Environmental Law

21/12/2015

The EU Regulation of Genetically Modified Organisms in 2015: at the Crossroad of History

The EU authorization of genetically modified organisms (GMOs) is the most strange and controversial area in the whole EU law system: the scientists are seriously distrusted by the general public, the authorization procedure is ‘unreasonably’ paralyzed or delayed, and the authorized GM products are banned by Member States without legitimate reason. But this is not the case in any other field of innovative technology or environmental law, and cannot be explained simply by precautionary principle or political pressure. This conundrum has puzzled the EU policy makers and lawyers for many years, and 2015 is a crucial year of fundamental reform. With the introduction of the opt-out clause, Member States now have freedom to ban GMOs without recourse to scientific evidence. Such a move may also cause negative effects concerning the EU internal market law and its obligations under the WTO law. We are now standing at the crossroad of history.

GMO is defined as “an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination”.^[1] The commercial application of GM technology in the agricultural sector can introduce many desirable traits into one single crop, thus has huge economic, health and environmental benefits. At the same time, people are also concerned about its potential environmental and health risks, as well as some ethical and socio-economic issues. Under the current EU law, both GM crops and foods/feeds must go through the authorization procedure before marketing. This involves two stages of decision-making: a scientific assessment about their safety and a political vote about their overall acceptability. However, in the past voting, because Member States were deeply divided in their opinions, there were hardly any qualified majority reached in the authorization procedure. In the end, it is always the Commission makes the decisions, which are based on the scientific reports of the European Food Safety Authority (EFSA) and usually grant the authorizations. This fact (purely science-based decisions, at least on the surface) triggers many Member States’ objections and the Council’s reactions. As a result, the authorization of GM food/feed is seriously delayed, and the authorization of GM crops is totally paralyzed, which are in violation of the EU law. But the Commission could not do anything about it because the Member States’ ‘illegal’ actions were backed by the Council.^[2]

After many years’ tough negotiations and some small legal revisions, in March 2015 a fundamental legal reform called ‘opt-out clause’ was agreed by all Member States and enacted by the Commission.^[3] According to this new legislation, on the issue of GMO cultivation, Member States pro- and anti-GMO are finally unleashed from the political disputes and formally part with each other. For anti-GMO countries, they can now ban GM crops even after authorization without any need of scientific evidence. This can be done either by a blanket withdrawal from all the future authorizations (without need of giving any reason) before 3 October 2015, or (after that date) by quoting some ‘compelling’ socio-economic reasons listed in the legislation in individual case. As a result, 17 out of the 28 Member States have totally opted out on all their territories in this way,^[4] while 3 kingdoms of the UK (Scotland, Wales and Northern Ireland, leaving only England to be willing to cultivate GMO) and the French-speaking Wallonia region of Belgium also declared to be GMO-free.^[5] For pro-GMO countries, it is expected that the paralysis in the GMO authorization can be unblocked so that more GM crops can be authorized and cultivated.

However, this move also brings about legal uncertainties and new challenges. First, it is hard to say the opt-out clause is conform to the EU internal market law. It is rather to say that it is an exception to the principle of free movement of goods based upon all Member States’ political endorsement.^[6] Some Member States and MEPs also would like to opt out for GM food/feed, but such requests were firmly rejected by the European Parliament’s Environmental Committee on the grounds of protecting the EU internal market. This shows that the EU policy makers are very aware that the political exception to the internal market rule cannot be too wide. Second, the opt-out clause is also against the EU’s obligations under the WTO law, especially after the famous US-EU Biotech case in 2006. There is no way to defend in this respect, people just hope the EU will not be sued by the Unites States (and other GMO-producing countries) for two practical reasons: (1) more GM crops will be cultivated in pro-GMO countries, which will hopefully make up for their losses; (2) the import of GM crops is relatively a small part of business (compared to GM products). Third, whether the principle of proportionality is applicable in the scenario of GMOs is also a big issue. It is uncertain at this moment whether Member States’ blanket ban of GM crops (without even giving reasons) would be challenged in the EU courts. Last, the increased cultivation in pro-GMO countries and the total ban in anti-GMO states will expose the sensitive issue of cross-border coordination and the potential liability arising out of GMO ‘contamination’.

In sum, the whole EU GMO regulatory framework stands at the crossroad of history and is facing new possibilities and challenges. Instead of one unified procedure, now the EU regulation of GMOs is running on double trajectories. In the coming few years we will witness how this new approach addresses the needs and pressures from inside and outside EU.

[1] Article 2(2), Directive 2001/18/EC.

[2] It is illegal because these Member States do not have scientific evidence to support a prohibition or restriction to the free movement of an authorized goods in the EU internal market.

[3] Directive (EU) 2015/412.

[4] These Member States include: Austria, Bulgaria, Croatia, Cyprus, Denmark, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland and Slovennia.

[5] Reuters.com by Barbara Lewis, ‘Majority of EU Nations Seek Opt-Out from Growing GM Crops’, 2015.10.04, available online at: http://www.reuters.com/article/2015/10/04/us-eu-gmo-opt-out-idUSKCN0RY0M320151004#xu0BYp9saiqghPUK.97 (last visited on 2015.11.08).

[6] The Commission indicates that the legal basis of opt-out clause could be Article 2 TFEU, which is a new provision introduced by the Lisbon Treaty. The third sentence of Article 2 (2) TFEU reads: “the Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence”.

20/12/2015

The Paris climate agreement: Some hesitations from a legal perspective

by Jonathan Verschuuren and Jesse Reynolds

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.

01/12/2015

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

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

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

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

Amendments to AEWA’s Annexes

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

Guidance

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

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

International species action and management plans

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

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

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

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

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

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