LEGAL PROTECTION OF BIODIVERSITY AND CLIMATE CHANGE. University of Salerno, 3 July 2017 Jean Monnet Summer School

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1 LEGAL PROTECTION OF BIODIVERSITY AND CLIMATE CHANGE University of Salerno, 3 July 2017 Jean Monnet Summer School PROF. RICCARDO PAVONI Department of Law, University of Siena pavoni@unisi.it

2 Definition of biodiversity the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems (Art 2 CBD)

3 Extent of threat and depletion Estimates predicting 30% of all known species will have disappeared by 2050; current rate of loss: the highest in the history of humanity, with some estimates talking of some species going extinct every year

4 Importance of biodiversity - ecologic, social, economic, scientific, educational, cultural, recreational and aesthetic values - critical importance for meeting the food, health and other needs of the growing world population (Preamble CBD) (pharmaceutical and food/feed/seed industrial sectors, but also energy sector, cosmetic, etc)

5 reasons Mostly, human activities causing destruction of habitats and ecosystems, introduction of alien invasive species, genetic pollution, overexploitation, climate change (ex. coral reefs seriously threatened with extinction within the next years)

6 CBD & CC Two different treaties!!! CBD is universal (only glaring absence is USA) and less politically-sensitive, perhaps also less binding, but more encroachment on sovereignty (ABS issue) UNFCCC is the far from universal, more binding and a highely controversial politically

7 cont Progress with the 2015 Paris Agreement, see Preamble and Art 5: a paradigm shift?

8 cont Take the issue of biofuels (from 33 billion litres in 2004 to 133 billion litres in 2015; from 3% of world s road transport from biofuels to estimates predicting a rise up to 27% by 2050)! Or that of climate geo-engineering But main area of concern: forest policy issues, forest as carbon stocks/sinks/reservoirs Tropical deforestation accounting for, according to the various estimates, about 12% to 20-25% of global CO2 emissions

9 cont In 1992 in Rio only a set of non-legally binding Forest Principles, note the huge business interests associated with forests, stalemate on key issues such as the definition of forests

10 cont See CDM mechanism and credits from forestry project activities like afforestation and reforestation: incentive for cost-effective largescale monoculture plantations in replacement of primary old-growth natural forests?

11 cont REDD+, ie, mechanism under the UNFCCC (institutionalized with the to reduce emissions from deforestation and forest degradation, as well as the conservation of forest carbon stocks, the sustainable management of forests and enhancement of forest carbon stocks

12 cont The imperatives of biodiversity cobenefits and biodiversity safeguards

13 targets CBD/COP 2002 (& Millennium Development Goals): achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on earth

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15 cont X/2. The Strategic Plan for Biodiversity and the Aichi Biodiversity Targets (COP-10, Nagoya) ( Living in Harmony with Nature ) Target 5: By 2020, the rate of loss of all natural habitats, including forests, is at least halved and where feasible brought close to zero, and degradation and fragmentation is significantly reduced

16 cont Target 12: By 2020 the extinction of known threatened species has been prevented and their conservation status, particularly of those most in decline, has been improved and sustained.

17 cont AG Res 70/1 Transforming our world: the 2030 Agenda for SD (25 Sept 2015, UNSD Summit) (17 SDGs & 169 Targets) Goal 15: Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss

18 cont Take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2020, protect and prevent the extinction of threatened species Promote fair and equitable sharing of the benefits arising from the utilization of genetic resources and promote appropriate access to such resources, as internationally agreed.

19 EVOLUTION OF THE LEGAL REGIMES From protection of species to protection of spaces (habitats, sites, ecosystems) to protection of biological diversity 1) Species: ex. Whaling Convention 1931/1946, CITES 1973, Conv on the Conservation of Migratory Species of Wild Animals ) Spaces: Ramsar Conv on Wetlands of International Importance 1971; WHC ) Biodiversity as such: CBD 1992

20 BIODIVERSITY REGIME COMPLEX Biological Diversity (as such): 1) Convention on Biological Diversity 1992 (negotiated since 1988 under auspicies of UNEP, adopted by the Intergov Negotiating Committee for a CBD in Nairobi in May 1992, opened for signature at UNCED Rio from 5 June 1992, in force 29 Dec 1993, 196 Parties including the EU (as of ), including Palestine since 2015, excluding only the USA (plus the Holy See)

21 CONT. 1a) Cartagena Protocol on Biosafety 2000 (Montreal 2000, in force 11 Sept 2003, 171 Parties incl EU, but still excl USA, Can, Australia, Arg, Chile, Russia, Israel, as of ) 1aa) Supplementary Protocol on Liability and Redress to the BSP 2010 (Nagoya 2010, not yet (but almost!) in force, 39 ratif (incl EU and various EU MS, but not Italy, as of , 40 ratif are needed) 1b) Nagoya Protocol on Access and Benefit-Sharing 2010 (adopted at COP-10 on 29 Oct 2010, in force 12 Oct 2014, 96 Parties incl EU, China, India, as of ; no Italy (!), no US, Canada, Australia, etc)

22 Closely related treaties & other Biodiversity-related treaties International Treaty on Plant Genetic Resources for Food and Agriculture 2001 ( Plant or Seed Treaty ) (adopted by FAO Conference on 3 Nov 2001, in force 29 June 2004, 144 Parties incl EU, USA has ratified on 13 Dec 2016!!!, NO China, Russia) Ramsar Convention on Wetlands (1971) (Number of Contracting Parties: 169; Number of Ramsar Sites: 2,260; Total surface of designated sites: 215,276,293 ha) World Heritage Convention (1972) (193 Parties; WH List: 1052 properties, 814 cultural, 203 natural, 35 mixed)

23 cont CITES (1973), 183 Parties Convention on the Conservation of Migratory Species of Wild Animals (CMS, 1979), 124 Parties

24 Status of biodiversity and GRs common heritage of mankind? (FAO 1983) or trust? (CGIAR) the conservation of biological diversity is a common concern of humankind (Preamble CBD), but States have sovereign rights over their own biological resources (ibid), and States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction (Art 3 CBD)

25 cont Art 15 CBD 1. Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation. 2. Each Contracting Party shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention.

26 Other CBD provisions CONSCIOUS of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components, CONSCIOUS ALSO of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere, AWARE that conservation and sustainable use of biological diversity is of critical importance for meeting the food, health and other needs of the growing world population, for which purpose access to and sharing of both genetic resources and technologies are essential,

27 Art. 8(g) on LMOs (GMOs) Article 8 (In situ conservation) Each Contracting Party shall, as far as possible and as appropriate: (g) establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health;

28 Art 19 CBD Handling of biotechnology and distribution of its benefits 1. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties. 2. Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms.

29 Art 19 CBD (cont) 3. The Parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity. 4. Each Contracting Party shall, directly or by requiring any natural or legal person under its jurisdiction providing the organisms referred to in paragraph 3, provide any available information about the use and safety regulations required by that Contracting Party in handling such organisms, as well as any available information on the potential adverse impact of the specific organisms concerned to the Contracting Party into which those organisms are to be introduced.

30 Biosafety Protocol Biosafety refers the need to protect human health and the environment from the possible adverse effects of the products of modern biotechnology. At the same time, modern biotechnology is recognized as having a great potential for the promotion of human well-being, particularly in meeting critical needs for food, agriculture and health care.

31 BSP provisions Aware of the rapid expansion of modern biotechnology and the growing public concern over its potential adverse effects on biological diversity, taking also into account risks to human health Art 2.2. The Parties shall ensure that the development, handling, transport, use, transfer and release of any living modified organisms are undertaken in a manner that prevents or reduces the risks to biological diversity, taking also into account risks to human health.

32 cont Art The Parties are encouraged to take into account, as appropriate, available expertise, instruments and work undertaken in international forums with competence in the area of risks to human health. Art Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.

33 International Treaty on Plant Genetic Resources for Food and Agriculture 2001 ( Plant or Seed Treaty ) Cognizant that plant genetic resources for food and agriculture are a common concern of all countries, in that all countries depend very largely on plant genetic resources for food and agriculture that originated elsewhere; Acknowledging that the conservation, exploration, collection, characterization, evaluation and documentation of plant genetic resources for food and agriculture are essential in meeting the goals of the Rome Declaration on World Food Security and the World Food Summit Plan of Action and for sustainable agricultural development for this and future generations Acknowledging further that plant genetic resources for food and agriculture are the raw material indispensable for crop genetic improvement, whether by means of farmers selection, classical plant breeding or modern biotechnologies, and are essential in adapting to unpredictable environmental changes and future human needs ;

34 cont Aware that questions regarding the management of plant genetic resources for food and agriculture are at the meeting point between agriculture, the environment and commerce, and convinced that there should be synergy among these sectors;

35 Nagoya Protocol on Access and Benefit- Sharing 2010 Recognizing the importance of genetic resources to food security, public health, biodiversity conservation, and the mitigation of and adaptation to climate change, Mindful of the International Health Regulations (2005) of the World Health Organization and the importance of ensuring access to human pathogens for public health preparedness and response purposes,

36 cont Art 8. Special Considerations In the development and implementation of its access and benefitsharing legislation or regulatory requirements, each Party shall: (b) Pay due regard to cases of present or imminent emergencies that threaten or damage human, animal or plant health, as determined nationally or internationally. Parties may take into consideration the need for expeditious access to genetic resources and expeditious fair and equitable sharing of benefits arising out of the use of such genetic resources, including access to affordable treatments by those in need, especially in developing countries;

37 cont Art. 4(4) This Protocol is the instrument for the implementation of the access and benefit-sharing provisions of the Convention. Where a specialized international access and benefitsharing instrument [e.g. WHO PIP Framework] applies that is consistent with, and does not run counter to the objectives of the Convention and this Protocol, this Protocol does not apply for the Party or Parties to the specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument.