CIGI Paper No.111 WEB

CIGI PAPERS
NO. 111 — OCTOBER 2016
THE PARIS AGREEMENT AND CLIMATE

GEOENGINEERING GOVERNANCE
THE NEED FOR A HUMAN RIGHTS-BASED COMPONENT
WILLIAM C.G. BURNS
THE PARIS AGREEMENT AND CLIMATE GEOENGINEERING GOVERNANCE:
THE NEED FOR A HUMAN RIGHTS-BASED COMPONENT
William C.G. Burns
Copyright © 2016 by the Centre for International Governance Innovation
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TABLE OF CONTENTS
iv About the ILRP
iv About the Author
1 Acronyms and Abbreviations
1 Symbols
1 Executive Summary
2 Introduction
3 Overview of Climate Geoengineering
17 The Application of Human Rights to Climate Geoengineering
22 Operationalizing Human Rights Protections under the Paris Agreement in the Context of Climate Geoengineering
32 Conclusions
34 About CIGI
34 CIGI Masthead
CIGI Papers no. 111 — October 2016
ABOUT THE ILRP ABOUT THE AUTHOR

The International Law Research Program (ILRP)
at CIGI is an integrated multidisciplinary research
program that provides leading academics,
government and private sector legal experts, as
well as students from Canada and abroad, with
the opportunity to contribute to advancements in
international law.
The ILRP strives to be the world’s leading

international law research program, with
recognized impact on how international law is
brought to bear on significant global issues. The
program’s mission is to connect knowledge,
William C.G. Burns is a CIGI senior fellow with
policy and practice to build the international law
the ILRP. Until recently, he served as director of
framework — the globalized rule of law — to
the Energy Policy & Climate Program at Johns
support international governance of the future.
Hopkins University, and now serves as co-director
Its founding belief is that better international
of the Forum for Climate Engineering Assessment,
governance, including a strengthened international
a scholarly initiative of the School of International
law framework, can improve the lives of people
Service at American University in Washington, DC.
everywhere, increase prosperity, ensure global
He also serves as the co-chair of the International
sustainability, address inequality, safeguard
Environmental Law Committee of the American
human rights and promote a more secure world.
Branch of the International Law Association.
The ILRP will focus on the areas of international
William is the former president of the Association
law that are most important to global innovation,
of Environmental Studies and Sciences, as well
prosperity and sustainability: international
as co-chair of the International Environmental
economic law, international intellectual property
Law interest group of the American Society of
law and international environmental law. In its
International Law. Prior to becoming an academic,
research, the ILRP is attentive to the emerging
William served as assistant secretary of state for
interactions between international and transnational
public affairs for the State of Wisconsin and worked
law, indigenous law and constitutional law.
in the non-governmental sector for 20 years,
including as executive director of the Pacific Center
for International Studies, a think tank that focused
on implementation of international wildlife treaty
regimes, including the Convention on Biological
Diversity and International Convention for the
Regulation of Whaling.
William has published more than 75 articles in

law, science and policy journals and has co-edited
four books. His current areas of research focus
are: climate geoengineering; international climate
change litigation; adaptation strategies to address
climate change, with a focus on the potential role
of microinsurance; the effectiveness of international
treaty regimes to conserve cetaceans; and how
to effectively operationalize the precautionary
principle in international environmental treaty
regimes. William holds a Ph.D. in international
environmental law from the University of Wales-
Cardiff School of Law.
iv • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

THE PARIS AGREEMENT AND CLIMATE GEOENGINEERING GOVERNANCE
ACRONYMS AND ABBREVIATIONS UNDP United Nations Development Programme
ASEAN Association of Southeast Asian Nations UNEP United Nations Environment Programme
BECCS bioenergy with carbon capture and storage UNFCCC United Nations Framework Convention on
Climate Change
CCS carbon capture and sequestration
UNHRC United Nations Human Rights Council
CDR carbon dioxide removal
WMO World Meteorological Organization
COP Conference of the Parties
SYMBOLS
CRC Convention on the Rights of the Child
GtC gigatons carbon
CROZEX CROZet Natural Iron Bloom and EXport
Experiment GtCO2 gigatons carbon dioxide
DAC direct air capture µm micrometre
ECHR European Convention for the Protection of TgS teragrams sulphur
Human Rights and Fundamental Freedoms
W/m2 watts per square metre
EIA environmental impact assessment
EXECUTIVE SUMMARY
GCM general circulation model
There has been growing recognition in the past decade
GeoMIP Geoengineering Model Intercomparison
at both the international and domestic levels of the
Project
potential ramifications of climate change for the exercise
GBEP Global Bioenergy Partnership of human rights. Even more recently, the locus of concern
has expanded to include the human rights implications
GHGs greenhouse gases of response measures to confronting climate change. The
newly adopted Paris Agreement includes language that
HRBA human rights-based approach calls on its parties to consider, respect and promote the
protection of human rights when taking actions to address
HRIA human rights impact assessment
climate change. However, the agreement fails to suggest
ICCPR International Covenant on Civil and Political specific means to operationalize this mandate.
Rights
This paper suggests a framework for achieving the
ICESCR International Covenant on Economic, Social objective of protecting human rights in the context of
and Cultural Rights climate change response measures. It focuses on one suite
of emerging potential measures that fall under the general
INDC intended nationally determined contribution rubric of “climate geoengineering,” which is defined
as efforts to effectuate large-scale manipulation of the
IPCC Intergovernmental Panel on Climate Change planetary environment through technological options in
order to counteract the manifestations of climate change.
LDCs least developed countries
The paper suggests that the parties to the Paris Agreement
NETs negative emissions technologies utilize a human rights-based approach (HRBA) as a
framing mechanism to ensure that the potential human
OHCHR Office of the UN High Commissioner on rights implications of climate geoengineering options
Human Rights are assessed in the policy-making process moving
forward. Such an approach may help to ensure that any
SAI sulphur aerosol injection potential negative ramifications of climate geoengineering
options on the human rights interests of the world’s most
SBI Subsidiary Body for Implementation
vulnerable peoples are taken into account and minimized.
SBSTA Subsidiary Body for Scientific and Moreover, this analysis might help us to flesh out more
Technological Advice broadly the contours of the new human rights language in
the Paris Agreement.
SRM solar radiation management
UDHR Universal Declaration of Human Rights
WilLiam c.g. Burns • 1

INTRODUCTION need to respect human rights when addressing the threat

of climate change. In terms of human rights institutions,
In the past decade, there has been increasing recognition the UN’s Office of the High Commissioner for Human
in both the human rights and climate change communities Rights (OHCHR) in 2009 emphasized that “human rights
of the profound, and largely adverse, impacts that climate standards and principles should inform and strengthen
change may have on the exercise of human rights.1 More policy measures in the area of climate change.”6
recently, the ambit of concern has expanded to the potential
impacts that response measures to climate change might Most recently, in December 2015, the parties to the
have on human rights. For example, at the 16th Conference UNFCCC adopted the text of the Paris Agreement,7 a
of the Parties (COP) to the UNFCCC,2 a resolution was legal instrument designed to respond to “the need for an
adopted providing that the parties “should, in all climate effective and progressive response to the urgent threat
change related actions, fully respect human rights.”3 of climate change.”8 As the UNHRC recently observed,
The Kyoto Protocol’s4 Adaptation Fund Board, in its “the Paris Agreement is the first climate agreement, and
Environmental and Social Policy guidelines, also provides one of the first environmental agreements of any kind, to
that “Projects/programmes supported by the Fund shall explicitly recognize the relevance of human rights.”9 Its
respect and where applicable promote human rights.”5 preambular language provides: “Parties should, when
Human rights bodies have similarly emphasized the taking action to address climate change, respect, promote
and consider their respective obligations on human rights,
the right to health, the rights of indigenous peoples, local
1 United Nations Human Rights Council [UNHRC], Human Rights communities, migrants, children, persons with disabilities
and Climate Change, HRC Res 29/15, UNHRCOR, 29th Sess, UN Doc and people in vulnerable situations and the right to
A/HRC/RES/29/15 (2 July 2015), online: <https://daccess-ods. development, as well as gender equality, empowerment of
un.org/TMP/8490088.58203888.html>. “Affirming that human rights
women and intergenerational equity.”10
obligations, standards and principles have the potential to inform
and strengthen international, regional and national policymaking
in the area of climate change”; UNHRC, Human Rights and Climate It is laudable that the drafters of the Paris Agreement
Change, HRC Res 26/27, UNHRCOR, 26th Sess, UN Doc A/HRC/ recognized that programs and actions to address climate
RES/26/27 (15 July 2014), online: <https://daccess-ods.un.org/ change can have human rights implications and that
TMP/2523183.22658539.html>. “Emphasizing that the adverse every effort should be made to ameliorate such impacts.
effects of climate change have a range of implications, both direct and
indirect, for the effective enjoyment of human rights”; UNHRC, Human However, as Basil Ugochukwu recently observed, there
Rights and Climate Change, HRC Res 10/4, UNHRCOR, 10th Sess, is an immediate need to translate this provision “in ways
UN Doc A/HRC/RES/10/4 (3 March 2009), online: <ap.ohchr.org/ that integrate human rights into practical actions in specific
documents/E/HRC/resolutions/A_HRC_RES_10_4.pdf>. “Climate climate change policies.”11
change-related impacts have a range of implications, both direct and
indirect, for the effective enjoyment of human rights”; United Nations
Framework Convention on Climate Change [UNFCCC], The Cancun
Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term
Cooperative Action under the Convention, FCCC Dec 1/CP.16, UNFCCC, 6 UNHRC, Report of the Office of the United Nations High Commissioner
2010, UN Doc FCCC/CP/2010/7/Add.1 (2010), at para 8, online: for Human Rights on the relationship between climate change and human
<unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf> [The Cancun rights, 15 January 2009, UN Doc A/HRC/10/61 at para 75, online:
Agreements]. Parties “should, in all climate change related actions, <www.ohchr.org/Documents/Press/AnalyticalStudy.pdf>.
fully respect human rights”; Mary Robinson Foundation, Incorporating
Human Rights into Climate Action, Version 1 (October 2014), at 4, online: 7 UNFCCC, COP, Paris Agreement to the United Nations Framework
<www.mrfcj.org/pdf/2014-10-20-Incorporating-Human-Rights-into- Convention on Climate Change, 12 December 2015, Dec CP.21, 21st
Climate-Action.pdf>. Forty-nine parties to the UNFCCC have made Sess, UN Doc FCCC/CP/2015/L9, online: <unfccc.int/resource/
explicit references to human rights in their National Communications docs/2015/cop21/eng/l09r01.pdf> [Paris Agreement].
or National Adaptation Plans of Action.
8 Ibid, Preamble.
2 UNFCCC, 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force
21 March 1994). 9 UNHRC, Report of the Special Rapporteur on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable
3 The Cancun Agreements, supra note 1 at para 8 [emphasis added]. environment, 1 February 2016, 31st Sess, UN Doc A/HRC/31/52 at
While not explicitly referring to human rights impacts, the Kyoto 6, online: <www.ohchr.org/EN/HRBodies/HRC/RegularSessions/
Protocol to the UNFCCC includes concordant language, providing Session31/Documents/A%20HRC%2031%2052_E.docx>.
that industrialized countries should strive to “minimize adverse
social, environmental and economic impacts on developing country 10 Paris Agreement, supra note 7, Preamble.
Parties” in terms of mitigation response measures. Kyoto Protocol to
the United Nations Framework Convention on Climate Change, 10 11 Basil Ugochukwu, Climate Change and Human Rights: How? Where?
December 1997, 2303 UNTS 148, 37 ILM 22 art 3(14) (entered into When?, CIGI, CIGI Papers No. 82, 27 November 2015 at 9. See also
force 16 February 2005) [Kyoto Protocol]. International Human Rights Law Clinic, Miller Institute for Global
Challenges and the Law, University of California, Berkeley, School of
4 Kyoto Protocol, supra note 3. Law & Center for Law & Global Justice, University of San Francisco,
School of Law, “Protecting People and the Planet” (December
5 Adaptation Fund Board, Environmental and Social Policy (November 2009) at 7, online: <https://repositories.lib.utexas.edu/bitstream/
2013), at para 15, online: <www.adaptation-fund.org/wp-content/ handle/2152/7464/Protecting_People_and_the_Planet-Berkeley.
uploads/2015/09/Environmental-Social-Policy-approved-Nov2013.pdf>. pdf?sequence=2&isAllowed=y>.
2 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

This paper seeks to develop a framework foroperationalizing OVERVIEW OF CLIMATE

the Paris Agreement’s human rights language in the context
of an emerging potential response to climate change, a
GEOENGINEERING
suite of technological options denominated as “climate
The Exigency for Climate Geoengineering
geoengineering.” It is hoped that this exercise may help
to inform efforts to develop guidelines for considering The Paris Agreement establishes the objective of “[h]
the human rights implications of other climate-related olding the increase in the global average temperature
response measures in the future, including in the context to well below 2°C above pre-industrial levels and to
of mitigation and adaptation. pursue efforts to limit the temperature increase to 1.5°C
above pre-industrial levels....”17 However, the emissions
Climate geoengineering is defined by the United Kingdom’s
reduction pledges made by the parties to the UNFCCC to
Royal Society as “the deliberate large-scale manipulation
date, denominated as Intended Nationally Determined
of the planetary environment to counteract anthropogenic
Contributions (INDCs) prior to the Paris Agreement18
climate change.”12 As a number of commentators have
and termed Nationally Determined Contributions in the
noted, climate geoengineering could prove to be the most
agreement,19 are wholly inadequate to meet this goal.
imposing global governance challenge of the next few
Indeed, the globe is currently on track for temperature
decades.13 This is primarily because it could create both
increases between 2.6 and 3.7°C by 2100,20 with even
winners and losers in terms of its impacts.14 While this
much higher temperatures over the course of centuries
paper agrees with commentators who have expressed
the need for the establishment of a comprehensive
international governance framework for climate
geoengineering,15 fleshing out its contours is beyond the
scope of this paper. Rather, the purpose here is to suggest
that a human rights-based approach may constitute a
critical component in addressing intrinsic issues of equity
and justice that would necessarily arise should the world
17 Paris Agreement, supra note 7, art 2(1)(a).
community opt to proceed down this path.16 In developing
this argument, this paper provides an overview of climate 18 See UNFCC, Report of the Conference of the Parties on its nineteenth
geoengineering options; discusses the potential human session, held in Warsaw from 11 to 23 November 2013, Dec 1/
rights implications of climate geoengineering, including CP.19 Further advancing the Durban Platform, UN Doc FCCC/
CP/2013/10/Add.1 at para 2(b), online: <unfccc.int/resource/
within the context of the Paris Agreement; and develops docs/2013/cop19/eng/10a01.pdf> [Durban Platform]; UNFCC,
a human rights-based approach to operationalizing the INDCs as communicated by Parties, online: <www4.unfccc.int/
human rights provisions of the Paris Agreement in the submissions/indc/Submission%20Pages/submissions.aspx>.
context of climate geoengineering options.
19 Paris Agreement, supra note 7, art 4(2).
20 Joeri Rogelj et al, “Paris Agreement Climate Proposals Need a Boost

12 The Royal Society, “Geoengineering the climate: science, to Keep Warming Well Below 2°C” (2016) 534 Nature 631 at 634;
governance and uncertainty (2009) at 11, online: <royalsociety.org/ Climate Action Tracker, “Paris Agreement: stage set to ramp up
Geoengineering-the-climate/>. climate action” (12 December 2015), online: <climateactiontracker.org/
news/257/Paris-Agreement-stage-set-to-ramp-up-climate-action.
13 Mason Inman, “Planning for Plan B” (17 December 2009) Nature Reports; html>; World Resources Institute, “Why are INDC Studies Reaching
Climate Change, online: <www.nature.com/climate/2010/1001/ Different Temperature Estimates?” (2015), online: <www.wri.org/
full/climate.2010.135.html>; Scott Barrett, “Solar Geoengineering’s blog/2015/11/insider-why-are-indc-studies-reaching-different-
Brave New World: Thoughts on the Governance of an Unprecedented temperature-estimates>. It should be emphasized that the Paris
Technology” (2014) 8:2 Rev Envtl Econ & Pol’y 249 at 266. Agreement does provide for a “global stocktake” every five years “to
assess the collective progress towards achieving the purpose of this
14 Robert L Olson, “Geoengineering for Decision Makers” (November 2011) Agreement and its long-term goals,” with an eye to enhancing domestic
Woodrow Wilson International Center for Scholars at 16, online: <https:// and international commitments to meet the agreement’s overarching
www.wilsoncenter.org/sites/default/files/Geoengineering_for_Decision_ objectives, if necessary; Paris Agreement, supra note 7 at art 14. While
Makers_0.pdf>; Toby Svoboda et al, “Sulfate Aerosol Geoengineering: this provision could help the parties to avoid passing the 2°C threshold,
The Question of Justice” (2011) 25:3 Public Aff Q 157 at 165. this would require strengthened commitments prior to the agreement
entering in force and more ambitious long-term commitments;
15 “A Charter for Geoengineering”, Editorial, (2012) 485 Nature Wolfgang Obergassel et al, Phoenix from the Ashes — An Analysis of
415 at 415; John Virgoe, “International Governance of a Possible the Paris Agreement to the United Nations Framework Convention on
Geoengineering Intervention to Combat Climate Change” (2009) 95 Climate Change (January 2016), online: Wuppertal Institute for Climate,
Climatic Change 103 at 119 [Virgoe]. Environment and Energy <wupperinst.org/uploads/tx_wupperinst/
Paris_Results.pdf> at 45. The world’s remaining “carbon budget”
16 Richard Owen, “Solar Radiation Management and the Governance to avert passing the 2°C threshold may also be far lower than many
of Hubris” (2014) 38 Issues in Environmental Science & Technology current estimates given uncertainties about many critical parameters;
212 at 220; Michael Burger & Jessica Wentz, Climate Change and Glen Peters, “The ‘Best Available Science’ to Inform 1.5°C Policy
Human Rights (2015) United Nations Environment Program [UNEP] Choices” advance online publication: (11 April 2016) Nature Climate
at 10, online: <apps.unep.org/publications/index.php?option=com_ Change, DOI: <10.1038/nclimate3000>, online: www.nature.com/
pub&task=download&file=011917_en>. nclimate/journal/vaop/ncurrent/pdf/nclimate3000.pdf at 1.

and millennia beyond.21 Temperature increases of this funded research programs. 26 In the case of the UK House
magnitude could have extremely serious implications for of Commons, Science and Technology Committee, a
both natural ecosystems and human institutions.22 recommendation was tendered for development of a
regulatory framework.27 Moreover, two international
The spectre of climatic impacts of this magnitude has led regimes, the Convention on Biological Diversity and the
to increasing recent interest in climate geoengineering Convention on the Prevention of Marine Pollution by
options. Climate geoengineering proposals date back Dumping of Wastes and Other Matter, have responded to
to the 1830s.23 Yet, until the past decade, geoengineering ocean-based geoengineering research initiatives by issuing
was viewed as “a freak show in otherwise serious regulatory guidelines for prospective research.28
discussions of climate science and policy.”24 However,
the feckless response of the world community to climate On the scientific side of the equation, small research
change has transformed climate geoengineering from programs on geoengineering options have been launched
a fringe concept to a potentially mainstream policy in several regions of the world, including the United States,
option.25 Within the last decade, committees in both the
US Congress and UK Parliament have conducted hearings
on climate geoengineering and called for government-
26 US, US House Committee on Science and Technology and a

Recommendation by the Chair for a Geoengineering Research
Agenda, “Engineering the Climate: Research Needs and
Strategies for International Coordination” (October 2010), online:
<democrats.science.house.gov/sites/democrats.science.house.gov/
files/10-29%20Chairman%20Gordon%20Climate%20Engineering%20
report%20-%20FINAL.pdf> at ii; UK, HC, Science and Technology
21 Carolyn W Snyder, “Evolution of Global Temperature Over the Past Committee, “The Regulation of Geoengineering: Fifth Report of Session
Two Million Years” (2016) Nature, doi: <10.1038/nature19798>: 2009-10” (10 March 2010), online: <www.publications.parliament.uk/
Even stabilization of atmospheric concentrations of GHGs at current pa/cm200910/cmselect/cmsctech/221/221.pdf> at 27 [UK Science
levels could result in eventual warming of 5°C; Peter U Clark et al, and Technology Committee].
“Consequences of Twenty-First Century Policy for Multi-Millennial
Climate and Sea-Level Change” (2016) 6 Nature Climate Change 360 27 UK Science and Technology Committee,supra note 26.
at 361.
28 The parties to the Convention on Biological Diversity at the 9th meeting
22 UNFCCC, “Climate Change 2014, Synthesis Report, Summary for of the Conference of the Parties in 2008 passed a resolution calling on the
Policymakers” (2014), online: www.ipcc.ch/pdf/assessment-report/ parties “to ensure that ocean fertilization activities do not take place until
ar5/syr/AR5_SYR_FINAL_SPM.pdf at 18, 19; Durban Platform, there is an adequate scientific basis on which to justify such activities...
supra note 18; INDCs as Communicated by Parties, supra note 18; with the exception of small scale scientific research studies within
V Ramanathan & Y Feng, “On Avoiding Dangerous Anthropogenic coastal waters.” UNEP, Convention on Biological Diversity, Decision
Interference with the Climate System: Formidable Challenges Ahead” adopted by the Conference of the Parties to the Convention on Biological
(2008) 105:3 Proceedings National Academy Sci 14245 at 14245. Diversity: IX/16 Biological diversity and climate change, UN Doc UNEP/
CBD/COP/DEC/IX/16 (May 2008) online: <dcgeoconsortium.org/
23 William CG Burns & Jane A Flegal, “Climate Geoengineering and wp-content/uploads/2014/07/CBD-COP-9-Resolution.pdf> at para 4.
the Role of Public Deliberation: A Comment on the US National For further information on ocean fertilization climate geoengineering,
Academy of Sciences’ Recommendations on Public Participation” see Ocean Iron Fertilization, infra. In 2010, the parties to the Convention
(2015) 5 Climate L 252 at 254. on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, and its Protocol, passed a resolution adopting an assessment
24 David G Victor, “On the Regulation of Geoengineering” (2008) framework for scientific research in context of ocean fertilization:
24:2 Oxford Rev Econ Pol’y 322 at 323. The concept of climatic International Maritime Organization, Convention on the Prevention of
geoengineering extends back to at least the 1830s when American Marine Pollution by Dumping of Wastes and Other Matter, Resolution
meteorologist J. P. Espy suggested that lighting huge fires could LC-LP.2 (2010) on the Assessment Framework for Scientific Research
stimulate convective updrafts and alter the intensity and frequency of Involving Ocean Fertilization, Third-Second Consultative Meeting of the
precipitation. Philip J Rasch et al, “An Overview of Geoengineering Contracting Parties to the London Convention and the Fifth Meeting
of Climate Using Stratospheric Sulphate Aerosols” (2008) 366 of the Contracting Parties to the London Protocol (14 October 2010),
Philosophical Transactions Royal Soc’y 4,007 at 4,008. For a thorough online: <dcgeoconsortium.org/wp-content/uploads/2014/07/LC-
historical treatment of weather and climate modification initiatives, Resolution-2010.pdf> at para 1; International Maritime Organization,
see James Rodger Fleming, “The Pathological History of Weather and Convention on the Prevention of Marine Pollution by Dumping of
Climate Modification: Three Cycles of Promise and Hype” (2006) 37:1 Wastes and Other Matter, Assessment Framework for Scientific Research
Historical Stud in Physical Sci 3-25, online: <www.colby.edu/sts/06_ Involving Ocean Fertilization (2010), online: <dcgeoconsortium.org/
fleming_pathological.pdf>. wp-content/uploads/2014/07/LC-Geo-Assessment-Framework-2010.
pdf>. In 2013, the parties to the London Protocol amended the agreement
25 Robin Gregory, Terre Satterfield & Ariel Hasell, “Using Decision to make the risk assessment procedure legally binding on all of its
Pathway Surveys to Inform Climate Engineering Policy Choices” parties, as well as to potentially extend the regulatory purview of the
(2016) 113 Proceedings Natl Acad Sci 560 at 560; Shinichiro Asayama, protocol to other marine-based geoengineering options: International
“Catastrophism Toward ‘Opening Up’ or ‘Closing Down’? Going Maritime Organization, London Protocol to the Convention on the
Beyond the Apocalyptic Future and Geoengineering” (2015) 63:1 Prevention of Marine Pollution by Dumping of Wastes and Other
Current Sociology 89 at 90. For a history of geoengineering over the Matter 1972, Resolution LP.4(8) on the Amendment to the London Protocol
past 50 years, see Wil Burns & Simon Nicholson, “Governing Climate to Regulate the Placement of Matter for Ocean Fertilization and Other Marine
Geoengineering” in Simon Nicholson & Sikina Jinnah, eds, New Earth Geoengineering Activities (2013), online: <dcgeoconsortium.org/wp-
Politics (Cambridge, MA: MIT Press, 2016) 345. content/uploads/2014/07/resolution_lp_48.pdf>.

Europe and Asia.29 Two extremely influential national Climate Geoengineering Technologies
scientific bodies, the United Kingdom’s Royal Society and
the US National Academy of Sciences, have also called Climate geoengineering technologies are usually divided
for national research programs.30 Moreover, the US Senate into two broad categories: solar radiation management
Appropriations Committee, in its latest spending bill, (SRM) approaches and carbon dioxide removal (CDR)
has proposed an unspecified level of funding for climate approaches.35 This section seeks to describe each option in
geoengineering research.31 Also, the Intergovernmental terms of their approaches to addressing climate change.
Panel on Climate Change (IPCC), in its most recent
assessment report, extensively discussed climate SRM TECHNOLOGIES
geoengineering options,32 characterizing them as potential
The sun ultimately drives the earth’s climate, including
“emergency responses...in the face of potential extreme
the circulation of the world’s oceans and atmosphere,
impacts.”33 Moreover, the new chair of the IPCC, Hoesung
by emitting energy, largely in the form of short-wave
Lee, has advocated research on climate geoengineering
radiation.36 Approximately two percent of incoming solar
options, including governance considerations.34
radiation reaching the earth (342 W/m2) is absorbed by
stratospheric ozone, 17 percent by aerosols and clouds in the
troposphere, and 51 percent by the earth’s surface. Thirty
29 Institute for Advanced Sustainability Studies, “European Trans- percent of solar radiation is subsequently emitted back
disciplinary Assessment of Climate Engineering (EuTRACE)”, to space through scattering and reflection by clouds, ice,
online: <www.iass-potsdam.de/en/research-clusters/sustainable- snow, sand and other reflective surfaces.37 The remaining
interactions-atmosphere/climate-engineering/eutrace>; Eli Kintisch,
Bill Gates Funding Geoengineering Research, Science (26 January 2010),
70 percent is absorbed by oceans, the atmosphere and
Science, online: <www.sciencemag.org/news/2010/01/bill-gates- land, and, as they re-radiate their absorbed energy, heat is
funding-geoengineering-research>; Cao Long et al, “Geoengineering: released in the form of long-wave, or infrared, radiation at
Basic Science and Ongoing Research Efforts in China” (2015) 6 wavelengths of greater than 1.5 µm.38
Advances in Climate Change Research 188.
30 The Royal Society, supra note 12 at ix; National Research Council,

While the atmosphere is transparent to short-wave
US National Academy of Sciences, Climate Intervention: Reflecting radiation, it is opaque to long-wave, infrared radiation
Sunlight to Cool Earth (2015), online: www.nap.edu/catalog/18988/ due to the presence of trace gases found naturally in the
climate-intervention-reflecting-sunlight-to-cool-earth at 6; National atmosphere, including water vapour, carbon dioxide,
Research Council, US National Academy of Sciences, Climate
Intervention: Carbon Dioxide Removal and Reliable Sequestration (2015),
online: www.nap.edu/catalog/18805/climate-intervention-carbon-
dioxide-removal-and-reliable-sequestration at 107.
31 Adrian Cho, “To Fight Global Warming, Senate Calls for Study of
Making Earth Reflect More Light, Science” (19 April 2016), online:
<www.sciencemag.org/news/2016/04/fight-global-warming-senate-
calls-study-making-earth-reflect-more-light>. The bill, S 2084, inter
alia, calls for the Department of Energy to study the US National
Academy of Science’s 2015 Report on “albedo modification,” one of
the two broad categories of climate geoengineering (see the section on
Potential Risks Associated with Climate Geoengineering infra), and to
“leverage existing computational and modeling capabilities to explore 35 William CG Burns, “Geoengineering the Climate: An Overview of
the potential impacts of albedo modification.” US, Bill S 2084, Energy Solar Radiation Management Options” (2012) 46 Tulsa L Rev 283 at
and Water Development Appropriations Bill, 2017, 114th Cong, 2015-16. 286. Alternatively, some commentators divide climate geoengineering
options into “short-wave” and “long-wave” approaches. See TM
32 IPCC, Working Group I Contribution on Fifth Assessment Report of Lenton & NE Vaughan, “The Radiative Forcing Potential of Different
the Intergovernmental Panel on Climate Change, Climate Change 2013: Climate Geoengineering Options” (2009) 9 Atmospheric Chemistry
The Physical Science Basis (2013), online: www.climatechange2013. & Physics 5539 at 5540. It should be emphasized, however, that
org/images/report/WG1AR5_ALL_FINAL.pdf at 29; IPCC, some approaches denominated as “geoengineering,” including some
Working Group II Contribution to the Fifth Assessment Report of the carbon dioxide removal options, are closely akin to technologies
Intergovernmental Panel on Climate, Climate Change 2014: Impacts, for industrial carbon management, such as carbon capture and
Adaptation, and Vulnerability, Part A: Global and Sectoral Aspects (2014), sequestration or land use, land use change and forestry, and, thus,
online: <www.ipcc.ch/pdf/assessment-report/ar5/wg2/WGIIAR5- might not be classified by everyone as “climate geoengineering.”
PartA_FINAL.pdf> at 92; IPCC, Working Group III Contribution Virgoe, supra note 15 at 104.
to the Fifth Assessment Report of the Intergovernmental Panel on
Climate Change, Climate Change 2014: Mitigation of Climate Change 36 National Oceanographic & Atmospheric Administration, Earth
(2014), online: <www.ipcc.ch/pdf/assessment-report/ar5/wg3/ System Research Laboratory, “The Earth’s Atmosphere”, online:
ipcc_wg3_ar5_full.pdf> at 256. <www.esrl.noaa.gov/gmd/outreach/carbon_toolkit/basics.html>.
33 Climate Change 2014: Mitigation of Climate Change, supra note 32 at 41. 37 J Feichter & T Leisner, “Climate Engineering: A Critical Review of
Approaches to Modify the Global Energy Balance” (2009) 176 Eur
34 Suzanne Goldenberg, “UN Climate Science Chief: It’s Not Too Late Physical J 81 at 82.
to Avoid Dangerous Temperature Rise”, The Guardian, (11 May 2016),
online: <www.theguardian.com/environment/2016/may/11/un- 38 Ibid; John T Hardy, Climate Change: Causes, Effects and Solutions
climate-change-hoesung-lee-global-warming-interview>. (Hoboken, NJ: Wiley, 2003) at 7.

methane and nitrous oxide.39 These so-called “greenhouse effect.”46 With atmospheric GHG emissions reaching levels
gases” (GHGs) radiate back approximately 83 percent of “unprecedented in at least 800,000 years,”47 temperatures
infrared radiation,40 spreading heat back to land and the have been pushed to levels that increasingly threaten
oceans, and substantially warming the lower atmosphere. ecosystems and human institutions.
In the absence of this natural greenhouse effect, the average
temperature on earth would decline from 57°F to –2.2°F, SRM methods focus on reducing the amount of solar
radically altering life on earth.41 radiation absorbed by the earth (pegged at approximately
235 W/m-2 currently)48 by an amount sufficient to offset the
For the 10,000 years prior to the mid-nineteenth century, increased trapping of infrared radiation by rising levels
the globe’s temperature was relatively steady at 14°C of GHGs.49 Balancing positive global mean radiative
(57°F).42 However, burgeoning emissions of anthropogenic forcing of +4 W/m2, projected with a doubling of carbon
GHGs43 have upset the earth’s climate equilibrium, slightly dioxide from pre-industrial levels, would require reducing
restricting the emission of heat radiation to space.44 To solar radiative forcing by approximately 1.8 percent.50
restore this imbalance, the lower atmosphere has warmed, Even a one percent reduction in forcing would have a
resulting in the emission of more heat in the form of substantial impact, producing a radiative forcing of –2.35
long-wave radiation. This has resulted in an increase in W/m2.51 Recent studies indicate that deployment of SRM
global temperatures of approximately 1°C since the pre- approaches could begin to return temperatures to pre-
industrial era.45 This is termed the “enhanced greenhouse industrial levels within a few years of deployment52 and
potentially restore temperatures to said conditions by the
end of this century.53
39 Climate Central, “What is the greenhouse effect?” (7 November
2009), online: <www.climatecentral.org/library/faqs/what_is_the_ SRM schemes can be subdivided into two categories: those
greenhouse_effect>. Radiation from the sun peaks at a wavelength that seek to reduce the amount of solar radiation reaching
in the range of 0.4–0.7 µ, with small amounts of ultraviolet radiation the top of the atmosphere and those that seek to reflect
down to 0.1 µ and small amounts of infrared radiation in the range
of 3 µ. The earth, being much cooler, radiates energy at 15°C, with
solar radiation within the atmosphere (tropospheric-based
radiation emanation from ranges of 4–100 µ. Martin M Halmann or in the tropopause and above) or at the surface.54 The
& Meyer Steinberg, Greenhouse Gas Carbon Dioxide Mitigation (Boca following sections briefly discuss the most frequently
Raton, FL: Lewis Publishers, 1999) at 1. discussed SRM options.
40 Hardy, supra note 38 at 8.
41 Julie Kerr Caspar, Changing Ecosystems: Effects of Global Warming

(New York, NY: Facts on File, 2010). 46 Australia, Department of the Environment and Energy, “Enhanced
Greenhouse Effect”, online: <www.environment.gov.au/climate-
42 Donald Kennedy & John A Riggs, eds, U.S. Policy and the Global change/climate-science/greenhouse-effect>.
Environment (Washington, DC: The Aspen Institute, 2000) at 11.
47 WMO, “Atmospheric Concentrations of the Greenhouse Gases that
43 Carbon dioxide emissions, primarily linked to fossil fuel production, Cause Climate Change Continue to Rise”, online: <www.wmo.int/
industrial processes and land-use change, have increased over media/content/atmospheric-concentrations-greenhouse-gases-
140 percent from pre-industrial levels. Methane emissions, with cause-climate-change-continue-rise>.
anthropogenic sources associated with ruminants, rice agriculture,
fossil fuel exploitation, landfills and biomass burning, have increased 48 JT Kiehl & Kevin E Trenberth, “Earth’s Annual Global Mean Energy
254 percent from pre-industrial levels. Nitrous oxide emissions have Budget” (1997) 78:2 Bull American Meteorological Soc’y 197 at 198
increased 121 percent from pre-industrial levels, with anthropogenic (1997), online: <climateknowledge.org/figures/Rood_Climate_
sources including soils, ocean, biomass burning, fertilizer use and Change_AOSS480_Documents/Kiehl_Trenberth_Radiative_
industrial processes. Other anthropogenic GHGs contributing Balance_BAMS_1997.pdf>.
to warming include sulphur hexafluoride, chlorofluorocarbons
and halogenated gases, as well as hydrochlorofluorocarbons and 49 Michael C MacCracken, “Beyond Mitigation: Potential Options for
hydrofluorocarbons; World Meteorological Organization [WMO] & Counter-Balancing the Climatic and Environmental Consequences of
Global Atmosphere Watch (9 November 2015) 11 WMO Greenhouse the Rising Concentrations of Greenhouse Gases” (2009), World Bank
Gas Bulletin (November 2015), online: <library.wmo.int/pmb_ged/ Policy Research Working Paper at 15, online: <elibrary.worldbank.
ghg-bulletin_11_en.pdf>. See also US Environmental Protection org/doi/abs/10.1596/1813-9450-4938>.
Agency, “Global Greenhouse Gas Emissions Data”, online: <www3.
epa.gov/climatechange/ghgemissions/global.html>. 50 The Royal Society, supra note 12 at 23.
44 Rasmus E Benestad, “A Mental Picture of the Greenhouse Effect” (21 51 Ibid.

January 2016) Theoretical Applied Climatology 3, DOI: <10.1007/
s00704-016-1732-y>, online: <link.springer.com/article/10.1007/ 52 Ibid at 34.
s00704-016-1732-y/fulltext.html>.
53 David P Keller, Ellias Y Feng & Andreas Oschlies, “Potential
45 Steve Connor, “Global warming: World already halfway towards Climate Engineering Effectiveness and Side Effects During a
threshold that could result in dangerous climate change, say High Carbon Dioxide-Emission Scenario” (25 February 2014)
scientists”, Independent (9 November 2015), online: <www. Nature Communications at 5–6, online: <www.nature.com/
independent.co.uk/environment/climate-change/climate-change- ncomms/2014/140225/ncomms4304/pdf/ncomms4304.pdf>.
global-average-temperatures-break-through-1c-increase-on-pre-
industrial-levels-for-a6727361.html>. 54 Lenton & Vaughan, supra note 35 at 5540.

Sulphur Aerosol Injection century.61 Other studies have concluded that considerably
smaller injections could achieve the same objective.62
Sulphur aerosol injection (SAI) is considered the most Proponents have also touted SAI for its allegedly low cost.
technologically feasible geoengineering option, and thus It has been estimated that injecting enough aerosols into
the most actively investigated currently.55 SAI seeks to the stratosphere to counter even high-emission scenarios
enhance planetary albedo (surface reflectivity of the sun’s would cost only US$1 billion annually, or less than $0.01
radiation)56 through the injection of a gas such as sulphur per year to compensate for each ton of carbon dioxide
dioxide or another gas that will ultimately react chemically emissions.63
in the stratosphere to form sulfate aerosols. Alternatively,
this approach may be effectuated through direct injection There is also empirical evidence to support the potential
of sulphuric acid.57 The high reflectivity of aerosols viability of this approach. Sulfate aerosols are an important
causes a negative forcing that could ultimately cool the component of the troposphere and stratosphere and can
planet.58 Potential delivery vehicles for stratospheric substantially reduce the incoming solar radiation reaching
sulphur dioxide injection include aircraft, artillery shells, the earth’s system during powerful volcanic eruptions.64
stratospheric balloons and hoses suspended from towers.59 For example, the Mount Pinatubo eruption in 1991 spewed
out approximately 20 teragrams of sulfur dioxide into the
The genesis of this approach was a suggestion made stratosphere,65 reflecting enough sunlight back to space to
in 1974 by Russian climatologist Mikhail Budyko that cool the earth by 0.5ºC for a year following the eruption.66
potentially dangerous climate change could be countered
by deploying airplanes to burn sulphur in the atmosphere, Marine Cloud Brightening
producing aerosols to reflect sunlight away.60 A number of
recent studies have indicated that SAI could be an effective Low-level marine stratiform clouds cover approximately
mechanism to ameliorate projected rises in temperature. one-quarter of the oceanic surface and possess albedos
A. V. Eliseev and others concluded that the amount of of 0.3 to 0.7, thus exerting a substantial cooling effect on
sulphur emissions required to compensate for projected the earth’s radiative balance.67 Cloud albedo enhancement
warming by 2050 would be between five and 16 TgS/yr, geoengineering schemes contemplate dispersing seawater
increasing to between 10 and 30 TgS/yr by the end of the
61 AV Eliseev, II Mokhov & AA Karpenko, “Global Warming Mitigation
by Means of Controlled Aerosol Emissions into the Stratosphere:
55 Takanobu Kosugi, “Fail-Safe Solar Radiation Management Global and Regional Peculiarities of Temperature Response as
Geoengineering” (2013) 18 Mitigation Adaptation Strategies for Estimated in IAP RAS CM Simulations” (2009) 22(4) Atmospheric
Global Change 1141 at 1142; Albert C Lin, “Balancing the Risks: Oceanic Optics 388 at 390. 1Tg = 1012 grams, or 1 million metric tons.
Managing Technology and Dangerous Climate Change” (2009) 8(3) Simone Tilmes, Rolf Müller & Ross Salawitch, “The Sensitivity of
Issues in Leg Scholarship, art 2 at 4. Polar Ozone Depletion to Proposed Geoengineering Schemes” (2008)
320 Science 1201 at 1202.
56 “Albedo is the fraction of incident sunlight that is reflected.” Albedo
is measured on a 0–1 scale. If a surface absorbs all incoming sunlight, 62 Philip J Rasch, Paul J Crutzen & Danielle B Coleman, “Exploring the
its albedo is 0; if it is perfectly reflecting, its albedo is 1. Arctic Coastal Geoengineering of Climate Using Stratospheric Sulfate Aerosols: The
Ice Processes, Albedo, online: <www.arcticice.org/albedo.htm>. Role of Particle Size” (2008) 35 Geophysical Research Letters L02809
at 3. “Injection of 1 Tg S/yr as small particles...reduces the warming
57 Philip Rasch, Written Testimony, US House Committee on Science equatorward of 40 degrees to <1K….” See also Paul J Crutzen, “Albedo
and Technology Hearing, “Geoengineering IIe: The Scientific Basis Enhancement by Stratospheric Sulfur Injections: A Contribution to
and Engineering Challenges”, 4 February 2010, at 5, online: <https:// Resolve a Policy Dilemma?” (2006) 77 Climatic Change 211 at 213.
www.gpo.gov/fdsys/pkg/CHRG-111hhrg53007/pdf/CHRG- Stratospheric loading of 1-2 Tg S/yr required; Tom ML Wigley, “Low-
111hhrg53007.pdf>. There have also been suggestions of injecting pre- Intensity Geoengineering Should be Seriously Considered” (21 May
formed particles of other chemicals, e.g., titanium oxide, to effectuate 2008) Bull Atomic Scientists, online: www.thebulletin.org/web-edition/
more control over the process. Peter J Irvine et al, “An Overview of roundtables/has-the-time-come-geoengineering. Peak load of 5 TgS/yr
the Earth System Science of Solar Geoengineering” (2016) WIREs required between 2050 and 2060, declining back to zero by 2090.
Climate Change at 7, DOI: <10.1002/2cc.423>.
63 Jason Blackstock, “Researchers Can’t Regulate Climate Engineering
58 J Hansen et al, “Earth’s Energy Imbalance and Implications” (2011) 11 Alone” (2012) 486 Nature 159 at 159.
Atmospheric Chemistry Physics 13421 at 13438.
64 Rasch et al, supra note 24 at 4010.
59 Alan Robock et al, “Benefits, Risks and Costs of Stratospheric
Geoengineering” (2009) 36 Geophysical Research Letters L19703 65 Ben Kravitz, “Climate Engineering with Stratospheric Aerosols and
at 4–7. Associated Engineering Parameters” (2012) National Academy of
Engineering at 29, online: <https://www.nap.edu/read/18185/
60 MI Budyko, Climatic Changes, translated by Izmeniia Klimata chapter/7>.
(Washington, DC: American Geophysical Union, 1977). “Sulfur in the
stratosphere oxidizes via the reaction with the hydroxyl radical to 66 Richard A Kerr, “Pollute the Planet for Climate’s Sake?” (2008) 315
sulfuric acid.... The sulfuric acid gas forms together with water vapor Science 401 at 401.
sulfate particles.... In the presence of aerosols sulfuric acid gas may
condense onto pre-existing aerosol particles.” J Feichter & T Leisner, 67 John Latham et al, “Global Temperature Stabilization via Controlled
“Climate Engineering: A Critical Review of Approaches to Modify Albedo Enhancement of Low-Level Maritime Clouds” (2008) 366
the Global Energy Balance” (2009) 176 Eur Physical J 81 at 86. Philosophical Transactions Royal Soc’y 3969 at 3970.

droplets approximately one micrometre in size in marine production.76 As is the case with sulphur dioxide injection
stratiform clouds. These droplets would be sufficiently schemes, the cost of this approach could be extremely low,
large to act as cloud condensation nuclei68 when they rise perhaps no more than $9 billion.77
into the bases of stratiform clouds and shrink through
evaporation to about half their original size.69 Increases in Space-based Systems
cloud condensation nuclei increase cloud droplet numbers
and decrease cloud droplet size.70 This enhances overall Space-based methods seek to reduce the amount of solar
droplet surface area and results in an increase in cloud radiation reaching the earth by positioning sunshields
albedo.71 Moreover, it can extend the longevity of clouds, in space to reflect or deflect radiation. As is true with
increasing the time-mean albedo of a region.72 several other SRM options, it may be possible to reduce
solar radiation inflows by 1.8 percent, potentially
Studies indicate that a 50 percent to 100 percent increase offsetting greenhouse effects associated with a doubling
in droplet concentration of all marine stratiform clouds of atmospheric carbon dioxide concentrations.78 Proposed
by mechanical generation of sea salt spray could increase options include placing reflectors in near-earth orbits,
top-of-cloud albedo by 0.02 (approximately 10 percent), including the placement of 55,000 mirrors in random
which could offset warming associated with a doubling orbits or the creation of a ring of dust particles guided
of atmospheric carbon dioxide.73 However, there are by satellites at altitudes of approximately 1,200 to 2,400
substantial uncertainties associated with this approach, miles.79 An alternative approach could be to establish a
including whether increasing cloud condensation nuclei “cloud of spacecraft” with reflectors in a stationary orbit
might ultimate result in evaporation that disrupts cloud near the Inner Lagrange point (L1),80 a gravitationally
albedo.74 Moreover, the requisite top-of-cloud albedo stable point between earth and the sun.81 Proponents argue
to offset the warming associated with a doubling of that this approach would ensure the stability of sunshades,
carbon dioxide levels from pre-industrial levels would be whereas shields positioned in near-orbit could be pushed
markedly greater than estimated in previous studies.75 out of orbit by sunlight.82
Stephen Salter and others have proposed the development Deployment of space-based systems could prove to be
of a fleet of approximately 1,500 remotely controlled spray challenging, however. Some configurations of sunshades
vessels, drawing upon the motion from the vessels to drive could prove to be unstable and, thus, ultimately sail
underwater propellers to generate the energy for spray out of orbit.83 Low earth orbit systems could also face
tracking problems, posing the threat that mirrors could
68 “Cloud condensation nuclei are a subset of the atmospheric aerosol

population, which undergo rapid growth into cloud droplets at
a specified supersaturation.” Gregory C Roberts et al, “Cloud
Condensation Nuclei in the Amazon Basin: ‘Marine’ Conditions Over
a Continent?” (2001) 28:14 Geophysical Research Letters 2807 at 2807. 76 Stephen Salter, Graham Sortino & John Latham, “Sea-Going Hardware
for the Cloud Albedo Method of Reversing Global Warming” (2008)
69 Keith Bower et al, “Computations Assessment of a Proposed 366 Philosophical Transactions Royal Soc’y 3989 at 3994, 4004.
Technique for Global Warming Mitigation via Albedo-Enhancement
of Marine Stratocumulus Clouds” (2006) 82:1-2 Atmospheric 77 Morton, supra note 74.
Research 328 at 329.
78 Takanobu Kosugi, “Role of Sunshades in Space as a Climate Control
70 RD Borys, DH Lowenthal & MA Wetzel, “Chemical and Option” (2010) 67 Acta Astronautica 241 at 242.
Microphysical Properties of Marine Stratiform Cloud” (1998) 103 J
Geophysical Research: Atmospheres No. D17 at 22,073; Alan Robock 79 The Royal Society, supra note 12 at 32.
et al, “Studying Geoengineering with Natural and Anthropogenic
Analogs” (2013) 121 Climatic Change 445 at 452. 80 Roger Angel, “Feasibility of Cooling the Earth with a Cloud of
Small Spacecraft Near the Inner Lagrange Point (L1)” (2006) 103:46
71 Bower et al, supra note 69 at 329. Proceedings Nat’l Acad Sci 17184 at 17184.
72 Andy Jones, John Latham & Michael H Smith, “Radiative Forcing 81 Katharine Ricke et al, “Unilateral Engineering”, Non-technical Briefing
Due to Modification of Marine Stratocumulus Clouds” National Notes for a Workshop at the Council on Foreign Relations Washington
Center for Atmospheric Research at 1, online: www.mmm.ucar.edu/ DC, 5 May 2008 at 6, online: <d1027732.mydomainwebhost.com/
people/latham/files/cloud_albedo_gcm_modelling_paper.pdf. articles/articles/cfr_geoengineering.pdf>. The Lagrange L1 point is
about 900,000 miles from the earth. The Royal Society, supra note 12 at
73 Lenton & Vaughan, supra note 35 at 5548; Philip Rasch, C-C (Jack) Chen 32. The plan, developed by Roger Angel at the University of Arizona,
& John Latham, “Global Temperature Stabilisation via Cloud Albedo contemplates the production of approximately 15 trillion silicon discs
Enhancement: Geoengineering Options to Respond to Climate Change” about 60-70 centimeters across; the discs would be studded with holes
Response to National Academy Call, online: <americasclimatechoices. that could scatter incoming light. David L Chandler, “Global Shades”
org/Geoengineering_Input/attachments/Latham%20National%20 (21 July 2007) New Science at 44.
Academy%20Geoengineering%20090615.pdf>.
82 David W Keith, “Geoengineering the Climate: History and Prospect”
74 Oliver Morton, “Great White Hope” (2009) 458 Nature 1097 at 1099. (2000) 25 Annual Rev Energy & Environment 245 at 263.
75 Lenton & Vaughan, supra note 35 at 5548. 83 Ibid.

collide.84 The cost of deployment would also be extremely Ocean Iron Fertilization
high, pegged at approximately $5 trillion by one major
proponent,85 with some commentators projecting the In a process known as “the biological pump,” the
cost to be potentially much higher.86 Given the existence production of organic matter by phytoplankton in the
of cheaper and less logistically challenging SRM options, world’s oceans results in the absorption of carbon dioxide
“sunshade” approaches are not likely to be launched any from the atmosphere to facilitate photosynthesis, thus
time soon.87 lowering concentrations.94 While phytoplankton account
for less than one percent of photosynthetic biomass,
CDR APPROACHES they are responsible for approximately half of the carbon
fixation on earth.95 A proportion of particulate organic
CDR options seek to remove and sequester carbon dioxide carbon from phytoplankton sinks into the deeper ocean
from the atmosphere, either by enhancing natural biological (below 200 m) before it decays, and can remain at these
sinks for carbon or by deploying chemical engineering depths, thus sequestering carbon dioxide from the
to remove carbon dioxide from the atmosphere.88 This, atmosphere, for hundreds of years.96
in turn, can increase the amount of long-wave radiation
emitted by the earth back to space, reducing radiative Phytoplankton production, in turn, is dependent on a
forcing and thus exerting a cooling effect.89 variety of nutrients, including macronutrients, such as
nitrogen and phosphate, and micronutrients, such as
In contrast to SRM options, which can begin to affect iron and zinc.97 Proponents of an option known as ocean
temperatures very rapidly,90 CDR approaches would likely iron fertilization argue that phytoplankton production is
have to be deployed on a large scale for at least a century to limited due to low concentrations of iron in the southern
substantially reduce atmospheric concentrations of carbon ocean, subarctic Pacific and eastern equatorial Pacific
dioxide.91 However, also in contrast to SRM options, CDR waters.98 They argue that adding iron artificially in these
technologies address the proximal cause of warming92 regions could stimulate phytoplankton production, thus
and could restore carbon dioxide to pre-industrial levels enhancing carbon dioxide uptake.99
within a few centuries.93 In the following sections, the most
frequently discussed CDR options will be discussed. Several studies in the past few decades have indicated that
ocean iron fertilization could reduce atmospheric carbon
dioxide levels substantially, perhaps by 10 percent or
84 B Govindasamy, K Caldeira & PB Duffy, “Geoengineering Earth’s
Radiation Balance to Mitigate Climate Change from a Quadrupling
of CO2” (2003) 37 Global & Planetary Change 157 at 167.
85 Angel, supra note 80 at 17,189.

94 RS Lampitt et al, “Ocean Fertilization: A Potential Means of
86 Eric Bickel & Lee Lane, “An Analysis of Climate Engineering as a Geoengineering?” (2008) 366 Philosophical Transactions Royal Soc’y
Response to Climate Change”, Copenhagen Consensus Center 3919 at 3920.
(2009) at 48, online: <fixtheclimate.com/fileadmin/templates/
page/scripts/downloadpdf.php?file=/uploads/tx_templavoila/ 95 Sallie W Chisholm, Paul G Falkowski & John J Cullen, “Dis-Crediting
AP_Climate_Engineering_Bickel_Lane_v.5.0.pdf>. Ocean Fertilization” (2001) 294 Science 309 at 309.
87 Daniel J Lunt, “Sunshades for Solar Radiation” in Tim Lenton & 96 Michelle Allsopp, David Santillo & Paul Johnston, “A Scientific
Naomi Vaughan, eds, Geoengineering Responses to Climate Change Critique of Ocean Iron Fertilization as a Climate Change Mitigation
(New York, NY: Springer, 2013) 19. Strategy” (September 2007) Greenpeace Research Labs Technical
Note 07/2007 at 5, online: <www.climos.com/imo/Other/Other_
88 Timothy Lenton, “The Global Potential for Carbon Dioxide Removal” greenpeace_iron_fert_critiq_Sep2007.pdf>.
(2014) in RM Harrison & RE Hester, eds, Geoengineering of the Climate
System (Washington, DC: Royal Society of Chemistry, 2014) 53. 97 Kenneth R Arrigo, “Marine Microorganisms and Global Nutrient
Cycles” (2005) 437 Nature 349 at 355.
89 Lenton & Vaughan, supra note 35 at 5540.
98 Sanjay K Singh et al, “Response of Bacterioplankton to Iron
90 The Royal Society, supra note 12 at 34. SRM methods could begin Fertilization of the Southern Ocean, Antarctica” (2015) Frontiers in
returning temperatures back to pre-indusrial conditions “within a Microbiology 1 at 2, DOI: <10.3389/fmicb.2015.00863>, online: <dx.
few years of deployment”. doi.org/10.3389/fmicb.2015.00863>; Victor Smetacek et al, “Deep
Carbon Export from a Southern Ocean Iron-Fertilized Diatom Bloom”
91 P Ciasis et al, “Carbon and other Biogeochemical Cycles, in Climate (2012) 487 Nature 313 at 313. Such areas comprise approximately 20
Change 2013: The Physical Science Basis Contribution of Working percent of the surface ocean; Long Cao & Ken Caldeira, “Can Ocean
Group I to the First Assessment Report of the Intergovernmental Iron Fertilization Mitigate Ocean Acidification?” (2010) 99 Climatic
Panel on Climate Change” (2013) at 546, online: <www.ipcc.ch/ Change 303 at 304.
report/ar5/wg1/>.
99 Matthew Hubbard, “Barometer Rising: The Cartagena Protocol on
92 Sabine Mathesius et al, “Long-Term Response of Oceans to CO2 Biosafety as a Model for Holistic International Regulation of Ocean
Removal from the Atmosphere” (2015) 5 Nature Climate Change 1117 Fertilization Projects and Other Forms of Geoengineering” (2016)
at 1117 (2015). 40 Wm & Mary Envtl L & Pol’y Rev 591 at 598; Christine Bertram,
“Ocean Iron Fertilization in the Context of the Kyoto Protocol and the
93 Lenton & Vaughan, supra note 35 at 5556. Post-Kyoto Process” (2010), 8 Energy Pol’y 1130 at 1130.

more.100 However, a number of more recent studies, largely of carbon dioxide.104 BECCS technologies could capture
reflecting field research on ocean iron fertilization, have 90 percent or more of the carbon dioxide released through
questioned these findings. The IPCC, in its most recent biomass production.105
assessment report, has concluded that the drawdown of
atmospheric carbon dioxide with ocean iron fertilization After capture, carbon dioxide is compressed and
could be as low as 15 to 30 parts per million, even under transported to a site for storage, either underground or
idealized conditions.101 Moreover, the Secretariat of the in the oceans.106 There are also proposals for using carbon
Convention on Biological Diversity, in its synthesis report dioxide for other purposes, such as enhanced oil recovery
on geoengineering, concluded that ocean iron fertilization and biochemical conversion into biofuels or for energy
could only exert a “minor impact” on atmospheric storage technologies.107
concentrations of carbon dioxide.102
BECCS is one of a group of carbon dioxide removal options
Bioenergy with Carbon Capture and Storage characterized as “negative emissions technologies” (NETs)
because these approaches are capable of removing GHGs
Bioenergy with carbon capture and storage (BECCS) is a from the atmosphere, capturing carbon dioxide at the
process by which biomass is converted to heat, electricity source or engineering enhancement of natural carbon
or liquid or gas fuels, coupled with carbon capture and sinks.108 BECCS effectuates this by the absorption of carbon
sequestration (CCS). Bioenergy feedstocks include the dioxide through the growth cycle of biomass feedstocks
following: and the capture of the carbon dioxide produced during
the combustion of biomass energy.109 The vast majority of
• energy derived from woody biomass harvested from
forests, including fuel wood, charcoal and residues;
• energy crops, such as jatropha and palm; 104 Steve Rackley, Carbon Capture and Storage (Amsterdam: Elsevier, 2009)
at 21.
• food crops, including corn, sweet sorghum and
annual crops, such as switchgrass; and 105 Joris Kornneeff et al, “Global Potential for Biomass and Carbon
Dioxide Capture, Transport and Storage up to 2050” (2012) 11 Intl J
• agro-residues (animal manure and crop residues), Greenhouse Gas Control 117 at 118.
agro-industrial and municipal solid wastes and other
106 US Environmental Protection Agency, “Carbon Dioxide Capture
biological resources.103 and Sequestration”, online: <www3.epa.gov/climatechange/
ccs/#CO2Capture>; Intergovernmental Panel on Climate Change,
In the context of power production facilities, the CCS (2005) “Special Report: Carbon Dioxide Capture and Storage” 195–307,
process involves capturing carbon dioxide from flue gases online: <digital.library.unt.edu/ark:/67531/metadc12051/m2/1/
in the post-combustion phase or modifying the combustion high_res_d/srccs_wholereport.pdf>. Terrestrial storage options
include depleted reservoirs for oil and gas and deep saline aquifers:
process to generate pure or high-concentration streams Ben Caldecott, Guy Lomax & Mark Workman, “Stranded Carbon
Assets and Negative Emissions Technologies” (February 2015) Smith
School of Enterprise and the Environment, University of Oxford,
Working Paper at 18, online: <www.smithschool.ox.ac.uk/research-
programmes/stranded-assets/Stranded%20Carbon%20Assets%20
100 V Melissa Eick, “A Navigational System for Uncharted Waters: The and%20NETs%20-%2006.02.15.pdf>.
London Convention and London Protocol’s Assessment Framework
on Ocean Iron Fertilization” (2010) 46 Tulsa L Rev 351 at 357; Victor 107 Rowan Oloman, “Carbon Recycling: An Alternative to Carbon
Smetacek & SWA Maqvi, “The Next Generation of Iron Fertilization Capture and Storage” (August 2009) 236:8 Pipeline & Gas J, online:
Experiments in the Southern Ocean” (2008) 366 Philosophical <pgjonline.com/2009/08/06/carbon-recycling-an-alternative-
Transactions Royal Soc’y 3947 at 3956; F Joos, JL Sarmiento & U to-carbon-capture-and-storage/>; Alexandra B Klass & Elizabeth
Siegenthaler, “Estimates of the Effect of Southern Ocean Fertilization J Wilson, “Carbon Capture and Sequestration: Identifying and
on Atmospheric CO2 Concentrations” (2001) 349 Nature 772 at 773. Managing Risks” (2009) 8:3 Art 1 Issues in Leg Scholarship 1 at 6,
online: <scholarship.law.umn.edu/cgi/viewcontent.cgi?article=103
101 Ciasis et al, supra note 91 at 551. 7&context=faculty_articles>; Peter Maloney, “General Electric Seeks
to Capture CO2 for Storage, Utility Dive”, 12 March 2016, online:
102 Secretariat of the Convention on Biological Diversity, “Scientific <www.utilitydive.com/news/general-electric-seeks-to-capture-co2-
Synthesis of the Impacts of Ocean Fertilization on Marine for-energy-storage/415514/>.
Biodiversity” (2009) CBD Technical Series No 45 at 22, online:
<www.cbd.int/doc/publications/cbd-ts-45-en.pdf>. See also US 108 T Gasser et al, “Negative Emissions Physically Needed to Keep Global
Government Accountability Office, Center for Science, Technology Warming Below 2°C” (2015) 6 Nature Communications Art No 7958
and Engineering, “Climate Engineering” Technology Assessment at 2; UK Parliament, Parliamentary Office of Science & Technology,
(July 2011) at 29, online: <www.gao.gov/new.items/d1171.pdf>. “Negative Emissions Technologies” (October 2013) POSTnote 447 at
1, online: <researchbriefings.files.parliament.uk/documents/POST-
103 Alisher Mirzabaev et al, “Bioenergy, Food Security and Poverty PN-447/POST-PN-447.pdf>.
Reduction” (July 2014) Center for Development Research, University
of Bonn, Working Paper No 135 at 11; Venkatesh Balan, “Current 109 C Gough & NE Vaughan, “Synthesizing Existing Knowledge on
Challenges in Commercially Producing Biofuels from Lignocellulosic the Feasibility of BECCS” (February 2015) AVOID2 at 5, online:
Biomass” (2014) 12 Intl Scholarly Research Notices: Biotechnology <avoid-net-uk.cc.ic.ac.uk/wp-content/uploads/delightful-
1 at 4–5; Ayhan Demirbas, “Bioenergy, Global Warming, and downloads/2015/07/Synthesising-existing-knowledge-on-the-
Environmental Impacts” (2010) 26 Energy Sources 225 at 226. feasibility-of-BECCS-AVOID-2_WPD1a_v1.pdf>.

mitigation scenarios developed in integrated assessment 1,000 times more carbon dioxide than could a tree of
models, under which temperatures are kept to 2°C or below, comparable size.117
contemplate extensive deployment of NETs during the
course of this century,110 with BECCS cited as the primary Once carbon dioxide-capturing sorbents become
NETs option.111 However, the actual potential of BECCS to saturated, a regeneration process is used to release the
sequester carbon is highly uncertain at this incipient stage carbon dioxide for pipeline compression and storage
of development.112 One recent study projected potential or re-use in other processes.118 Captured carbon dioxide
sequestration of 1.5 GtCO2/yr by 2050 and 5 to 16 GtCO2/ could be stored using the methods described above in
yr by 2100,113 while another pegs the potential range at terms of BECCS or for alternative purposes.119 One clear
between 1.8 and 17.4 GtC/yr.114 By means of comparison, benefit of DAC systems is that they can facilitate uptake of
global carbon dioxide emissions in 2015 were estimated to carbon dioxide emissions from small and hard-to-control
be 35.7 GtC.115 distributed sources, such as the transportation sector,
which constitute more than half of total emissions.120 As is
Direct Air Capture the case with BECCS, DAC constitutes a negative emissions
technology.121 One recent study of DAC potential in the
Direct air capture (DAC) is a process for extracting carbon United States alone estimated that it might be possible to
dioxide from ambient air in a closed-loop industrial sequester approximately 13 GtCO2/yr, with cumulative
process. The most widely discussed method involves removal of approximately 1,100 Gt up to 2100,122 while
drawing air through towers and bringing it into contact another study estimated sequestration potential of
with a chemical solution that naturally absorbs carbon between 3.7 and 10 GtCO2/yr by 2100.123
dioxide, such as sodium hydroxide, in a device called a
contactor.116 These machines could be capable of capturing While there are efforts currently to develop pilot
demonstration projects, an imposing barrier to large-scale
deployment of DAC may be its potential costs, with some
110 IPCC, Fifth Assessment Report, Working Group III, Ch 6, “Assessing
Transformation Pathways” at 93; Etsushi Kato & Yoshiki Yamagata,
estimates ranging from $600 to thousands of dollars per ton
“BECCS Capability of Dedicated Bioenergy Crops under a Future of captured carbon dioxide.124 However, other researchers
Land-Use Scenario Targeting Net Negative Carbon Emissions” (2014)
2 Earth’s Future 421 at 421. “Of the 400 [IPCC] scenarios that have a
50% or better chance of no more than 2°C warming…344 assume the
successful and large-scale uptake of negative-emission technologies;”
Kevin Anderson, “Duality in Climate Science” (2015) 8 Nature
Geoscience 989 at 989 . 117 Marianne Lavelle, “Out of Thin Air: The Quest to Capture Carbon
Dioxide” (12 August 2011) National Geographic, online: <news.
111 Gasser et al, supra note 108 at 5. See also José Roberto Moreira et al, nationalgeographic.com/news/energy/2011/08/110811-quest-to-
“BECCS Potential in Brazil: Achieving Negative Emissions in Ethanol capture-carbon-dioxide/>.
and Electricity Production Based on Sugar Cane Bagasse and Other
Residues” (2016) 179 Applied Energy 55 at 56; BECCS “will play a 118 Duncan McClaren, “Capturing the Imagination: Prospects for Direct
vital role in reaching the required level of emission reductions in Air Capture as a Climate Measure” (25 March 2014) Geoengineering
the future.” Sabine Fuss, “Betting on Negative Emissions” (2014) 4 our Climate? Ethics, Politics and Governance, Case Study at 1-2,
Nature Climate Change 850 at 850. online: <geoengineeringourclimate.com/2014/03/25/capturing-the-
imagination-prospects-for-direct-air-capture-as-a-climate-measure-
112 There are currently 15 pilot-scale BECCS plants globally; Gough case-study/>.
& Vaughan, supra note 109 at 20. And the first large-scale BECCS
plant is due to begin operation in 2016; Global CCS Institute, Illinois 119 See supra note 107. See also David W Keith, Kenton Heidel &
Industrial Carbon Capture and Storage Project, online: <www. Robert Cherry, “Capturing CO2 from the Atmosphere: Rationale
globalccsinstitute.com/projects/illinois-industrial-carbon-capture- and Process Design Considerations” in B Launder & M Thompson,
and-storage-project>. eds, Geo-Engineering Climate Change: Environmental Necessity or
Pandora’s Box (Cambridge, UK: Cambridge University Press, 2010)
113 Caldecott, Lomax & Workman, supra note 106 at 19, 22. 125, online: <keith.seas.harvard.edu/papers/116.Cherry.Heidel.
CapCO2FromAtmosp.p.pdf>; Eli Kintisch, “Can Sucking CO2 Out
114 Andrew Wiltshire & T Davies-Barnard, “Planetary Limits to of the Atmosphere Really Work?” (7 October 2014) MIT Tech Rev,
BECCS Negative Emissions” (March 2015) AVOID2 at 15, online: online: <www.technologyreview.com/s/531346/can-sucking-co2-
<avoid-net-uk.cc.ic.ac.uk/wp-content/uploads/delightful- out-of-the-atmosphere-really-work/>.
downloads/2015/07/Planetary-limits-to-BECCS-negative-
emissions-AVOID-2_WPD2a_v1.1.pdf>. 120 Manya Ranjan & Howard J Herzog, “Feasibility of Air Capture”
(2011) 4 Energy Procedia 2869 at 2870; David Keith, “Why Capture
115 Robert B Jackson, “Reaching Peak Emissions” (January 2016) 6 CO2 from the Atmosphere?” (2009) 325 Science 1654 at 1655.
Nature Climate Change 7 at 7.
121 Caldecott, Lomax & Workman, supra note 106 at 7.
116 Robert Socolow et al, “Direct Air Capture of CO2 with Chemicals”
(2011) American Physical Society at 7–9, online: <https://www. 122 Climate Intervention: Reflecting Sunlight to Cool Earth, supra note 30 at 75.
aps.org/policy/reports/assessments/upload/dac2011.pdf>. Other
potential capture methods include mineral capture by water of 123 Caldecott, Lomax & Workman, supra note 106 at 22.
crystallization or hydroxyl cation cycles; R Stuart Haszeldine, “Can
CCS and NET Enable the Continued Use of Fossil Carbon Fuels after 124 Socolow et al, supra note 116 at i; Ranjan & Herzog, supra note 120 at
CoP21?” (2016) 32:2 Oxford Rev Econ Pol’y 304 at 310. 2875.

have contended that the costs could be much lower.125 reaching similar findings.131 Reductions of this magnitude
Other challenges would include finding suitable sites for could modify the Asian and African monsoons, “impacting
carbon dioxide sequestration, as well as safety, public the food supply to billions of people”132 and visiting
perception and sequestration reliability questions.126 “humanitarian disasters” upon such regions.133 The
South Asian summer monsoon provides up to 80 percent
Potential Risks Associated with Climate of annual mean precipitation in India, sustaining the
Geoengineering country’s agriculture, health and water needs.134 In Africa,
production of important crops such as maize are critically
SRM OPTIONS linked to the timing and duration of precipitation.135
Recent research indicates that deployment of SAI in the
Potential Precipitation Impacts northern hemisphere could trigger droughts in the Sahel,
potentially reducing net primary productivity by 60 to
SAI geoengineering could adversely impact the globe’s 100 percent.136 There is also empirical support for this
hydrological cycle. SAI could abate increases in surface proposition. As indicated above, when Mount Pinatubo
temperatures by reducing incoming solar radiation. erupted in 1991, it released approximately 20 teragrams
However, continued simultaneous absorption of long- into the stratosphere.137 This is the mid-range estimate
wave radiation by rising levels of atmospheric carbon of the amount of sulphur dioxide that might have to be
dioxide could increase the vertical stability of atmosphere. injected into the stratosphere by the end of the century
This could, in turn, suppress convective activities and, to compensate for twenty-first century warming.138 In the
most importantly, precipitation.127 Additionally, infrared year following the eruption, the earth experienced the least
absorption by the introduction of sulphur aerosols into the amount of rainfall on record, more than 50 percent lower
stratosphere could decrease the downward emission of than in any previous year,139 as well as a record decrease in
infrared radiation into the troposphere, further reducing runoff and discharge into the ocean.140
precipitation.128
However, one must be cautious about potential
While the deployment of SAI geoengineering could precipitation impacts of SRM options, and substantial
result in a decline in mean global precipitation, its
impacts could be far more severe in the global south.129
H. Schmidt and others projected that deployment could
reduce precipitation by 20 percent in the southern branch 131 U Niemeier, “Solar Irradiance Reduction via Climate Engineering:
Impact of Different Techniques on the Energy Balance and the
of the inter-tropic convergence zone,130 with U. Niemeier Hydrological Cycle” (2013) 118 J Geophysical Research: Atmospheres
11,095 at 11,915.
132 The Royal Society, supra note 12 at 31.
133 Holly Jean Buck, “Geoengineering: Re-Making Climate for Profit or

125 Xiaoyang Shi, “Capture CO2 from Ambient Air Using Nanoconfined Humanitarian Intervention?” (2011) 43:1 Development & Change 253
Iron Hydration” (2016) 128 Angewandte Chemie 4094 to 97; at 255.
Chen & Massimo Tavoni, “Direct Air Capture of CO2 and Climate
Stabilization: A Model Based Assessment” (2013) 118 Climatic 134 Massimo A Bollasina, Yi Ming & V Ramaswamy, “Anthropogenic
Change 59 at 60; Geoffrey Holmes & David W Keith, “An Air-Liquid Aerosols and the Weakening of the South Asian Summer Monsoon”
Contractor for Large-Scale Capture of CO2 from Air” (2012) 370 (2011) 334 Science 502 at 502.
Philosophical Transactions Royal Soc’y A 4380–4403.
135 Pablo Suarez, “Geoengineering and the Humanitarian Challenge:
126 Climate Intervention: Reflecting Sunlight to Cool Earth, supra note 30 at 75. What Role for the Most Vulnerable?” (13 August 2013)
Geoengineering our Climate, Opinion Article at 3, online: <https://
127 Cao Long, Gao Chao-Chao & Zhao Li-Yun, “Geoengineering: Basic geoengineeringourclimate.files.wordpress.com/2013/08/suarez-et-
Science and Ongoing Research Efforts” (2015) 6 Advances in Climate al-2013-ge-and-the-humanitarian-challenge-click-for-download.pdf>.
Change Research 188 at 190; Alan Robock, “Stratospheric Aerosol
Geoengineering” (2015) AIP Conference Proceedings 1652 at 190. 136 Jim M Haywood et al, “Asymmetric Forcing from Stratospheric
Aerosols Impacts Sahelian Rainfall” (2013) 3 Nature Climate Change
128 Angus J Ferraro & Hannah G Griffiths, “Quantifying the temperature- 660 at 663.
independent effect of stratospheric aerosol geoengineering on
global-mean precipitation in a multi-model ensemble” (2016) 11 137 Kravitz, supra note 65.
Envtl Research Letters 1 at 16 (2016), online: <iopscience.iop.org/
article/10.1088/1748-9326/11/3/034012/pdf>. 138 Eliseev, Mokhov & Karpenko, supra note 61 at 390.
129 H Damon Matthews & Ken Caldeira, “Transient Climate-Carbon 139 Kevin Bullis, “The Geoengineering Gambit” (21 December 2009) MIT
Simulations of Planetary Geoengineering” (2007) 104 Proceedings Technology Rev, online: <www.technologyreview.com/s/416801/
Natl Acad Sci 9949 at 9951. the-geoengineering-gambit/>. See also Gabriele C Hegerl & Susan
Solomon, “Risks of Climate Engineering” (2009) 325 Science 955 at 955.
130 H Schmidt et al, “Solar Irradiance Reduction to Counteract Radiative
Forcing from a Quadrupling of CO2: Climate Responses Simulated 140 G Bala, PB Duffy & KE Taylor, “Impact of Geoengineering Schemes
by Four Earth System Models” (2012) 3 Earth Systems Dynamics 63 on the Global Hydrological Cycle” (2008) 105:22 Proceedings Natl
at 72. Acad Sci 7664 at 7664.

additional research would clearly be needed if such is a major contributor to these impacts.148 Fortunately, the
options were to be considered.141 As Simon Tilmes and establishment of the Montreal Protocol, with its scheduled
others observe, “different models and scenarios do not phaseout of most ozone-depleting substances, has been
always agree in the sign of the change of monsoonal projected to reduce the number of skin cancer cases by
precipitation in response to geoengineering.”142 Moreover, 14 percent annually by 2030, translating into two million
some researchers contend that temperature reductions cases. Moreover, these numbers are anticipated to “grow
associated with SRM deployment would also decrease dramatically” thereafter.149
evaporation, increasing soil moisture and potentially
offsetting any possible loss in food production.143 Deployment of SAI geoengineering options, however,
could radically change this equation. Injection of sulphur
Marine cloud brightening geoengineering options also dioxide particles into the stratosphere would substantially
pose dangers in this context. One recent study indicated increase the available surface areas for heterogeneous
that deployment could reduce precipitation by 50 percent reactions in which inactive forms of chlorine and bromine
in some areas of South America, with a corresponding could be converted to forms that could facilitate catalytic
decline in net primary productivity by as much as 50 to destruction of ozone.150 Thus, while current international
100 percent.144 The impact of space-based systems on policies could facilitate a return of stratospheric ozone levels
precipitation remains unclear,145 but several researchers to their original states by 2050,151 large-scale deployment
have expressed fear about potential adverse impacts on of SAI geoengineering options could delay recovery of the
regional precipitation, especially in the tropics.146 ozone layer for 30 to 70 years or more.152 Moreover, the
projected loss of ozone would be “remarkable,” perhaps
Potential Impacts on the Ozone Layer reaching levels higher than the peak of depletion by ozone-
depleting substances in the last century.153 In some winters,
Sunlight-related skin cancer is responsible for the loss of ozone would be comparable to the total amount
approximately 60,000 human deaths annually, as well of ozone available in the lower portions of the stratosphere
as hundreds of thousands of new cases and billions of
dollars in direct economic losses.147 The diminution of the
ozone layer over the past few decades, which is primarily
attributable to anthropogenic ozone-depleting substances,
148
Center for International Earth Science Information Network,
The Relationship of Skin Cancer Prevalence and the Increase in
Ultraviolet-B Exposure Due to Ozone Depletion, online: <www.
ciesin.org/TG/HH/ozskin1.html>; WJM Martens et al, “The Impact
141 CJ Gabriel & A Robock, “Stratospheric Geoengineering Impacts on of Ozone Depletion on Skin Cancer Incidence: An Assessment of the
El Niňo/Southern Oscillation” (2015) 15 Atmospheric Chemistry & Netherlands and Australia” (1996) 1 Envtl Modeling & Assessment
Physics Discussions 9173 at 9187. 229–40.
142 Simon Tilmes et al, “The Hydrological Impact of Geoengineering 149 Arjan van Dijk et al, “Skin Cancer Risks Avoided by the Montreal
in the Geoengineering Model Intercomparison Project (GeoMIP)” Protocol—Worldwide Modelling Integrating Coupled Climate-
(2013) 118 J Geophysical Research: Atmospheres 11,036 at 11,037. Chemistry Models with a Risk Model for UV” (2013) 89
Photochemistry & Photobiology 234 at 234. See also MP Chipperfield
143 DJ Lunt et al, “‘Sunshade World:’ A Fully Coupled GCM Evaluation et al, “Quantifying the Ozone and Ultraviolet Benefits of Already
of the Climate Impacts of Geoengineering” (2008) 35 Geophysical Achieved by the Montreal Protocol” (2014) 6 Nature Communications
Research Letters 1 at 4. 1 at 8, DOI: <10.1038/ncomms8233>.
144 Andy Jones, Jim Haywood & Olivier Boucher, Climate Impacts 150 DK Weisenstein, DW Keith & JA Dykema, “Solar Geoengineering
of Geoengineering Marine Stratocumulus Clouds (2009) 114 J Using Solid Aerosol in the Stratosphere” (2015), 15 Atmospheric
Geophysical Research 1 at 5, D10106. Chemistry & Physics 11835 at 11846; FD Pope et al, “Stratospheric
Aerosol Particles and Solar-Radiation Management” (2012) 2 Nature
145 The Royal Society, supra note 12 at 33. Climate Change 713 at 715.
146 Lunt et al, supra note 143 at 4; U.S. House of Representatives, 151 UNEP, Ozone Secretariat, Synthesis of the 2014 Reports of the Scientific,
Committee on Science and Technology, 111th Cong, Engineering the Environmental Effects, and Technology & Economic Assessment Panels
Climate: Research Needs and Strategies for International Coordination of the Montreal Protocol (2014) at 5, online: <ozone.unep.org/
(2010) Serial No. 111-A at 42. Lunt et al contend that regional declines Assessment_Panels/SynthesisReport2014.pdf>.
in precipitation in a “sunshade world” would not, however, likely
adversely crop production because lowered surface temperatures 152 Simone Tilmes, Rolf Müller & Ross Salawitch, “The Sensitivity of
would lead to a decline in temperatures and a small increase in soil Polar Ozone Depletion to Proposed Geoengineering Schemes” (2008)
moisture. 320 Science 1201 at 1204.
147
Ken Caldeira & Lowell Wood, “Global and Arctic Climate 153 P Heckendorn et al, “The Impact of Geoengineering Aerosols on
Engineering: Numerical Model Studies” (2009) 366 Philosophical Stratospheric Temperature and Ozone” (2009) 4 Envtl Research
Transactions Royal Soc’y A 4039 at 4050. Letters 1 at 7.

above the Arctic, with drastic declines over the Antarctic years.160 Projected temperature increases after termination
as well.154 would occur more rapidly than during one of the most
extreme and abrupt global warming events in history,
The Threat of a Termination Effect the Paleocene-Eocene Thermal Maximum.161 It is beyond
contention that climatic changes of this magnitude “could
The “termination effect” refers to the potential for a trigger unimaginable ecological effects.”162 To put this rate
huge multi-decadal pulse of warming, should the use of of temperature increase in perspective, even a warming
a deployed SRM scheme be terminated abruptly due to rate of greater than 0.1ºC per decade could threaten most
technological failure, a pandemic, war or a decision by major ecosystems and decrease their ability to adapt.163
future policy makers that its negative impacts compelled Should temperatures increase at a rate of 0.3ºC per decade,
them to do so.155 This would be a consequence of the buildup only 30 percent of all impacted ecosystems and only
of carbon dioxide that had accrued in the atmosphere in 17 percent of all impacted forests would be able to adapt.164
the interim, with its suppressed warming effect, as well as Moreover, temperature increases of this magnitude and
the temporary suppression of climate-carbon feedbacks.156 rapidity would imperil many human institutions.165
The ramifications of the termination effect could be It is also likely that the termination effect would have
“catastrophic.”157 As one study recently concluded, disproportionate impacts on some of the world’s poorest
“[S]hould the engineered system later fail for technical or and most vulnerable peoples, as the greatest acceleration
policy reasons, the downside is dramatic.... The climate of warming over land would be projected to occur in lower
suppression has only been temporary, and the now CO2- latitudes.166 Moreover, net primary productivity could
loaded atmosphere quickly bites back, leading to severe decline in low latitude regions.167
and rapid climate change with rates up to 20 times the
CDR OPTIONS: POTENTIAL NEGATIVE IMPACTS
current rate of warming of approximately 0.2ºC per
decade.”158 Ocean iron fertilization could pose several risks to
ecosystems and humans who rely on ocean resources.
As a consequence, temperatures could increase 6ºC to
Assuming that fertilization spurs the proliferation of
10ºC in the winter in the Arctic region within 30 years of
phytoplankton, there is a real danger that it could result
termination of the use of SRM technology, with northern
in shifts in community composition that could threaten
land masses seeing increases of 6ºC in the summer.159
Moreover, temperatures could jump 7ºC in the tropics in 30
160 Eli Kintisch, “Scientists Say Continued Warming Warrants Closer
Look at Drastic Fixes” (2007) 318 Science 1054 at 1055.
161 Ibid.
154 Tilmes, Müller & Salawitch, supra note 152 at 1203. Stratospheric
ozone depletion increased in the Arctic after the eruption of Mt. 162 Ibid. See also Andrew Ross & H Damon Matthews, “Climate
Pinatubo released 20 Mt. of SO2 into the stratosphere in 1991; Tilmes Engineering and the Risk of Rapid Climate Change” (October-
et al, supra note 142 at 11,037. It was estimated that the global column December 2009) 4 Envtl Research Letters 045103, online: <iopscience.
ozone loss after Mt. Pinatubo was 2.5 percent, while the loss after the iop.org/1748-9326/4/4/045103>. “It seems likely that two decades
eruption of El Chicón in 1982 was approximately 16 percent; Paul of very high rates of warming would be sufficient to severely stress
Crutzen, “Albedo Enhancement by Stratospheric Sulfur Injections: the adaptive capacity of many species and ecosystems, especially if
A Contribution to Resolve a Policy Dilemma” (2006) 77 Climatic preceded by some period of engineered climate stability.”
Change 211 at 215.
163 A Vliet & R Leemans, “Rapid Species’ Response to Changes in
155 Seth D Baum, “The Great Downside Dilemma for Risky Emerging Climate Require Stringent Climate Protection Targets” (2006)
Technologies” (2014) 89 Physica Scripta 1 at 4; Andrew Ross and Avoiding Dangerous Climate Change at 135–41.
H Damon Matthews, “Climate Engineering and the Risk of Rapid
Climate Change” (2009) 4 Envtl Research Letters 1 at 5. 164 R Leemans & B Eickhout, “Another Reason for Concern: Regional
and Global Impacts on Ecosystems for Different Levels of Climate
156 H Damon Matthews & Ken Caldeira, “Transient Climate-Carbon” Change” (2004) 14 Global Envtl Change: Human Pol’y Dimensions
(2007) 104:2 Proceedings Natl Acad Sci 9951. 219–228.
157 B Govindasamy et al, “Impact of Geoengineering Schemes on the 165

William CG Burns, “Climate Geoengineering: Solar Radiation
Terrestrial Biosphere” (2002) 29:22 Geophysical Research Letters 18-1 Management and its Implications for Intergenerational Equity”
at 18-3. (2011) 4 Stanford JL Science & Pol’y 37 at 46-9, online: <journals.
law.stanford.edu/sites/default/files/stanford-journal-law-science-
158 Peter G Brewer, “Evaluating a Technological Fix for Climate” (2007) policy-sjlsp/print/2011/05/burns_final.pdf>; Brewer, supra note 158
104:24 Proceedings Natl Acad Sci 9915 at 9915. See also Niemeier, at 9915; Kintisch, supra note 160 at 1055.
supra note 131 at 11,916; JC Moore, S Jevrejeva & A Grinstad, “Efficacy
of Geoengineering to Limit 21st Century Sea-Level Rise” (2010) 166 Andy Jones et al, “The Impact of Abrupt Suspension of Solar
107:36 Proceedings Natl Acad Sci 15,699–15,703. Radiation Management (Termination Effect) in Experiment G2 of the
Geoengineering Model Intercomparison Project (GeoMIP)” (2013)
159 Victor Brovkin et al, “Geoengineering Climate by Stratospheric Sulfur 118 J Geophysical Research: Atmospheres 9743 at 9749.
Injections: Earth System Vulnerability to Technological Failure”
(2009) 92 Climatic Change 243 at 254. 167 Ibid.

the integrity of ocean ecosystems. For example, during threaten food webs.177 Also, it could remove nutrients and
one study, the CROZet Natural Iron Bloom and EXport stunt phytoplankton growth in other areas where this is
Experiment (CROZEX),168 iron fertilization resulted in the naturally occurring, as recent model simulations from the
increased abundance, diameter and biomass of Phaeocystis tropical eastern Pacific suggest.178 Finally, enhancement
antarctica, a colonizing species that proved unpalatable to of oceanic uptake of carbon dioxide could substantially
mesozooplankton in the region.169 Should this occur on a increase ocean acidification, including accelerating the
large scale in fertilized oceans, it could result in so-called threshold for serious impacts in the southern ocean by a
“regime shifts,” with associated large-scale changes in few decades.179 Ocean acidification could imperil many
regional biogeochemistry and the structure of the food ocean species, including calcifying species and important
web.170 This could include impacts on large predators, commercial fish species.180
including copepods, krill, salps, jellyfish and other fish,171
with “potentially devastating” consequences.172 Of course, Large-scale deployment of BECCS could pose both socio-
it is also possible that species higher on the food chain economic and environmental risks. One striking feature
could ultimately benefit from fertilization,173 but this of BECCS is the potential amount of land that might be
remains far from certain. required to be diverted from other uses, including food
production and livelihood-related activities, to provide
Phytoplankton blooms can also block sunlight in deeper bioenergy feedstocks. A recent study projected that
waters and overload bacterial decomposers that take up delivery of three gigatons of carbon dioxide equivalent
oxygen.174 Thus, ocean iron fertilization strategies that negative emissions annually would require a land area
stimulate phytoplankton production might produce of approximately 380 to 700 million hectares in 2100,
hypoxic (low-oxygen) or anoxic (oxygen-deprived) ocean translating into seven to 25 percent of agricultural
environments.175 Hypoxic or anoxic environments can land and 25 to 46 percent of arable and permanent crop
result in massive fish kills, as well as increased mortality area.181 The range of land demands would be two to four
rates for critical prey species, such as krill, which serve as times larger than land areas that have been classified as
the base of the southern ocean food chain.176 Ocean iron abandoned or marginal.182 This relatively modest level of
fertilization could also generate large diatom blooms that emissions removal would be equivalent to a startling 21
could produce a highly potent neurotoxin, domoic acid, percent of total current human appropriate net primary
as well as toxic algal blooms in coastal waters that could productivity.183 While it might be possible to reduce these
impacts by emphasizing the use of agricultural residue and
waste feedstocks, this option could prove to be extremely
168 CROZEX, online: <www.annahickman.info/crozex-project.html>.
177 Quirin Schiermeier, “Dumping Iron at Sea Does Sink Carbon” (18
169 Lampitt et al, supra note 94 at 3925. July 2012) Nature, online: <www.nature.com/news/dumping-
iron-at-sea-does-sink-carbon-1.11028>; Charles G Trick et al, “Iron
170 John J Cullen & Philip W Boyd, “Predicting and Verifying the Enrichment Stimulates Toxic Diatom Production in High-Nitrate,
Intended and Unintended Consequences of Large-Scale Ocean Iron Low-Chlorophyll Areas” (2010) 107:13 Proceedings Natl Acad Sci
Fertilization” (2008) 364 Marine Ecology Progress Series 295 at 300. 5887 at 5891.
171 Randall S Abate & Andrew B Greenlee, “Sowing Seeds Uncertain: 178 X Jin et al, “The Impact of Atmospheric CO2 of Iron Fertilization
Ocean Iron Fertilization, Climate Change, and the International Induced Changes in the Ocean’s Biological Pump” (2008) 5
Environmental Framework” (2010) 27 Pace Envtl L Rev 555 at 567; Biogeosciences 390–92.
Kenneth L. Denman, “Climate Change, Ocean Processes and Ocean
Iron Fertilization” (2008), 225 Marine Ecol Progress Series 219 at 223. 179
A Oschlies et al, “Side Effects and Accounting Aspects of
Hypothetical Large-Scale Southern Ocean Iron Fertilization” (2010) 7
172 Rosemary Rayfuse, Mark G Lawrence & Kristina M Gjerde, “Ocean Biogeosciences 4017 at 4026.
Fertilisation and Climate Change: The Need to Regulate Emerging High
Seas Uses” (2008) 23 Marine & Coastal L 297 at 306. See also P Falkowski, 180 International Institute for Applied Systems Analysis, “How Will
RT Barber & V Smetacek, “Biogeochemical Controls and Feedbacks on Ocean Acidification Impact Marine Line” (3 February 2015),
Ocean Primary Production” (1998) 381 Science at 200–206. online: <www.iiasa.ac.at/web/home/about/news/150203-Ocean-
Acid.html>; William CG Burns, “Anthropogenic Carbon Dioxide
173 V Smetacek & SWA Naqvi, “The Next Generation of Iron Fertilization Emissions and Ocean Acidification: The Potential Impacts on Ocean
Experiments in the Southern Ocean” (2008) 366 Philosophical Biodiversity”, in Robert A Askins et al, eds, Saving Biological Diversity
Transactions Royal Soc’y A 3947 at 3962. (New York: Springer, 2008) at 190–95.
174 Jennie Dean, “Iron Fertilization: A Scientific Review with International 181 Pete Smith et al, “Biophysical and Economic Limits to Negative CO2
Policy Recommendations” (2009) 32:2 Environs 322 at 330. Emissions” (2016) 6 Nature Climate Change 42 at 46. See also Phil
Williamson, “Scrutinize CO2 Removal Methods” (2016) 530 Nature
175 Christine Bertram, “Ocean Iron Fertilization in the Context of the 153 at 154; Markus Bonsch et al, “Trade-offs Between Land and Water
Kyoto Protocol and the Post-Kyoto Process” (2010) 38 Energy Pol’y Requirements for Large-Scale Bioenergy Production” (2014) 8 GCB
1130 at 1131; Patricia M Gilbert et al, “Ocean Urea Fertilization Bioenergy 11 at 11.
for Carbon Credits Poses High Ecological Risks” (2008) 56 Marine
Pollution Bull 1049 at 1051. 182 Smith et al, supra note 181 at 42.
176 Cullen & Boyd, supra note 170 at 299; Dean, supra note 174 at 330. 183 Ibid at 46.

limited.184 Reliance on so-called “second generation” historical high of over one billion.190 According to a 2008
lignocellulosic feedstocks that are produced from the report by Oxfam, the “scramble to supply” biofuels such
woody part of plants, such as wheat straw and corn husks, as palm oil, which was partly driven by EU biofuel targets,
or algal biofuels could also substantially reduce pressure exacerbated the food price crises, brought “30 million
on agricultural and forest lands. However, there are people into poverty” and put 60 million indigenous
currently serious technical and economic constraints that people at risk.191 While it is difficult to estimate the impact
severely restrict production.185 of large-scale deployment of BECCS on food prices, even
the far more modest goal of scaling up biofuels production
Demands of this magnitude on land could substantially could result in price increases of 15 to 40 percent.192
raise food prices on basic commodities.186 This could imperil
food security for many of the world’s most vulnerable, Efforts to develop feedstock for bioenergy can also result
with many families in developing countries already in the displacement of the poor from land, which can
expending 70 to 80 percent of their income on food.187 undermine food security, livelihoods, political power
There is empirical evidence to support this proposition and social identity.193 A recent report listed more than 293
in the context of efforts in the past decade to increase reported “land grabs” for the purposes of biofuel plantation
biofuel expansion. Biofuel expansion, in many cases at the expansion, encompassing more than 17 million hectares of
expense of food production, was one of the major factors land.194 Moreover, there is ample historic evidence of land
precipitating substantial spikes in food prices in 2007-2008 seizures from vulnerable populations for other economic
and 2012.188 Food price increases and the reduction of food enterprises, including mineral extraction and industrial
production imperiled the food security of many in Africa projects.195 While supporters of BECCS contend that
and in other parts of the developing world.189 Increases in bioenergy expansion can be effectuated primarily through
food prices in 2007 led to food riots in a number of countries “marginal,” “degraded” or “abandoned” land,196 most
and elevated the number of people living in hunger to an often found in developing countries, the reality is that
hundreds of millions may rely on these lands for income and
184 Caldecott, Lomax & Workman, supra note 106 at 16.
185 Ibid. Secretariat of the Convention on Biological Diversity, “Biofuels

and Biodiversity” (2012) CBD Technical Series No 65 at 9, online:
<https://www.cbd.int/doc/publications/cbd-ts-65-en.pdf>;
Committee on the Sustainable Development of Algal Biofuels et al, 190
International Bar Association, IBA Presidential Task Force
“Sustainable Development of Algal Biofuels in the United States” on Climate Change Justice and Human Rights, “Achieving
(2012) at 157–202, online: <www.ourenergypolicy.org/wp-content/ Justice and Human Rights in an Era of Climate Disruption”
uploads/2012/10/13437.pdf>. Moreover, some studies have even (July 2014) at 183, online: <www.ibanet.org/PresidentialTask
suggested that lignocellulosic biofuels might require more land than ForceClimateChangeJustice2014Report.aspx>.
first generation biofuels.
191 Oxfam International, “Climate Wrongs and Human Rights: Putting
186 Scott Barrett, “Solar Geoengineering’s Brave New World: Thoughts People at the Heart of Climate-Change Policy (2008) at 15–16. See also
on the Governance of an Unprecedented Technology” (2014) 8:2 Rev Center for Human Rights and Global Justice, Foreign Land Deals and
Envtl Econ 249 at 254. Human Rights: Case Studies on Agricultural and Biofuel Investment (New
York: NYU School of Law, 2010).
187 UN Office of the High Commissioner, Mandate of the Special
Rapporteur on the Right to Food, Note on the Impacts of the EU Biofuels 192 Hans Morten Haugen, “International Obligations and the Right to
Policy on the Right to Food, 23 April 2013, online: <www.srfood.org/ Food: Clarifying the Potentials and Limitations in Applying a Human
images/stories/pdf/otherdocuments/20130423_biofuelsstatement_ Rights Approach When Facing Biofuels Expansion” (2012) 11 J Hum
en.pdf>; Intergovernmental Panel on Climate Change, Working Group Rts 405 at 406.
III – Mitigation of Climate Change, “Addressing Transformation
Pathways”, Fifth Assessment Report (2014) at 91, online: <www.ipcc. 193
Lorenzo Catula, Nat Dyer & Sonja Vermeulen, “Fuelling
ch/report/ar5/wg3/>; US Government Accounting Office, Center for Exclusion? The Biofuels Boom and Poor People’s Access to Land,
Science, Technology, and Engineering, Climate Engineering 25 (2011), International Institute for the Environment and Development and
online: <www.gao.gov/assets/330/322208.pdf>. Food and Agriculture Organization” at 14, online: <pubs.iied.org/
pdfs/12551IIED.pdf>; Secretariat of the Convention on Biological
188 Actionaid, Caught in the Net: How The ‘Net-Zero Emissions’ Will Delay Diversity, supra note 185 at 56.
Real Climate Action and Drive Land Grabs (June 2015) at 7, online:
<www.actionaid.org/publications/caught-net-how-net-zero- 194 Actionaid, supra note 188 at 7. See also Evadné Grant & Onita Das,
emissions-will-delay-real-climate-action-and-drive-land-grabs>. “Land Grabbing, Sustainable Development and Human Rights”
Some studies have attributed 30 percent of grain price increases from (2015) 4:2 Transnatl Envtl L at 289–317; Lili Fuhr, The Myth of Net-
2000 to 2007 to demand for biofuels; Mark W Rosegrant, “Biofuels Zero Emissions (10 December 2014), online: Heinrich Böll Foundation
and Grain Prices: Impacts and Policy Responses” (2008) at 2, online: <www.boell.de/en/2014/12/10/myth-net-zero-emissions>.
International Food Policy Research Institute <www.ifpri.org/
publication/biofuels-and-grain-prices>. 195 Prakash Kashwan, “The Politics of Rights-Based Approach in
Conservation” (2013) 31 Land Use Pol’y 613 at 622.
189 Bamikole Amigun, Josephine Kaviti Musango & William Stafford,
“Biofuels and Sustainability in Africa” (2011) 15 Renewable & 196 Raphael Slade, Ausilio Bauen & Robert Gross, “Global Bioenergy
Sustainable Energy Rev 1360 at 1362. Resources” (2014) 4 Nature Climate Change 99 at 100.

sustenance.197 For example, substantial portions of grazing carbon capture could have “intensive localized effects.”206
lands are barren during the dry season in developing In a world of growing food demand, this could have
countries and are, thus, classified as “degraded.” Yet, these serious implications, as maximum crop yields are only
lands are often productive during the rainy season and are possible under conditions where water supplies are not
relied upon for food and income by poor families.198 restricted.207 There is also concern that BECCS operations
might reduce human access to clean water supplies,
Finally, incentives for feedstock production may result contaminate underground sources of drinking water,
in farmers converting substantial swaths of land from and result in diversion of water from ecosystems.208 DAC
food crop production, reducing food supply for local operations would also be water-intensive, potentially
populations.199 For example, in one region of Brazil, requiring four percent of total current evapotranspiration
conversion of land from cassava and rice production to used for crop cultivation.209
oilseed for biofuel production undermined food security.200
A recent study indicated that more than half of the world’s Finally, BECCS could “vastly accelerate the loss of primary
bioenergy potential is centred in two regions with very forest and natural grassland.”210 This could result in habitat
large poor and food-vulnerable populations: Sub-Saharan loss for many species and, ultimately, “massive” changes
Africa and Latin America and the Caribbean.201 in species richness and abundance.211 Moreover, the water
demands associated with BECCS could have “substantial
BECCS would also have “a very large water footprint” adverse impacts on freshwater ecosystems, particularly
when implemented at a scale of between 1.1 and 3.3 in South Asia.212 Indeed, Phil Williamson concluded
GtCO2 equivalent per year.202 By 2100, BECCS feedstock that large-scale deployment of BECCS could result in a
production at scale could require approximately 10 percent greater diminution of terrestrial species than temperature
of the current evapotranspiration from all global cropland increases of 2.8°C above pre-industrial levels.213
areas.203 Markus Bonsch and others project that BECCS
could entail water demands of the same magnitude as those THE APPLICATION OF HUMAN RIGHTS
of all current agricultural water withdrawals,204 translating
into nearly one-quarter of global annual runoff.205 TO CLIMATE GEOENGINEERING
Moreover, water consumption for energy generation and
Overview of the International Human Rights
Framework
“Human rights are universal legal guarantees protecting
197 Rachel Smolker & Almuth Ernsting, “BECCS (Bioenergy with
individuals and groups against actions and omissions
Carbon Capture and Storage): Climate Saviour or Dangerous Hype?” that interfere with fundamental freedoms, entitlements
(October 2012) at 8, online: Biofuelwatch <www.biofuelwatch.org.
uk/2012/beccs_report/>; Secretariat of the Convention on Biological
Diversity, supra note 185 at 32.
198 Slade, Bauen & Gross, supra note 196 at 103.
199 Lorenzo Cotula, Nat Dyer & Sonja Vermeulen, Fueling Exclusion? 206 Lydia J Smith & Margaret S Torn, “Ecological Limits to Terrestrial
The Biofuels Boom and Poor People’s Access to Land (2008) at 14, online: Biological Carbon Dioxide Removal” (2013) 118 Climatic Change 89
International Institute for Environment and Development & Food at 92.
and Agriculture Organization of the United Nations <pubs.iied.org/
pdfs/12551IIED.pdf>. 207 P Moutonnet, “Yield Response Factors of Field Crops to Deficit
Irrigation,” FAO Corporate Document Repository at 3, online:
200 Marcus Vinicius Alves Finco & Werner Doppler, “Bioenergy and <www.fao.org/docrep/004/y3655e/y3655e04.htm>.
Sustainable Development: The Dilemma of Food Security and
Climate Change in the Brazilian Savannah” (2010) 14 Energy for 208
Holly Jean Buck, “Rapid Scale-Up of Negative Emissions
Sustainable Dev 194 at 198. Technologies Social Barriers and Social Implications,” (2016) Nature,
DOI: <10.1007/s10584-016-1770-6> at 4; Kelsi Bracmort & Richard
201 Helmut Haberl et al, “Global Bioenergy Potentials from Agricultural K Lattanzio, Geoengineering: Governance and Technology Policy (26
Land in 2050: Sensitivity to Climate Change, Diets and Yields” (2011) November 2013) at 12, online: Congressional Research Service
35 Biomass & Bioenergy 4753 at 4762. <www.fas.org/sgp/crs/misc/R41371.pdf>.
202 Pete Smith, “Soil Carbon Sequestration and Biochar as Negative 209 Smith et al, supra note 181 at 46.
Emission Technologies” (2016) 22:3 Global Change Biology 1315 at
1321. 210 Williamson, supra note 181 at 154.
203 Smith et al, supra note 181 at 47. 211 Wiltshire & Davies-Barnard, supra note 114 at 15. See also Gough
& Vaughan, supra note 109 at 15; Secretariat of the Convention on
204 Bonsch et al, supra note 181 at 12. Biological Diversity, supra note 185 at 38.
205 Vaibhav Chaturvedi et al, “Climate Mitigation Policy Implications for 212 Bonsch et al, supra note 181 at 20.
Global Irrigation Water Demand” (2015) 20 Mitigation & Adaptation
Strategies for Global Change 389 at 404. 213 Williamson, supra note 181 at 154.

and human dignity.”214 As such, they establish minimum and Tribal Peoples in Independent Countries,223 the 1989
standards for individuals and groups that cannot be Convention on the Rights of the Child (CRC),224 the 1990
contravened in the pursuit of aggregate societal benefits.215 International Convention on the Protection of the Rights
Most fundamentally, human rights protections seek to of All Migrant Workers and Members of Their Families225
ensure that laws and political and social structures are and the 2006 Convention on the Right of Persons with
grounded in moral reasons and moral discourse and are Disabilities.226
justifiable within a framework of appropriate legal and
political structures.216 Human rights provide a critical link Regional human rights instruments include the 1948
between the protection of a vital interest and the imposition American Declaration of the Rights and Duties of Man,227
of a duty on others to protect and promote the interest.217 the 1969 American Convention on Human Rights,228 the
1988 Additional Protocol to the American Convention on
Human rights law has been established in a number of both Human Rights,229 the 1950 European Convention for the
legally binding and non-binding instruments. Binding Protection of Human Rights and Fundamental Freedoms,230
instruments adopted by the UN General Assembly include the 1981 African Charter on Human and Peoples’ Rights231
the 1951 Convention Relating to the Status of Refugees,218
the 1966 International Covenant on Civil and Political
Rights (ICCPR),219 the 1966 International Covenant on
Economic, Social and Cultural Rights (ICESCR),220 the
1969 International Convention on the Elimination of All
223
Convention concerning Indigenous and Tribal Peoples in
Forms of Racial Discrimination,221 the 1979 Convention
Independent Countries (27 June 1989) (ILO No 169), 72 ILO Official
on the Elimination of All Forms of Discrimination Against Bull 59, 28 ILM 1382 (entered into force 5 September 1991), online:
Women,222 the 1989 Convention Concerning Indigenous <www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:
:P12100_ILO_CODE:C169>.
224 CRC, 20 November 1989, 1577 UNTS 3, 28 ILM 1456 (entered

214 OHCHR, Frequently Asked Questions on a Human Rights-Based into force 2 September 1990), online: <www.ohchr.org/en/
Approach to Development Cooperation (2006), at 1, online: <www.ohchr. professionalinterest/pages/crc.aspx>.
org/Documents/Publications/FAQen.pdf>. See also Henry Shue,
“Changing Images of Climate Change: Human Rights and Future 225 International Convention on the Protection of the Rights of All
Generations” (June 2014) 5 J Hum Rts & Envt 50 at 58. Migrant Workers and Members of their Families, 18 December 1990,
UN Doc A/RES/45/158, 30 ILM 1517 (entered into force 1 July 2003),
215
Simon Caney, “Climate Change, Human Rights and Moral online: <www2.ohchr.org/english/bodies/cmw/cmw.htm>.
Thresholds” in Stephen Gardiner et al, eds, Climate Ethics (New
York, NY: Oxford University Press, 2010) at 73–90, online: <www. 226 Convention on the Right of Persons with Disabilities, 13 December
humphreyfellowship.org/system/files/Caney_Climate_Change_ 2006, UN Doc A/RES/61/106, Annex 1 (entered into force 3 May
Human_Rights%20_Moral_Thresholds.pdf>; Frédéric Mégret, 2008), online: <www.un.org/disabilities/documents/convention/
“Nature of Obligations” in Daniel Moeckli, Sangeeta Shah & Sandesh convoptprot-e.pdf>.
Sivakumaran, eds, International Human Rights Law, 2nd ed (New York:
Oxford University Press, 2010) at 129. 227 OAS, Inter-American Commission on Human Rights, American
Declaration of the Rights and Duties of Man, OR OAS/Ser.L/V/I.4
216 Rainer Frost, “The Justification of Human Rights and the Basic Right Rev. 9 (2003), online: <www.oas.org/consejo/CAJP/Indigenous%20
to Justification: A Reflexive Approach” (2010) 120:4 Ethics 711 at 734. documents.asp>.
217 Charles Jones, “The Human Rights to Subsistence” (2013) 30:1 J 228 OAS, Inter-American Commission on Human Rights, American
Applied Phil 57 at 5. Convention on Human Rights, 21 November 1969, OAS Treaty Series
No 36, 1144 UNTS 123, 9 ILM 99 (entered into force 18 July 1978),
218 Convention Relating to the Status of Refugees, 28 July 1951, 189 online: <www.oas.org/dil/treaties_B-32_American_Convention_on_
UNTS 137 (entered into force 22 April 1954), online: <www.unhcr. Human_Rights.pdf>.
org/3b66c2aa10.html>.
229 OAS, General Assembly, Additional Protocol to the American
219 ICCPR, 19 December 1966, 999 UNTS 171 (entered into force 23 March Convention on Human Rights in the Area of Economic, Social and
1976), online: <www.ohchr.org/en/professionalinterest/pages/ccpr. Cultural Rights, 17 November 1988, OAS Treaty Series No 69, 28 ILM
aspx>. 156 (1989) (entered into force 16 November 1999), online: <www.oas.
org/juridico/english/treaties/a-52.html>.
220 ICESCR, 16 December 1966, 993 UNTS 3, 6 ILM 360 (entered into force
3 January 1976), online: <www.ohchr.org/EN/ProfessionalInterest/ 230 Council of Europe, European Convention for the Protection of Human
Pages/CESCR.aspx>. Rights and Fundamental Freedoms, 4 November 1950, ETS 5, 213
UNTS 221 (entered into force 3 September 1953), reprinted in Yearbook
221 International Convention on the Elimination of All Forms of Racial on Human Rights for 1950 (New York: UN, 1952) at 418 [ECHR], online:
Discrimination, 21 December 1965, 660 UNTS 195 (entered into force <www.echr.coe.int/Documents/Convention_ENG.pdf>.
4 January 1969), online: <www.ohchr.org/EN/ProfessionalInterest/
Pages/CERD.aspx>. 231 Organization of African Unity, African Charter on Human and Peoples’
Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982) (entered
222 Convention on the Elimination of All Forms of Discrimination into force 21 October 1986), reprinted in Christof, Heyns, ed, Human
Against Women, 18 December 1979, 13 UNTS 1249 (entered into Rights Law in Africa, vol 1 (The Hague: Kluwer Law International,
force 3 September 1981), online: <www.un.org/womenwatch/daw/ 1996), online: <www.achpr.org/files/instruments/achpr/banjul_
cedaw/cedaw.htm>. charter.pdf>.

and the Arab Charter on Human Rights.232 States are also The UDHR, ICESCR and ICCPR form the so-called
legally bound by human rights principles recognized “International Bill of Rights”.242 Virtually every state
by customary international law.233 For example, and belongs to at least one of the two major human rights
particularly relevant to the question of geoengineering, treaties, and more than 160 states belong to both the ICCPR
the right to self-determination under international law is and ICESCR.243 All major emitters of GHG emissions are
recognized as “both individual from and a prerequisite for parties to both the ICESCR and ICCPR, with the exception
the realization of all other human rights.”234 of the United States, which has signed but not ratified the
ICESCR, and China, which has signed but not ratified the
Non-legally binding instruments include the 1948 ICCPR.244
Universal Declaration of Human Rights (UDHR),235 the
1986 Declaration on the Right to Development,236 the 1993 Parties to human rights treaties are not only required to
Vienna Declaration and Programme of Action,237 the 1995 respect human rights, that is, to refrain from taking actions
Beijing Declaration and Platform for Action,238 the 2007 that might imperil the exercise of human rights, but they
Declaration on the Rights of Indigenous Peoples239 and are also obligated to protect and fulfill these obligations.245
the 2012 Association of Southeast Asian Nations (ASEAN) The obligation to protect imposes a duty on states to take
Human Rights Declaration.240 It should be recognized that affirmative measures to deter, prevent, investigate and
the UDHR as a whole, or at least some portions, has been punish violations of human rights by private actors.246
widely recognized as customary international law.241 The obligation to fulfill imposes a duty on states to take
positive actions to progressively facilitate the enjoyment
of human rights.247 This may include legal, judicial, policy
and budgetary measures by state organs.248
232 League of Arab States, Arab Charter on Human Rights, 22 May 2004
(entered into force 15 March 2008), reprinted in (2005) 12 Intl Hum In 1997, the UN Secretary-General launched an initiative
Rts Rep, online: <www1.umn.edu/humanrts/instree/loas2005. to “mainstream” human rights as a cross-cutting concern
html>. of United Nations system activities.249 Additional impetus
233
Megan M Herzog, “Coastal Climate Change Adaptation and for strengthening the application of human rights at the
International Human Rights” in Randall S Abate, ed, Climate Change international and national level in recent years included
Impacts on Ocean and Coastal Law (New York: Oxford University
Press, 2015) 593 at 599; Siobhán McInerney-Lankford, Mac
Darrow & Lavanya Rajamani, “Climate Change: A Review of the
International Legal Dimensions” (2011) at 21-5, online: The World
Bank <siteresources.worldbank.org/INTLAWJUSTICE/Resources/
HumanRightsAndClimateChange.pdf>.
234 Susannah Wilcox, “A Rising Tide: The Implications of Climate

Change Inundation for Human Rights and State Sovereignty” (2012)
9 Essex Hum Rts Rev 2 at 6.
242 Mirko Bagaric & Penny Dimopoulos, “International Human Rights
235 Universal Declaration of Human Rights, GA Res 217A(III), UNGAOR, Law: All Show, No Go” (2005) 4 J Hum Rts 3 at 3.
3rd Sess, Supp No 13, UN Doc A/810 (1948), online: <www.un.org/
en/universal-declaration-human-rights/>. 243 John Knox, “Climate Ethics and Human Rights” (2014) 5 J Hum Rts &
Envt 22 at 25.
236 Declaration on the Right to Development, GA Res 128, UNGAOR, 41st
Sess, Supp No 53, UN Doc A/RES/41/128 (1986), online: <www. 244 Ibid.
un.org/documents/ga/res/41/a41r128.htm>.
245 Elisabeth Caesens & Maritere Padilla Rodríguez, Climate Change and the
237 Vienna Declaration and Programme of Action, GA Res 121, UNGAOR, Right to Food (Berlin: Heinrich Böll Stiftung, 2009) at 43, online: <https://
48th Sess, UN Doc. A/CONF.157/23; 32 ILM 1661 (1993), online: www.boell.de/sites/default/files/Series_Ecology_Volume_8_Climate_
<www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx>. Change_and_the_Right_to_Food_0.pdf>.
238 Beijing Declaration and Platform for Action adopted at the Fourth World 246 The World Bank & Nordic Trust Fund, Human Rights Impact Assessments:
Conference on Women, GA Res 203, UN Doc. A/CONF. 177/20 A Review of the Literature, Differences with Other Forms (February
(1995) and A/CONF. 177/20/Add. 1 (1995), online: <www.un.org/ 2013) at 5, online: <siteresources.worldbank.org/PROJECTS/
womenwatch/daw/beijing/pdf/BDPfA%20E.pdf>. Resources/40940-1331068268558/HRIA_Web.pdf>; James W Nickel,
“How Human Rights Generate Duties to Protect and Provide” (1993)
239 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 15 Hum Rts Q 77 at 80–81.
295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295,
46 ILM 1013 (2007), online: <www.un.org/esa/socdev/unpfii/ 247 OHCHR, “International Human Rights Law” online: <www.ohchr.
documents/DRIPS_en.pdf>. org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx>.
240 ASEAN, ASEAN Human Rights Declaration, 18 November 2012, online: 248 The World Bank & Nordic Trust Fund, supra note 246 at 4; United
<aichr.org/?dl_name=ASEAN-Human-Rights-Declaration.pdf>. Nations, HRBA Portal, online: <hrbaportal.org/faq/what-kinds-of-
human-rights-obligations-are-there>.
241 Vojin Dimitrijevic, “Customary Law as an Instrument for the
Protection of Human Rights” (2006) ISPI Working Paper WP-7 at 249 Renewing the United Nations: a programme for reform, GA Res 12,
8–12, online: <www.ispionline.it/it/documents/wp_7_2006.pdf>. UNGAOR, 51st Sess, UN Doc A/RES/52/12 (1997) at paras 78, 79.

the Millennium Declaration of 2000250 and the Secretary- potentially threatening the food security of billions.257
General’s 2002 reform program, which directed the This could constitute a violation of the right to food, in
OHCHR to work with UN partners to strengthen human terms of both potential deployers of such technologies
rights at the country level.251 and potentially affected states, whose governments
might be obligated to take additional measures to protect
These efforts helped to lay the foundation for the the most vulnerable. Similarly, as discussed earlier,
development of international efforts to protect human deployment of BECCS could raise food prices and/or
rights potentially impacted by climate change, as well displace agricultural production in ways that could also
as response measures. In the next section, the potential imperil food security and violate the right to food. Finally,
threats that some climate geoengineering options might should the termination effect described earlier manifest
pose for the human rights protected in these agreements itself, the attendant rapid spikes in temperature might
are outlined. undermine food production in many parts of the world,
including vulnerable portions of the South.258
Potential Threats to Human Rights from
Deployment of Geoengineering Options THE RIGHT TO HEALTH
The right to health is included in a large number of
THE RIGHT TO FOOD
human rights treaties and soft-law instruments,259 as
The right to adequate food is established by a number well as at least 115 national constitutions.260 It is most
of human rights instruments at the international and comprehensively established in the ICESCR as “the right
regional levels,252 including the ICESCR, which seeks to of everyone to the enjoyment of the highest attainable
protect “the fundamental right of everyone to be free from standard of physical and mental health.”261
hunger.”253 The OHCHR has commented that states must The ICESCR Committee interprets the right to health
take necessary actions to ensure freedom from hunger in General Comment No. 14 to include “a wide range
and access to adequate food, “even in times of natural of socio-economic factors that promote conditions in
or other disasters.”254 The ICESCR Committee General which people can lead a healthy life, and extends to the
Comment No. 12 states that “accessibility encompasses underlying determinants of health, such as...a healthy
both economic and physical accessibility.”255 Therefore, environment.”262 General Comment No. 14 further states
the comment continues, vulnerable groups such as that the right to health includes “a right to the enjoyment
displaced peoples and indigenous populations “may of a variety of facilities, goods, services and conditions
need attention through special [programs].”256 necessary for the realization of the highest attainable
As indicated earlier, the deployment of either SAI
or marine cloud brightening SRM approaches could
adversely impact regional precipitation patterns,
257 Royal Society, supra note 12.
258 Lili Xia et al, “Solar Radiation Management Impacts on Agriculture in

250 United Nations Millennium Declaration, GA Res 2, UNGAOR, 55th China: A Case Study in the Geoengineering Model Intercomparison
Sess, UN Doc A/Res/55/2 (2000), online: <un.org/millennium/ Project (GeoMIP)” (2014) 119 J Geophysical Research: Atmospheres
declaration/ares552e.pdf>. The declaration’s pertinent provisions 8695 at 8706.
on human rights include a call for respect for “all internationally
recognized human rights” (Sec V, para 24) and efforts to strengthen 259 UDHR, supra note 235, art 25; Convention on the Elimination of All
the capacity of states to protect human rights (Sec V, para 25). Forms of Racial Discrimination, supra note 221, art 5(e)(iv); CRC,
supra note 224, art 24; Convention on the Elimination of All Forms
251 Strengthening of the United Nations: an agenda for further change, of Discrimination against Women, supra note 222, arts 11(1)(5), 12,
UNGAOR, 57th Sess, UN Doc A/57/387 (2002) at paras 45–51. 14(2)(b); International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, supra note 225,
252 See e.g. UDHR, supra note 235, art 25 (part of the right to an adequate arts 28, 43(e), 45(c); African Charter on Human and Peoples’ Rights, supra
standard of living); CRC, supra note 224; International Convention note 231, art 16; Additional Protocol to the American Convention on
on the Rights of Persons with Disabilities, supra note 229, art 25(f); Human Rights in the Area of Economic, Social and Cultural Rights,
Convention on the Elimination of all Forms of Discrimination supra note 229, art 10; Constitution of the World Health Organization
Against Women, supra note 222, art 12; African Charter on Human (WHO), 22 July 1946, 14 UNTS 185, Preamble.
and Peoples’ Rights, supra note 231 (implicit in arts 4, 16, and 22).
260 OHCHR & World Health Organization, “The Right to Health:
253 ICESCR supra note 220, art 11(2). Fact Sheet No. 31” at 9, online: <www.ohchr.org/Documents/
Publications/Factsheet31.pdf>.
254 OHCHR, supra note 6 at 9.
261 ICESCR, supra note 220, art 12.
255 UNHRC, Committee on Economic, Social and Cultural Rights,
General Comment 12: The Right to Adequate Food, 12 May 1999, UN 262 UN Committee on Economic, Social and Cultural Rights, General
Doc E/C/12/1999/5 at paras 3, 4, 13. Comment No. 14: The Right to the Highest Attainable Standard of
Health, 11 August 2000, UN Doc E/C/12/2000/4, online: <www.
256 Ibid. ohchr.org/Documents/Issues/Women/WRGS/Health/GC14.pdf>.

standard of health.”263 Additionally, states are required life, health and adequate housing,270 even though the
to take measures to ensure that private actors within their right is not explicitly mentioned in regional human rights
control do not violate the human right to health.264 instruments.271
Several climate geoengineering options could potentially The potential alteration of precipitation patterns
affect the right to health. As indicated earlier, sulphur associated with SRM approaches272 could imperil the
aerosol injection might delay replenishment of the ozone right to water for huge numbers of people. Marine cloud
for decades, imperilling the health of millions. Moreover, brightening involving the potential deposition of sea
to the extent that food production might be adversely water could also reduce freshwater availability for islands
impacted by deployment of SRM or CDR approaches, they where water resources are already severely constrained.273
would undermine one of the “underlying determinants Moreover, the massive demands on water that some CDR
of health.”265 approaches, such as BECCS, would entail, could similarly
impact this right.
THE RIGHT TO WATER
THE RIGHT TO LIFE
A number of human rights instruments recognize the
right to water.266 The ICESCR Committee in General The UDHR explicitly recognizes the right to life,274 as does
Comment No. 1 provides that the state’s duty to respect article 6(1) of the ICCPR, which guarantees every human
the right to water requires refraining from interfering the “inherent right to life.”275 Many other international and
with the enjoyment of that right and protecting the right regional human rights instruments also recognize the right
by adopting measures to restrain third parties from to life.276 Moreover, a large number of states also recognize
interfering with the right.267 the right to life through constitutional provisions or
In 2010, the UN General Assembly also officially legislatively.277
recognized the “right to water and sanitation.”268 The Because the right to life is elemental to the protection of
UNHRC subsequently adopted HRC Resolution 15/9, all others, no derogation is permitted by governments,
which “affirms that the rights to water and sanitation
are part of existing international law and confirms that
these rights are legally binding” upon states parties to
the ICESCR.269 A number of regional courts have found
that the right to safe drinking water and sanitation
derives from other human rights, such as the rights to 270 United Nations Human Rights, “The Right to Water: Fact Sheet
No. 35” at 6, online: <www.ohchr.org/Documents/Publications/
FactSheet35en.pdf>.
271 See e.g. Council of Europe, European Social Charter, 18 October 1961,
529 UNTS 89, ETS 35, online: <www1.umn.edu/humanrts/euro/
z31escch.html>; American Convention on Human Rights, supra note
263 Ibid. 228 and the African Charter on Human and Peoples’ Rights, supra note 231.
264 “The Right to Health: Fact Sheet No. 31”, supra note 260 at 25. 272 Supra notes 129–135 and accompanying text.
265 UN Committee on Economic, Social and Cultural Rights, General 273 Caitlin G McCormack et al, “Key Impacts of Climate Engineering on
Comment No. 14: The Right to the Highest Attainable Standard of Biodiversity and Ecosystems, with Priorities for Future Research”
Health, supra note 262 at para 11. (2016) J Integrative Envtl Sci 1 at 12 (2016), online: <www.tandfonline.
com/loi/nens20>.
266 See e.g. Convention on the Elimination of All Forms of Discrimination
against Women, supra note 227, art 14(2); International Convention on 274 UDHR, supra note 235, art 3.
the Rights of Persons with Disabilities, supra note 226, art 28; CRC,
supra note 224, arts 24, 27(e); International Labour Organization, 275 ICCPR, supra note 219, art 6(1).
Convention concerning Occupational Health Services, No 161, 25
June 1985, 71st ILC Sess (entered into force 17 February 1988) at art 276 See e.g. Arab Charter on Human Rights, supra note 232 at art 5-6;
5, online: <www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12 Organization of African Unity, African Charter on the Rights and
100:0::NO::P12100_INSTRUMENT_ID:312306>; Additional Protocol Welfare of the Child, 11 July 1990, OAU Doc CAB/LEG/24.9/49
to the American Convention on Human Rights, supra note 229 at art (entered into force 29 November 1999), art 5, online: <www1.umn.
11(1); Arab Charter on Human Rights, supra note 232, art 39. edu/humanrts/africa/afchild.htm>; ECHR, supra note 230, art 2;
American Declaration of the Rights and Duties of Man, supra note 227, art
267 UN Committee on Economic, Social and Cultural Rights, General 1; American Convention on Human Rights, supra note 228, art 4.
Comment No. 15: The Right to Water, 20 January 2003, UN Doc
E/C.12/2002/11 (2003) at paras 21, 23. 277 See e.g. Human Rights Act, 1998 (UK), c 42, Schedule 1, online: <www.
legislation.gov.uk/ukpga/1998/42/schedule/1>; Constitution Act, 1982,
268 The Human Right to Water and Sanitation, GA Res 64/292, UNGAOR, being Schedule B to the Canada Act 1982 (UK), c 11, s 7, online: <laws-lois.
64th Sess, Supp No 49, UN Doc A/RES/64/292 (2010), online: <www. justice.gc.ca/eng/const/page-15.html#h-39>; Paraguay’s Constitution
un.org/es/comun/docs/?symbol=A/RES/64/292&lang=E>. of 1992 with Amendments Through 2011, art 4, online: <https://www.
constituteproject.org/constitution/Paraguay_2011.pdf?lang=en>; The
269 UNHRC, Human Rights and Access to Safe Drinking Water and Constitution of India as of 9 November 2015, art 21, online: <lawmin.nic.
Sanitation, 30 September 2010, UN Doc A/HRC/RES/15/9. in/olwing/coi/coi-english/coi-4March2016.pdf>.

even in times of purported public emergency.278 The right changes in circulation and ocean nutrient upwelling could
has also been construed expansively on other axes. It have potential impacts on biodiversity through the entire
requires states to “adopt positive measures” to protect the marine ecosystem.286
right.279 It may also require application of a precautionary
approach, meaning that governments must seek to prevent Loss of biological diversity could also undermine the right
foreseeable harms or risks.280 Moreover, the right to life has to health by leading to an increase in the transmission
been construed to transcend mere protection from arbitrary of infectious diseases, such as hantavirus, Lyme disease
violence, and it encompasses threats to the quality of life, and schistosomiasis.287 Moreover, products and services
including those related to environmental factors, human derived from biodiversity are a critical economic resource
health and access to food and water.281 for many of the world’s poor, including indigenous
peoples.288 Diminution of biodiversity through deployment
Many climate geoengineering options could threaten the of geoengineering options could undermine the right to
right to life. These include potential impacts that might livelihood,289 which, in turn, is intimately linked to the
induce drought conditions, deplete the ozone layer, human right to life and an adequate standard of living
reduce food security or precipitate large and rapid pulses for health and well-being of individuals and families.290
of warming. Loss of biodiversity could also undermine the right of
indigenous peoples to access such resources.291
Potential Threats to Biodiversity and Human
Rights OPERATIONALIZING HUMAN RIGHTS
PROTECTIONS UNDER THE PARIS
As indicated above, BECCS could result in substantial
diminution of biodiversity.282 Other geoengineering AGREEMENT IN THE CONTEXT OF
approaches might also threaten species at both the local CLIMATE GEOENGINEERING
and global level. For example, many species might be
unable to adapt, or migrate quickly enough, should the Overview/Application of the HRBA
termination effect283 occur in the context of SRM options.284
SRM approaches might also alter global ocean circulation As indicated at the outset, the Paris Agreement calls on
patterns through changing light availability, which is its parties to take human rights into account “when
partially determined by incoming solar radiation.285 Such taking action to address climate change.”292 This section
of the report will suggest how this provision might be
operationalized by the parties in the context of climate
278 UNHRC, CCPR General Comment No. 6: Article 6 (Right to Life), 30 geoengineering.
April 1982, art 6(1); UN Committee on Economic, Social and Cultural
Rights, General Comment 14, supra note 262 at para 5 [UNHRC The suggested framework outlined below for doing
General Comment No. 6]. Indeed, some commentators argue that
the right to life has jus cogens status. See BG Ramcharan, The Right
so is denominated a “human rights-based approach.”
to Life in International Law (Leiden, Netherlands: Martinus Nijhoff As Margaux J. Hall explains, “[A] human rights-based
Publishers, 1985). approach is a conceptual framework for decision making
279 UNHRC General Comment No. 6, supra note 278, art 6.
280 Valesquez Rodriquez Case (29 July 1988) Inter-Am Ct HR (Ser C) No 286 Ibid; Lynn M Russell et al, “Ecosystem Impacts of Geoengineering: A
4 at 70 to 71; United Nations Environment Program & Center for Review for Developing a Science Plan” (2012) 41 Ambio 350 at 361.
International Environmental Law, UNEP Compendium on Human
Rights and the Environment (2014), summarizing Budayeva and Others 287 UNHRC, supra note 9 at 9.
v. Russia (2008), Eur Ct HR App No 15339/0 at 85, online: <www.
unep.org/environmentalgovernance/Portals/8/publications/ 288 Roubina Bassous/Ghattas, “Biodiversity and Human Rights from
UNEP_Compendium_HRE.pdf>. a Palestinian Perspective”, online: The Applied Research Institute –
Jerusalem/Society <www.arij.org/files/arijadmin/biodiversity.pdf>;
281 UNHRC General Comment No. 6, supra note 278, art 6; Randall S Tim Hayward, “Biodiversity, Human Rights and Sustainability” (July
Abate, “Climate Change, the United States and the Impacts of Arctic 2001), online: Botanic Gardens Conservation International <www.bgci.
Melting: A Case Study in the Need for Enforceable International org/education/article/0423>.
Environmental Human Rights” (2007) 26:1 Fla A&M U Col L
Scholarly Commons 4 at 11, online: <commons.law.famu.edu/cgi/ 289 UDHR, supra note 235, art 25(1).
viewcontent.cgi?article=1007&context=faculty-research>; Indigenous
Community Sawhoyamaxa v. Paraguay (29 March 2006), 2006 Inter-Am 290 Ryan Hartzell C Balisacan, “Harmonizing Biodiversity Conservation
Ct HR (Ser C) No 146 at para 153. and the Human Right to Livelihood: Towards a Viable Model for
Sustainable Community-Based Ecotourism Using Lessons from the
282 Supra notes 210–213 and accompanying text. Donsol Whale Shark Project” (2012), 57 Ateneo LJ 423 at 438.
283 See the section titled “The Threat of a Termination Effect”, supra. 291 Convention concerning Indigenous and Tribal Peoples in Independent
Countries, supra note 223, art 15(1); United Nations Declaration on the
284 McCormack et al, supra note 273 at 18. Rights of Indigenous Peoples, supra note 239, art 8(2)(b).
285 Ibid at 12. 292 Paris Agreement, supra note 7.

that is normatively grounded in international human rights to the Paris Agreement can facilitate this process under any
principles. The approach focuses not only on substantive circumstances where a party, or group of parties, would
outcomes and promoting and protecting human rights; it seek to implement geoengineering responses to climate
also closely investigates the processes that underlie human change.
rights-related decision making.”293
Drawing upon guidelines developed by human rights
The hallmark of the HRBA is a focus “on the relationship and development institutions,299 an HRBA to climate
between the rights-holder and the duty-bearer and geoengineering research and potential deployment should
revealing gaps in legislation, institutions, policy and the include the following elements: identification of the human
possibility of the most vulnerable to influence decisions rights claims of rights-holders and corresponding human
that have impact on their lives.”294 An HRBA establishes rights obligations of duty-bearers; assessment of the
a normative framework “for addressing systematic and capacity of rights-holders to exercise their rights and duty-
structural injustices, social exclusions and human rights bearers to fulfill their respective obligations, as well as
repressions.” 295 strategies to bolster capacities; establishment of a program
to monitor and evalutate both outcomes and processes,
The emphasis of the HRBA on effective processes to address guided by human rights standards and principles; and
and integrate human rights at all governmental scales296 collaboration to ensure that programs are informed by
is particularly important, since legal institutions are only recommendations from international human rights bodies
able to respond to a small percentage of rights violations.297 and mechanisms.
The HRBA has been embraced by international, national
and subnational governmental and non-governmental IDENTIFICATION OF HUMAN RIGHTS CLAIMS
organizations in a wide array of contexts, including, health, AND OBLIGATIONS
development and environmental protection.298 The parties
This paper has generally outlined some of the potential
human rights that might be affected by research and
293 Margaux J Hall, “Advancing Climate Justice and the Right to Health potential deployment of climate geoengineering
Through Procedural Rights” (June 2014) 16(1) Health & Hum Rts technologies and some of the groups that might be affected.
8 at 15. See also Ken Conca, An Unfinished Foundation (New York, An HRBA would demand, and seek to facilitate, a much
NY: Oxford University Press, 2015) at 147. HRBAs’ value “does not
come from formal affirmations of such synergies, or even from the
more granular inquiry by seeking to identify the specific
articulation of obligations facing states. It comes, ultimately, from the potential impacts of discrete climate geoengineering
empowerment of people.” technologies and associated potential human rights
considerations, as well as the specific groups likely to be
294 Alessandra Lundström Sarelin, “Human Rights-Based Approaches
to Development Cooperation, HIV/AIDS, and Food Security” (2007)
impacted.
29:2 Hum Rts Q 460 at 479, online: <courses.arch.vt.edu/courses/
wdunaway/gia5434/sarelin07.pdf>. A salutary method to effectuate this goal would be to
mandate conducting a human rights impact assessment
295 Damilolo S Olawuyi, “Advancing Climate Justice in International (HRIA) in any case where a geoengineering research
Law: An Evaluation of the United Nations Human Rights-Based
Approach” (2016) 11:1 Fla A&M UL Rev 1 at 9.
program or deployment might have serious impacts
on human rights. HRIAs are assessment protocols that
296 Mariya Gromilova, “Revisiting Planned Relocation as a Climate assess the consistency of policies, legislation, projects and
Change Adaptation Strategy: The Added Value of a Human Rights- programs with human rights.300 The HRIA is a particularly
Based Approach” (2014) 10:1 Utrecht L Rev 76 at 91.
appropriate instrument in the context of emerging high-
297 Stephen Turner, A Global Environmental Right (New York, NY: risk technologies such as geoengineering in that its focus
Routledge, 2014) at 29-30. is not on past violations but rather on developing tools to
298 Aled Dilwyn Fisher, A Human-Rights Based Approach to Environment
avoid violations of rights in the future.301
and Climate Change (March 2014), online: GI-ESCR Practitioner’s Guide
<globalinitiative-escr.org/wp-content/uploads/2014/03/GI-ESCR- HRIAs could be conducted in conjunction with
Practitioners-Guide-Human-Rights-Environment-and-Climate-Change. environmental impact assessments (EIAs). EIAs almost
pdf>; Leslie London, “What Is a Human Rights Based Approach to assuredly would be legally mandated at the national and/
Health, and Does It Matter?” (January 2008) 10:1 Health & Hum Rts
or international level for any geoengineering research
65–80, online: <https://www.researchgate.net/profile/Leslie_London/
publication/46287024_What_is_a_human-rights_based_approach_to_
health_and_does_it_matter/links/54de290d0cf23bf2043af813.pdf>;
United Nations, HRBA Portal, “The Human Rights Based Approach 299 International Human Rights Law Clinic, supra note 11 at 15; UN High
to Development Cooperation: Toward a Common Understanding Commissioner for Refugees, Climate Change, Natural Disasters and
Among UN Agencies”, online: <hrbaportal.org/the-human-rights- Human Displacement: A UNHCR Perspective (14 August 2009) at 11,
based-approach-to-development-cooperation-towards-a-common- online: <www.unhcr.org/4901e81a4.pdf>.
understanding-among-un-agencies>. Andrea Cornwall & Celestine
Nyamu-Musembi, “Putting the ‘Rights-Based Approach’ to Development 300 The World Bank & Nordic Trust Fund, supra note 246 at 1.
into Perspective” (2004) 25:8 Third World Q 1415–1437, online: <courses.
arch.vt.edu/courses/wdunaway/gia5434/cornwall.pdf>. 301 Ibid.

program or deployment that might have substantial which measure state human rights performance.306
environmental impacts.302 There are four elements that a Indicators focus on capturing quantitative information
geoengineering HRIA should include. Each is discussed in on human rights; however, qualitative statements
turn. can complement data by putting information into
perspective.307 For example, a pertinent HRIA indicator in
First, a geoengineering HRIA should include a scoping the context of BECCS could be the amount of croplands
process that would identify rights-holders and duty- that might be diverted in a state for bioenergy feedstocks
bearers and would develop relevant indicators to use and the potential impacts on local food production. This
in the process to help assess potential impacts and their quantitative data might be supplemented by testimony
relevance to the human rights interests of rights-holders. from indigenous tribes and their experience in protecting
their interests in a region where such projects are being
In identifying rights-holders, an HRBA focuses on
developed.
protection of the rights of excluded and marginalized
populations, including those whose rights are most likely Second, a geoengineering HRIA should include an
to be threatened.303 An HRBA also emphasizes that rights- evidence-gathering process to help assess the potential
holders are not protected merely by the “benevolence” of impacts of geoengineering research or deployment.
states but rather that governments are required to “work
consistently towards ending denials or violations of One critical requirement of the HRBA process would be
human rights.”304 The HRIA process should reflect these greatly enhanced scientific understanding of the impacts of
principles also. specific geoengineering options, including regional impacts
that might adversely impact specific potential rights-
Initial development of human rights indicators began in holders. For example, in the context of SRM approaches,
the 1990s as a means of assessing compliance with human general circulation models (GCMs)308 would play a critical
rights treaties vis-à-vis projects or programs.305 Indicators role in preliminary assessments. However, GCMs currently
fall into three broad categories: structural, which seek do not perform well in modelling regional impacts of SRM
to assess state intent to comply with human rights law; geoengineering options, especially in terms of the critical
process, which measure state efforts to implement human consideration of precipitation.309 An HRBA would exert
rights, as well as steps taken to ensure protection of rights, pressure on researchers and policy makers to conduct such
including transparency, accountability of institutions and research to identify potential “winners” and “losers.” This
existence of consultations with stakeholders; and outcome, might include enhanced funding of the Geoengineering
Model Intercomparison Project (GeoMIP), which seeks to
establish a consensus among climate models in terms of
302 A Neil Craik et al, Procedural Governance of Field Experiments in Solar
Radiation Management (March 2015), IASS/CIGI Workshop Report at geoengineering technologies.310
10, online: <https://www.cigionline.org/publications/procedural-
governance-of-field-experiments-solar-radiation-management>.
See also Case Concerning Pulp Mills on the River Uruguay (Argentina
v Uruguay) [2010] ICJ Rep (20 April 2010) at paras 204, 205; 306 United Nations Human Rights Instruments, “Report on Indicators for
environmental impact assessment required “where there is a risk Promoting and Monitoring the Implementation of Human Rights”
that the proposed industrial activity may have a significant adverse (6 June 2008) HRI/MC/2008/3 at 10–13, online: <www2.ohchr.org/
impact in a transboundary context”. UNFCCC, supra note 2 at art 4(1) english/issues/indicators/docs/HRI.MC.2008.3_en.pdf>. Oliver De
(f); parties to utilize processes such as EIAs to minimize impacts of Schutter, “A Human Rights Approach to Trade and Investment
projects to mitigate or adapt to climate change. Convention on the Policies” (November 2008), online: Conference on Confronting the
Prevention of Marine Pollution by Dumping of Wastes and Other Global Food Challenge <www.iatp.org/files/451_2_104504.pdf> at 18.
Matter, Assessment Framework for Scientific Research Involving Ocean
Fertilization, supra note 28 at 6-18. Convention on Biological Diversity, 307 de Beco, supra note 305 at 383.
10th meeting of the Conference of the Parties, COP10 Decision X/33
(2010); requiring ex ante environmental assessment of any proposed 308 General circulation models seek to numerically simulate the response
small-scale geoengineering scientific research. State of Rhode Island, of the global climate system to perturbations, such as GHG emissions,
General Assembly, The Climate Geoengineering Act of 2016, House or in the case of solar radiation management, interventions such as
Bill 7578 (2016), online: <https://legiscan.com/RI/text/H7578/ SAI, by representing pertinent physical processes in the atmosphere,
id/1334695>; proposed bill would, inter alia, require environmental oceans, cryosphere and land surfaces. The climate is depicted through
impact assessment for geoengineering research with potential a three-dimensional grid laid over the earth. Intergovernmental
atmospheric impacts above a critical threshold. Panel on Climate Change, “What is a GCM?”, online: <www.ipcc-
data.org/guidelines/pages/gcm_guide.html>. See also B Geerts & E
303 OHCHR, Frequently Asked Questions on a Human Rights-Based Approach Linacre, “What are General Circulation Models?”, online: University
to Development Cooperation (2006) at 16, online: <www.ohchr.org/ of Wyoming <www.as.uwyo.edu/~geerts/cwx/notes/chap12/
Documents/Publications/FAQen.pdf>. nwp_gcm.html>.
304 UNICEF, A Human Rights-Based Approach to Programming for Material 309 Peter J Irvine, Andy Ridgwell & Daniel J Lung, “Assessing the
Mortality Reduction in a South Asian Context (2003) at 25, online: Regional Disparities in Geoengineering Impacts” (2010) 37
<www.unicef.org/rosa/HumanRights.pdf>. Geophysical Research Letters L18702 at 1.
305 Gaither de Beco, “Human Rights Indicators: From Theoretical to 310 GeoMIP, “Welcome”, online: <climate.envsci.rutgers.edu/GeoMIP/
Practical Application” (2013) 5:2 J Hum Rts Prac 380 at 380. index.html>.

Third, a geoengineering HRIA should include an ex ante instruments.320 It is also recognized in pertinent
deliberative process between rights-holders and duty- environmental instruments, including the UNFCCC,321 the
bearers that would help identify specific concerns of Paris Agreement,322 the World Charter for Nature323 and
rights-holders and duty-bearers. the Aarhus Convention.324
A critical sine qua non of the legitimacy of any potential In developing this component of the HRIA, every effort
governance architecture for climate geoengineering is should be made to go beyond merely soliciting public
engagement of populations in regions where impacts opinion on geoengineering issues, usually characterized
are likely to be most extreme, especially in developing as public communication or public consultation, 325 to the
countries.311 This participatory component of the HRIA establishment of large-scale public deliberative processes.
process could help to facilitate this by operationalizing Public deliberative processes seek to afford citizens, or a
procedurally oriented human rights provisions, including representative subset thereof, the opportunity to discuss,
the right to information and the right to public participation. exchange arguments and deliberate on critical issues,326 as
well as to seek to persuade one another of the judiciousness
The right to access pertinent information is critical for of their solutions.327 Public deliberative processes
members of potentially affected publics to be heard and emphasize the role of debate and discussion to facilitate
to potentially influence decision-making processes.312 the formulation of well-informed opinion and a reflexive
The generalized right of access to information by the process whereby participants are open to revision of their
public is recognized in the UDHR,313 as well as in the opinions based upon their interaction with others.328 As
ICCPR.314 Moreover, there is support in a number of
instruments for the more particularized right of access
to information about environmental and climate matters,
including in the UNFCCC,315 the Paris Agreement,316 and
the Aarhus Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice
320 ICCPR, supra note 219, art 25; African Charter on Human and People’s
in Environmental Matters.317 The UN special rapporteur Rights, supra note 231, art 13; American Declaration of the Rights and
for human rights and the environment has also stated Duties of Man, supra note 227, art 20; American Convention on Human
that “in order to protect human rights from infringement Rights, supra note 228, art 23; Declaration on the Right to Development,
through environmental harm, States should provide A/RES/41/128, 4 December 1986, 97th Plenary Meeting, art 1(1),
online: <www.un.org/documents/ga/res/41/a41r128.htm>.
access to environmental information and provide for the
assessment of environmental impacts that may interfere 321 UNFCCC, supra note 2, art 6(a)(iii). See also UNFCCC, Report of the
with the enjoyment of human rights.”318 Conference of the Parties on its thirteenth session, held in Bali from 3 to 15
December 2007, 14 March 2008, UN Doc FCCC/CP/2007/6/Add.1,
The right to public participation is provided for in Decision 9/CP.13, Amended New Delhi Work Programme on Article 6
of the Convention, Annex, at para 15, online: <unfccc.int/resource/
the UDHR,319 as well as in many other human rights docs/2007/cop13/eng/06a01.pdf#page=37>.
322 Paris Agreement, supra note 7, art 12.
323 World Charter for Nature, GA Res 37/7, UNGAOR, 37th Sess, Supp No.
51, UN Doc A/37/51 (1982) at 17.
311 Nick Pidgeon, “Deliberating Stratospheric Aerosols for Climate
Geoengineering and the SPICE Project” (2013) 3 Nature Climate 324 Aarhus Convention, supra note 317, arts 3(2), 6.
Change 451 at 454.
325 “In public communication, information is conveyed from the sponsors
312 UNHRC, supra note 9 at 15. of the initiative to the public.... In public consultation, information
is conveyed from members of the public to the sponsors of the
313 UDHR, supra note 235, art 19. initiative, following a process initiated by the sponsor. Significantly,
no formal dialogue exists between individual members of the public
314 ICCPR, supra note 219, art 19. and sponsors. The information elicited from the public is believed
to represent currently help opinions on the topic in question.”
315 UNFCCC, supra note 2, art 6(a)(ii). Gene Rowe & Lynn J Frewer, “A Typology of Public Engagement
Mechanisms” (2005) 30 Sci, Tech & Hum Values 251 at 254–55,
316 Paris Agreement, supra note 7, art 12. online: <web.iaincirebon.ac.id/ebook/moon/CivilSociety/A%20
Typology%20of%20Public%20Engagement%20Mechanisms.pdf>.
317 Aarhus Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters, 25 326 Paul Anderson, “Which Direction for International Environmental
June 1998, 2161 UNTS 447; 38 ILM 517 art 4(4) (entered into force 30 Law?” (2015) 6:1 J Hum Rts & Envt 98 at 121.
October 2001) [Aarhus Convention].
327 Ibid. J Dryzek, “Ecology and Discursive Democracy” in M O’Connor,
318 UNHRC, Report of the Independent Expert on the issue of human rights ed, Is Capitalism Sustainable? Political Economy and the Politics of Ecology
obligations relating to the enjoyment of a safe, clean, healthy and sustainable (New York and London: Guilford Press, 1994) 176.
environment, UNHRCOR, 25th Sess, U.N Doc A/HRC/25/53 (2013) at 9.
328 S Chambers, Reasonable Democracy: Jürgen Habermas and the Politics of
319 UDHR, supra note 235, art 21. Discourse (Ithaca, NY: Cornell University Press, 2003) 309.

such “deliberation is not so much a form of discourse or component of environmental impact assessments at both
argumentation as a joint, cooperative activity.”329 the international and national levels.334
The format of deliberative exercises can facilitate critical For example, many proponents contend that SRM climate
scrutiny of pre-analytic assumptions underpinning our geoengineering options might need to be deployed
framing of data and other sources of knowledge, and to respond to “climate emergencies.” 335 The most
can foster self-awareness and reflection by key actors, frequently cited scenarios are those in which there is
including science and policy institutions.330 This can both the imminent threat of temperatures exceeding critical
enhance the quality of the problem-solving and decision- climatic thresholds, manifesting themselves, for example,
making process, as well as bolster the legitimacy of policy in a dramatic increase in the decay rate of large ice sheets,
decisions. 331 widespread bleaching of coral reefs or other abrupt and
potentially non-linear changes in the climate system.336
Such a reflexive process, if conducted at regional and/or However, there may also be alternatives to climate
national scales, might help society “steer clear of the pitfalls geoengineering that can help us avoid passing critical
of a grand narrative, as it would manifest differently in thresholds as we make a transition to a decarbonized world
different cultures and ecosystems.”332 This would open economy without threatening human rights. For example,
up the possibility of developing a suite of geoengineering a recent study by the UNEP and the WMO concluded
approaches, each of which are most attuned to the needs of that implementation of a full set of measures to reduce
individual countries or regions, such as SAI in the Arctic or
marine cloud brightening in the northeast Pacific.333
Fourth, a geoengineering HRIA should include analysis

and recommendations. This element of the HRIA process
should include assessment of the human rights impacts
of the proposed geoengineering intervention (research or
deployment), and an assessment of state responsibilities
to respect, protect and fulfill human rights in this context.
This step should also include the critical element of the
development of recommendations to avoid or ameliorate
potential impacts on human rights or alternative means 334 The Pew Charitable Trusts, “High Seas Environmental Assessments”, 15
to achieve climatic goals that would avoid human rights March 2016, online: <www.pewtrusts.org/en/research-and-analysis/
violations. This obligation of outlining and discussing issue-briefs/2016/03/high-seas-environmental-impact-assessments>;
Neil Craik, The International Law of Environmental Impact Assessment
mitigation and alternative options is also an important
(Campbridge: Cambridge University Press, 2008) 67; Convention
on Environmental Impact Assessment in a Transboundary Context,
25 February 1991, 1989 UNTS 310, 30 ILM 800 (entered into force 10
September 1997) at art 5(a), online: <unece.org/fileadmin/DAM/env/
eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf>;
National Environmental Policy Act of 1969, 42 USC § 4321 (1969) at §4332,
online: <elr.info/sites/default/files/docs/statutes/full/nepa.pdf>;
National Wildlife Federation v. National Marine Fisheries Service (2016),
2016 WL 2353647 (Oregon Dist Ct) at 59; EC, Directive 2014/52/EU of
the European Parliament and Council of 16 April 2014 amending Directive
2011/92/EU on the assessment of the effects of certain public and private projects
on the environment, [2014] OJ L124/1 at art 5(1)(d), Annex IV.4.
335 Lee Lane, “Researching Solar Radiation Management as a Climate Policy

329 J Bohman, Public Deliberation: Pluralism, Complexity, and Democracy Option” (5 November 2009), online: American Enterprise Institute
(Cambridge, MA: The MIT Press, 2000) at 27. for Public Policy Research <geoengineeringwatch.org/documents/
peterson/Geoengineering%20U.S.%20House%20Hearing%20
330 Jason Chilvers, “Reflexive Engagement? Actors, Learning, and November%205,%202009%20LaneTestimony%20from%20A.E.I.pdf>.
Reflexivity in Public Dialogue on Science and Technology” (2012) See also Rob Bellamy, Jason Chilvers & Naomi E Vaughan, “Deliberative
35:3 Science Communications 283 at 287; P Macnaghten et al, Mapping of Options for Tackling Climate Change: Citizens and
“Responsible Innovation Across Borders: Tensions, Paradoxes and Specialists ‘Open Up’ Appraisal of Geoengineering” (September 2014)
Possibilities” (2014) 1:2 J Responsible Innovation 191 at 194; Bronislaw Pub Understanding Sci 1 at 2; David G Victor et al, “The Geoengineering
Szerszynski & Maialen Galarraga, “Geoengineering Knowledge: Option: A Last Resort Against Global Warming?” (March/April 2009)
Interdisciplinarity and the Shaping of Climate Engineering Research” 88:2 Foreign Aff 64 at 66.
(2013) 45 Envt & Planning A 2817 at 2819.
336 Joshua B Horton, “The Emergency Framing of Solar Engineering: Time
331 Burns, supra note 23 at 268, 269. for a Different Approach” (2015) 2:2 Anthropocene Rev 147 at 148; Sanna
Joronen, “Climate Change and Ethics of Geoengineering – Implications
332 Holly Joan Buck, “Geoengineering: Re-Making Climate for Profit or of Climate Engineering Ethics” (2015) 32 Reports from the Department
Humanitarian Intervention?” (2012) 43 Dev & Change 253 at 268. of Philosophy, University of Turku at 72-3, online: <https://www.doria.
fi/bitstream/handle/10024/117261/dissertation2015Joronen_Sanna.
333 Ibid. pdf?sequence=2>.

black carbon and tropospheric ozone emissions by 2030337 scenario of 0.7°C to 1.7°C by 2040.341 Moreover, these policy
could reduce the potential increase in global temperature measures would yield substantial co-benefits, including
projected for 2050 by 50 percent, with substantial net the avoidance of more than two million premature deaths
economic benefits.338 This would translate into a reduction and the annual loss of one to four percent of global
of temperatures by 0.5°C globally by 2050,339 and 0.7°C in production of maize, rice, soybeans and wheat.342 An
the Arctic by 2040.340 In the latter context, that would offset HRIA process might help to ensure that such options are
all, or a substantial portion, of the reference warming thoroughly vetted.
Alternatively, an HRIA process might lead the world

337 Black carbon is a constituent element of the combustion product community to opt for a strictly limited application of
known as soot. Indoor sources are primarily due to cooking with
biofuels, including dung, wood and crop residue. The primary
geoengineering options concordant with protection of
outdoor source is attributable to fossil fuel combustion (diesel human rights. For example, SRM approaches could be
and coal), open biomass burning and cooking with biofuels. V used simply to facilitate “peak shaving.” Peak shaving
Ramanathan & G Carmichael, “Global and Regional Climate Changes would entail limited deployment of SRM technologies
Due to Black Carbon” (2008) 1 Nature Geoscience 221 at 221. Recent
studies indicate that black carbon emissions are the second largest
to ameliorate the worst potential impacts of peak GHG
contributor to global warming, as much as 55 percent of the forcing emissions, while mandating an ambitious program of
associated with carbon dioxide. TC Bond, “Bounding the Role of Black mitigation and adaptation.343 By illustration, Michael Zürn
Carbon in the Climate System: A Scientific Assessment” (2013) 118 J and Stefan Schäfer suggested limiting alteration of the
Geophysical Research: Atmospheres 5380 at 5380: “Reducing Black
Carbon, or Soot, May Be Fastest Strategy for Slowing Climate Change”
radiation balance to no more than 1 W/m2 as a means to
(22 April 2008), IGSD/INECE Climate Briefing Note, online: <www. greatly reduce the potential negative side effects of SRM
igsd.org/docs/BC%20Briefing%20Note%2027Mar08.pdf>. Measures deployment.344 Similar scenarios have been advanced
to reduce black carbon that may prove highly cost-beneficial include by Douglas G. MacMartin, Ken Caldeira and David W.
the use of diesel particulate filters for diesel engines and industrial
sources, as well as other industrial control technologies, widespread
Keith345 and Takanobu Kosugi.346 Similar standards might
adoption of advanced cook stoves, and banning or reducing the be established for CDR options.
burning of agricultural waste and fuel switching; Drew Shindell
et al, “Simultaneously Mitigating Near-Term Climate Change and ASSESSMENT OF CAPACITIES AND STRATEGIES
Improving Health and Food Security” (2012) 335 Science 183 at 183;
US Environmental Protection Agency, “Mitigating Black Carbon”,
TO BOLSTER CAPACITIES
online: <https://www3.epa.gov/blackcarbon/mitigation.html>; US
Department of State, “The Climate and Clean Air Coalition to Reduce Capacity, broadly defined, is a critical consideration in
Short-Lived Climate Pollutants” (6 February 2012), online: <//www. determining the ability of duty-bearers to meet their
state.gov/r/pa/prs/ps/2012/02/184055.htm>. Tropospheric ozone, obligations and rights-holders to claim their rights.347 In
precipitated by sunlight-driven oxidation of so-called ozone pre- terms of duty-bearers, an HRBA in the context of climate
cursors, especially methane, exerts a substantial short-term greenhouse
effect. UNEP, Near-Term Climate Protection and Clean Air Benefits: Actions
for Controlling Short-Lived Climate Forcers vii (2011), online: <www.
unep.org/pdf/Near_Term_Climate_Protection_&_Air_Benefits.pdf>. 341 Ibid.
The primary methods to reduce tropospheric ozone involve reducing
methane emissions; Environmental and Energy Study Institute, 342 Ibid. See also Jianfei Peng et al, “Markedly Enhanced Absorption and Direct
“Short-Lived Pollutants: Why are they Important?” (February 2013), Radiative Forcing of Black Carbon Under Polluted Urban Environments”
online: <www.eesi.org/files/FactSheet_SLCP_020113.pdf>. Methods (2016) 113:16 Proceedings Natl Acad Sci 4266 at 4268, 4269.
to reduce methane emissions include diversion of waste into sanitary
landfills or, for onsite power generation, capturing fugitive emissions 343 Horton, supra note 336 at 150.
from energy production and other sources, capturing emissions from
livestock manure and intermittent aeration of flooded rice paddies; 344 Michael Zürn & Stefan Schäfer, “The Paradox of Climate Engineering”
Institute for Governance and Sustainable Development, “Primer on (2013) 4:3 Global Pol’y 1 at 9.
Short-Lived Climate Pollutants” (February 2013), online: <igsd.org/
documents/PrimeronShort-LivedClimatePollutantsFeb192013.pdf>; 345 Douglas G MacMartin, Ken Caldeira & David W Keith, “Solar
World Bank, “Integration of Short-Lived Climate Pollutants in World Geoengineering to Limit the Rate of Temperature Change” (2014) 372
Bank Activities” (June, 2013), online: <www-wds.worldbank.org/ Philosophical Transactions Royal Soc’y A 20140134 at 6–11; limiting
external/default/WDSContentServer/WDSP/IB/2013/08/19/00033 magnitude and duration of deployment of SRM with objective of
3037_20130819113818/Rendered/PDF/804810WP0G80Re00Box03798 restricting decadal temperature increases to 0.1°C could reduce risks
05B00OUO090.pdf> at 21. of adverse impacts, such as depletion of the ozone layer.
338 UNEP, “Integrated Assessment of Black Carbon and Tropospheric 346

Takanobu Kosugi, “Fail-Safe Solar Radiation Management
Ozone: Summary for Decision Makers” (February 2011) UN Doc Geoengineering” (2013) 18 Mitigation Adaptation Strategies
UNEP/GC/26/INF/20 at 3, online: <www.unep.org/gc/gc26/ Global Change 1141 at 1159. See also S. Tilmes, B.M. Sanderson &
download.asp?ID=2197>. See also Shindell et al, supra note 337 at B.C. O’Neill, “Climate Impacts of Geoengineering in a Delayed
187–88; Almut Arneth et al, “Clean the Air, Heat the Planet?” (2009) Mitigation Scenario,” Geophysical Research Letters (2016), DOI:
326 Science 672 at 672. <10.1002/2016GL070122>.
339 UNEP, supra note 338. 347 Methods to Monitor the Human Right to Adequate Food, Volume II (Rome:
Food and Agricultural Organization of the United Nations, 2008) at 38;
340 UNEP and WMO, “Integrated Assessment of Black Carbon and Urban Jonsson, Human Rights Approach to Development Programming,
Tropospheric Ozone” (2011), online: <www.unep.org/dewa/ (2003), online: UNICEF <www.unicef.org/rightsresults/files/
Portals/67/pdf/BlackCarbon_report.pdf> at 246. HRBDP_Urban_Jonsson_April_2003.pdf> at 15.

geoengineering should include an assessment of human the sustainability of energy crop extension into allegedly
resources, most specifically, the capacity to recognize and marginalized, degraded and deforested lands.
understand the human rights implications of deployment
of potential geoengineering technologies. It should also COLLABORATION WITH HUMAN RIGHTS BODIES
include an assessment of the economic resources of duty-
bearers, with an eye to ensuring safe deployment of The UNFCCC would clearly benefit from collaboration
technologies, the capability for effective monitoring and with human rights bodies. This could include UN bodies,
the capability to compensate those who might experience such as: the OHCHR and the UNHRC; human rights
contravention of their human rights. treaty bodies, such as the Human Rights Committee,
which monitors implementation of the ICCPR by its
In terms of rights-holders, an HRBA assessment of capacity parties, and the Committee on the Rights of the Child;
should include the determination of rights-holders’ access regional bodies, such as the Inter-American Commission
to pertinent information, particularly for marginalized on Human Rights and the African Commission on Human
and traditionally excluded groups, and assessment of their and People’s Rights; and non-governmental organizations,
capabilities to organize and participate in deliberative such as Human Rights Watch and the International Red
forums related to climate geoengineering and to obtain Cross. Collaboration should also be explored with other
redress for violations.348 Both duty-bearers and rights- organizations that may help to inform the process, such
holders should subsequently focus on developing as the Global Bioenergy Partnership (GBEP), comprised of
strategies to strengthen capacities, including through both state and non-state actors. The GBEP has developed
provision of financial resources, training of personnel and a set of sustainability indicators intended to inform
pertinent scientific research. decision making and to foster sustainability, including in
the context of socio-economic considerations.352
ESTABLISHMENT OF MONITORING AND
EVALUATION PROGRAMS Moreover, the OHCHR has called for integrating an HRBA
into climate change mitigation and adaptation policies.353
Implementation of monitoring programs should include Thus, the parties to the Paris Agreement could likely
the use of a role and capacity analysis to assess the obligations call upon the OHCHR, as well as on other human rights
of institutions at the international and national level to agencies and organizations, for assistance in development
monitor the impacts of geoengineering, as well as their of the HRBA.354 Human rights institutions could also help
capacity, and an analysis of existing information systems and fill in interstices by utilizing the HRBA’s mechanisms
networks to assess critical information gaps for effective for investigating human rights issues, including special
monitoring by decision makers, rights-holders and rights- procedures, the establishment of special advisory
bearers.349 committees and universal periodic review.355
One example where monitoring could be particularly Implementing the HRBA for Climate
salutary is in terms of deployment of BECCS. Projections Geoengineering within the Paris Agreement
of potentially sustainable levels of bioenergy deployment
are “systematically optimistic” and are not based on The optimal method to facilitate the HRBA process under
empirical observations or practical experience. 350 Raphael the Paris Agreement would be to establish a human
Slade, Ausilio Bauen and Robert Gross suggest fostering
“learning by doing” through close monitoring of
352 The Global Bioenergy Partnership Sustainability Indicators for Bioenergy
incremental efforts to expand the role of biomass in energy (2011), online: Global Bioenergy Partnership www.globalbioenergy.
production.”351 Close monitoring of the first few exajoules org/fileadmin/user_upload/gbep/docs/Indicators/The_GBEP_
of energy crops would help us realistically assess purported Sustainability_Indicators_for_Bioenergy_FINAL.pdf. See also Yoshiko
benefits of integrated crop and energy production and Naiki, “Trade and Bioenergy: Explaining and Assessing the Regime
Complex for Sustainable Bioenergy” (2016) 27:1 Eur J Intl L 129 at 142–44.
353 UNHRC, Report of the Office of the United Nations High Commissioner for
348 United Nations Development Program (UNDP), Applying a Human Human Rights on the relationship between climate change and human rights,
Rights-Based Approach to Development Cooperation and Programming: A 15 January 2009, UNHRCOR, 10th Sess, UN Doc A/HRC/10/61,
UNDP Capacity Development Resource (2006), online: <waterwiki.net/ online: <www.ohchr.org/Documents/Press/AnalyticalStudy.pdf>;
images/e/ee/Applying_HRBA_To_Development_Programming. Gromilova, supra note 296 at 91.
pdf> at 8.
354 For example, the International Council on Human Rights Policy has
349 Maarten Immink & Margaret Vidar, “Monitoring the Human Right also advocated application of an HRBA in the context of climate change
to Adequate Food at Country Level” in Gudmundur Alfredsson et policymaking; International Council on Human Rights Policy, Climate
al, eds, International Human Rights Monitoring Mechanisms, 2nd ed, Change and Human Rights: A Rough Guide 9 (2008), online: <www.ohchr.
(Leiden, Netherlands: Brill|Nijhoff, 2009) at 322. org/Documents/Issues/ClimateChange/Submissions/136_report.pdf>.
350 Slade, Bauen & Gross, supra note 196 at 103. 355 Center for International Environmental Law, Human Rights and
Climate Change: Practice Steps for Implementation (2009), online: <www.
351 Ibid. ciel.org/Publications/CCandHRE_Feb09.pdf> at 1–32.

rights subsidiary body comprised of human rights and The forum would be an appropriate body to conduct an
development experts. This body could be tasked, inter HRBA on behalf of the parties to the Paris Agreement or
alia, with developing HRBA architecture, advising the the Kyoto Protocol. It could establish an ad hoc technical
COP on relevant human rights standards and reporting expert group with expertise in both the technological
on best national practices.356 Alternatively, the most aspects of geoengineering and in the field of human rights
appropriate current institutions for operationalizing the law.365 As indicated above, it could also seek assistance
HRBA process under the Paris Agreement would be its from the OHCHR and other human rights bodies in terms
Subsidiary Body for Implementation (SBI) and Subsidiary of human rights considerations.366
Body for Scientific and Technological Advice (SBSTA).
The SBI was established under the UNFCCC to assist To further strengthen accountability, the parties could
the parties “in the assessment and review of the effective require that the transparency mechanisms of the Paris
implementation of the Convention.”357 The SBSTA was Agreement,367 comprised of national communications and
established in the UNFCCC “to provide the Conference biennial reports, contain a section on how human rights are
of the Parties and, as appropriate, its other subsidiary being integrated into climate change response measures.
bodies with timely information and advice on scientific Non-state actors could also be invited to supplement these
and technological matters relating to the Convention,358 reports in this context, reflecting the Universal Periodic
including “scientific assessments on the effects of measures Review process under the auspices of the UNHRC.368
taken in the implementation of the Convention.”359 The SBI Moreover, the parties to the agreement could also consider
has been designated in both the Kyoto Protocol and the establishing a formal grievance mechanism to provide
Paris Agreement to fulfill the same functions,360 as has the another avenue for potentially affected parties to seek
SBSTA.361 accountability. Models for such a mechanism might include
the International Finance Corporation’s Compliance
At COP17, the parties to the UNFCCC established a Advisor Ombudsman or the UNDP’s Compliance Review
“forum on the impact of the implementation of response and Grievance Process.369
measures,” which was mandated to meet twice annually
under the rubric of the SBI and SBSTA.362 The forum As Stephen M. Gardiner concludes, “To exert control
is tasked, inter alia, with assessment of the impacts of over the planetary system is to determine the basic life
climate response measures and engendering cooperation prospects of humans within that system, including the
on response strategies.363 At COP21 in Paris, the parties parameters against which they pursue their conceptions of
decided to extend the mandate of the forum, and to the good, generate their ideals, and even conceive of their
strengthen it, by, inter alia, enhancing the capacity of the identities.”370 While one should not overemphasize the
parties to deal with the impact of implementation of potential effectiveness of an HRBA process in the context
response measures and establishment of ad hoc technical of climate geoengineering, it might ultimately imbue
expert groups.364 the world’s most vulnerable people with some measure
of agency in what would constitute a truly momentous
decision.
356 Naomi Roht-Arriaza, “Human Rights in the Climate Change Regime”

(2010) 1:2 J Hum Rts & Envt 211 at 232. 365 Center for International Environmental Law, supra note 355 at 29.
357 UNFCCC, supra note 2, art 10(1). 366 See note 354 and accompanying text. Another alternative would be
to establish an expert group on human rights. While such groups are
358 Ibid, art 9(1). composed of experts acting in their personal capacity and don’t have the
same status as the official Subsidiary Bodies of the UNFCCC, they could
359 Ibid, art 9(2)(b). provide the parties with some guidance, as does the least developed
countries (LDCs) Expert Group, which supports developing countries
360 Kyoto Protocol, supra note 3 at art 15(1); Paris Agreement, supra note 7 in the preparation of their National Adaptation Programs of Action.
at art 18(1). UNFCCC, LDC Expert Group, online: <unfccc.int/adaptation/groups_
committees/ldc_expert_group/items/4727.php>.
361 Ibid.
367 Paris Agreement, supra note 7, art 13(4).
362 UNFCCC, “Forum on the impact of the implementation of response
measures”, online: <unfccc.int/cooperation_support/response_ 368 Mary Robinson Foundation, supra note 1 at 7.
measures/items/7418.php>.
369 Center for International Environmental Law & CARE International,
363 Ibid. Climate Change: Tackling the Greatest Human Rights Challenge of
Our Time (2015), online: <www.ciel.org/reports/climate-change-
364 UNFCCC, Report of the Conference of the Parties on its twenty-first tackling-the-greatest-human-rights-challenge-of-our-time-careciel-
session, held in Paris from 30 November to 13 December 2015, 29 January february-2015/> at 10.
2016, UN Doc FCCC/CP/2015/10/Add.2, Dec 11/CP.21, Forum and
Work Programme on the Impact of Implementation of Response Measures, 370
Stephen M Gardiner, “The Desperation Argument for
online: <unfccc.int/resource/docs/2015/cop21/eng/10a02.pdf>. Geoengineering” (2013) 46:1 Political Science & Politics 28 at 29.

Challenges to Implementing an HRBA in the declaration.377 The ICESCR also contains no jurisdictional
Context of Climate Geoengineering limits and, in fact, obliges states to take steps “individually
and through international assistance and co-operation” to
EXTRATERRITORIAL APPLICATION OF HUMAN achieve full realization of the rights contained in the
RIGHTS treaty.378 The Committee on Economic, Social and Cultural
Rights, which monitors implementation of the ICESCR, has
A state that would make the decision, for example, to allocate recognized a number of obligations with extraterritorial
land for BECCS’ feedstock or to deploy an SRM option effect. These include respecting the right to enjoyment
would have an obligation to respect, protect and fulfill the of the right to food in other countries by refraining from
human rights of its nationals.371 However, it is quite likely the imposition of food embargoes and operationalizing
that deployment of many climate geoengineering options the requirement of assistance by providing food aid
would have ramifications well beyond the borders of when required,379 as well as international cooperation to
any country. Thus, a pertinent question is whether a achieve the full realization of the right to health.380 The
state’s obligations under international human rights law American Declaration of the Rights and Duties of Man
extend to individuals that are not within a state’s territory similarly provides that “[t]he international protection of the
or effective control. This is usually referred to as the rights of man should be the principle guide of an evolving
question of “extraterritorial” application of human rights American law.”381 The Committee on the Rights of the
principles.372 This is obviously an extremely important Child has argued that parties to human rights conventions
question given the large number of circumstances have obligations both to implement them within their
under which deployment of geoengineering might have jurisdictions as well as contribute to global implementation
transboundary impacts, with the duty-bearers and rights- through international cooperation, although it does not
holders potentially separated by thousands of miles. specify the nature of this cooperation.382
As Marc Limon observed, “existing human rights law is On the other hand, the ICCPR could be construed as
primarily concerned with how a government treats its precluding extraterritorial application of its mandates,
own citizens and others within its territory or under its providing that state parties are to “respect and to
jurisdiction.”373 This is the “vertical” duty of a state in terms ensure to all individuals within its territory and subject
of human rights.374 Imposition of so-called “diagonal” to its jurisdiction the rights recognized in the present
or extraterritorial duties is a far closer case from a legal Covenant.”383 However, some commentators have
perspective.375 However, a reasonable case can be made suggested that this provision could be read disjunctively,
for this proposition and, thus, by extension, an application with parties thus being required to respect the rights set
of a human rights-based approach extraterritorially. forth in the covenant without territorial limitation, while
preventing and redressing rights violations within their
It is pertinent to initially examine relevant provisions jurisdictions.384
of key human rights instruments. The UDHR contains
no language limiting its jurisdiction to protection of the Several provisions of the United Nations Charter also
human rights of nationals.376 In fact, there is a suggestion of support the proposition that states have extraterritorial
extraterritorial scope, as it provides that “no State, group
or person” has a right to contravene rights outlined in the
377 UDHR, supra note 235, art 30.
378 ICESCR, supra note 220, art 2(1) [emphasis added].

371 See notes 245–248 and accompanying text.
379 General Comment 12, supra note 255 at paras 36–42.
372 Edward Cameron & Marc Limon, “Restoring the Climate by Realizing
Rights: The Role of the International Human Rights System” (2012) 380 General Comment 14, supra note 262 at para 39.
21 RECEIL 204 at 212.
381 American Declaration of the Rights and Duties of Man, supra note 227 at
373 Marc Limon, “Human Rights and Climate Change: Constructing a Preamble [emphasis added].
Case for Political Action” (2009) 33 Harv Envtl L Rev 439 at 458. See
also Sigrun I Skogly, “Extra-National Obligations Towards Economic 382 UN Committee on the Rights of the Child, General Comment No 5
and Social Rights” (2002) International Council on Human Rights (2003): General measures of implementation of the Convention on
Policy, Council Meeting, Background Paper, online: <www.ichrp. the Rights of the Child, 27 November 2003, 34th Sess, UN Doc CRC/
org/files/papers/93/108_-_Extra-national_Obligations_-_Towards_ GC/2003/5 at para 7, online: <www2.ohchr.org/english/bodies/
Economic_and_Social_Rights_Skogly__Sigrun_I.__2002.pdf> at 1. crc/docs/GC5_en.doc>.
374 McInerney-Lankford, supra note 233 at 40. 383 ICCPR, supra note 219, art 2(1) [emphasis added].
375 Ibid. 384 Rolf Künnemann, “Extraterritorial Application of the International

Covenant on Economic, Social and Cultural Rights” in Fons Coomans
376 Beth van Schaack, “The United States’ Position on the Extraterritorial & Menno T Kamminga, eds, Extraterritorial Application of Human
Application of Human Rights Obligations: Now is the Time for Rights Treaties (Cambridge, UK: Intersentia, 2004) at 201, 222–229; van
Change” (2014) 90 Intl L Stud 20 at 25. Schaack, supra note 376 at 28–29.

human rights obligations. Article 55 of the Charter of…rights in another state.”393 Thus, states deploying
provides for UN promotion of “universal respect for, and geoengineering technologies would be required to avoid
observance of, human rights,385 and article 56 mandates options that might undermine the exercise of human rights
that member states “take joint and separate action” to in other countries, such as approaches that might reduce
achieve this purpose.386 food production or deplete the ozone layer, potentially
imperilling the right to health in non-deploying states.
In 2011, 40 international law experts from around the
world adopted the Maastricht Principles on Extraterritorial The extraterritorial duty to protect has two components.
Obligations in the Area of Economic, Social and Political First, states must take into account human rights in
Rights.387 The principles were intended to serve as a terms of negotiation and implementation of treaties or
clarification of extraterritorial legal obligations in terms when entering into multilateral or bilateral obligations.394
of existing international law. The principles provide, inter Second, states must take measures to ensure that non-
alia, that all states “have obligations to respect, protect state entities within their jurisdictions do not interfere
and fulfill human rights...both within their territories and with the enjoyment of rights in other countries.395 Thus, in
extraterritorially,”388 The principles further conclude that the context of climate geoengineering, this would require
a state has human rights obligations not only in situations states to take into account human rights obligations
over which it exerts “authority or effective control,”389 but in treaty regimes of which they are parties, as well as
also in “situations over which State acts or omissions bring in multilateral or bilateral collaborations. This should
about foreseeable effects on the enjoyment of economic, include ensuring an inclusive process that engenders full
social and cultural rights, whether inside or outside its participation by all potentially affected parties and affords
territory,”390 or “situations in which the State, acting them meaningful opportunities for consultation.
separately or jointly...is in a position to exercise decisive
influence or to take measures to realize economic, social The duty to fulfill is controversial in the international
and cultural rights extraterritorially.391 context because of its emphasis on the need to take positive
state action in other nations.396 However, there is increasing
Assuming that extraterritorial human rights obligations recognition of the international human rights obligation to
can be established, how would we construe their scope fulfill as a secondary or subsidiary duty should measures
in the context of climate geoengineering? A reasonable taken to respect or protect prove insufficient.397
approach is to examine the scope of the duties to respect,
protect and fulfill at the international level.392 The duty to SHOULD CLIMATE GEOENGINEERING
respect in an extraterritorial context requires that states AND HUMAN RIGHTS BE VIEWED FROM A
“avoid measures that hinder or prevent the enjoyment COMPARATIVE HUMAN RIGHTS PERSPECTIVE?
Some commentators have contended that deployment
of climate geoengineering options may ultimately prove
to be compelling despite their risks because the spectre
of steadily rising emissions and associated climatic
impacts could constitute a more imposing global risk.398
385 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, art 55(c),
online: <www.un.org/en/sections/un-charter/un-charter-full-text/
index.html>.
393 Sigrun Skogly, Beyond National Borders: States’ Human Rights
386 Ibid, art 56. See also ibid, art 1(3). Among the purposes of the United Obligations in International Cooperation (Cambridge, UK: Intersentia,
Nations are “to achieve international cooperation...in promoting and 2006) 66. See also Limon, supra note 373 at 454.
encouraging respect for human rights....”
394 M Carmona, “The Obligations of ‘International Assistance and
387 Maastricht Principles on Extraterritorial Obligations in the Area Cooperation’ Under the International Covenant on Economic, Social
of Economic, Social and Political Rights, ETOs for Human Rights and Cultural Rights: A Possible Entry Point to a Human Rights Based
Beyond Borders (2013), online: <www.etoconsortium.org/nc/ Approach to Millennium Development Goal 8” (2009) 13:1 Intl J Hum
en/main-navigation/library/maastricht-principles/?tx_drblob_ Rts 86 at 91; Mark Gibney, “Responsibilities for Protecting Human
pi1%5BdownloadUid%5D=23>. Rights” (3 February 2008) 1:3 Global-e, online: <https://global-
ejournal.org/2008/02/15/gibney/>.
388 Ibid, s I.3.
395 Carmona, supra note 394 at 91.
389 Ibid, s II.9(a).
396 Mok, supra note 392 at 76.
390 Ibid, s II.9(b).
397 Skogly, supra note 393 at 71; Wouter Vandehoule, Is There a Legal
391 Ibid, s II.9(c). Obligation to Cooperate Internationally for Development, Report to
General Day of Discussion, Convention on the Rights of the Child
392 Emily A Mok, “International Assistance and Cooperation for Access (July 27, 2007), online: <www.crin.org/en/docs/Vandenhole%20
to Essential Medicines” (2010) 12 Health & Hum Rts 73 at 76, online: International%20Cooperation.pdf>.
<scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1606
&context=facpub>. 398 Bullis, supra note 139; Owen, supra note 16 at 214.

By extension, it might be argued that the human rights “winds, water and sunlight” by 2050.404 As Gardiner has
violations associated with climate change under current observed, even in the face of frightening climatic scenarios,
trajectories might “trump” those of climate geoengineering. we should not assume that climate geoengineering is the
“lesser evil” until we have thoroughly vetted all mitigation
David Morrow and Toby Svoboda have developed an and adaptation options.405
analytical framework, premised on principles of justice,
that can help guide societal choices between “non-ideal” CONCLUSIONS
policy options. These are choices that must be made
under conditions of “imperfectly just circumstances.”399 The Paris Agreement provides a framework for taking
They argue that climate geoengineering and current human rights into account in responding to climate
trends in climate change constitute a non-ideal policy change. This paper has sought to outline a framework
environment, with society’s “less than ideal response to for operationalizing this broad mandate in the context of
the threat of climate change” leading many to advocate climate geoengineering.
for climate geoengineering, despite the risks that it
could also impose.400 Geoengineering, Svoboda argues in It is hoped that this framework might also prove helpful
another piece, “may do better than emissions mitigation in assessing the human rights implications of mitigation
or adaptation alone when it comes to serving both overall and adaptation options. To date, consideration of the
welfare and incomplete fairness.”401 human rights implications of adaptation responses has
been “peripheral.”406 Some adaptation strategies, such as
However, Morrow and Svoboda also propose two criteria forced assimilation of indigenous peoples for compelled
that must be met to justify a “non-ideal” policy option migration, may raise severe human rights questions
such as geoengineering: “a proportionality criterion,” that should be addressed by the parties to the Paris
which “compares the prima facie wrongs that a non-ideal Agreement.407 In the context of adaptation responses,
policy inflicts with the injustice that it alleviates;” and a an HRBA could also be a salutary mechanism to avoid
“comparative criterion,” which “compares a proposed non- so-called “negative lock-ins,” that is, approaches that
ideal policy with other politically feasible alternatives.”402 undermine the ability of the system to respond to larger
The HRBA developed in this report could play an subsequent impacts. The focus in human rights analyses
important role in conducting such an analysis. It could on the root causes of vulnerability would help to avoid
help society to compare the human rights implications sclerotic adaptive responses.408 Similar concerns have been
of the impacts of climate change and geoengineering raised in the context of mitigation responses, including the
as a way of operationalizing the concept of “prima facie
wrongs.” Moreover, it would provide one set of metrics,
to be utilized in conjunction with others in the realms of
economics and environmental considerations, to compare
geoengineering with policy alternatives. As indicated
above, this might include alternatives such as aggressive
efforts to reduce black carbon as a mechanism to slow down 404 See Mark Z Jacobson & Mark A Delucchi, “Providing All Global
rates of warming and give us more “space” to decarbonize Energy with Wind, Water, and Solar Power, Part I: Technologies,
the economy,403 as well as efforts to substantially accelerate Energy Resources, Quantities and Areas of Infrastructure and
the path to transformation of our economy to one based on Materials” (2011) 39 Energy Pol’y 1154 at 1169; Mark A Delucchi &
Mark Z Jacobson, “Providing All Global Energy with Wind, Water,
and Solar Power, Part II: Reliability, System and Transmission Costs
and Policies” (2011) 39 Energy Pol’y 1170 to 1190. For a critical
review of such proposals, see Peter J Loftus et al, “A Critical Review
of Global Decarbonization Scenarios: What Do They Tell Us About
Feasibility?” (2015) 6:1 Climate Change 93 at 112.
405 Stephen M Gardiner, “Is ‘Arming the Future’ with Geoengineering

Really the Lesser Evil?” in Stephen M Gardiner et al, eds, Climate
Ethics: Essential Readings (Don Mills: Oxford University Press, 2010)
284 at 292.
399 David Morrow & Toby Svoboda, “Geoengineering and Non-Ideal 406 Australia, Human Rights and Equal Opportunity Commission,
Theory” (2016) 30:1 Public Aff Q 83 at 84. “Human Rights and Climate Change” (2008), online: <https://www.
humanrights.gov.au/papers-human-rights-and-climate-change-
400 Ibid at 86. background-paper> at 14.
401 Toby Svoboda, “Aerosol Geoengineering Deployment and Fairness” 407 John Crowley, “Climate Change, Climate Knowledge and Human
(2016) 25 Envtl Values 51 at 65. Rights” (2011), online: <www.ohchr.org/Documents/Issues/
ClimateChange/Seminar2012/JohnCrowley_UNESCO_23Feb.2012.
402 Morrow & Svoboda, supra note 399 at 86. pdf> at 3.
403 See notes 337–342 and accompanying text. 408 Fisher, supra note 298 at 13.

Clean Development Mechanism of the Kyoto Protocol409

and efforts to reduce deforestation (REDD+).410
The Paris Agreement may ultimately be viewed as a major

breakthrough in the field of climate policy making, as well
as a powerful force for defending the human rights of the
most vulnerable in our society from environmental change.
The emerging field of climate geoengineering affords us
an opportunity to develop a framework to make human
rights more than merely an aspiration in the context of
climate policy making.
409 International Bar Association, supra note 190 at 50; Roht-Arriaza,

supra note 356 at 215, 216; MISEREOR, CIDSE & Carbon Market
Watch, Human Rights Implications of Climate Mitigation Actions, 2nd
ed, (May 2016), online: <carbonmarketwatch.org/wp-content/
uploads/2016/05/NC-HUMAN-RIGHTS-IMPLICATIONS-OF-
CLIMATE-CHANGE-MITIGATION-ACTIONS-VERSION-02-MAY-
2016-OK-WEB-spread-page-.pdf> at 17-18.
410 Kirsty Gover, “REDD+, Tenure and Indigenous Property: The Promise
and Peril of a ‘Human Rights-Based Approach” in Christina Voigt, ed,
Research Handbook on REDD+ and International Law (Cheltenham, UK:
Edward Elgar Publishing, 2016) at 249–283; Annalisa Savaresi, “The
Role of REDD in the Harmonisation of Overlapping International
Obligations” in Erkki Hollo, Kati Kulovesi & Michael Mehling, eds,
Climate Change and the Law (New York, NY: Springer, 2013) 391 at 414.

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CIGI PAPERS

NO. 111 — OCTOBER 2016

THE PARIS AGREEMENT AND CLIMATE

This work is licensed under a Creative Commons Attribution — Non-commercial

67 Erb Street West

iv About the Author

1 Acronyms and Abbreviations

3 Overview of Climate Geoengineering

17 The Application of Human Rights to Climate Geoengineering

ABOUT THE ILRP ABOUT THE AUTHOR

The ILRP strives to be the world’s leading

William has published more than 75 articles in

iv • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

ACRONYMS AND ABBREVIATIONS UNDP United Nations Development Programme

UDHR Universal Declaration of Human Rights

WilLiam c.g. Burns • 1

INTRODUCTION need to respect human rights when addressing the threat

2 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

This paper seeks to develop a framework foroperationalizing OVERVIEW OF CLIMATE

20 Joeri Rogelj et al, “Paris Agreement Climate Proposals Need a Boost

WilLiam c.g. Burns • 3

26 US, US House Committee on Science and Technology and a

4 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

30 The Royal Society, supra note 12 at ix; National Research Council,

WilLiam c.g. Burns • 5

41 Julie Kerr Caspar, Changing Ecosystems: Effects of Global Warming

44 Rasmus E Benestad, “A Mental Picture of the Greenhouse Effect” (21 51 Ibid.

6 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

WilLiam c.g. Burns • 7

68 “Cloud condensation nuclei are a subset of the atmospheric aerosol

75 Lenton & Vaughan, supra note 35 at 5548. 83 Ibid.

8 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

85 Angel, supra note 80 at 17,189.

WilLiam c.g. Burns • 9

10 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

WilLiam c.g. Burns • 11

132 The Royal Society, supra note 12 at 31.

133 Holly Jean Buck, “Geoengineering: Re-Making Climate for Profit or

12 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

WilLiam c.g. Burns • 13

157 B Govindasamy et al, “Impact of Geoengineering Schemes on the 165

14 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

WilLiam c.g. Burns • 15

184 Caldecott, Lomax & Workman, supra note 106 at 16.

185 Ibid. Secretariat of the Convention on Biological Diversity, “Biofuels

16 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

198 Slade, Bauen & Gross, supra note 196 at 103.

WilLiam c.g. Burns • 17

224 CRC, 20 November 1989, 1577 UNTS 3, 28 ILM 1456 (entered

18 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

234 Susannah Wilcox, “A Rising Tide: The Implications of Climate

WilLiam c.g. Burns • 19

258 Lili Xia et al, “Solar Radiation Management Impacts on Agriculture in

20 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

WilLiam c.g. Burns • 21

285 Ibid at 12. 292 Paris Agreement, supra note 7.

22 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION

WilLiam c.g. Burns • 23

24 • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION