Climate Change Geoengineering PHILOSOPHICAL PERSPECTIVES, LEGAL ISSUES, AND GOVERNANCE FRAMEWORKS Edited by WIL C. C. BURNS Johns Hopkins University ANDREW L. STRAUSS Widener University School of Law CAMBRIDGE UNIVERSITY PRESS 6 Politic31 Legitimacy in Decisions about Experiments in Sol3r Radiation Management David R Morrow, Rohert E. KOPfJ, and Michael O/Jpellheimer 1. INTRODUCTION I'<n IJetter or for worse, geoengineering has 1l1Oveci fWIlI the fringes of the climate change debate to the halls of Capitol Hill' ,llld Westlllillster.' Of course, a great deal of research remaillS to be dOlle before the world decides whether to introduce gcocngillcering as a coltlplement to Initigation and adaptatioll; ac,l(lcillics and policy makers are still wrestling with Ihe scielltific, political, legal, social, and ethical qllcstiollS SllffOllilding the illtentiollallilodification of the climate. llere we address the illStitlitiollal aspects of SOllle of tilt' cthical isslies rai:>ed by research on geoellgllleefillg. The lIlost ethicall\' cllallengillg form of geoellgilleerillg research ill\"()ives solar radiation managclllent (SRM),' wllich atteillpts to redllce the emth's absorptioll of incoming solar radiatiun. One proposed lIlechanislll for SIUvl is the illjectioll of aerosols into the stratosphere, which wOlild deflect more solar radiation back into space. III contrast to research into carbon dioxide removal (CDR), which is the olhe) Iliaill category of proposed geoengineerillg activities, SRl\l research is par1"'1 ti:nh challellging ethically because studying and testing S IUvl tecllllologies can relJuire deployment at scales that could have significant regional or global climatic effects.' 1;(H instance, testing the effects of stratospheric aerosol illjection would require lofting enough aerosols into the atmosphere, over a long ellough period of See Ccocilgillcerilll.; 1[1: I)ollll"stic alld IlltcfllatiollalRcscarcli Cm'ClllallCC. 111111 COII~. (2010/. See Scicllcc &: 'I "e1llloiog\ COlllllliltce, Tile RCgll"llioll OfCCOCllgilll"cring. 2010. I I.C 221 at ,. SOlllC earlier work, illellldillg Olm, rck" to SIUd ," '",IIorl-w;]\'c clilliaic cllgillccring." \\'c regard IIIc,c 1110 lenm "s ')"0"\""101". See I)a, id It rViorro\\, Robert I*:. Kol'P &: f\iicl"lcl 0l'l'cllllcilller, '/(lll'urd Elilicdl Norms alld lnstillitiolls 1(" Climate Engineering Research. 4 ENVTI.. RES. I.E'ITERS 045106. 2 (2009). See d/su J.J. BLACKSTOCK E'I AI.., CJ.J~fATE ENGINEEI(Jr-.C; RESI'Or-;SI<S TO CJ.JMATE E~IERCENCIES 2 (2009). 4 BI.ACKSTOCK et "I., sllprd 1I0le "at 25. Poblical Legitilllilc\' /Ii I )('(/'/II/IS dli()ul Experiments Illlle, to distinguish tlte effect of Illl' ;1(,1()~01) IrOl1l lIonn,d climatic variatioll.' The conseqtlences of stich large-selic lestlllg COIild calise serious harm to milliom of people. For Instance, SRM cOllld change regional precipitation patterns, threatening water supplies and agriculture." Moreover, whereas CDR aims to return the atmosphcre to an carlier, familiar state, SRM aims to create a new state one of high greenhollse gas (CHC) concentrations and redllced IllSolation about which we know IllllCh less. In an earlier paper we sllggested three ethical principles for SRM research based on established principles for biomedical research with human subjects. 7 The analogy between SRM and biomedical research is, like all analogies, imperfect. [n this chapter, we consider sOllle of the ethical implications of olle limitation of that analogy nallicly, the fact tlwt decisions to participatc in biolllcdical experiments arc made individually, whereas the decision to "participate" ill an SRM experiment is a collective decisioll. Specifically, we explore the possibility of designing an intem3tional institution that would have the llJoral authority to make collective decisions about SRM experiments. We c01lSider the requisite features of such an institution and examine the charactcristics of other global governance institutions as COllJparable cases. 2. THE BIOMEDICAL MODEL FOR SRM RESEARCH ETHICS [n om earlier papcr, we proposed a basic framework for SRM research ethics that derives from principles governing biomedical research with human and anirnal sllbjeels.~ We intend our framework to ;lpply to large-,calc SRM experiments. Very roughly, "large-scale SRM experiments" are experiments that are large enough to significantly alter the clilllate regionally or globally by changing the rate at which the earth absorbs incoming solar radiation, but smaller than would be deployed to counteract the radiative forcillg of allthropogenic CHCs on a global basis. For instance, injecting enough aerosols into the stratosphere to distinguish their effeel from normal climatic variation'! constitutes a large-scale SRM experiment; releasing a few tOilS of 1I,Ioffow et aI., s({pra note j, at h. " Alall Robock ct al.. A Test IlIr Ceoengineerillg" 327 SCI. 5je). 5,1 (lUlU) See al"" emllld"",,"\" g,da, K. Caldeira & R. Nelilani, Fasl versus Slow Resp,,"se ill C/lllla/e C;hallge: J/llpliealiolls lor Ihe Clobal Hydrological eve/e. ,5 CI.IMATE DYNAMICS .p,. *n' (2. ". >I: .\. JOlin d ,rI. (;('()clIgi/l(wing hI' Stratospheric SO, Injection: Resulls from the Met ()lIlc!' I J"d( :I':,",J (.'illll"/'* *\I"del ,I//(I CO/llparisoll with the Coddard Illstillite fllT Space Studies AlodelK " ,II \lOS '"I*" 1'11\\ ")'N. (HH.S (2'"0) JOlles et ;}t.. slipra Ilote 6; Id. at I. , Morro\\" d a I., sllpra Ilote ,. at ,-6. 'I Roughly km to hlllldrcds of kilotollS per year if tire IlIlnl.IIII '\ c,1) ., .. , I'''' 11,\"1 "I ,,,ll.lle "c-IOsols, based 011 calcillatiolls Ilsing previousl\" published si'~IIrI" .111" 11",.1,,,1.1\ ,,,,,I 1.1<ll.lli,,* 1"'CllIg l\lorroH', Kopp, dlld Oppellhell/wl ;termois frolll a single airplane to observe their physical ;lnd chcIllical reactiolls with other particles docs Hot, as sllch a sIIlall quantity of material could Hot significantly alter thc c1illlate. ThrolIghout this chapter, we lise "SRM experiment" to refer specifically to large-scale ac!i\*itics. We explicitly exclude climate modeling studies and small-scale field tests of SRM technologies, although we recognize that the line bem't'ell small-scale field tests and large-scale experiments is fuzzy. Om ethical fraIIlework for SRM experilllenb includes three basic principles: The Principle of Respect requires that researchers secure the global public's consent, in some appropriate fornI, before cOI1lIllellcing an cxperiment. 'o Tire Principle of BCllcficence and Justice requires that researchers protect the basic rights of persons affectcd by tlreir experiments, minimize the risk-benefit ratio of those experiments, ;llld ;rill) to distribute those risks and bellefits jllstly across perSOIlS, allilllab, ami ecowstcIIIS." Thc Principle of Minimizatioll requires that experiments should not last IOllger, cover a greater geographic area, or exert a greatcr influcnce on the clilllate t Ilan is Ilecessary to test tire specific hypotheses in question." The analogy bem'cen SRM and biomedical research is, like all analogies, imperfect. T'he key limitation of this analogy is that individllab decide for themselves whether to participate in and face the risks of a bioIlledical experiment, whereas we must decide collecti\e1y whether to subject OllfselvcS to the risks of an SRM experiment. Irnagille two people who are eomidering participating in a trial of all experilllental antidepressant. The first person's decision about whether to participate has no effect 011 tire other's decision; it neither precludes nor requires that the other person participate. Thus, the fir~t person's decision docs not expose the second to allY risks. SRM is different. 'Il) "participate" in an SRM experiment, in the relevant sense, is to be subjected to the alteration of the climate. Tlms, no one call participate in the experilllent unless everyone participates in the experiment. In this respect, an SRM experiment is more like a public health intervention or collective social policy than it is a l1ledical experiment. For example, individuals cannot easily opt Ollt of mandatory vaccination policies, the fluoridation of drinking water, or national pension schemes. The necessity of "collective participation" in SRM experiments changes the way we think about risk and consent. In the bioIlledical case, we need to consider only the risks to the individllal participant (and, in some cases, Iris or her family). With SRM, we necd to consider both the scale and the distribution of risks. In the biomedical case, we can and shollid require the informed consent of each participant. If c,tilllatc,. For ,igllinc<lllce thrc,hold" see id. at 7: for radiative forcing c,tilllatc" see Alall Robock d ai, 'j'ropiwl (/Ild Arctic C(,Oellgilleerillg, IIj J. CEO. RES. 016101, at + (2008). l\\orfOW et ai, supra lIote ,\, cil +-5. " ld. at C;--(J. " ld. at 6. PO/iilUi/ Legitilll'" \ 11/ J ), , 1,1"1/\ "hulli E'p<'rimellis 11'1 1111l\'(:r:,allllfoflllCd cOIl:,ent is ellll("I111 I, 'I" II l'd ';)1 SRi\\ expertlllt'lIts, l!Jell ('1111(,11 SIU\\cxperilllellts arc illlpm:,ihic III ~~(I"I,",I")IIC\er, wc rarely require IIILlllilll<1/1\ ,I~n.'ciliellt in I llaling collcctive del'l\loll' I': \:II11p!cS of th is inc lude dClllOcr:illl gfJ\l'I'lllllCllts tklt sometillles iJllpmc 1111111:11\ :,i'II'ICe requirelllcnts, challge 1:1\ r:iln, IIlstitute redistrilJlltivc social safety nch, proll'd species or ccosvstcms, alld prolldlil II/ regulate the llse of certain technologics, cvell when sigllificant fracti()II~' of Illl' populatioll do Ilot a III I would not COllscnt to those policics. III disctlssing cOll\C'nl ,lIld SRM cxpcrililents, we suggested that S()llle indirect forlll of consent .SIWit ;IS ,'onscllt voiccd through Ilational represcntatives ~ lIlay be ethically slIfficielil " III \\hat foliows, II'(.' consider the features that an institution would need ill order 10 S(,I'Ve as a vehicle t()r such indirect cOllsent. 3. COLLECTIVE DECISIONS, LEGITII\HCY, AND GLOBAL GOVERNANCE \Ve cOlltelld that ill collecti\'t' decisiolls, the cClltralllofln,lti\'c cOllcem is tile legitilIlacv of decisiolls ,llId decisioll llIakers rather thall ulliversal individual eOllsent. Thlls. the ethical COllduct of SRl\1 rcsemell reqllires all illStitUtiOll tllat 11:ls the ,;Iobal politieallegitilltacy to make decisiolls about SRl\1 experimellts. Political philosophers recognize both a 1I0flllativc ami a descriptive (i.e., positivc) COllccpt of legitilllacy. Roughly, <Ill illStitUtiOIl is kgitilnate in the nOflll:ltivc sellse If it has the right to go\CfIl, alld it is legitilll<itc ill the descriptive sense if it is lIidel\, /ie/ie\'ed to h<ivC the right to govcm.'1 Bccamc the ethic;d cOllduct of SRM l'('sGlreh depellds Oil :1Il institution that has the right to gm'efll SRM research, rather Ihall olle that is IlIcrclv helieved to hal'c that right, we foclls 011 the nOflnative S(,llse of legi ti III <l ('V, Political philosophers aho distillgllish betweell the legitimacy of politic:d iml iIlltiOIlS and the kgitilllaC\' of decisions made by those institutions. To S<I\ 111:i1 ;1/1 IIlstitUtiOIl is legitilllate is to say that with respect to some range of issucs, it 11:ls I Ill' III(nal authority to lIlake billding decisions for the people within its jurisdictioll." 'Iii ,ay that a particular decisioll is legitimate is to say that the institution has the 11101,11 right to decide that particular issue in the particular way that it has.'(' The distillcI ion between legitimate imti tutions and legitimate decisions matters becallse kgll illtale imtitlltiolls can sometimes make illegitillwte decisiom. A decision Illight he lJ, "1+ " Allell Illlch"I1"" &IZoiJcrl O. Keohelllc, Tlte l,e,;llll/ld<T of C/obal Covenwllee Institutio"",, 2,) I, 1'11/1\ &INT'1. MT,\IRS .f0) • .fo) (2006). C/. ;\lleli Illlch"",,,,. Political LA.'gitilllo('l' dOl/ I lel/lOcTOC\', 1/2 ETIlICS 68,), (,S,)-,)o; IOIiN I( \\\1', POLITICAL I.IHERAI.IS~I .f2H (1<)1),). John 1\",\1,. l'()/iticall ,iberali.~1Il: RepiJ' 10 II,J/w"I/,". ')2 J. I'HII.. 132, qS 11l)l))), lv/orTOH'. h()p/>. ulld 0Pf)Clllil'llIll'1 iIlcgl ti mate became it does 1I0t resul t frolll the proper procedure.' I f. for i Ilstallce, a legislative body require, half of its lllelllbers to be pre,ellt for a qUorlllI1, thell a decisioll is illegitilllate if it is made when ollly a third of tl\(: membership is presellt. Silllilariy, if a state's !t:gislatme enact, a law that violates a right protected by the state's eOllstitutioll, tlte law is illegitilllate; the only legitimate procccime for abridging that right is to changc the constitutioll. A decision could abo be ilicgitim;lte if it is grossly unjust." Although states call be legitilllate without beillg perfcctly just, llot cven a Icgitimate government of a legitimate statc has thc moral authority to violate the basic right:, of its citizells in systematic ways. I'or imLlllce, procedural propriety presumably would not confer legitilllac\ Oil a decision to strip a particuLlr ethnic Inillorit} of basic civil rights. III political (i.c., collective) decision 1II<lkillg, Iegitilliacy plays the role that COIl- \(,111 phy.,> ill individual deci,ioll making. Allvolle who vollllltarily cedes allthority 0\ ('1'>(1I11l' rdllge of isslies to a trade lInion, a bO,lrd of directors, a go"eflllllellt, or a olllldar deCl,jolHllaking body thereby acknowledges that legitill1acv is ,Ill appropriatc standard for evaluating collective decisions. As Allen I3llehanall PlltS it, eonscnt, despitc its prominence in social contract theorists' aecollnts of political Iegitilllacy, is "ill-suited to the political world" became "politics seenls to be cOllccfIled ... with how to get along when COllSent is lacking."'" As "participation" in an SRM experilllent is a collective choice, Ilot ,Ill illdividllal OIlC, researchers whose experiments have the kgitillwte apprm',d of all appropriatc illStitutioll will satisfy the delllands of thc Principle of Respcct. All appropriate imtitutiOIl, i II til is COil text, is olle wi th the global pol i tical legiti ll1acy to II lake decisions about SRJ\I experilllelits. For the pmposes of assessing possible IIlodels for a global SRM govefllallce illstitutiOIl, we adopt Allan BlIekman ami Robert Keohane'" Complex Standard of legitilllacy for global govcfllance illStitutions ((;(;Is).'" In broad strokes, the Complex Standard has three par!>, e;leh of which we elaborate on below. First, a legitilllate illStitution must enjoy the ollgoillg consent of democratic states. Second, a IegitillIate institution Illust meet certaill "substantive" conditiolls: namcly, it nil 1st exhibit "minimal moral acceptability," maintain its illstitutiollal integrity, alld deliver positive benefits relative to altcfllative feasible illstitutiollal arrallgclIlellts. Third, a legitilllak institution must manifest certain "epistelllic" or "deliberati,e virtues," which provide sufficient trallsparenc\' ami accountability to ensure Illeanillgful participation by alld dill' cOllSideration of its stakeholders. Iii. at liS ,\ Iii. at 17(>' '" Hllcl"lllall. -'lI/H<l lloie IS. ,Ii ()')l)*-70u. See <If,o IL\WI.S. Sll/Jra note 15, at ,l), alld .p~. Hllchallall II: KcohallC'. suprd 1I01e l.f. at *jl7~2'). PlJliticu/ Legitimacv lI/ I )(,(/'I<!J/S u/JolJi E,peri11le1lis 151 The cOllsent of delllocratic states is ;[ IICCTSS;Jry, but not sufficient, conditioll for Ihe legitimacy of a CGI. Buchallall allt! "eohane worry primarily that thc "cllain of delegation" tying eCls to the illdividuals that legitimize the states that legitimize the GGls IHay become too long. With snch a long leash, the bmeallcrats in a eCI Illay Ilot be appropriately respollsive to stakeholders' Ileeds. In the case of SRM, at least, there is a further concefll. Several major states certainly China and arguably Russia are not democratic in the relevant sense. Indecd, a great deal of the world's population lives in nondemocratic states. GiveII thc potentially broad impact of the dccision to be made, we arc reluctant to claim that an institution regulating SRM could be lcgitimate without the cOllsent of at lcast the larger, less illegitimate lIondelllocratic states." The "substantive" cOllditions for legitimacy combine the need to deliver positive net benefits with the need to avoid gross illjustices, corruption, and abuses of power. Buchallan and Keohane explain that eeIs meet the first substantive condition, "llIinimal morally acceptability," if thcy do not "persist in cOl1llllitting serious injustices," wherc a ,eriolls injllStice consists in violating human rights."" They understand "institutional integrity" to meall adherence to a GGl's stated mission and rnethods. Corruption eroded the integrity of the UN Oil-For-Food Progralll, for cxample, because it permitted Saddam Hussein and other government officials to profit from thc sale of oil, even though the progralll aimed to ensure that Iraqi oil revenlles would benefit the Iraqi public without further enriching hilIJ.'l Even if a eCI meets these two substantive conditions, it I1lust deliver positive net benefits, as comparcd with other fcasible institlltional arrangements. (One feasible arrangemellt, of course, is the absence of a forlllal institution.) The most important part of the Complex Standard, in our view, is the requirement that GGls manifest the "epistelllic virtues" of transparency and accountability.'4 These virtues set democratically legitimate GGls apart frolll global bureaucracies staffed by lInaccountable technocrats and operating opaquely. Even if the UN General Assembly unallimously voted to establish a Gel to be run by technocratic experts, and even if benevolent experts at the GGI met Buchanan and Keohane's substalltive conditions for legitimacy, the GCI would lack legitimacy if the global public had no effective way to monitor and sanction the eel's activities. A benevolent dictatorship is illegitimate, even if initially illStalled with public approval, because of the ease with whieh it can abuse its power; a benevolent but opaque and unaccountable technocracy is illegitimate for the same reason. " But c{ BlICh'lIIall & Keohane, Sllpra lIole 1+ al -112-14. " ld. "t-l19. 0, ld. at -1222,. " ld. at-l2-1-" 1')2 l'v[orrow, Kopp, and Oppellhellller Buchanan and Keohalle's epistelllic virtues serve to overcome the lllfon lIational asymrnetries that enable bllfeaucracies to subvert the will of their creators. '10 be transparent and accountable, a eGI mllst provide information on its goals and behavior in a format that is accessible and intelligible to transnational civil society. Furthermore, there Illllst be mechanisms by which civil society can challenge the Gel's goals, standards, and methods and sanction the GGI for failing to meets its standards or achieve its goals. Manifcsting these virtues involves actively engaging with transnational civil society, tlSually through national governments and international NGOs. Engaging all groups that are significantly affected by an institution may require engaging actors olltside the llsllal circle of governments and NCOs. This is certainly the case with SRM, as those Illost vulnerable to decisions about SRM experiments may not be well represented by existing NCO, or goveflllllellts.'\ In light of Buchanan and Keohalle's discllssion, we believe that a Gel that met the Complex Standard would have the politicallegitirnacy to ll1ake decisions about cOllductillg SRM experiments. We do 1l0t claim that such an institution could make decisions about deploying SRlVl for nOll-research purposes. Such deployment wonld involve lIlore serious, longer-term conseqllences and commitments than an SRM experiment, and so decisions about deployment lllay require stricter conditions for legitimacy. These stricter conditions may comist [nerely ill more stringent application of the Complex Standard, or they may involve the introduction of further criteria, sllch as a larger role for the UN General Ãselllbly or other, Illore directly representative bodies. 4. MODELS FOR AN INSTITUTION TO MANAGE SRM RESEARCH Dming the twentieth century, people developed or considered various institutions to govefll a wide range of international activities. We examine three of these institUtiOIlS as possible lllodels for an institution to manage SRM research. NOlle is a perfect allalogue because SRM experiments present a new kind of global problem: Ilever before has the world collectively decided whether to conduct experiments that could affect so lllany people's welfare in such significant ways. Individual states have made momentous decisions, major international organizations have implemented policies with global consequences, and humanity has stumbled collectively into patterns of behavior sllch as fossil fuel use that reshape the globe. None of these decisions, however, cOllStituted an intentional choice by the global public to undertake a risky global experiment for the sake of acquiring new knowledge. Thus, OUT pmpose ill reviewing existing GGls is not to find a single, complete model '\ See Pablo Suarez. ja")Jl Blackstock & Maarten van Aalst, clC)wards a People-Centered Framework for Ceo(,Ilgineering Covcrnance: A/-julll<mitarian Perspective, 1 GEOENGINEERING Q. 2, j (2010). Political i.Rgitilllat')' ill I )l'l'/MOII S u/;out 1';xperimcllts lor llIJnJgillg SRM. InstcJd, wc.: tlt;l\\, \\*lI.lf lessOIlS we call frolll each case Jbollt tIle ways thJt al1 SRM governallce body could SJtisfy the Complex Standard for Ic.:giti1ll3CY* .p Institutiolls len Ma/lagil1g NlIclear Weapon;; SRM would ellJblc hUlllanity to altcr the world in a rebtively short pcriod of timc. Nuclear weapollS gave humanity power to alter the world overnight. Givcn the power of Iluclea r weapons, the international community has developed a suite of iIlStitu* tions to regulate them. These institutions aim to constrain nuclear testing, curb lIuclear proliferation, and reduce the size and dallger of existillg nuclear arsenals. In this section, we focus mainly Oil institutions that cOllstr;1in nuclear testing. We <.llso consider the hypothetical International Atomic Devclopment Agency (IADA), which the United States proposed in 1946 ;1S part of the Baruch Plan. 4.1.1 Nuclear 'lest Ball Trcaties Between H)63 and 1996, the intematiollal community concluded four treaties that constrain the testing of nuclear weapons. Thcsc are the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water ("Partial 'lest Ban Treaty" or IY!'BT); the 1970 Treaty on the Non*Proliferation of NucleJr Weapons (NPT); the 1973 Treaty on the Limitation of Underground Nucle<lr We<lpoll Tests ("Threshold ' lest Ban TreJty" or ' ITBT); and the 1996 Comprehensive Nucle<lr*'lest*B<ln TreJty (CTBT). We refer to these treaties collectively JS the "Test Ban Treaties" (TBTs) . The TBTs e$pecially the NPT form part of the Imger internatiollJI effort against proliferation Jlld toward disarmament. The history of that larger effort, and of the '} 'BTs in particular, holds important les* sons for those interested in forging international agreements about SRM. In other words, the role of transnational civil society,'(' the importance of vested interests at the domestic level,'7 the ways in which nuclear.weapoll states promised to protect llOn-nuclear*weapoll states from nuclear aggression,'s alld the various politicJI obstacles confronting diplomats in shaping the TBTs'~ would likely find echoes in the process of shaping SRM treaties. III this chapter, we leJve many of those lessons aside to focus narrowly Oil the question of the legitinwey of the TBTs' constrJillts on nuclear weapons tests. ,I, See Rebect:a Johnson, Unfinished I3mille,s: The Negotiation of the C TBT alld the ~.:lId of Nuclear 'testing 25 (2009)* >, See JOIINSON , supra lIote 26 , at 32, 41, 47. " See S.c. Res. 255, U.N. Doc. SIRESIz55 (jtlltl' H). Il/)X). >0 See JOIINSON. supra 1I0te 26, at 9-172. 154 Morrow, K.opp, and Oppenheimer Nuclear weapons tests share important features with SRM experiments. Like SRM experiments, nuclear weapons tests threaten the global public directly, through exposure to radioactive fallout, and indirectly, by contributing to the development of dangerous technologies. Furthermore, states conduct nuclear tests in part because they believe that the development or maintenance of nuclear weapons may be vital to their national interests in the future a view that some states may one day adopt with respect to SRM technologies. The PTBT bans all nuclear explosions except those conducted underground)O (The treaty exempted subterranean tests partly because of technical difficulties in distinguishing such tests from earthquakes.) '[be treaty's purpose was to curtail the testing of nuclear weapons in order to slow the nuclear arms race and protect the public from radioactive fallout. Beginning in 1955, small multilateral conferences of major powers struggled for eight years to negotiate a ban on nuclear testing. Frustrated by the failure of these negotiations, the United States, the USSR, and the UK hammered out a treaty over the course of ten days in Moscow in 1963.3" This is not to say that the multilateral negotiations were fruitless. They laid the groundwork for the final negotiations, helping to ensure that the negotiations in Moscow generated a treaty to which most states consented. One hundred and eight parties signed the treaty that fall. The treaty has 124 parties, including all of the nuclear-armed states except China, France, and North Korea, none of which signed the treaty.P The PTBT did not involve the creation of a separate bureaucracy; the treaty implicitly relies on state parties to detect violations of the treaty. In the years following the PTBT, the NPT emerged from bilateral and multilateral negotiations, including discussion in the UN General Assembly. The treaty prohibits the transfer of nuclear weapons-related technologies from nuclear-weapon states to any other State, and it prohibits non-nuclear-weapon states from developing or acquiring nuclear explosives.H Rather than prohibiting certain kinds of nuclear tests, it prohibits tests by certain actors namely, states that had not already detonated a nuclear explosive prior to January 1, 1967.'" The treaty opened for signature in 1968 and entered into force in 1970. It currently has 190 parties, indicating broad global consent)5 The most prominent dissenters are India, Israel, and Pakistan. jO See Treaty Bannil,lg Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, )~3, 4 UST 1313, ~ UNTS 4, at Art. I. JJ U.S. Department of State, Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Spac~ and Under Water (n.d.), http://www.state.govltlisn/4797.htrn. " Seeid. 13 Treaty on the Non-Proliferation of Nuclear Weapons, July I, 1~8, ;u UST 483, 729 UNT S l~ at Art. I-II. l< ld. at Art. IX. l ! United Nations Office for Disarmament Affairs, "Non-Proliferation of Nuclear Weapons (NPT)" (n.d. ), http://www.un.orgldisannamentlWMDlNuclearINPT.shtrnl. Illdia h,ls heell <1 particularly \'oe,d (1111( oj III, ' Irl',lIy, Ilhich it sees as eIIlrcJ1(:hiIH" liitematiollal pOIlcr differentials :" The NIYI' relics heavily 011 the iJlkrll:lllOII;d /\tolllic 1<lIergy A'>soeiatloll (LJ\EA) II) lllollitor cOlllpliallce with thc treatv'., prOllsiollS Althollgh this makes the I '\1<: A lelltral to the glohal Iiollproliferation regillle, the IAEA pbvs 0111" an iJl(lirect role hI' helpillg to enforce the rcgil1les prohibiting lluclear weapollS tests. Iu H)7+ the lJ uited States amI the USSR negotiated the 'I TBT. Thc treaty restricts IllIdcrgrolllld tests to vields of less thall ISO kilotoIlS.'Conecflls abollt verifieatioll ,tailed ratiflcltion for si\teell years until highly technical protocols werc devised IIHough bilater,d Illectillgs ill tIle late l<)kos. Followillg the adoption of these protocols, botll parties ratified the tTeaty ill 1<)<)0. The Ullited States alld Russia reIllain the sole parties to the tre;lty.;' Despite this dela\', both parties ,lIlllollllced ill H)76 Ihat they wOllld abide by tile ISo-kiloton IiIllit,1') and according to tile officially stated vields of their lI11clear tesh, hoth havc done so.," Critics eOlldellln the treaty as a ruse by which the sllperpowers could elailll progress on disarmament without imposing Illeanillgfullilllits Oil the dc\eloPlJlellt of their Illlcicar arscnals:p Thc CTBT, which \\'oldd ball allllllelear e\plosions of any killd, was opened for sigllaltlfc in Scptelnbcr ll)l)() bllt has yet to enter into force. As of 2010, the treaty IS awaitillg the ratificatioll of Ilille kcy state'>: Chilla, I':gypt, Indonesia, Illdia, lrall, Israel, North I(orea, P<lkistan, and the UIIited States. SOllle of these statcs have signcd the trc<lty; others 1I<l\c lIoty 1':I'clI without thc C'J'BT in forcc, howevcr, IlIlele<lr tests havc ~dl hut ce<lsed. NOlie of thc major lIuelear-weapon statcs llave condllctcd tests sillec HYi); India, Pakistall, and North Korca have t:;leh cOllducted two tests sillce thcll." The CTBT arguably played a callsal role in this redllction in testing. China alld France sLlted that tlleir final tests ill H)l)() were Incant to avoid the Ileed for fmther testing once they had signed the CTB'l'. Thc largest redllction, thougl" caille earlier fronl the cnd of the Cold \\'ar, wllich cllahled Russia, the lJl(, and the linited States to cease testing ill the earl\' H)l)OS, ,I, JOII:\SO:\, slipra Ilok ell, al HJ. 'l're'll\ Oil 111l' J ,11l1I1"IIOII of I I "dcrW,,""d ;\;II"k"r \Vcap,,11 '1 ,-'sh, )IIh 'l, ")74, I'l II ,:'vt 'Jell (Hi74) al .\rl. L ;\ II.S Ikp'lrllllclll ofSLlic. '''I '''rc,''old 'I('sl Ball Trcal\" (lI.d.), ""p:lI\\\\*\\.slak.gov/lliSll/S20+llilll. ;') ld. " U.S. i)cparllllclIl of 1':llcrg\, "lillilcd Slain NlICk'lr 'ksls: Jllh hHS Ilrrong" Sepiciliher I<J<)2" (2U()uj, 1,lIp:lI\\,\\\\.III.doc.gOl /librar\/pllhlieaIiOlls/l,islorlCal/l)( )I<NV _10<)_ RI':VI5.pdfal 71-?>'): [\ linisll\' ofl"e Rll,,,iall I'l'dcratioll for .\IOlllic t<llcrb'\', "l J SS I{ Nllcicar \ Ve"pollS' I "sis alld Pcaeeflll Nuclear 1<'I'I",io",: HH') Ihrough H)')O" (199()j, hltp:!/upc.;;lrOl.m/cuglishli"sllcs/peacellll/peaceful_c.pdf al 'j0' ,j') l' JOIlc.SOc., SlIprd I10le 'lO, <It 20. ~ 1<1. al 'j-+ ;; COlllprehensive Nuclear 'I(,sl-Bau 'l're<lll Org'lIlll.alioll Preparalory COllllllitlce, "Nuclear '''',III'i; H)4S-200l) (ll.d. L hllp:!I\\'\\\\'.ctbto.org/lluclear-lcsl iug/l! IslolV-of-11l J('ic;lf,lcstiugirlllcka r,I, ',1" w, J94S-100l)/pagc-7-llllclc'lr-lcsllllg-Il)45-200l). Morrow, KO/JP, and Oppe1lhei11ler l,ike the PTBT, the CTBT emerged from a long series of disclIs,ions ill various [ontms. Amollg the most illlportant of these forums was the Group of Scientific I':xperts (CSI~:), which had collaborated since 1976 to develop the technical knowledge needed to monitor and verify compliance with a test ban.+! Decades of discussion about a C'J'I3T culminated in two years of negotiations ill the Conference all Disarmament (CD) fWIll 1<)94 to 1996. Despite substantial progreS, iII those two years, Indian opposition still threatened to scuttle the treaty. Only Belgian and Australian parliamentary manellvering brought the draft treaty out of the CD and into the UN General Assembly. The Cel;eral Assembly elJdorsed the draft by an overwhelming majority." The CTBT calls for a dedicated international organization to monitor compliance and implement the treaty; a Preparatory COlllmission has worked since 1997 to lay the groundwork for implemelltation. The ccntral task of the Comprehensive Nuclear-'lht-Ban Treaty Organization (C'I'BTO) is to monitor compliance with the treaty. This involves operating the International Monitoring System (lMS), which 1lI0nitors for physical and chemical sigllS of a nuclear explosioll, and if necessary, conducting on-site inspections after suspected nuclear tests. The IMS consists of 337 facilities around the world. These facilities monitor seisillic evellts, hydroacoustic activity, atmospheric infrasonic waves, and airborne radionuclides.-t(, 'fhe data they gather is channeled to the Intcrnational Data Centre (lDC) in Vienna and made available for civilian research. The IDC provides both raw data and quality-controlled data bulletins to member states, along with software alld training to help member states interpret the data.", This arrangement grew out of Ilegotiators' illSistence that the IDC make its data transparent to member states that lack the resources to interpret raw data.-tH Collectively, the TBTs provide a framework by which the international commuIlity has forbidden various classes of dangerous experiments. What lessons do the TBTs hold for those looking to create a legitimate SRM GGl? First, the TBTs suggest a way to achieve some progress, ethically speaking, with respect to SRM experilllents, even if the international comlllunity cannot reach perfect agreement on whether or how to conduct stich experimellts. The TBTs do not constitute the global cOInlllunity's consellt to any particular test; they merely H See JOHNSON, supra note 26. at l.f'!. 4i Id. at 46-1f2. 4/' COlllprehemi\e Nuckar-'ti."t-Ban Treaty Organizatioll Preparatory COllllllissioll, The CTBT Verification Regime: Monitoring the Earth t'Jr Nuclear Explosions 2 (200<}), http://www.ctbto.org/ Ii ica(h IIi lilt ber _II p loacl/pll h 1 it _i nfOflllat ionhoo<)Neri lication_Regi I ne_1i Ila I._we b. pdf [J Icrei lrafter C'l'BTO Preparator\' COlllmissiolil. lC ld. at). 4'\ JOHNSON supra note 26, at l.f'!. Polilicall,ce,ilil1l(/Cl III I)" /\/"Ii' ,1/)(1111 /<:rperl1ll('lIis l"prns, through a legitilll~ile C(:1. ;1 1('lm,d 10 "participate" ill certaill killds ,Ii ('\jx:rilllcllts, The decisiol1 to perfilllil IlIllledl k,L or 1lot reillains in the 11;111(1,01 llime states that ;Ire allthorizcd to do ,0 IllIdci the NPT, or have refused to joill Ihe NIYj', Irthe i1lternational COllllllllllity C;IIIIIOI ;Igrce 011 \\'hich SRM expcrinlelils 111l'\ would I ike to perform, they might at 1e;lst agree 011 what kinds of SRM c\pcrililclIh Ihev \\illnot toleratc, C01lducting all SRM experimcllt ill the gaps left by a partial lest b;lll would still be dceply ethically problclllatic, as it still amounts to hlllll;1I1 n:pcrimclltation without consellt. However, e\en if it onl\' had the power to restrict IllC killds of expcrilllcnts that lllay be performed, a politicallv legitimate SRM eel would illcrease the global public's control over the clilltate ami might help detcr the Illost dangcrous expcrilllcllts, Although it would lIot satis!)* the Principlc of Respcct, II would bc diliedh' better thall nothillg. Sceond, the history of the 'I '13'j', delllollStrates tklt Illeaningful treatics tlla! enjoy \\idespread intcrnational Sllpport~ alld thus satist, olle of the criteria ill the Complex Standard for legitinlacy ~ can emerge frolll slIlall 1I1tlitiiaterai negotiations. The P'l'BT, fi)r instancc, was ultillwtcly negotiated by just threc states, alld yet it covers over olle hUlIdred ,LItes, The lessoll for SIUv! is that, if wider Ilegotiations falter, a rclati,ek slIIall workillg group IIlay be able to produce a treaty that the broader liitefllational COllllllllllity fillds ;rcceptablc. Admittedl\, IlOnc of thc T13T, have attailled lilliversal support. I<ach lacb the sllpport of at least olle Illajor powcr, illclndillg ;11 least one major delllocrac\,: Chilla ;llId Fr;mce declilled to sign the IYI 'BT, ;dtllOugll both have signed the CTBT; Illdia, Israel, <IlId Pakist;11l rejcct thc NP'l'; China, India, Illdonesia, Irall, and tire United States, among others, hale yet to rati!}' the CTBT SCHilt' of tlrc differences betweell IIl1clcar wcapons and SRM, howcvcr, give rea- 'Oil to hope th;lt nlltitilateraillegotiations about SRM may be 1II0re productive than negotiatiolls over Illlclear test ballS. The 'l'BTs were Ilegotiated in a COil text in which sOllle states already had developed, tested, ali(I deployed nuclear weapoIlS; no Olle liaS yet tested or deployed SIUd techllologies. 'I '1Ius, a treaty that prohibits the further developlllent of SRi\l tecllllologics wOlddllot institutionalize existillg inequalities ill the way tlrat the N PT did. Furtherlllore, lIuclear weapolls pose Cl gre~lter teehlIological challellgc than (SOIllC forms of) SRi\1. Thus, many states cOllld dcvelop SRM techllologies, \\'hereas fewer arc capable of prodllcillg lluclear weapons. If any state were to deplo\' such technologies, all states would face the consequcnce, of all altercd climate. This increases each state's illcentive to seek genuille illtclll;ltional eOllsellSUS relative to the llllclear IleapoIlS case, where each state had to worn lIlainly about Ilnfriendly states with high tecllllologieal capacity. These diffcrellcc, lila) facilitate agreemellts that enjoyClcell broader intcrnational support than IIIl' TBTs do. COllversely, the relative case of condllcting SIUvl experiments prOlidn Illall\ lllore opportunities for political manellvering. In principle, even small ,Liln Morrow, Kopp, and Oppenileilllel could tllreaten to conduct SRl'vl expcriments or withhold support frolll a treaty ill order to extract cOllcessions during the treaty llegotiatiolls. '10 the extent that larger states can link SRM to other issues on which they have leverage over smaller ,tates, however, such threats would not be particularly credible. Third, allY SRM Gel willnced the capacity to collect and analyze massive (jlIalltities of data. The episte1l1ic criteria of the Complex Standard requires that an SRM Gel illclude all international organization that can relay this data to interested parties in a comprehensible format. The IMS and IDC provide a usefullllodel for collecting and disseminating that data ill all epistemically virtuous way. The dual military-civilian use of the IMS also suggests that SRM monitoring could piggyback on existing facilities. One of the limitations of the analogy hctwem tlte 'I 'WI \ and SRM is particularly illstfllctive, too. Continued nuclear weapons tests provided 110 global benefit. 'I 'bus, tIle TBTs provide a net benefit to the global public, as required by the Complex Standard, although their benefit might not be as great as that of some alternative institution (e.g., a CTBT that is more likely to enter into force). SRM experiments might provide a global benefit, either by preparing the global public to deploy SRM effectively or by revealing that SRM is unwise. In the event that SIU.A experiments tmn out to be beneficial, an SRM eel modeled Oil the 'J'BTs would prove to be detrimeutal to the global public if it prohibited the necessary experiments. The eel would therefore fail to meet the COlIlplex Standard. One challenge of SRM. of course, is tltat if SRivl experiments do tum out to be necessary, we might not recognize that fact until it is too late. 'I 'h lIS , we may not know that the Gel has been detrimentaland to that extcnt illegitimate until after the fact. 4-1.2 Intefllational Atomic Dcvelopmellt Agency 13dore the Cold War set in, the United States envisioned a very different regime for managing uuclear weapons <lnclnuciear technology generally. In Jnne 1946, Bernard Baruch urged the UN to create a powerful intemational body the International Atomic Development Agency (IADA) that would effectively control all aspects of nuclear tcchnology.4Y This so-called Baruch Plan largely followed an carlier report by the U.S. State Department, which had become known as the Acheson-Lilienthal Report. Under the Baruch Plan, the lADA would exercise close control over all phases of nuclear activity. Through ongoing surveys, it would identify all global deposits of 4'1 BCfllard M. Baruch, Statement of the \ inited States Policy Oil Control of Atomic Energy as Presented by BCfllard 1\1 Barnell, Esq., to the linited Nations Atoillic Energy COlllmission (jllne 14, 1l)46), reprinted ill U.s. DEP'T OF STATE, PUB. 2160, THE UNITED S*lATES AND Tin: UNITED NATIONS, REP. SERIES NO.2, TilE liNITED STATES ATOMIC ENERGY PROPOSALS (1946), available at http://www.ato111icarchive. c0111/Does/\)c!errcnceiBamchPlan.shtmll hert'inafter Bamch Plan j. Political Legitil7l<lc\ III I)" /.\llIm (Ihout Experiments Ilrunillill al)(I thoriullJ, controllillg Illl' l'\iJalll()11 of those minerals in an UllSPCClI Il'd IIlUllller. It would "exercise COlllpicll' 1J1.111:lgl'lial control" over plants prodlllilig fissile materials, and it would ()\Vll alld l'lIlJ1rol the output of those plants,i' 'Ihc I;\DA would mailltain a monopoly 011 research into nuclear explosives, althollgh lire manllfacture of nuclear \veapo!lS would be prohibited, aile! it would beeollle tile world's leading authority 011 peaceful uses of nllclear energy, Through lieensillg and illspectioll arrallgemellts, it would control ~llly lise of llllclear technology, providing lIIaterials for slich activities "uncler lease or other arrangernellt."I' This combination of expertise, ownership, mallagement, and inspection would enable the IADA to lillderstand, recognize, and detect misuses of nuclear technology while promoting its peaccfuillse ill an equitable, secure fashionY Baruch illSisted Oll swift sanctions agaimt violator,. Baruch specifically insisted that such ~allctiollS be immlllle to veto by the permanent members of the UN Security CounciL;; By a bare majoritv vote in the Seclllity Council, the UN would have been able to sanctioll slates that the IADA ruled to be in violation of the interItationalnuclear reginle. In part because of Bamch'o insistence OIl veto-proof sanctions, his proposal ended ill a diplolll<ltie stalelllate. The Soviet linion rejected the IADA out of concern that the United States would retain its nuclear arsenal alld that the IADA would become :In instrument of li.S. polic\', In H)49 , the Sovict Union detonated its first ll11cblr weapon. The arIllS race had begun, and the prospect of centralized global governance of nuclear weapons faded. Given both its discretion ill the devcloplllent of nuclear fuel and certaill kinds of Iluelear research, as well as its power in sanctioning sovereign states, the IADA would have exercised considerable authority ill lllaking collective decisiollS about Iluelear techllology. Assuming that no state managed to evade the IADA long enough to develop Iluclear weapollS OIl its own, the IADA would have exercised a complete mOllop0ly over a world-changing technology. Thus, the IADA, as proposed by Baruch, comtitutes a conceivable model for an SRM govemancl' institution. It would have been an internatiollal organization for research into a sensitive, dangerous suite oftecllllologics, about which it would have made importallt decisions on behalf of the intemational COlllIllllllity includillg decioions about experimental uscs of thc technology. If it ltael the will to do so, sllch an organization would be better positioned than any viable alternative to ensure that researchers behave cthieally both with respect to till' political legitimacy of their Id. ,II H. i' Id. 'Ill). lei. al-l-1I. ld. al 5. Morrow, Kopp, and Oppenheimer decisions and with respect to satisfying other requirements of ethical conduct, such as those in our proposed ethical framework." The degree to which such a program would actually ensure ethical conductofSRM experiments, however, would depend heavily on the structure of its decision-making processes and 011 the degree to which its personnel meet the substantive conditions and exhibit the epistemic virtues required by the Complex Standard. One concern about such an organization is that the technocrats who run it may develop goals or preferences that diverge from the interests of the international community. Some staff members' enthusiasm for SRM might exceed that of the global public in dangerous ways. Some might be susceptible to pressure from particular states whose views differ from those of the international community, or might obscure infornlation to protect or further their own careers at the expense of public transparency and accountability. Any of these factors could cause the organization to violate the second or third criteria of the Complex Standard. Thus, placing so much responsibility for SRM research in the hands of unelected technocrats might lead to politically illegitimate institutions or decisions. The unhappy fate of the Baruch Plan, however, provides an instructive lesson for thinking about the conditions required for widespread international acceptance of an SRM GGI, as required by the Complex Standard. The Baruch Plan was infeasi" ble because it concentrated too much power in an international organization. Some states may have bristled at ceding such power to an international body. Others, such as the Soviet Union, may have feared that the IADA would have been too beholden to the United States. Assuming that contemporary states would likewise reject any GGI that is either too powerful or too likely to be dominated by one or more great powers, the international community would need to design an SRM governance institution carefully in order to give it an appropriate amount of power and international accountability. Otherwise, the SRM GGI would be unlikely to secure the multilateral consent required for legitimacy. Still, if the international community decides to delegate limited authority for SRM experiments to an INGO, the IADA offers one possible conception for doing so. +2 Institutions for Managing Global Commons A stable planetary climate represents a type of global commons a global public good that no single country is capable of controlling.55 SRM experiments involve a rapid, deliberate change in the climate a change that could have negative conse54 See Morrow et aI., supra note 3, at 3-Q. 55 Marvin S. Soros, Garret Hardin and Tragedies of Global Commons, in HANDBOOK OF GLOBAL ENVIRONMENTAL POLITICS 35,45 (Peter Dauvergne ed., 2.OCl6). Political Legitimacy /11 J)ccislO/lS ubout Experiments lluences for some persons and ecosyslclll.\. Thus, GGls designecl to manage global commons provide another type of lIlodei for all SRM GGL Like a stable climate, Antarctica is viewed by many as a global commons. The Antarctic Treaty System (ATS), established ill 1959 by the hvelve countries active in Antarctica during the International Geophysical Year, sought to ensure the peaceful use of this commons for scientific exploration.56 Today, the Treaty has forty-eight parties. Twenty-eight of these parties are active in Antarctica and therefore have decision-making authority as Consultative Members; the remaining twenty have observer status as Non-Consultative MembersY The original Antarctic Treaty focused primarily on freezing territorial claims and establishing a legal framework for exploration. Environmental issues entered the ATS through later protocols, the most comprehensive of which is the 1991 Protocol on Environmental Protection (the Madrid Protocol). The Madrid Protocol, which entered into force ill 1998, is perhaps most broadly known for establishing a fifty-year moratoriul1l on exploiting mineral resources in the Antarctic; more relevant to our analysis, it also established a set of principles regarding environmental protection, an intergovemmental body of scientific experts to offer advice on environmental issues, a procedure for environmental impact assessment of activities in Antarctica, and a consultative process regarding these activities. 1b Article 3 of the Protocol lays out a set of principles that gives primacy both to ethical concerns and scientific research. These principles require that activities in the Antarctic be planned and executed "so as to limit adverse impacts on the Antarctic."\9 The article also mandates monitoring of risky activities and requires that such activities be modified or stopped if monitoring reveals adverse impacts.60 In principle, this article requires states parties to give significant weigh t to environmental, ethical, and even aesthetic values in regulating governmental and nongovernmental activities ill the Antarctic. Among the ethical principles recognized are those akin to our Principles of Minimization and Respect. 61 Article 11 establishes the Committee for Environmental Protection (CEP). The CEP consists of representatives from each Party to the Protocol, along with their advisors. Parties to the ATS who are not Parties to the Protocol, as well as relevant NGOs invited by the CEP, may attend meetings as observers. The Protocol instructs the CEP to provide technical advice Oil the implementation of the Protocol, including \6 Antarctic Treaty, 1 Dec., 1959,402 UNTS 71. \7 Secretariat of the Antarctic Treaty System, "Parties" (2008), Ilttp://www.ats.aq/devAS/ats_partics.aspx. I' Madrid Protocol on Environmental Protection to the Antarctic Treaty, 4 Oct., 1991, 30 ILM I.f55 [hereinafter Madrid Protocol]. \'1 Id. at Art. 3, para. 2. (See the Appendix to this chapter for the complete text of Article 3.) 00 Id. at Art. 3, para. 2(d)-(e), 4(h). (n See Morrow et aI., supra note 3, at 3--6. I\/urrow, Kopp, and Oppenheimer advice on the effectiveness of parties' efforts to comply with the Protocol hl Becallse the CEP Illllst release reports on its sessions to states parties and to the public'!'l it eould alert interested states and members of civil society to activities that run contrary to the Protocol. Ultimately, however, the CEP's role is strictly advisory; it has no power to affect decisions directly. The states parties hold ultimate responsibility for assessing the environmental impact of their activities, although they must discuss their assessment of sOllie activities with the other Parties and the CEP. As laid out in Article 8 alld Annex I, the Protocol recognizes three tiers of activities in the Antarctic: those determined by national procedures to have "less than a rninor or transitory impact," those "likely to have no more than a minor or transitory impact," and those likely to have "more thall a minor or transitory impact."('4 Activities falling into the second category require an Initial Environmental Evaluation characterizing the activity, alternatives to the activity, and likely impacts 6 \ Activities falling into the third category require a Comprehensive Environmental Evaluation (CEE), which describes the state of the environment prior to the activity; the activity alld all relevant alternatives, including the alternative of not proceeding with the activity, alollg with the expected consequences of each altemative; the direct and indirect impacts of the proposed activity; the cllmulative impact ofthc proposed activity, givell existing and cllfrently planned activities; the methodology and data llsed to forecast consequences; the measures that could be taken to monitor thc effects of the activity and to minimize or mitigate them; a nontechnical SU1l1mary of the above information; and the contact information for the al1thor(~) of the CEE 6 (, The draft CEE must be circulated for review to the public, to the Antarctic Treaty parties, and to the CEP. In principle (although not always in practice), the activity cannot proceed until the draft CEE has been considered by the Antarctic Treaty Consultative Meeting on the advice of the Committee, and a final version of the CI<:E lI1l1st respond to the comments raised ill the review process. The draft and final eEl<: must be made publicly available 67 Ollce the activity begins, its impacts lllust be monitored. 6K Christopher Joyner highlights a 111lll1ber of potential weakllesses in the Madrid Protocol process.!>') The role of the Envirollmental Impact Assessmellt consultative r" Madrid Protocol. supra note 58, at Art. II. r" Id. at Art. 11, para. 5. "4 Td. at Art. H, para. I. "; Madrid Protocol, wpra nole 58, at Anllex I, Art. 2. ei, It!. at Annex t. Art. " para. (1)~(2). ,,Id. at ,\nnc}' I, Art. j, pam. (3H6). r" Id. at Art. 8. r" CHRISTOPHER C. JOYNER, COVERNINC TilE FROZEN COMMONS: TilE ANTARCTIC RE(;I~II, AND ENVIROÑfENTAL PROTECTION 165~7-l (lC)98). Political Legitimiley ill I )nlS/{Jl/s ahout Experiments process is fllndall1entally hortatory; alth()Ilgh individual govemIllents must respond to comments LInder the Protocol, the) rdaill the final decision on whether to proceed with a specific activity. In addition, the bOlllldaries between the different categories of activities are ill-defined, left to sOllie combination of party judgment and the evolution of precedellt. More broadly, the mechanism of enforcement of the Protocol in general is unclear: parties are to enforce it through laws and regulations, and shall exert "appropriate efforts, consistent with the Charter of the United Nations" to ensure that other parties do,7° whereas an Arbitral Tribunal or the International Court of Justice is empowered to settle disputes, but again these are largely hortatory procedures.'1 Despite these problems, the Madrid Protocol provides a GGI model that directly addresses clements of scientific research ethics and the Complex Standard. In particular, the consultative process for assessing proposed activities exemplifies the transparency and stakeholder engagement necessary for legitimacy. CEEs must contain nOli technical sUll1Illaries, making thcm more easily digestible by states and civil society. Draft and final CEEs, along with reports on Cb:P sessions, are distributed to states parties and the public)' This increases the transparency of the international governance of Antarctic activity, as requircd by the Complex Standard. The Madrid Protocol does not, however, provide an effective means for citizens of one state to hold allother state or its citizens accountable for behavior that violates the Protocol. The hortatory nature of the EIA process would be even more problematic in the case of SRM, where the incentive to ignore the exhortations of other states might be much greater than in the Antarctic case. If an SRM Gel had no more power than the CEP docs in Antarctica, then it could not deter even a modcrately motivated state from conductillg SRM experiments. Conversely, an SRM eGI that could, at its own discretion, prohibit certain experiments would be too powerful too much like Baruch's proposed IADA to be feasible, and a Gel that could prohibit experiments if and only if they violated constraints laid down in a trcaty would bc more like the CTBT than the CEP. Thus, replacing the hortatory Illodel of the Madrid Protocol with something stronger brings us back to the nuclear weapons testing models. Some elell1ents of the Madrid Protocol could bc readily adapted to the context of SRM research governance. Article 3 in particular would need just one major addition impact on hUlIlan populations and a suite of minor contextual adaptations to address the global climate commons instead of the Antarctic "frozen commons." The conditions and processes for conducting environmental impact assessmeIlts Cu Madrid Protocol, supra note 58, at Art. q, para. 1-2. " JOYNER, supra note 69, at 166. Madrid Protocol, supra note 58, at Anllex I, Art. , tLlllsiate febtively easily to the SRl\l c;lse a.\ well. By requirillg earlier IIl\'oh'ellJellt fmlll other states and all SRM counterpart of the CEP, along with ~cielltific peer revicw of SRM research proposals, all SRrvl eel might be able to exert llIore illl1tlellee on the shaping of proposals thall the CEP exerts 011 proposed activities in the Alitarctic. III ,111\ case, the Madrid Protocol provides a model for achieving the trallSpareJlc\ reqllired for legitimacy One challenging difference between the Antarctic cOlltext and the SIUvl context relates to the rallge of parties involved: the Antarctic 'I 'reaty ellgages in a consultative status with only the twenty-eight countries active in Antarctica, whereas a eel focused 011 SRM research would need to engage lIot just the COUll tries actively condllctillg research but the larger grollp of coulltries with populatiom potentially at II:-.k. SIUd experiments wOlild also be likely to affed variolls states inlllore direct and 111m" :-.ignificant ways than Antarctic activities would, making disputes over SRM IllOiC heated thall those over Antarctic activities. Broadcr and lIlore contentious dis- (,lIssioll:-. over SRM experiments may increase the time it takes to complete an EtA for allY proposed experiment, as compared to the time it takes to complete an EtA for proposed Alltarctic activities. The broader e()llStitllenc~ of all SRl'vl GCllllight also make it more difficliit to craft an institution that enjoy, sufficiently widespread acceptance to be legi tilildte. As the preceding di,cussion shows, incorporating elClllents of the Madrid Protocol into an SRIVI eCI could help improve the chances that the eCI would retain its legitimacy under tlte COlnplex Standard, especiall\, in terms of epistelllic virtues and the delivery of positive Ilet benefits to the global public. By providing a smailer but open fOflllt1 for illtcrtlational deliberation abollt the decisions of individual statcs, it could also improve the cel's ability to reach legitimate decisions about particular SRM experiments, withollt requiring unallillJ(H1S consent frolll the international conll1lllllity abollt that experiment. As ils processes arc hortatory rather than coercive, however, an SRM eel modeled 011 tlte Protocol would have little power to rein in states that decided to pursue SRM without intef1latiollal approval. 5. CONCLUSION The intefllational cOllllllllnity is startillg to consider SRM as a stopgap or emergency measure for coping with the possible inadeqllacy of medillll1-term lIIitigation efforts. As it wOllld bc foolish and unethical to deploy SRM without an adequate understanding of the technology, state or nOli-state actors lIIay decide to pursue SRM research potentially illcluding large-~cale experiments ill the IIcar future. Large-scale SRM experiments, such as those involving the illjection of enough reflective aerosols into the stratmpherc to produce detectable climatic changes at the regional or global scale, iJIVolve sigllificant ethical challenges. Olle importallt Political Legltirrwcy III DecislUlIS about EXIJerimell/s challellge is the need for politically Icgillillatc decisions about whether alld how to conduct sllch experiments; this requirelllent par;:dlels the requirement for infolillcd consent ill medical cxperiments. Given that all SRM experiment is a glob<ll ()[Ie. the decision to ulldertake it IIlllst be made by a politically legitinl<1te GGI. The Complex Stalldard for the political legitimacy of GGls involves three bro,ld reqllirements. First. the eGI I1lllst enjoy the consent of most (democratic) states. Second, the eel Illllst meet certaill substaIltive conditions, mch as the avoidance of seriolts injustices, the delivery of positive net benefits, and the maintenance of illStitutional illtegrity. Third, the Gel I1IUSt exhibit certaill epistemic virtues, such as transparellcy and accountability. Other GGls hold lessolls for the design of a legitimate SRM GCL Our analysis of the international nuclear testing regillle suggests that a legitimate SRM Gel might evolve through negotiations among a slllaller, more manageable group of powers, as long as the Gel itself receives the approval of the UN. It also suggests that, in the absence of a GGI empowered to authorize particular experiments, an institution with the legitimate authority to prohibit certain classes of experiments collid protect the world agaillSt the most ethically problematic ones. As our analysis of the Madrid Protocol to the Antarctic Treaty suggests, an imtitution requiring and facilitating illternational discllssion of allY proposed SRM experiment would fare well on the third, epistcmic criterion of the Complex Stalldard. Spelling out a set of principles that SRM experiments lllust follow, as the Madrid Protocol does for AIlLuctic activities, might iIlcrease the likelihood that sllch an institlltion could deliver positive net benefits, as required by the second substantive criterioll of the Complex Standard. Our analysis of the proposed IADA suggests that a llIore powerful GCI. which might have the power to authorize specific experiments, lIlay find it more difficllit to meet the Complex Standard; such a powerful Gel may never enjoy the widespread support required for legitimacy, it is more likely to depart from the wishes of its creators, and it may do so in ways that violate the substantive and epistemic criteria of the COlll plex Standard. The lessoIls from these case studies are complementary. A single institution could prohibit certain classes of experiments, such as the TBTs, while facilitating intemational dialogue about the experiments proposed by states or non-state actors, like the Madrid Protocol. Such an institution would leave room for states to create a llluitilateral organization that combined research efforts without exercising the far-reaching powers and technological mOllopolies of the IADA. This is only a preliminary vision, of COllfse, of an approach to managing SRM research, leaving llIany institutional issues open for further exploratioll. The international comJllunity has Ilever confronted a decision quite like that of conducting SRM experiments much less to deploy SRM. That is why none of the institutions we consider provide perfect analogues for an SRM GGI. This is 166 Morrow, Kopp, and Oppenhellllef not til<: tlrst time, however, that humanity has faced novel problems demandiIlg unprecedented institutions. We believe that by leaming from the Sllccesses and failmes of the past, the international community can design an illStitution to manage decisions about SRM and SRM research in an ethically responsible way. APPENDIX: ARTICLE 3 OF THE MADRID PROTOCOL The complete text of Article 3 of the Madrid Protocol reads: The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic valuc of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities ill thc Antarctic Treaty area. 2 To this end: (a) activities in the Antarctic Treaty area shall bc planncd and conducted so as to limit adverse impacts Oil the Antarctic environment and dependent and associated ecosystems; (b) activities in thc Antarctic Treaty area shall be planned and conducted so as to avoid: (i) adverse effects on climate or weather pattcrns; (ii) signitlcant adverse effects on air or water quality; (iii) signitlcant changes in the atmospheric, terrestrial (including aquatic), glacial or marine environments; (iv) detrimental changes ill the distribution, abundance or productivity of species of populations of species of fauna and flora; (v) further jeopardy to endangered or threatened species or populations of such species; or (vi) degradation of, or substantial risk to, areas of biological, scientitlc, historic, aesthetic or wilderness signitlcancc; (c) activities in the Antarctic Treaty area shall be planned and conducted on the basis of information sufficient to allow prior assessments of, and informed judgements about, their possible impacts on the Antarctic environment alld dependent and associated ecosystems and on the value of Antarctica for the conduct of scientific research; such judgments shall take account of: (i) the scope of the activity, including its area, duration and intensity; (ii) the cumulative impacts of the activity, both by itself and in combination with other activities in the Antarctic Treaty area; Political Legit/III,,,' II/ I)" 1\/,,1/'. '';''1111 i';Aperil1lel1ts (iii) whether the actilill II '" .1<111111('111;"11 affect allY other activity in the Antarctic Treaty ;1\(';1: (iv) whether technology ;lIld p")(cdllrCS :lrc available to provide for cnvironmentally safe operal i( 1I1~< (v) whether there exists the ca pacill' to Illonitor key environmental para11leters and ecosystem COIIII)(IIlCllis so as to identif)' and provide early warning of any adverse effects of the activity and to provide for such modification of operating proccdmes as may be necessary in the light of the resul ts of monitoring or increased knowledge of the Antarctic ellvironment and dependent and associated ecosystems; and (vi) whether there exists the capacity to respond promptly and effectively to accidcnts, particularly those with potential cnvironmelltal effects; (d) regular anc! effective monitoring shall take place to all assessment of the impacts of ongoing activities, including the verification of predicted iIllpacts; (c) regular and effective monitoring shall take place to facilitate early detection of thc possible unforeseen effects of activities carried on both within and outside the Antarctic Treaty area 011 the Antarctic environment and dependent and associated ecosystems, 3 Activities shall be planned and conducted in the Antarctic Treaty arca so as to accord priority to sciClltific research and to preserve the vallie of Antarctica as an area for the conduct of Stich research, including research essential to understanding the global ellvironmcnt. 4 Activities undertaken in the Antarctic Treaty area pursuant to scientific research program~, tourism and all other govefllll1ental and nongovernmental activities in the Antarctic Treaty area for which advance llotice is required in accordance with Article VII (5) of the Antarctic Treaty, including associated logistic activities, shall: (a) take place in a mallller consistellt with the principles in this Article; and (b) be lI1odified, suspended or cancelled if they result in or threaten to result in impacts upon the Antarctic environillent or dependent or associated ecosystems inconsistent with those principles,~l ACKNOWLEDGMENTS The authors wish to thank Ian D. Lloyd and Robert Keohane for helpful comlllents on drafts of this chapter. " ld, at Art. 'S,