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International law



09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren (TLS)

Today, the Court of Appeal in the Dutch city of The Hague rendered its judgment in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Court of Appeal today rejected all objections by the State in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Court of Appeal, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the CO2 concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Court of Appeal briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44).

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs,[1] courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making.

In remarkably clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Court of Appeal invokes the precautionary principle. The Court of Appeal stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have a proactive and effective climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as within the EU climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal simply rejects this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. Quite humourful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Court of Appeal!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Court of Appeal simply referred to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Court of Appeal does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

We will engineer ourselves out of the problems 

The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO2 can later be removed from the atmosphere. The Court, however, is not willing to take these future technologies into account: “the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain [..] (and) the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).

 

Today the Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

 

 

[1] Here, Dutch law goes beyond what is required by the European Convention on Human Rights as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.


14/09/2017

Understanding and Enhancing the Contribution of International Law to Lion Conservation

By Melissa Lewis

As one of the world’s most iconic and charismatic megafauna, the lion, Panthera leo, is a species whose conservation attracts international concern from conservationists and the global public alike. However, lion range and numbers have declined markedly over the last two decades.

In a recent publication in the journal Nature Conservation, two members of the Tilburg Environmental Law Team (Arie Trouwborst and Melissa Lewis) collaborated with biologists and social scientists from the University of Oxford’s Wildlife Conservation Research Unit  (WildCRU) to assess the present and potential future role of international wildlife treaties in lion conservation.

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Like other species of large carnivores, lions present a special set of conservation issues from a legal perspective due to their great spatial requirements, elevated human-wildlife conflict potential, and role as both keystone and umbrella species. For these reasons, and because of the transboundary nature of many lion populations and some of their threats, international law plays a distinct role.

Lion conservation has featured prominently on the agendas of certain wildlife treaties – including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and, more recently, the Convention on the Conservation of Migratory Species of Wild Animals (CMS). In October this year, for instance, Parties to the latter Convention will decide whether to list the lion on one of the CMS’s appendices, and will further consider the adoption of several draft decisions of significance for lions and other African carnivores. Although sometimes less obvious, a range of other treaties also play a role in the endeavor to conserve the world’s remaining lion populations. For instance, 39 of the sites that are currently designated as Wetlands of International Importance under the Ramsar Convention, and 18 of the areas that have been designated as World Heritage Sites under the World Heritage Convention, are of actual or potential significance to lions.  A myriad of regional instruments are also relevant – examples including the African Convention on the Conservation of Nature and Natural Resources, the SADC Protocol on Wildlife Conservation and Law Enforcement, the various treaties establishing transfrontier conservation areas (TFCAs), and even the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Lion, Kruger National Park, South Africa (photo J. Lewis)

Lion, Kruger National Park, South Africa (photo J. Lewis)

In this paper, we identify not only a substantial body of relevant international wildlife law, but also a significant potential for enhancing these instruments’ contribution to lion conservation. We argue that the time is right to invest in such improvements, and we provide both general and treaty-specific recommendations for doing so. With the 2017 CMS Conference of the Parties fast approaching, the paper’s support for augmenting this Convention’s role in lion conservation is especially noteworthy. The paper concludes that: 

“Given the fragmented collection of treaties which currently apply to lions and the absence of adequate international instruments and/or institutions for lion conservation in at least portions of the species’ range, an important role appears, in principle, to be reserved for the CMS, both in terms of coordination and gap-filling. Listing lions under the Convention would be a logical step in this regard … [and] would both signal the need to develop more elaborate species-specific frameworks for lion conservation and sustainable use and increase the avenues available for achieving this.”

It further provides recommendations for making optimal use of the Ramsar and World Heritage Conventions and TFCA agreements in sites of importance to lions; outlines possibilities for adjusting CITES’ restrictions on the trade in lions and their parts; and emphasizes the importance of maximizing range states’ participation in, and compliance with, wildlife treaties, and of promoting strategies which involve the local people who live alongside lions.

 

Arie Trouwborst, Melissa Lewis, Dawn Burnham, Amy Dickman, Amy Hinks, Timothy Hodgetts, Ewan A. Macdonald & David W. Macdonald (2017) “International law and lions (Panthera leo): understanding and improving the contribution of wildlife treaties to the conservation and sustainable use of an iconic carnivore“. Nature Conservation 21: 83-128.


28/08/2017

Natural Visions: The Aesthetics of Environmental Law

By Benjamin Richardson

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

Among the most reproduced photographs in the world are NASA’s first images of Earth — most famously the iconic Blue Marble image taken by the Apollo 17 crew in 1972 from a distance of 45,000 km from the planet’s surface. It profoundly moved people with a stunning picture of a beautiful yet vulnerable planet, and helped propel the global environmental movement.[1]

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Aesthetics can touch our most visceral feelings about the natural environment in ways that technical data or expert reasoning cannot easily conjure. Majestic scenery, charismatic animals, and serene landscapes are among the perceived glories of natural environments that motivate people to care for them. An Italian and German may not understand one another’s tongue but can share admiration of a sublime mountain range or exquisite bird of paradise. Such affection can translate into stronger legal status for such places and species, such as creation of a national park or protection of treasured wildlife.  In Tasmania, where I live, nature’s beauty of this genre is never far away.

Aesthetic values have ostensibly informed numerous environmental laws. Great Britain’s National Parks and Access to the Countryside Act 1949 was established ‘for the purpose of preserving and enhancing the natural beauty’ (section 5(1)). The goals of the United States’ National Environmental Policy Act 1969 include ensuring ‘esthetically and culturally pleasing surroundings’ and preserving ‘important historic, cultural, and natural aspects of our national heritage’ (42 U.S. Code s. 4331). Internationally, the World Heritage Convention of 1972 safeguards ‘natural areas of outstanding universal value from the point of view of … natural beauty’ (article 2). In domains inhabited by people, municipal land-use planning commonly incorporates aesthetic criteria to protect architectural gems, historic streetscapes and bucolic countryside.

But we should not infer that aesthetic values are environmental law’s leitmotif – indeed quite the contrary. Scientific knowledge and economic values dominate rationalisations for environmental decisions. Arguments over how to deal with climate change or save endangered species are typically rationalised around the scientific evidence or economic costs and benefits. These criteria supposedly inject ‘objectivity’ and ‘neutrality’ into often deeply politicised disputes over the environmental impacts of developments. Public participation is another valorised input into environmental governance, as endorsed in most legislation and the Aarhus Convention; however, citizen participation (which can be a means to express aesthetic values) in practice is often managed for appearances in order to secure public acceptance of decisions already reached on other grounds.[2]

Is aesthetics thus only to hold a minor place in environmental governance, and what issues must we address in defining its role? I believe that beauty and other aesthetic values should have a more prominent place here. While science and economics supply a variety of reasons to conserve nature, such as revealing its biodiversity values or economic benefits, these disciplines do poorly in emotionally engaging people with their environs. Abundant environmental science has struggled to leverage fundamental shifts to our environmental attitudes and practices, as evident in continuing deforestation, industrial development and pollution. A sense of place or other personal connection to an environment grows when its beauty, spirituality or other sensuous qualities uplifts one. Empirical research shows positive correlations between specific landscape or environmental features and human wellbeing.[3] And individual well-being can lead to social change: as Aldo Leopold presciently observed, ‘we can only be ethical in relation to something we can see, feel, understand, love, or otherwise have faith in’.[4]

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

But any appeal to enrich legal governance with environmental aesthetics faces several challenges. Firstly, the aesthetic values that tend to captivate us are frequently associated with ‘specialness’ – perhaps a rare species or sublime landscape. But the ‘specialness’ benchmark has drawbacks: we should protect species before they become so endangered or rare as to move us, and pretty landscapes are not necessarily more ecologically important than a ‘mundane’ grassland or swamp. Even human-dominated landscapes punctuated by billboards and buildings, or golf courses and garbage dumps, can harbour wildlife adapted to living in our midst.[5] If we are to leverage action through environmental aesthetics, we must find beauty or other aesthetic values more widely than just within ‘special’ enclaves.

Secondly, because of the common assumption that the human response to aesthetics is subjective rather than factual or rational, aesthetic judgements determined by the beholder rather than the object can be viewed as deficient. Colloquially, we typically call this bias ‘beauty being in the eye of beholder’. Some researchers identify a shared, cross-cultural preference for landscapes that resemble Homo sapiens’ evolutionary cradle, the undulating African savannah.[6] Psychologists also identify a shared taste for fractal patterns in scenery, ‘featuring patterns that repeat at increasingly fine magnifications’ such as clouds, rivers and coastlines.[7] But while an aesthetic sense is surely a universal human trait, it is both personality- and culture-bound, with different artistic expressions and preferences found between and within cultures: a lover of Van Gogh’s delicate Irises might easily spurn Mark Rothko’s austere No.61 (Rust and Blue).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Furthermore, in our urban demography we often aesthetically engage with nature not directly but vicariously — through David Attenborough-narrated films, lavish coffee-table books or soothing nature sounds CDs. Artistic representations of landscapes, flora and fauna are among humankind’s earliest cultural expressions, such as the 20,000 years old Palaeolithic paintings adorning the Lascaux Caves in France and Aboriginal rock art in Australia of even older vintage. The arts thus mediate our access to environmental aesthetics. Natural beauty has become an essential ‘resource’ for activist organisations. In Tasmania, it was especially evident in Olegas Truchanas’ and Peter Dombrovskis’ sublime photographs to rally public interest in saving Lake Pedder and the Franklin River respectively from dams, [8] and again today to help conserve the imperilled Tarkine rainforests through the ‘Tarkine in Motion’ festival.[9] While these examples tend to reinforce that ‘specialness’ bias, the arts are increasingly enlisted to conserve ‘ordinary’ nature; recent successful examples include the Tasmanian Land Conservancy’s ‘Poets and Painters’ (2016-17) and ‘Skullbone Experiment’ (2014) that engaged artists to educate the public about the ecological and aesthetic values of two of the Conservancy’s private reserves in relatively unimposing (but ecologically valuable) landscapes.[10]

Further challenges with environmental arts include that they sometimes cater to an unrepresentative socio-economic demography (ie, urban, affluent, educated), thus missing the rural and poorer communities who often have more at stake directly in the environmental controversies. And some people might ‘read’ landscapes not for their beauty but for other aesthetic values such as having a spiritual connection, as in Aboriginal Dreamtime stories. Going beyond the ‘purview of the “landscape” of other received aesthetic categories of environmental perception’, Alan Braddock recommends an ‘eco-critical’ approach that emphasizes ‘environmental inter-connectedness, sustainability, and justice in cultural interpretation’ and reexamining canonical works to highlight ‘neglected evidence of past ecological and proto-ecological sensibility’.[11] In other words, more diverse conceptions of environmental aesthetics can help address lacunae or biases, and respect art historian Simon Schama’s advice to recognise that landscapes have a socialised, layered history.[12]

Strengthening community involvement in environmental art might attenuate some of the foregoing challenges. Here the emphasis shifts from the artistic representation of the natural world as an object of admiration to community engagement and dialogue with that world. This approach not only dovetails with the theory of ‘interested engagement’ in the aesthetics literature,[13] but also environmental law’s commitment to public participation.[14] Ecological restoration projects provide an interesting setting for these goals, as currently practised by Greening Australia in its Tasmania Island Ark initiative. Greening Australia has collaborated with the University of Tasmania’s College of the Arts to involve artists with regional schools and local townships in designing sculptures for placement in the landscape not only to support the community’s interpretation of the restored biodiversity but also to directly aid the biodiversity’s recovery by designing artworks that serve as ‘species hotels’ for birds, bats and other creatures.[15] Another approach, used in the United States, was undertaken by the US Nature Conservancy in its restoration of a wetland in Illinois; it recruited citizens to be artists themselves — to draw, paint, photograph, or otherwise depict the restoration endeavour and its results.[16]

Beauty is indispensable for our relationships with the natural environment and the laws we design to conserve it, helping people to move beyond a cold, instrumental relationship to one provoking affinity, curiosity, adoration and other intimacies. Artistic depictions of landscapes can influence their legal status, as Alice Palmer has investigated in her excellent analysis of the impact of aesthetics in World Heritage property listings including those in my own homeland of Tasmania where Peter Dombrovskis’ photographs of its southwest wilderness were used by the Australian government as evidence to support its nomination of this area for World Heritage status.[17] Given the ineffectiveness of much environmental regulation and considerable insouciance by some about the Anthropocene, we need to re-think how to engage everyone in caring for the Earth and the legal means to leverage that engagement.

 

[1] R. Kelsey, ‘Reverse shot: Earthrise and Blue Marble in the American imagination’ in E.H. Jazairy (ed), Scales of the Earth (Harvard University Press, 2011), 10.

[2] S. Bedder, ‘Public participation or public relations?’ in B. Martin (ed), Technology and Public Participation (University of Wollongong, 1999), 169.

[3] R. Kaplan, ‘The nature of the view from home’ Environment and Behavior 33(4) (2001): 507; K. Williams and D, Harvey, ‘Transcendent experience in forest environments’ Journal of Environmental Psychology (2001) 21: 249.

[4] A. Leopold, A Sand County Almanac (Oxford University Press, 1949), xxvi.

[5] T. Low, The New Nature (Penguin, 2017).

[6] D. Dutton, The Art Instinct. Beauty, Pleasure, and Human Evolution (Bloomsbury Publishing, 2010), passim; J. Appleton, The Experience of Landscape (Wiley, 1975), 73-74.

[7] R. Taylor, ‘Fractal patterns in nature and art are aesthetically pleasing and stress-reducing’, The Conversation, 31 March 2017.

[8] T. Bonyhady,  ‘No dams: the art of Olegas Truchanas and Peter Dombrovskis’, in R. Butler (ed), The Europeans: E´migre´ Artists in Australia 1930 – 1960 (National Gallery of Australia, 1990): 236.

[9] ‘Artists return from threatened Tarkine wilderness – major exhibition installed in Hobart’, Media release, Bob Brown Foundation, 2017.

[10] J. Deeth, ‘The Skullbone experiment: a paradigm of art and nature’, Artlink, June 2014; H. Aird, ‘Poets and painters: new exhibition produces “extraordinary synergies”’, ABC News 28 July 2017.

[11] A.C. Braddock, ‘Ecocritical art history’ American Art (2009) 23(2): 24, 26.

[12] S. Schama, Landscape and Memory (Fontana Press, 1995).

[13] A. Berleant, Living in the Landscape: Toward an Aesthetics of Environment (University Press of Kansas, 1997).

[14] B.J. Richardson and J. Razzaque, ‘Public participation in environmental decision-making’ in B.J. Richardson and S. Wood (eds), Environmental Law for Sustainability (Hart Publishing: 2006)): 165.

[15] Greening Australia, ‘Building hotels for Tasmania’s unique species’.

[16] S.K. Allison, Ecological Restoration and Environmental Change: Renewing Damaged Ecosystems (Routledge, 2012), 188.

[17] A. Palmer, ‘Legal dimensions to valuing aesthetics in World Heritage decisions’ Social and Legal Studies (2017): 1 at 8, DOI: 10.1177/0964663917698859.

 

 

 

 


21/08/2017

The Importance of International Wildlife Law and the Value of Multidisciplinary Collaboration in this Field

By Arie Trouwborst (TLS)

In the battle to halt and reverse the global biodiversity crisis, a crucial role is reserved for international legal instruments. An open-access viewpoint article in BioScience, written by an international assemblage of wildlife lawyers, conservation biologists and social scientists, highlights the importance of international law in wildlife conservation. The article explores the various ways in which treaties can contribute to conservation, as well as their limitations; and calls for both increased, strategic recourse to international wildlife law as a conservation tool, and further cooperation between lawyers and other conservation professionals. As the 21 authors conclude:

“With their long-term, legally binding commitments on a transboundary scale, international legal instruments can be important, sometimes indispensable implements in the conservation toolbox. Having explored why international wildlife law matters and what can and cannot be expected of it, we are convinced that by joining forces, lawyers and other conservation professionals can improve the contribution of international wildlife law to biodiversity conservation. There is much to be gained, partly by enhancing the legal framework itself but especially by seizing the many opportunities offered for advancing the effective application of the law as it stands. We hope that this article can be a useful step along this path.”

Multidisciplinary cooperation is also a key focus of the 18th International Wildlife Law Conference, which will be held at Tilburg University in the Netherlands on 18-19 April 2018. This is reflected in the scheduled keynote addresses by international wildlife lawyer Michael Bowman (School of Law, University of Nottingham) and conservation biologist David Macdonald (Wildlife Conservation Research Unit, University of Oxford). The Tilburg Environmental Law Team strongly encourages law professionals/students with an interest in wildlife, as well as wildlife professionals/students with an interest in law, to consider participating in this event.

elephant

Arie Trouwborst, Andy Blackmore, Luigi Boitani, Michael Bowman, Richard Caddell, Guillaume Chapron, An Cliquet, Ed Couzens, Yaffa Epstein, Eladio Fernández-Galiano, Floor Fleurke, Roy Gardner, Luke Hunter, Kim Jacobsen, Miha Krofel, Melissa Lewis, José Vicente López-Bao, David Macdonald, Steve Redpath, Geoffrey Wandesforde-Smith & John Linnell, “International wildlife law: Understanding and enhancing its role in conservation“, BioScience 2017, doi:10.1093/biosci/bix086


09/04/2017

From ‘Natural Objects’ to Holders of Legal Rights: The Expanding Concept of Personhood in India

By Melissa Lewis

In 1972, Christopher Stone published one of the seminal articles in environmental legal thinking: ‘Should Trees Have Standing?’. Stone observed that the history of law has seen the gradual extension of legal personality, and accompanying legal rights, to entities to whom it had previously been unthinkable that rights should be granted. Although such entities have included various categories of human beings (such as women, children, and slaves), the boundaries of legal personality have also been stretched to include certain non-humans, such as corporations. From this foundation, Stone proceeded to construct an argument for the extension of legal rights to what had hitherto been ‘natural objects’. Later the same year, in his dissenting opinion in Sierra Club v Morten, US Supreme Court Justice William Douglas famously aligned himself with Stone’s position, asserting that ‘[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’. Nevertheless, it is probably safe to assume that, as had been the case in respect of other historically ‘rightless’ entities, the suggestion that rights be conferred upon nature initially struck many as being completely outlandish.

Fast forward almost half a century, and Stone’s proposal does not sit quite as uncomfortably as it might have when initially published. In the period since the early ‘70s, an abundance of environmental laws have emerged at both the international and national levels; and although it is not yet commonplace for states to bestow rights upon the environment (or components thereof), this practice is rapidly gaining traction in several jurisdictions. In 2008, Ecuador became the first country to include ‘rights of nature’ in its Constitution, including ‘the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’, as well as ‘the right to be restored’. Then, in 2014 and 2017 respectively, New Zealand passed the Te Urewera Act and the Te Awa Tupua (Whanganiu River Claims Settlement) Act, recognizing a national park and a river to be legal entities, with ‘all the rights, powers, duties and liabilities of a legal person’.

Last month, India became the most recent country to grant rights to particular features of the natural environment – not through legislation, but rather through two public interest litigation cases decided by the High Court of Uttarakhand (for an overview of how the cases emerged, see here). This post provides a brief synopsis and critique of the two judgments and comments on their significance.

Judgment #1: Cracking open the door to personhood

River Ganga (Photo by Flickr user Roehan Rengadurai)

River Ganga (Photo by Flickr user Roehan Rengadurai)

In the first judgment (Mohd. Salim v State of Uttarakhand & Others), the Court was of the view that the ‘extraordinary situation’ in which the Ganga and Yamuna Rivers ‘are losing their very existence’ requires that ‘extraordinary measures be taken to preserve and conserve’ these rivers. After noting the deep spiritual connection between Hindus and the Rivers Ganga and Yamuna, the Court cited several previous judgments (predominantly from India’s Supreme Court) in which the concept of legal personality and its extension have been considered. The Court paid particular attention to decisions holding that a Hindu idol/deity is a juristic person, capable of possessing its own property (which is managed on the deity’s behalf by a human guardian), being taxed, and suing as a pauper. It further emphasized that the concept of ‘juristic persons’ emerged to serve ‘the needs and faith of society’ and that ‘a juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons’. The Court proceeded to again stress the religious significance of the Rivers Ganga and Yamuna. Importantly, it also commented on the rivers’ role in supporting ‘both the life and natural resources and health and well-being of the entire community’ and pointed to provisions of the Constitution of India which require both the state and its citizens to protect the environment.

The Court ultimately held that ‘to protect the recognition and the faith of society’ and ‘preserve and conserve’ the Rivers Ganga and Yamuna, it was necessary to declare these rivers, ‘all their tributaries, streams, [and] every natural water flowing with flow continuously or intermittently of these rivers’ to be juristic persons ‘with all corresponding rights, duties and liabilities of a living person’. It further declared the Director of government’s NAMAMI Gange project, along with the Chief Secretary and Advocate General of the State of Uttarakhand, to be ‘persons in loco parentis as the human face to protect, conserve and preserve’ the rivers and their tributaries; and directed these persons to ‘uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers’. The Court stated that, in making this decision, it was exercising parens patriae jurisdiction (i.e. the jurisdiction to assume responsibility for the welfare of those unable to act on their own behalf), but did not elaborate upon this principle.

Judgment #2: Allowing more persons to enter the room

A mere ten days after its striking decision concerning the Rivers Ganga and Yamuna, the Uttarakhand High Court widened the ambit of legal personality even further to encompass ‘the Glaciers including Gangotri [and] Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls’, and declared several individuals to be persons in loco parentis of these entities in the State of Uttarakhand (Lalit Miglani v State of Uttarakhand & Others). This second judgment was penned by the same two judges as the first, but is considerably longer and, unfortunately, also considerably less coherent.

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

While the first judgment had hinged largely – albeit not exclusively – on the religious importance of the rivers in question, less weight was placed upon this aspect in the second judgment. In reaching its decision, the Court considered the significance of, and threats to, various features of the natural environment. It expressed concern that the Gangotri and Yamunotri Glaciers (from which the Rivers Ganga and Yamuna originate) are receding due to pollution and climate change; that the various natural parks in the State of Uttarakhand, which ‘function as lungs for the entire atmosphere’, are threatened by human activities; that the State’s forests are threatened by large scale deforestation; and that forest fires are polluting the environment and harming wild animals, whose habitat is also shrinking. Throughout its judgment, the Court quoted extensively from several publications, which discuss, inter alia, the biodiversity of the Himalayas; the importance of trees from religious, cultural, economic and ecological perspectives; and the need to deviate from traditional approaches to protecting nature by recognizing nature’s rights. Curiously, no extracts from Stone’s ‘Should Trees Have Standing’ appeared in the decision, despite Stone having advocated precisely the kind of expansion of legal personality that the Court undertook in this judgment. Nor were excerpts included from the dissenting opinion in Sierra Club v Morten, although the Court did refer to New Zealand’s Te Urewa Act as an example of a country having recognized the legal personality of a national park.

The Court additionally drew text from a variety of international environmental instruments, reproducing the 1972 Stockholm Declaration, 1992 Rio Declaration, and 1992 Rio Forest Principles in their entirety, and also quoting large portions of the 1982 World Charter for Nature and 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). References to forests in the 1997 Kyoto Protocol and 2007 Bali Action Plan were additionally mentioned. The Court drew no distinction between legally binding and non-binding instruments – indeed, several mistakes in the judgment (which, for instance, erroneously refers to the Kyoto Protocol as the ‘Kyoto Declaration’) suggest that its authors failed to fully appreciate the nature of India’s commitments under the various instruments they referred to. The Court also failed to explain why it considered this selection of instruments to be relevant in reaching its decision, though presumably its rationale was that they illustrate the existence of wide-scale agreement amongst states concerning both the importance of the natural environment and the concomitant need for environmental protection. Further, although none of the instruments go so far as to call upon states to bestow legal rights upon nature, doing so is conceivably one route through which to achieve environmental protection, and thereby respond to some of the exhortations/obligations that the instruments contain. That said, the list of instruments that the Court chose to cite is somewhat surprising – in both its inclusions and its exclusions. Amongst the instruments referred to in the judgment, CITES stands out as a particularly odd choice. While numerous CITES listed species inhabit Uttarakhand (examples including the snow leopard, Uncia uncia, and the snow orchid, Diplomeris hirsuta), the Convention requires only that states protect these species from overexploitation through international trade, not that they engage in broader in situ conservation efforts, such as the protection of natural habitats. Given that the Court’s eventual expansion of legal personality pertained to particular habitats, but not to individual species, the 1992 Convention on Biological Diversity (CBD) would seemingly have provided better support for the decision – especially considering that this Convention recognizes the intrinsic value of biodiversity, whereas CITES’ focus is strictly utilitarian. However, the CBD received no mention in the judgment. Nor did the 1971 Ramsar Convention on Wetlands of International Importance or the 1972 World Heritage Convention, despite the Court both recognizing the legal personality of wetlands and emphasizing the need to protect natural parks in the State of Uttarakhand (which include the World Heritage listed Nanda Devi and Valley of Flowers National Parks). Still further instruments that could have been referred to, but weren’t, include the 2007 Non-legally Binding Instrument on All Types of Forests, the Outcome Document of the 2012 Rio+20 Conference (‘The Future We Want’), the 2015 Sustainable Development Goals, and the 2015 Paris Agreement. The Court’s failure to consider these four relatively recent documents might be explained by its apparent reliance on the outdated book Documents in International Environmental Law (2nd ed.: 2004) as its primary source of information concerning relevant international instruments.

As had the initial judgment regarding the Rivers Ganga and Yamuna, this second judgment referred to citizens’ Constitutional duty to protect the environment. It further stated that ‘[t]he Courts are duty bound to protect the environmental ecology under the “New Environment Justice Jurisprudence” and also under the principles of parens patriae’. It then provided a lengthy collection of quotes from judgments and journal articles discussing parens patriae – in particular, in the context of allowing states in a federal system to sue to prevent injury to the environment. What is remarkable about this collection, however, is that the texts cited discuss the origins and evolution of parens patriae in the United States’ legal system, and provide no explanation whatsoever of how this principle operates in Indian law.

Towards the end of its judgment, the Court stressed that ‘[b]esides our constitutional and legal duties, it is our moral duty to protect the environment and ecology’, and ‘to hand over the same Mother Earth to the next generation’. It stated further that ‘rivers, forests, lakes, water bodies, air, glaciers, [and] human life are unified and are [an] indivisible whole’; and that rivers and lakes have an ‘intrinsic right not to be polluted’, and rivers, forests, lakes, water bodies, air, glaciers and springs ‘have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system’. In holding that these entities are legal persons the Court directed that their rights ‘shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury to the human beings’. At an earlier point in the judgment, the Court had also commented that ‘[t]rees and wild animals have natural fundamental rights to survive in their natural own habitat and healthy environment’ – however, the rights of wild animals were not reasserted in the decision’s concluding paragraphs and, as noted above, the Court did not go so far as to recognize the legal personality of any of Uttarakhand’s native fauna.

Where to from here?

Whilst Indian law already obliges both citizens and the government to protect the environment, the legal significance of these two judgments is (as suggested by the title of Stone’s article) that litigation can now occur on behalf of certain features of the natural environment. Whether or not this enhances the environment’s protection in practice remains to be seen, although concerns have already been raised regarding the Indian government’s poor track record regarding environmental matters and the Court’s appointment of government officials as persons in loco parentis. As noted by Shivshankar, the second judgment did recognize the need for community participation (providing that ‘[t]he Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as Seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of rivers near lakes and glaciers’), but failed to specify how community members will be chosen or what their precise role will be. The judgments have further been criticized for failing to unpack what these new ‘persons’ can sue for, who they can sue, and whether there are any breaches of duty in respect of which they themselves can be sued. As things currently stand, a great deal of uncertainty thus remains concerning the implications of their newly established personhood. It is further significant that, since they originate from a High Court judgment rather than the Indian Supreme Court, the orders only apply within Uttarakhand. This clearly dilutes their potential to contribute to the protection of transboundary entities such as the Rivers Ganga and Yamuna.

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

The judgments would also arguably have been of greater persuasive value for courts in other Indian states, as well as foreign jurisdictions, had their legal reasoning been more carefully developed. Nevertheless, the Court’s acceptance that the spiritual and ecological value of certain aspects of the natural environment, combined with the threats faced thereby and the duties enshrined in the Indian Constitution, constitute ‘good and sufficient reasons’ for attributing legal personality provides an important precedent for future expansions of personhood. Indeed, the Nonhuman Rights Project has already stressed the potential of this precedent to assist animal advocates in making the case for legal rights for nonhuman animals.

Regardless of the various difficulties that will inevitably arise in implementing the Court’s orders, at the very least they reflect an important conceptual shift away from humans’ traditional, anthropocentric notion of environmental management, which has thus far been largely unsuccessful in preventing environmental destruction. Decades before Christopher Stone suggested that nature might be afforded legal standing, Aldo Leopold posited that: ‘We abuse the land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.’ Recognizing that various aspects of the natural environment, rather than simply being things for us to use, are capable of holding legal rights is an important step towards embracing the latter perspective.

 


19/11/2016

Reflections on the Wildlife Justice Commission and its Public Hearing concerning Wildlife Trafficking in Vietnam

By Melissa Lewis

The illegal trade in wildlife is currently the fourth largest global illegal trade (following the illegal trade in narcotics, the trade in counterfeits, and human trafficking) and is resulting in drastic declines in the populations of many species, in addition to being strongly linked to other crimes such as corruption and fraud. While most countries have enacted laws to regulate the trade of wildlife specimens, both the strength and the enforcement of such laws vary considerably from one country to the next. This blog post briefly considers the role of a relatively new innovation – the Wildlife Justice Commission (WJC) – in improving this situation through a combination of investigative techniques, public dialogue, and international pressure.

The WJC is an NGO established in 2015 with the objective of contributing to the disruption of transnational organized crime involving wildlife, timber and fisheries. The Commission seeks to achieve this end, firstly, by sharing intelligence and working with domestic law enforcement agencies, thereby assisting governments to enforce the law. In instances in which governmental cooperation is not forthcoming, the WJC produces a ‘Map of Facts’ (essentially a case file based on the Commission’s on-the-ground investigations, which maps out criminal networks and their illicit activities) and engages in diplomacy in an attempt to convince national authorities to act on the information provided. Where this too yields unsatisfactory results, a Public Hearing may be held with the purpose of allowing experts and the public to consider fact-based evidence and pressuring the relevant government to take legal action.

Although still in its infancy, the WJC has already involved itself in several investigations, one of which has culminated in a Public Hearing, held in The Hague on 14-15 November 2016. The Hearing focused on the trafficking of specimens of various species that are listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in Nhi Khe, Vietnam. Whilst not a legal trial, the first portion of the Hearing followed a trial-like format, with an attorney presenting an overview of the case’s Map of Facts through the questioning of witnesses, supported by photographic and video evidence. On its second day, the Hearing involved a series of discussions with, and presentations by, academic experts and representatives of conservation-related NGOs, aiming primarily to suggest means of combating illegal wildlife trade, both in Nhi Khe specifically and as a broader global problem. The Vietnamese government was invited to participate, but elected only to send an observer.

The WJC Accountability Panel (Photo: M. Lewis)

The WJC Accountability Panel (Photo: M. Lewis)

The Hearing was held before an independent ‘Accountability Panel’, comprising an impressive lineup of international experts, including, inter alia, current/former judges from the International Criminal Court, Inter-American Court of Human Rights, and East Africa Court of Justice. Throughout the process, members of the Panel were able to question witnesses and other speakers, as was the Director of Proceedings (the position of which was filled by an international broadcast journalist). Questions from the Accountability Panel in particular highlighted the various limitations of the WJC’s approach and what an organization of this nature is able to do from a legal and practical perspective. The WJC has, on several occasions over the past year, sent undercover investigators to Nhi Khe (see further the Al Jazeera documentary ‘The Poacher’s Pipeline’). However, these persons – being representatives of an NGO rather than law enforcement officials – were unable to purchase wildlife products without themselves infringing the law. Thus, although they were able to demonstrate that large amounts of what appeared to be genuine wildlife specimens (as identified by experts on the basis of photographs) were being offered for sale in Nhi Khe, they were unable to prove the actual occurrence of transactions, obtain physical samples, or create opportunities for working their way to other links in the wildlife trafficking chain. They were further unable to investigate private sector involvement in the relevant organized crime networks by, for instance, subpoenaing the bank accounts into which sellers indicated that payments could be made; and did not explore the prevalence of public sector corruption through the direct investigation of government officials.

Despite these constraints, the Panel was ultimately prepared to confirm the conclusions in the WJC’s Map of Facts, finding, inter alia, that Nhi Khe is a major hub for the illegal processing and retail distribution of wildlife; that the various persons of interest identified in the Map of Facts have been actively involved in illegal wildlife trade and ancillary crimes; and that these activities have occurred openly within local and provincial police jurisdiction. While the Panel acknowledged that the Vietnamese government has taken a number of positive actions towards curbing the illegal wildlife trade, it also identified various failures in Vietnam’s approach and enumerated a series of surprisingly detailed recommendations. These included measures to enforce existing laws (for instance, use of the WJC’s Map of Facts to conduct an investigation targeting individuals and networks operating in Vietnam, the pursuit of criminal prosecutions where sufficient evidence is available to support these, and the allocation of resources to detect illegal trade on social media); as well as measures to address inadequacies with the laws themselves (for instance, amending organized crime and corruption statutes to incorporate the maximum number of ancillary crimes, enacting laws to address civil asset forfeitures, and ensuring the prompt entry into force of a new penal code addressing the illegal killing and trafficking of wildlife). The Panel stressed that implementation of the recommended actions would contribute to Vietnam’s compliance with its international commitments under CITES, the UN Convention against Transnational Organized Crime, and the UN Convention against Corruption. It further encouraged the other Parties to these Conventions to take appropriate measures to support Vietnam and called upon the CITES Standing Committee to take note of its recommendations and to consider imposing trade sanctions on Vietnam.

(Photo: M. Lewis)

(Photo: M. Lewis)

Of course, the recommendations of the WJC’s Accountability Panel are in no way legally binding, and the above process was not conducted under the banner of any particular treaty or intergovernmental organization. Nevertheless, the process does appear to offer several advantages. It is considerably quicker and cheaper than bringing a case before an international tribunal, such as the International Court of Justice, and does not hinge upon states’ acceptance of jurisdiction. Unlike the compliance mechanisms that have emerged under various environmental treaties, its recommendations need not be endorsed by a body that is made up of states Parties and thus inherently political (such as a Standing Committee or Conference of the Parties), but are instead issued by a panel of independent and internationally respected experts. Further, while many treaty compliance mechanisms fail to allow NGOs to either trigger non-compliance proceedings or participate in the functioning thereof, WJC Public Hearings are arranged by an NGO and rely heavily upon public participation. Apart from giving NGOs and the broader public the opportunity to inform the Accountability Panel’s case-specific recommendations, this approach enabled the Vietnam Public Hearing to act as a platform for both shining a spotlight on the seriousness of illicit wildlife trafficking (this being an issue which often fails to receive high priority in countries’ law enforcement agendas) and exchanging ideas about how this challenge can be combated. Discussions highlighted not only the need for aggressive enforcement in consumer countries, but also a variety of other necessary measures, such as focusing on demand reduction; working with communities in supplier countries to address human-wildlife conflicts and create alternative sustainable livelihoods; and supporting collaborative, evidence-based investigations between countries in order to build intelligence along the entire trafficking chain. They further emphasized the role that states’ national laws can play in (i) pressuring other countries to address wildlife crime by providing for the imposition of sanctions against countries that undermine the effectiveness of international wildlife treaties (see, e.g., the Pelly Amendment to the US Fishermen’s Protective Act, the use of which played an important role in pressuring Taiwan to control trafficking in rhinoceros horn and tiger bone); and (ii) ‘internationalizing’ the laws of other countries by making it an offence to trade in wildlife taken/possessed/sold in violation of any foreign law, thereby enhancing states’ ability to dismantle transnational organized crime networks (see, e.g., the US Lacey Act).

Vietnam has recently engaged in a flurry of activities aimed at demonstrating its commitment to combating wildlife trafficking (including its hosting this week of the Hanoi Conference on Illegal Wildlife Trade). However, it remains to be seen whether these activities will be sustained over time and will extend to include implementation of the recommendations from the WJC’s Public Hearing. It will also be interesting to see how these recommendations are treated (if they are acknowledged at all) by future meetings of the CITES Standing Committee and Conference of the Parties, given that they did not emanate from a procedure agreed to by governments. At the very least, the WJC has demonstrated that it has a useful role to play in collecting and verifying information, as well as encouraging the international community to take a serious interest in efforts to combat illicit wildlife trade. Hopefully, the Commission’s Public Hearing procedure will also prove to be an effective catalyst for action by governments and other stakeholders.

 

 


07/08/2016

The evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation

By Jennifer Dubrulle

1. Effectiveness of non-compliance mechanisms: EU nature protection laws topdog – Bern Convention underdog?

In discussions on the protection of wild animals in Europe the Bern Convention’s[1] (non-) compliance mechanisms[2] are easily overlooked and overshadowed by those of the European Union. We all know, right, that the EU is praised for its elevated (non-) compliance mechanisms.[3]

The enforcement powers of the Standing Committee, the body entrusted with the task of monitoring the application of the Bern Convention, exercises its power in an innovate way, in particular through the case-file procedure. In the European Union, the European Commission takes up a similar role via the infringement procedure.[4]

Tag cloud of activities of the Bern Convention's Standing Committee (source: http://www.coe.int/en/web/bern-convention/institutions)

Tag cloud of activities of the Bern Convention’s Standing Committee (source: http://www.coe.int/en/web/bern-convention/institutions)

The enforcement powers of the Standing Committee, if one looks at the final result that can be obtained, are rather underwhelming. The Standing Committee cannot do much more than issue, as the appellation suggests, non-binding recommendations, only able to facilitate, rather than coerce Member States into compliance. In daily practice, however, the procedure stands out in several respects. These recommendations are more flexible than judgments are, not focusing on assessing whether legal provisions were violated, but formulating practical, tailor-made measures to address specific conservation concerns on site. In stark contrast to the EU,[5] the complainant is allowed a generous degree of participation throughout the procedure.[6] The Standing Committee treats the complainant/NGO and the Contracting Party on a more equal footing: both parties are encouraged to respond to each other’s arguments prior to the Standing Committee’s decision whether to take further measures or not. The procedure is also transparent, key documents of the non-compliance procedure are publicly available.[7] Another advantage is that the Standing Committee has extensive powers of investigation.[8]

2. Two protection pillars of which possible violation triggers non-compliance mechanisms

International, European and national wildlife laws’ basic structure is identical in the sense that these laws contain species protection provisions, protecting the animal wherever it goes (e.g. hunting prohibitions), and habitat protection provisions, protecting the areas where these animals live. The Bern Convention is not much different on this point. Once these key provisions[9] of the Bern Convention are (presumed to be) violated non-compliance mechanisms become increasingly relevant, unless a contracting party can successfully rely on an exception ground.[10]

3. The Bern Convention’s non-compliance mechanisms

The compliance tools in the Bern Convention are what one expects to find: the Contracting Parties are obliged to report on their compliance with the Convention. The Convention also provides for a, commonly encountered in MEAs, dispute settlement procedure, allowing contracting parties to designate an arbitrator to settle disputes that arise between them.[11] Rarely applied in practice, Contracting Parties are hesitant to bring each other before an arbitrator.

Interestingly, the most significant compliance tools are not explicitly provided for in the Convention.[12] There is no explicit provision for a compliance-focused procedure within the Bern Convention. The Contracting Parties, through a bold interpretation of existing Convention provisions,[13] determined that these provisions provided a sufficient basis for the development of the case-file procedure.[14]

3.1 Case-file procedure

The whole idea behind the case-file procedure is to encourage Contracting Parties to address concrete conservation problems at particular sites and the means by which to do so. Any party may refer a complaint to the Standing Committee in respect of a Contracting Party’s failure to comply with its obligations under the Bern Convention. The Secretariat, after seeking further information from the parties concerned, decides whether there are grounds for placing the complaint as a ‘file’ on the agenda of the next meeting of the Standing Committee. A threshold to determine this is to decide whether the complaint is sufficiently serious to merit international attention, considering procedures that may already be pending at the (inter) national level as well as the seriousness of the breach. If the Standing Committee chooses to open a file it may adopt specific recommendations designed to bring the state into compliance with its obligations or authorize an on-the-spot appraisal to seek further information. The Standing Committee has a broad mandate to make recommendations to individual parties and these recommendations may be site or activity specific, such as the removal of buildings on a nesting beach or rerouting a road likely to impact on a critical habitat.[15]

The Balkan Lynx Case-file demonstrates how the non-binding case-file procedure succeeds in having significant impacts in practice. The Balkan lynx, the smallest and most threatened native Eurasian lynx subpopulation,[16] consists of about 27-54 independent individuals, mostly distributed along Albania and Macedonia. The only reproductive area left is in Macedonia, in the Mavrovo National Park.  An NGO, Eco-vest, filed a complaint in 2013 because of the government’s plan to build 22 hydropower plants on the territory of the park, 2 of which are large-scale.[17] One of the large-scale plants, Boskov Most Hydro Power Plant (HPP), would be built in prime lynx habitat.[18] The complainant argued that the environmental assessment was insufficient to judge the impact of the project on in particular the lynx.[19] 2011[20] and 2012[21] Bern Convention recommendations already requested Macedonia to assess the impacts of the dams on the lynx population and take measures to maintain the ecological characteristics of the site, further strengthening the argument. The lynx is protected under Appendix III of the Convention, meaning that killing is not prohibited but that the species – at least – must be protected from danger. As the Balkan lynx is, in accordance with the IUCN red list categorization, critically endangered the project is in clear breach of the Bern Convention’s species protection provisions. The Standing Committee found it unwise to put any additional stress on the lynx and issued a tailor-made recommendation requiring that a comprehensive environmental assessment would be carried out before the project could go ahead; that in application of the precautionary principle all construction projects had to be suspended as long as the overall impact had not been fully assessed and that the World Bank (WB) and the European Bank for Reconstruction and Development (EBRD) should immediately suspend financing.[22] As a result, the EBRD[23] as well as the WB[24] suspended financing.

Balkan Lynx (Photo: Jörg Pukownik)

Balkan Lynx (Photo: Jörg Pukownik)

Over the years, the Standing Committee identified a shortcoming in the case-file procedure: it can only be started by a complaint that presumes that a Contracting Party failed to comply with Convention provisions. Because failing to honor international obligations is a serious matter, most governments refuse to admit they breached international law, making it more difficult to find effective solutions. Over the years, the Standing Committee felt increasingly reluctant to open new case-files, trying to avoid the common perception that opening a case-file means there is a presumption of breach. To circumvent this perception the Standing Committee sometimes decided to not open a case-file but investigate the matter more informally, focusing on the adoption of recommendations to improve wildlife protection in practice.[25] In 2015, so this procedure is fresh meat, the mediation procedure was formalized under the Bern Convention.

3.2. Mediation procedure

The Standing Committee formalized the mediation procedure to avoid ‘lost opportunities’, that is cases where Contracting Parties did not necessarily breach the Convention, but where intervention would be useful to achieve the Convention’s aims. The mediation procedure is meant to foster dialogue between the complainant and the government and find practical solutions, without blaming a Contracting Party.[26]

The mediation procedure is kicked off, by a Standing Committee decision, mostly after submission of a complaint that did not have enough gravitas to justify the opening of a case-file. The mediation procedure is subject to agreement of the Contracting Party involved. An expert is appointed, a so-called ‘honest broker’ who acts as a mediator.[27] All parties join a mediation visit and in the best case scenario a mediation agreement is drafted. The first mediation file, opened in 2015, ended up in a mediation agreement between a complaining Lithuanian NGO, Association Rudamina Community, which argued that the building of an overhead powerline in Lithuania would affect wild species such as high-flying birds and the European pond turtle, and the Lithuanian government.[28]

4. Conclusion

1. Not everything is what it seems

There are arguments to challenge the perception that binding instruments are preferable over non-binding instruments. Although the Bern Convention recommendations are not binding, these are flexible in their application, and, strengthened by the Standing Committee’s ability to gather information from the site in question, allow the Standing Committee to make practical, site-specific recommendations, rather than simply relying on desk studies/reports.

2.  Investors do not want to be associated with breaches of International Environmental Law

All investors in the discussed cases took international environmental law seriously. Both the WB and the EBRD backed out of the Macedonian HPP because these large-scale dams violated the Bern Convention. Large-scale projects are often at least co-financed by institutions that care about their reputation and are not insensitive, not even to, non-binding recommendations.

In short, although the Bern Convention’s added value is most apparent beyond the EU, it arguably plays, because of its practical approach, a distinct role within EU Member States as well.

5. Outstanding questions raised at the conference[29]

-      Are these two cases really indicative of the power of non-binding instruments or just outliners? A comprehensive answer to this question requires an investigation on what happened/is happening on the ground in the, as of 1 February 2016, 161 Bern Convention (possible) case-files;[30]

-      How do the EU and Bern Convention’s non-compliance mechanisms interrelate? My intuition is that the Bern Convention offers adequate relief in cases where a no-nonsense practical solution (answer to the question: ‘what do we actually have to do to improve conservation?’) to address conservation concerns on the ground and the means by which they might do so is sought. Member States that are not tempted to act on the basis of a, non-binding, reminder only might be in need of the European Union’s more coercive non-compliance treatment.

 

 

[1] This Convention, for those unfamiliar with it, is an international wildlife treaty that was adopted within the Council of Europe in 1979. The Convention attracted broad participation, with 51 parties, among which all EU Member States, most members of the Council of Europe (Russia being a notable exception) and a few African countries. For those more familiar with European law, the Bern Convention served as an inspiration for the 1992 Habitats Directive. Key provisions on species protection and habitat protection in the Bern Convention have been, along the same lines, copy-pasted into the Habitats Directive.

[2] I have drawn largely from F. Fleurke’s and A. Trouwborst’s analysis of the EU and Bern Convention’s enforcement mechanisms and Karen N. Scott’s analysis of the Bern Convention’s non-compliance mechanisms (F. Fleurke and A. Trouwborst, ‘European Regional Approaches to the Transboundary Conservation of Biodiversity: The Bern Convention and the EU Birds and Habitats Directives’, in L.J. Kotzé and T. Marauhn (eds.), Transboundary governance of Biodiversity, Brill/Nijhoff, 2014, 128-162; Karen N. Scott, ‘Non-compliance Procedures and the Implementation of Commitments under Wildlife Treaties’, in M.J. Bowman, P.G.G. Davies and E.J. Goodwin (eds.), Research Handbook on Biodiversity and Law, Edward Elgar, 2016, 425-428).

[3] Besides the legal protection offered by the European Court of Justice (CJEU), which has no equivalent in most MEAs, it is, under certain conditions, possible to directly or indirectly invoke EU law and legal instruments (such as Reg./Dir.) before national courts. The same is true for international law, such as the Bern Convention, but only in monist countries, where international law is accepted as a part of the national legal order. Another distinguishing feature of the EU (non-) compliance mechanisms is its preliminary reference procedure. If national courts have questions on the validity or interpretation of EU law they can refer these questions to the CJEU, which via a ruling, provides clarity on EU law, enhancing compliance. The Bern Convention, or most MEAs for that matter, do not have such a system.

[4] The Commission’s enforcement activities are usually triggered by a citizen’s complaint, often NGOs, reasoning that the nature protection directives have been badly applied. The Commission is happy to receive these complaints but requires the complainant to stay out of discussions on whether to look into the case and whether to take the case to the CJEU. The Commission only informs the complainant of the result of the negotiation between the Commission and the Member State. These negotiations are confidential: letters of formal notice or reasoned opinions are not made publicly available. The Commission’s enforcement powers are weakened by its lack of investigative and fact-checking powers. The Commission has no inspectors who could check the application of the nature directives within a Member State. (L. KRÄMER, ‘EU Enforcement of Environmental Laws: From Great Principles to Daily Practice – Improving Citizen Involvement’.)

[5] Ibid.

[6] Scott (n2) at 427.

[7] For the case-file documents in the Balkan Lynx and Lithuanian Powerline Project case (discussed under 3.1 and 3.2), see http://www.coe.int/en/web/bern-convention/-/35th-standing-committee-meeting (both discussed at the Bern Convention’s 35th Standing Committee Meeting, 1-4 December 2015).

[8] Scott (n2) at 246.

[9] The Convention requires the protection of all wildlife species at a level that corresponds to ecological requirements. Parties can also cater for economic needs but in case of conflict between ecological and economic considerations, priority is given to the former. Some animals are on Appendix II, making them strictly protected species. It is for those animals prohibited to be killed, disturbed, damaged etc. These species benefit from a protective shield of armor. Other wild animals are enlisted on Appendix III and do not benefit from the prohibition to be killed or captured. Populations of the latter animals have to be kept out of danger. The Convention also requires parties, in pretty generic terms, to ensure habitat conservation (art. 4). This provision has been further developed through the designation of Areas of Special Conservation Interest under the Emerald Network. In the European Union, the Natura 2000 sites are their contribution to the Emerald Network. (See Fleurke & Trouwborst (n2).)

[10] A topical example concerns the border fences that have been erected throughout Europe to control migrant streams. Although these fences might hinder wildlife, Contracting Parties might, and possibly successfully, argue that this is necessary to maintain public safety, a possible exception ground.

[11] Bern Convention, Article 18(2).

[12] Scott (n2) at 426.

[13] That is the combined reading of Article 18(1) that provides that the Standing Committee endeavors to facilitate the settlement of difficulties and Article 14 that mandates the Standing Committee to make recommendations and arrange meetings.

[14] Scott (n2) at 426.

[15] Ibid. at 425.

[16] This population is morphologically and genetically very distinct from other Eurasian lynx populations in Europe and thus a separate subspecies (a distinct phylogenetic lineage of the Eurasian lynx) to be regarded as a conservation unit. (Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Observers’ report following the on-the-spot appraisal, Report by Mr, Andràs Demeter, advisor, 35th Meeting, Strasbourg, 1-4 December 2015, 18.)

[17] Boskov Most HPP, mainly funded by the EBRD and Lukovo Pole HPP, mainly funded by the WB.

[18] Bern Convention, T-PVS/Files (2015) 36, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), On-the-spot appraisal, Report by Mr. Pierre Galland.

[19] Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Report by the Complainant Eko-svest; Also see Observers’ report (n16) at 22; On-the-spot appraisal report (n18) at 11.

[20] Recommendation No. 157 (2011) of the Standing Committee on the status of candidate Emerald sites and guidelines on the criteria for nomination.

[21] Recommendation No. 162 (2012) of the Standing Committee on the conservation of large carnivore populations in Europe requesting special conservation action.

[22] Recommendation No. 184 (2015) on the planned hydropower plants on the territory of the Mavrovo National Park (“The former Yugoslav republic of Macedonia”).

[23] E.g. news item on the Environmental Justice Atlas website confirms the EBRD decided to suspend funding for Boskov Most HPP until the results of the new environmental assessment are made available.

[24] E.g. joint press release by CEE Bankwatch Network, EuroNatur and Riverwatch confirmed that the WB withdrew funding for Lukovo Pole HPP.

[25] Bern Convention, T-PVS (2011) 14, Standing Committee, 31st meeting, Improving the Case-File System of the Bern Convention, document prepared by the Directorate of Culture and Cultural and Natural Heritage, 5-6.

[26] Ibid. at 6.

[27] Ibid. at 6.

[28]  Certain elements of the case pushed for mediation: the complaining NGO touched upon consequences the project would have on bird and animal life but data on species occurrence and the linkage to the conservation status of the species in the region is limited. Also, both the project investor, Nordic Investment Alliance, provided that its sustainability requirements were not breached and the Lithuanian Nature Fond argued the project did not violate environmental laws. Parties signed a Mediation Agreement consisting of 16 bullet points, amongst which practical recommendations: parties for instance agreed to adopt a monitoring plan for the species that are protected under the Bern Convention as well as installing flight diverters to make power lines visible to bird species. (Bern Convention, T-PVS/Files (2015) 51, Standing Committee, 20 October 2015, Mediation Procedure in the frame of complaint number 2013/5: presumed impact of a construction of overhead power lines (OHL) in an environmentally sensitive area in the Lithuanian-Polish borderland, Report of the visit, Document prepared by Mr Michael Usher, p. 14 for the Mediation Agreement.)

[29] I4th Annual Colloquium of the IUCN Academy of Environmental Law, at which this research was presented.

[30] For an overview of the (possible) files under the Bern Convention as of 1 February 2016 see:  Bern Convention, T-PVS/Inf (2016) 2, Standing Committee, 36th Meeting, Register of Bern Convention Complaints, 1 February 2016.

 — x —

This post comes down to the written script of a recent conference presentation.  The purpose of the presentation was to lay a foundation that could serve as a basis for discussions (read: this is work in progress) on the value of the Bern Convention non-compliance mechanisms compared to the EU non-compliance mechanisms (J. DUBRULLE, 2016. Not a paper tiger, but a wily lynx: the evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation, 14th Annual Colloquium of the International Union for the Conservation of Nature (IUCN) Academy of Environmental Law, Oslo (Norway), 23 June 2016). With many thanks to Arie Trouwborst and Floor Fleurke for not only giving me the idea to investigate this but also helping me out, more than one could reasonably expect, on the general outline/direction of this presentation. Credit is due to Melissa Lewis, for her valuable comments, too. Her excellent understanding of how international environmental law works in practice refined my thinking.

 

 

 


12/03/2016

New predator sniffs out the Netherlands: golden jackal adds another chapter to its mysterious range expansion

By Arie Trouwborst (TLS)

In February 2016, Dutch researchers discovered unique footage captured by some of the automatic wildlife cameras – ‘camera traps’ – they had installed in the woods to study deer behaviour. Experts abroad confirmed the initial hunch that the animal in the pictures is a golden jackal (Canis aureus). Golden jackals are canids that howl like wolves but are as omnivorous as foxes, and in size are in between the latter two. The golden jackal is sometimes called the European coyote – and the coyote itself sometimes dubbed the American jackal. The ‘Dutch’ jackal was caught on camera in the extensive woodlands of the Veluwe area, which is part of the European Union’s protected area network Natura 2000.

Photo by Miha Krofel.

Photo by Miha Krofel.

Whereas it cannot be ruled out entirely that the jackal was released by humans or escaped from captivity, there is nothing to indicate this. The assumption, therefore, is that the animal walked into the country by itself. Indeed, the sighting concerned – however spectacular – it did not come as a complete surprise. Biologists have been documenting an impressive expansion of the golden jackal’s range in the last few decades, northward and westward from its traditional distribution in the southeast of Europe. The drivers of this expansion are not yet fully understood. Jackals have already been spotted as far north as the Baltic states and even Finland, as far west as Switzerland, and as far northwest as Denmark. Different sightings in the west of Germany in 2015 suggested it was a matter of time before the first jackal would be spotted in the low countries as well.

The recent camera trap images constitute the first confirmed record of a golden jackal in the Netherlands ever. Although it cannot be ruled out that jackals inhabited the Netherlands (very) long ago, there is no evidence to indicate they did. This makes the jackal’s visit different from the lone wolf (Canis lupus) that made a brief but exciting trip through the Netherlands last year. As discussed in a previous blog, wolves were part of the native fauna of the Netherlands until they were exterminated in the 19th century. The expected colonization of the Dutch countryside by wolves is therefore a proper comeback.

Given that the Netherlands constitute apparent terra incognita for golden jackals, the question arises how the species’ arrival should be appraised, and what government policy regarding the species would be most appropriate. This question has been faced in quite a few countries where jackals turned up beyond the species’ known historic range in recent years. In particular the question whether such animals are to be considered as an ‘alien species’ – whether invasive or not – has been a source of confusion. Such confusion is unnecessary. Widely accepted definitions agreed under international legal instruments (e.g., Convention on Biological Diversity, Bern Convention on the Conservation of European Wildlife and Natural Habitats) make it quite clear that the term ‘alien species’ only encompasses creatures originating from introductions outside their regular range by man. Jackals that have arrived on their own feet should thus not be regarded as such, and are not subject to international commitments concerning the control or eradication of invasive alien species.

The legal status of the golden jackal in the national legislation of the many countries where jackals have been recorded varies considerably. However, current international legal obligations limit the freedom of countries to decide how they wish to deal with golden jackals, including recently arriving ones. In general terms, the Bern Convention requires European states to keep jackal populations out of danger. Moreover, in EU member states like the Netherlands, the Habitats Directive imposes distinct limitations on national policy and management options regarding the golden jackal, including in scenarios where jackals are spreading to areas without historic records of their presence. The species is listed as a ‘species of Community interest’ in Annex V of the Directive. As the jackals venture across the EU, the corresponding legal regime travels along with them. For EU member states, this entails that any killing of golden jackals must be compatible with the maintenance or achievement of a favourable conservation status. To ensure this, the species must be systematically monitored. National policies preventing golden jackals from settling down and aiming for the species’ eradication are incompatible with obligations under EU law.

 Meanwhile, we can take comfort from the notion that our camera-trapped jackal is probably still out there somewhere, trotting along, sniffing for edibles and eventually a mate to settle down with, and blissfully unaware of the legal issues it is raising.

- – - x – - -

For more detailed discussion of the golden jackal’s European range expansion and the associated legal issues, see:

A. Trouwborst, M. Krofel & J.D.C. Linnell. 2015. Legal Implications of Range Expansions in a Terrestrial Carnivore: The Case of the Golden Jackal (Canis aureus) in Europe. 24 Biodiversity and Conservation 2593-2610

 


05/02/2016

Towards an International Liability and Compensation Regime for Offshore Oil Accidents?

By Yuan Yang

Oil spills (which, for the purposes of this note, are defined as those marine oil spills that occur in oil and gas operations – i.e. during exploration, exploitation and production) usually show as a series of crude oil releasing from offshore installations (drilling rigs, platforms, vessels) and pipelines. Spills, including both small leaks and accidental discharges (with explosions, fires, blowouts, collision, etc.), can contaminate vast offshore and coastal areas, kill countless wildlife (sea birds, mammals, shellfish and other organisms), and disrupt fishing, transport, recreation, and other activities. Over the past decade, accidents on offshore oil platforms (Australia, 2009; United States, 2010; China, 2011; Brazil, 2012) have led to dramatic consequences. At the same time, offshore operations are being carried out from shallow coastal areas to areas of deep water (over 500 meters below sea level), which undoubtedly brings more difficulties to remedy oil spill damages when extreme accidents occur.

(Photo by Flickr user Bryan Burke)

(Photo by Flickr user Bryan Burke)

The problem is that there is presently no international liability and compensation regime covering those oil spill accidents that occur in offshore extractive activities; with attempts to establish such a regime having been unsuccessful. In 1977, the Committee Marine International (CMI) drafted a Convention on Offshore Mobil Craft, also known as the Rio Draft, at its Conference in Rio de Janeiro. As the Rio Draft model of incorporation by reference could not “produce a practical regime suitable for offshore units”, the draft convention text was further revised in 1994, then accepted by the CMI, and became known as the Sydney Draft. However, the International Association of Drilling Contractors and the United States Maritime Law Association insisted that a comprehensive international treaty for oil installations is unnecessary, and this resistance led to the removal of the Sydney Draft from the IMO long-term working plan. Although efforts to establish an international convention for offshore installations were officially ceased, a CMI working group and the Canadian Maritime Law Association developed the Draft Convention on Offshore Units, Artificial Islands and Related Structures Used in the Exploration for and Exploitation of Petroleum and Seabed Mineral Resources 2001 (‘Canadian Draft’), comprehensively covering various aspects of oil installations, including poverty, registration, privileges, mortgages, civil and penal jurisdiction to salvage, pollution and liability for leakage aspects. At the 2004 CMI Conference in Vancouver, the majority of participants supported this draft convention received, despite continued strong opposition from the United States. Finally, participants of the conference agreed to work continually towards improving this document.

Due to different levels of offshore industry development, as well as different interests among countries, historical practices did not successfully establish an international liability and compensation regime for offshore oil accidents, whereas some private agreements operating at the regional level have shown a great deal of advantages in liability distribution and effective compensation for offshore oil pollution. Since 1 May 1975, a private agreement between operators of offshore facilities, called the Offshore Pollution Liability Agreement (OPOL) of the United Kingdom, has been in effect. The agreement has worked well up to date, providing for a limited amount of liability for incidents involving the escape or discharge of oil from offshore facilities. The agreement has subsequently been extended to offshore facilities within the jurisdictions of Denmark, the Federal Republic of Germany, France, the Republic of Ireland, the Netherlands, Norway, the Isle of Man, the Faroe Islands and Greenland, but excluding offshore facilities located in the Baltic and Mediterranean Seas, and can be extended so as to apply to offshore facilities within the jurisdiction of any other state. In terms of compensation, the OPOL establishes a current maximum of 250 million USD per incident, subject to a few exceptions, for pollution damage and the cost of remedial measures incurred. Each operator accepts strict liability.

However, do private agreements suit all the regions with potential risks of offshore oil spills? Obviously, liability and compensation for offshore oil accidents are not strictly legal problems, but also relate to a political issue: States do not want to relinquish sovereignty over their continental shelves and Exclusive Economic Zones, and resist subscribing to an international convention regarding those offshore extraction activities, because they understand international law may limit the jurisdictional powers over their sovereign areas. However, as risks of offshore oil spills increase, a unified international regime is likely the most effective method to provide adequate and fair compensation for the oil pollution damages in member states. One reason for this is that offshore oil and gas industries are usually operated by multinational corporations, which could bring difficulties to making compensation claims when an oil spill accident occurs. Especially for developing countries, poor international and national regulations both limit victims’ ability to be compensated for damages suffered and allow multinational corporations to earn economic profits without taking responsibility for oil pollution. Another reason is that offshore oil accidents may cause transboundary pollution, and without a unified international compensation standard, the laws applicable to oil pollution have become a controversial issue among states. Furthermore, with offshore industries expanding their activities to the high seas and polar areas, international regulations will be of significant importance to prevent and control the potential risks of offshore oil accidents in the global commons. All these reasons together demonstrate that the negotiation of a convention on offshore extractive activities should be placed on the international agenda.

References

* Preben Hempel Lindøe, Michael Baram and Ortwin Renn: Risk Governance of Offshore Oil and Gas Operations (Cambridge 2014).

* The Offshore Pollution Liability Association Ltd, available at http://www.opol.org.uk/about-1.htm.

* Jacqueline Allen, ‘A global oil stain – cleaning up international conventions for liability and compensation for oil exploration/production ‘, (2011) 25 Australian and New Zealand Maritime Law Journal 90-107, at p. 91.

* Position paper of the Iberoamerican Institute of Maritime Law in relation to the need of an international convention on the offshore extractive activity promoted by the IMO, Legal Committee, 102th session, Agenda item 11.


20/12/2015

The Paris climate agreement: Some hesitations from a legal perspective

By Jonathan Verschuuren (TLS)

by Jonathan Verschuuren and Jesse Reynolds

Reason to celebrate?

Reason to celebrate? (Photo via UNFCCC)

Bringing the entire international community to agreement on a legally binding international environmental instrument is an extraordinary achievement. The primary achievement is not so much its substance, but the simple fact that there is a new agreement that offers a way forward that is endorsed by representatives of all countries. The Paris climate agreement establishes the contours of a future ongoing process for cutting greenhouse gas (GHG) emissions. The next ten to twenty years will show whether this actually significantly reduces climate change. The drawback of such an agreement that is acceptable to every state is that it must be modest in its commitments. Indeed, many original elements had to be deleted or watered down considerably.

Can the agreement [PDF] achieve its goal, that of holding the increase in global average temperature to below 2 degrees Celsius, and ideally even to 1.5 degrees Celsius? The unfortunate truth is that doing so seems to be unattainable unless we allow overshooting [PDF].  That means that we would initially go beyond atmospheric GHG concentrations that would lead to 2 degrees, but then later lower them. This would require the rollout of “negative emission technologies” that could remove carbon dioxide—the leading GHG—from the atmosphere. Article 4 implicitly endorses this, stating that in the second half of the century a balance should be achieved between anthropogenic (i.e.human-caused) GHG emissions and “removals by sinks.” Article 5 (as well as the original UN Framework Convention on Climate Change [PDF]) call for “sinks and reservoirs” of GHGs to be enhanced as well, something which many negative emission technologies would strive to do. However, these techniques remain untested and potentially risky at such scales.

Furthermore, the agreement’s commitments with regard to GHG emission cuts (called “mitigation” in climate-speak) lack clear focus. States are to make voluntary pledges, called Nationally Determined Contributions (NDCs). This bottom-up approach is not entirely new, as these were the outcome of the 2009 Copenhagen climate summit. The pledges that have since been submitted are estimated to lead to a 2.7 to 3.7 degree temperature rise by the end of this century. Countries are to submit new, more ambitious commitments every five years. Although this seems tepid, it is arguably the best that could be expected from an agreement with global participation. For the most part, countries are simply unwilling to undertake costly major GHG emissions cuts while their economic competitors do not. At the same time, this system of stepwise “ratcheting up” might be able to provide decision makers with assurance that all other countries are also taking action.

The effectiveness of this instrument thus still needs to be proven. Several mechanisms are in place to at least monitor the implementation of the NDCs. In 2023, the first “global stocktaking” will be performed “to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals” (Art. 14). The outcome of this will merely “inform” countries in updating and enhancing their policies, “in a nationally determined manner” (Art. 14.3). The enforcement provision was diluted considerably as well. Article 15 now just states that there will be a committee of experts that will facilitate compliance, “in a manner that is (…) non-adversarial and non-punitive.” It is unfortunate that the expertise that was built up within the Kyoto Protocol’s Enforcement Branch will not be better utilized under the Paris Agreement. Without a proper enforcement mechanism it remains to be seen how effective the NDCs will be.

Without a collective emissions reduction target, and instead a rather vague (and unattainable) target, one might wonder how national authorities are to decide which targets they should each adopt. Mitigation policies are typically long-term ones that require a clear path for several decades, with associated planned measures and available funds. Fortunately, several countries have recognized this and have laws that do that. The United Kingdom is a prime example, with its 2008 Climate Change Act, which plans ahead until 2050, when an 80% emission cut is to be achieved (relative to 1990). The EU as a whole has set GHG emissions targets for 2020, 2030, and 2050 (20%, 40%, and 80% GHG emissions reduction, respectively, relative to 1990 levels). The Paris summit showed that the international community as a whole is not willing to adopting such commitments in a binding fashion.

Ultimately, the Paris Agreement does not bring much that is truly new. It mostly codifies what has been developed over the past years under the UN process. This is true not only for GHG emissions cuts, but also for other topics such as adaptation, finances, technology transfer, and loss & damage. The work that is already being done under the existing mechanisms, such as the Financial Mechanism, the Technology Mechanism, and the Warsaw International Mechanism for Loss and Damage, is reaffirmed  in a binding legal document, albeit in rather soft language that often utilizes the verb “should” instead of “shall.” However, the proposal to codify the emerging scheme on “Reducing Emissions from Deforestation and Forest Degradation” (REDD+) did not survive the Paris negotiations, nor did the proposal to set up a Climate Change Displacement Coordination Facility. Both of these topics are important and bound to return to the negotiating table in future years.

Although Paris means a step forward, the reality is that the international community is unwilling to do what is needed and justified in order to prevent dangerous climate change. To a large degree, this can be explained by the fact that climate change presents an extremely difficult—if not “wicked”—problem. Genuinely effective action would require that leaders take steps whose costs are borne in the short term by their constituents but whose benefits are shared by the whole world and experienced in the future. Such bold decision-making would likely come at a steep political price. In the meantime, voluntary but hopefully escalating commitments may be best that we—and future generations—can expect.

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