Can the 2030 Agenda change the norm?

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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.

You can read the article here.

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The Sustainable Development Goals and international law: legal challenges to the achievement of ‘environmental’ Goals in the 2030 Agenda

 

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Photo Credit: UN Photo/Cia Pak

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]

Statement on COP21 participation

Conférence des Nations Unies sur les changements climatiques - COP21 (Paris, Le Bourget)
Conférence des Nations Unies sur les changements climatiques – COP21 (Paris, Le Bourget)

The Paris Agreement is a done deal. Despite its foreseeable shortcomings, it is a global climate agreement that will shape transformational pathways of change for our economies and societies in the next decades and beyond. Every young individual around the world should read this text, or learn more about it from the excellent reviews that are already available online (one of my favorites here).

Personally, I am glad and honored to have spoken in a few side events at COP21 this past week to highlight issue of biodiversity conservation within the new climate change regime and to promote the active involvement of youth in the implementation of the climate agenda. I was also extremely pleased to attend the Global Landscapes Forum on December 5-6, which highlighted the many linkages that exist between ecosystems and climate change and showed the importance of building broad coalitions of governments, business, and civil society to address the challenges that landscapes are facing everywhere on our planet.

As the Project Leader for Solutions Initiatives at the UN Sustainable Development Solutions Network – Youth, I have come in contact with many young people from around the world whose brilliant and tireless work on climate change only awaits to be recognized and supported by institutions, experts, and investors at all relevant levels. In 2016, we will continue to streamline such work in every forum and to help them implement and scale their transformative ideas and solutions.

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The Whaling in the Antarctic case: a landmark judgment and its potential implications

Fig.1: Special Permit Catches, 1948 to 2010. Source: Memorial of Australia, Vol.I, p.38
Fig.1: Special Permit Catches, 1948 to 2010. Source: Memorial of Australia, Vol.I, p.38

Il 31 marzo scorso la Corte di Giustizia Internazionale ha emesso il suo verdetto sul programma di caccia alle balene “per fini scientifici” portato avanti dal Giappone nel Southern Ocean Sanctuary (Oceano Antartico) ai sensi dell’Articolo VIII della ICRW (Convenzione Internazionale per la Regolamentazione della Caccia alla Balena) ed aspramente contestato dallo Stato australiano, il quale lamentava la violazione degli obblighi internazionali per la conservazione dei cetacei previsti proprio nel suddetto trattato. Il seguente paper, da me scritto, analizza gli aspetti peculiari della sentenza e ne evidenzia le potenziali implicazioni a livello di diritto internazionale dell’ambiente, risoluzione delle controversie internazionali in materia ambientale e politiche di conservazione (con particolare riferimento alla governance dei c.d. high seas). Per accedervi, una volta letto l’abstract, è sufficiente aprire il relativo file pdf.

P.S. Sottolineo che questo lavoro non è stato oggetto di pubblicazione scientifica e quindi di revisione paritaria (eccettuati i suggerimenti del Prof. Riccardo Pavoni dell’Università degli Studi di Siena, che ringrazio), ragion per cui qualsiasi feedback o commento in merito è benvenuto.

[Note: the following work has not been published on an academic journal and thus was not peer-reviewed, except for critiques and suggestions kindly offered by Prof. Riccardo Pavoni of University of Siena. Any feedback or comment on its validity is therefore welcomed. Thank you.]

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ABSTRACT

On 31 March 2014 the International Court of Justice issued its long-awaited judgment on the case concerning whaling in the Antarctic, brought before it by Australia over Japan’s alleged breach of certain obligations under the International Convention for the Regulation of Whaling (ICRW). The Court’s ruling, which held that Japan’s Special Permit Whaling under the so-called JARPA II could not be qualified as being conducted “for purposes of scientific research”, presents some innovative features that might lead to consider it a landmark in the evolution of environmental dispute settlement. This article tries to break down some of decision’s key points from an international law perspective and shares some reflections on aspects of policy, dealing with the potential implications of the dispute for the current whaling regime and beyond.

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A look at CITES’ procedures and effectivity

by Dario Piselli, Greening USiena coordinator

Since one of the most incendiary CITES meeting ever has wrapped up in Bangkok earlier this week, an in-depth look is needed in order to have a clear picture of how the conservation measures adopted by the Plenary could influence the international trade of those species that have been driven on the brink of extinction by their economic value and to better understand if the Convention’s procedure for listing really helps science-based arguments prevail over special interests. This is not merely a ‘policy’ issue, but rather an environmental one, since CITES’ positions reflect the stance of the entire international community coming down to the very survival of endangered species and given that a better implementation mechanism could achieve dramatic success and prevent an excessive exploitation of earth’s natural resources and biodiversity. As it happens with other intergovernmental bodies and conventions, in fact, control over the implementation of undertaken measures is the more difficult part to address in the whole process, especially considering that it is alternatively conducted at the national level (thus providing the means for unwilling countries to ‘escape’ commitments), too undetermined and ‘international’ (thus requiring mutual agreements between the involved States) or even almost impossible to monitor due to intrinsic reasons (think of high-seas and IUU -illegal, unreported, unregulated- fishing, for instance).

Before starting to address CITES’ procedures and the enforcement of its conditions, however, I should provide readers with a basic framework of the treaty’s operation, as well as with a few data on the international wildlife trade total volume and its impact on biodiversity and the environment.

In 2009, the estimated global imports value was over USD323 billion, and this figure excludes the vast and unregulated market of china-internet-wildlife-crackdownillegal wildlife trade, which -according to multiple sources- accounts for several billion dollars as well1. Wildlife trade, even the one that takes place within national borders, finds its primarymotivating factor in profit, ranging from local and small-scale activities (in the Fiji, those involved in the collection of marine specimens can expect a monthly income of USD452, compared to an average wage of USD502) to multinational companies and smugglers, and is driven by the global demand of food, healthcare (and not just traditional medicine), clothing, sport trophies, fuel, building materials and so on. In other words, there is good possibility everyone of us is involved in at least one aspect of the international wildlife trade (think of the timber used to make your floor or roof, which also has a 30% chance of coming from illegal logging3), most of the time without even knowing about it.

Given the size of wildlife products’ global market, it almost sounds obvious to say that wildlife trade accounts for a big part of the loss of world’s biodiversity, sometimes making pair with climate change, habitat loss and pollution. This kind of loss is not only threatening the survival of endangered species (which, if seen on moral grounds, could be a concern itself), but also putting food security and the income means of poor countries in jeopardy, as well as contributing to the environmental crisis (by both altering the ecosystems’ equilibria and using unsustainable methods to collect wildlife) and stealing natural resources’ sovereignty.

The Convention on the International Trade of Endangered Species (CITES) is an international treaty which was originally signed in 1973 to take a strong, worldwide stand against wildlife over-exploitation. In many ways, it can be said that it has achieved moderate success in the protection of world’s most endangered animals and plants but, on the other hand, fallacies are still present in its listing procedure and in the enactment process, and it is those fallacies that need to be addressed in order to improve the conservation status of many species which have seen their numbers shrink, almost to the point of extinction, in the last few years.

CITES operates by inserting endangered wildlife in the treaty’s three appendices, which amount to different protection levels; today I am jaglogabout to discuss the first two of them. Appendix I encompasses “all species threatened with extinction which are or may be affected by trade” (about 1200), including jaguars (panthera onca), tigers (panthera tigris), many species of whales, primates, birds and so on; for these plants and animals, international trade can be authorized just for non-commercial purposes, where the term ‘authorization’ refers to the possession of export and import permits granted by Scientific and Management Authorities of the involved states. Trade in the Appendix II species has to obey to much less stringent rules instead, as commercial purposes are permissible and an import certificate is not required; this appendix shall include “all species which although not necessarily now threatened with extinction can become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with survival”4.

That said, it is relatively easy to understand why, without a a science-based listing procedure and a sound, national monitoring over the implementation of trade restrictions, inserting a species into one of the treaty’s appendices can be largely irrelevant, especially in those cases where the interaction of habitat loss and poaching(i.e.: tigers or rhinoceros are still critically endangered despite being listed in the Appendix I) or a single country’s bias (i.e.: China and Japan’s behavior towards shark and whale conservation ismanta_gillsinfluenced by the economic value of their market) represent insurmountable obstacles to international law and its implementation. The Bangkok meetinghaving been incensed for the inclusion of five sharks species, manta rays and some hardwood trees species in CITES’ Appendix II, public opinion and governments should be aware that its landmark votes are just the beginning of a path, and not the final result of the protection process, which needs to be strictly overseen and assisted by seizures, sanctions, national policies and transnational anti-crime operations in order to be effective. Looking at the global picture, and considering that a) up to 100 million sharks get killed each year5, b) around 3,300 manta rays endure the same destiny (primarily for their gill rakers)and c) as I noted earlier, 30% of world timber imports is likely to come from illegal logging, effectivity is definitely the key word in this field.

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TRAFFIC, http://www.traffic.org/trade/
TRAFFIC, Dispatches No.23, February 2005, p.4
UNEP, Green Carbon: Black Trade Report
CITES, Convention Text
Boris Worm et al., Global catches, exploitation rates, and rebuilding options for sharks(2012)
Damian Carrington, Manta Rays: how illegal trade eats is own lunch (The Guardian, 05.03.2013)

Other references

T.Gehring and E.Ruffing – When Arguments Prevail Over Power: The CITES Procedure for the Listing of Endangered Species (2008)

Bowman, Davies, Redgwell – Lyster’s International Wildlife Law (2010)