Andrew, thanks for the find. It is encouraging to see a scholar such as de Zayas consider climate engineering (CE). However, he displays two logical problems which I wish to highlight. First, like most legal scholars who comment on solar CE (SRM), he considers only its risks and not its benefits, despite his statements to the contrary and despite the fact that the latest modeling indicates that SRM would do more good than harm. If significant harm were to result, under international law there is strict liability (i.e. no need to demonstrate negligence or intent, only harm and causation) for only specific risky activities (e.g. space activities, nuclear power, maritime transport of oil) in certain treaties, and only for Parties to those treaties. Furthermore, there is no evidence that criminal liability could be applied to the implementation of SRM in order to reduce climate risks, unless it was done for the purpose of genocide, war, or aggression. How an “international duty of care, a minimum threshold of responsibility to protect – or R2P for the environment” (which does not exist in international law) would be applied in the case of CE or SRM specifically, given the mixes of benefits and risks, is completely unclear. Furthermore, even if SRM were to violate international law (which would depend entirely on how it would be implemented), he could have equally pointed to the draft articles on Responsibility of States for Internationally Wrongful Acts of the International Law Commission, which permit violations under certain circumstances such as distress and necessity. Could a small island state whose very existence is at stake, and which implements SRM in a manner contrary to international law, claim such defense?
Second, consider the way in which he contrasts countries such as Switzerland with those “that do not have ‘direct democracy’, [where] decisions are frequently taken without proper consultation”: Huge issues of democratic governance arise. In a direct democracy like Switzerland even banal decisions like building a bridge or a tunnel are subject not only to polling but also to national or regional referenda. A fortiori, the decision whether or not to implement SRM would require consultation with the general public and would have to be approved by referendum, nor merely by executive or parliamentary decision, which would be devoid of legitimacy without popular consent. … In countries that do not have “direct democracy”, decisions are frequently taken without proper consultation. If the executive were to decide on his own, are there any checks and balances? What would the legislative and the judiciary do? And in modern representative democracies, would Parliaments pass the necessary legislation, e.g. to define the allowed level of risk, to require environmental impact assessments, etc.? Would parliaments pro-actively inform and consult with their constituents? If Parliaments were to decide such important policies without informing the people – or even knowingly against the will of the people – could that be considered at all compatible with the country’s constitution and with a general consensus on a democratic order? Surely not – but that does not mean that it would not happen. … it is entirely possible that governments could adopt SRM over the heads of the electorate – and it would be for the constitutional courts of those countries to challenge the constitutionality of measures adopted undemocratically. The governments of most countries (including Switzerland) most of the time make decisions without a direct referendum on the particular question. Some of these individual decisions may be unpopular, but that makes neither the popular nor unpopular decisions necessarily illegitimate. Such is the nature of representative democracy with its regular elections. Yet the author not only sets up a false dichotomy between an ideal Real Democracy and the rest, but he also implies that decisions regarding SRM may be adopted by the executive “on his own”, by Parliaments which may not “pro-actively inform and consult with their constituents… even knowingly against the will of the people”, all of this “over the heads of the electorate”. We have no reason at this time to believe that that would be the case with SRM any more than we would with other policy decisions. Unfortunately, de Zayas for unknown reasons considers only the harms of potential SRM implementation and only the scenarios which would violate international law, when there is no particular reason to focus solely on those two scenarios. ----------------------------------------- Jesse L. Reynolds, PhD Postdoctoral researcher European and International Public Law Tilburg Sustainability Center Tilburg University, The Netherlands Book review editor, Law, Innovation, and Technology email: [email protected]<mailto:[email protected]> http://works.bepress.com/jessreyn/<http://bit.ly/1pa26dY> http://twitter.com/geoengpolicy<http://bit.ly/1oQBIpR> From: [email protected] [mailto:[email protected]] On Behalf Of Andrew Lockley Sent: 12 December 2014 02:22 To: geoengineering Subject: [geo] International Law Weekend: Panel on Geo-Engineering | Alfred de Zayas' Human Rights Corner Poster's note : highly recommended reading https://dezayasalfred.wordpress.com/2014/11/27/international-law-weekend-panel-on-geo-engineering-alfred-de-zayas/ Extract Huge issues of democratic governance arise. In a direct democracy like Switzerland even banal decisions like building a bridge or a tunnel are subject not only to polling but also to national or regional referenda. A fortiori, the decision whether or not to implement SRM would require consultation with the general public and would have to be approved by referendum, nor merely by executive or parliamentary decision, which would be devoid of legitimacy without popular consent. Would a referendum on SRM result on a positive or negative decision by the public? This depends, of course, on the level of information available and the pro-activeness of Government in facilitating a general understanding of the issues and of the risks involved. In countries that do not have “direct democracy”, decisions are frequently taken without proper consultation. If the executive were to decide on his own, are there any checks and balances? What would the legislative and the judiciary do? And in modern representative democracies, would Parliaments pass the necessary legislation, e.g. to define the allowed level of risk, to require environmental impact assessments, etc.? Would parliaments pro-actively inform and consult with their constituents? If Parliaments were to decide such important policies without informing the people – or even knowingly against the will of the people – could that be considered at all compatible with the country’s constitution and with a general consensus on a democratic order? Surely not – but that does not mean that it would not happen. European Parliamentarians adopted the Treaty of Lisbon without putting it to popular vote, precisely because all polls indicated that a majority of citizens in the UK, France, Belgium, Germany etc. were against the treaty. And in the only two countries where referenda on adherence to a draft European Constitution had been conducted – it was defeated by popular vote. Judging by this example, it is entirely possible that governments could adopt SRM over the heads of the electorate – and it would be for the constitutional courts of those countries to challenge the constitutionality of measures adopted undemocratically.Then there is an issue of the international democratic order. What if only ten powerful states want to impose solar geo-engineering and 183 states are against it? Can a collating of willing States impose their will on other States? This raises huge issues of interference in the affairs of sovereign states. Even the UN would be prohibited from such interference, pursuant to article 2(7) of the UN Charter.Consequences and Outlook What does the doctrine of State responsibility tell us about the consequences of risk-taking? What if things go very wrong? What accountability is there? Principles of State responsibility would affirm the liability of those States that engage in geo-engineering vis à vis the States that bear the consequences. There are issues of both civil and criminal liability – and national case law provides abundant precedent of tort liability. This brings me to the relatively new concepts of “Ecocide”, “Geocide” and Earth Law. Some observers like Polly Higgins advocate strict or absolute liability without any need to establish “intent” or “mens rea” – as is the case with genocide under the 1948 Genocide convention. So-called “collateral damage” of geo-engineering cannot be excused or ignored simply because there was no intent to damage. Here would like a major breach of the international duty of care, a minimum threshold of responsibility to protect – or R2P for the environment. -- You received this message because you are subscribed to the Google Groups "geoengineering" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]<mailto:[email protected]>. To post to this group, send email to [email protected]<mailto:[email protected]>. Visit this group at http://groups.google.com/group/geoengineering. For more options, visit https://groups.google.com/d/optout. -- You received this message because you are subscribed to the Google Groups "geoengineering" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To post to this group, send email to [email protected]. Visit this group at http://groups.google.com/group/geoengineering. For more options, visit https://groups.google.com/d/optout.
