The Intersection Between the Precautionary Principle, International Law, and Geoengineering

The International Law Reading Group (ILRG) is happy to announce a session as part of its Early Career Research Exchange (ECRE) Series, hosting Jack Travers, who is a PhD candidate at the University of Strathclyde. Jack will be presenting a paper on the precautionary principle in international environmental law in the context of novel climate technologies, namely geoengineering. The paper will explore whether the precautionary principle as conceptualised at the international level is robust enough to offer the foundational scaffolding for the regulation of geoengineering. The ILRG is looking forward to discussing and exchanging ideas on this exciting topic.

The full abstract of Jack's research could be found below:

As the climate crisis deepens, traditional methods of emissions reductions have failed to correct the upwards trend of global warming, resulting in an increased focus on novel climate technologies, namely geoengineering, which promises to adjust global temperatures accordingly. Conversely, opponents argue that as the scientific data is inconclusive and early predictions suggest negative impacts on biodiversity, weather patterns and a moral hazard of shifting focus from empowering greener technology towards novel, untested technologies, the most prudent course of action is to implement the precautionary principle and a pre-emptive moratorium on deployment and research at the international level.

The precautionary principle as understood in international law has had a varied and controversial existence since emerging into the legal zeitgeist over the preceding decades. Hailed as a milestone in the development of international environmental law owing to its so called ‘common sense’ approach and enhanced environmental protections, it has failed to evade persistent questions around its implementation, definitions, and obligations placed on states. Moreover, its existence as a legal principle has also been subject to debate, most recently in the advisory opinions from the International Court of Justice, International Tribunal for the Law of the Sea, and the Inter-American Court of Human Rights. Whereas the respective courts and tribunals placed importance on precaution, each arrived at a different interpretation and function of precaution, adding to the already confusing landscape as to whether precaution is a principle or simply an approach.

In lieu of an overarching framework or a legally binding moratorium on geoengineering, reliance is therefore placed on existing international environmental conventions, norms, customs, and principles as the operational workhorse of regulation. Thus, one of the driving questions behind this current line of research is whether the precautionary principle as conceptualised at the international level is robust enough to offer the foundational scaffolding for the regulation of geoengineering. Section I provides a brief historiography of the principle of precaution and its evolution from the basic definition found in Rio to the more condition-laden expression found within the United Nations Framework Convention on Climate Change. Section II focusses on the recent advisory opinions from the International Court of Justice, the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights who were tasked with declaring the obligations of states in relation to the climate crisis through various lenses such as how they relate to the marine environment and their interaction with existing human rights law. The above advisory opinions provide an in-depth discussion and clarification on the role of the precaution which helps formulate the discussion around the relationship between the precautionary principle and geoengineering. I conclude with some reflections on the state of the art of the precautionary principle in international law and potential pathways it offers as it relates to the regulation of geoengineering.