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Climate Technologies as Emergency Solutions

Pascal Blickle

Chapter 3: What International Law Tells Us About Emergency Climate Technologies

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1This chapter discusses the implications of the findings from the case studies discussed in the previous chapter. These findings on the law applicable to stratospheric aerosol injection, ocean fertilisation, and artificial islands are discussed in light of the theoretical issues relating to emergency technologies raised in the literature and discussed in Chapter 1. After a brief overview of the previous chapter’s findings, the present chapter will discuss how international law views technology and techno-fixes in general and the use of technologies as emergency solutions in particular. Among the questions discussed in detail are the law’s definition of the threshold of urgency at which taking radical measures is justified, how the law addresses the danger that framing technologies as backup options distracts from mitigation and adaptation, and the role it assigns to the precautionary principle in the context of clashing risks.

2While international law has not yet created any specific binding framework to regulate emergency climate technologies, I will argue that it expresses a robust precautionary stance that is opposed to risky technological endeavours. However, this precautionary policy may easily be diluted, as the law is relatively open to contrary arguments. For instance, presenting precaution as being in a “dilemma” concerning such technologies and the multiplicity of fora for discussing the technologies are dangers for international law’s precautionary position. Moreover, while the law does not currently allow for exceptions from environmental protections in emergencies, it does not do much to prevent the promise of new technologies from distracting from other climate change policies. Such distraction might lead to more vigorous calls for emergency use of technologies in the future, which again has the potential of diluting the law’s current precautionary stance.

1. No Easy Yes or No Answer

3Whoever expected international law to provide a clear answer to whether the use of stratospheric aerosol injection, ocean fertilisation, and artificial islands is allowed or even encouraged under international law must be disappointed. As we have seen, different relevant rules play quite different roles in regulating or promoting such technologies. Only one legal regime, the LRTAP sulphur protocols, directly and clearly prohibits one of the technologies if it is implemented on a sufficiently large scale. However, many of the pertinent legal rules refer to the precautionary principle or are based on a precautionary approach. Most of these precautionary rules are not specific to such technologies but rather express their respective regime’s general precautionary attitude. Because of this lack of specificity, most of these treaties’ formulation of the precautionary principle could be used to argue for both sides of the debate. While proponents of risky technologies present investing in such technology as a precautionary measure to prepare for the worst, their opponents interpret the principle as calling for caution with potentially dangerous technology (Reynolds and Fleurke 2013; Winter 2011, 281). As will be discussed in more detail below, the latter view is more convincing in light of the treaties’ spirit, but it would not be surprising if the former was embraced by states or other actors that wish to use such technology.

4With the London Convention and Protocol and the Convention on Biological Diversity, two treaty regimes have specifically regulated certain emergency technologies. Concretely, these two regimes have adopted resolutions providing precautionary moratoria on (marine) geoengineering while still allowing certain research activities (LC/LP Resolution LC-LP.1; CBD Decision IX/16; CBD Decision X/33). The LP parties even went as far as adopting new rules on marine geoengineering designed to become legally binding through amendments to the Protocol (LP Resolution LP.4(8)). While this means that ocean fertilisation suffers from somewhat less uncertainty than the two other case studies, the lack of legal bindingness of the resolutions and the low ratification rate of the LP amendment – and even the LP itself – entail that current regulation is far from a clear, universally accepted moratorium.

5Overall, the potentially applicable legal regimes are highly ambiguous towards emergency climate technologies, notably because many regimes contain both rules that favour them and others that restrict them. This is particularly the case of the climate change regime, the regime that might most easily be applied to the whole range of climate emergency technologies. Concretely, both the UNFCCC and the Paris Agreement contain provisions that call for precaution and provisions that can be read as encouraging or facilitating emergency climate technologies and research into them. Due to its bottom-up logic, the Paris Agreement is also particularly open to accommodating technologies that depart from traditional mitigation and adaptation strategies. The bottom-up approach might make it easier for such technologies to find their way into climate change policies than would be the case in a more top-down system where more substantial consensus on adequate policies would be necessary. At the same time, this makes it more likely that states will seek a consensus on these technologies only once one of the technologies has already been deployed by a state (Craik and Burns 2016, 13).

6Nonetheless, some consensus on emergency technologies would be necessary if states wished to use the climate regime’s finance and research instruments to advance the technologies. In order to achieve such consensus and more legal certainty, some authors propose negotiating a new treaty, protocol, or amendments to existing treaties (Branson 2014, 200; McGee et al. 2020). Some existing treaty regimes and political fora would offer potential spaces for discussions and negotiations, either for emergency technologies in general or for a single category of them. Besides the climate change regime, the UN Environment Assembly and the ENMOD Convention are the most probable candidates for future debate. Nevertheless, it is far from clear whether discussions can effectively lead to a global consensus. A recent attempt at initiating regulation at UNEA has failed, notably due to widely diverging views on the role of the precautionary principle in such regulation and the objectives of regulation more generally (Jinnah and Nicholson 2019). It is also questionable if a single regime for large-scale climate technologies is possible or if it is more realistic to regulate certain technologies under specific treaty regimes, as the LC/LP did for ocean fertilisation (Redgwell 2011, 188-189).

2. Technology Yes, But Not at All Costs (Yet)

7Many relevant legal regimes are generally technology-friendly and a priori not opposed to technological fixes as solutions to the problems they seek to address. Notably, the climate change regime encourages the use of technologies for mitigation and adaptation, which it advances through the facilitation of research and by financing such technologies. Article 10 of the Paris Agreement directly confirms this stance by “noting the importance of technology for the implementation of mitigation and adaptation actions under this Agreement” (art. 10(2)). Similarly, the LRTAP Convention encourages technologies as solutions to atmospheric pollution. The Convention promotes researching technology to address pollution and using the best available and economically feasible technologies (arts. 6-7).

8The regimes that have attempted to regulate large-scale climate interventions directly do not fundamentally question the use of technology as solutions for climate change and environmental problems either. The London Protocol’s welcoming stance towards technological solutions to climate change is notably visible in its amendments, adopted in 2006 and 2009, that permit carbon sequestration in the oceans and the export of carbon dioxide for such sequestration (LP Resolution LP.1(1); LP Resolution LP.3(4)). The CBD also offers a technology-friendly stance, which is notably visible in its provisions on technology transfer that reflect the view that technologies may benefit “the conservation and sustainable use of biological diversity” (art. 16(1)).

9Techno-fixes are often criticised for not sufficiently taking into account underlying root causes and socioeconomic aspects of the problems to be solved (Scott 2012, 161). For example, climate technologies can be criticised as techno-fixes for not questioning current power structures and consumerist economic models (Scott 2012, 161). International law might guard against this danger by requiring explicit consideration of such underlying dynamics. The UNFCCC and the Paris Agreement, by focussing on mitigation, paint climate change as a primarily physical problem that can be solved by technical means (Hulme 2011, 264-265; Saab 2019, 61-63). However, these two treaties also contain references to socioeconomic conditions that states have to consider when deciding on their climate change policies. For example, the UNFCCC calls on parties to minimise “adverse effects on the economy, on public health and on the quality of the environment” from measures to combat climate change (art. 4(1)(f)). The Paris Agreement’s preamble more explicitly calls for the respect of human rights in such measures (preamble recital 11). To what extent such considerations are concretely taken into account in climate policies will ultimately depend on states’ implementation of the treaties through concrete measures included in their NDCs. The UNFCCC and the Paris Agreement offer them arguments to justify both techno-fixes and approaches that are more integrated with socioeconomic considerations.

10Having considered the law’s stance on techno-fixes in general, I will now turn to the question of how the law sees technologies as emergency solutions. None of the examined regimes explicitly provides for rules or mechanisms to deal with exceptional circumstances that would, for instance, allow prohibited measures to be taken in such situations. However, the customary rules on the state of necessity in the law on state responsibility might indicate when international law considers an emergency to justify deviating from rules of international law (Markusson et al. 2014, 283). The ILC’s draft articles on state responsibility state that necessity can be invoked if an “essential interest” of the state is threatened by a “grave and imminent peril” (ARSIWA, art. 25(1)(a)). It has been suggested that necessity might justify the use of emergency technologies, as climate change might precisely create perils threatening such essential interests (Reynolds 2021, 272). Extreme climate events such as droughts or storms may qualify as perils, notably because long-term events can also trigger the state of necessity if their realisation appears certain (Gabčíkovo-Nagymaros, para. 54).

11However, the applicability of the state of necessity is very limited and “can only be accepted on an exceptional basis” (Gabčíkovo-Nagymaros, para. 51). In particular, the harmful technologies in question would need to be the “only way” to protect the state’s essential interests (ARSIWA, art. 25(1)(a)). This limitation excludes the resort to risky technology as long as mitigation and adaptation are still available to address climate change (Brent 2021, 282-283; Markusson et al. 2014, 284). Moreover, necessity cannot be applied if it involves the breach of another state’s essential interests, which would notably be the case if grave environmental harm resulted from deploying a climate technology (ARSIWA, art. 25(1)(b). See also Brent 2021, 283; Markusson et al. 2014, 284). Finally, a state cannot justify its actions by necessity if it has “contributed to the situation of necessity” (ARSIWA, art. 25(2)(b)). As almost all states worldwide have contributed to the creation of anthropogenic climate change, they would be precluded from invoking the state of necessity to justify their recourse to dangerous climate technology (Markusson et al. 2014, 284). In conclusion, the rules on state responsibility currently do not justify using technologies that violate rules for environmental protection or other rules of international law. The simple invocation of an emergency does not create an easy way out of justifying the legality of using such technologies.

12As neither current treaty regimes nor the law on state responsibility currently allow deviating from rules blocking the use of risky technology, it would be up to future political discussions to allow such deviation in certain emergency situations. Such discussions may either aim at fixing the conditions for the technologies’ exceptional use before their deployment or respond to unilateral deployment by one or several states. The forum chosen for such negotiations would undoubtedly influence the chances of permitting such technologies, as debates at UNEA about the choice of the proper forum for discussion have shown (McLaren and Corry 2021, 28). For instance, if discussions continue under the LC/LP or the CBD, which have already adopted precautionary moratoria, they are likely to focus on the risks of side effects and the precautionary avoidance of these risks. Regulation in the UNFCCC might naturally focus more strongly on the climate effects than on side effects but might still be somewhat sceptical towards interventions that do not fall under the classical categories of mitigation and adaptation to which the regime is committed (Reynolds 2019b, 139). Independently from the chosen forum, such debates are likely to be increasingly influenced by the fear of catastrophe. Fear-based discourses are increasingly frequent in the climate change context and already influence policies by favouring fast and strong interventions (Bianchi and Saab 2019, 352-353; Hulme 2008, 10-11). Particularly if extreme weather events increase, fear might lead policymakers to allow radical technological solutions despite international law’s calls against dangerous environmental interference.

13The fact that the Paris Agreement’s objective is expressed as a temperature target might also facilitate framing and justifying risky technologies as emergency solutions. First, fixing a temperature target instead of a target focused on the emissions or concentration of GHGs makes it easier to justify technologies like SAI that do not address greenhouse gases (Horton, Keith, and Honegger 2016, 5). Second, the Paris Agreement explicitly states that limiting temperature rise to “well below 2 °C” – and ideally below 1.5 °C – “would significantly reduce the risks and impacts of climate change” (art. 2(1)(a)). By fixing a threshold for too high negative impacts of climate change, this provision provides a potential definition of an emergency that would justify recourse to emergency technologies.

14Turning the scientifically and politically determined thresholds of 1.5 °C and 2 °C into law through the Paris Agreement will undoubtedly facilitate arguments in favour of risky technologies once temperature rise approaches these thresholds. As these defined thresholds are quantifiable, arguments will likely be strongly based on climate models. As current climate policies are far removed from the temperature targets, scientists creating such models might soon have no other choice than to include risky technologies in their models to provide any pathway for still reaching the Paris Agreement’s targets (McLaren and Markusson 2020, 395). This would, in turn, make the inevitability of using risky technologies appear scientifically proven. Such legitimisation would perpetuate a series of technological promises, from nuclear power to carbon capture, that have influenced climate models and political target-setting in the past (McLaren and Markusson 2020). The new sense of urgency created by the current mismatch between targets and efforts certainly adds more force to these existing dynamics (Carton et al. 2020, 13).

3. Weak Safeguards Against Distraction from Climate Action

15A frequent reproach against emergency technologies is that their promise might distract from necessary mitigation and adaptation measures – either as a subconscious moral hazard or a deliberate political strategy (Bodansky 2013, 540; Gardiner 2011, 166-168). What does the law do to prevent emergency technologies from distracting from other climate change measures in such ways? For technologies like SAI that do not fit neatly into the categories of mitigation and adaptation, the focus on mitigation and adaptation in the UNFCCC and Paris Agreement may act as a certain safeguard against distraction, as states can hardly credit such other technologies as part of their NDCs. Thus, states cannot simply replace adaptation and mitigation with SAI to fulfil their obligations under the Paris Agreement. However, climate change law seems relatively welcoming towards other emergency technologies. For technologies like ocean fertilisation that remove GHGs from the atmosphere, the agreements explicitly allow them to be used as sinks to compensate for emissions and thus to avoid further emissions reductions (Paris Agreement, art. 4(1)). Similarly, there is not much in the law to guard against the promise of artificial islands downplaying the need for mitigation to avoid sea-level rise and the need for other adaptation measures concerning sea-level rise.

16Some of the few legal regimes that have engaged explicitly with emergency technologies have included language that underlines the primacy of mitigation and adaptation and calls on states not to use new technologies to replace these two cornerstones of climate policy. While the earlier resolutions of the LC/LP and CBD do not address the distraction problem, the London Protocol’s amendment on ocean fertilisation directly states in its preamble that “ocean fertilization and other types of marine geoengineering should not be considered as a substitute for mitigation measures to reduce carbon dioxide emissions” (LP Resolution LP.4(8), preamble recital 11). This statement not only establishes the LP parties’ expectation that geoengineering is no substitute for mitigation but also implies that the use of such technologies might be appropriate in an emergency when mitigation does not suffice any more (Ginzky and Frost 2014, 91). The latest CBD decisions on geoengineering similarly emphasise the primacy of mitigation measures under the UNFCCC (CBD Decision XI/20, para. 4; CBD Decision XIII/14, para. 3). However, discussions in the UNEA have shown that the primacy of mitigation over geoengineering is not uncontroversial. The Swiss draft for a resolution on geoengineering contained a preambular paragraph noting the “urgent and prior need” for more emissions reductions and that geoengineering “should not be seen as an alternative to mitigation efforts” (Switzerland 2019, PP2). Certain states, notably the United States and Saudi Arabia, opposed excluding the use of geoengineering technologies as substitutes for mitigation as well as the resolution’s emphasis on precaution (McLaren and Corry 2021, 29).

17While statements underlining the primacy of mitigation over geoengineering activities convey the involved state parties’ resolve to not let the promise of such technologies as a plan B derail their efforts on emissions reductions, the resolutions containing these statements might overall have the opposite effect. By directly addressing emergency technologies, international bodies implicitly confirm the relevance of these technologies and confirm that their future use is a genuine possibility. This explicit treatment might reinforce states’ perception that emergency technologies are available as a plan B and thus remove some urgency from the need for mitigation. Moreover, by initiating discussions on governance of climate-altering technologies in multilateral fora, the discussion shifts from the fundamental question of whether such technologies should be considered at all to the conditions under which they can be used – the first question being implicitly answered in the affirmative (Scott 2013, 116).

18The shift of debates towards the conditions of use is particularly apparent if the newly created regulation allows for research into these risky technologies as the London Protocol and CBD do (Scott 2013, 116). These two regimes still allow for research into climate engineering technologies under certain conditions (LP Resolution LP.4(8), annex 4, para. 1.3; CBD Decision X/33, para. 8(w)). By allowing such research, the LP and CBD might inadvertently facilitate the technologies’ future use, as investments in research may lead to a lock-in effect (Burger and Gundlach 2018, 279-280). Moreover, the two moratoria’s approval of research might be interpreted as an intent to leave the door open for using these technologies in case of emergency and to actively prepare for such emergency use. This interpretation is confirmed by the two regimes’ statements that “knowledge on the effectiveness and potential environmental impacts of ocean fertilization is currently insufficient to justify activities other than legitimate scientific research” (LC/LP Resolution LC-LP.1, preamble recital 6 (emphasis added)) and the fact that they aim to forbid the technologies’ deployment “until there is an adequate scientific basis on which to justify such activities” (CBD Decision X/33, para. 8(w)). In conclusion, by offering no or weak safeguards against distraction from mitigation and adaptation, international law enables the promise of emergency technologies as a backup plan to delay climate action (McLaren and Markusson 2020, 395-396). This delay may, in turn, increase emergency-like climate events in the future and thus strengthen emergency arguments for the use of such technologies.

4. The Precautionary Dilemma: Distraction Rather Than Real Dilemma?

19One of the central legal ambiguities identified in the literature about large-scale technological climate interventions concerns the precautionary principle. As both large-scale climate technologies and climate change involve significant environmental risks, some authors ask “which way the principle cuts” (Bodansky 2013, 542). The analysis of the law applicable to the three case studies confirms that certain regimes leave the door open for conflicting definitions of the precautionary principle. However, the bigger picture shows that, in light of the object and purpose of the relevant environmental and climate treaties, these instruments’ calls for precaution must be interpreted as opposing the use of risky technology for addressing climate change. Their spirit can be aptly described with the maxim in dubio pro natura (see Trouwborst 2007, 187).

20The fact that the mention of precaution in resolutions concerning large-scale climate technologies was opposed vocally by states interested in using those technologies seems to confirm the reading that this principle opposes these technological solutions rather than encouraging them (see Jinnah and Nicholson 2019, 877). This interpretation of the precautionary principle is further corroborated by the LC/LP and the CBD, which have used the precautionary principle to justify moratoria against risky emergency technologies. In the same vein, the ILC’s project on the protection of the atmosphere confirms that large-scale atmospheric interventions against climate change are subject to “prudence and caution” (Protection of the Atmosphere: Texts and Titles of the Draft Guidelines and Preamble Adopted by the Drafting Committee on Second Reading 2021, guideline 7). The fact that guideline 7 was included in the ILC’s draft guidelines is particularly significant given the project’s relatively conservative methodology, which generally avoids the progressive development of international law (Mayer 2019, 467-469 and 492).

21A particularly striking confirmation that international law does not favour taking significant environmental risks to address another such risk can be found in the law of the sea. Article 195 of the UNCLOS provides that “[i]n taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another”. While this provision is only directly applicable to marine activities such as ocean fertilisation, the general rule that it conveys has the potential to serve as a benchmark for various types of large-scale climate technologies. For example, if the rule were applied to the atmosphere, SAI would violate it, as this technology transforms pollution from GHGs into pollution from sulphur or similar chemicals. Read more broadly, the principle might also be used to oppose artificial islands, as their construction similarly involves turning one environmental problem into another by creating new environmental hazards while alleviating some of the effects of sea-level rise.

22Currently, the potential of article 195 is not even used in regulating ocean fertilisation, where the provision is directly applicable, as none of the LC/LP documents on the issue mention the provision. If adopted more largely and broadly by the international community, however, the principle of article 195 of the UNCLOS might be a valuable lens to assess proposals for emergency technologies. The previously discussed rules on the state of necessity in the law on state responsibility further confirm the appropriateness of this rule. The aim of the rules on necessity is precisely to define when an essential interest justifies the breach of a rule of international law, i.e. when creating a new hazard is justified to prevent another. Whenever the conditions to trigger the state of necessity are not fulfilled, creating harm to prevent another is prohibited.

23Given the clear stance of precautionary law against risky emergency technologies, presenting the precautionary principle’s attitude towards such technologies as being ambiguous due to a “precautionary dilemma” is not as substantiated as it might seem at first sight. Painting the picture of such a dilemma dilutes and distracts from precautionary calls to refrain from risky technological experiments. The narrative of the precautionary dilemma and risk/risk trade-offs surrounding climate emergency technologies have the effect of delegitimising the precautionary principle and conclusions based on it that oppose risky technologies. Some authors use such a dilemma to argue that precaution is insufficient or useless to regulate risky climate technologies (Bodle 2013, 460). One may thus wonder whether the narrative of a precautionary dilemma is in fact part of a deliberate attempt to weaken the credibility of existing regulation efforts that are based on a precautionary approach and to keep the door open for legal and political arguments in favour of such risky technologies.

24In practice, the fact that a wide array of regimes is available to regulate emergency technologies might weaken the strong precautionary stance of some legal regimes. Even ocean fertilisation, over which the LC/LP has visibly attempted to claim “ownership”, is subject to rules from other regimes. Most notably, climate change law is significant for the fate of ocean fertilisation, as it determines whether such activities can be counted as mitigation measures and whether the carbon removed by them can be traded to compensate for GHG emissions. Because of this multitude of relevant regimes, even if a precautionary regime attempts to regulate emergency technologies, other regimes with different objectives might undermine its efforts. The debate at UNEA about the Swiss draft resolution on geoengineering has proven that the apparent consensus reached in adopting the moratoria in the LC/LP and the CBD is fragile and far from being universally regarded as constituting genuine moratoria (Jinnah and Nicholson 2019, 877). Overall, states seem to be conflicted and hesitant about the approach and regime they prefer to regulate emergency climate technologies. While resolutions have been passed in the LC/LP and the quasi-universal CBD, very few states have signed up to the ocean fertilisation amendment to the LP, which is the only specific and binding regulation of an emergency technology (Overview of the Status of the London Convention and Protocol and Their Respective Amendments 2019; Acceptance by Germany of the 2013 Amendments 2020).


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