Managing compliance with international biodiversity law (IBL)

IEL in this area is articulated around different pillars: protection of species, safeguarding of biodiversity and protection of sites. This particular structure translates into complex regulatory regimes, which incorporate a diversity of compliance techniques. Furthermore, when it comes to compliance with international biodiversity law there are clear interlinkages with other areas of IEL and international law, such as global animal law and international cultural heritage law.

In terms of the regulatory approaches to protecting biodiversity in international law, the first consisted in the management of biodiversity from a natural resources perspective. Under this approach, the central objective was to allocate quota and regulate economic activities. The paradigmatic example of this is the Whaling Convention which then, through the implementation of moratorium, operated a shift towards a more protective approach. Evidently, in this case, the successful strategy consists in the moratorium shaping a new function of the Convention, turning it into an authentic conservation instrument. Nevertheless, the controversy between commercial and the scientific purposes subsists,

Biodiversity 253 as evidenced by the ICJ Ruling.[1] Compliance is measured by the achievement of targets set for States regarding resources within the jurisdiction of one State or shared by different States. In this area, the function of IEL mainly consists in managing the exploitation of an endangered resource. Legal techniques deployed in this regard include, amongst others, setting exploitation quotas (by species, region, or State, etc.), indicating the methods and technologies allowed for resource exploitation, setting specific periods and determining in which areas these activities will take place.11 More recently, international legal instruments on biodiversity have encompassed preventative techniques by incorporating the requirement of environmental impact assessments across the field of biodiversity. Another preliminary question to be examined concerns the definitions used in IEL that, in turn, would lead to the choice of appropriate regulatory techniques and compliance mechanisms. IEL scholars point out the differences between ‘site’, ‘habitat’ and ‘ecosystem’ as the relevant categories to be considered in the regulation of biodiversity. In the panoply of instruments regulating the field, ‘natural site’ in IEL is a predominant category, used to protect an area for its biodiversity and natural value, which is slightly different from the conceptualisation of ‘site’ (both natural and mixed) safeguarded under the World Heritage Convention, which factors in the cultural and human dimensions from a more anthropocentric perspective. In turn, the term ‘habitat’ has a more general application, being used to preserve natural conditions necessary for certain species within a geographical area or for a particular sub-species within a determined geographical location. An example of this generic protection type is the Ramsar Convention, which, for the inclusion of wetlands on the list, relies on a definition of the protected wetland with reference to ‘ecology, botany, zoology, limnology or hydrology’. Another category used is ‘ecosystem’, which is broader in scope and more holistic. It comprises not only the natural elements but also their respective interactions and their overall function as a whole.

Different categorisations determine differential regulations, and there is a considerable overlap between the various regimes. The ‘site’ approach has been pervasively used under the WHC and EU Environmental law, with lists, classifications and actions to be taken when there is no correspondence with the criteria set. In turn, the habitats definition with a broad and a specific meaning has been included under several compliance mechanisms. Different legal techniques are used to protect the sites, translating in the creation of protected areas and ‘buffer zones’ under various MEAs (World Heritage Convention, the Man and the Biosphere regime, the Ramsar Convention, and the Convention on Migratory Species), creating a matrix with ‘substantial overlaps, whereby individual sites can be listed under numerous regimes’.[2] The seemingly predominant approach is the ecosystem approach, used as a framework for environmental governance ‘for the integrated management of and, water and living resources’. Resources can be understood and defined in different manners as natural resources, biological resources, species and genetic resources.

Trade-related measures draw on IEL and international trade law to harness the protection of biodiversity, using them to reduce the exploitation of species and resources, and prevent risks caused by the introduction of invasive species, which may hinder the ecological balance of the ecosystem. This can lead to restrictions on the export and/or import of specimens of selected species or specific measures adopted with regard to certain specimens, as contemplated in the periodical reports by the Committee on Trade and the Environment of the WTO.

Although a bit generic, the classification of regulatory approaches into regulation and management of exploitation or harvest, protection of spaces

Biodiversity 255 and regulation of trade, offers an appropriate analytical framework to unpack the question of compliance under international biodiversity law.[3] Each regulatory approach corresponds to a different compliance mechanism and define measures that can be taken against States. With regard to the measures, various categorises have been proposed, such as the differentiation between measures regulating direct threats and those addressing indirect threats. The distinction is theoretical, and, in some cases, there is not a clear-cut choice in favour of a particular regulatory approach but rather a combination of the different regulatory approaches and measures. Often, there is a mix between the regulation of exploitation and trade along with protective measures, as shown by CITES or the CBD, regimes in which the protection of the resources/species intersect with the protection of the ecosystem.

According to this, the usual examples are those concerning the regulation of the exploitation and management of fisheries, governed by the UNCLOS and other related institutional frameworks, such as the Whaling Convention and the Northwest Atlantic Fisheries Organization (NAFO) and the 1995 Straddling Fish Stock Agreement, correlative measures against illegal, unregulated and unreported fishing activities. These regimes seek to regulate and, if necessary, prohibit the taking, hunting or killing of a particular species or group of species. They aim at restricting the direct use of species through hunting, fishing or collecting. Similarly, the harvest of genetic resources entails similar environmental compliance problems.

Equally important is the consideration of biodiversity services and differential treatment in the compliance with I BL. Biodiversity services include the provision of services, regulating services and supporting services. Protection of biological diversity and resources encompasses services and the use of species and ecosystems. The CBD’s scope is broad as it applies to an array of areas: terrestrial, marine and other aquatic biological diversity. Obligations on the contracting party relate to the various aspects of biodiversity within the domestic

jurisdiction. In terms of advancing biodiversity, States can extend the effect to areas within and beyond the national jurisdiction. Pursuant to article 4, each State should at least identify the different activities and monitor them. Being ratified by a significant number of States, the CBD is one of the universal MEAs. The aims of the CBD are twofold: it not only deals with conservation and the protection of endangered species but also sets out procedures aimed at the use of biological resources.

Under the CBD, the Subsidiary Body on Scientific, Technical and Technological Advice performs an advisory function in terms of compliance. The 2050 Vision, entitled ‘Living in harmony with nature’, [4] aims at ‘[mjainstreaming biodiversity into national development plans as a principle and as a cross-cutting issue, which needs to be considered during implementation of the biodiversity framework’. In the new strategy for a comprehensive and participatory post-2020 global process, several key sources of information are contemplated, with an emphasis on the contribution from the parties through several inputs and submissions, which depicts a more bottom-up process in the drafting of a compliance strategy in IBL.

Since the focus of this book is compliance, three different regimes have been selected to exemplify its diverse aspects: CITES, Convention on Biological Diversity (CBD) and the Cartagena and Nagoya Protocols.

  • [1] 2 Pierre M. Dupuy and Jorge Vinuales, ‘The Sources of International Environmental Law’ in International Environmental Law (Cambridge University Press 2015), p. 160. 3 United Nations Environment Programme, Law and National Biodiversity Strategies and Action Plans (UNEP 2018). 4 Philippe Cullet and Sujith Koonan (eds), Research Handbook on Law, Environment and the Global South (Edward Elgar 2019). 5 Ben Boer, Chapter 20. Biodiversity Planning Law, UNEP, Ecolex, available at http://www2. ecolex.org/server2neu.php/libcat/docs/LI/MON-085693.pdf accessed 1 April 2020. 6 IUCN, available at https://www.iucn.org/theme/world-heritage/natural-sites accessed 1 April 2020. 7 Dupuy and Vinuales (n 10) at 160, 161. 8 Ramsar Convention, arts 1 and 2(2). 9 Vito De Lucia, ‘Competing Narratives and Complex Genealogies: The Ecosystem Approach in International Environmental Law’ (2015) 27(1) Journal of Environmental Law, pp. 91-117.
  • [2] Alexander Gillespie, Protected Areas and International Environmental Law (Martinus Nijhoff Publishers 2007), p. 9. See, Chapter on Compliance at 231. 2 1 Decision V/6 ‘Ecosystem Approach’ adopted by the Conference of the Parties to the Convention of Biological Diversity at its Fifth meeting, Nairobi, 15-26 May 2000, UNEP/COP/5/23. 3 Rayfuse (n 7). 4 WTO Matrix on Trade-Related Measures Pursuant to Selected Multilateral Environmental Agreements (MEAs), 9 Octubre 2017. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR); International Convention tor the Conservation of Atlantic Tunas (ICCAT); United Nations Fish Stocks Agreement (UNFSA); Agreement on Port State Measures (PSMA); International Tropical Timber Agreement (ITTA); International Plant Protection Convention (IPPC); Convention on Biological Diversity (CBD); Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity; Cartagena Protocol on Biosafety to the Convention on Biological Diversity; Nagoya - Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety; Montreal Protocol and the Vienna Convention on Substances that Deplete the Ozone Layer; United Nations Framework Convention on Climate Change (UNFCCC); the Kyoto Protocol and the Paris Agreement; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade; Stockholm Convention on Persistent Organic Pollutants; and Minamata Convention on Mercury.
  • [3] Rayfuse (n 7) at 374. Dupuy and Vinuales (n 10) at 162. 2 Ray fuse (n 7) at 386-390. 3 Rayfuse (n 7) at 386; Dupuy and Vinuales (n 10) at 162. 4 Convention on Future Multilateral Cooperation on Northwest Atlantic Fisheries, adopted on 24 October 1978. 5 United Nations Convention on the Law of the Sea, 10 December 1982. It entered into force on 16 November 1994, in accordance with article 308(1). 6 M. Jeffrey, ‘Bioprospecting: Access to Genetic Resources and Benefit Sharing under the Convention on Biodiversity and the Bonn Guidelines' (2002) 6 Singapore Journal of International & Comparative Law, p. 747 at 755. C. Hunter, ‘Sustainable Bioprospecting: Using Private Contracts and International Legal Principles and Policies to Conserve Raw Materials' (1997) 25 Boston College of Environmental Affairs Law Review., p. 129 at 138. See, e.g., D. Leary, ‘Bioprospecting and the Genetic Resources of Hydrothermal Vents on the High Seas: What Is the Existing Legal Position, Where Are We Heading and What Are Our Options?’ (2004) 1 MacQuarie Journal of International & Comparative Law, p. 137; and D. Leary, ‘Emerging Legal Regimes Regulating Bioprospecting for Thermophiles and Hyperthermophiles of Hydrothermal Vents’ (2004) 6 Marine Biotechnology, p. 351.
  • [4] Decision CBD/COP/DEC/14/34, 30 November 2018. 2 UNEP, Towards the Vision 2050 on Biodiversity: Living in Harmony with Nature, available at https://www.unenvironinent.org/news-and-stories/story/towards-vision-2050-biodiversity-living-harmony-nature accessed 1 March 2020. 3 Conference of the Parties to the Convention on Biological Diversity (COP), Decision 14/34, Fourteenth meeting, Sharm-El-Sheikh, Egypt, 17-29 November 2018, available at https:// www.cbd.int/doc/decisions/cop-14/cop-14-dec-34-en.pdf accessed 1 March 2020. 4 More than 175 States adhere to the treaty.
 
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