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 The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the Centre for International Governance Innovation or its Board of Directors. This work is licensed under a Creative Commons Attribution — Non-commercial — No Derivatives License. To view this license, visit (www.creativecommons.org/ licenses/by-nc-nd/3.0/). For re-use or distribution, please include this copyright notice. Centre for International Governance Innovation, CIGI and the CIGI globe are registered trademarks. 67 Erb Street West Waterloo, Ontario N2L 6C2 Canada tel +1 519 885 2444 fax +1 519 885 5450 www.cigionline.org 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 CIGI PAPERS NO. 111 — OCTOBER 2016 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