ENGINEERING A SOLUTION TO CLIMATE

CHANGE: SUGGESTIONS FOR AN

INTERNATIONAL TREATY REGIME
GOVERNING GEOENGINEERING
Vishal Garg

TABLE OF CONTENTS
I. Introduction ......................................................................................... 198
II. Background ......................................................................................... 199
A. What Is Geoengineering? ............................................................ 199
B. International Environmental Law ................................................ 202
1. The Transboundary Harm Principle ...................................... 202
2. The Precautionary Principle .................................................. 203
3. The Environmental Modification Convention (ENMOD)..... 204
4. Convention on Biological Diversity X/33 Decision .............. 204
5. The London Convention / London Protocol
Assessment Framework ......................................................... 205
III. Analysis ............................................................................................... 206
A. The Shortcomings of Current International Law in
Regulating Geoengineering ......................................................... 206
B. Specific International Laws and Principles ................................. 207
1. The Transboundary Harm Principle ...................................... 207
2. The Precautionary Principle .................................................. 209
3. ENMOD ................................................................................ 210
4. CBD X/33 Decision............................................................... 211
5. The LP/LC Assessment Framework ...................................... 211
IV. Recommendations ............................................................................... 212
A. Environmental Impact Assessments ............................................ 212
B. Transparency, Notification, and Consultation ............................. 214
C. Dispute-Resolution Mechanisms ................................................. 216
D. Substantive Law .......................................................................... 217
V. Conclusion .......................................................................................... 218

 J.D., University of Illinois College of Law, May 2013. M.A., Philosophy, Western Michigan
University, May 2010. B.A., Philosophy, University of Michigan, May 2007. I would like to thank Prof.
Lesley Wexler for her excellent feedback throughout the writing process, Joshua Gross for his editorial advice,
and the entire JLTP staff. I would also like to thank my family for their unconditional support throughout my
academic career and Kristin Troy for her love and support.

197
198 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

I. INTRODUCTION
Global climate change threatens to seriously and irreversibly impact
Earth’s climate in ways that scientists are just beginning to understand.1 The
effects of climate change are likely to have devastating consequences for
humans and the ecosystems upon which they depend.2 As a global problem,
climate change requires an international response.3 However, economic
disincentives, combined with the temporal and spatial complexities inherent to
climate change, have interfered with the international community’s ability to
adequately respond to the problem.4 Exacerbating the difficulty in combating
climate change is the presence of positive feedback loops—mechanisms by
which greenhouse gas emissions lead to environmental changes that drive
further climate change.5 The international community’s proposed solution to
climate change, abating greenhouse gas emissions, has largely been
ineffective, leading many to consider alternatives in the form of
geoengineering.6
In recent years, geoengineering has become attractive as an option to
mitigate the effects of climate change, gaining broad public support.7
Geoengineering, the practice of international large-scale environmental
manipulation, would combat climate change by modifying the climate rather
than by reducing greenhouse gas emissions.8 Geoengineering proposals
generally involve reflecting solar radiation to offset the effect of greenhouse
gases or removing greenhouse gases from the climate.9
Advocates of geoengineering argue that conventional climate policy
options are too slow to effectively combat climate change, necessitating a new
approach to solving the problem.10 The costs of geoengineering are likely to
be significantly lower than the costs of reducing greenhouse gas emissions;11 in

1. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS REPORT

45–54 (2007).
2. Id. at 48–53.
3. Eric Biber, Climate Change and Backlash, 17 N.Y.U. ENVTL. L.J. 1295, 1297 (2009).
4. See Cinnamon P. Carlarne, Arctic Dreams and Geoengineering Wishes: The Collateral Damage of
Climate Change, 49 COLUM. J. TRANSNAT’L L. 602, 606–07 (2011) (“[T]he problem of climate change is
further complicated by temporal and special complexities that have prompted it to be labeled as a ‘super
wicked problem.’”).
5. Id. at 638 (“[G]eoengineering and Artic governance questions converge around questions of
positive feedback . . . .”).
6. Jay Michaelson, Geoengineering and Climate Management: From Marginality to Inevitability, 46
TULSA L. REV. 221, 230–33 (2010).
7. Institute of Physics, Public Support for Geoengineering Research, Survey Finds, SCIENCEDAILY
(Oct. 25, 2011), http://www.sciencedaily.com/releases/2011/10/111024084714.htm.
8. Alan Carlin, Why a Different Approach Is Required if Global Climate Change Is to Be Controlled
Efficiently or Even At All, 32 WM. & MARY ENVTL. L. & POL’Y REV. 685, 734–36 (2008).
9. Catherine Redgwell, Geoengineering the Climate: Technological Solutions to Mitigation–Failure
or Continuing Carbon Addiction?, 2 CARBON & CLIMATE L. REV. 178, 179 (2011).
10. Thomas Homer-Dixon, Paper delivered at the American Political Science Association Annual
Meeting: Nonlinearity, Uncertainty, and Time Lags: Why We Must Start Planning Now to Geoengineer Earth
Soon (Aug. 30, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1450781.
11. See id. at 8 (“[T]he effort would cost only a tiny fraction of the expense of meaningful efforts to
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 199

fact, geoengineering may be among the least expensive policy options to

reduce climate change.12 Additionally, geoengineering projects do not require
the same level of globally coordinated action as efforts to reduce emissions.13
Rather, a single country or a small group of countries with sufficient technical
and financial resources could carry out an entire geoengineering project.14 A
geoengineering project to resolve the harms associated with global warming
may therefore become an appealing option if international agreements to
reduce greenhouse gas emissions continue to fail to meet their goals.
This Note examines the international law that could govern
geoengineering programs. It concludes that, because geoengineering has the
potential to cause widespread climatological problems affecting several
nations, international law must require that geoengineering be done on a multi-
lateral scale and that geoengineering programs adhere to sound principles of
international environmental law.
Part II of this Note examines geoengineering in detail and discusses
current widely accepted international environmental law that might apply to
geoengineering. Part III surveys the ways in which current international law
might regulate geoengineering and argues that current international law is
insufficient to avoid the potential hazards geoengineering poses. Part IV
suggests a framework that adopts concepts and principles from international
law that would be necessary for any geoengineering treaty regime. The
framework proposed in Part IV is designed to ensure that the risks of
geoengineering are fully evaluated and mitigated prior to the start of any major
geoengineering project, provide a mechanism to encourage information sharing
which enhances compliance and avoids disputes, establish procedures by
which disputes can be resolved, and create substantive norms governing the
potential harms caused by geoengineering.

II. BACKGROUND
This Part provides background information regarding geoengineering and
applicable international law. Subpart A discusses the definition of
geoengineering, the kinds of activities that fall under the umbrella term
“geoengineering,” and the potential harms associated with geoengineering.
Subpart B discusses current international law that might be applicable to the
geoengineering activities of states that are parties to the relevant conventions.

A. What Is Geoengineering?

Geoengineering includes “any technologies that deliberately reduce solar

reduce man’s carbon emissions.”).

12. See generally Michaelson, supra note 6, at 243 (discussing how climate management may be the
least expensive strategy against climate change).
13. See Alan Carlin, Implementation & Utilization of Geoengineering for Global Climate Change
Control, 7 SUSTAINABLE DEV. L. & POL’Y 56, 57 (2007) (discussing the various geoengineering
implementation phases).
14. Id.
200 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

inslation [sic] or increase carbon sequestration from the atmosphere on a large

scale. . . .”15 The distinction between geoengineering and more conventional
methods of combating climate change is that geoengineering focuses on
mitigating the harms of climate change, whereas standard approaches to
climate change concentrate on decreasing greenhouse gas emissions.16
Geoengineering includes various types of projects.17 Current proposed
geoengineering projects generally fall into two types.18 The first kind of
geoengineering project involves albedo modification, the process of increasing
the reflection of light entering the atmosphere, thus decreasing energy
absorption.19 Albedo modification can include a variety of different
processes.20 The most widely discussed method of albedo modification
involves using stratospheric sulfate aerosols, which reflect sunlight away,
thereby substantially reducing the solar radiation that reaches the earth’s
surface.21 A second albedo modification method involves using aerosols in a
process called cloud-seeding, creating clouds to reflect sunlight.22 A third
approach to albedo modification would use space-based technology to reflect
solar radiation before it enters the atmosphere.23
A second type of geoengineering involves sequestration of greenhouse
gases such as carbon dioxide (CO2).24 Such removal can take place through
modification of terrestrial ecosystems,25 modification of oceanic ecosystems,26
or through the use of technology to remove greenhouse gases from the
atmosphere.27 Terrestrial ecosystem modification approaches generally
involve intensive forest management to increase the rate of CO2 removal from
the atmosphere.28 Oceanic ecosystem modification proposals involve
fertilizing the ocean with phosphate or iron, both of which stimulate algae

15. Conference of the Parties to the Convention on Biological Diversity, Nagoya, Japan, Oct. 18–29,
2010, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its
Tenth Meeting, 5 n.2, U.N. DOC. UNEP/CBD/COP/DEC/X/33 (Oct. 29, 2010) [hereinafter Convention on
Biological Diversity Dec. X/33].
16. See Alan Carlin, Global Climate Change Control: Is There a Better Strategy than Reducing
Greenhouse Gas Emissions?, 155 U. PA. L. REV. 1401, 1450–64 (comparing conventional approaches for
controlling climate change, which involve reducing emissions, with geoengineering techniques, which involve
carbon sequestration or deflection of solar radiation).
17. See Finbarr Sheehy, Geoengineering Projects Around the World – Map, GUARDIAN (July 17, 2012,
9:44 PM), http://www.theguardian.com/environment/graphic/2012/jul/17/geoengineering-world-map
(introducing various geoengineering projects around the world).
18. See About Geoengineering, INTEGRATED ASSESSMENT OF GEOENGINEERING PROPOSALS,
http://www.iagp.ac.uk/about-geoengineering (last visited Mar. 5, 2014) (discussing the two types of
geoengineering approaches).
19. David W. Keith, Geoengineering the Climate: History and Prospect, 25 ANN. REV. ENERGY &
ENV’T 245, 261 (2000).
20. William C.G. Burns, Geoengineering the Climate: An Overview of Solar Radiation Management
Options, 46 TULSA L. REV. 283, 289–96 (2010).
21. Id. at 289.
22. Keith, supra note 19, at 261–63.
23. Burns, supra note 20, at 294.
24. Keith, supra note 19, at 264.
25. Id. at 265.
26. Id. at 265–67.
27. Carlin, supra note 16, at 1456–57.
28. Id. at 1447.
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 201

growth.29 Because algae absorbs CO2 from the atmosphere and eventually
falls to the ocean floor, increased algae growth would increase the amount of
CO2 sequestered at the bottom of the ocean floor.30 Technological approaches
to greenhouse gas sequestration involve removing CO2 from the atmosphere
using artificial means and storing it in geological formations.31
The key feature of both these types of proposals is that they would
mitigate the impact of CO2 and other greenhouse gases on the environment
without decreasing overall greenhouse gas emissions.32 Thus, for the purposes
of this Note, we can understand geoengineering as any large-scale
environmental manipulation designed with the purpose of mitigating the
effects of climate change without decreasing greenhouse gas emissions.
Though geoengineering projects are diverse and each project is unique in
its own way, this Note focuses on similarities that all such projects share.
First, geoengineering projects can be done by a single country or a small group
of countries.33 Second, geoengineering can be utilized relatively
inexpensively.34 Third, as other climate change strategies continue to fail to
reach emissions benchmarks, the appeal of geoengineering will continue to
increase.
However, while geoengineering offers significant promise, it also has the
potential to create numerous significant environmental risks.35 In a worst-case
scenario, a geoengineering project could fail to mitigate any of the harms from
climate change while simultaneously creating side effects with worldwide
implications.36 Because geoengineering projects cannot be tested physically
on a large scale,37 the risks of geoengineering remain unknown. However,
those risks could include severe and irreversible impacts on biodiversity.38
While the risks of different projects are diverse, it is worthwhile to consider the
risks posed by the two most popularly suggested geoengineering projects:
ocean iron fertilization (with the goal of removing CO2 from the atmosphere)
and the placement of reflective particles in the stratosphere (with the goal of
reflecting sunlight).
Risks of ocean fertilization include the possibility of severe changes in
marine food webs and reduced productivity in areas that are down-current from

29. Id.
30. Id.
31. Id. at 1446.
32. Keith, supra note 19, at 279.
33. Hadi Dowlatabadi, Scale and Scope in Integrated Assessment: Lessons from Ten Years with ICAM,
in SCALING IN INTEGRATED ASSESSMENT 51, 70 (Jan Rotmans & Dale S. Rothman eds., 2003).
34. See Michaelson, supra note 6, at 243 (discussing how costs related to geoengineering are
decreasing and not of great concern anymore).
35. See Alan Robock, 20 Reasons Why Geoengineering May Be a Bad Idea, 64 BULL. ATOMIC
SCIENTISTS, MAY/JUNE 2008, at 14, 14–18, available at http://climate.envsci.rutgers.edu/pdf/20Reasons.pdf
(listing and expounding on possible risks associated with geoengineering).
36. See Keith, supra note 19, at 274 (noting that some side effects of CO2 control include “loss of
biodiversity or loss of aesthetic value that may arise from manipulating ecosystems to capture carbon . . . .”).
37. See Robock, supra note 35, at 17 (discussing difficulty in testing projects on a large scale).
38. Pat Mooney et al., Darken the Sky and Whiten the Earth – The Danger of Geoengineering, WHAT
NEXT VOL. III, Sept. 2012, at 210, 227.
202 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

the fertilized area.39 Because fertilization must take place in the ocean, these
risks pose problems of transboundary harm; that is, the nation undertaking the
project to fertilize the ocean with iron may cause harm to the environment and
economy of other nations.40 Additionally, the production of various chemicals
resulting from ocean fertilization could have significant impacts on
atmospheric chemistry and global climate, and thus affect nations whose
economics do not rely on the ocean.41
The placement of reflective particles in the atmosphere also carries severe
risks. Such placement is likely to have differential effects; it is not likely to
reduce sunlight equally around the globe, resulting in equatorial regions
experiencing increased drought.42 Additionally, the reflective particles (most
likely sulfate) will eventually come back to earth, and will have the potential to
cause global pollution.43 The risks of geoengineering make it imperative that
some international framework govern implementation of projects to engineer
the climate.

B. International Environmental Law

There is a great deal of international law that could potentially govern
geoengineering. Such law includes multilateral treaties and other international
agreements as well as general principles of international environmental law.
This subpart discusses the ways in which extant international environmental
law applies to geoengineering. It focuses on five aspects of international law
that may be relevant to geoengineering: the transboundary harm principle, the
precautionary principle, the Environmental Modification Convention, a
decision from the Convention on Biological Diversity regarding
geoengineering, and the London Convention / London Protocol’s Assessment
Framework on ocean fertilization. These five pieces of international law
provide a fairly comprehensive framework of the international law potentially
applicable to geoengineering.

1. The Transboundary Harm Principle

The Transboundary Harm principle is one of the most significant

customary principles of international environmental law.44 Its origins in
international environmental law can be found in the Trail Smelter case, where
an arbitral tribunal found Canada liable for pollution that entered the United
States.45 It can be found in a variety of international treaties, including
Principle 2 of the Rio Declaration46 and Principle 21 of the Stockholm

39. Id. at 232.

40. Id. at 227–28.
41. Id.
42. Id. at 235.
43. Id.
44. P.M. DUPUY, INTERNATIONAL LAW AND POLLUTION 61, 64 (1991).
45. Id.; Trail Smelter (U.S. v. Canada), 3 R.I.A.A. 1905, 1921–25 (Int’l Joint Comm’n) (1938).
46. United Nations Conference on Environment and Development, Rio de Janeiro, Braz., June 13,
1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF. 151/5/Rev.1, 876 (June 14,
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 203

Declaration.47 Both treaties impose a norm on nations to avoid causing

damage to areas outside of a state’s jurisdiction.48 However, neither the Rio
Declaration nor the Stockholm declaration imposes liability on states; instead,
both call for additional development of international law to give fuller content
to the principle.49 Such development has come from the International Law
Commission, which has imposed obligations of prevention and cooperation
among states while requiring states to engage in extensive information sharing
and consultation to avoid transboundary harm.50
The transboundary harm principle can be thought of as having two
elements. First, an activity must be attributable to a state; second, the effects
from the activity must be shown to cause harm outside of the state.51
Therefore, establishing that a geoengineering project violates the
transboundary harm principle would require proving that the geoengineering
activity would need to be attributable to the state (or states) in question and
that the activity’s effects are the cause of the harm that occurred outside the
state’s boundaries.52 Where both elements are proven, remedies might include
legal obligations upon the violating state to cease the geoengineering activity
and make restitution for the injury caused.53

2. The Precautionary Principle

The Precautionary Principle (sometimes called the Precautionary
Approach) can be loosely stated as the notion that precaution should be taken
when embarking on potentially risky activities.54 While the principle has been
understood in multiple different ways,55 the general approaches governing
application of the precautionary principle can be understood in two ways: the
weak precautionary principle and the strong precautionary principle.56 The
weak precautionary principle permits action to be taken even where risks are
not fully known, so long as the action is done to avoid serious irreversible
damage.57 The strong precautionary principle suggests that action should be

1992) [hereinafter Rio Declaration].

47. United Nations Conference on the Human Environment, Stockholm, Swed., Declaration of the
United Nations Conference on the Human Environment, A/CONF.48/14 (June 5–16, 1972) [hereinafter
Stockholm Declaration].
48. Id.; Rio Declaration, supra note 46.
49. Rio Declaration, supra note 46 (citing to Principle 2); Stockholm Declaration, supra note 47 (citing
to Principle 22).
50. INTERNATIONAL LAW COMMISSION, DRAFT ARTICLES ON PREVENTION OF TRANSBOUNDARY HARM
FROM HAZARDOUS ACTIVITIES, ILC REP. 370, 371–74 (2001).
51. Id.
52. Id.
53. Id.
54. Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851,
851 (1996).
55. See R.B. Stewart, Environmental Regulatory Decision-Making Under Uncertainty, 20 RES. L. &
ECON. 76, 76 (2002) (identifying multiple versions of the precautionary principle and arguing that those
different versions can be reduced to four basic versions of the precautionary principle).
56. Stephen M. Gardiner, A Core Precautionary Principle, 14 J. POL. PHIL. 33, 43 (2006).
57. Gregory N. Mandel & James Thuo Gathii, Cost Benefit Analysis Versus the Precautionary
Principle: Beyond Cass Sunstein’s Laws of Fear, 2006 U. ILL. L. REV. 1037, 1039.
204 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

restricted where risks are not fully known as long as there is a possible
environmental risk.58 The weak version of the principle has been adopted as
part of the Rio Declaration with respect to climate change, and some have
suggested that the Rio Declaration thereby permits the use of geoengineering
as a tool to mitigate climate change, despite the uncertainty of its success.59

3. The Environmental Modification Convention (ENMOD)

The Environmental Modification Convention (ENMOD) restricts the use

of environmental modification technologies.60 ENMOD is part of the law
governing armed conflict.61 Parties to ENMOD agree to refrain from using
hostile environmental modification techniques as a means of injuring other
signatories to the treaty.62 Because ENMOD defines environmental
modification techniques broadly to include nearly any intentional modification
of any part of the environment, it imposes a significant restriction on countries’
ability to engage in projects that have environmental impacts.63 Although
there has been some debate as to the applicability of ENMOD to
geoengineering projects, the more prevalent view is that ENMOD does not
apply to geoengineering carried out in the absence of armed conflict.64 The
text of ENMOD seems to agree with the majority view, since it specifically
excludes from its scope environmental modification techniques when used
with peaceful intentions.65 However, ENMOD’s approach of broadly
restricting environmental modification techniques may serve as a useful
framework for international geoengineering agreements. Scholars who have
recommended using ENMOD as a model for geoengineering agreements have
suggested that such an approach must account for ENMOD’s limited
participation and the fact that its rules have not been applied in practice.66

4. Convention on Biological Diversity X/33 Decision

The only international law that specifically addresses geoengineering is

the Convention on Biological Diversity (CBD), which published a 2010
decision addressing geoengineering.67 The decision, while not binding on
parties to CBD due to its language “inviting” parties to follow it rather than
requiring them to do so, provides guidance on geoengineering as a general

58. Noah M. Sachs, Rescuing the Strong Precautionary Principle from its Critics, 2011 U. ILL. L. REV.
1285, 1295–96.
59. Rio Declaration, supra note 46; Ralph Bodle, Geoengineering and International Law: The Search
for Common Legal Ground, 46 TULSA L. REV. 305, 309 (2010).
60. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques, art.1, Dec. 10, 1976, 31 U.S.T. 333, 1108 U.N.T.S. 151 [hereinafter ENMOD].
61. Bodle, supra note 59, at 312.
62. ENMOD, supra note 60, at Art. I.
63. Id. at Art. II.
64. Bodle, supra note 59, at 312.
65. ENMOD, supra note 60, at Art. III.
66. Bodle, supra note 59, at 312.
67. Convention on Biological Diversity Dec. X/33, supra note 15, ¶ 8(w).
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 205

concept.68 The CBD decision adopted a version of the strong precautionary

principle with respect to geoengineering, finding that no climate-related
geoengineering activities should take place without an adequate scientific basis
to justify those activities.69 However, the drafters excluded forms of carbon
capture from the definition of geoengineering.70
Some have claimed that, despite its non-binding language, this decision
imposes a de facto moratorium on geoengineering activities.71 The decision,
however, contains exceptions that would allow for geoengineering. First, the
decision allows for geoengineering where regulatory mechanisms exist, are
based on science, and are global and transparent.72 Second, geoengineering
activities are allowed when there is an adequate scientific basis for those
activities and environmental risks and their associated impacts are
appropriately considered.73 Third, small-scale scientific studies designed to
study the effects of geoengineering are also exempted.74

5. The London Convention / London Protocol Assessment Framework

The London Convention / London Protocol Assessment Framework for
Scientific Research Involving Ocean Fertilisation (Assessment Framework)
applies specifically to ocean fertilization, one form of geoengineering.75 The
London Convention provides a mechanism by which countries can assess
whether ocean fertilization activities conform to the aims of the London
Convention and London Protocol.76 The Assessment Framework counsels
nations to engage in a four-step process.77 First, an Initial Assessment
determines whether the activity falls within the definition of “ocean
fertilization” and is thus eligible to be evaluated under the Assessment
Framework.78 Second, an environmental assessment examines the
environmental impact and risks of the proposed activity as well as ways to
manage the risk.79 Third, a decision-making step requires countries to
determine whether the process should move forward, notify potentially
affected countries, and obtain consent from those affected.80 Fourth, the
activity should be monitored to determine the impacts of the ocean fertilization
activity and use the information gathered to inform future decision-making

68. Bodle, supra note 59, at 314.

69. Convention on Biological Diversity Dec. X/33, supra note 15, ¶ 8(w).
70. Id. ¶ 8(w) n.2.
71. CBD COP 10 Concludes in Nagoya, MEA BULL. (Int’l Inst. for Sustainable Dev.), Nov. 1, 2010, at
1.
72. Bodle, supra note 59, at 317.
73. Id.
74. Id. at 318.
75. Int’l Maritime Org. [IMO], The Assessment Framework for Scientific Research Involving Ocean
Fertilisation, IMO Assemb. Res. LC-LP.2 (Oct. 14, 2010) [hereinafter Assessment Framework], available at
http://www.imo.org/blast/blastDataHelper.asp?data_id=31100&filename=2010resolutiononAFOF.pdf.
76. Id. at 2.
77. Id. at 2–3.
78. Id. at 5.
79. Id. at 5–19.
80. Id. at 20.
206 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

regarding the activity.81 The Assessment Framework is designed to examine

the scientific basis for the project and determine the extent to which such a
project has scientific merit.82
The preceding discussion of the transboundary harm principle,
precautionary principle, ENMOD, CBD X/33 decision, and Assessment
Framework provides a basis of the major norms and principles of international
environmental law applicable to geoengineering. Part III examines the
applicability of each of these in additional detail, and assesses the degree to
which they could contribute to creating a treaty framework for geoengineering.

III. ANALYSIS
This Part focuses on analyzing the current international law governing
geoengineering, and its successes and failures in avoiding the transboundary
harms that are likely to arise from geoengineering.83 Subpart A argues that
current international law fails to adequately protect against these harms; it also
provides a brief analysis of the ways in which current international law fails.
Subpart B examines the specifics of this failure by considering specific
international legal principles, treaties, and decisions and analyzes those pieces
of international environmental law with a view toward making suggestions for
a robust international framework that could govern geoengineering.

A. The Shortcomings of Current International Law in

Regulating Geoengineering
Current international law, while protecting against some of the harms of
geoengineering, fails to fully protect against the kinds of harms that must be
addressed. First, since geoengineering can take place on a small scale and
projects can be carried out by a few nations to the detriment of others, there
must be some method of allowing for harms to be avoided or, if unavoidable,
then those bearing the harms should be compensated.84 Second, because the
complexity of climatological and ecological sciences do not often permit the
kinds of proof of causation that would be available in other cases,85 the
international law governing geoengineering must allow for some liberalization
in the requirements of proving causation. Third, because harms from
geoengineering may be irreversible,86 international law governing
geoengineering must take a forward-looking approach to geoengineering,
rather than allowing for after-the-fact injunctive relief and damages as the only
available remedies.87 Fourth, because the purpose of geoengineering is to
avoid the harms of climate change, geoengineering projects should be subject

81. Id.
82. Bodle, supra note 59, at 319.
83. See supra Part II.A (discussing the aspects of geoengineering, including its benefits and harms).
84. Carlin, supra note 13, at 57.
85. NICOLAS DE SADELEER, ENVIRONMENTAL PRINCIPLES: FROM POLITICAL SLOGANS TO LEGAL RULES
219 (2002).
86. Mooney et al., supra note 38, at 227.
87. Id. at 226–27.
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 207

to a cost-benefit analysis that considers distributive justice, as the costs of

geoengineering may be borne by countries that are least able to handle them.88
In the remainder of Part III, this Note analyzes the specific current laws
governing geoengineering and shows that, while they do not accomplish the
specifics outlined above, there are ways in which they could be modified to
serve as a starting point for developing a framework for legal norms governing
geoengineering projects.

B. Specific International Laws and Principles

1. The Transboundary Harm Principle

The most significant problem facing application of the Transboundary
Harm Principle to geoengineering involves the difficulty in proving causation.
Application of the Transboundary Harm Principle, which is borrowed from
nuisance law, is generally focused on the sorts of harm where the causal link
between the harm and the cause can be established with sufficient certainty to
impose liability.89
However, in the context of geoengineering, causation will be difficult to
prove. For example, where a geoengineering project involves emitting sulfur
dioxide into the upper atmosphere to reflect sunlight, that sulfur dioxide has
the possibility of increasing the likelihood of acid rain.90 However, while acid
rain is a foreseeable consequence of sulfur dioxide emissions, it will be very
difficult in practice to determine whether any specific instance of acid rain is
the result of sulfur dioxide emissions from a geoengineering project or the
result of atmospheric sulfate from some other cause, thus making it difficult for
countries that are harmed to successfully seek compensation.91 Because of this
difficulty, international law governing geoengineering must adopt an approach
that allows for the difficulties in causation to be surmountable by nations
seeking damages from those countries that enact a major geoengineering
project. The absence of such a requirement would allow countries to
externalize the harms of geoengineering and would violate basic principles of
distributive justice.92
The requirement of proving causation cannot, however, be completely
eliminated from the transboundary harm principle. Rather, the requirements
can be relaxed in ways that are analogous to those used in some domestic tort

88. Id. at 228.

89. See, e.g., Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1905, 1921 (1941) (undertaking an extensive
causation analysis before finding Canada liable for damage to property in the United States).
90. AIRTrends 1995 Summary, ENVTL. PROTECTION AGENCY, http://www.epa.gov/airtrends/aqtrnd95/
acidrain.html (last updated Jan. 5, 2012).
91. See Patrick J. Scully, Proof of Causation in a Private Action for Acid Rain Damage, 36 ME. L. REV.
117, 131 (1984) (“A multitude of variables affects the process through which utility emissions are transformed
into sulfate and nitrate particulates and transported hundreds of miles before finally falling to earth as acid
rain. As a result, it is virtually impossible to trace particular acid rain incidents to individual upwind
sources.”).
92. See id. at 117–18 (arguing that difficulties in proving causation in domestic tort actions operate as
an effective bar to such actions).
208 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

cases. For example, where a country engages in an ocean fertilization

geoengineering project that creates harmful algal blooms downstream, affected
countries harmed by those blooms may be able to avail themselves of an
“alternative” liability theory in which the burden is shifted to polluting
countries to prove that they were not the cause.93 Alternatively, where sulfate
emissions into the atmosphere or the amount of iron deposited into the ocean in
an iron fertilization project are known, a market-share theory of liability (in
which a country engaging in a geoengineering project is responsible for its
share of the harm on the basis of the amount of sulfate/iron it puts into the
environment) may be an effective tool to ensure that countries are only held
liable to the extent justified by their emissions.94
Also worth noting is that a relaxed causation requirement as suggested
here would promote the creation of ex-ante estimates of harm from those
countries interested in enacting a geoengineering project.95 Countries and
private actors that could be held liable for the harms they commit would likely
factor that into their accounting of the costs of geoengineering.96 Because
minimizing harm would reduce costs, this will encourage countries to adopt
projects in a way that minimizes transboundary harm.97
An additional problem with the transboundary harm principle as applied
to geoengineering is that any geoengineering treaty regime must account for
harm to the commons. While codifications of the transboundary harm
principle in international law suggest that harm to the commons is forbidden,
the traditional remedy for such harm involves granting standing to third states
(states not directly affected by the harm).98 However, there is no settled
approach to third state remedies, and it is unclear whether any international
bodies have the authority to engage in the sort of collective decisions necessary
to enact third state remedies in the case of widespread harm to the commons
affecting multiple countries, as would be likely with geoengineering.99 A
complete geoengineering treaty regime thus needs to adopt a version of the
transboundary harm principle that accounts for harms to the commons while
simultaneously creating a body with the jurisdiction and competence to address
those harms.

93. See id. at 132–34 (discussing the possibility of an alternative liability theory for domestic acid rain
torts).
94. See, e.g., Sindell v. Abbot Laboratories, 607 P.2d 924, 937 (Cal. 1980) (providing a test for market-
share liability under which those companies that contribute to the total amount of a fungible product in the
market are held liable to the extent of their contribution).
95. See Lucian Arye Bebchuk, Property Rights and Liability Rules: The Ex Ante View of the Cathedral,
100 MICH. L. REV. 601, 629–631 (2001) (discussing alternative causation rules affecting potential defendants’
investment strategies).
96. Id. at 630.
97. Id.
98. Jonathan I. Charney, Third State Remedies for Environmental Damage to the World’s Common
Spaces, in INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM 149, 175–77 (Francesco Francioni &
Tullio Scovazzi eds., 1991).
99. Jonathan I. Charney, Third State Remedies in International Law, 10 MICH. J. INT’L L. 57, 92 (1989).
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 209

2. The Precautionary Principle

Application of the precautionary principle to geoengineering under

current international law is chiefly problematic for two reasons. First, while
the principle itself has been accepted as a governing international norm, its
precise content is unclear.100 Second, different international legal regimes
mandate different applications of the principle.101
The precautionary principle has been used to resolve international
disputes governing the legality of state actions.102 However, the principle itself
is disputed as a rule of law, and its content and the consequences of violating it
have not been clarified.103 Questions regarding the application of the
precautionary principle include questions about its specific content, its
functions, and whether application of it requires specific regulatory
approaches.104 Further complicating the application of the precautionary
principle is that different versions of it have been enacted and used in different
places in environmental law.105
The weak precautionary principle, which allows actions to go forth when
their purpose is to avoid an irreversible harm, permits geoengineering
activities.106 The Rio Convention, which allows for the weak precautionary
principle to govern efforts to mitigate climate change, would therefore allow
geoengineering projects to move forward without restrictions because such
projects promise the possibility of mitigating the harms of climate change.107
The strong precautionary principle, on the other hand, suggests that
projects should not move forward when their potential environmental costs are
unknown.108 Thus, because the potential environmental costs of
geoengineering projects cannot be known with certainty, the strong principle
would likely serve as a bar to geoengineering activities. The CBD X/33
decision, which adopts a strong version of the precautionary principle, would
prohibit geoengineering because any geoengineering project significant enough

100. Simon Marr, The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation
and Management of Fish Resources, 11 EUR. J. INT’L L. 815, 816, 821 (2000).
101. See id. at 823–28 (discussing various approaches different legal entities have taken in interpreting
the precautionary principal).
102. Southern Bluefin Tuna Case (Austl. & N.Z. v. Japan), Award on Jurisdiction and Admissibility, at
33–34 (Arbitral Tribunal constituted under Annex VII of the United Nations Convention for the Law of the
Sea 2000), available at https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublications
RH&actionVal=ViewAnnouncePDF&AnnouncementType=archive&AnnounceNo=7_10.pdf (applying the
precautionary principle, at the request of the parties, to a dispute regarding overfishing of Bluefin Tuna).
103. Marr, supra note 100, at 816.
104. Lothar Gundling, The Status in International Law of the Principle of Precautionary Action, 5 INT’L.
J. ESTUARINE & COASTAL L. 23, 25–30 (1990).
105. See EDITH BROWN WEISS ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 314 (2007)
(“Various versions of the principle have been included in resolutions of the UN Environment Programme, the
Paris and Oslo Commissions, the London Dumping Convention, the Caribbean and Mediterranean Regional
Seas Programmes, and the Commission for the Conservation of Antarctic Marine Living Resources
(CCAMLR), among others.”).
106. See supra Part II.B (describing the areas of international law that could potentially govern
geoengineering).
107. Rio Declaration, supra note 46.
108. Geoengineering the Climate: Science, Governance and Uncertainty, ROYAL SOCIETY (Sept. 1,
2009), http://royalsociety.org/policy/publications/2009/geoengineering-climate/.
210 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

to have a meaningful impact on climate change would also carry significant

risks of environmental harm.109
Neither version of the principle offers a complete approach to
geoengineering; the magnitude of the harms associated with climate change
counsel against using too strong a version of the precautionary principle.
Because geoengineering cannot be tested on a large scale prior to deployment,
scientific certainty regarding potential harms can never be complete enough to
satisfy the requirements of a strong version of the precautionary principle.
However, a weak version of the principle fails to account for the significant
possibilities of harm from geoengineering projects. Thus, some sort of middle
ground is needed that would permit geoengineering to move forward while
also recognizing the potentially significant harms that could occur.
Additionally, because the principle lacks content to be fully applied under
current international law, any treaty regime governing geoengineering must
adopt a robust version of the principle that takes this middle-ground approach.
Because the strong precautionary principle puts too much weight on the
potential costs of geoengineering, and the weak precautionary principle
overemphasizes the benefits, a potential middle ground could be found through
cost-benefit analysis. By requiring a scientifically viable cost-benefit analysis
weighing the potential benefits of a geoengineering project (in terms of
mitigation against climate change) against its potential risks (in terms of
transboundary harm), international law would help to ensure that the only
geoengineering projects that move forward would be able to resolve harms
from climate change without simultaneously creating new, more severe
harms.110 This Note goes into more detail about the specifics of such a cost-
benefit approach in Part IV.

3. ENMOD
While ENMOD’s status as a wartime legal norm would prevent it from
being used to govern geoengineering projects designed to mitigate the effects
of climate change,111 it could serve as a valuable check on ensuring that
technologies created through geoengineering would not become weaponized.
Because geoengineering technologies carry a significant possibility of harm to
other nations, those nations engaging in geoengineering research might wish to
weaponize their technology.112 Furthermore, because even small countries or
non-state actors could weaponize geoengineering technology,113 it is possible
that the actors using weaponized geoengineering would not be parties to
ENMOD, and thus not fall within the reach of its jurisdiction.
Additionally, because it may be unclear whether a particular
geoengineering technology will be used to combat climate change or as a

109. Convention on Biological Diversity Dec. X/33, supra note 15, at ¶ 8(w).
110. See infra Part IV (laying out a comprehensive framework for a geoengineering treaty).
111. Bodle, supra note 59, at 310.
112. Jamais Cascio, Battlefield Earth, FOREIGN POLICY (Jan. 28, 2008), http://www.foreignpolicy.com/
articles/2008/01/27/battlefield_earth.
113. Id.
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 211

weapon, countries may not realize until after the harmful technology has been
deployed that ENMOD applies.114 Thus, international law needs a mechanism
to monitor the development of geoengineering technologies to ensure peaceful
intentions on the part of the country enacting a geoengineering project. Such
mechanisms may include transparency, international cooperation on
geoengineering technology, and extensive monitoring of countries engaging in
geoengineering research.115 These solutions are discussed in more detail in
Part IV.

4. CBD X/33 Decision

The CBD X/33 decision is not binding on countries. However, some of

the principles outlined in the decision may serve as valuable tools to
understand how geoengineering could be governed by the law. First, the
decision allows for geoengineering projects to move forward in three
circumstances: (1) where regulatory mechanisms exist, are scientifically-based,
and are transparent;116 (2) where an adequate scientific basis for the activity
exists and environmental risks and impacts are appropriately considered;117 and
(3) where small-scale scientific studies are designed to study the potential
effects of larger-scale geoengineering projects.118 These three exceptions
could be adopted by a geoengineering treaty regime.
First, a regime could require that small-scale scientific studies occur
before large-scale projects are enacted. Such a requirement would help to
ensure that countries engaging in large-scale geoengineering activities are
adequately aware of the potential consequences. Second, those small-scale
scientific studies could provide the basis for scientifically sound intrastate
regulatory mechanisms governing geoengineering. Third, the studies would
also ensure that environmental risks and impacts to other states and the global
commons would be appropriately considered for any major geoengineering
activity. By adopting these requirements, a geoengineering treaty would
transform these concepts from aspirational goals into binding international
norms.

5. The LP/LC Assessment Framework

One major problem with attempting to apply the Assessment Framework

to geoengineering is the limited number of countries to which the Assessment
Framework applies. Only eighty-seven states are parties to the London
Convention and only forty-four states are parties to the London Protocol.119
Because countries that are not parties to a treaty are not bound by its norms,

114. Id.
115. Id.
116. Bodle, supra note 59, at 317.
117. Id.
118. Id. at 318.
119. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, INT’L
MARITIME ORG., http://www.imo.org/OurWork/Environment/LCLP/Pages/default.aspx (last visited Mar. 7,
2014) [hereinafter Convention on Prevention].
212 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

fewer treaty participants decreases the force and effect of a treaty’s laws.120
Because over half the nations of the world are not parties to the Assessment
Framework,121 its norms governing geoengineering have insufficient force on
the international stage to prevent potential harms associated with
geoengineering. A second problem with the Assessment Framework is its use
of precatory language, which fails to bind parties to the Assessment
Framework.122 For example, the treaty frequently uses the term “should,”
suggesting an aspirational norm, rather than the word “shall,” which would
suggest a mandatory norm.123
Despite these problems, the Assessment Framework provides a useful
tool for determining the content of an international treaty governing
geoengineering. First, the Assessment Framework requires consideration of
social and cultural effects in addition to economic effects.124 Furthermore, step
three of the Assessment Framework requires a detailed environmental
assessment that requires consideration of biodiversity and other ecosystem
considerations.125 The detailed step-by-step requirements of the Assessment
Framework would serve as an excellent basis for a treaty governing all
geoengineering.

IV. RECOMMENDATIONS
The preceding Part shows the ways in which current international law
fails to adequately protect against the harms of geoengineering. However, it
also serves as a starting point for developing a comprehensive framework for
an international agreement that would govern geoengineering projects. The
remainder of this Note lays out a comprehensive framework for a
geoengineering treaty regime in light of the previous analysis of international
law and the necessary requirements for an effective geoengineering treaty
regime. Included in the discussion are Environmental Impact Assessments to
be undertaken during the planning stages of a geoengineering activity,
information-sharing mechanisms that occur both before and during the
geoengineering project, procedural mechanisms for resolving disputes
regarding transboundary harm, and substantive norms governing
transboundary harm caused by geoengineering activities.

A. Environmental Impact Assessments

Any nation considering a geoengineering project should evaluate the

120. See Catherine Logan Piper, Reservations to Multilateral Treaties: The Goal of Universality, 71
IOWA L. REV. 295, 296 (1985) (“The greater the number of nations joining the treaty, the greater the force and
effect of the laws rising out of the treaty.”).
121. Convention on Prevention, supra note 119.
122. See, e.g., Assessment Framework, supra note 75, at 20 (using the term “should” rather than “shall”
when referring to states’ obligations to ensure that activity is not contrary to the aims of the London
Convention and Protocol).
123. Id.
124. Bodle, supra note 59, at 319.
125. Assessment Framework, supra note 75, at 11–12.
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 213

potential harms resulting from that geoengineering project before undertaking

it. Environmental Impact Assessments (EIAs) have become a common tool in
international law to ensure that decision makers have assessed the
environmental impacts of a project.126 EIAs can play a vital role in ensuring
that countries undertaking geoengineering projects are complying with the
international law governing such projects.127 This subpart addresses the
requirements that should go into an EIA for a geoengineering project; these
requirements are largely adopted from Part III.
Because EIAs are one of the primary mechanisms through which states
assess the environmental harms associated with a proposed action,128 EIAs for
geoengineering projects must take full account of the potential harms of a
proposed geoengineering project. Accounting for the potential harms includes
several aspects. First, an EIA must examine the likely transboundary harms
from a project and identify the states that are likely to be harmed by such a
project.129 Second, where harm may occur to the commons, an EIA should
identify such harm as well.130 Such harm to the commons should include not
only common spaces, but the sorts of harms that raise issues of common global
concern, such as biological diversity.131
In order to satisfy the requirements of the middle-ground version of the
precautionary principle, countries undertaking a geoengineering project should
include a cost-benefit analysis as part of an EIA.132 The middle-ground
principle would not let all projects move forward, as would be the case under a
weak precautionary principle.133 However, such a principle would also not
prohibit projects from moving forward in the face of the inevitable scientific
uncertainty that arises from the fact that such projects cannot be tested on a
large scale before being implemented.134 Rather, a version of the
precautionary principle that urges caution until the reasonably expected
benefits of a geoengineering project can be shown to outweigh the reasonably
expected harms of the project would serve as a check on risky projects while
simultaneously allowing sound ones to move forward.
While such a cost-benefit analysis could not be undertaken with the same
sort of certainty that often governs regulations in the United States and other
countries, it should nonetheless be based on the best scientific estimates
available.135 Furthermore, such analysis should be supported by peer-reviewed
research in order to ensure objectivity of the results. A treaty framework
requiring nations engaging in geoengineering to include a cost-benefit analysis
as part of an environmental assessment undertaken in conjunction with other

126. NEIL CRAIK, THE INTERNATIONAL LAW OF ENVIRONMENTAL IMPACT ASSESSMENT 5 (2008).
127. Id.; see Bodle, supra 59, at 311.
128. Craik, supra note 126, at 64.
129. Id.
130. Id. at 50.
131. Id.
132. See supra Part III.B.1 (discussing the requirements of the precautionary principle).
133. Id.
134. Id.
135. Id.
214 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

nations, including those likely to be affected by the environmental impacts, can

ensure objectivity of the results while simultaneously encouraging discussions
between the countries engaging in geoengineering and those who are
potentially affected.
Included in the cost-benefit analysis should be a discussion of both
monetized costs and benefits and “soft” costs and benefits such as impacts on
ecosystem services, which cannot be easily monetized.136 Furthermore,
because the harms of both geoengineering and global warming will have
diverse impacts on different countries, nations undertaking a cost-benefit
analysis should factor problems of distributive justice as part of a cost-benefit
analysis.137
However, a simple cost-benefit analysis cannot be the only aspect of an
EIA. Because the harms of geoengineering are not well-known, an EIA must
be based on the best available science.138 Thus, treaty provisions could require
that, in preparing an EIA, nations considering a geoengineering project engage
in small-scale scientific studies in order to better understand the potential risks
and benefits of such a project, as well as be able to adequately predict the
transboundary consequences and harm to other nations.139 Additionally,
provisions within the treaty framework could include requirements that a state
considering engaging in geoengineering activity specify in its EIA whether it
has adopted scientifically sound, intrastate regulatory mechanisms that would
govern geoengineering and explain how those mechanisms are supported by
scientific studies.140
Additionally, because geoengineering will probably cause transboundary
harm,141 a treaty regime should require that a country prove its continued
economic viability (at least to the extent that the country can afford to pay out
damages for the expected harms) to the international community as part of
undertaking an EIA. This will help to ensure that countries harmed by
geoengineering projects will be able to receive compensation for those harms.
Additionally, such a requirement will also incentivize risk minimization
because harms will likely be ongoing and it will almost certainly be cheaper to
incur start-up costs to minimize harms than to pay out significant damages for
long periods of time after the fact.142

B. Transparency, Notification, and Consultation

Several international agreements include requirements to make

information available, notify parties potentially affected by transboundary

136. WEISS ET AL., supra note 105, at 125.

137. See Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal
Regulation?: A Deeper and Wider Cost-Benefit Analysis 33–34 (John M. Olin Law & Econ., Working Paper
No. 150, 2002) (arguing that accounting for distributional effects improves cost-benefit analysis).
138. See CRAIK, supra note 126, at 8 (discussing how potential environmental impacts require scientific
understanding).
139. See supra Part III.B.3 (discussing the requirement of small-scale scientific studies).
140. See id. (discussing the adoption of regulatory mechanisms).
141. See supra Part III.B.1 (discussing the Transboundary Harm Principle).
142. Id.
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 215

pollution, and engage in consultation with affected countries.143 Transparency

requirements in other international law agreements include making information
available to other countries and to the public.144 Such transparency helps to
ensure that geoengineering activities comply with international norms and to
assure other countries that the country engaging in geoengineering activity is
not violating any international agreements.145
Additionally, countries should be required to notify those countries that
an EIA identifies as being likely to be victims of transboundary harm. Such
notification procedures are common procedural mechanisms used in
international environmental treaties.146 Adding notification requirements to a
geoengineering convention may help to ensure that affected countries are
aware of the potential effects of geoengineering activities and allow those
countries to make informed decisions about whether to engage in consultation.
In addition to serving a valuable function before an activity starts,
information-sharing activities can also play a role during a geoengineering
project.147 Transparency enhances compliance because it provides greater
access to information for other states, thus putting those states in a better
position to encourage and enforce accountability during a geoengineering
project.148 One of the best ways in which a treaty regime can induce
compliance through transparency is by requiring the filing of regular reports.149
Furthermore, while making such reports to other states plays a role in
compliance, evidence strongly suggests that reports that go outside of formal
governmental channels can encourage greater compliance by educating the
public and putting public pressure on governments to comply with their treaty
obligations.150 For a geoengineering project, reports could contain information
concerning the progress of the project, potential harms or other foreseen
consequences, and other discussions of compliance with procedural
mechanisms of an international geoengineering treaty.
A treaty that requires that reports be made available to the public creates a
mild form of coercion that can potentially embarrass a nation into complying
with its international obligations.151 Although public pressure does not have

143. See WEISS ET AL., supra note 105, at 347–59 (discussing international agreements that include
requirements of transparency, notification, and cooperation).
144. See, e.g., Rep. of the Int’l Law Comm’n, 53d Sess., Apr. 23–Jun. 1, Jul. 2–Aug. 10, 2001, U.N.
Doc. A/56/10, 374–5; GAOR, 56th Sess., Supp. No. 10 (2001) (outlining United Nations notification and
information exchange rules).
145. Cascio, supra note 112.
146. See Rio Declaration, supra note 46, Principle 19 (imposing a requirement on states to notify and
provide information to states whose environments may be adversely affected); Dietrich Rauschning, Legal
Aspects of the Conservation of the Environment, 60 INT’L L. ASSOC. REP. CONF. 157, 171–75 (1982) (outlining
rules of international law requiring prior notice and consultation where “transfrontier” pollution is possible).
147. Harold K. Jacobson & Edith Brown Weiss, Strengthening Compliance with International
Environmental Accords: Preliminary Observations from a Collaborative Report, 1 GLOBAL GOVERNANCE
119, 130 (1995).
148. Id.
149. Id. at 140.
150. Id.
151. Mark R. Goldschmidt, The Role of Transparency and Public Participation in Environmental
Agreements: The North American Agreement on Environmental Cooperation, 29 B.C. ENVTL. AFF. L. REV.
343, 353 (2002).
216 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

the same force as a binding norm of international law, it plays an important

role in restraining governmental actions.152 In order for such pressure to be
effective, there must be some external body willing to publicize
noncompliance and a constituency that can encourage compliance with
international obligations.153 Non-governmental organizations, expert
communities, and populations that may be harmed by a geoengineering project
can all serve a vital role in ensuring that noncompliance is publicized.154
Additionally, because geoengineering projects in one nation are likely to harm
neighboring nations, countries will have an incentive to bring their actions into
compliance with treaty obligations in order to maintain good relations with
their neighbors.
In addition to information-sharing from the country engaging in the
project, information-sharing processes that allow for consultation between the
country engaged in geoengineering and potential victims of transboundary
harm may provide significant additional benefits.155 The benefits of
consultation stem from its use in preventing disputes through allowing
countries to reach understandings before dispute arises.156 However, for
consultation to be effective, a treaty regime that allows for it must include a
requirement that parties to the consultation consult in good faith.157 In addition
to avoiding disputes, consultation can also improve compliance with treaty
norms.158 A treaty provision requiring consultation at the request of one or
both parties and encouraging ongoing consultation can thus serve to avoid
disputes with treaties while also enhancing compliance. Because transparency,
notice, and consultation can help to avoid disputes while simultaneously
encouraging compliance on the part of the acting country, a treaty regime
governing geoengineering ought to include provisions for each.

C. Dispute-Resolution Mechanisms

While information-sharing mechanisms can encourage compliance during

geoengineering activities, history has shown that no country complies perfectly
with the norms imposed by international environmental treaties.159 Because of
this, and because transboundary harm is extremely likely to result from
geoengineering projects, a geoengineering treaty regime must ensure the
existence of adequate dispute resolutions mechanisms. Since no international
environmental court exists, the best dispute resolution mechanisms for
transboundary harm resulting from geoengineering are likely to be mediation
and arbitration.160

152. Jacobson & Weiss, supra note 147, at 140.

153. Goldschmidt, supra note 151, at 352.
154. Id.
155. WEISS ET AL., supra note 105, at 161.
156. Id.
157. Id.
158. Jacobson & Weiss, supra note 147, at 130.
159. Id. at 138.
160. See Louise Gray, Lawyers Call for International Court for the Environment, TELEGRAPH (Nov. 27,
2008, 2:27 PM), http://www.telegraph.co.uk/earth/environment/climatechange/3530607/Lawyers-call-for-
No. 1] ENGINEERING A SOLUTION TO CLIMATE CHANGE 217

Like domestic mediation, international mediation occurs when parties to a

dispute bring in a third party to assist with negotiation of a resolution.161 The
best choice for a third party is one that is on good terms with all of the parties
to the dispute but not particularly close to any of them.162 A geoengineering
treaty regime could create a body to monitor compliance with its norms; it is
likely that at least some members of such a body would be on good terms with
the parties to a dispute without being particularly close to any of them, and
thus could serve as mediators. Additionally, a compliance-monitoring body
would develop experience with compliance matters in geoengineering which
would serve it well in assisting in dispute resolution.
Arbitration would ideally be used as a last resort when attempts at
mediation fail. Arbitration requires the creation of an arbitral tribunal, which
resolves a transboundary harm dispute in a quasi-judicial proceeding, similar to
a judge or a panel of judges in a court case.163 A geoengineering regime must
include an agreement to arbitrate, a mechanism for establishing an arbitral
tribunal, and provisions discussing its jurisdiction and procedures.164 Including
such procedures would ensure that an arbitral tribunal could be rapidly
assembled to resolve transboundary harm disputes arising out of
geoengineering activity.

D. Substantive Law
In addition to procedural mechanisms to resolve disputes, a
geoengineering regime must include substantive legal norms to be used as
standards to resolve disputes. Such norms should include provisions allowing
for compensation when transboundary harm occurs, provisions allowing for
resolutions of harm to the global commons, and provisions to compensate
countries and possibly enact sanctions when geoengineering technology is
weaponized.
Countries seeking compensation for harms caused by other countries that
enacted geoengineering projects should be able to avail themselves of a
slightly relaxed causation requirement vis-à-vis the transboundary harm
principle.165 This will encourage countries to enact treaties or other
agreements to settle disputes prior to the launch of a large-scale
geoengineering project. Furthermore, it will ensure that countries cannot
externalize the economic harm of such projects to other nations. This is crucial
for distributive justice because countries enacting geoengineering projects will
likely be among the wealthiest nations, and externalizing the harms would
protect their economies at the expense of poorer nations. Such a result would

international-court-for-the-environment.html (discussing a proposal to create the first international

environmental court).
161. WEISS ET AL., supra note 105, at 164.
162. Id.
163. Id. at 166.
164. Id. at 167.
165. See supra Part III.B.1 (explaining the difficulty of applying the trans-boundary harm principle to
geoengineering).
218 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

allow some nations to maintain their economic status at the expense of weaker
nations, a result that violates basic principles of justice.
Additionally, a complete geoengineering framework must address harms
to the global commons. Because geoengineering may involve ocean
fertilization or space-based activity, geoengineering activities may harm areas
that fall within the scope of the global commons rather than individual
countries.166 By providing third-state standing to any countries that make use
of a particular commons or have a state interest in that commons and are
affected by harm, a geoengineering treaty could ensure that the transboundary
harm principle applies to the commons as well as to individual countries.
In addition, to address transboundary harms and harms to the global
commons, a geoengineering treaty should address weaponization of
geoengineering technologies. Because geoengineering technology can easily
be weaponized, there is good reason to include substantive treaty provisions
prohibiting such weaponization.167 While disputes regarding weaponized
geoengineering technology may be resolvable through international courts
under the laws of war or other substantive international law, the experience of
the specialized geoengineering arbitral tribunal discussed in the previous
section may render it a better option for resolving problems that arise through
the weaponization of geoengineering technology. Additionally, because
weaponization of technology is to be especially discouraged (unlike
transboundary harm, which should be seen as a probable consequence of
geoengineering), a geoengineering treaty regime should have the power to
impose sanctions on nations that fail to comply with prohibitions on
weaponization of geoengineering technology.

V. CONCLUSION
This Note has shown that unilateral geoengineering creates risks for the
international community, and that current international law is insufficient to
avoid these risks. While particular provisions of current international law fail
to provide an adequate mechanism to regulate geoengineering, an analysis of
international environmental law and its associated legal principles serves to
provide a valuable source of information from which a geoengineering treaty
regime can be created.
In order for a geoengineering treaty regime to adequately address the
potential risks of geoengineering, it must contain requirements for an
Environmental Impact Assessment to identify potential harms and weigh risks
and benefits, provide mechanisms for information-sharing to encourage early
dispute resolution and compliance with treaty obligations, establish procedural
mechanisms to resolve transboundary harm disputes, and have substantive
legal norms to ensure that transboundary harms are fully compensated.

166. Keith, supra note 19, at 263–64.

167. Cascio, supra note 112.