Environmental Law

19/11/2016

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

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 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)

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.

10/11/2016

WTO limitations for domestic climate smart agriculture policies

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

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

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

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

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

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

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

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

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

————————–

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

07/08/2016

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

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)

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)

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 35^th 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, 35^th 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, 31^st 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, 36^th 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.

25/07/2016

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

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

Sunset over rural Australia (Photo: J. Verschuuren)

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

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

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

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

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

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

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

——————————-

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

24/05/2016

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

Not many countries have regulatory schemes in place aimed at reducing greenhouse gas emissions from agriculture. As indicated in the blog on the Paris Agreement and agriculture, the agricultural sector is responsible for almost 25% of anthropogenic GHG emissions, both through CO₂ emissions caused by deforestation and peatland drainage, and through methane (NH₄) emitted by livestock and rice cultivation, as well as through nitrous oxide (N₂O) emissions caused by the use of synthetic fertilizers and the application of manure on soils and pasture. There is a dark cloud hanging over this because emissions are expected to rise over the coming years and decades because of an expected sharp rise in food demand. The Australian Climate Change Authority, in a 2014 climate change policy review for that country, for example, reports that the agricultural sector is expecting a doubling of demand for agrifood commodities in emerging economies in Asia, particularly China and India. It is expected that Australia is in a good position to meet this increased demand, as a consequence of which Australia’s production of agrifood is expected to increase by 77% in 2050 (from 2007 level). The Climate Change Authority in its  report is pessimistic about what that means for climate change. Because of the strong economic incentives of the global food market, increasing emissions are inevitable: the expected production growth is likely to offset emission reductions achieved through the introduction of climate smart agriculture practices and technologies.

Photo by Flickr user Oli.

Doing nothing, however, is no option, as this will lead to an even bigger rise in emissions. And what is more: the agricultural sector has the potential to store large quantities of carbon in soils and vegetation. Domestic regulators, however, have been reluctant to address agricultural emissions, partly because of regulatory difficulties. It is, for example, difficult to measure emissions at the individual farm level since a variety of factors determine the amount of emissions (such as the diet of individual animals, soil composition, weather systems of individual regions, the way in which fertilizer is applied, etc.). In addition to emissions, removals are relevant as well since crops and other vegetation absorb CO₂ from the air, and lots of carbon is stored in soils (more carbon is stored in soils than what is present in vegetation and the atmosphere). Soil carbon may be released, or remains there, or is increased, depending on how you manage the land.

A growing number of countries is setting up regulatory schemes aimed at reducing emissions from agriculture, mostly in the form of an offsets scheme linked to emissions trading. Under these schemes, industries and energy producers can buy credits generated by agriculture, and use these partly to comply with their obligation to hand in allowances equal to their emissions. This is the case in California, Quebec, Alberta, and Ontario. Under the California ETS, two types of agricultural offset projects are accepted, both aimed at reducing methane emissions: biogas systems in dairy cattle and swine farms, and rice cultivation projects. In Alberta, agricultural offsets include a wide range of projects: nitrous oxide emission reductions, biofuel production and usage, waste biomass projects, conservation cropping, several types of projects concerning beef production, projects aimed at reducing emissions from dairy cattle and biogas production.

The country with the longest experience in this area, however, is Australia. Despite the country’s much criticized poor overall climate policy, Australia adopted a Carbon Farming Initiative (CFI) as early as 2011, which spurred farmers into action and, therefore, potentially provides the rest of the world with a model to reduce emissions from agriculture. In 2011, the CFI originally was set up as an offset scheme under its ETS. Since the repeal of the ETS in 2015 (just before trading was set to start), the initiative, now called Emissions Reduction Fund (ERF) functions on its own and is enjoying rapidly increasing attention from farmers.

Instead of having to rely on the (unreliable) international carbon market, under the ERF farmers can offer the credits that they generated to the government through reversed auctions. Farmers can obtain credits for both emission avoidance projects and sequestration projects and offer these credits to the government. The government buys up credits from projects that achieved the biggest emissions cuts against the lowest costs. Agricultural emission avoidance projects mostly focus on methane emissions reductions: methane capture and combustion from livestock manure and methane emissions reduction through manipulation of digestive processes of livestock. A third important emission avoidance project for the agricultural sector is the application of urease or nitrification inhibitors aimed at reducing fertilizer and manure emissions. Sequestration projects are for example projects aimed at sequestering carbon in soils in grazing systems, on farm revegetation, rangeland or wetland restoration, the application of biochar to the soil, and the establishment of permanent plantings on farmland.

Since 2011, an enormous amount of expertise has been built up in Australia, and a very elaborate and effective regulatory system has been developed that on the one hand seems to ensure a high level of environmental integrity, while on the other hand not overburdening farmers with costly administrative obligations. The Australian scheme, therefore, is an interesting example for the rest of the world, particularly for the EU, that has yet to tackle emissions from agriculture. A government funded, project based system of emissions reductions seems to fit well in the EU’s Common Agricultural Policy.

In May 2016, the results from the latest auction were released. After three auctions a total of 309 carbon abatement contracts have been awarded by the Australian government to deliver more than 143 million tonnes of CO₂ equivalent abatement, earning the project proponents a total of A$1.7 billion (about € 1 billion). The vast majority of abatement is by vegetation projects, which often are on farmland (but not always). Carbon farming has grown into an important new income stream for farmers in Australia. In a country prone to droughts, floods and bush fires, the scheme, therefore, not only helps to reduce emissions from agriculture, it also assists in diversification of agricultural practices and leads to a more resilient sector.

—————————————-

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

26/04/2016

Solar Climate Engineering and Intellectual Property

A schematic of stratospheric aerosol injection climate engineering. Image by Hugh Hunt, Creative Commons Attribution-ShareAlike 3.0 Unported.

Climate change has been the focus of much legal and policy activity in the last year: the Paris Agreement, the Urgenda ruling in the Netherlands, aggressive climate targets in China’s latest five year plan, the release of the final US Clean Power Plan, and the legal challenge to it. Not surprisingly, these each concern controlling greenhouse gas emissions, the approach that has long dominated efforts to reduce climate change risks.

Yet last week, an alternative approach received a major—but little noticed—boost. For the first time, a federal budget bill included an allocation specifically for so-called “solar climate engineering.” This set of radical proposed technologies would address climate change by reducing the amount of incoming solar radiation. These would globally cool the planet, counteracting global warming. For example, humans might be able to mimic the well-known cooling caused by large volcanos via injecting a reflective aerosol into the upper atmosphere. Research thus far – which has been limited to modeling – indicates that solar climate engineering (SCE) would be effective at reducing climate change, rapidly felt, reversible in its direct climatic effects, and remarkably inexpensive. It would also pose risks that are both environmental – such as difficult-to-predict changes to rainfall patterns – and social – such as the potential for international disagreement regarding its implementation.

The potential role of private actors in SCE is unclear. On the one hand, decisions regarding whether and how to intentionally alter the planet’s climate should be made through legitimate state-based processes. On the other hand, the private sector has long been the site of great innovation, which SCE technology development requires. Such private innovation is both stimulated and governed through governmental intellectual property (IP) policies. Notably, SCE is not a typical emerging technology and might warrant novel IP policies. For example, some observers have argued that SCE should be a patent-free endeavor.

In order to clarify the potential role of IP in SCE (focusing on patents, trade secrets, and research data), Jorge Contreras of the University of Utah, Joshua Sarnoff of DePaul University, and I wrote an article that was recently accepted and scheduled for publication by the Minnesota Journal of Law, Science & Technology.  The article explains the need for coordinated and open licensing and data sharing policies in the SCE technology space.

SCE research today is occurring primarily at universities and other traditional research institutions, largely through public funding. However, we predict that private actors are likely to play a growing role in developing products and services to serve large scale SCE research and implementation, most likely through public procurement arrangements. The prospect of such future innovation should be not stifled through restrictive IP policies. At the same time, we identify several potential challenges for SCE technology research, development, and deployment that are related to rights in IP and data for such technologies. Some of these challenges have been seen in regard to other emerging technologies, such as the risk that excessive early patenting would lead to a patent thicket with attendant anti-commons effects. Others are more particular to SCE, such as oft-expressed concerns that holders of valuable patents might unduly attempt to influence public policy regarding SCE implementation. Fortunately, a review of existing patents, policies, and practices reveals a current opportunity that may soon be lost.   There are presently only a handful of SCE-specific patents; research is being undertaken transparently and at traditional institutions; and SCE researchers are generally sharing their data.

After reviewing various options and proposals, we make tentative suggestions to manage SCE IP and data. First, an open technical framework for SCE data sharing should be established. Second, SCE researchers and their institutions should develop and join an IP pledge community.  They would pledge, among other things, to not assert SCE patents to block legitimate SCE research and development activities, to share their data, to publish in peer reviewed scientific journals, and to not retain valuable technical information as trade secrets. Third, an international panel—ideally with representatives from relevant national and regional patent offices—should monitor and assess SCE patenting activity and make policy recommendations. We believe that such policies could head off potential problems regarding SCE IP rights and data sharing, yet could feasibly be implemented within a relatively short time span.

Our article, “Solar Climate Engineering and Intellectual Property: Toward a Research Commons,” is available online as a preliminary version. We welcome comments, especially in the next couple months as we revise it for publication later this year.

12/03/2016

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

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.

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 19^th 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?

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)

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.

02/02/2016

The Paris Climate Agreement: silent about agriculture

In our previous blog on the Paris Climate Agreement, we already showed that there are important things missing from the Agreement, such as a collective emissions reduction target and a proper enforcement mechanism. This time, I would like to focus on another missing and completely underestimated issue: the impact of climate change on agriculture and vice versa.

Photo by Flickr user philHendley

The very few references that earlier versions of the negotiating texts made to agriculture all disappeared from the Agreement. As a consequence, the Agreement does not mention agriculture at all. This is a missed opportunity. There are pressing reasons for the international community to start regulating both emissions from agriculture and adaptation in this sector. The agricultural sector is responsible for almost 25% of anthropogenic GHG emissions, both through CO₂ emissions caused by deforestation and peatland drainage, and through methane (NH₄) emitted by livestock and rice cultivation, as well as through nitrous oxide (N₂O) emissions caused by the use of synthetic fertilizers and the application of manure on soils and pasture. The latter two substances have a 25 times and 300 times stronger impact on the climate than CO₂ respectively. With a sharp rise in food demand ahead of us, these emissions can be expected to go up drastically when no regulatory caps are in place.

Agriculture is also among the sectors that will suffer the largest negative impacts of climate change, for which, consequently, huge adaptation efforts are needed. Local temperature increases of 2°C or more without adaptation will negatively impact production of the major crops in tropical and temperate regions (wheat, rice and maize) and irrigation demand will increase by more than 40% across Europe, USA, and parts of Asia. The negotiators of the Paris Climate Agreement were worried about the food security issues and mentioned in the preamble that they recognize the fundamental priority of safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change. This is a much weaker version, though, of an earlier proposal to include a binding adaptation goal in the Agreement on “maintaining food security”. The first part of the preambular provision on food security seems to imply that maintaining food security might be a reason to not impose mitigation measures on the agricultural sector. In the negotiating texts, food production regularly emerged as a limiting factor to mitigation actions. In the final version of the Paris Climate Agreement, only one such reference survived. One of the objectives of the Agreement, laid down in Article 2, is: “Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production”.

Given the contribution of agriculture to climate change and the impact of climate change on agriculture, it is disappointing that so little attention is paid to agriculture in the Paris Climate Agreement, as this document is expected to set the tone for the world’s climate policies of the coming years.

The European Union opted for a much firmer approach toward agriculture. In the run-up to the Paris Climate Agreement, the European Commission announced that it would encourage “climate friendly and resilient food production, while optimising the sector’s contribution to greenhouse gas mitigation and sequestration.” For example, it proposed to include cropland and grazing land management in its policy from 2020, developing instruments to do so before 2020. The EU even proposed to focus its future climate change instruments on all agricultural activities, such as enteric fermentation, manure management, rice cultivation, agricultural soils, prescribed burning of savannahs, field burning of agricultural residues, liming, urea application, other carbon-containing fertilisers, cropland management and grazing land management and “other.” As a consequence, the EU proposed to fully include agriculture in the Paris Climate Agreement in two ways: as a source of greenhouse gas emissions, and as a means of CO₂ absorption and sequestration. This would mean that the agricultural sector has to undergo a drastic transition from conventional farming to farming using climate smart agricultural practices.

The above account of what survived the negotiations shows that the EU negotiators were not able to convince the others of the importance of including agriculture in the Paris Climate Agreement.

The fact that the Paris Climate Agreement does not pay attention to agriculture, however, does not mean that the document will not be important for the sector at all. Article 4 states that a balance needs to be achieved between anthropogenic emissions by sources and removals by sinks of greenhouse gasses in the second half of this century, in order to hold the increase in the global average temperature well below 2°C. It is obvious that this automatically implies that drastic mitigation actions are needed to reduce emissions from a sector that is responsible for almost 25% of the greenhouse gas emissions. Apparently, the world leaders were afraid to tell you…

Similarly in the area of adaptation, the silence about agriculture does not mean nothing will happen. Many of the provisions on adaptation and finance aim at giving increased support to developing countries to meet their adaptation needs, both through greater emphasis on providing financial resources and through the transfer of technology and capacity building. Given the impact of climate change on agriculture and the dependence of developing countries on this sector, it is beyond doubt that implementation of these new provisions will in fact largely focus on agriculture. The same might be true for the role National Adaptation Plans will play. Article 7(9) of the Paris Climate Agreement requires states to have such a plan aimed at building the resilience of “socioeconomic systems”. Agriculture definitely falls in this category.

Within only two decades a drastic transformation of the entire agricultural sector across the world, in developed and developing countries, is needed. This requires tremendous efforts of policymakers, farmers and the entire agribusiness. Let us hope that, despite the remarkable and regrettable silence of the Paris Climate Agreement about agriculture, states understand the urge to start to develop effective policies aimed at reducing emissions from agriculture while at the same time helping the sector to become more resilient to climate change.

—————————————-

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

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”.