 191.

24_{Or, put more elegantly by MAYER, B. (n. 4), p. 1: “Climate change Challenges about everything we know and care about,}

from individual rights and welfare, to social harmony and civilization, environmental protection and ecological balance”.

25_{MAYER, B. (n. 4), pp. 3-5, to clarify, this is 2,000,000,000,000 tons of CO} 2. 26_{UNEP Gap Report 2019 executive summary p. 5.}

27_{Id. pp. 8-9; interestingly, the UNEP Emissions Gap Report 2015 estimated 31-44 gigatons of CO}

2 for a maximum warming

of 1.5°C. In other words, three years later their estimation has been lowered significantly.

28_Id.

29_{IPCC Synthesis Report 2014 (n. 2), note that the Sixth Assessment Report has been planned for mid-2022; for other reports}

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8 The potential (negative) consequences of climate change are many, and most of them are mentioned in the IPCC’s Fifth Assessment Report of 2014.30_{Prominent examples are the frequency and intensity of} heat waves, the lengthening of the melting and growing seasons, the distribution of precipitation changes (whereby dry regions get dries and wet regions get wetter, with more floods and more intense droughts), rising sea levels, the increase in productivity for some plant life and the decrease for others, with substantial consequences for ecosystems, and ocean acidification.31_{Nowadays, public attention is} mostly shifted towards Arctic sea ice loss, which can have global negative effects due to atmospheric and oceanic circulations. This is also one of the processes containing a positive feedback loop, which entails that the process reinforces itself, thereby causing exponential increases in effects. As an illustration, if global temperature rises, there will be less snow on the Arctic ice cap. This absence of ice means that the reflection of sunlight on the Arctic is reduced (white colours are the best reflectors), which in turn further increases melting of ice. The melting of ice causes more ocean water to be present on Earth, and water absorbs ten times more solar radiation than ice, which causes the temperature on Earth to rise, closing and restarting the feedback loop.32_{Furthermore, higher amounts of CO}

2 emissions cause ocean acidification, thereby impacting marine ecosystems and biological processes (e.g. coral reefs or calcification).33_{Something additional to keep in mind is that global warming is a slow process,} and the warming that is experienced at present amounts to roughly 60% of the warming that will be ultimately caused with the present amount of CO2 in the atmosphere.34 For the sake of completeness, it is worth mentioning that although the IPCC has significant relevance and authority in this field, certain weaknesses are present in their process of handling scientific research (e.g. the diversity of the research or the role of governments).35_{Lastly, the relevance of the potential (disastrous) effects of climate change} lies in their comparison with the potential effects of climate engineering, which will be one of the most important threads running through this dissertation.

Taking into account all of the above, because climate engineering aims to counteract the causes and the effects of climate change, the techniques that will be discussed throughout this text apply to two processes: on the one hand, there are techniques which have as their main goal to remove GHGs from the Earth’s atmosphere or increase the amount of gases the Earth can take up36_{; on the other hand, there} are techniques that would cause less sunlight to be absorbed by the Earth in the first place. the former set of techniques falls under the category of Carbon Dioxide Removal (CDR), the latter techniques are commonly referred to as Solar Radiation Management (SRM).

Although the next sections of this Chapter focus on the specifics behind the techniques used in climate engineering, it may be useful to provide some introductory remarks. Climate engineering oftentimes has a negative connotation when it is used, referring to a last resort to save the planet. The following quote by DUTREUIL summarizes this view: “Put simply, what is deemed wrong with geoengineering

30_Id.

31_{SCHAFER, S., LAWRENCE, S., STELZER, M. et al, The European Transdisciplinary Assessment of Climate Engineering}

(EuTRACE), Removing Greenhouse Gases from the Atmosphere and Reflecting Sunlight away from Earth, 2015, p. 18 (hereinafter: EuTRACE Report 2015).

32_{CHAVEZ, A. (n. 4), p. 102; see also MAYER, B. (n. 22), p. 6 (includes other examples, such as the forest wildfire CO}

2

effect and the tipping point problem where further warming is incurred without additional GHG emissions).

33_{Convention on Biological Diversity, Update on Climate Geoengineering in Relation to the Convention on Biological}

Diversity: Potential Impacts and Regulatory Framework, in CBD Technical Series No. 84, 2016, 160 pp.

34_{ARCHER, D. and BROVKIN, V., The Millennial Atmospheric Lifetime of Anthropogenic CO}

2, in 90 Climatic Change 283, 2008, at 289.

35_{FRENCH, D. and PONTIN, B. in FARBER, D. and PEETERS, M., Climate Change Law (Edward Elgar Publishing, 2016),}

732 pp., pp. 9-20. Nevertheless, the author of this dissertation attributes high importance to the works of the IPCC.

36_{These are the so-called carbon sinks, natural reservoirs on Earth that contain an amount of carbon dioxide, such as}

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9 following the most classical reaction is that it is ultimately based on a questionable conception of nature and a pathological representation of the relationships between humans and nature, inherited from physics and modernity.”37_{In other words, geoengineering presupposes anthropogenic dominance over Earth’s} ecosystems and the superiority of technology over ecology, which is a vision that does not meet the agenda of sustainability and harmonious coexistence between man and nature. The vision of valuating climate engineering only in extreme situations was partially caused by a report by CRUTZEN in 2006, which served as the kickstart for global attention on SRM techniques.38_{In the report,}_CRUTZEN_states that “If sizeable reductions in greenhouse gas emissions will not happen and temperatures rise rapidly, then climatic engineering, such as presented here, is the only option available to rapidly reduce temperature rises and counteract other climatic effects.”39_{Therefore, an objective approach is} maintained throughout this dissertation, whereby climate engineering is seen as neither good or bad, as it is the author’s vision that it would be a mistake to look at climate engineering only through its applications in extremis.

Secondly, one of the elements to remember when reading the following Chapters, is that climate engineering is oftentimes implicitly present in international instruments, but not explicitly mentioned due to its political sensitivity. An important reminder hereof is the IPCC’s Fifth Assessment Report of 2014, which included only 76 of its 900 pathways in the range of possibilities to achieve a maximum of 2°C global warming.40_{Most of these pathways rely (heavily) on Negative Emissions Technologies} (NETs), which are basically CDR techniques. The Paris Agreement is another example of an international instrument containing implicit possibilities for the use of CDR techniques (see infra Chapter II) without explicitly mentioning them. SRM techniques on the other hand have been almost completely absent from international negotiations, most probably due to their extremity in interference with the Earth’s climate system and therefore political sensitivity. Necessary to add however is that the absence of mentioning these techniques is likely caused by the uncertainty surrounding them. Even in 2020, most climate engineering techniques are still in their embryonic phase and require significant investments in research.41_{Interestingly, this changes the perspective towards the instruments that do} mention one or more techniques. More specifically, it can be dangerous when a report mentions its support for a technique, when in reality the feasibility and potential effects of said technique are not yet decisively confirmed.42_{This uncertainty together with the lack of knowledge on a lot of climate} engineering techniques is another thread running through this dissertation, for which a solution will be further explained in Chapter III.

1.2 Mitigation and adaptation in relation to climate engineering

The importance of mitigation and adaptation in international law on climate change speaks for itself. However, the question is whether their role is equally important in the field of climate engineering. This section shortly covers the relation between these three strategies, which are all seen as solutions to the

37_{DUTREUIL, S., Is the Decisive Issue in Geoengineering Debates Really One of Representation of Nature? Gaia against (Or}

With?) Prometheus?, in 13 Carbon & Climate Law Review 94, 2019, p. 97.

38_{CRUTZEN, P., Albedo Enhancement by Stratospheric Sulphur Injections: A Contribution to Resolve a Policy Dilemma?, in}

7 Climatic Change 3, 2006, pp. 211-220.

39_{Id. p. 217.}

40_{HESTER, T., Legal Pathways to Negative Emissions Technologies and Direct Air Capture of Greenhouse Gases, 48}

Environmental Law Reporter News & Analysis 10413, 2018, p. 10413.

41_{KEANE, K., Geo-engineering the Climate: A Preliminary Examination of International Governance Challenges and}

Opportunities, in Trinity College Law Review 23, 2020, p. 57.

42_{This is for instance what happened in the IPCC’s AR5, where the use of BECCS is recommended. However, as will become}

clear throughout this Chapter, BECCS techniques entail potential large-scale negative effects; the Institute for Sustainable Development and International Relations, Pathways to Deep Decarbonization, 2014 report 8-9, at 19 also excludes emissions reductions achieved by NETs for reasons of debatable sustainability of their large-scale deployment.

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10 climate change problem. There are some interesting interplays between mitigation and climate engineering, and to a lesser extent adaptation can also be influenced by choices made in the climate engineering world.

Firstly, what is the difference between mitigation and climate engineering? Mitigation was defined by the IPCC’s Working Group III in their Fifth Assessment Report of 2014 as “the effort to control the human sources of climate change and their cumulative impacts, notably the emission of greenhouse gases (GHGs) and other pollutants, such as black carbon particles, that also affect the planet’s energy balance.”43_{It has also be defined not only as reducing GHG emissions, but also as “efforts to enhance} carbon sinks and artificial reservoirs through carbon capture and storage (CCS)”.44_{As the next section} of this Chapter discusses the definition of climate engineering, it suffices for now to define it as techniques to counteract the causes and effects of climate change. Based on this provisional definition, mitigation partially overlaps with climate engineering. More specifically, even though climate engineering is not as such meant to control the sources of climate change, it is definitely meant to control the impacts of these sources. Taking into account the division of climate engineering techniques into CDR and SRM, it becomes clear that CDR techniques oftentimes have the potential of being classified as part of a mitigation strategy (see infra). Removing carbon dioxide from the atmosphere or preventing it from entering the atmosphere entails controlling the emissions of GHGs, and is therefore de facto part of a mitigation strategy. Throughout the IPCC’s Fifth Assessment Report and the CBDs 2016 Update on Climate Geoengineering in relation to the CBD, negative emissions technologies (NETs) are seen as an important part of mitigation.45_{In the latter text, a figure is presented with the overlap between} mitigation and geoengineering techniques. It is clear that most of the CDR techniques are part of mitigation strategies, whereas the SRM techniques are not.46_{This was later confirmed by the IPCC in} their Special Report on 1.5°C Global Warming.47_{Another, albeit less convincing approach is to see} geoengineering as mitigating the harms of climate change, which is different from the standard approach to tackle climate change by concentrating on decreasing GHG emissions.48_{This division is based on the} fact that geoengineering techniques as such do not reduce GHG emissions; the emissions take place, but the GHGs are removed after being released. This argument is theoretically feasible; however, it does not take into account that the ultimate effect in both scenario’s is a reduction of GHG emissions (in the case of geoengineering techniques this happens implicitly or in two steps). The European Union also seems to differentiate between NETs and mitigation in their 2018 NETs report in relation to the Paris Agreement, by stating that “Given the somewhat unclear technical and economic viability of NETs in the longer-term future, the EU should thus continue to be fully committed to mitigation as laid down in the EU’s nationally determined contributions in the Paris Agreement.”49_{More convincing is the} argument that whenever there is not only a capturing of CO2, but also a storage/sequestering of that CO2 under the ground (CCS), we may no longer be able to classify it as mitigation.50_{Deliberate injection of} CO2 ‘blocks’ in geological formations under the ground is an intervention in the Earth’s climate system and therefore also has to be seen as climate engineering, especially when this happens on a large scale. An important remark here is that if CCS is combined with for example a power plant, we could still see it as mitigation, based on the argument that this technique indirectly removes GHGs from the

43_{IPCC Working Group III Report 2014, p. 114.} 44_{MAYER, B. (n. 22), p. 10.}

45_{IPCC Working Group III Report 2014, pp. 134-136; CBD 2016 (n. 33), p. 10.} 46_{Id. p. 17, Figure 1.1.}

47_{IPCC, 2018, Special Report on Global Warming of 1.5°C, p. 110.}

48_{GARG, V., Engineering a Solution to Climate Change: Suggestions for an International Treaty Regime Covering}

Geoengineering, in University of Illinois Journal of Law, Technology and Policy 197, 2014, p. 200.

49_{EASAC Policy Report 35, Negative emission Technologies: What role in meeting Paris Agreement targets?, 2018, p. 11.} 50_{ARMENI C. and REDGWELL, C., International legal and regulatory issues of climate geoengineering governance:}

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11 atmosphere.51_{Another interesting comparison is to see mitigation as seeking to treat the causes of} climate change by altering humanity’s conduct, whereas geoengineering addresses the symptoms of not having done so.52_{This line of argumentation interprets climate engineering as a technique to advance} climate change mitigation, due to the same ultimate goal they share – reducing GHG concentrations in the atmosphere.53_{This ‘conduct’ can be understood as reducing GHG emissions or preserving natural} carbon sinks such as forests; addressing the symptoms means regulating the greenhouse effect by balancing CO2 concentrations.54 Ultimately, it is easy to see that most of the CDR techniques have some or a lot of overlap with mitigation strategies. Considering the ultimate goal of reducing GHG emissions, both work towards the same end. For SRM however, the same cannot be stated. These techniques aim to cool the Earth’s temperature, but to not change the amount of GHGs present in the atmosphere, nor the amount of GHGs emitted (see infra). A more philosophical conclusion can be that both NETs and geoengineering techniques “ultimately serve the same political purpose: avoiding the hard decisions required to seriously mitigate climate change by bringing global CO2 emissions down to zero in the mid-21st_{century, since this option would demand a complete disruption of our social model based on growth,} mass consumption and waste; a politically controversial perspective.”55

Secondly, next to the definitional interpretations attached to mitigation and climate engineering, some interesting questions arise concerning their interrelation. As the climate emergency evolves, it becomes clear that mitigation will probably not be enough to achieve the necessary GHG emission reductions.56 This is in contrast to the general approach of the international community whereby mitigation is heavily prioritized over the hypothetical use of climate engineering techniques.57_{This interplay between both} strategies, and the question of which one to prioritize, becomes even more interesting when the social dimension is added. As has been stated, when climate engineering succeeds or is shown to be able to succeed at a cheaper price than mitigation, the incentives to mitigate are diminished, as well as the incentives to address the causes of climate change.58_{This is the so-called moral hazard of climate} engineering, where ultimately only climate engineering techniques would be used, potentially putting humanity inside a prison where they are forced to continuously uphold the geoengineering techniques to maintain global temperatures.59_{An important nuance to be made concerning these statements is the} following. If climate engineering is interpreted by a society as a solution in extremis, that society may be inspired to pursue mitigation more seriously (due to the potential disastrous effects of climate engineering), or at least recognize that climate engineering alone is not the solution, and that mitigation is necessarily part of it as well.60_{The concept of moral hazard will be discussed in-depth in Chapter III.} Concluding, it is important to remember the uncertainty that still surrounds geoengineering techniques at present. Assuming that this uncertainty continues, it seems the safest option to continue pursuing the

51_{BURGER and GUNDLACH (n. 19), p. 274; these authors also state that if CCS happens independently (capturing CO} 2 from

the air and storing it under the ground, this has to be seen as climate engineering only).

52_{Mayer, B. (n. 22), p. 145.} 53_{Id., p. 146.}

54_Id.

55_{COMPAGNON, D., Governing a Mirage? False Promises of Negative Emissions Technologies, in 13 Carbon & Climate}

Law Review 104, 2019, p. 105, calling it a technofix (a technical fix to a political problem).

56_{See CHAVEZ, A. (n. 4), pp. 115-117 and pp. 103-111 for examples hereon.}

57_{Next to the explicit absence of mentioning climate engineering techniques in international instruments as mentioned above,}

we can also see in the future strategies around the world that mitigation is the main priority. Some examples are the European Union’s Green Deal, the United States’ EPA Clean Energy Program, but more interestingly, the UNEP Emissions Gap Report of 2017 included a whole chapter on CO2 removal, whereas the 2019 report does not mention anything about it any longer. 58_{CHAVEZ, A., Using legal principles to guide geoengineering deployment, in New York University Environmental Law}

Journal, 2016, p. 91, stating that only the symptoms are treated.

59_{FITZGERALD, M., Prison or Precaution: Unilateral, State-Mandated Geoengineering Under Principles of International}

Environmental Law, in 24 New York University Environmental Law Journal 256, 2016, p. 263, stating that an absence of mitigation would mean that using SRM would essentially become a prison sentence.

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12 mitigation agenda if there is still a reasonable chance that it succeeds, and to accept that “precaution would weigh against implementing geoengineering methods” for the time being.61

Thirdly, a brief discussion on adaptation and its relation to climate engineering. In the IPCC’s Fifth Assessment Report, adaptation is elaborately defined: “Here we use adaptation needs to refer to circumstances requiring information, resources, and action to ensure safety of populations and security of assets in response to climate impacts.”62_{Adaptation itself is defined as “the array of strategies and} measures available and appropriate to address needs.” Important to state here is that it is apparent from this definition that a lot of the importance of adaptation strategies falls outside of the scope of this dissertation. Of course, climate engineering implicitly ties into adaptation: the more climate engineering techniques can counteract climate change effects, the less adaptation will be necessary. However the opposite is equally true, meaning that climate engineering techniques themselves might cause far-reaching consequences for Earth’s climate, which in turn need their own adaptation strategies. An example is the protection of coastal regions from sea level rise, which is of course adaptation to one of the most well-known climate change effects. SRM techniques might stop the ocean level from rising further, but SRM techniques oftentimes have the possibility of causing acid rain (and infrastructure needs to be protected against this). This basically means exchanging one adaptation requirement for the other, and this example is only one of many possible illustrations, most of which are presently still unknown.63_{Nevertheless, the other aspects of adaptation strategies do not dramatically change if climate} engineering joins the stage. For example, strategies involving the participation of a variety of stakeholders in the decision-making is equally important in climate change itself as it is in climate engineering related matters. A more general definition of adaptation is therefore well-suited for this dissertation: “the process of adjustment to actual or expected climate and its effect to avoid harm or exploit beneficial opportunities”.64_{This definition automatically includes the impacts of climate} engineering techniques. A final remark is that with a significant interpretation stretch, SRM techniques could hypothetically be seen as adaptation, due to the futuristic aspect that is attached to them.65_{In this} view, SRM is seen as part of adaptation because its aim is to offset future global temperature rises. Even though this interpretation is not as such wrong, following the same line of reasoning would also mean that the CDR techniques that are not seen as mitigation are also able to be classified as adaptation. This is because CDR also aims to offset future global temperature rises by removing CO2 from the atmosphere. However, the author excludes CDR as a whole from the scope of adaptation due to its importance within mitigation. At least, theoretical statements like this show that the role of climate engineering techniques within mitigation and adaptation is dynamic, and that a pragmatic approach is recommendable at all times.

As a general conclusion it can firstly safely be said that there is a lot of overlap between CDR techniques and mitigation strategies, mainly because they share the same ultimate goal of removing GHGs from the atmosphere. The same can however not be said for SRM techniques, which have absolutely no

61_{DOELLE, M., Climate Geoengineering and Dispute Settlement Under UNCLOS and the UNFCCC: Stormy Seas Ahead?,}

in ABATE, R. et al, Climate Change Impacts on Ocean and Costal Law: U.S. and International Perspectives (OUP 2014), p. 8.

62_{IPCC Working Group II Report 2015, WG II, p. 838.}

63_{See BRASSEUR, G. and GRANIER, C., Mitigation, Adaptation or Climate Engineering : Reaching International}

Cooperation on Climate Change Mitigation, in Theoretical Inquiries in Law (Vol. 14), 2013, p. 13 for other examples, such as modifying agricultural practices to respond to climatically changing conditions, shelters for extreme weather phenomena, or changes to disease patterns.

64_{MAYER, B. (n. 22), p. 11.}

65_{DU, H., An International Legal Framework for Geoengineering: Managing the Risks of an Emerging Technology (Routledge}

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13 impact on GHG concentrations and therefore cannot fall under the umbrella of mitigation. In this authors view, the optimal approach would be to see NETs (CDR) and mitigation as complementary methods to help address the causes of climate change. Even though climate engineering is a more symptomatic approach, a lot of the techniques have potential proactive possibilities to alter the GHG concentrations in the atmosphere (see also infra). Concerning adaptation, there is no clear direct link between adaptation and climate engineering techniques in the near future. Indirectly, using climate engineering techniques can shift the priorities within adaptation strategies, although this presupposes that climate engineering techniques are already being deployed on a large scale, which is presently not yet the case.66

2. CONSTRUCTING A GENERAL DEFINITION FOR CLIMATE ENGINEERING

The goal of this section is to analyse whether or not a general definition for climate engineering is possible, and whether or not it is feasible. As stated in the introduction, this dissertation ultimately hopes to answer the question on a potential lack of regulation within geoengineering. In order to obtain this answer, it is first necessary to know what geoengineering exactly is, and equally important, what it is not. The importance of delimitation of this topic cannot be overlooked, mainly due to its dynamic character. At first sight, in highly evolutive fields such as the one before us, one would tend to prefer a general, broad definition, to avoid theoretical lock-in. This way, new technologies can easily be incorporated into the definition, no matter their technical aspects. However, the subject of geoengineering is not as new as one might initially expect. Indeed, most of the technologies still have to be developed, and substantial investment still needs to be made, but the general scientific framework in which these technologies will develop is already largely set. The division of climate engineering techniques into the two categories (CDR and SRM) is an illustration of this. Ultimately, climate engineering techniques have to follow one of two roads if they wish to counteract climate change: they need to reduce the amount of sunlight that reaches the Earth, or they need to reduce the amount of GHGs in the atmosphere. Consequently, a slight bias is present throughout this Chapter, as is probably also clear from its structure. In this section the existing definitions for climate engineering will be analysed, and common grounds for a general definition will be sought. However, this is only half of the importance of this section; equally important is to acknowledge that the two categories of climate engineering techniques differ substantially, and that therefore separate definitions within these categories are desirable. A general definition can serve as an umbrella to include or exclude certain techniques; however, it is not able to specifically define the necessary components of the separate techniques that exist at present. In any case, what follows is an attempt to formulate criteria that together could constitute a general definition for climate engineering as a means of counteracting climate change effects.

Firstly, geoengineering in itself is a controversial term. This dissertation uses both geoengineering and climate engineering, but prefers the term ‘climate engineering’ because the word ‘geo’ most commonly refers to activities within or on Earth’s surface. Therefore, oceanic or atmospheric activities could theoretically be excluded from the term, which is of course counterproductive. Climate engineering also differs from weather modification. Weather is short-term and local, whereas the climate indicates longer-term patterns on a global scale.67_{Climate engineering relates to the latter.}

Secondly, a definition for climate engineering needs to include political objectives and regulatory purposes.68_{A political objective can be to include the moral hazard within the definition, to prevent}

66_{For further reading on mitigation and adaptation, see MAYER, B. (n. 22), pp. 108-131 and pp. 161-182 respectively.} 67_{Content: Berlin Ecologic Institute, Options and Proposals for the International Governance of Geoengineering, in Climate}

Change 14, 2014, p. 44.

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14 suppressing efforts to reduce emissions. Regulatory purposes mean which activities to include in the definition, e.g. only high-risk activities and exclude low-risk ones. As the Berlin Ecological Institute validly summarizes, without these notions, “proposing a regulatory definition could in essence put the cart before the horse.”69

Thirdly, climate engineering has already been defined in certain international texts in different ways. The United Kingdom’s Royal Society defined it in 2009 as “The deliberate large-scale manipulation of the planetary environment to counteract anthropogenic climate change.”70_{This was the first serious} effort to provide a definition, and more followed. In the 2013 Amendment to the 1996 Protocol to the London Convention, a definition for marine geoengineering was given: “a deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/or its impacts, and that has the potential to result in deleterious effects, especially where those effects may be widespread, long-lasting or severe.”71_{This definition shows the difficulty in} formulating a comprehensive definition, even more so since it only concerns marine geoengineering and no other types such as atmospheric or soil-based techniques. A final example is a definition by the CBD in their 2016 Report on Geoengineering: “The deliberate intervention in the planetary environment of a nature and scale intended to counteract anthropogenic climate change and/or its impacts”.72_These definitions show some similarities, although no general consensus can be concluded for them. Examples of similarities are the use of the word ‘deliberate’ and the criteria of a large enough ‘scale’. Additionally, the purpose should be to ‘counteract anthropogenic climate change and its effects’. The Berlin Ecological Institute already performed an analysis of these definitions. Based on what they found, the following definition was proposed: “Activities designed and undertaken with the purpose of producing environmental change on a regional or global scale, primarily for counteracting anthropogenic climate change or reducing its warming impacts through, inter alia, removal of greenhouse gases from the atmosphere or reducing solar insolation.”73

Fourthly, based on these definitions, what follows is an analysis of possible criteria to take into account whilst trying to define climate engineering: action, intent, scale and purpose.74_{To begin with, it is} important for a definition to state ‘activities’ or ‘techniques’ instead of ‘technologies’ (see supra), since limiting a definition to technologies excludes non-technical geoengineering options, such as reforestation.75_{Actions that are necessarily included into the definition are manipulations of the climate} system or interventions in the climate system.76_{This discussion is furthermore connected to what has} been written above on the distinction between mitigation and CDR techniques. One could argue that climate engineering only occurs when removing pre-existing GHG concentrations, and mitigation occurs when the generation of GHGs is reduced.77_{However in a way, this is a fabricated theoretical} division, as the term ‘pre-existing’ GHGs probably also includes the GHG emissions that take place every day. If a division is to be made, it could be better to state that climate engineering only occurs when removing GHGs from non-anthropogenic sources. However, it becomes immediately clear that 69_Id.

70_{Royal Society 2009 (n. 12), p. 15.}

71_{Protocol to the Convention on the prevention of marine pollution by dumping of wastes and other matter, 24 March 2006,}

Article 1.

72_{CBD 2016 Report (n. 33), p. 21.} 73_{Berlin Ecologic Institute (n. 67), p. 47.}

74_{The criteria are based on those proposed by the Berlin Ecological Institute (n. 67), the book by DU, H. (n. 65), pp. 8-10, and}

the CBD 2016 Report (n. 33), Annex 2; however also the author of this dissertation’s view is included, due to the lack of presently available legally concrete definitions.

75_{Berlin Ecologic Institute (n. 67), p.42; note here that not everyone sees reforestation or afforestation as geoengineering}

specifically because of its non-technical nature.

76_{DU, H. (n. 65), p. 8.} 77_{Ibid., p. 40.}