Does the ‘No-Harm’ Rule Have a Role in Preventing Transboundary Harm and Harm to the Global Atmospheric Commons from Geoengineering?

Abstract

Solar Radiation Management (srm) geoengineering poses a significant risk of transboundary and global atmospheric harm. How might international law regulate the future use of srm? We explore how the ‘no-harm rule’ from customary international law might contribute to the international governance of future attempts at srm. The no-harm rule imposes a legal duty on states to prevent significant damage across borders and in the global commons. Existing geoengineering literature assumes that, as the international law system lacks a mandatory enforcement mechanism, the no-harm rule will play little or no role in the governance of srm. We challenge this assumption by focusing on the possibilities of compliance with the no-harm rule through bolstering its legitimacy and sense of legal obligation. We explain how Brunnée and Toope’s theory of ‘interactional international law’ might provide a useful lens for developing the no-harm rule in this way to independently respond to the risks posed by srm.

Political Perspectives on Geoengineering: Navigating Problem Definition and Institutional Fit

“…It is surprising that they are not more front and centre in the corresponding academic literature. With some notable exceptions (Brent et al 2015, Talberg et al 2018, norms are mostly addressed as something that still needs to be developed in order to govern emerging technologies. Yet the work that existing norms do in steering government behaviour determines which debates and discussions can be initiated in the first place.…”

The Ethics of Geoengineering: A Literature Review

“…The scope of CDR researches is vivid under the Paris agreement. No-harm rule can be facilitated by an "interactional international law" (Frumhoff and Stephens 2018;Craik and Burns 2016;Brent et al 2015;Hale 2012a).…”

Solar Geoengineering: Social Science, Legal, Ethical, and Economic Frameworks

“…This customary norm requires not only that States adopt appropriate laws and measures with respect to their own conduct but also that they carry out "a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators" under their jurisdiction and control (124). The no-harm rule imposes an obligation of conduct on states to prevent a significant risk of transboundary harm and, thus, would apply to any type of geoengineering activity that triggers this threshold (125). The due diligence standard also incorporates a series of procedural obligations, including duties to exchange information on transboundary risks, to consult and negotiate, and to conduct an environmental impact assessment (EIA).…”

“…The due diligence standard also incorporates a series of procedural obligations, including duties to exchange information on transboundary risks, to consult and negotiate, and to conduct an environmental impact assessment (EIA). However, although customary international norms, such as the no-harm rule, are "significant in providing a general frame of reference" (119), they are regarded as too general and vague to provide an adequate standard of conduct with respect to specific geoengineering interventions, and it may be difficult to prove elements to make out a breach (e.g., proving the causal link between the climate intervention and specific damage) depending on the circumstances (125,126). For example, Craik (127) points out the limitations of the customary law requirement to conduct a transboundary EIA as a mechanism for regulating geoengineering, noting, inter alia, that the process narrowly focuses on the assessment of direct, physical impacts and does not provide for analysis of downstream environmental and social risks associated with uncertain and controversial technological developments.…”