Biodiversity in international environmental law through the UN Sustainable Development Goals

Authored by: Nicholas A. Robinson

Routledge Handbook of Biodiversity and the Law

Print publication date:  December  2017
Online publication date:  November  2017

Print ISBN: 9781138693302
eBook ISBN: 9781315530857
Adobe ISBN:

10.4324/9781315530857-3

 

Abstract

Biological diversity is an evolving focus of international environmental law. It encompasses three stages of legal development. The first was the diverse nature of conservation laws promulgated since the late 19th century governing fish and game or forestry. Second were the laws which began in the early and mid-20th century that address soil conservation, agricultural activity and fisheries management, and water and drought management. Third came the pollution and environmental quality laws enacted in the mid- and late 20th century, which affect the ways natural systems are impacted by pollution and waste. All have been subsumed within international environmental law, which since 1972 began to elaborate the links between these subjects’ association with common threats to biological diversity. As Earth’s current “sixth great extinction” has deepened (Kolbert, 2014), the insufficiency of each nation incrementally enacting new statutes or agreeing on new treaties to conserve biodiversity has become evident.

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Biodiversity in international environmental law through the UN Sustainable Development Goals

Biological diversity is an evolving focus of international environmental law. It encompasses three stages of legal development. The first was the diverse nature of conservation laws promulgated since the late 19th century governing fish and game or forestry. Second were the laws which began in the early and mid-20th century that address soil conservation, agricultural activity and fisheries management, and water and drought management. Third came the pollution and environmental quality laws enacted in the mid- and late 20th century, which affect the ways natural systems are impacted by pollution and waste. All have been subsumed within international environmental law, which since 1972 began to elaborate the links between these subjects’ association with common threats to biological diversity. As Earth’s current “sixth great extinction” has deepened (Kolbert, 2014), the insufficiency of each nation incrementally enacting new statutes or agreeing on new treaties to conserve biodiversity has become evident.

As progenitor of the concept and content of an intergovernmental agreement on biodiversity (Burhenne-Guilmin and Casey-Lefkowitz, 1993), 1 the Environmental Law Programme of the International Union for the Conservation of Nature and Natural Resources (IUCN) had expectations that the United Nations Convention on Biological Diversity (CBD) would provide a unifying framework in which to integrate the various laws on nature (Burhenne-Guilmin and Casey-Lefkowitz 1993). This objective for a strategic plan on global biodiversity was in part attained in a decision of the CBD’s 10th Conference of the Parties taken in Japan in 2010, 2 but while these “Aichi Targets” provide invaluable guidance, their goals are far from being embraced by either States or treaty organizations. Especially in their domestic laws, nations have not yet elected to mold the CBD to serve such a function. In 2015, the United Nations General Assembly acknowledged the urgency of Earth’s biodiversity crisis in adopting the Sustainable Development Goals, in particular Goals for the terrestrial environment (SDG 15), for the marine environment (SDG 14) and for the Earth’s climate (SDG 13).

This chapter provides an overview of the principal substantive and procedural laws by which States seek to conserve and sustain biological diversity. “Biodiversity” generally has come to mean the many different populations and species of organisms, or popularly understood as flora and fauna, together with their evolved reservoirs of generic material, and the ecosystems which sustain these species, popularly seen as landscapes (McNeely 1990; Wilson 1998). 3 Various laws at local, national, regional, or international level focus on different aspects of biodiversity. Just as scientists apply their analysis contextually to the biodiversity within of a rain forest, or on tundra, or within a coral reef or on an alpine glacier, so the drafts of legal texts vary the use of legal terms. The varied legal terminologies used for different biomes or species lead to inconsistencies and sometimes conflicts among laws. Older laws tend to reflect the scientific understanding of their time, and rarely are amended or revised to reflect advances in evolutionary biology or other environmental sciences. Laws for a pragmatic management of natural resources, such as those advanced by the UN Food and Agricultural Organization, will stress goals of reasonable or “wise use,” or management for “sustained yield,” without providing the procedures by which empirical scientific inquiry is to be applied. Procedures such as “environmental impact assessment,” which are required in all national decision-making under Principle 17 of the 1992 UN Declaration on Environment and Development, 4 are frequently perverted into result-oriented studies that do little to assess biological diversity, much less protect it from adverse impacts of a proposed project. In short, there is no single legal standard of performance by which to determine what is the environmental rule of law by which humans govern their relationship with Earth’s biodiversity.

As the UN Commission on Environment and Development explained in Our Common Future (1987), “The Earth is one, but the world is not.” Given this incongruity between the laws of men and the law of nature, this survey of biodiversity in international environmental law examines the following: (a) the general principles of law applicable to biodiversity; (b) the framework agreements to which most nations have adhered; (c) the sector treaties and generic types of statutes for different aspects of biodiversity; (d) the typical legal stewardship systems of regulatory tools deployed to govern human behavior with respect to biodiversity, including “rational uses of natural resources,” and (e) the legal lacunae, where failure to agree on law harms biodiversity and leaves it at risk.

As homo sapiens procreates, “people” are currently adding two billion more persons to populate the planet. Few places have established sustainable human settlements such as found in Singapore or Costa Rica. At the 1992 Rio Earth Summit, States understood then that “consumption and production” patterns were unsustainable. 5 Trends critically assessed then have spiralled into ever more pronounced patterns of degradation. The Rio Earth Summit produced Agenda 21, which set many nations on the path to designing and implementing reforms to achieve sustainable and resilient socio-economic development (Robinson, 1993). 6 But the slow pace of these reforms prompted nations at the Johannesburg UN World Summit on Sustainable Development (2002) to draft the “Johannesburg Plan of Implementation” for Agenda 21. When this Plan was seen to falter, in 2012 at the “Rio+20” Summit meeting, States reiterated past goals, rather than seeing new paths forward. They adopted “The Future We Want,” but soberly also set out to negotiate consensus on new pathways forward. Over three years, they agreed upon the sustainable development goals (SDGs). The pervasiveness of environmental degradation, and its consequent heightened risk of natural disasters, was acknowledged in the summer of 2015 by the Open Working Group of the United Nations General Assembly, which negotiated the text of the UN Sustainable Development Goals. 7 As the Goals were transmitted to the General Assembly for adoption, the Open Working Group provided the following rationale in support of their rapid adoption and implementation:

Global health threats, more frequent and intense natural disasters … and related humanitarian crises and forced displacement of people threaten to reverse much of the development process made in recent decades. Natural resource depletion and adverse impacts of environmental degradation, including desertification, drought, land degradation, freshwater scarcity and loss of biodiversity, add to and exacerbate the list of challenges which humanity faces. Climate change is one of the greatest challenges of our time and its adverse impacts undermine the ability of all counties to achieve sustainable development. Increases in sea level rise, ocean acidification, and other climate change impacts are serious affecting coastal areas and low-lying coastal countries, including many least developed counties and small island developing States. The survival of many societies, and of the biological support systems of the planet, is at risk. 8

The law of biodiversity ultimately matters because the Earth’s natural systems support all human society. Unless human laws safeguard nature, humanity itself reaches the extinction threshold found in other species. Instrumental uses of nature, through ownership of intellectual property in genetic engineering at one end, or of a tract of Amazonian savanna or forest being plowed up for the production of soybeans, tend to ignore the aggregate loss of biodiversity. Similarly, policy debates about the fairness of access to and benefit-sharing of biodiversity will be of little consequence when the species are extinct. This chapter summarizes how laws seek to sustain biological support systems of the planet. The SDGs project that States can bring degradation trends under control by 2030. If these goals are to be realized, all States will need to do much more to strengthen the environmental rule of law, both within their own national legal systems and internationally.

The principles of law for biodiversity

Biological diversity is defined in Article 2 of the CBD as “the variability among living organisms from all sources, including, inter alia, terrestrial, marine and other aquatic ecosystems, and the ecological complexes of which they are part; this includes diversity within species, between species, and of ecosystems.” 9 Specialists in the IUCN Environmental Law Programme, including Cyrille de Klemm and Françoise Burhenne-Guilmin, among others, prepared a synthesis of many scientific and legal concepts to frame this definition, which the UN’s International Negotiating Committee accepted for the CBD (de Klemm and Shine, 1993). When one considers the general principles of law applicable to biodiversity, the principles should be applied with reference to this definition, a holistic concept of life.

Among today’s international law system of sovereign states, it is Principle 21 of the UN Stockholm Declaration on the Human Environment that is the foundation for an examination of principles. 10 This Principle was restated in Article 3 of the CBD itself. States shall “ensure that the activities within their jurisdiction and control do not cause damage to the environment of other States, or areas beyond national jurisdiction.” Thus, while States have sovereign control over their natural resources, they cannot allow development or alternation of those resources to harm the environmental conditions in other states. Since living resources are globally inter-connected, no State can harm the biodiversity of the planet through the extinction of a species or activity risking extinction, or through diminishing populations of species in their habitats or range of migration, or in their relationships within ecosystems.

How can a State know if it is observing Principle 21 (Article 3 of CBD)? A State is in compliance with Principle 21 when it conscientiously seeks to observer the environmental rule of law. Responding to this basic question requires a State to observe a set of well-defined principles guiding all state conduct. These have been restated many times (Kurukulasuriya and Robinson, 2006), 11 most recently by the IUCN World Congress on Environmental law in Rio de Janeiro in 2016. 12

Duty to cooperate – Under International law, and the UN Charter, all States shall cooperate. This is true for neighboring states, as seen in droit de voisinage, or law of good neighborly relations. It is also true for acts affecting the high seas or atmosphere or the natural systems working across the planet (Sucharitkul, 1996).

Duty for sustainable development – States have a duty to observe the norms of sustainable development, and constrain their use of resources by respecting the expected need of future generations. In short, States have a fiduciary obligation as trustees today for the needs of tomorrow. 13 They shall place limits on the use and exploitation of nature sufficient to sustain biodiversity.

Duty to protect nature – States have a duty to prevent harm to, and to care for and sustain, biodiversity, regardless of its worth to humans, 14 as a common concern of humankind.

Right to the environment – States have an obligation to respect and advance the right of humans to a safe, clean, healthy, and sustainable environment. 15 This right necessarily entails the ecological function of property, by which those who control biodiversity or land, water and other natural systems, have the duty to refrain from actions that harm basic ecological functions. 16

Duty of precaution – Where there are threats of serious or irreversible damage to biodiversity or the environment, States shall apply a precautionary approach, whereby lack of full scientific certainty shall not be used as a reason for postponing effective measures to prevent degradation. 17

Duty of environmental impact assessment – States shall exercise precaution and prevent harm to biodiversity by undertaking a prior assessment of potentially harmful impacts, and enable public participation and access to environmental information, and access to justice. 18

Duty to indigenous people – States shall recognize, respect, preserve, and maintain the knowledge, innovations, and practices of indigenous and local communities embodying knowledge of biodiversity, and encourage equitable sharing of the benefits of biological diversity. 19

Polluter pays principle – States shall endeavor to internalize the environmental costs of sustaining biodiversity, taking into account that the party harming biodiversity should bear the cost of the harm. 20

Common but differentiated responsibilities principle – States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of biodiversity. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. 21

These general principles of international law are to be applied whenever State conduct affects biodiversity. From a scientific perspective, in the case of biodiversity duties, all actions taken by states affecting biodiversity within their territory impact, at the same time, the Earth’s universal biological diversity. There are no purely domestic actions when it comes to biodiversity.

Application of these principles is evident in the many treaties that govern aspects of biodiversity. National legislation also illustrates adherence to these principles, as for example in statutes for establishing protected areas, protecting species in danger of extinction, regulating fish and game, managing silvaculture and timber forestry, or the mitigation of greenhouse gas emissions. When specific legal issues are addressed, the over-arching duties to ensure sustainability should be applied. This is well illustrated by a court decision interpreting the scientific whaling rules of the International Whaling Commission (IWC). 22 The 2014 International Court of Justice judgment on Whaling in the Antarctic interpreted the IWC’s decisions regarding Japanese whaling. The Court addressed biodiversity principles as follows: 23

Taking into account the Preamble and other relevant provisions of the Convention … the Court notes that programmes for purposes of scientific research should foster scientific knowledge; they may pursue an aim other than either conservation or sustainable exploitation of whale stocks. This is also reflected in the Guidelines issued by the IWC for the review of scientific permit proposals by the Scientific Committee. In particular, the Guidelines … referred not only to programmes that “contribute information essential for rational management of the stock” or those that are relevant for “conduct[ing] the comprehensive assessment” of the moratorium on commercial whaling, but also those responding to “other critically important research needs”. The current Guidelines, Annex P, list three broad categories of objectives. Besides programmes aimed at “improv[ing] the conservation and management of whale stocks”, they envisage programmes which have as an objective to “improve the conservation and management of other living marine resources or the ecosystem of which the whale stocks are an integral part” and those directed at “test[ing] hypotheses not directly related to the management of living marine resources”.

The general principles of law mandate decision-makers to examine how biodiversity may be affected, and apply applicable laws to sustain biodiversity.

UN agencies and multilateral environmental agreements on biodiversity

Several framework agreements function globally and can be deployed to sustain biodiversity. Virtually all nations have adhered to these multilateral environmental agreements (MEAs). The Conferences of the Parties (COP) to each agreement meet in both plenary gatherings, and through working groups or subsidiary bodies, which each COP establishes. For example, most MEAs have scientific advisory subsidiary bodies, with States nominating biodiversity experts to serve on these bodies. Each MEA and its COP have their own distinct and independent rules of procedure and work plans. The older agreements follow the practice of the United Nations General Assembly’s Rules of Procedure, and provide for decisions by majority vote. The more recently established COPs generally prefer rules of procedure that require a consensus of all (or virtually all) parties to make a decision. When the State Parties to an MEA also agree to a Protocol, or an agreement related to the obligations under the MEA, the States that adhere to the Protocol deliberate through a Meeting of the Parties (MOP). These MOPs often are scheduled to take place in the same timeframe as the COP. 24

It is beyond the scope of this chapter to examine each of the MEAs. Typically, the secretariat for each MEA will maintain a web page which includes the treaty or other international agreements establishing the MEA, a record of each COP meeting and its decisions, and the ongoing work plans for the MEA, and documentation about the issues addressed by the MEA, much of this submitted by the State Members of the MEA, or produced at their request by the Secretariat. These websites are invaluable references for assessing the work of each MEA. Each State Member designates a national agency or office to be the official link to the MEA or UN body. These national focal points are often not connected to the foreign ministries, and often are poorly funded and staffed, and unable to coordinate with other national offices of MEAs. These inevitably lead to a fragmentation in both national and international decision-making about biodiversity, and all other common environmental concerns.

Since each MEA is autonomous in its decision-making, it is important for States to adhere to the general principles of law governing biodiversity as they deliberate in any COP. Likewise, the Secretariats are bound by the same general principles.

  • United Nations – General Assembly and Economic and Social Council – based in New York (USA), with offices in Geneva (Switzerland), the Second Committee of the UN General Assembly, for each annual UN Session, has an agenda of usually some 20 to 40 resolutions that touch on biodiversity. The UN Economic and Social Council (ECOSOC) oversees the work of the UN Environmental Programme (UNEP, as of 2017 branded “UN Environment”) and the UN Development Programme (UNDP), with its extensive work on the Sustainable Development Goals. In Nairobi, the UN Environment Assembly, composed of all UN Member States, meets to advance an agenda of environmental protection activities. UN Environment published periodic reports on the state of the Earth’s environment, which includes an assessment of deteriorating biodiversity trends. 25 The UN General Assembly (UNGA), with a Secretariat Office, is responsible for the UN Convention on the Law of the Sea, including its protection of marine biodiversity. In 2016–18, the UN General Assembly is conducting a negotiation to prepare a new international agreement on biodiversity in areas beyond national jurisdiction (BBNJ); this proposed new treaty will address biodiversity in the high seas, areas beyond 200 miles from each coast. The UN Human Rights Committee, based in Geneva, also has programs on the human right to the environment. The UN Permanent Forum in Indigenous Issues meets in the UNGA every spring. The UN General Assembly conducts an annual examination in the spring, by Ministers of the Members States, about how the SDGs are being implemented, and every fifth year it schedules a summit meeting of Heads of Member States to assess the state of implementation of the 17 SDGs, overall and especially in the prior four-year period.
  • UN Educational, Scientific and Cultural Organization (UNESCO) – based in Paris (France), UNESCO’s “Man and the Biosphere” program and its duties under the World Heritage Convention for conserving cultural and natural monuments are important for building knowledge about and action to conserve biodiversity. UNESCO is established under an international agreement separate from that of the UN Charter. 26
  • UN Food and Agricultural Organization (FAO) – based in Rome (Italy), FAO has extensive programs on conservation of fisheries, forests, soils, wetlands, and the biodiversity related to these topics. For example, the FAO has a non-binding Soils Charter, a Code of Conduct for Responsible Fisheries, and a global systems for conservation and sustainable use of plant genetic resources. FAO is established under an agreement separate from the UN Charter. 27
  • World Health Organization – the WHO secretariat is based in Geneva (Switzerland). Many WHO activities on public health come into contact with biodiversity issues, such as zoonotic diseases. 28
  • “World Bank” and regional development banks – the Asian Development Bank (ADB) and the European bank for Reconstruction and Development (EBRD), and other regional banks, plus the complex of institutions constituting the World Bank, have a wide range of environmental protection programs, which can and do include conservation of biological diversity. All have provisions that require environmental impact assessments.
  • 1948 Statutes of the International Union for the Conservation of Nature and Natural Resources – IUCN is a hybrid intergovernmental organization established by Statutes adopted at a diplomatic conference in Fontainebleau, convened by France, in 1948. Its headquarters are in Gland (Switzerland) and the UN General Assembly has invited IUCN to maintain a Permanent Observer Mission at the UN. IUCN is governed by a bicameral World Conservation Congress, in which its State Members vote in one chamber and its non-governmental members vote in a second chamber. It has five commissions, and the World Commission on Protected Areas is an international forum for all national park agencies. IUCN has a Species Survival Commission and an Ecosystem Management Commission. The IUCN World Commission on Environmental Law developed the agreements for CITES and the CBD, among others. IUCN is focused primarily on biodiversity issues. 29
  • 1971 Ramsar Convention on Wetlands of International Importance, especially as Waterfowl Habitat – the Ramsar Convention has its Secretariat in Gland (Switzerland), together with the IUCN. IUCN had facilitated the establishment of the Ramsar Convention. States nominate large wetlands areas, situated in their nation, to be listed as Ramsar sites. It has vastly expanded the scope of wetlands protection beyond the original focus on water birds, to encompass hydrology and biodiversity broadly. 30
  • 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage – the “UNESCO World Heritage Convention” is headquartered with UNESCO in Paris (France). States nominate sites of cultural or natural importance to be listed as world heritage sites. IUCN provides scientific and technical advice to the Convention in relation to nominated sites of natural importance.
  • Convention on the International Trade in Endangered Species – CITES was established by a diplomatic conference held in Washington DC (USA) in 1973, and its Secretariat is based in Geneva (Switzerland). It maintains the rosters of species that are threatened with extinction, and oversees an international ban on trade in any of the listed species or their parts. CITES collaborates with Interpol and TRAFFIC and other governmental and non-governmental bodies to combat illegal trade in endangered species. 31
  • 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals – the Bonn CMS Convention Secretariat is located in Bonn (Germany). It is a framework agreement to facilitate the negotiation and adoption of agreements among the states within the range of migration of any species. It has concluded a number of species-specific agreements. No State in the Western Hemisphere has, as yet, adhered to this Convention.
  • Vienna Convention on the Protection of the Stratospheric Ozone Layer, and the Montreal Protocol – with Secretariat units in New York and Nairobi, this MEA is the most successful in terms of establishing a global network of national and international specialists that reclaim chlofluorocarbons and phase out their use, in order to protect and restore the Earth’s stratospheric ozone layer. All life on Earth is affected by solar ultraviolet rays that reach the surface of the planet because of the loss of the ozone layer. The COP for the Vienna Convention and MOP for the Montreal Protocol, and other sister protocols, are independent of the other UN MEAs. 32
  • UN Convention on Biodiversity – signed at the 1992 UN Rio Earth Summit, the CBD took several years to become operational. The CBD Secretariat is based in Montreal (Canada), and holds its COPs in different cities around the world each year. Under the CBD, the States Parties have agreed to the 2000 Cartagena Protocol on Biosafety, which addresses genetically modified organisms, or “Living Modified Organisms” (LMOs) under the Protocol; advanced Informed Agreement procedures exist for introducing LMOs into use. The CBD’s Strategic Plan for biodiversity provides for national biodiversity plans, which include development of national legislation to implement the CBD (Belbase, 1999).
  • UN Framework Convention on Climate Change – signed at the 1992 Rio Earth Summit, the UNFCCC Secretariat is based in Bonn (Germany) and its COP meets annually, now also with the MOPs for the 2015 Paris Agreement and the Kyoto Protocol. The UNFCCC deliberations touch upon biodiversity in several aspects, for instance: ways in which the marine environment absorbs carbon dioxide from the atmosphere; the value of wetlands in continuing to sequester the carbon dioxide in wet peat deposits; or the role of “Reducing Emissions from Deforestation and Degradation, with conservation” (REDD+) and promoting photosynthesis.
  • UN Convention to Combat Desertification in Countries experiencing Serious Drought and/or Desertification – the CCDD aims to advance international cooperation to assist countries to restore degraded lands. National Action Programs (NAPs) are the means by which States implement the CCDD. 33
  • UN Stockholm Convention on Persistent Organic Pollutants – the POPs Convention seeks to prevent the use or release of toxic chemicals that bioaccumulate in species, including in humans. It bans the use of twelve chemicals and provides for its Member States adding other dangerous substances also. Although this agreement is critical for the integrity of biodiversity, States have not as yet expanded its list of controlled substances. 34

There are many other international organizations whose activities affect biodiversity. The international environmental agreements and organizations outlined above contain the broad legal pathways through which States and intergovernmental organizations cooperate, or fail to cooperate, to govern human impacts on biodiversity. These activities constitute a global matrix, with large gaps or sectors that do not relate well to one another. 35 At regional or national levels, some of these gaps are filled, however, since biodiversity is a universal concern, global stewardship cannot be effective until a comprehensive system is established.

Regional and sectorial treaties

In each region, governments have established ways to coordinate and cooperate to sustain shared natural resources and biodiversity assets. In many cases, the agreements are defined in terms of geography, such as the many “regional seas” agreements encouraged by UNEP, which aim to monitor and sustain selected biological assets. Others are specific to conserving an animal or plant found locally. There are between 3,000 and 10,000 such agreements. Many have been compiled in a database created by the IUCN, FAO, and UNEP, known as “Ecolex.” 36 The CBD has encouraged use of ECOLEX for accessing biodiversity law.

Not all regions have the same types of intergovernmental cooperation systems for biodiversity, and most are very different in their effectiveness. Nonetheless, when working to assess biodiversity law in any region, it is necessary to identify the salient treaties and agencies which are part of this dimension of international environmental law. Here follows a representative set of such laws and agencies:

  • African Union – since 2002 the AU, 37 which was built on the foundation of the 1963 Organization of African Unity, has been the regional economic and political integration organization, with a secretariat in Addis Ababa (Ethiopia). Within the African Union, there are regional courts and other inter-governmental organizations. There are many regional wildlife treaties in Africa, including the pan-African and IUCN-facilitated Convention on the Conservation of Nature and Natural Resources.
  • Alpine Convention – the European Alps are governed by an international agreement on protection of the Alps. It has many components and is well elaborated. A similar agreement is in place for the Carpathian mountains in Central Europe.
  • Arab League – founded in 1945, the Arab League includes 22 States across North African and West Asia. It has a Council of Environment Ministers, but pan-Arab programs on biodiversity have yet to be developed. Arab States participate in the Barcelona Convention, and other sub-regional programs such as the Red Sea or Kuwait Regional Seas agreements.
  • Arctic Council – the Arctic States and Permanent Representatives of the Inuit and other indigenous peoples of the Arctic region, in 1996 formed an Arctic Council, with a Secretariat in Tromsø (Norway). There are also Polar Bear treaties, dating from 1973 but updated more recently, among Arctic States.
  • Antarctica and Antarctic Ocean – the 1959 Antarctic Treaty reserves the Antarctic for scientific study as “the common heritage of mankind.” States’ duties are further set out in the 1991 Madrid Protocol on Environmental Protection in the Antarctic Treaty, which incorporates the Precautionary Principle. The 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) governs the biodiversity of the marine areas adjacent to the continent.
  • Association of South East Asian Nations – ASEAN is a regional economic and political integration organization for 10 states, established in 1967, with a secretariat in Jakarta (Indonesia). It has an extensive system of ASEAN Heritage Parks and a regional biodiversity institute in LOS BAÑOS, Philippines. ASEAN has a rolling five-year plan to enhance biodiversity, but does not yet have a regional seas program or marine protected areas (Koh, Robinson and Lye, 2016). 38
  • Barcelona Convention for the Protection of the Marine Environment and for Coastal Region of the Mediterranean – in 1976, all States around the Mediterranean Sea, agreed to cooperate to abate pollution and protect the environment through the Barcelona Convention. In 1982 a Protocol concerning Mediterranean Specially Protected Areas was adopted, and in 1999 renamed to include Biodiversity.
  • The Caribbean Community Market – CARICOM is composed of 15 Caribbean nations, with a secretariat in Guyana. Established in 1973, CARICOM’s objectives are to promote economic integration and cooperation among its members and share the benefits of integration equitably. 39 CARICOM has launched environmental cooperation activities, including cooperation among terrestrial and marine protected areas, which conserve biodiversity. In addition, with UNEP, the Caribbean States with Meso America have a Convention on the Protection and Development of the Marine Environment in the Wider Caribbean Region.
  • European Union – the EU is a regional economic cooperation and integration organization of States in Europe. 40 It has a secretariat in Brussels, with agencies in different EU member States (the Environment Agency is in Demark), and a well-elaborated set of EU-wide regulations and directives that harmonize the environmental protection across all the Member States. The Wild Bird and Habitat Directives, for example, have been extremely important in protecting biodiversity (Jans and Vedder 2012). The EU is a member of many of the multilateral environmental agreements described above, which also harmonizes biodiversity law across the Member States.
  • South Asian Cooperative Environmental Programme – SACEP was established to encourage environmental cooperation across the Indian subcontinent. It has a secretariat in Colombo (Sri Lanka). Because there are profoundly different political perspectives among the South Asian States, they do not find consensus on many issues and SACEP has been constrained in facilitating even basic aspects of environmental cooperation.
  • South Pacific Regional Environmental Programme – SPREP was established to promote environmental cooperation across the States of the Pacific Ocean, including biodiversity. It has a secretariat in Vanuatu.

There are many other regional or bilateral agreements, such as the Great Lakes Compact between the Provinces of Canada and the States of the United States for the protection of the watersheds and ecology of the Great Lakes in North America, or agreements in international rivers basins such as the Zambezi River in Southern Africa, or the Amazon Basin agreement among all States of the Amazon in South America. These legal agreements have great potential for biodiversity stewardship, but much will need to be done to align them behind that objective. They are mostly all at early stages of being elaborated, funded, and implemented.

Characteristic national biodiversity laws

Even when a State has enacted a new law to implement the Convention on Biological Diversity, virtually all nations have kept in place their 19th century customs and laws on wildlife (hunting, fishing) and water allocation practices, and for agriculture and silvaculture. Few national environmental laws have been restated or codified, as has the New Zealand Natural Resources Management Act (1991). Thus, virtually all national laws governing biodiversity laws are parts of an amalgam of older statutes, which by default must be construed and applied together regardless of inconsistencies. Even the holistic application of environmental impact assessment laws has more often than not left biodiversity assessment out of decisions on the scoping of environmental studies. Biodiversity takes time to study and protect, and economic development schedules seek rapid and often expedient decision-making. Economic growth in most regions still favors exploitation of nature without regard to biodiversity conservation. Since many vested interests rely on resource exploitation rights, they tend to oppose law reform.

Earth’s environment is pervasive, and almost all legal settings affect environmental interests. Biodiversity is universal. States have not had, or made, 41 the time to establish consistent approaches to biodiversity. In 1982, the UN General Assembly adopted the World Charter For Nature, which proclaimed fundamental principles and recommended that States take specific actions to safeguard nature. 42 For example, paragraph 19 of the World Charter for Nature states: “The status of natural processes, ecosystems and species shall be closely monitored to enable early detection of degradation or threat, ensure timely intervention and facilitate the evaluation of conservation policies and methods.” 43 During the decades since adopting this Charter, few states have succeeded in establishing monitoring systems needed to track degradation of biodiversity.

The CBD provides guidelines for the design of national biodiversity laws, but each nation is unique in how its legal systems already governs ecological and other natural systems. In the World Charter For Nature, the UN General Assembly recommend specific implementation measures for national laws. Since then, UNEP’s “Montevideo Programme” also has made recommendations about appropriate environmental laws for all nations. UNEP and the World Commission on Environmental Law have advanced norms for the “environmental rule of law,” to further compliance and enforcement. In 2016, the First World Congress on Environmental Law took into account the 2015 UN Sustainable Development Goals, and sought to further SDG 16 44 when it adopted recommendations for national law-makers in the World Declaration on the Environmental Rule of Law. The Declaration posited several measures that States should address to establish the environmental rule of law: 45

  • Monitoring and reporting systems that enable accurate assessments of the state of the environment and the pressures on it.
  • Anti-corruption measures, including those that address ethical conduct and oversight.
  • Legally supported environmental management systems that take due consideration of environmental risk and the vulnerability of social and economic systems in the face of ecological deterioration.
  • Environmental assessment, incorporating multidimensional, polycentric perspectives and the complexity of social-ecological relationships.
  • Quantitative and qualitative modeling and visioning tools that enable planning based on science, environmental ethics, strategies, and options that remain robust under multiple plausible futures.
  • Collaborative and adaptive management and governance which involves stakeholders from a range of socio-economic and cultural backgrounds including historically marginalized groups, including local and indigenous peoples, women, and the poor.
  • Coordination mechanisms such as regional enforcement networks, intelligence-sharing, and judicial cooperation.
  • Environmental legal education and capacity-building for all people, and especially for women, girls, and traditional leaders and governance bodies of indigenous people, focusing on exchange of knowledge on best practices, taking into account the relevant legal, political, socio-economic, cultural, and religious aspects, as well as recognizing common features founded on international norms and standards.
  • Harnessing new technologies and media for promoting environmental law education and access to information, as well as complementary tools which draw on and respect customary laws and practice.
  • Communication systems enabling the production and dissemination of guidelines, tool-kits, checklists, and associated technical and legal implementation assistance.
  • Strengthening civil society, environmental law associations, and other non-state actors that fill gaps in state-based environmental governance systems.
  • Linking environmental crimes to other types of crime such as money laundering.
  • Enabling public interest dispute resolution concerning environmental conservation and protection, and upholding the rights of future generations.
  • Strengthening the capacity and independence of the courts in the effective application and interpretation of environmental law and in acting as guarantors of the environmental rule of law.

Whether national legislatures and environmental decision-making systems have the discipline to adhere to environmental law remains in doubt. Little heed was paid to the recommendations of the World Charter for Nature. The SDGs themselves illustrate the difficulties that States have in making consistent decisions to safeguard biodiversity.

SDG 15 reflects an understanding that terrestrial biodiversity is in grave danger. In 2018, the UN General Assembly is to review the progress that States have made with respect to this SDG. 46

Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss.

It is not possible to fulfil this SDG unless States act to halt biodiversity loss, and this entails a reordering of all national development economics. Courts in South America have begun to invoke the principle “In dubio pro natura” to oblige parties to err on the side of protecting the environment. 47 The Philippines has gone further, and adopted court rules that shift the burden of proof onto the party, which is harming nature through its economic activity, to demonstrate that it complies with all applicable environmental law. 48 These legal measure hint at the transformations needed to attain SDG 15.

SDG 14 deals with the marine environment. 49 It provides that States are to “Conserve and sustainably use the oceans, seas and marine resources for sustainable development.”

SGD 14 regrettably ignores the command of the UN Convention on the Law of the Sea, to protect and preserve the marine environment. Unless one reads into sustainable use and development the sort of strict obligation of SGD 15, “to halt biodiversity loss” in the seas as States must on land, this SDG will be regressive in allowing current marine degradation to continue. The UN negotiations to provide a new agreement on biodiversity beyond areas of national jurisdiction (BBNJ) may help produce terms consistent with Article 192 of UNCLOS. 50 In any event, States must take legal measures in their coastal waters and exclusive economic zones “to protect and preserve” the marine environment. The designation of Marine Protected Areas (MPAs) is a positive development in this regard.

Finally, the SDG 13 focuses on how States should address the impacts and causes of climate change in activities other than those dealt with through the UN Framework Convention on Climate Change. 51 SDG 13 provides that States are to “Take urgent action to combat climate change and its impacts.”

Unless climate change is slowed, arrested, and reversed by sequestering greenhouse gases and allowing atmospheric temperature increases to be contained and reversed over the next two centuries, or less, the prospects for halting biodiversity loss are dim. One “urgent” action needed is to enact reforms to establish the environmental rule of law, as described above. It remains to be seen how the SDGs will stimulate better legal protection of Earth’s biodiversity.

Legal lacunae and biodiversity

International environmental law has demonstrated its success in many instances. It has the tools to protect Earth’s biodiversity, but they are not deployed in all nations or at a global scale. Can they be?

Edward O. Wilson has proposed that nations set aside half the Earth primarily for nature. (Wilson, 2016). Doing so would allow human civilization to continue to advance in reliance on Earth’s ongoing natural systems. He argues that “only by setting aside half of the planet in reserve, or more, can we save the living part of the environment and achieve the stabilization required for our own survival.” 52 By scaling up the terrestrial systems of protected areas, and adding the marine protected areas, States can attain this objective. “Reasonable” use of all natural areas will need to yield to minimal use and enhancing stewardship or trusteeship for natural areas. The legal basis exists for requiring such actions needs to be better articulated.

There are many gaps in environmental legislation. Beyond enacting laws to implement each of the treaties described above – something most states have not done – new laws are needed. For example there is virtually no protection for peat, which is found on 3 per cent of the planet’s surface but sequesters 30 per cent or more of the Earth’s carbon dioxide. Peat is being destroyed rapidly in Kalimantan and Sumatra (Indonesia), releasing huge greenhouse gas emissions. The need for peat legislation is acute. 53 Most nations still have antiquated laws requiring generation of electricity by burning fossil fuels (some burn peat), thereby exacerbating climate change. Laws are needed to require electricity to be conserved and used efficiently, and laws to encourage solar and wind energy use need to be enacted. The monitoring of biodiversity needs to be as routine as the monitoring of public health conditions, or compiling statistics about employment and other economic indicators. What a society does not measure, it ignores. Laws are needed to establish national inventories of biodiversity and mandate the study and surveillance of trends. Biodiversity exists everywhere. Concern by conservation biologists for biodiversity in exotic locations may have caused neglect of biodiversity where most humans are found. For instance, making preservation of urban biodiversity a priority could sensitize national leaders to the need to save biodiversity everywhere (Alfsen-Norodom, et al., 2004).

Biodiversity law – both internationally and nationally – is manifestly inadequate to conserve the Earth’s legacy of biodiversity. Biodiversity losses are likely to continue. The SDGs represent an opportunity to educate decision-makers globally about how to shift from unsustainable legal practices to those that are characterized by the environmental rule of law.

Biodiversity law is still evolving as this book goes to print, and as climate change induces species and ecosystems to adapt to survive. Humans will adapt as well. The challenge for biodiversity law is to synchronize these life systems. To sustain civilization, human legal constructs will need to accommodate the laws of nature. Whether or how this happens will be determined by how biodiversity law will be shaped in the coming decades.

Notes

See the Resolutions of the IUCN General Assemblies, e.g. the 17th GA held in Costa Rica in 1988, at https://portals.iucn.org/library/node/6083. See Burhenne Guilmin and Casey-Lefkowitz (1993).

In decision X/2, the tenth meeting of the Conference of the Parties, held from 18 to 29 October 2010, in Nagoya, Aichi Prefecture, Japan, adopted a revised and updated Strategic Plan for Biodiversity, including the Aichi Biodiversity Targets, for the 2011–20 period. See the “CBD Strategic Plan for Biodiversity 2011–2020,” at www.sbd.int/sp.

All species of animals, plants, insect, microorganisms, and the ecosystems and ecological processes of which they are a part, are subsumed within the concept of biodiversity. Scientific discourse, policy and law tend to focus on biodiversity in terms of genetic diversity, species diversity, and ecosystem diversity. See McNeely (1990) at 17. See generally Wilson (1988).

UN Declaration on Environment and Development, Rio de Janeiro, 14 June 1992, at www.unep.org/documents.multilingual/default.asp?documentid=78andarticleid.

UN Conference on Environment and Development, Agenda 21, Chapters 3 and 4 (1992).

Report of the 1992 UN Conference on Environment and Development (UNCED), available at https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf; for an annotated edition of Agenda 21, with the full traveaux préparatoires for the negotiation of Agenda 21, see Robinson (1993).

For background on the United Nations Sustainable Development Goals, see the UN Department of Social and Economic Affairs website: https://sustainabledevelopment.un.org/.

Paragraph 14, “Transforming Our World: The 2030 Agenda for Sustainable Development.” Contained in A 68/970, “Report of the Open Working Group of the General Assembly on Sustainable Development Goals” (see also A. 68/970 Add. 1), adopted in UNGA Res. A/Res/70/1 (25 September 2015), distributed 21 October 2015, for Agenda Items 15 and 116, 70th Session, UN GA.

UN Convention on Biological Diversity, at www.cbd.int.

Declaration of the UN Conference on the Human Environment, Stockholm, 1972, at www.unep.org/documents.multilingual/default.asp?documentid=97&articleid.

See the restatement in Kurukulasuriya and Robinson (2006), in Chapter 3 “Principles and Concepts of Environmental Law” (UN Environment Programme, 2006), online at http://digitalcommons.pace.edu/lawfaculty/791/.

IUCN World Declaration on the Environmental Rule of Law, adopted at the World Congress on Environmental Law (Rio de Janeiro, 26–29 April 2016), at www.iucn.org.

This is akin to the concept of a trust in common law, or the waqf in Islamic law. The preamble to the CBD concludes by observing that inter-generational rights are recognized through observing CBD duties.

Sub-section 7 of Chapter 3, in Kurukulasuriya and Robinson (2006).

The right to the environment is now recognized in the national constitutions of 174 States, see Boyd (2012), as well as in the 2016 Rio World Congress Declaration on the Environmental Rule of Law.

Principle 6 of the Rio Declaration on the Environmental Rule of Law provides as follows: “Any natural or legal person or group of people, in possession or control of land, water or other resources, has the duty to maintain the essential ecological functions associated with those resources and to refrain from activities that would impair such functions. Legal obligations to restore ecological conditions of land, water or other resources are binding on all owners, occupiers, and uses of a site, and liability is not terminated by the transfer of title to others.”

See Principle 15 of the 1992 Rio Declaration on Environment and Development, found also in the preamble to the CBD, and in Art. 3(3) of the UN Framework Convention on Climate Change.

This duty of “EIA” is Principle 17 of the 1992 Rio Declaration on Environment and Development, and appears in the 1991 Espoo Agreement on EIA in a Tranboundary Context, and other agreements, and the duty to provide public participation is Principle 10 of the 1992 Rio Declaration, and appears in the Aarhus Agreement.

This duty appears in Principle 22 of the 1992 Rio Declaration on Environment and development, and in Art. 8(j) of the 1992 CBD, and elsewhere, such as in Principle 7 of the 1993 Nuuk Declaration on Environment and Development in the Arctic States. See subsection 9 of chapter 3 in Kurukulasuriya and Robinson (2006).

Principle 16 of the 1992 Rio Declaration on Environment and Development, widely accepted based on studies in the 1970s by the Organization for Economic Cooperation and development (OECD). The science of ecology has documented how pollution can and does harm ecosystems, and biodiversity, and thus the polluter pays principle is now applied to more than a narrow concept of pollution. For example, ecosystem restoration and payments and assessing natural resources damages are part of hazardous waste remediation. See sub-section 7 in chapter 3 of Kurukulasuriya and Robinson (2006).

Principle 7 of the 1992 Rio Declaration on Environmental and Development provides in this regard that “The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources that they command.” This Principle appears in Art. 20(4) of the CBD and in Art. 5 of the Convention to Combat Desertification, and in other international environmental law instruments.

For the International Whaling Convention and its work, see https://iwc.int/home.

Paragraph 58 of Judgment, Australia v. Japan: New Zealand intervening (2014), at www.icj-cij.org/docket/files/148/18136.pdf.

On the administration of biodiversity agreements generally see chapter 4, “Compliance and enforcement of multilateral environmental agreements,” in Kurukulasuriya and Robinson (2006).

See, e.g. the UNEP Fifth Global Environmental Outlook Assessment Report, GEO-5 Report, at www. google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=unep+geo+5+pdf&*.

For UNESCO, see http://en.unesco.org/.

For FAO, see www.fao.org/home/en/.

For WHO, see www.who.int/en/.

See www.iucn.org.

For the Ramsar Convention see www.ramsar.org/.

For CITES, see www.cites.org/.

For the Vienna Convention and Montreal Protocol see http://ozone.unep.org/.

For the Stockholm Convention on POPs, see www.pops.int, and http://chm.pops.int/default.aspx.

The gaps and short-comings of biodiversity law and governance have been ably described in the 2005 Millennium Ecosystem Assessment, see www.millenniumassessment.org/.

See www.ecolex.org/.

See www.au.int/.

See Koh, Robinson and Lye (2016).

For implementation of this Act, see www.mfe.govt.nz/rma.

Ibid., Para 19.

SDG 16 encompasses promoting the rule of law. See https://sustainabledevelopment.un.org/sdg16.

These Recommendations, “a) to n)” are set forth in Part III, “Means of Implementation of the Environmental Rule of Law,” in the IUCN World Declaration on the Environmental Rule of Law, available at www.iucn.org.

SDG 15 is discussed at https://sustainabledevelopment.un.org/sdg15.

In cases of any doubts, courts and administrative agencies are mandated to make their decisions in ways that favor the protection and conservation of the environment. See the Brazilian High Court decisions in Bryner (2012).

See the Philippine Supreme Court Rules for the Writ of Kalikasan (Nature), A.M. No. 09-6-8 (13 April 2010), at www.lawphil.net/courts/supreme/am/am_09-6-8-sc_2010.html.13.

UNCLOS is at www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf. See Art. 192, “General obligation,” which provides that “States have the obligation to protect and preserve the marine environment.”

Wilson (2016) at p. 3.

See IUCN World Conservation Congress Resolution on Peat, WCC-216-Res-043,EN, adopted in at Hawaii (September 2016), available at https://portals.iucn.org/congress/assembly/motions?field_motion_id_value=&

title=peat.

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