Governance of geoengineering under international law
The relevant legal sources are customary law, general legal principles of international environmental law, and agreements under international law. There are many such environmental agreements at international, regional or bilateral level which are concerned with selected aspects of environmental protection, or with other matters that include secondary aspects relating to environmental protection. In addition to states as primary subjects of international law and international organisations such as the UNO and the Council of Europe, non-governmental organisations (NGOs) are coming to play an increasingly important role in international environmental protection.
Climate change is one of the greatest challenges of the present day. Mankind has traditionally adopted two different strategies for combating climate change: reducing greenhouse gas emissions and adapting to unavoidable climate change.
For some time now there has been an increasing political focus on ideas and suggestions designed to combat climate change by using technological means to influence global systems. These suggestions are subsumed under the heading of “geoengineering” or “climate engineering”. Most of the proposals for geoengineering measures are still at the theoretical stage. Geoengineering is nevertheless seen by some as a policy option.
A recent background paper by the Federal Environment Agency summarises the various ideas on geoengineering and examines the place of geoengineering in the context of contemporary climate policy. As far as scientifically possible it assesses the measures in terms of their practicability, effectiveness and environmental impact. It also explains the present framework of international law for geoengineering and the resulting conclusions for the future regulation of geo-engineering by international law. Finally, the Federal Environment Agency puts forward criteria for assessment by political decision makers and makes first recommendations about dealing with the issue.
In international law there are a number of agreements of relevance to geoengineering. Today there are emerging signs of first approaches to direct regulation of geoengineering in international environmental law. For some years now the parties to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and the relevant London Protocol have been looking into the control of ocean fertilisation activities. First approaches to regulation can also be seen in biodiversity protection law (Convention on Biological Diversity – CBD). In November 2010 the parties to the CBD decided on an extensive moratorium on geo-engineering.
Environmental migration and international law
Around the world, people are threatened by serious environmental changes which are forcing them to migrate. Their numbers will increase in future, especially as a result of climate change. How international law currently deals with the phenomenon of “environmental migration” and the people concerned, and what means exist for improving the situation, can be seen in the UBA-commissioned study "Legal Status and Legal Treatment of Environmental Refugees".
Opportunities for NGOs to take part in international environmental protection
Non-governmental organisations such as the Worldwide Fund for Nature (WWF) or the environmental organisation Greenpeace seek to influence governments and institutions largely by means of public relations work. In some cases they also have observer or advisory status at international conferences or procure information for dispute settlement procedures.
The UBA-commissioned research project “Participation of Non-Governmental Organisations in International Environmental Co-operation” by Sebastian Oberthür, Matthias Buck, Sebastian Müller, Dr. Stephanie Pfahl and Richard G. Tarasofsky investigates the participation functions, rules and practices of NGOs at international level. Since the United Nations Conference on Environment and Development in Rio de Janeiro in 1992, their participation in numerous environment-related negotiating processes has increased. However, further measures are needed to bring about full implementation of Chapter 27 of Agenda 21, which is concerned with strengthening the role of non-governmental organisations. In this context the study reveals qualitative differences between various organisations and institutions when it comes to participation by NGOs, and puts forward wide-ranging suggestions for improvement. The study is published in English by Erich Schmidt Verlag as Volume 11/02 of the Federal Environment Agency’s REPORTS series (287 pages, 39.80 EUR, ISBN: 978-3-503-07060-2).
Legal design of charges for use of global environmental goods
The oceans and the air space are classic examples of open access goods. Anyone can use them – almost without limits and free of charge. Open access goods are not subject to the sovereign powers of individual states. To date, international agreements have provided very inadequate regulation of the right to use these goods.
However, more and more aircraft are crowding the skies, and shipping traffic on the world’s oceans is increasing. The result: environmental pollution – such as emissions of climate-damaging greenhouse gases – is also increasingly rapidly. Pollution does not stop at national boundaries; its effects are global. At present the direct polluters do not pay the follow-on costs. Various financial policy instruments are under discussion to change this. One of these instruments is the introduction of charges for use at international, European and national level. The purpose of such charges is to control the volume of traffic and contribute to the development of more environment-friendly technologies. One could consider imposing surcharges on airline tickets or freight charges, waterway and port charges, earmarked charges on motor fuels, toll charges and emission-oriented charges for use (e.g. CO2 charge).
How could such charges for use be designed from a legal point of view? The study “Legal Aspects of User Charges on Global Environmental Goods” (Reports 1/06) investigates the legal framework and puts forward specific proposals.
The subject was also discussed at the UBA Conference on the internalisation of external environmental costs at airports on 13/14 May 2008.
Environment and international trade
Other fields of international law, such as world trade law, may also impact on environmental law. One aspect of importance in the relationship between environment and international trade is the question of whether existing trade rules conflict with the implementation of environmental concerns, and to what extent. For example, conflicts between the rules of free trade and those of environmental protection may arise if a state regards foreign goods or manufacturing processes as harmful to the environment and restricts imports of such goods.
Possible design options for border tax adjustment, and its permissibility under WTO rules
One example of possible collisions between environmental protection and world trade law is a border tax adjustment for additional costs arising from national/ European environmental protection instruments. The UBA has investigated whether this is permissible under WTO rules. Climate protection instruments such as emissions trading give rise to additional costs for products manufactured in the EU – costs which products produced outside the EU do not have to bear. Border tax adjustments in the form of import duties or taxes on imports can offset these additional costs and create fair competition conditions. This instrument can also act as an incentive for the exporting states to do more to protect the climate. An expert report by the UBA has investigated the economic and practical design issues involved and the requirements that such a border tax adjustment has to satisfy under the WTO rules. Although practical problems still exist with regard to assessing the amount of the tax adjustment and some issues still have to be finally clarified from the point of view of the WTO dispute settlement bodies, the expert opinion comes to the conclusion that a border tax adjustment system is basically compatible with the WTO rules. The expert opinion “Border Tax Adjustments for Additional Costs Engendered by Internal and EU Environmental Protection Measures: Implementation Options and WTO Admissibility” is available online.
International environmental requirements for production processes in MEAs, and their equal ranking with WTO rules
One aspect of fundamental importance is the relationship between the WTO rules and Multilateral Environmental Agreements (MEAs) with trade relevance. Conflicts can arise between international trade agreements which the community of states has created within the World Trade Organisation (WTO), and the implementation of MEAs. The scope that the WTO rules offer for international enforcement of process-related and product-related requirements in respect of products for implementing advanced environmental protection in MEAs, has been examined by UBA in a report to the Federal Environment Ministry (BMU) “Referenzfall für internationale Umweltschutzanforderungen an Produktionsverfahren in Multilateralen Abkommen zum Umweltrecht (MEAs) und deren Gleichwertigkeit mit WTO-Recht” PDF / 51 KB. On the basis of the reference case “Ban on cellulose bleach with elementary chlorine”, the report illustrates how important it is that product-related and process-related requirements for achieving an environmental objective recognised in an MEA should enjoy legitimation under trade law.
Relationship between dispute settlement procedures under WTO rules and in MEAs
Unresolved issues exist concerning the relationship between MEAs and the WTO with respect to the design of dispute settlement procedures, the use of differing dispute settlement procedures in potential cases of conflict, and the effects of membership in different organisations/agreements. In addition to the dispute settlement procedure under the WTO, MEAs provide a large number of different procedures for settling disputes. However, none of these comes close to the depth of regulation or frequency of use of the WTO procedure. To investigate these issues, the UBA commissioned the study “Harmonization of the Dispute Settlement Mechanisms of the Multilateral Environmental Agreements and the World Trade Agreements”. The study examines potential areas of conflict between the main MEAs and the WTO dispute settlement mechanism. To improve the observation of environmental aspects, the study puts forward various specific proposals for amendments to the WTO dispute settlement procedure. These include the involvement of NGOs and the public in dispute settlement procedures, and measures for improving environmental expertise within the WTO. The inclusion of MEAs in particular would seem a plausible possibility for harmonising environmental and trade-related issues. It is evident that reciprocal references are a possibility even in different agreements, and that such references would seem desirable in the interests of unifying international law. For long-term consideration, the study contains suggestions for reforming the international system of settling disputes. Beside the possibility of upgrading the United Nations Environment Programme (UNEP) to a UN organisation or creating a new global environment organisation, these proposals also include a reorganisation of the UN itself. Ultimately, however, the study does not propose a new organisation, but advocates improvements to the existing dispute settlement mechanisms, whether by strengthening the International Court of Justice or by reforming other suitable dispute settlement bodies. The study by Dr. Axel Bree is available in English as Volume 1/03 of the Federal Environment Agency’s REPORTS series, published by Erich Schmidt Verlag (564 pages, 58.00 EUR, ISBN: 3-503-07429-5).
Compliance control with multilateral environmental agreements
International environmental law is considered in many quarters to suffer from major implementation deficits. Effective enforcement mechanisms in MEAs are therefore of central importance. To ensure that states do in fact comply with the agreements, compliance control mechanisms are increasingly becoming established at international level. These are an effective alternative to traditional dispute settlement, because they come into play earlier. They therefore help to reveal potential implementation deficits at an early stage and resolve them in a non-confrontational procedure. The acceptance of compliance control mechanisms is due above all to the fact that, unlike dispute settlement, they pursue a non-confrontational approach. What is more, they not only impose retroactive sanctions in cases of enforcement deficits, but seek to prevent such deficits by looking ahead. As a rule, compliance control mechanisms seek to identify enforcement deficits by means of reporting requirements and to solve them by providing positive incentives – such as technology transfer, capacity building and preparation of compliance plans – or negative incentives – such as trade sanctions.
The UBA-commissioned research project “Ensuring Compliance with Multilateral Environmental Agreements – A Dialogue between Practitioners and Academia” by Ulrich Beyerlin, Peter-Tobias Stoll, Rüdiger Wolfrum shows that integration of compliance control mechanisms in multilateral environmental agreements is a promising approach. The study contains reports on experience with the enforcement mechanisms of a number of widely differing MEAs. These demonstrate that, all in all, non-confrontational compliance control in international environmental law offers better prospects of ensuring that contractual obligations are actually discharged than traditional dispute settlement methods which tend to be based on confrontation. The study also shows that the question of how the parties can best ensure compliance with the agreement depends to a large extent on the subject matter of the individual agreement, and above all on the formulation of the contractual obligations in the individual case. The study is published in English by Martinus Nijhoff Publishers 2006 (396 pages, 154.00 EUR, ISBN: 978-90-04-14617-4).
The environment and international liability law
Transboundary environmental damage is on the increase at international level. For many sectors – e.g. protection of the marine environment – there are instruments that regulate liability for environmental damage on a sectoral basis and contain different liability requirements. This may result in objectively unjustified discrepancies in the rules for individual sectors or – even more serious – gaps in the regulations.
The UBA-commissioned study “Environmental Liability in International Law: Towards a Coherent Conception” by Prof. Dr. Dr. h.c. Rüdiger Wolfrum, Prof. Dr. Christine Langenfeld and Dr. Petra Minnerop provides a comprehensive description and assessment of many of these liability elements which are found primarily in multilateral environmental agreements, but also in international court practice. The authors analyse national environmental liability rules in Germany and the United States and show how international private and procedural law can best protect the environment. To this end – the authors state – the (relatively) strictest national environmental liability law should be applied. A separate chapter provides a comparative summary of the principal elements of the various international, European and national liability systems. In the authors’ opinion the international and European level of standard setting and improvement of compliance with international environmental law are becoming increasingly interdependent. The authors therefore seek to take the subsidiary and supplementary state responsibility which is enshrined in European law, for example in cases of non-implementation of EU directives, and use it as a basis for new international liability systems. This, they say, should be taken as a basis for developing an international liability system not only for private parties, but also for states. The study is published in English by Erich Schmidt Verlag as Volume 2/05 of the Federal Environment Agency’s REPORTS series (586 pages, 68.00 EUR, ISBN: 978-3-503-09023-1).
The study is based on the existing work “Environmental Protection by Means of International Liability Law” by Prof. Dr. Dr. h.c. Rüdiger Wolfrum and Prof. Dr. Christine Langenfeld, which is also published by Erich Schmidt Verlag as Volume 6/99 of the Federal Environment Agency’s REPORT series (479 pages, 68.00 EUR, ISBN: 978-3-503-05830-3).
Environment and armed forces
Military activities and interests frequently have adverse impacts on the environment. Whereas a comprehensive catalogue of international environmental provisions exists in times of peace, armed conflicts raise the question of how best to ensure protection of the environment in such situations. There is also a need to clarify whether and how areas of special ecological value can be protected and what measures to minimise damage can be taken during the build-up to armed conflicts. If adverse military activities give rise to environmental impacts, this raises the question of how the damage is to be remedied and who is to bear what burdens.
The UBA-commissioned study “Legal Regulation of the Effects of Military Activity on the Environment” by Prof. Daniel Bodansky shows with the aid of examples that the existing international law of armed conflict and international environmental law has failed to prevent even serious environmental damage – e.g. arising from the destruction of an oil field or a chemicals factory. In addition to better application of the existing international provisions, the author proposes a new, fast-acting protective instrument that includes rules of military procedure for better observation of environmental concerns in the conduct of war (e.g. a ban on military activities in recognised nature conservation areas). He maintains that procedural rules of this kind, which could be introduced into military practice as instructions for action, hold promise of improved environmental protection. At the same time the rules of military procedure could raise awareness of environmental issues in times of war, and thereby represent a first step towards long-term improvements in the application of existing provisions on the environment and the conduct of war. The study is available in English as Volume 5/03 of the Federal Environment Agency’s REPORTS series, published by Erich Schmidt Verlag (126 pages, 34.00 EUR, ISBN: 3-503-07819-3).