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10/11/2016

WTO limitations for domestic climate smart agriculture policies

By Jonathan Verschuuren (TLS)

Achieving the Paris Agreement’s climate goals will require states to start focusing both on reducing emissions from agriculture and on the sequestration potential of agriculture and land use.  The imminent rise in global food demand coupled with the decline in fertile agricultural land caused by climate change will further necessitate the drafting and implementation of effective policies. These policies have to aim for mitigation, adaptation and food security, the three pillars of ‘climate smart agriculture’. Climate smart agriculture is an approach to developing the technical, policy and investment conditions to achieve sustainable agricultural development for food security under climate change (FAO 2013).  Examples of climate smart practices are the introduction of rotational grazing management schemes, crop rotation, minimum tilling, permanent native vegetation on farmland and the use of compost and other soil additives to increase soil carbon levels.  Examples of climate smart technologies are sophisticated, computerized drip-irrigation systems, and methane capture and conversion technologies in animal raising facilities.  A comprehensive regulatory framework to incentivize the agricultural sector to convert from conventional practices to become climate smart is still largely lacking, not just in the EU, but worldwide. Incentives that already are applied on a small scale are subsidies and tradable offsets under a carbon pricing mechanism. It is expected that future policies aimed at advancing the implementation of climate smart practices and technologies in the farming sector will use one of these or both instruments.

WTOBoth are voluntary instruments in the sense that farmers can choose not to apply for a subsidy or participate in an offset scheme, yet both do have an impact on trade because these instruments incentivize certain agricultural practices thus favouring some domestic farmers and their products over foreign farmers and their (imported or exported) products. When drafting a policy aimed at stimulating climate smart agriculture, it is, therefore, important to remain within the legal boundaries set by international trade law. There has been remarkable little attention for these trade law limitations to domestic policies in the area of climate smart agriculture. In Australia, for example, there does not seem to have been any debate on possible WTO requirements for the domestic Australian carbon farming initiative, which is a scheme aimed at stimulating farmers to reduce emissions or increase sequestration through offsets that are bought up by the government in reversed auctions. Academic literature does exist, but mostly focuses on the WTO boundaries for domestic climate law in a broad sense. That literature is rather worrying. Because it takes a broad perspective and deals with all potential instruments that may infringe upon a wide range of WTO instruments, it looks as if the WTO is a huge stumbling block for domestic policies.[1]

In my view, it is more worthwhile to focus on the two most likely instruments. As stated above, policies aimed at stimulating climate smart agriculture are likely to be some sort of government subsidy of a system of offsets from agriculture that are allowed in the carbon market. These instruments primarily have to be assessed against the requirements of two WTO instruments: the Agreement on Agriculture (AoA) and the Agreement on Subsidies and Countervailing Measures (SCM).

Domestic policies aimed at stimulating the adoption of climate smart agricultural practices and technologies are environmental protection programmes that, in principle, are allowed under the so-called ‘Green Box’ of the AoA, provided the support is only given in the start-up phase and is terminated after the benefits from the conversion to climate smart practices, be it from improved productivity, the generation of energy or from the sale of carbon credits on the private carbon market, greatly surpass the costs involved. Incentives that have a positive impact on production, such as for soil carbon projects, and that are not allowed under the AoA’s Green Box, are actionable under the SCM Agreement. It is hard to say in general whether payments to farmers, be it through a subsidy or through the carbon market, are not actionable because they do not cause adverse effects on competing producers in other countries. This very much depends on the individual case.

Several carbon farming methodologies definitely have production-enhancing co-benefits and would, therefore be actionable under the SCM Agreement. Soil sequestration projects, for example, are known to have a tremendous positive impact on the production of crops. Financing such projects could, therefore, be seen as granting an actionable subsidy, as long as they are not covered by the AoA. This means that it is up to the injured WTO member state to prove these subsidies caused serious prejudice to its interests, i.e., that because of the subsidy, it suffers from displaced imports into the market of the subsidizing country, displaced exports to third countries, significant price suppression, or an increase in the world market share by the subsidizing country.  Should a country succeed and subsequent consultations not lead to an agreement, the injured state can take countermeasures.

The accused state could argue that the subsidies are non-actionable because these are meant to promote adaptation of existing facilities to new environmental requirements imposed by law and/or regulations, as allowed under the SCM Agreement.  It is, however, unlikely that all of the six conditions for this exception clause to apply are met as current schemes are voluntary, the subsidies are not one-time but re-occur every time new abatement has been achieved, and the payments are not limited to 20 per cent of the cost of adaptation.  The condition that financial assistance should be directly linked to and proportionate to a firm’s pollution reduction,  is only met in case of emissions abatement projects, such as methane capture. Sequestration projects are not covered as these do not reduce the firm’s own emissions. Whether the condition that the financial assistance needs to be available to all firms which can adopt the new equipment and/or production processes is met, depends on the design of the regulatory scheme. The Australian scheme, for example, under which only farmers with winning bids in a reversed auction receive government funds, seems incompatible with the latter condition.

The other WTO instruments are only relevant to a very limited extend. The GATT and TBT Agreement, generally, are not applicable in the case of the two instruments that are most likely to be used to stimulate climate smart agriculture. The GATS requires a policy to enable foreign service providers to be active under a carbon pricing mechanism aimed at offsets from agriculture. The TRIP Agreement requires states to protect the invention of climate smart technologies to be protected under patent law. Should policies be aimed at a rapid adoption of patented climate smart technologies, then states can opt for excluding a climate smart technology from patentability based on grounds of avoiding serious prejudice to the environment.

To further facilitate the adoption and implementation of policies promoting climate smart agriculture, the international community should take action in the area of international trade law. Unfortunately, climate change is not addressed in a comprehensive manner in the ongoing negotiations on liberalizing environmental goods and services, on the relationship between the WTO and the UNFCCC and the Paris Agreement, and on agriculture, nor in the regular meetings of the Committee on Trade and the Environment and the TBT Committee.  It is clear that policies aimed at stimulating climate smart agriculture cannot be neatly assessed under one of the current WTO Agreements, but instead are situated in between and across the various agreements, depending on the specific type of measure and the specific activity that is incentivized. It seems that it is difficult to give due consideration to climate smart agriculture in all of the ongoing negotiations and discussions within the WTO framework, although several realistic options to at least create more room do exist. The most realistic and feasible options in my view are including climate smart agriculture technologies in the yet to be concluded WTO Agreement on Environmental Goods and Services and to recognize carbon sequestration as an agricultural product under the AoA so that it becomes possible to support farmers’ sequestration measures under the Green Box.

 

[1] For example, David Blandford and Tim Josling, Greenhouse Gas Reduction Policies and Agriculture: Implications for Production Incentives and International Trade Disciplines (Geneva: International Centre for Trade and Sustainable Development, 2009); David Blandford, “Climate Change Policies for Agriculture and WTO Agreements”, in Joseph A. McMahon, Melaku Geboye Desta (eds.), Research Handbook on the WTO Agriculture Agreement. New and Emerging Issues on International Agricultural Trade Law (Cheltenham: Edward Elgar, 2012), pp. 223 et sqq.; David Blandford, International Trade Disciplines and Policy Measures to Address Climate Change Mitigation and Adaptation in Agriculture, E15 Expert Group on Agriculture, Trade and Food Security Challenges Think Piece (Geneva: ICTSD/WEF, 2013); Andrew Green, “Climate Change, Regulatory Policy and the WTO. How Constraining are Trade rules?”, 8:1 Journal of International Economic Law (2005), pp. 143 et sqq.; Christian Hberli, WTO Rules Can Prevent Climate Change Mitigation for Agriculture, Working Paper No. 2016/06 (London: Society of International Economic Law, 2016); Deok-Young Park (ed.), Legal Issues on Climate Change and International Trade Law (Cham: Springer International, 2016); Richard G. Tarasofsky, “Heating Up International Trade Law: Challenges and Opportunities Posed by Efforts to Combat Climate Change”, 2:1 Carbon and Climate Law Review (2008), pp. 7 et sqq.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

 EU


25/07/2016

Reducing Emissions from Agriculture: Australia’s Unique Approach (Part 2)

By Jonathan Verschuuren (TLS)

In my previous blog, I showed how various countries around the world are in the process of setting up offset schemes for agriculture, in an attempt to reduce greenhouse gas emissions from this sector. I also explained that Australia has a unique position as it has the longest operating system in place, and one that currently is not linked to emissions trading but is a stand-alone system. Technically, therefore, Australia’s Carbon Farming Initiative, is not an offset instrument, but a regulatory instrument aimed at achieving emissions reductions in the land use sector on its own. In this blog, I will focus on some of the results that have been achieved with the system so far, based on an empirical research that I carried out.[1] In case studies into selected CFI-projects and in a series of interviews with the key stakeholders, I searched for the experiences with the scheme in Australia, with the objective to draw lessons for other countries, including the EU as a whole, that wish to establish a policy aimed at reducing emissions from agriculture.

Sunset over rural Australia (Photo: J. Verschuuren)

Sunset over rural Australia (Photo: J. Verschuuren)

My research found that the current legislation on carbon farming in Australia provides an elaborate, yet reliable legal framework that seems well suited to assess project applications and issue credits to participating farmers who, through these projects, generated real and additional emission reductions. It was especially interesting to find that a major overhaul of the legislation in 2015, delinking the scheme from emissions trading, really pushed the scheme forward. Not having to sell credits on the volatile international carbon market, but being able to rely on long term, fixed government money (called ‘Emissions Reduction Fund’), spurred Australia’s farmers into action. It shows that it is important to create long term certainty for farmers. Farmers who want to introduce carbon farming have to implement structural changes to their farming practices with long term impacts on their business. The policy environment, as well as the agribusiness’ financial environment, has to accommodate such long term impacts. This also implies that relying on the carbon market for funding should only be done when there is long term certainty that carbon credits will earn an acceptable minimum price.

Another interesting finding is that, although Australia’s carbon farming policy and the associated regulatory framework is only aimed at achieving as much greenhouse gas abatement as possible against the lowest possible costs, many project actually have important co-benefits. These co-benefits often are an as important and sometimes even more important stimulus for farmers to convert to carbon farming than the direct financial benefits arising from selling generated carbon credits to the government. Generally, it is found that the policy is leading to the introduction of better farming methods in an overall conservative sector. These methods are not just good for combatting climate change, but have many benefits for farmers and even for food security. Vegetation projects generally reduce salination and erosion and improve water retention. Soil carbon projects were especially mentioned for having an astonishing impact on soil quality. Research indicates that an increase in the level of soil organic carbon, leads to a drastic increase of water availability and fertility, and thus to an increase in agricultural production. One respondent referred to an example he knew, of two brothers who had farmland adjacent to each other: ‘One of them was involved in a soil carbon project, the other was not. After a while, you could clearly see the difference, with much more and better growing crops on the land of the first. The other brother had to drive across his brother’s land to reach his own land and saw the difference every day.’ Although many respondents stressed that conservatism, especially among older farmers, slows down the adoption of these new climate smart practices, they all felt that the farming sector is slowly changing and is taking up these new practices. Assessing the impact of soil carbon projects, however, is complex and several stakeholders indicated that ‘we are still learning how to do it under different circumstances.’ Since the regulatory framework requires farmers to carefully monitor what is happening in the soil, a lot of new knowledge is generated. One respondent said: ‘We are in fact doing large scale experiments with soil carbon, all thanks to the Emissions Reduction Fund.’ There are many interesting case studies available remarkable results of reduced carbon emissions, better growing conditions, more water availability, and more biodiversity under such programmes as ‘soils for life’ and ‘healthy soils’.

Increasing soil carbon, therefore, has strong positive side-effects on adaptation as they increase the resilience of the land and lead to greater efficiency. Here, mitigation and adaptation go hand in hand. The same is true for some of the other sequestration methods that are allowed under the Australian scheme, such as native tree planting in arid and semi-arid areas both to store carbon and to stop degradation and salinization of farmland.

Sometimes, there are also direct economic co-benefits associated to carbon farming projects. In the piggeries sector, for example, there are producers who save A$ 15,000 (roughly € 10,000) per month on energy bills and earn an additional A$ 15,000 by delivering energy to the grid after having adopted methane capture and biogas production technology. When asked whether the CFI/ERF was the push factor, or the expected economic co-benefit, the respondent from the pork sector said that the CFI/ERF was the main driver for the distribution of this technology: ‘About half of the participating producers jumped because of the CFI/ERF push. It especially pushes medium sized producers, because it increases their payback just enough to get involved. Eighteen biogas projects in piggeries have to date generated A$ 6 million (€3.9m) a year in electricity savings and A$ 10.2 million (€ 6.6m) through carbon credits under the Emissions Reduction Fund. The Fund really was the driver for most of these eighteen producers.’ It is clear, though, that for the longer term, these co-benefits will continue to exist on a yearly basis, also without carbon credits being purchased by the government.

Grazing land regeneration project in western New South Wales (Photo: http://www.soilsforlife.org.au)

Grazing land regeneration project in western New South Wales (Photo: http://www.soilsforlife.org.au)

From these findings, the lesson can be drawn that a policy that has a wider focus on adaptation, food security, resilient and sustainable farm businesses and securing and creating jobs in the agribusiness sector, is likely to be more successful than one that only focuses on reducing emissions from agriculture. Several of the methods accepted or under development in Australia, such as those dealing with soil carbon, show that such co-benefits can indeed be achieved. Developing climate smart methodologies that not only deliver real, additional, measurable and verifiable emission reductions but also foster long term innovation and create economic, social and environmental co-benefits is essential for the success of any policy aimed at stimulating climate smart agriculture. Science has to be central in the development and adoption of methods that are accepted under the regulatory framework. In Australia, much research effort has already gone into method development. This now has to be taken to a global level. In order to avoid that every country is trying to invent the wheel, international collaboration in method development is pivotal. The aim has to be to roll out climate smart agriculture policies across the world, so as to stimulate our farmers to make a switch from conventional farming to climate smart farming.

 

[1] An article covering all the results of the project will be published in early 2017.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU


01/12/2015

Outcomes of the Meeting of the Parties to the Agreement on the Conservation of African-Eurasian Migratory Waterbirds

By Melissa Lewis
Grey Crowned Crane. Photo by Melissa Lewis.

A Grey Crowned Crane – one of the species for which an International Single Species Action Plan was adopted at AEWA MoP6. (Photo: M. Lewis)

During their annual movements, migratory birds traverse multiple jurisdictions, the conservation laws and policies of which may differ considerably. It is thus unsurprising that, over the past century, a myriad of international instruments have been adopted to facilitate international cooperation in bird conservation. However, a shortfall of many of these instruments is that they have either failed to encompass bird populations’ entire migration routes (‘flyways’) or failed to require that Parties take a flyway approach in implementing their provisions. The first treaty to be explicitly dedicated to flyway conservation was the 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds[i] (AEWA) – an ancilliary Agreement to the Convention on Migratory Species of Wild Animals[ii] (CMS), which attempts to maintain or restore the favourable conservation status of 254 species of migratory waterbirds. Not only is AEWA’s ‘Agreement Area’ designed to encompass entire migration systems, but the Agreement provides for a flyway approach in respect of both habitat conservation (requiring Parties to maintain networks of suitable habitats throughout species’ entire ranges[iii]) and the conservation and management of waterbird populations themselves (requiring, for instance, that, in implementing the principle of sustainable use, Parties take populations’ full geographic ranges into account[iv]). The Agreement’s other distinguising features include, inter alia, its detailed and legally rigorous provisions and its flexibility to evolve over time – these features being facilitated by AEWA’s use of a legally binding ‘Action Plan’, which applies at the population level (allowing for a very directed and nuanced collection of conservation commitments) and is easier to amend than the Agreement text itself.[v]

This November, the sixth session of the AEWA Meeting of the Parties (MoP6) met in Bonn, Germany. With 2015 marking the 20th anniversary of AEWA’s adoption, the theme of the MoP (‘Making Flyway Conservation Happen’) reflected the Agreement’s leading role in promoting and facilitating flyway conservation, and participants both celebrated AEWA’s successes and considered the challenges facing its future implementation. Parties adopted a total of 22 resolutions, addressing a variety of scientific, technical, budgetary and administrative issues. A brief overview of these developments is provided below.

Amendments to AEWA’s Annexes

AEWA’s three annexes define the Agreement Area (Annex 1), list the species to which the Agreement applies (Annex 2), and contain the Agreement’s Action Plan and a Table of categorized populations to which the Action Plan applies (Annex 3). Although it has been suggested that the AEWA Agreement Area might ultimately be expanded to include the Central Asian Flyway,[vi] no proposal to amend Annex 1 was placed before MoP6. The MoP did, however, adopt a new standard reference for waterbird species taxonomy and nomenclature, making it necessary to amend Annex 2’s order of families and species, as well as various species’ scientific and vernacular names, so as to align these with the new standard reference. The Table in Annex 3 was similarly amended, and changes were made to the categorizations of several populations to reflect changes in their conservation status (and thus the protections to which they are entitled under the AEWA Action Plan). [vii] Unfortunately, the mismatch in timetables for AEWA listings and listings on the IUCN Red List of Threatened Species[viii] meant that the recent global Red Listing of several AEWA species is not reflected in the amended categorizations and will only be taken into account at MoP7.[ix] Several Parties have also indicated that they will need to enter reservations in respect of certain changes to AEWA’s categorizations – for instance, some of the species with populations that have been up-listed are currently huntable under the EU Birds Directive, with the result that the EU will need to enter reservations in respect thereof.

Guidance

Since its entry into force, AEWA has facilitated the development of a large body of guidance on the conservation and management of waterbirds and their habitats. Such guidance takes the form of either resolutions or, more detailed, ‘Conservation Guidelines’, both of which are adopted by the MoP and, while not directly binding, inform the interpretation of provisions of the Agreement text and Action Plan. Although MoP6 did not make any amendments to the AEWA Action Plan itself, the MoP did adopt guidance on implementing the Action Plan’s population approach in national legislation, as well as guidance on the meaning of the term ‘disturbance’ (and several terms related thereto) as used in various Action Plan provisions.[x] Resolutions were also adopted regarding waterbird monitoring, sustainable use, control of non-native waterbirds, climate change adaptation, threats in the marine environment, impacts of renewable energy deployment, and the avoidance of additional and unnecessary mortality (such as that resulting from collision with, or electrocution by, power generation infrastructure; poisoning; illegal killing; incidental killing; and pollution).[xi] Rather than competing with existing guidance documents, several of these resolutions encourage AEWA Parties to utilize guidance developed under other fora, such as the CMS, Ramsar Convention on Wetlands of International Importance,[xii] and various Regional Fisheries Management Organizations. MoP6 further adopted Conservation Guidelines on renewable energy technologies and migratory species (this guidance also having been adopted by the CMS Conference of the Parties[xiii]), and national legislation for AEWA’s implementation; as well as revised Guidelines on sustainable harvest,[xiv] which revisions represent a significant improvement insofar as they attempt to address all of the motivations for harvesting waterbirds within the AEWA region rather than only harvest for recreational purposes. Finally, the MoP adopted a new AEWA Communication Strategy to guide communication efforts in support of the Agreement’s implementation.[xv]

Guidance on the Agreement’s strategic priorities is currently found in the AEWA Strategic Plan[xvi] and Plan of Action for Africa.[xvii] While both of these documents were initially to expire in 2017, the MoP has extended their lifespans until its next session (which will take place in 2018[xviii]) and instructed that revised versions for the period 2019-2027 be presented to MoP7.[xix] Unfortunately, while some progress has been made towards meeting the various objectives identified by AEWA’s current Strategic Plan, Parties are still far from achieving the Plan’s central goal of maintaining migratory waterbird species and their populations at, or restoring them to, a favourable conservation status throughout their flyways.[xx] The Secretariat’s ability to assess progress towards meeting the Strategic Plan’s objectives has also been frustrated by the failure of many Parties to submit national reports on their AEWA-implementation efforts (as is required by Art. V(c) of the Agreement). MoP6 experienced a decline in the submission rate of national reports, with only 55 per cent of the reports due being received.[xxi]

International species action and management plans

A central feature of AEWA’s work is the development and implementation of International Single Species Action and Management Plans (ISSAPs and ISMPs). Although species action and management planning per se aren’t unique to the Agreement, AEWA and the CMS are uniquely positioned to develop plans at the flyway level and, in this way, add value to the planning processes of smaller instruments, such as the EU Birds Directive. AEWA’s plans also fill a significant gap in the frameworks provided by other legal instruments insofar as they have begun (starting with the ISMP for the Svalbard population of Pink-footed Goose, which was adopted at MoP5) to implement internationally coordinated harvest management – something which has not been attempted under any other instrument operating within the Agreement Area. MoP6 adopted five new ISSAPs (adding to the 19 that had previously been adopted under the Agreement) and one revised ISSAP.[xxii] Two of these address intra-African migrants (the Grey Crowned Crane and the Shoebill), helping to dilute the largely European focus of AEWA’s earlier plans; while a further two (those for the Taiga Bean Goose and Eurasian Curlew) envisage the development of adaptive harvest management processes, but differ from the ISMP for the Pink-footed Goose insofar as they address populations which need to be restored to a favourable conservation status. The MoP also adopted AEWA’s first International Multi-species Action Plan (for Benguela upwelling system coastal seabirds), as well as a decision-making process for the revision and retirement of ISSAPs.[xxiii] In addition to instructing the AEWA Secretariat to convene AEWA International Species Working Groups to coordinate the implementation of various species action plans,[xxiv] the MoP requested the Secretariat to ‘facilitate, subject to the availability of financial resources, the establishment of a European multispecies goose management platform and process to address sustainable use of goose populations and to provide for the resolution of human-goose conflicts’, targeting not only goose populations for which ISSAPs/ISMPs are already in place, but also populations of Barnacle and Greylag Geese (for which international management plans have not yet been developed).[xxv]

Resource constraints, prioritization of AEWA’s activities, and enhancing efficiency through synergies

As is the case for many contemporary environmental treaties, resource constraints present one of the most significant hurdles to AEWA’s effectiveness. Although the core budget that MoP6 adopted for the upcoming triennium (which provides for zero nominal growth from the MoP5 budget) allocates some funding for implementing AEWA’s ‘African Initiative’, the budget is dedicated primarily to the Agreement’s administration.[xxvi] As in previous triennia, implementation activities will therefore rely predominantly upon voluntary contributions and external support. In light of this challenge, it is noteworthy that MoP6 adopted a resolution on resource mobilization for AEWA’s implementation.[xxvii]

Given the resource constraints faced by AEWA, prioritization of activities is obviously desirable. This was, to some extent, recognized at MoP6, at which Parties agreed that future lists of International Implementation Tasks (which are adopted at each MoP to guide prospective donors in their allocation of funds) be ‘more limited in extent’, and adopted a shorter list than those adopted at previous MoPs.[xxviii] For the first time, the MoP also adopted a prioritized and costed work plan summarizing the scientific and technical tasks for the AEWA Technical Committee.[xxix] In the future – and especially when the AEWA Strategic Plan is undergoing revision during this triennium – there is arguably a strong need to identify both areas in which AEWA is able to work through other instruments and organizations and areas in which the Agreement is able to make a unique contribution and should be concentrating its efforts. While some of AEWA’s ‘niche’ areas are obvious (such as the promotion of the flyway approach, the development of flyway-level species action and management plans, and sustainable use), there are other areas in which the Agreement’s role and its relationship with other instruments need to be more clearly defined – an example being the conservation of seabirds.[xxx]

In recent years, the desire to improve AEWA’s efficiency and thereby allow resources to be diverted from the Agreement’s administration towards its implementation has also resulted in various suggestions for enhancing synergies between AEWA and the CMS. Although there is a long history of cooperative efforts between AEWA and its parent Convention, the desirability of establishing more formalized synergies has been a point of controversy. Following the establishment of a pilot joint communication and outreach unit in 2014,[xxxi] MoP6 decided to take a ‘stepwise approach’ (under the control of the AEWA and CMS Standing Committees) to strengthening synergies in common service areas, but has taken note that this is not aimed at a merger of Secretariats and confirmed that the appointment of a joint Executive Secretary is not a desired option.[xxxii] This, of course, is a separate issue from whether AEWA itself should be merged with other bird-related instruments in the CMS Family – a question which has yet to be considered by the AEWA MoP, but which might arise in the future in the context of the CMS Future Shape Process.[xxxiii]

 

This post was written on the basis of the author’s participation at AEWA MoP6, in the capacity of Environmental Law Expert on the Agreement’s Technical Committee. A detailed analysis of AEWA’s evolution, unique features, and challenges is provided in: Melissa Lewis ‘AEWA at Twenty: An Appraisal of the African-Eurasian Waterbird Agreement and its Unique Place in International Environmental Law’ 19:1 Journal of International Wildlife Law & Policy (2016) 22-61


[i] http://www.unep-aewa.org/.

[ii] http://www.cms.int/.

[iii] AEWA Art. III(2)(d).

[iv] AEWA Action Plan para. 4.1.1.

[v] AEWA Art. X.

[vi] See Doc. UNEP/CMS/CAF3/REPORT, Annex 2.

[vii] AEWA Resolution 6.1.

[viii] http://www.iucnredlist.org/.

[ix] The need to consider these species at MoP7 is, however, is recognized in a preambular paragraph of Resolution 6.1.

[x] AEWA Resolution 6.7.

[xi] AEWA Resolutions 6.3, 6.4, 6.6, 6.9, 6.11 and 6.12.

[xii] http://www.ramsar.org/.

[xiii] CMS Resolution 11.27.

[xiv] AEWA Resolution 6.5.

[xv] AEWA Resolution 6.10.

[xvi] http://www.unep-aewa.org/en/documents/strategic-plan.

[xvii] http://www.unep-aewa.org/en/node/1984.

[xviii] AEWA Resolution 6.19.

[xix] AEWA Resolution 6.14.

[xx] See further Doc. UNEP/AEWA/MOP6.12.

[xxi] See Doc. UNEP/AEWA/MOP6.13.

[xxii] AEWA Resolution 6.8.

[xxiii] Ibid.

[xxiv] Ibid.

[xxv] AEWA Resolution 6.4.

[xxvi] AEWA Resolution 6.18.

[xxvii] AEWA Resolution 6.21.

[xxviii] AEWA Resolution 6.13.

[xxix] AEWA Resolution 6.17.

[xxx] See AEWA Resolution 6.9.

[xxxi] See Doc. UNEP/AEWA/MOP6.10Rev.1.

[xxxii] AEWA Resolution 6.22.

[xxxiii] CMS Resolution 10.9, Annex 1, action 15, read with CMS Resolution 11.14, Annex 1, action 19.


18/03/2015

Strengthening wilderness protection in Antarctica

By Antje Neumann
Tourists in Antarctica.

Tourists in Antarctica.

Human activities, especially those of tourism and other non-governmental character, have been increased substantially in Antarctica over the two last decades, both in numbers as well in diversity. Alone in the season of 2013/14, 37,405 tourists visited Antarctica, while in 2003/04 numbers accounted for 27,537 visitors, and in 1993/94 for 6,704 visitors only (IAATO statistics, 2015). In respect of diversity, classical tourism cruise ship became supplemented by such activities as kayaking, scuba diving, helicopter flights and landings, climbing, extended walks and marathons over the years (IAATO statistics, 2009/10). This expansion results in reduction, disappearance, fragmentation or isolation of habitats and natural landscapes, and thus clearly affects Antarctic wilderness adversely. The Protocol on Environmental Protection to the Antarctic Treaty of 1991, which entered into force in 1998, directs Parties to the Protocol to plan and conduct activities so as to limit adverse impacts and to avoid, inter alia, “degradation or substantial risk to, areas of […] wilderness significance” confirming that the protection of wilderness values, among others, must be a “fundamental consideration in the planning and conduct of all activities in the Antarctic Treaty area”. Additionally in 2009, General Principles for tourism in Antarctica were adopted, stating, among others, that “Tourism should not be allowed to contribute to the long-term degradation of the Antarctic environment and its dependent and associated ecosystems, or the intrinsic natural wilderness values of Antarctica”.

Despite these clear legal provisions, the protection of wilderness values in Antarctica has received, however, very little attention at the more concrete policy making in practice. Up to now, Antarctic Treaty Parties are very reluctant to prohibit an activity or to put it under certain restrictions because of the likelihood of negative impacts on Antarctic wilderness. This is mostly because of the difficulty to apply the concept of wilderness protection in regulating human activities in Antarctica. While some Consultative Parties consider the concept as too “subjective” and difficult to quantify, others think of it as a quite powerful argument for prohibiting or strictly regulating permanent facilities for tourism. Moreover, a lack of clear definition, what is understood as “wilderness” and the absence of concrete guidelines for implementation pose additional hurdles.

Against this background, a present research project at the University of Tilburg (Tilburg Law School, Department of European and International Public Law) investigates to what extent the “wilderness concept” can constitute a basis for regulating tourism and other non-governmental activities in Antarctica. In this framework, wilderness is rather defined by its physical characteristics – wideness (in terms of geographical size), an absence of major human infrastructure and settlement, and a relatively biological intactness – instead of relying on the term “wilderness” per se. To study the subject, particular wilderness regulations and management practices in other wilderness areas in the world will be examined, including examples from Lapland, the Northern Region of Finland, from Spitsbergen, a Norwegian archipelago in the Arctic Ocean, as well as from Canada and Alaska, the US. By studying these examples, possible lessons learnt for regulating diversity of tourism activities in Antarctica will be identified in order to improve the factual protection of Antarctic wilderness.

Category: Uncategorized

20/02/2015

Climate Induced Displacement or Anticipatory migration? Time to decide!

By Mariya Gromilova

For a long while, environmental degradation, climate change and its impacts were primarily on the scientific—not public—agenda. The topic was surrounded by much scepticism and policy-makers had little interest to act upon it. Of course, the situation changed dramatically, with climate change now acknowledged as one of the central global challenges.[i] The impacts of climate change go far beyond damaging flora and fauna. Already in 1990, the IPCC predicted that one of the greatest impacts of climate change will be on human migration.[ii] People will be induced to move as a result of such factors as increasing intensity of extreme weather events, sea-level rise, droughts and accelerated environmental degradation. Although it is complicated to estimate the precise amount of those likely to be displaced as a result of global warming, according to the UN this number will range between 50 million and 350 million by 2050[iii]

From the legal perspective, people relocating or being displaced due to climate change fall in something of a limbo, not fitting under existing international legal frameworks. While several approaches to conceptualize this group of people have been suggested, no solution so far has been found. Despite the differences, existing approaches (for example, expanding the 1951 Refugee Convention to include people displaced by climate change, creating a separate convention, or drafting an optional protocol to the UNFCCC) tend to treat climate induced migration as a protection issue, where people affected by climate change need to be protected through this or that mechanism based on this or that grounds. This approach, as McAdam explains, is based on “the assumption … that movement is forced and should be treated as a refugee-like nature, with binding protection obligations for States … with respect to those displaced.”[iv]

At the same time, achieving any success through this protectionist approach appears hardly realistic. States are reluctant to accept responsibilities towards people affected by climate change, to develop new treaties, or to expand existing ones.[v] Furthermore, still very little is known about this type of movement, empirical data is limited, and proving that climate change is a “push factor” for migration is not possible.[vi]

The hopeless protectionist approach means, in reality, a “wait-and-see approach”. While negotiations and political debates remain stuck, the situation of people living in the areas affected by climate change will continuously worsen. At some point this will leave these people with no other choice than to look for a better and more secure livelihood elsewhere. Since they largely lack any legal grounds for relocation, they will use any opportunities, including dangerous and illegal.

Developed countries, particularly the USA, Australia and the EU’s member states, as top destination countries for migrants, have a choice to stick to the wait-and-see approach or to start taking anticipatory measures to mitigate the upcoming migration crisis. The examples of the Lampedusa and Christmas Islands, and the facts that there are already 16.7 million refugees and 51.2 million forcibly displaced persons worldwide who have no durable solution in sight, are just some of the arguments against waiting until people affected by climate change will join the fate of “boat people”.[vii] Another argument is that, as McAdam has warned – “a wait-and-see approach” with respect to movement … could ultimately stimulate a dynamic interpretation of human rights law so as to provide a remedy for people whose homes have become uninhabitable. This, in turn, may create a precedent for accepting people from other affected States (with much larger populations, such as Bangladesh).”[viii]

Tuvalu (Creative Commons license. Photo: Tomoaki INABA at Flickr)

Tuvalu (Creative Commons license. Photo: Tomoaki INABA at Flickr)

These concerns are in fact no longer just theoretical, since the first case has already been ruled, with a Tuvaluan family getting a residence in New Zealand on humanitarian grounds. The “decision of the New Zealand Immigration and Protection Tribunal does not grant the applicants refugee status under the 1951 Refugee Convention.The bases for humanitarian status were the applicants’ strong family ties and community connections in New Zealand, and not the climate change claim[ix]. Therefore, the applicants are not the world’s first climate change refugees, contrary to the numerous headlines of the media.[x] The decision of the New Zealand Immigration and Protection Tribunal has no impact at international level. As Corendea, a legal expert at the United Nations University, said in that regard, “It is not significant for the international arena, as this is an isolated rule … and the decision of the court may not set a precedent, but an example at best.”[xi] However, this doesn’t mean that the case is internationally irrelevant. “Tribunals and courts in other countries looking at similar issues could find the reasoning persuasive.”[xii] Furthermore, as François Gemene argues while the legal implications of this case are yet small, the political ramifications may be vast.

At first glance, one of the remedies against the escalation of the migration crisis can—paradoxically—be anticipatory migration. In fact, there is sufficient evidence that promoting migration—i.e. allowing temporary, seasonal labour migration of people leaving areas affected by climate change, giving them opportunities to improve their economic situation and to mitigate the risk that they will be induced to relocate—can be an attractive way to diminish the crisis. Besides the fact that allowing for legal immigration will mitigate irregular migration, it can generate a triple-win and be beneficial for migrants, sending countries, and destination countries.

The potential benefits of migration and its positive influence on development are in general well-acknowledged. As Kofi Annan, ex-Secretary-General of the UN emphasized, “The potential for migrants to help transform their native countries has captured the imaginations of national and local authorities, international institutions and the private sector.” Migration is acknowledged as the most effective mechanism to rapidly increase the incomes of poor people. [xiii]

For people affected by climate change, the most important benefit is that labour migration contributes to the adaptive capacity and resilience of places affected by climate change and helps to develop responses against climate change.[xiv] As Adger explains, the capacity of a system to respond to climate change to moderate or avoid its negative consequences is a function of a number of properties, including: financial resources (to pay for adaptation); governance (to steer the adaptation process and how legitimate that process is); information (to anticipate climate risks, devise appropriate adaptations, and learn from their implementation); social resources (to network and form bonds among people and groups so that social responses to climate change are cohesive, equitable, and robust); infrastructure; and technology (to provide tools and crafts that help adapt)[xv]. Migration can therefore make significant positive contributions to many of these determinants of adaptive capacity. For example, remittances increase financial resources, and migrants can increase a community’s access to information and expand social networks. [xvi] In this sense, migration can offer a “brain gain” rather than merely a “brain drain” (ADB, 2012).[xvii] Job opportunities abroad can also help motivate the young to acquire the appropriate skills.[xviii] Furthermore, even short term migration reduces stresses on the environment, and helps mitigate overfishing and water pollution.

However, it is not only the sending countries and migrants which benefit. Differences in the supply of and demand for labour across countries present opportunities for mutual benefits from mobility.[xix] The current world population is projected to increase by 1 billion over the next 12 years and reach 9.6 billion by 2050. This growth will be mainly in developing countries, with more than half in Africa.[xx] Therefore, the growth will mainly take place in the countries which may not be able to offer sufficient resources, infrastructure, and institutes their to populations. At the same time, the working age population in the high-income countries will be declining due to low fertility and aging of the population.[xxi] This will necessitate greater flows of workers from low-income to high-income countries, as the latter seek to maintain the size of their workforces. For destination countries, well-managed migration can help bridge labour market gaps, provide labour to fuel structural economic transformation, drive innovation through migrants’ dynamism, and contribute to social security systems.[xxii]

Therefore, creating migration schemes and expanding existing ones can help the development and adaptation in the countries affected by climate change countries, fill the labour shortages in the developed countries, and diminish the risk of illegal immigration of people living in the regions affected by climate change.

Nevertheless, it has to be acknowledged that promoting migration on the regional level is not a panacea for a global migration crisis. The challenging nature of climate-induced displacement and migration requires complex solution. The negotiations on the international level must continue, and the international community must start acting. However, giving an anticipatory chance to some victims of climate change to migrate can positively contribute to the global solution.



[i] http://www.ipcc.ch/report/ar5/wg2/

[ii] IPCC, Climate Change: The IPCC 1990 and 1992 Assessments (IPCC First Assessment Report Overview and Policymaker Summaries, and 1992 IPCC Supplement)

[iii] United Nations, Report of the Secretary-General on Climate change and its possible security implications, 11 September 2009, UN document A/64/350, 15.

[iv] Jane McAdam, Refusing ‘Refuge’ in the Pacific: (De)Constructing Climate-Induced Displacement in International Law, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636187

[v] Philippe Boncour & Bruce Burson, Climate Change and Migration in the

South Pacific Region: Policy Perspectives, in CLIMATE CHANGE AND MIGRATION: SOUTH

PACIFIC PERSPECTIVES 5, 21 (Bruce Burson ed., 2010); Jane McAdam, Refusing ‘Refuge’ in the Pacific: (De)Constructing Climate-Induced Displacement in International Law, p.5 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636187; Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees, 33, HARV. ENVTL. L. REV. 400 (2009). Challenges of Climate-Induced Migration, Colo. J. Int’l Envtl. L. & Pol’y, Vol. 22:3, 408

[vi] http://www.nanseninitiative.org/, https://www.gov.uk/government/publications/migration-and-global-environmental-change-future-challenges-and-opportunities

[vii] http://www.theguardian.com/australia-news/2014/dec/31/stopping-the-boats-a-fiction-as-australia-grows-ever-more-isolationist-on-asylum

[viii] Jane McAdam, Refusing ‘Refuge’ in the Pacific: (De)Constructing Climate-Induced Displacement in International Law, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636187

[ix] Zeke Simperingham, an international lawyer with NGO Displacement Solutions – See more at: http://www.rtcc.org/2014/08/14/why-new-zealand-did-not-accept-worlds-first-climate-refugees/#sthash.YXnbhrfc.dpuf

[x] Some examples are: http://www.smithsonianmag.com/smart-news/worlds-first-climate-change-refugees-were-just-granted-residency-new-zealand-180952279/; http://grist.org/news/the-worlds-first-official-climate-refugees-land-in-new-zealand/

[xi] http://www.rtcc.org/2014/08/14/why-new-zealand-did-not-accept-worlds-first-climate-refugees/

[xii] Zeke Simperingham, http://www.rtcc.org/2014/08/14/why-new-zealand-did-not-accept-worlds-first-climate-refugees/

[xiii] http://www.un.org/esa/population/migration/hld/Text/Report%20of%20the%20SG%28June%2006%29_English.pdf

[xiv] Migration as a contribution to resilience and innovation in climate adaptation: Social networks and co-development in Northwest Africa, Jürgen Scheffran, Elina Marmer, Papa Sow, http://www.zef.de/module/register/media/9892_Scheffran-Marmer-Sow_2011_Migration%20as%20a%20contribution%20to%20resilience%20and%20innovation%20in%20climate%20adaptation.PDF

[xv] Neil Adger et al, ‘Assessment of Adaptation Practices, Options, Constraints and Capacity in Jon Bartenett

[xvi] Accommodating Migration to Promote Adaptation to Climate Change Jon Barnett Michael Webber, 2010 22

[xvii] Australian Bureau of Meteorology (ABM) and Commonwealth Scientific and Industrial Research Organisation (CSIRO) (2011a). Climate Change in the Pacific: Scientific Assessment and New Research: Volume 1 – Regional Overview.

[xviii] The Development Impact of a Best Practice Seasonal Worker Policy, David McKenzie John Gibson, http://elibrary.worldbank.org/doi/pdf/10.1596/1813-9450-5488

[xix] World Bank,

[xx] https://www.un.org/en/development/desa/news/population/un-report-world-population-projected-to-reach-9-6-billion-by-2050.html

[xxi] World Bank. Global Economic Prospects 2006: Economic Implications of Remittances and Migration. Wachington DC: The World Bank, 2006, 29

[xxii] http://ec.europa.eu/europeaid/sites/devco/files/communication-maximising-the-development-impact-of-migration_en_11.pdf

Category: Uncategorized

15/06/2011

Frack it!

By Jonathan Verschuuren (TLS)

A genuine revolution is underway in the energy sector, now that new methods are being used to extract ever larger amounts of natural gas. The gas, known as ‘coal seam gas’ or ‘shale gas’, is extracted from underground rocks by injecting them with large quantities of water and sand under high pressure. This causes the rocks to fracture, releasing the gas contained inside them. The process is called ‘fracking’. After it has been extracted, the gas can be used just like conventional natural gas. Large reserves of gas are available for extraction in this way, especially in Australia, Canada and the US, where more shale gas is now being extracted than conventional gas. There is probably a large amount of this type of gas in the Slochteren gas field in the Netherlands, too. The energy sector is embracing these new methods of production enthusiastically because gas is a much cleaner source of energy than coal, and it could therefore be used as a temporary replacement for coal until more sustainable forms of energy become available on a large scale. Burning natural gas produces much fewer pollutants than burning coal.

However, there is also growing criticism of this use of ‘clean’ fossil fuels. Natural gas is methane, a greenhouse gas that remains a hundred times more powerful than CO2 for twenty years after it is extracted. The problem is that a small percentage of this hyperactive greenhouse gas will always escape into the atmosphere during extraction, processing and transportation. In fact, American researchers have recently discovered that the negative effect of shale gas on the climate could be up to 20% greater than the effect of burning coal. And other environmental drawbacks are also being encountered. At the end of May, residents living near a shale gas extraction site in Arkansas in the USA made a damages claim for 4.75 billion US dollars against the Australian company BHP Billiton, which is responsible for the production of shale gas there. They claim that the extraction process has led to the pollution of ground and surface water, and even to an earthquake with a magnitude of 4.7 on the Richter scale. Shell, which extracts coal seam gas in Queensland in Australia, recently had to deal with a gas and water explosion. Various governments are now being persuaded to tighten up the environmental regulations on extracting shale gas. Although the first results of this seem to indicate that the emission of methane into the atmosphere can be reduced, it is still unclear whether this can prevent all the damaging effects. So it remains to be seen whether the initial euphoria over these new, clean forms of fossil energy will prove justified.


02/05/2011

Political climate change

By Jonathan Verschuuren (TLS)

6 April, 2011

Protests about environmental policy – when did that last happen? In fact, last weekend in Sydney, there were two demonstrations – in one park they were demonstrating in favor of the climate change levy, while in another there were protests against it. It seems you can’t turn on the television without seeing a program about carbon taxes. Even I’m getting a bit tired of it!

The opponents of environmental measures come across as particularly shrill. Right-wing politicians speak of ‘human-induced political climate change as a result of carbon taxes’. The left, meanwhile, like to make references to Europe, pointing out that measures to tackle climate change have led to more jobs and faster technological progress there. One important difference with Europe is that Australia actually has vast reserves of coal. This has meant that Australians have never had to give much serious consideration to other sources of energy. Australian consumers can’t just tick a box to choose ‘green energy’ from their energy supplier, for example.

Even so, Australia, with all its sun, wind and sea, has unparalleled potential for generating sustainable energy, although there’s still a long way to go before that potential is realized. The government is seeking to encourage people to generate sustainable energy – by reducing the price of solar panels for private individuals for example, but so far, the impact has been limited, partly because there aren’t enough people with the right skills to install the solar panels… “Will workers who lose their jobs in the coal industry be offered retraining?” was one question I heard being put to a Green politician by a more skeptical participant in a television debate. She said they would be.

However, a more relevant question is actually whether a gradual transition from coal to green energy in Australia will mean that all Australia’s coal will stay in the ground. I’m not so sure about that. China has an enormous appetite for coal. Even now, at least one coal-fired power station a week is being opened there – even though these are some of the most modern (and least polluting) in the world. China consumes more coal than the US, Europe and Japan put together. The World Bank announced this week that it would no longer provide finance for coal-fired power plants except in the very poorest nations. That is an important step, although it will not worry countries such as India and China. They are now engaged in a race to buy up Australian coal mines for astronomical sums of money. The mineworkers won’t have to worry about unemployment any time soon, then.

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