User:Kaihsu/EnvC3

C3: General principles of the conservation of biological diversity

Regulatory techniques
Conservation for its own sake? Sustainable, rational use of resources? Animal rights/welfare? Common heritage/concern? CBD + Big Four: CITES, World Heritage, Bonn (migratory), Ramsar (wetlands).
 * Protected areas, managing habitats, ecosystems
 * Banning or restricting taking, its methods, seasons
 * Sustainable use
 * Regulating trade
 * Banning introduction of new, alien species
 * Listing, permits
 * Funding and support

General treaties

 * 1972 UNESCO World Heritage Convention, domestic obligation confirmed in Commonwealth v Tasmania High Ct Australia 1983
 * 2001 FAO International Treaty on Plant Genetic Resources for Food and Agriculture

1973 CITES
Convention on International Trade in Endangered Species of Wild Fauna and Flora has almost universal participation. Regulatory technique: listing species in 3 appendices, with various protection levels; COP can amend them (art. 15, Berne criteria). Exemptions e.g. making specimens. CITES Standing Committee found in 2018 that Japan failed to comply re whaling: proceeds going to science does not mean activity is noncommercial (see Whaling in the Antarctic (Australia v Japan) ICJ 2014 below).

1992 Convention on Biological Diversity
CBD has three goals: conservation, sustainable use, fair sharing of benefits. It has almost universal participation, but not USA. Biodiversity conservation is ‘common concern of humankind’; states have sovereign rights over ‘biological resources’ and are responsible for conserving and using them sustainably: preamble. Weaker form of precautionary approach than Rio.

Parties must have national strategies and plans, and cooperate re areas beyond national jurisdiction (e.g. high seas &rarr; UNCLOS) and re mutual interest: arts. 5, 17, 18. Obligations to have national plans (in situ, ex situ conservation), monitor (art. 7, annex 1), research, awareness (arts. 6, 12, 13). Art. 20 funding obligation led to use of Global Environment Facility.

Rules on genetic resources and tech transfer (arts. 15, 16). Art. 19 regulates biotech and its benefits – controversial provision re intellectual property. 2002 Bonn Guidelines &rarr; 2010 Nagoya Protocol on Access and Benefit-Sharing entered into force in 2014: prior informed consent, clearinghouse, model contract.

2010 Biodiversity Target set in 2002 was not achieved. Aichi Targets for 2020 was set in 2010 with 5 strategic goals: address underlying causes of biodiversity loss, reduce the pressures on biodiversity, safeguard biodiversity at all levels, enhance the benefits provided by biodiversity, provide for capacity-building.

2000 Cartagena Protocol on Biosafety regulates living modified organisms (LMO) with advance informed procedure (AIP) and Biosafety Clearing-House, based on precautionary approach and risk assessment. 2011 Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol entered into force on 5 March 2018.

2016 Cancún Declaration on Mainstreaming the Conservation and Sustainable Use of Biodiversity for Well-Being connects CBD with Sustainable Development Goals and UNFCCC Paris Agreement.

UN General Assembly Resolution 72/249 of 24 December 2017 convened an Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction to draft a legally binding international instrument under UNCLOS. Its fourth session was to take place at UN Headquarters from 23 March to 3 April 2020; now postponed.

Thematic treaties

 * Fish stock treaties, e.g. 1982 Straddling Fish Stocks Agreement, 1995 UN Fish Stocks Agreement: regional fisheries management organizations
 * 1982 UNCLOS Part V (EEZ)
 * 1971 Ramsar Convention (wetlands): list, wise use, cooperation
 * 1973 Polar Bear Agreement
 * 1979 Bonn Convention on the Conservation of Migratory Species (CMS): taking ban on appendix I species; ‘range states’ are required to try to conclude agreements for conservation; 7 have been concluded. Coverage poor: Species protection nugatory if range states are not party.
 * 1979 Council of Europe Bern Convention on wildlife
 * 1994 United Nations Convention to Combat Desertification: particularly in Africa
 * 2006 (1983) UNCTAD International Tropical Timber Agreement: set up International Tropical Timber Organization with Strategic Plan of Action 2013–2018, using Common Fund for Commodities.
 * Numerous regional treaties.

1946 International Convention for the Regulation of Whaling
ICRW didn’t define scope (“whale”) or jurisdiction (territorial sea and EEZ of parties included?). It uses the techniques of seasons, quotas, monitoring. Whaling is categorized into three: commercial, scientific, indigenous.

It set up the International Whaling Commission (IWC), which is now dominated by nonwhaling states. The IWC moved from the initial aim of conservation of whale stock to a moratorium of commercial whaling in 1982. Norway and Iceland opted out from this &rarr; North Atlantic Marine Mammal Commission (NAMMCO); Greenland uses the indigenous exemption. Dissatisfaction with IWC led to the adoption of Resolution 2006-1 (‘St Kitts and Nevis Normalisation Declaration’) proposed by Japan.

In the Southern Ocean (Antarctic), Japan uses the scientific research exemption for its programme JARPA 1987 to 2006. In Whaling in the Antarctic (Australia v Japan) ICJ 2014, Australia pled on the basis of ICRW, CITES, CBD. The Court found against JARPA II hunting in the Southern Ocean per ICRW, without referring to CITES (see Standing Committee finding above), CBD. Despite this, Japan started NEWREP-A (refused by IWC Scientific Committee) in 2015 and withdrew from IWC in 2019. In the northern Pacific, Japan ran JARPN and now runs NEWREP-NP.

Soft law

 * 1977 UNESCO Man and Biosphere programme
 * 1981 FAO Soil Charter
 * 1982 World Charter for Nature

1992 Forest Principles
Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests is followed by:
 * Intergovernmental Panel on Forests 1995 &rarr; ad hoc open-ended Intergovernmental Forum on Forests 1997 to 2000 &rarr; United Nations Forum on Forests 2000
 * Non-Legally Binding Instrument on All Types of Forests (UN GA Resolution 62/98, 2007) &rarr; United Nations forest instrument (renamed by A/RES/70/199, 2016)

Caselaw
Whaling in the Antarctic (Australia v Japan) ICJ 2014 above.

2015 ITLOS Advisory Opinion requested by the Sub-Regional Fisheries Commission (SRFC) ruled on coastal and flag state duties to ensure sustainable fisheries management and for illegal, unreported and unregulated (IUU) fishing activities. Held: Despite coastal state having main duty to regulate in EEZ, flag state is liable for failure of due diligence against IUU fishing. In such a case, EU is liable instead of member state because of exclusive competence. Particularly for sustainable management of EEZ fish stock, SRFC parties have the duty to cooperate and seek to agree.

The tribunal in South China Sea (Philippines v China) arbitration found that China caused severe, irreparable harm to the coral reef ecosystem; had not cooperated with bordering States in the protection and preservation of the marine environment; and had not communicated an assessment of the potential effects of such activities on the marine environment (in contravention of Article 206 of the UNCLOS).