In this era of mass extinction, international biodiversity law is at a crossroads. As the debate on a post-2020 global biodiversity framework intensifies, calls are growing for the Convention on Biological Diversity to set an ambitious overarching goal to fight biodiversity loss and find innovative ways to link such a goal with national targets and commitments.
In a two-part blog post just published on EJIL:Talk!, the blog of the European Journal of International Law, I argue that the planetary boundary framework first developed in 2009 by the Stockholm Resilience Centre could represent an important tool in this quest to identify more substantive legal obligations applying to biodiversity within national jurisdiction. In addition, I suggest four ways in which the planetary boundary for biosphere integrity could be incorporated in international biodiversity law, ranging from institutional arrangements within the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES) to normative developments at the level of emerging principles of international law.
On March 1st, in my position of Programme Manager for the the Jean Monnet Module on European Union Law and Sustainable Development (EULawSD), I had the pleasure of hosting the first session of our EULawSD Webinar Series 2018 on YouTube.
The EULawSD Webinar Series complements the activities of the EULawSD Jean Monnet Module, which is coordinated by Prof. Riccardo Pavoni (Department of Law, University of Siena) and co-funded by the European Commission for the period 2017-2020. Each webinar is aimed at fostering a lively public debate on the role of the European Union as a key actor in the achievement of the 2030 Agenda for Sustainable Development, and offers all interested citizens the opportunity to engage with leading experts and practitioners in the fields of European Union law and governance, sustainability science, international economics, and many more.
EULawSD’s first guest was Dr. Guido Schmidt-Traub, Executive Director of the UN Sustainable Development Solutions Network (SDSN). One of the world’s leading experts on the Sustainable Development Goals (SDGs) and the 2030 Agenda, Dr. Schmidt-Traub engaged with the audience to discuss the current trends and scenarios for their implementation in the European context, the challenges of financing and monitoring of progress, and the role that the European Union can play in the achieving sustainable development in third countries. I wish to thank him deeply for his participation in the webinar, which can be watched on EULawSD’s YouTube Channel.
As the G20 Summit in Hamburg wraps up to considerable media attention, I would like to spend some time reflecting on the other intergovernmental meeting currently under way, namely the 41st session of the UNESCO World Heritage Committee (the body tasked with overseeing the implementation of the World Heritage Convention and managing the World Heritage List and the World List of Heritage in Danger).
This year, the Committee has addressed important dossiers, including increased logging in the Białowieża Forest, the widespread destruction of the Site of Palmyra, and the repeated coral bleaching events affecting the Great Barrier Reef. For many of the sites inscribed in the two lists, the negative human impacts are growing, and certain country policies plainly run counter to the objectives of the Convention.
At the same time, however, the World Heritage Convention remains a powerful symbol of hope, and a testament to how sites of outstanding cultural and natural value speak to the very existence of humankind on planet Earth. In particular, the new inscriptions shall remind us of the quintessential importance of the interactions between different populations, religions and cultures in shaping human civilization as we know it (the Hebron/Al Khalil Old Town in the West Bank, the Historic City of Yazd in Iran, Kulangsu island in China); of the inextinguishable interplay between nature and culture in creating unique cultural landscapes which underpin the identity of human societies (the Kujataa farming landscape in Greenland, Taputapuātea on Ra’iatea Island, the ǂKhomani Cultural Landscape between Botswana and Namibia); and of the multiple direct and indirect functions played by natural ecosystems around the world, ranging from their role as habitats of vulnerable and rare species to the irreplaceable services they provide for human well-being (the Landscapes of Dauria in Mongolia, the W-Arly-Pendjari Complex in the Sudano-Sahelian region, the Primeval Beech Forests in the Carpathians and other areas of Europe).
In times of unprecedented threats to the world’s cultural and natural heritage, the work of UNESCO truly is invaluable, and after 35 years the World Heritage Convention continues to be one of the most relevant instruments in multilateral cooperation on global public goods. This is why all parties should refrain from politicizing its work, and instead seek to strengthen its contribution to cultural diplomacy, local livelihoods, and environmental protection.
A study I recently co-authored (with Rana Elkahwagy and Vandana Gyanchandani) for the United Nations Conference on Trade and Development is now out as a Working Paper of the Centre for Trade and Economic Integration (CTEI) of the Graduate Institute of Geneva. It was prepared under the supervision of Prof. Joost Pauwelyn and Prof. Anne Saab as part of TradeLab, an independent NGO which brings together students, academics and practitioners to provide pro bono legal advice on international trade and investment matters to developing countries and other smaller stakeholders.
The study, entitled ‘UNFCCC Nationally Determined Contributions: Climate Change and Trade‘, assesses the legal interactions between the Paris Agreement and international trade in the light of country commitments under their Nationally Determined Contributions (NDCs). More specifically, the study seeks to achieve a better understanding of the impacts of the ‘response measures’ contained in the NDCs on economic diversification, including their interplay with existing trade rules, in order to build mutual supportiveness between the climate and trade regimes while also contributing to broader sustainable development objectives.
Today, the prestigious Dag Hammarskjöld Foundation published my new piece on the role that the Sustainable Development Goals can play in changing the normative work of the United Nations to make it fit for the purpose of implementing the 2030 Agenda.
I am honored to be featured by an organization which seeks to uphold the crucial role of multilateralism in solving today’s complex challenges, in the spirit of a man whom John F. Kennedy once called “the greatest statesman of our century”.
In the article, I argue that in order to transform the UN approach to the development of new norms, it is necessary to understand what the Agenda itself implies for the evolution of international law, and more specifically for the establishment and further specification of sustainable development as a legal principle of integration between economic, social and environmental considerations.
On 25 September 2015, Heads of State and Government from the 193 Member States of the United Nations gathered at the 70th Session of the UN General Assembly in New York to adopt the 2030 Agenda for Sustainable Development, a “comprehensive, far-reaching and people-centred set of universal and transformative Goals and targets” which will “stimulate action over the next fifteen years in areas of critical importance for humanity and the planet”.
In its essence, the outcome document of the UN Sustainable Development Summit (which contains the much-heralded Sustainable Development Goals) delineated a policy framework concerned with mobilizing efforts at the international, national and subnational level around a set of common priorities relating to sustainable development, and by doing so, it then sought to address challenges as diverse and ambitious as ending poverty and hunger, combating inequalities, building peaceful and inclusive societies, promoting human rights, and ensuring the protection of the planet and its natural resources.
From this perspective, the adoption of the SDGs represented an unprecedented effort not only to move away from a development agenda still heavily dominated by a narrow focus on the economic and social components (something which is evident in the design -and failures– of the Millennium Development Goals), but also to positively identify the reciprocal interactions between the various components of sustainable development that must be taken into account by States at the stage of implementation. This effort, in turn, will now require transformative changes in the way all sectors of society deal with the above-mentioned challenges: from the economy to life sciences to law, existing institutions and systems of rules will be called upon to remove the obstacles to sustainable development and actively promote the achievement of the 17 Goals and 169 targets.
As a legal scientist with strong interests in the field of the environment, I believe that legal regimes are particularly bound to interact with the 2030 Agenda, and that ensuring a mutually supportive relationship between them will be necessary if human development is to stay within the Earth’s planetary boundaries in the next fifteen years and beyond. While I will explore this topic more in depth in an upcoming journal article which I am currently writing with Professor Riccardo Pavoni of the University of Siena (Italy), here I want to highlight the important governance function that international environmental law can play in the implementation of the ‘environmental’ goals and targets contained in Resolution 70/1. In fact, on the one hand, as recently maintained by the UNEP, violations of international environmental law “have the potential to undermine sustainable development and the implementation of agreed environmental goals and objectives at all levels”. On the other, international environmental law constitutes the normative backbone of many (possibly all) of the SDGs, in the sense that institutional and legal developments in the field of the environment can either “foster” or “frustrate” such goals, and that the development of innovative legal approaches, coupled with increased stakeholder engagement, is necessary to accommodate environmental protection concerns in the operationalization of the 2030 Agenda.
Indeed, it seems prohibitive to outline all the potential challenges that international environmental law will have to address in order to enable a mutually supportive relationship with the post-2015 development framework. Moreover, it could be convincingly argued that the underlying problem in this respect will remain the lack of integration between international environmental law and different legal regimes, with a strong emphasis on areas such as trade and investment law and human rights. At the same time, it appears possible, when examining the content of the 2030 Agenda in the context of other recent developments both in the activities of the UNGA and generally in international environmental law, to pinpoint at least some of these recurring challenges. Pavoni and I hold nine of them to be particularly important. More specifically, four are concerned with substantive issues (broadly corresponding to SDGs 12-15) while the rest mainly relates to procedural elements, means of implementation, and shortcomings in the general architecture of international environmental law.
The four substantive challenges are: (i) swiftly implementing the Paris Agreement on climate change and ensuring that commitments contained in the Intended Nationally Determined Contributions (INDCs) of the Parties remain ambitious on a pathway to the decarbonization of the economy by 2050; (ii) developing a new regime for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction under the UN Convention on the Law of the Sea, as currently mandated by Resolution 69/292 of the General Assembly; (iii) strengthening integration within international environmental law by promoting the definition of linkage-based plans, policies and programmes, with a particular focus on the widespread adoption of an ecosystem-based approach to environmental protection, increased consideration of the underlying drivers of biodiversity loss and ecosystem destruction, and the role of environmental impact assessment (EIA) laws; and (iv) advancing a holistic approach to the management of chemicals and waste under existing international conventions and developing new multilateral agreements on the subject, where needed. Taken together, these challenges continue to highlight major gaps in international environmental law, and addressing them would also mean achieving concrete progress around at least five critical planetary boundaries, including climate change, biosphere integrity, land-system change, and introduction of chemicals, nanomaterials, and other novel substances.
The remaining topics emphasize the need to further advance key procedural norms and to strengthen the means of implementation in legal regimes in the field of the environment. Most of them reflect long-standing normative trends in the development of international environmental law, while others represent relatively new topics lying at the intersection of law and policy which must increasingly inform the development of multilateral environmental agreements and the evolution of already existing institutions and regimes. They are: (i) harnessing foreign direct investment, official development assistance, and domestic finance for environmental protection, including through further promotion of the role of market-based instruments such as payments-for-ecosystem-services schemes (PES), consistent with the vision outlined in the Addis Ababa Action Agenda; (ii) increasing capacity-building in, and technology transfer to developing countries in order to operationalize the global indicator framework and, more generally, foster conservation and sustainable use efforts (i.e. in terms of establishment, management and effective monitoring of protected areas); (iii) reinforcing science-policy interfaces and bolstering the role of intergovernmental platforms in building capacity for the effective use of science in law- and decision-making at all relevant levels (i.e. in terms of the assessment and accounting of the economic value of ecosystem services); (iv) enhancing public participation in decision-making and access to justice and information as an indispensable component in the implementation of the procedural and substantive environmental rights of individuals and communities, as most recently urged at Rio+20; and (v) advancing liability regimes at the domestic and international level (but also, more generally, non-compliance procedures), particularly by moving away from the traditional rules of State responsibility in favor of more stringent civil liability rules.
It should be noted that it was not by chance that I reserved these two essential aspects for last. On the one hand, despite the message contained in Principle 10 of the Rio Declaration, progress on the topics of public information and participation and access to justice remains uneven, held hostage by geographical differences in the way human rights are being re-considered, translated into law and interpreted from an environmental perspective. As a consequence, it will be important to ensure that ambitious regional achievements on this topic, such as the Aarhus and Espoo Conventions, which provide for key procedural rights in the field of the environment, inform significant developments in other parts of the world. On the other hand, more than 20 years after the proclamation of Rio Principle 13 on liability and compensation, the emergence of rules of strict State liability and civil liability regimes in domestic legislation and/or multilateral environmental agreements continues to be undermined by the conflicting perspectives of States on issues such as the very definition of environmental damage, the role of the State in redress, the burden of proof, the scope of compensation, the limits of liability, and so forth. That these problems were carefully ignored in the drafting of the SDGs (not to mention the specific provision excluding liability and compensation contained in paragraph 52 of the decision adopting the Paris Agreement) bears further testimony to the steep task placed upon international environmental law in the implementation of the 2030 Agenda.
[Use the following citation when quoting from the article: Riccardo Pavoni and Dario Piselli, ‘Sustainable Development Goals and International Environmental Law: Normative Value and Challenges for Implementation’ (2016) forthcoming]