Elgar Encyclopedia of Environmental Law
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Elgar Encyclopedia of Environmental Law

Edited by Michael Faure

The Elgar Encyclopedia of Environmental Law is a landmark reference work, providing definitive and comprehensive coverage of this dynamic field. The Encyclopedia is organised into 12 volumes around top-level subjects – such as water, energy and climate change – that reflect some of the most pressing issues facing us today. Each volume probes the key elements of law, the essential concepts, and the latest research through concise, structured entries written by international experts. Each entry includes an extensive bibliography as a starting point for further reading. The mix of authoritative commentary and insightful discussion will make this an essential tool for research and teaching, as well as a valuable resource for professionals and policymakers.
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Introduction to Volume III: The research challenges of international biodiversity law

Elisa Morgera

    Contents
  • 1 Rationale and structure of this volume

  • 2 Research challenges from a general international law perspective

  • 3 Research challenges from a human rights perspective

  • 4 Research challenges from an inter-disciplinary and transdisciplinary perspective

1 Rationale and structure of this volume

The unprecedented degradation of the planet’s vital ecosystems and species, and the consequent damage to the variability of life on Earth, is one of the most pressing issues confronting the international community. The Millennium Ecosystem Assessment (2005) identified the following as the most important direct drivers of biodiversity loss and degradation of ecosystem goods and services: climate change, habitat loss and degradation, invasive alien species, overexploitation of species, and pollution.1 In 2010, the international community agreed on a Strategic Plan for Biodiversity 2011–2020, including a vision whereby ‘By 2050, biodiversity is valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people.’2 The Strategic Plan includes strategic priorities on addressing the underlying causes of biodiversity loss, reducing the direct pressures on biodiversity, promoting sustainable use, and improving the status of biodiversity by safeguarding eco-systems, species and genetic diversity.3 By 2014, however, the fourth edition of the Global Biodiversity Outlook had indicated that in most cases, progress will not be sufficient to achieve the targets included in the Strategic Plan (the Aichi Targets), as pressures on biodiversity will continue to increase at least until 2020 and biodiversity will continue to decline.4

In the face of the documented failed attempts to reduce the global trend in irreversible biodiversity loss and the need to increase efforts, including through indirect drivers of change such as institutions, governance and legal frameworks, the purpose of this edited collection is to provide a critical assessment of international biodiversity law. This volume thus examines how and to what extent international law has addressed the key concerns presently facing biodiversity conservation, made recourse to conventional and/or market-based approaches to biodiversity conservation and sustainable use, p. 2tackled cross-cutting issues, and considered direct as well as indirect changes in socioeconomic conditions. The book is divided into six parts: the first addresses the historical and conceptual background to the development of international biodiversity law, including a historical perspective of the challenges of biodiversity conservation penned by the Executive Secretary of the Convention on Biological Diversity (CBD),5 Brualio Dias, and Kathryn Garforth from the CBD Secretariat. In addition, the initial chapters of this volume also offer critical reflections on the role of national sovereignty and on North–South dynamics in the development of international law on biodiversity conservation and sustainable use. Part 2 discusses overarching principles and approaches that have characterized the evolution of international biodiversity law: sustainable development and equity, the ecosystem and precautionary approaches, as well as the natural capital and the valuation of ecosystem services. Part 3 investigates international legal developments in relation to the thematic work programmes under the Convention on Biological Diversity (oceans, freshwaters, mountains, forests, islands, drylands and agriculture), as well as key areas of work under the Convention such as protected species, protected areas (with distinct contributions on terrestrial protected areas, marine protected areas, and on indigenous and community conserved areas), access to genetic resources and benefit-sharing, traditional knowledge and biosafety. This part specifically aims to evaluate the interplay between biodiversity-related treaties and international initiatives.6 Part 4 explores, in turn, a series of cross-cutting issues, with a view to providing a basis for better understanding challenges in tackling direct and indirect causes of biodiversity loss and interactions among different areas of international law. These themes include invasive alien species, climate change – with a separate reflection on the role of forest biodiversity in the fight against climate change – trade and investment, gender mainstreaming, biofuels, technology transfer and ecotourism. Part 5 is devoted to a discussion of the changing perspectives and dynamics of multiple actors involved in the making and implementation of international biodiversity law, with an emphasis on non-state actors, international financial institutions and the European Union. Part 6 offers a discussion of the role of international biodiversity law in devising tools related to implementation, enforcement and compliance, with specific reflections on biodiversity-inclusive impact assessments, liability and redress under the Cartagena Protocol on Biosafety,7 monitoring and compliance, public participation and funding. The conclusions tie together a series of findings from the previous chapters that appear particularly significant in tackling today’s challenges to biodiversity conservation and sustainable use.

How does this volume intend to add to the existing literature? International biodiversity law has already received quite considerable attention in legal scholarship, including book-length analyses.8 Yet scholarly efforts have been uneven. Extensive literature exists p. 3on access to genetic resources and benefit-sharing,9 the relationship with the law of the sea10 and with intellectual property rights,11 agricultural biodiversity,12 to some extent funding,13 and increasingly climate change and biodiversity.14 But there is still very limited legal scholarships on the linkages with land governance at the international level,15 indigenous and community conserved areas,16 gender,17 compliance,18 the procedural rights of the general public in biodiversity decision-making,19 and island biodiversity,20 to name a few gaps identified in this volume. In addition, there is a clear need for further legal reflection on continuing challenges and emerging legal research questions in well-explored areas, such as marine biodiversity,21 traditional knowledge,22 biosafety,23 invasive alien species24 or the ecosystem approach.25 This volume therefore aims to support a comprehensive approach to the study of international biodiversity law, and to that end has served to bring into the spotlight key challenges from the perspectives of general international law, international human rights law, and interdisciplinary and transdisciplinary research.

2 Research challenges from a general international law perspective

The contributors to this volume have identified a series of overarching research questions in international biodiversity law of relevance from a general international law perspective, related to the sources of international biodiversity law (and in particular the role of soft law and of principles of international law) and mutual supportiveness. These questions raise the challenge of involving general international lawyers in the study and discussion of international biodiversity law as a fertile ground for testing more general legal theories about the nature and evolution of international law, while challenging international biodiversity lawyers to step back from their specialist approaches and consider the broader implications of the fine details of international biodiversity law.

p. 4The vagueness of several legal obligations in international biodiversity law, for instance, could be studied more in depth from the perspective of polycentric governance,26 which has been seen as a positive approach to empowering a contextualized response to the complexity and diversity of biodiversity conservation.27 On the other hand, vagueness has been blamed for limited progress in implementation of international biodiversity obligations, for instance in relation to the creation and effective protection of terrestrial protected areas.28 This in turn calls attention to the need for further reflection on the legal value of decisions adopted by the Conference of the Parties of biodiversity-related conventions, and their role, limitations and effects in fleshing out and providing authoritative interpretations of international obligations.29 Questions on the effectiveness of soft-law approaches have also been raised with regard to dryland biodiversity and land governance,30 and the international regulation of biofuels production.31 They remain to be further explored in the light of the current limited understanding of the degrees of compliance with the Convention on Biological Diversity in particular.32

Several chapters have also raised questions related to the principles of international law. With respect to mountain biodiversity, for instance, no systematic assessment has yet been conducted as to what extent principles of international environmental law complement the otherwise patchwork legal framework, with particular regard to the prevention of transboundary environmental harm, cooperation in the management of shared resources, and precaution.33 Along similar lines, it remains to be fully understood how the recognition of a general principle of international law to conduct environmental impact assessments (EIAs) affects the interpretation of the qualified language of the EIA obligation under the CBD.34 From a converse perspective, more research is needed to understand to what extent international biodiversity law may contribute to the recognition of principles of international (environmental) law. For instance, it has been put forward that the increasing level of sophistication of fair and equitable benefit-sharing from the utilization of genetic resources may be an indicator of the emergence of a general principle of international law.35 In addition, the question has been raised as to whether the ecosystem approach, as developed under the CBD, should be included among the principles of international environmental law,36 and what implications that interpretation would have, for instance, in international watercourses law.37

Several contributions to this volume have also pointed to continuing and emerging research questions with regard to the mutual supportiveness of international p. 5biodiversity law and other branches of international law.38 In relation to invasive alien species, it has been argued that the CBD has effectively functioned as an ‘umbrella’ that has brought together different international institutions in the ‘identification of gaps, clarification of perceived conflicts, and facilitation of discussion’ across various areas of international law.39 It remains to be demonstrated, however, whether the CBD has played or can play a similar role with regard to marine biodiversity in areas beyond national jurisdiction,40 climate change,41 REDD+42 and forests more generally,43 as well as transboundary watercourses.44 Overall, it remains to be clarified to what extent international biodiversity law has been transformed, and to what extent it contributes to defining/refining sustainable development by shifting away from a compartmentalized approach to the international regulation of natural resources and nature conservation, at the international level as well as in the context of the European Union.45

3 Research challenges from a human rights perspective

Within the abundant literature on human rights and the environment,46 the specific interactions between international human rights and biodiversity law47 remain understudied, although they have significant conceptual and practical relevance in addressing more equitably and effectively the challenges of preventing further biodiversity loss. Bridging the gap between international human rights and biodiversity law, scholars and practitioners raise the challenge of moving beyond the lack of human rights language in the CBD and other biodiversity-related conventions in order to critically and constructively engage with human-rights-relevant developments and implications of international biodiversity law.

This volume has unveiled a plethora of questions that urgently deserve deeper legal research at the intersection of international human rights and biodiversity law. In the well-known terrain of traditional knowledge of indigenous peoples and local communities, for instance, there is a continuing need to increase understanding of the international negotiating space and on-the-ground implementation opportunities for indigenous and community governance over lands and resources within traditional territories. These questions point to the need to research indigenous and community traditions, laws and governance systems related to knowledge and biodiversity in order to better understand their contributions to international, national and transnational law.48 Critical questions have also emerged from the much less studied area of indigenous and p. 6community conserved areas,49 as to whether these areas can be ‘strategically used as a vehicle for indigenous peoples and communities to assert and secure rights and responsibilities to the fullness of their territories and areas on the basis of self-determination’ and more generally whether and to what extent these areas can contribute to the achievement of the full spectrum of indigenous peoples’ and local communities’ human rights.

Defining components of the international biodiversity regime also raise novel questions from an international human rights perspective. The ecosystem approach, for instance, remains to be studied in its socio-cultural dimensions and in its search for fairness and equity through the concept of benefit-sharing not only from access to genetic resources, but also conservation and sustainable use, with a view to understanding if and how it may translate into enhanced legal recognition and support of communities’ rights to natural resources at the national and local levels.50 The CBD takes on the ecosystem approach that has also been considered helpful in moving beyond the dominating state-centric approach in international watercourses law, with a view to furthering legal reflection on the substantive and procedural rights of indigenous peoples and local communities in that specific context.51 Another tool that lends itself to human rights analysis is environmental impact assessment, in as far as international biodiversity law opens up opportunities for EIAs to incorporate socio-cultural considerations that relate to human rights to subsistence, health and culture,52 as well as to women’s rights,53 and in as far as international law more generally may be witnessing the emergence of a human right to an EIA.54

Finally, it has been revealed that women’s rights,55 as well as the human rights of the general public56 in having access to information, participation in decision-making and access to justice in biodiversity matters, including in relation to issues of compliance with international biodiversity law,57 have been consistently underexplored and deserve to be the specific object of further legal research.

4 Research challenges from an inter-disciplinary and transdisciplinary perspective

A few chapters in this volume have pointed to the need to better understand ideological underpinnings of international biodiversity law, in particular with regard to market-oriented approaches58 and biodiversity finance,59 as well as the patterns of influence of different states and non-state actors, including when acting through international institutions and the marketplace.60 The question is even more crucial when one considers distinct dimensions of inequality that the international biodiversity regime faces, such as p. 7differentiated access to scientific information and capacity among countries determining the balance between trade and biodiversity, including in the specific context of invasive alien species and agricultural biodiversity.61 These observations lead to the identification of another challenge in biodiversity legal research, namely the need to acknowledge the limitations of the discipline and engage in interdisciplinary and transdisciplinary research.

Because, as Kostakis reminds us, ‘[b]iodiversity has been a difficult concept to define with clarity, an elusive environmental entity to measure with precision, and a global public good whose value is subject to contestation’, lawyers need to engage with biology, ethics and economics, as well as political ecology, to understand the underpinnings of biodiversity knowledge and discourse.62 Better understanding of the root causes and possible solutions to the implementation gap in biodiversity law equally calls for engagement of the law with sociology, psychology and cognitive behaviour.63 Furthermore, inter-disciplinary research appears indispensable to fully understand and tackle the gender gap and the technological gap in the area of biodiversity.64

Finally, the role of indigenous peoples and local communities, and of their traditional knowledge, in addressing biodiversity loss, as well as their vulnerability to the negative impacts of certain environmental interventions, point to the urgent need to engage in transdisciplinary research, with a view to moving away from western-centric views of nature, society, law and knowledge.65 The challenge of finding culturally appropriate ways to equally value and respectfully engage with traditional knowledge is the defining one in this area of international law.66

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Millennium Ecosystem Assessment (2005).

CBD Decision X/2 (2010).

For legal perspectives on the Biodiversity Strategic Plan, contrast: Morgera and Tsioumani (2011) and Harrop (2011).

https://www.cbd.int/gbo4/ (accessed 19 July 2016).

Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD).

E.g. Glowka (2000); Cooney (2001); Harrop (2014).

Cartagena Protocol on Biosafety to the Convention on Biological Diversity (adopted 29 January 2000, entered into force 11 September 2003) 2226 UNTS 208 (Cartagena Protocol).

Glowka, Burhenne-Guilmin and Synge (1994); McManis (2007); Bowman, Davies and Redgwell (2010); Gillespie (2011); Bowman, Davies and Goodwin (2016).

E.g. Cabrera Medaglia (2015); Morgera, Tsioumani and Buck (2014); Morgera, Buck and Tsioumani (2013); Kamau and Winter (2013); Kamau and Winter (2009); Tvedt and Young (2007); Stoianoff (2004).

E.g. Goote (1997); Molenaar (2007); Roberts (2007); Tanaka (2008); De La Fayette (2009); Matz (2002).

Strauss (1993); Powers (1993); Tarasofsky (1997); Anuradha (2001); Goel (2008); Dagne (2009); Laxman and Ansari (2012).

Kameri-Mbote and Cullet (1999); Blakeney (2002); Bragdon, Garforth and Haapala Jr (2008); Salako (2012).

E.g. Roberts (1992); Lake (1998); Xiang and Meehan (2005); Menzel (2005); and Randle (2006).

Maes and others (2013); Jacquemont and Caparros (2002); Rousseaux (2005); Trouwborst (2009); Morgera (2012); and Morgera (2011).

Zeidler and Mulongoy (2003).

Chapter 10 (Jonas).

Chapter 24 (Jenkins).

Chapters 1 (Dias and Garforth), 2 (Willmore) and 33 (Cardesa-Salzmann).

Chapter 34 (de Silva).

Chapter 12 (Barnes).

Chapter 9 (Diz).

Chapter 19 (Schabus).

Chapters 16 (Perron-Welch) and 32 (Gupta and Orsini).

Chapter 20 (Burgiel).

Chapter 5 (Morgera).

Ostrom (2009).

Chapter 2 (Willmore).

Chapter 8 (Cliquet and Schoukens).

For a preliminary discussion, see Morgera (2011).

Chapter 15 (Tsioumani).

Chapter 25 (Romppanen).

Chapters 1 (Dias and Garforth), 2 (Willmore) and 33 (Cardesa-Salzmann).

Chapter 11 (Fodella).

Chapter 31 (Craik).

Chapter 17 (Pavoni and Piselli).

Chapter 5 (Morgera).

Chapter 13 (Moynihan).

For a discussion, see Morgera (2016).

Chapter 20 (Burgiel).

Chapter 9 (Diz).

Chapter 21 (Maljean-Dubois and Wemaëre).

Chapter 22 (Van Asselt).

Chapter 14 (Savaresi).

Chapter 14 (Savaresi).

Chapters 4 (Barral) and 30 (de Sadeleer).

E.g. Boyle and Anderson (1998); Francioni (2010); Boyle (2007); Anton and Shelton (2012); Boyle (2012).

Morgera (2014); Meyer (2001); Razzaque and Ssenyonjo (2007); Heinamaki (2009).

Chapter 19 (Schabus).

Chapter 10 (Jonas).

Chapter 5 (Morgera). See also www.benelex.ed.ac.uk.

Chapter 13 (Moynihan).

Chapters 31 (Craik) and 25 (Romppanen).

Chapter 31 (Craik).

Chapter 31 (Craik), on the basis of Knox (2013).

Chapter 24 (Jenkins).

Chapter 34 (de Silva).

Chapter 35 (Aguilar).

Chapters 3 (Kotsakis), 6 (Langlais) and 27 (Peralta).

Chapters 29 (Schwartz) and 35 (Aguilar).

Chapters 28 (Affolder), 25 (Romppanen), 22 (Van Asselt) and 10 (Jonas).

Chapters 23 (Alam), 20 (Burgiel) and 18 (Chiarolla).

Chapter 3 (Kotsakis).

Chapter 7 (Techera). See also CBD Decision XII/1 (2014) Annex I, para a.

Chapters 24 (Jenkins) and 26 (Ntona).

Chapters 19 (Schabus) and 27 (Peralta). See generally Vermeylen, Martin and Clift (2008).

Both the CBD and the Intergovernmental Panel on Biodiversity and Climate Change are engaging with this: see discussion in Morgera (2015).